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HomeMy WebLinkAbout7C TTM Red Fox Lease 7C Request for Council Action Prepared By: James LehnhoffCouncil Meeting Date: March 30, 2009 Approve the lease agreement between TTM Operating Corporation, Inc and the City of Arden Hills with a yearly lease rate of $2,700 and a yearly increase of 3% based on the terms in the Communications Site Lease Agreement in Planning Case 09-004 pending the receipt of the final exhibits. Budgeted Amount: Actual Amount: Funding Source: N/AN/AN/A Recommendation: Approve the lease agreement between TTM Operating Corporation, Inc and the City of Arden Hills with a yearly lease rate of $2,700 and a yearly increase of 3% based on the terms in the Communications Site Lease Agreement in Planning Case 09-004 pending the receipt of the final exhibits. Supporting Documents: 1.March 30, 2009, Memo to the Council 2.Equipment Picture, Site Picture, and Air Photo 3.Proposed Lease Agreement and Preliminary Exhibits MEMORANDUM DATE: March 30, 2009 TO: Mayor & City Council FROM: James Lehnhoff, Community Development Director SUBJECT: Planning Case #: 09-004 Water Tower Property Ground Lease TTM Operating Corporation, Inc 1230 Red Fox Road Request Approve the lease agreement between TTM Operating Corporation, Inc and the City of Arden Hills with a yearly lease rate of $2,700 and a yearly increase of 3% based on the terms in the Communications Site Lease Agreement in Planning Case 09-004. Background TTM Operating Corporation, Inc (TTM) is proposing to lease 16 square feet of ground space at the City’s water tower site at 1230 Red Fox Road to install communications equipment adjacent to the existing T-Mobile building (Attachment A). TTM is a communications company that provides high speed fiber optic services to cellular towers and is a competitor of Qwest. A fiber optic line and related utilities would be installed from the right-of-way through a non-exclusive utility easement to the proposed equipment box to provide fiber optic service to T-Mobile. This request does not include any antennas or any attachments to the water tower. Attachment A shows a picture of the TTM equipment box and its proposed location at the 1230 Red Fox Road water tower site. The TTM proposal includes just the equipment box circled on the photo. The metal structure behind the equipment box in the picture is not part of the TTM proposal or its equipment. The 16 square foot leased area would include this box and a small area around it to provide work space as shown in the exhibits for the lease. The City has three cellular providers at the Red Fox Road water tower site: Sprint, Nextel, and T-Mobile (Sprint and Nextel are part of the same company but have separate facilities). The TTM proposal would not interfere with the operations of the existing users, the City’s ability to \\Metro-inet.us\ardenhills\Admin\Council\Agendas & Packet Information\2009\03-30-09 Regular\Packet Information\7C - 033009 - CC Report - TTM Red Fox Lease.doc Page 1 of 3 lease other space on the water tower, or the City’s use and maintenance of the water tower. The Public Works Director has reviewed the proposal and does not see any issues. While this proposal would only connect TTM to T-Mobile, a request to provide service to the other cellular providers at this site could be made in the future subject to additional lease negotiations. Lease Provisions As part of the lease approved with T-Mobile in May 2008, the City Attorney prepared a standard lease that could be used as a template for negotiations with other cellular providers at the City’s water tower sites (Planning Case 08-007). Although the request from TTM is somewhat different than a typical cellular provider, it is similar enough to use the lease template. Except for modifications to the lease rate and length, the proposed lease with TTM is substantially similar to the T-Mobile lease approved in May 2008. The project description has been updated, and the sections pertaining to equipment on the water tower have been removed. The proposed lease rate was preliminarily negotiated to $2,700 per year ($225/month) with a three percent yearly increase. The initial term would expire on December 31, 2012, with options for up to six additional three year terms for a total potential lease length of 21 years and nine months. The lease would need to be initiated within three months of the approval date or when the equipment is being installed, whichever occurs