HomeMy WebLinkAbout04-30-07 Item 7B, Water Tower Lease Agreement
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~HILLS
Request for Council Action
Prepared By: James Lehnhoff
Dept.: c:o~m,LJnity Dev. _ n~~El.t. ... ... " "------
Council Mtg. Date: __un_ ..n. ..."...." -""4-30~07--
Final Action Needed By:
Agenda Item"
7.8
Budgeted Amount:___
Actual Amount:
Funding Source: ..........."....________ ___........... . "-------..--.-..-........ .._
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jConsider a Motion to Approve/Deny the Second Amendment to the Water Tower Lease Agreement Dated May 1, 2007, from Black Dati
iWireless on behalf of Cingular Wireless PCS. '
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fSfack DofWireless'iias-norpro~rded.Sta-itwith any'-reason to suppo-rt approval of the second-contract amendment.
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: X i Memo/Letter: April 30, 2007, Memo to the City Council
i Resolution No.:
iOrdinance No.:
'Engineering Recommendation:
!Attorney Recommendation:
I X I Other:
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7B-2: First Amendment to the Water Tower Lease Agreement - March 26, 2002
78-3: Proposed Second Amendment to the Water Tower Lease Agreement - May 1, 2007
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Non.:
None.
~
~HILLS
MEMORANDUM
DATE:
April 30, 2007
Agenda Item 7.B
TO: Mayor and City Council
FROM: James Lehnhoff, City Planner I/'
SUBJECT: Cingular Wireless Antenna Contract - Second Amendment
Request
Consider a Motion to Approve/Deny the Second Amendment to the Water Tower Lease
Agreement Dated May I, 2007, from Black Dot Wireless on behalf of Cingular Wireless PCS.
DiscussionlBackl!round
In late 2006, Black Dot Wireless, on behalf of Cingular Wireless, contacted the City and
indicated that they would be submitting a proposal to modifY the contract for their cellular
antennas that are attached to the City's water tower at 4251 Fernwood Avenue. In late March
2007, Black Dot Wireless submitted a proposed second amendment to the cellular antenna
contract. The second amendment would change the rent, the method of rent increases,
termination provisions, and, potentially, antenna expansion procedures. As will be noted below,
the current contract does not expire until April 2014; however, Black Dot could withdraw from
the contract as early as April 2009.
Staff has asked Black Dot Wireless to submit reasons for the proposed changes to include with
this memorandum; however, they have stated that they prefer to discuss the proposed changes
and the reasons for the proposed changes at a City Council meeting. Mr. Stephen Merill, a
representative from Black Dot Wireless, will be at the April 30, 2007, City Council meeting via
telephone.
The remainder of this memorandum summarizes the original contract, the first amendment to the
contract, and the proposed second amendment.
Original Contract
On April 18, 1989, the City entered into agreement with Minnesota Cellular Telephone
Company, which permitted them to attach cellular phone antennas to the City's water tower and
place electronic equipment at the base of the City's water tower at 4251 Fernwood Avenue. The
initial lease was for five years, and the lease was set to automatically renew for up to four
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additional five year terms unless the City or Minnesota Cellular withdrew from the contract at
least 30 days before the beginning of a new five year term. There are five other provisions on
page six of the original contract that would allow the City or tenant to withdraw from the
contract. Unless prematurely terminated, this contract was set to continue to April 18, 2014.
In the original contract, the monthly rent was set at $600 plus $25 for each additional microwave
antenna with a maximum of two additional microwave antennas for a potential total monthly rent
of $650. According to the contract, the monthly rent would increase at the beginning of each
new five year interval (year 6, 11, 16, and 21). The rate of increase was tied to the consumer
price index (CPI) with the general idea being that the monthly rent would be adjusted every five
years to compensate for inflation over the previous five year period. For example, the rent would
increase in year six depending on the change in the consumer price index (essentially the
inflation rate) from years one through five.
First Contract Amendment
On April 26, 2002, the City approved the first amendment to the original contract. At some point
between 1989 and 2002, the company's name changed to AT&T Wireless Services; however, the
name change does not affect the status ofthe contract.
The primary reason for the first contract amendment was to permit AT&T Wireless to install up
to three additional cellular antennas on the water tower. With each new antenna, the rent would
increase by $135.00.