first. In summary, the proposed lease also makes TTM responsible for the following: Any additional costs associated with maintenance to the water tower site due to the TTM equipment; Restoring any damage to the grass or road from their installation, equipment, and/or use; Ensuring that their equipment does not interfere with any of the existing users or City use (this is less of an issue than with cellular providers since TTM will not be using any wireless transmitting or receiving equipment); Submitting a $2,000 financial surety to the City for future removal of the equipment in case the equipment is abandoned by TTM; Reimbursing the City for personnel costs if the City is needed on-site during non- business hours; and, Providing proof of all necessary types of insurance as noted in the lease. City Staff and Attorney have reviewed the proposed lease with TTM and are in agreement on its terms (Attachment B). TTM is aware that all lease provisions are still subject to City Council review and approval. A representative for TTM will be at the City Council meeting to discuss the lease terms and answer any technical questions. If approved, TTM anticipates installing the equipment in approximately XX days. Lease Comparison The service provided by TTM is relatively new in this area and there are few comparable situations with other cities. As part of this process, staff contacted six other cities that have had \\Metro-inet.us\ardenhills\Admin\Council\Agendas & Packet Information\2009\03-30-09 Regular\Packet Information\7C - 033009 - CC Report - TTM Red Fox Lease.doc Page 2 of 3 similar experiences. Not all of the other cities we contacted had completed their lease negotiations, and the requests did vary since some included antennas and/or providing services to more than one cellular provider at the site. Starting lease rate proposals were in the $150 to $200 range, though including an antenna increased the range to $300 to $450 per month depending on the location, height of the antennas, and number of antennas. TTM initially proposed a rate of $150 per month. After reviewing the rates and requests in other cities, staff preliminarily negotiated a rate of $225/month ($2,700 per year) with TTM. Recommendation Staff recommends approval of the lease agreement between TTM Operating Corporation, Inc and the City of Arden Hills with a yearly lease rate of $2,700 with a yearly increase of 3% based on the terms in the Communications Site Lease Agreement in Planning Case 09-004. Options 1.Approve the proposal as submitted. 2.Approve the proposal with conditions. 3.Deny the application. 4.Table for additional information. Attachments A.Equipment Picture, Site Pictures, and Air Photo B.Proposed Lease Agreement and Exhibits \\Metro-inet.us\ardenhills\Admin\Council\Agendas & Packet Information\2009\03-30-09 Regular\Packet Information\7C - 033009 - CC Report - TTM Red Fox Lease.doc Page 3 of 3 A Attachment Equipment Picture, Site Picture, and Air Photo March 30, 2009, City Council Meeting ìÐÛÎÎÓÎÕùÛÉ×   ïÛÊÙÔ  ùÓÈÃùÍÇÎÙÓÐÏ××ÈÓÎÕ èÔ×Ê×ØÚÊÓÙÑÚÇÓÐØÓÎÕÓÉÈÔ××ÄÓÉÈÓÎÕèïÍÚÓÐ×ÉÈÊÇÙÈÇÊ×èÔ×ÙÛÚÓÎ×ÈÅÍÇÐØÚ× ÓÎÉÈÛÐÐ×ØÙÐÍÉ×ÈÍÈÔ×ÐÍÙÛÈÓÍÎÍÖÈÔ×ÈÓÊ×ÏÛÊÑÉÎ×ÄÈÈÍÈÔ×ÚÇÓÐØÓÎÕê×ØöÍÄ êÍÛØÓÉÓÎÈÔ×ÚÛÙÑÕÊÍÇÎØ ûÎ×ÄÛÏÌÐ×ÍÖÛèèïÚÍÄèÔ×Ï×ÈÛÐÉÈÊÇÙÈÇÊ×ÛÎØ×ËÇÓÌÏ×ÎÈÚ×ÔÓÎØÈÔ×èèï ÚÍÄÓÉîíèÌÛÊÈÍÖÈÔ×ÛÌÌÐÓÙÛÈÓÍÎÌÊÍÌÍÉÛÐíÎÐÃÈÔ×èèïÚÍÄÅÍÇÐØÚ× ÓÎÉÈÛÐÐ×ØÓÖÈÔÓÉÛÌÌÐÓÙÛÈÓÍÎÓÉÛÌÌÊÍÆ×Ø B Attachment Proposed Lease Agreement and Preliminary Exhibits March 30, 2009, City Council Meeting COMMUNICATIONS SITE LEASE AGREEMENT THIS COMMUNICATIONS SITE LEASE AGREEMENT ("Lease"), is dated ____day of __________, 2009 ("Date of Council Approval - Effective Date") and is entered into by and between the City of Arden Hills ("Landlord"), and TTM Operating Corporation, Inc., a Nevada corporation, with an address of 146 North Canal Street, Suite 210, Seattle, WA 98103 (“Lessee”). For good and valuable consideration, the parties agree as follows: Landlord Property. 1. Landlord is the owner of the following described property located in Arden Hills, Ramsey County, Minnesota: The North 240 feet of the East 150 feet of the Northwest One Quarter of the Southeast One Quarter, in Section 27, Township 30, Range 23, Ramsey County, Minnesota. Leased Premises 2.. Subject to the terms and conditions of this Lease, Landlord hereby leases to Lessee and Lessee leases from Landlord the following portions of Landlord Property: (a).Landlord hereby leases to Lessee sixteen (16) square feet of the Property as shown and described in Exhibit 1 dated ____________ annexed hereto to install the Communications Equipment (“Communications Equipment Site”). (b).A non-exclusive easement over those portions of the Landlord Property from the public right-of-way and from the nearest public utilities to the Communications Equipment on the Leased Premises as shown and described in Exhibit 2 dated ____________ annexed hereto (“Access Easement Area”). Installation of Communications Equipment. 3. Lessee shall be allowed to install the equipment on the Leased Premises as shown and described in Exhibit 3 dated ____________ annexed hereto (“Communications Equipment”), which approval shall not be unreasonably withheld, conditioned or delayed. Rent. 4. (a)Amount, Adjustments. As a condition for this Lease, Lessee shall pay Landlord an annual rent in the amount of twenty-seven hundred and no/100 dollars ($2,700) for the initial year, which shall automatically be increased each year on January 1 following the first anniversary of the Commencement Date, and annually thereafter, by three percent (3%) of the previous year's annualized rental. (b)Time of Payment, Taxes. For the first year, the rental shall be pro rated through December 31 and shall be paid to Landlord within thirty (30) days of the Commencement Date (as defined below). If the Lessee does not meet the requirements referenced in Subparagraph 5(a) below by June 30, 2009 and Lessee has diligently pursued such requirements, Landlord shall refund any rental payment made by the Lessee and this Lease shall terminate. In addition to the annual rental, Lessee agrees to timely pay any personal property tax, real property tax, or any other tax or fee which is directly attributable to the presence or installation of the Antenna Facilities. Governmental Approval Contingency 5.. (a)Lessee Application. Lessee's right to use the Leased Premises is expressly made contingent upon its obtaining all the certificates, permits, zoning and other approvals that may be required by any federal, state, or local authority. (b)Interference Study. Since no wireless transmitting and/or receiving equipment is being installed, an interference study shall not be required. (c)Non-approval. In the event that any application necessary under Subparagraph 5(a) above is finally rejected or any certificate, permit, license, or approval issued to Lessee is cancelled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority so that Lessee, in its sole discretion, will be unable to use the Leased Premises for its intended purposes, Lessee shall have the right to terminate this Lease and be reimbursed for the rental payment if made pursuant to Subparagraph 4(b) above. Notice of Lessee's exercise of its right to terminate shall be given to Landlord in writing by certified mail, return receipt requested, and shall be effective upon receipt of such notice by Landlord as evidenced by the return receipt. Except as required under Subparagraph 15(d) below, upon such termination, this Lease shall become null and void and the parties shall have no further obligations to each other. Term and Renewals. 6. The "Initial Term" of this Lease shall commence on the earlier of (i) the date Lessee commences installation of the Communications Equipment and its related utilities, or (ii) three (3) months after the Effective Date. The Initial Term shall expire on December 31 following the third anniversary of the Commencement Date of the Lease. Subject to the terms and conditions of this Lease, Lessee shall have the right to extend this Lease for six (6) additional three (3) year renewal periods ("Renewal Term") commencing on January 1 following the expiration date of the Initial Term and of any subsequent Renewal Term. This Lease shall be automatically renewed for each successive Renewal Term unless Lessee sends written notice of non-renewal to Landlord no later than ninety (90) days prior to the expiration of the Initial Term or any Renewal Term, such notice to be provided in accordance with Paragraph 23 of this Lease. Lessee's Use 7.. 