The first contract amendment also included a new provision that permitted the City to charge
AT&T Wireless for any increased costs in maintenance for the water tower that could be
attributed to the cellular equipment on the water tower.
The method for increasing the rental rate, the provisions for termination, and the contract
expiration date did not change with the first amendment.
Proposed Second Contract Amendment
The proposed second amendment includes four primary modifications related to:
. Extending the contract,
. Changing the termination provisions,
. Changing the base rent and rate of increase,
. Future expansions and equipment upgrades.
The cellular antennas are now operated by Cingular Wireless, and Black Dot Wireless is acting
on their behalf.
First, the second amendment would extend the contract to May I, 2037, with the first five year
term start on May I, 2007 (Black Dot has now indicated the new contract starting date may need
to be pushed back). The lease would automatically renew for up to five additional five year
terms unless the City opted out of the contract prior to the start of a new five year term.
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A new provision in the second amendment would allow the tenant to opt out of the lease with
thirty days notice to the City at any time after the end of the first five year term of the contract,
which would be after April 30, 2011. If the tenant opts out of the lease after that date, the tenant
would be required to pay the City twelve months ofrent. If the City exercises any of its options
to terminate the lease within the first five year term, the tenant would
not be required to pay the twelve months of rent penalty. The
remaining termination provisions in part eight of the original contract
would still apply.
Chart 1 :
Proposed Rent
Year Monthlv Rent
2007 $1,012.66
2012 $1,093.67
2017 $1,181.17
2022 $1,275.66
2027 $1,377.71
2032 $1,487.93
2037 $1,606.96
Not prepared bv Black Dot
The third primary change is the method used to calculate the rate of rent
increase over the life ofthe contract. Starting May 1,2007, the monthly
rent would be reduced to $1,012.66 from the current $1,355.79. Instead
of tying the rental increase rate to the CPI, the rent would increase by
eight percent at the end of each five year term (Chart I).
For comparison, if rental rate increases were still tied to the consumer price index, the potential
monthly rents by increase year depending on the inflation rate are shown in Chart 2. According
to the Bureau of Labor Statistics, the increase in retail prices in the Twin Cities was 1.6 percent
in 2006, 2.8 percent in 2005, and 2.8 percent in 2004 (http://www.bls.gov/cpiD.
Chart 2: Potential Monthly Rental Rate By Potential Inflation Rate bv Year
Inflation Year
Rate per
Year 2007 2012 2017 2022 2027 2032 2037
1% $1,012.66 $1,064.32 $1,118.61 $1.175.67 $1,235.64 $1,298.67 $1,364.91
2% $1,012.66 $1,118.06 $1,234.43 $1,362.91 $1,504.76 $1,661.38 $1,834.29
3% $1,012.66 $1,173.95 $1,360.93 $1,577.69 $1,828.98 $2,120.29 $2,457.99
4% $1,012.66 $1,232.06 $1,498.98 $1,823.74 $2,218.86 $2,699.59 $3,284.46
The 2007 rental rate would continue through 2011, the 2012 rate would continue to 2016, and so on.
This chart was not prepared bv Black Dot.
Depending on the change in the CPI through 2037, the rent mayor may not be keeping up with
inflation at each five year increase. Since the monthly rent would not change each year, the rent
is probably not keeping up with inflation in the years without a rental increase (2008-2011, 2013-
2016, etc).
Finally, Schedule 1 of the Second Amendment incorporates the following additional language
into the lease:
L Expansion of Permitted Use. Landlord hereby agrees, at the direction of the Tenant, to allow
the Tenant to modity, supplement, replace, upgrade, expand, or refurbish the equipment related to
the Antenna Facilities, increase the number of antennas thereon or relocate the Antenna Facilities
within the Leased Premises at any time during the term of this Lease, and Landlord shall
cooperate with Tenant in all respects in connection with the foregoing. If Landlord does not
comply with the terms of this section, Tenant may terminate this Lease and shall have no further
liability to the Landlord.