2 (a)User Priority. Lessee agrees that the following priorities of use, in descending order, shall apply in the event of communication interference or other conflict while this Lease is in effect, and Lessee's use shall be subordinate accordingly: 1. Landlord’s pre-existing use of the Landlord Property as of the Effective Date; 2. Lessee and other government regulated entities whose antennae provide safety and rescue services. As to these parties, priorities shall be based on a first in time basis, i.e. parties coming to the Landlord Property first, have first in time protections from users of the Landlord Property at a later date, and parties coming to the Landlord Property last must not interfere with existing users of the Landlord Property. (b).Purposes. Lessee shall use the Leased Premises only for the purpose of installing, maintaining, repairing, removing and operating the Communications Equipment Site and uses incidental thereto but not including wireless transmitting and/or receiving antennas. Landlord may make additions, deletions, or modifications to its own facilities on the Leased Premises. Lessee shall comply with all applicable ordinances, statutes and regulations of local, state and federal government agencies. (c).Construction. Lessee may erect and operate its equipment in accordance with Exhibits 1, 2, and 3. Modifications to any equipment in the Leased Premises shall requirement Landlord consent. If Landlord consents, the parties may negotiate the amount of additional rental for the antennas. (d).Operation. Lessee shall have the right, at its sole cost and expense, to operate and maintain the Communication Equipment in the Leased Premises in accordance with good engineering practices, with all applicable FCC rules and regulations. Any damage done to the Leased Premises or other Landlord Property, including the Water Tower, during Lessee’s installation or caused by Lessee’s operations, shall be repaired at Lessee's expense within thirty (30) days after notification of damage. The Communications Equipment shall remain the exclusive property of the Lessee, unless otherwise provided in this Lease. (e).Maintenance, Improvement Expenses. All maintenance and improvements to the Leased Premises performed for Lessee's benefit shall be at the Lessee's expense and such improvements, including the Communications Equipment, shall be maintained in a good state of repair, and secured by Lessee. (f).Replacements and Upgrades. Before Lessee replaces or upgrades the Communications Equipment, Lessee shall submit to Landlord a detailed proposal and any other information reasonably requested by Landlord of such requested update or replacement, including but not limited to a technical study, carried out at Lessee's expense. Landlord may not unreasonably withhold approval. 1 (g).Drawings. Within sixty (60) days of Lessee’s completion of construction, Lessee shall provide Landlord with as-built drawings installed equipment in the Leased Premises. (h).No Interference. Lessee shall, at its own expense, maintain any equipment on or attached to the Leased Premises in a safe condition, in good repair and in a manner suitable to Landlord so as not to conflict with the use of the surrounding premises by Landlord. Lessee shall not unreasonably interfere with the operations of any prior Lessee using the Landlord Property and shall not interfere with the working use of the water storage facilities thereon by Landlord as of the Effective Date. (i).Access. Lessee, at all times during this Lease, shall have access to the Leased Premises in order to install, operate, and maintain its Communications Equipment Site. In the event it is necessary for Lessee to have City personnel on site at some time other than the normal working hours of Landlord, Landlord may charge Lessee for its employees’ wages that Landlord may incur in providing such access to Lessee, provided that such wages do not exceed fifty dollars ($50.00) per hour. (j).Payment of Utilities. Lessee shall separately meter charges for the consumption of electricity and other utilities associated with its use of the Leased Premises and shall promptly pay all costs associated therewith. Intentionally Omitted. 8. Additional Maintenance Expenses 9.. Lessee shall promptly pay to Landlord within thirty (30) days of written notice, all additional Landlord expenses incurred in repairing any damage to Landlord’s Property caused by Lessee's installation of its Communications Equipment. Notwithstanding anything in this Lease to the contrary, and subject to the rights contained herein, Lessee shall promptly repair any damage to the Landlord Property caused by Lessee’s installation, maintenance, repair, removal and operation of the Communications Equipment on the Leased Premises upon written notice from Landlord. Intentionally Omitted. 10. Additional Buildings. 11. Lessee acknowledges that Landlord may permit additional buildings and equipment to be constructed on the Landlord Property. Defense and Indemnification. 12. (a)General. Lessee agrees to defend, indemnify and hold harmless Landlord and its elected officials, officers, employees, agents, and representatives, from and against any and all claims, costs, losses, expenses, demands, actions, or causes 0 (b)Hazardous Materials. Without limiting the scope of Subparagraph 12(a) above, Lessee will be solely responsible for and will defend, indemnify, and hold Landlord, its agents, and employees harmless from and against any and all claims, costs, and liabilities, including attorney's fees and costs, to the extent caused by Lessee's use of Hazardous Materials. For purposes of this Lease, "Hazardous Materials" shall be interpreted broadly and specifically includes, without limitation, asbestos, fuel, batteries or any hazardous substance, waste, or materials as defined in any federal, state, or local environmental or safety law or regulations including, but not limited to, CERCLA. (c)Landlord’s Warranty. Landlord represents and warrants that it has no knowledge of any Hazardous Materials on the Landlord’s Property. Landlord agrees to defend, indemnify and hold harmless Lessee and its officers, employees, contractors, agents, and representatives, from and against any and all claims, costs, losses, expenses, demands, actions, or causes of action, including reasonable attorneys' fees and other costs and expenses of litigation, which may be asserted against or incurred by Lessee as a result of (i) Landlord’s breach of the warranty herein, and/or (ii) those damages or bodily injuries, including death, resulting from the existence, discovery or release of Hazardous Materials on the Landlord’s Property caused by Landlord, or third parties not related to Lessee, prior to and during the Initial Term and any Renewal Term of this Lease, except those, which arise from Lessee’s negligence or willful misconduct, all subject to the provisions of Minnesota Statutes Chapter 466. (d)Lessee's Warranty. Lessee represents and warrants that its use of the Leased Premises will not generate and Lessee will not store or dispose of on the Leased Premises, nor transport to or over the Leased Premises, any Hazardous Materials, in violation of the law, unless Lessee specifically informs Landlord thereof in writing twenty-four hours prior to such storage, disposal or transport, or otherwise as soon as Lessee becomes aware of the existence of Hazardous Materials on the Leased Premises. Notwithstanding the foregoing, it is agreed and understood that the Lessee may be permitted to use such Hazardous Materials that are commonly used in the type of facility contemplated herein, including without limitation, fuel-powered generators and batteries. The obligations of this Paragraph 12 shall survive the expiration or other termination of this Lease. Insurance. 13. / (a)Workers' Compensation. The Lessee must maintain Workers' Compensation insurance in compliance with all applicable statutes. The policy shall also provide Employer's Liability coverage with limits of not less than $500,000 Bodily Injury each accident, $500,000 Bodily injury by disease, policy limit, and $500,000 Bodily Injury by disease, each employee. (b)General Liability. The Lessee must maintain an occurrence form commercial general liability coverage. Such coverage shall include, but not be limited to, bodily injury, property damage -- broad form, and personal injury, for the hazards of Premises/Operation, broad form contractual, independent contractors, and products/completed operations. The Lessee must maintain aforementioned commercial general liability coverage with limits of liability not less than $1,000,000 each occurrence; $1,000,000 personal and advertising injury; $2,000,000 general aggregate, and $2,000,000 products and completed operations aggregate. These limits may be satisfied by the commercial general liability coverage or in combination with an umbrella or excess liability policy, provided coverage afforded by the umbrella or excess policy is no less than the underlying commercial general liability coverages. (c)Automobile Liability. The Lessee must carry Automobile Liability coverage. Coverage shall afford total liability limits for Bodily Injury Liability and Property Damage Liability in the amount of $1,000,000 per accident. The liability limits may be afforded under the Commercial Policy, or in combination with an