Staffs concern with the above language is that the reference to expansion and an increase in the
number of antennas. A replacement project in 1994 and an expansion in 2002 required a
Conditional Use Permit (referred to as a Special Use Permit at the time). It appears that Black
Dot is requesting a waiver of the Conditional Use Permit requirement in Schedule 1. While Staff
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does not have an issue with Cingular Wireless upgrading, replacing, or refurbishing equipment,
Staff would not recommend waiving the Conditional Use Permit requirements for expansions.
Recommendation
At this time, Black Dot Wireless has not provided Staff with any reason to fully support approval
of the second contract amendment. However, if the amendment is not approved, Cingular
Wireless could withdraw from the contract in April 2009, which is the end of the fourth five year
term. At this time, Staff is not aware of interest from any other wireless company that may want
to rent the vacated space should Cingular Wireless withdraw from the contract; however, that has
not been fully explored. For comparison, a spreadsheet of cellular antenna lease rates from
surrounding communities is attached for your reference.
Attachments
7B-I Water Tower Lease Agreement- April 18, 1989
7B-2 First Amendment to the Water Tower Lease Agreement - March 26, 2002
7B-3 Proposed Second Amendment to the Water Tower Lease Agreement- May I, 2007
7B-4 Cellular Antenna Rates for other Nearby Cities - December 12, 2006
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Attachment 7B-l
Water Tower Lease Agreement
April 18, 1989
April 30, 2007, City Council Meeting
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CITY OF ARDEN HILLS
MINNESOTA CELLUI.AR TRLli:l'HONE COMPANY
WATER TOWER LE.!!.SE ACREEMENT
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This Wilfli. Tower Laess ~greement ("this Lease") is entered
into tb.is day,of 1ft'T7 L , 1989, by and between the CITY_
OF ARDEN HILLS, Mihneso a, a Mi.nnesota municipal corporation
("Landlord") and ,MINNESO,TA CELLULAR TELEPHONE COMPANY, a
_Minnesota corporation (d/b/a Cellulax One) ("Tenant").
In consideration of the mutual undertakings, her,ein
expressed, the par~ies agree as fOllows:
1. Definitibna. _As used herein; the following terms shall
mean:
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a.
Antenna Facilities.
property, including
antenna as desoribed
pe+sonal
receiv:l.ng
Means all equipment,
radio transmitting and
on Exhibit "A" attached.
b.
Approved Site Plan. Means plan approved by the Arden
Hills City Council On the 13th day of March, 1989
i~lUS1:rating Tenant's proposed use of the Property and
~e required improvemente attached as Exhibit "B"_
c.
COlDlnencement Date. Means the date On which the
Landlord receives written notice from Tenant confirming
that Tenant has received all required gOV9rnmental',
approva~s, or, the date on which Tenant Or its agents
commence construction of ~e Antenna Facilities on the
Water Tower and/or the Tenant's equipment bui.~ding On a
Property, whichever event occurs first.
d.
Equipment; Build:i.ng, Means a twe~ve (12) foot by
twenty-eight (2B) foot by eleven (11) foot high
prefabricated conorete equipment shelter with a washed
rock finish as illustrated on the Approved Site Plan_
e.
Property. Means the west 190 feet of ~e north 150
feet of the south 2162 feet of the East One-haLf of
~e Southeast One-quarter of Seotion 22, Township 30,
Range 23, Ramsey County, Minnesota, subject to a public
roed_
f.
Water Tower. Means the el<isting City. of Arden Hills
Water Tower located On the Property as il~ustrated on
the Approved Site P1an and as further illustrated on
Exhibit 'e" attached.
2. Leased Premises. SUbject to the terms and conditions of
this Lease, Landlord :Leeses to Tenant and Tenant leases from
:LandlO1:'d -those port_ions of the Property and the Water Tower on
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the Property as illustrated on the Approved Site Plan and/or the
Water Tower plan illustrated on Exhibit "C" attached.
3. Terut. The term of this Lease shall be :five (5) years,
starting Orlthe CoI1lmenceinent Date and terminating at midnight on
the fifth annual anniversary of the Commencement_ Date. Except as
hereinafter-provided, Tenant shall have the right to-extend-thLs-
-Lease for four (4) additional five (5) year terms.subject to-all
of the tern'1s and conditions of this' Lease-. This Lease shall
automatically be renewed for each successive renewal term unless
Tenant notifies Landlord of Tenant's intention not to renew the
LeaSe at- l.east thirty (30) days prior to the expiration of_ the
ini i:ial term or any renewal term; or, unles's, . dll!ring the third
renewal term or any succeSSive renewal ~8~ thereafter; Landlord
notifies Tenant, .a~ least thirty (30') days -prior to the end of
such term, of L<lncUord's intent to terminate this Lease at the
end of such term.
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. 4. Ren"t.
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a.
Upon the Commencement Date, Tenant shall pay Landlord
as base rent the stun of S60'0'.O'O' per month. Tenant
shall also pay as addi'l::ional rent the sum of $25.0'0' per
month for each microwave antenna that tenant may, in
the future, install on the Water TGWer up to a maximum
of two (2) nd=owave antenna. Both the base rent and
the additional rent shall hereinafter be referred to as
"Rent". If the Commenoement Date oocurs at a time
o.ther than on the first day of the month, Kent shall be
pro rated as of the Commencement Date through the end
of the month in which the Commenoement Date occurs. In
all other cases, Rent shall. be payable on ~he first day
of each month in advance to the Ci.ty of Arden Hills at
1450' West Highway 96, Arden Hins, Minnesota.
b.
On eaoh annual anniversary of the Commencement Date of
the term of this Lease, the rent payable by Tenant
shall he increased baaed upon the ino~ea5e in the cost
of liVing index (CPr) du-r-ing the p-r-evious year; but, in
no event, shall the annual adjustments required hereby
be greater - than an amount egual to four pe-r-cent (4%) of
the previous years' rent. The 61Ilount of the adjustment
shall. be determined by using the U.S-. Department of
T..abor, Bureau of Labor Statistios, .Consumer Price
Index, MinneapOliS-St. Paul, for all urban consumers.
(elP-U) The cost of living adjustment provided ror
herein shall be compounded for the _ f-iv.e (5) year
period. Rental adjustmeI:lts in accordance with t:his
paragraph <1 shall take place at the cOmrllencement of
every five (5) year renewal term.
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c_ :tf this Lease is tetJiiHr1iiiiii lit a time other than On the
J.ast day of a month, Rent shall be prorated ae of -the
date of termination and, in the event of terlllination
for any reason other than nonpayment of Rent, all
prepaid Rents shall be refunded to T-enant. As
ad~tional Rent, Tenant shall pay Landlord any taxes or
other charges imposed on the Landlord or the Property
as a result of Tenant'-s uSe or the Leas.:.d Premise-so
'Addi:t:ional rental charges shall be paid to Landlord
within 15 days of Landlord's written request.
d. Tenant shaH provide to Landlord, within thirty (SO)
days Or the' Commencement Date, t,hree (.3) Uniden CP2000
tr,ansportable -c..llular- telephones with .:me -exi:ra
bai:tery 'each Or_ equ1.va1ent ,un:i;ts' at Tenant' s_
discretion. Sa~d phones shaJ.l become the property of
Landlord, inoluding a11 manufactu~er's warranties that
apply.' Landlord agrees to execute one year minimum
subsoriber agreements with Cellu~ar On~ for eaoh phone.
Landlord shall be charged for use Of-said phones at the
cu=ently ava1.lable Government rate or succ.;.eding rate
struoture that may supersede said Government rate
during the term of this Lease Or said subscriber
agreements.
5. Use. Tenant may use the Leased Premises for the
installati~ operation, and mai.ntenanoe of faci~:ities for the
transmission and reception Or radio commun1.o~t:ion signals i.n such
frequencies as may be assigned to Tenani: by the Federal
'Communications Co1l1lllission (the "FCC') and - :for the storage' of
related equipment in accordance with the terme Or this Lease.
Tenant sha;U use the Leased Premises in compLiance with all
Federal, State, and looal laws and regulations. Landlord agrees
to reasonably cooperate with Tenant in obtainuig, at Tenant's
expense, any Federal licenses and permits required for Tenant"s
use of the Leased Premises.
6. Installation of Equipment and Leasehold :r;"provements:
Acoess; U1:1111:1e8.
a.