Umbrella or Excess Liability Policy provided coverages afforded by the Umbrella Excess Policy are no less than the underlying Commercial Auto Liability coverage. Coverage shall be provided for Bodily Injury and Property Damage for the ownership, use, maintenance or operation of all owned, non-owned and hired automobiles. The Commercial Automobile Policy shall include at least statutory personal injury protection, uninsured motorists and underinsured motorist coverages. (d)Lessee Property Insurance. The Lessee must keep in force during the term and any renewals of the Lease a policy covering damages to its property at the Leased Premises. The amount of coverage shall be sufficient to replace the damaged property, loss of use and comply with any ordinance or law requirements. (e)Additional Insured - Certificate of Insurance. The Lessee shall provide, prior to tenancy, evidence of the required insurance in the form of a Certificate of Insurance issued by a company (rated A- or better) by Best Insurance Guide, . Damage or Destruction 14.. If the Communications Equipment is destroyed or damaged, without contributory fault of the Lessee or its agents, so as, in Lessee's judgment, to hinder its effective use of the Communication Equipment, Lessee may elect to terminate this Lease upon thirty (30) days' written notice to Landlord and shall remove all remaining equipment. In the event Lessee elects to terminate the Lease, Lessee shall be entitled to reimbursement of prepaid rent covering the period subsequent to the date of damage to or destruction of the Leased Premises. Lease Termination 15.. (a)Events of Termination. Except as otherwise provided herein, this Lease may be terminated upon sixty (60) days written notice to the other party as follows: (1)by either party upon a default of any covenant or term hereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of default to the other party (without, however, limiting any other rights of the parties pursuant to any other provisions hereof) unless such default may not reasonably be cured within a sixty (60) day period in which case, this Lease may not be terminated if the defaulting party commences action to cure the default within such sixty (60) day period and proceeds with due diligence to fully cure the default; (2)by Lessee for cause if it is unable to obtain or maintain any license, permit or other governmental approval necessary for the construction and/or operation of the Communications Equipment or Lessee's business; (3)by Landlord, after the expiration of the second Renewal Term, and upon one year’s prior written notice to Lessee if the City Council, after the expiration of all applicable appeal periods, votes to discontinue use of the Landlord Property; (4)by Landlord if Lessee fails to comply with applicable ordinances, or state or federal law, or any conditions attached to government approvals granted thereunder, after a hearing before the Landlord's Council. (b)Notice of Termination. The parties shall give Notice of Termination in writing by certified mail, return receipt requested. Such Notice shall be effective upon receipt as evidenced by the return receipt, or such later date as stated in the Notice. All rentals paid for the Lease prior to said termination date shall be - (c)Lessee's Liability for Early Termination. If Lessee terminates this Lease other than of right as provided in this Lease, Lessee shall pay to Landlord as liquidated damages for early termination, twenty-five percent (25%) of the annual rent for the year in which Lessee terminates, unless Lessee terminates during the last year of any Term under Paragraph 5 and Lessee has paid the annual rental for that year in which event, no further amounts shall be due Landlord. (d)Security/Site Restoration. Within twenty (20) days of the Effective Date of this Lease, Lessee shall deposit with Landlord the sum of two thousand and no/100 dollars ($2,000.00) (“Removal-Restoration Security Deposit”) to guarantee Lessee’s performance of the allegations described in this subsection (d). In the event that the Lease is terminated or not renewed, Lessee shall have sixty (60) days from the date of termination or expiration to remove the Communications Equipment Site from the Landlord Property; to restore the Leased Premises to its condition prior to Lessee’s use, reasonable wear and tear and casualty excepted; and to restore the surface of the Water Tower. If Lessee satisfies its removal and restoration obligations, the Removal-Restoration Security Deposit shall be refunded to Lessee, or, otherwise such security should be retained by Landlord and, after providing Lessee with thirty (30) days prior written notice, and Lessee’s failure to remove the facilities, the Communications Equipment Site shall be deemed abandoned and become the property of the Landlord and Lessee shall have no further rights thereto. Limitation of Liability. 