Tenant shall have the right at :i. ts sole cost end
expense to install, Operate, and maintain on the water
Tower portion of the Leased Preinises, Antenna
Facili ties. Tenant' s instalJ.at-ion of Antenna
~ac1.11.ties and any subseguent moving of thOSe
facilities shall be done according to plans approved by
Landlord, which approval shall no'!: be Unreasonably
withhe1d. The Antenna Facilii:ies shaJ.l remain the
eXClusive property of Tenant, subjec'!: to the provisions
Of Paragraph 8 of this Lease.
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T.mant may update- 'or :rEtPiace i;he Antenna FaciH.ties
from time to time with the prior written approval. Of
Landlord. provided that the replacement faci1.1ties are
not greater in number then the existing. faoilities and
.that their location on the leased portions of the rower
is satisfactory to the Landlord. Tenan:!; shall submit
to Landlord a detaiJ.-ed proposal- for. any such
replaoemant facilitie~. and any supplemental materials
as may be reasonably requested,. for Landlord's
evaluation and approval, whioh approVal --'shall not be
unreasonably withheld. An:lr additions. - al'l:erat.i.ons. or..
deletions of Antenna Faoi1H:ies shall not alter the
tenns and conditions of this Lease.
o. Tenant shall have the _right, at its sole cost and
expense, to install, operate, and maintain on the
Leased Premises'in the area illustrated-on the Approved
8i te Plan, an Equipment BuiJ.di.ng. . The-Equipment
Building shall be oonstructed in aceord!ince w:!.th the
ApprOVed Si.te Plan. .The Equipn\.ent S...il.ding and a:n
equipment stored or operated thereinsh~ll remain the
eXClusive property of Tenant, subj9Ct to the proviSions
of' Paragraph 8 of this Lease. No eqUipment shall be
stored on the Property outside of the Equipment
Building.
d.
Tenan-l:, at all times dux-ing this Lease, shall have
vehicle i.ngreS6 'and egress ovex- the Property and aocess
-1:0 the Equipmelit Building and the Water Tower by means
of the existing and proposed access road desoribed on
Exhibit "D" attached hereto.
e.
Tenant, at all times during 'l:his Lease-. shal.l. have
aoces,. to the Leased premises in order '1:0 install,
operate, and maintain its Antenna Facili.ties and
Equipment Building. Tenant shall have access _ to the
water Tower portion of the Leased Preniises only -with
the approval of the Landlord. TenSrl-t shall provide
Landlord w:ith reasonable notioe of its request for
access to the lilatar Tower portion of the Leased
Premises; provided that, in the event of an- emergency,
reasonable notice shall be constrl,led to_ mean con'l:act,
. by ..tel_ephone or otherwise, 'wd.th the Ramsey County
Sheriff's Department and the Arden Hills Public Wprks
Supervisor. Tenant shall provide Landlord with a list
of Tenant's authorized perSonnel.
Tenant shall separately meter charges for the
Consumption of electricity and other utiJ.i ties
associated >lith its use or the Leased Premises and
Shall pay all costa associated therewith.
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Tanant shall provide Landlord with drawings of the
An-l:enna Facili-l:ias and Bquipment BUilding, wMcb. show
the aotual location "f all equipmant and improvements.
Said drawings shall be aocompanied by a complete and
deta:ned inv'i'ntory of all equipment, PersOnal property,
and Antenna Facilities actually placed on the water
Tower.
h. Tenant shall have Sole responsibil:i.:ty for the
maintenance, repair, and security of its equipment,
personal property, Antenna Faoilities., and leasehold
improvements, and shall keep the same ;in good repair_
and condition during the Lease term.
7. Interference.
a.
Tenant-'s installation, opera-l::l,on, and maintenance of
its Antenna :Faciliti.ea and l!qui.pmen-l: Building shall
not damage 0>:' interfere in any way wi -l:h ~ Landlord's
Wa-l:er TOwer operati.ons or related repair and
msdntenance activities. Landlord, at all ti.mes du~ing
this Lease, reserves the right to takG> any 'aoti.on it
deems necessary, in its SOle discretion,- to repair,
maintain, a~ter, or improve the Leased PremiSes and tp
temporarily .interfere with Tenant' S -l:ransmission
operation" or remove any of Tenant I s personal properi:y.
equipment, Or Antenna Facilities as may be necessary in
order to carry out any such aO-l:ivit!.es. Landlord
agrees to give reasonable advanoe notioe OI any such
activi-l:ies to Tanant and to reasonably COOperate with
Tenant to carry out such aotiviti;>s in a manner that:
minimizes, to the extent reasonably Possible, such
temporary inte~ference_ .
b.