16. Notwithstanding anything to the contrary herein, neither party shall be liable to the other for indirect, special, incidental or consequential damages, including, without limitation, loss of profits, income or business opportunities to the other. Intentionally Omitted. 17. Interference 18. (a)With Water Tower. Lessee shall not interfere with Landlord's existing use of the Water Tower or Property as of the Effective Date and agrees to cease all such actions which unreasonably and materially interfere with Landlord's use thereof no later than three (3) business days after receipt of written notice of the interference from Landlord, except intermittent operation for the purpose of testing, until the interference has been eliminated. In the event that Lessee's cessation of action is material to Lessee's use of the Leased Premises and such cessation frustrates Lessee's use of the Leased Premises, within Lessee's sole discretion, Lessee shall have the immediate right to terminate this Lease. , (b)With Pre-Existing Users. If Lessee's Communications Equipment causes impermissible interference with pre-existing Lessees with equipment installed prior to the Effective Date, Lessee shall take all measures necessary to correct and eliminate the interference. If the interference cannot be eliminated within 48 hours after receiving Landlord's written notice of the interference, Lessee shall immediately cease operating its Communications Equipment Site and shall not reactivate operation, except intermittent operation for the purpose of testing, until the interference has been eliminated. If the interference cannot be eliminated within sixty (60) days after delivering written notice to the other party, Landlord or Lessee may terminate this Lease immediately. (c)Interference - New Occupants. Landlord shall have the obligation to eliminate any interference with the operations of Lessee caused by such subsequent occupants. If such interference is not eliminated, Lessee shall have the right to terminate this Lease or seek injunctive relief against the interfering occupant, at Lessee's expense. Assignment 19.. Lessee may, upon written notice to Landlord, transfer (by assignment or sublease) its rights arising under this Lease to any corporation, partnership or other entity which (i) is controlled by, controlling or under common control with Lessee, (ii) shall merge or consolidate with or into Lessee, (iii) shall succeed to all or substantially all the assets, property and business of Lessee, or (iv) may be required in connection with any offering, merger, acquisition, recognized security exchange or financing. Upon such assignment, Lessee shall be relieved of all liabilities and obligations hereunder and Landlord shall look solely to the assignee for performance under this Lease and all obligations hereunder.Said assignment shall only be effective upon receipt by Landlord of written acknowledgement from assignee of their assumption of all liabilities and obligations hereunder.Under all other circumstances, such transfer shall require Landlord’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary herein, Landlord hereby consents to the assignment by Lessee of its rights under this Lease as collateral to any entity, which provides financing for the purchase of the equipment to be installed at the Leased Premises (“Secured Party”). Condemnation 20.. In the event the whole of the Leased Premises is taken by eminent domain, this Lease shall terminate as of the date title to the Leased Premises vests in the condemning authority. In event a portion of the Leased Premises is taken by eminent domain, either party shall have the right to terminate this Lease as of said date of title transfer, by giving thirty (30) days' written notice to the other party. In the event of any taking under the power of eminent domain, Lessee shall not be entitled to any portion of the reward paid for the taking and the Landlord shall receive full amount of such award. Lessee hereby expressly waives any right or claim to any portion thereof. Although all damages, whether awarded as compensation for diminution in value of the leasehold or to the fee of the Leased Premises, shall belong to Landlord, Lessee shall have the right to claim and recover from the condemning authority, but not from Landlord, such compensation as may be separately awarded or recoverable by Lessee on account of any + Intentionally Omitted. 21. Enforcement and Attorneys' Fees. 22. In the event that either party to this Lease shall bring a claim to enforce any rights hereunder, the prevailing party shall be entitled to recover costs and reasonable attorneys' fees incurred as a result of such claim. Notices. 23. All notices hereunder must be in writing and shall be deemed validly given if delivered personally or if sent by certified mail, return receipt requested, addressed as follows (or any other address that the party to be notified may have designated to the sender by like notice): If to Landlord, to: City Administrator City of Arden Hills 1245 West Highway 96 Arden Hills, MN 55112 If to Lessee, to: Telecom Transport Management, Inc 146 North Canal Street, Suite 210 Seattle, WA 98103 Attention: Lease Administration Authority. 24. Each of the individuals executing this Lease on behalf of the Lessee or the Landlord represents to the other party that such individual is authorized to do so by requisite action of the party to this Lease. Binding Effect 25.. This Lease shall run with the Leased Premises. This Lease shall extend to and bind the heirs, personal representatives, successors and assigns of the parties hereto. Complete Lease: Amendments. 26. This Lease constitutes the entire agreement and understanding of the parties and supersedes all offers, negotiations, and other agreements of any kind. There are no representations or understandings of any kind not set forth herein. Any modification of or amendment to this Lease must be in writing and executed by both parties. Governing Law 27.. This Lease shall be construed in accordance with the laws of the State of Minnesota. Limitation of Liability 28.. Nothing in the Lease shall be deemed a waiver of any limitation of liability or defenses under Minnesota Statutes Chapter 466 or any other provision of law. 34 Severability 29.. If any term of this Lease is found be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. Memorandum 30.. Upon request by either party, the parties agree to promptly execute and deliver a recordable Memorandum of this Lease in a form acceptable to both parties, which may be recorded by the party requesting the Memorandum of Lease. Waiver of Landlord’s Lien 31.. Landlord hereby waives any and all lien rights it may have, statutory or otherwise, concerning the Communications Equipment Site or any portion thereof, which shall be deemed personalproperty for the purposes of this Lease, whether or not the same is deemed real or personal property under applicable laws, and Landlord gives Lessee and Secured Parties the right to remove all or any portion of the same from time to time, whether before or after a default under this Lease, in Lessee’s and/or Secured Parties’ sole discretion and without Landlord’s consent. This Section 31 shall be subject to the provisions of subsection 15(d) of this Lease. 33 IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their respective seals the day and year first above written. LANDLORD: CITY OF ARDEN HILLS By: _______________________________ Stanley D. Harpstead Its: Mayor By: _______________________________ Ronald J. Moorse Its: City Administrator STATE OF MINNESOTA ) )SS COUNTY OF ___________ ) The foregoing instrument was acknowledged before me this ________ day of _________________________, 2009, by Stanley D. Harpstead and Ronald J Moorse, respectively the Mayor and City Administrator of the City Arden Hills and executed the Agreement by authority of the City Council. _______________________________________ Notary Public 32 LESSEE: TTM Operating Corporation, Inc a Nevada Corporation By: ______________________________ Its: ______________________________ STATE OF MINNESOTA ) )SS COUNTY OF ___________ ) The foregoing instrument was acknowledged before me this ________ day of _________________________, 2009, by _____________ of TTM Operating Corporation, Inc a Nevada Corporation, on behalf of the company. _______________________________________ Notary Public \\Ahdocs1\ah\AHdata\Planning\Planning Cases\2009\09-004 TTM\031709 - Proposed TTM Lease (City prepared).doc 31