Tenant acknOWledges the presenoe of an antenna on the
Water Tower_currently owned and operated by the Control
Data Corporation and agrees that snch antenna may
oontinue to ocoupy a po~ti.on of the Wa-l:ar Tower. In
the event -l:hat any other party requests permissi.on to
install or place any type of additional. antenna or
. t>:>anslldss:/.on facili-!:y on the Property, _ the Landlord
Shall. sublldt the propoeal to Tenant for review_ Tenant:
..shall have thirty (30) days following receipt. of such_
propOSal to make any objecti.ons thereto, end failure to
make any objection W1.thin said tMrty (30) day periOd
Shall be deemed consent by Tenant, -l:o the installati.on
ot antenna or transmission facilities pursuant to said
proposal. If Tenant objects within the required time
limit. Landlord shall not allow a third par-!:y user to
install an antenna or transmiSSion facility unless the
third party user oan do so without interfering with
Tenant's use of the Property.
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c.
In the event Tenant' s transm~ssilon Operati.ons
interfere wi.th any type of e~eetron:lc recept:l.on or
transmi.ssi.on of other parties in the surroun~ng area,
Tenant ag:cees to remedy such i.nte:rference in accordance
with app1.icable regu~ations and standards of the FCC.
Tenant warrants that it .6ha~1 inaJ.ntain all of :its
Antenna Facili1:J.es i.n full Compliance w:l.th all
applicable regulations of the FCC.
- 8. Termination.
a. Except as otherwi.se provided herein, thi.s Lease may be
termi.nated by one party upon s:ixty . ( 60 ) days written
-notice to the other party .as follows:;
i.. By e:l:l:he:c party upon a default of any oovenant Or
term hereof by the other party,. which default is
not cured wi thin si.xty ( 60 ) days. of receJ.pt of
wri:l:ten notice of dei's':'l. t to tne other party
(W:i.thout, however, 1.imiting any other ri.yhts of
the parties pursuant to any Qther prov:l.s:l.ons
hersof); _
ii. . By Tenant if it is unable to - obtain Or mainta:in
any l:lcense, permit, or other government..-l
approval necessary for the construction and/or
operation of the Antenna Fac:ilit~es or the Leased
Premj,sss becol1les unacceptabie under the -Tenant t a
design or engineeri.ng specifications for its
Antenna Facilities Or the communication systems 1:0
which -the Antenna Facilities belong;
By LandlOrd if the Arden Ri.1Is City Council
decides, in its sole di.scret.ion and for any
reason, to redevel.op the P;r6pert.y and/or
d:i.acontinue use of Or remove the-Water Tower;
ill.
iv.
By Landlord if it determines, i.n i"hs so~e
discretion and for any reason, that the Water
Tower is_struoturally_unsound fOr use as a Water
Towe:c, i.ncluding but not l:i.mi.ted to conside:cations
of age of the structure, -damage or _ destruction of
all Or part of the Water Tower Or the Property
from any source~ or factors relating to condition
of the Property; or,
v.
Immediately by the Landlord, upon receipt of a
notice that Tenant"s insurance coverage,,!.- as
raquired by paragraph S of thi.. Lease, have been
oanoe11ed.
6
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b.
Upon terudnation of this Lease :Eor any reason. Tenanl:
shall remove its equipment, personal property, Antenna
FaciH_ties, - and leasehOld :improvements from the Water
Tower and Property within s:i.xty ( 60) . days after the
dete of term:i.nation. and shall restore the Water Tower
and the Property to the oondition .it was :in on the
Commencement Date of the term of this Leas.., a11. at
Tenant's sole cost and expense. Any suoh property
which is - not removed by the end of saUl si.o<t:y (60) day
periQd shall become the property of Land1.ord. Tenant's
ObUgat1ons to pay Rent shall cont.inue during such
sixty (60) day periOd.
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9. Insurance.
e. Tenant shall provide Comprehensive General L.iability
InSUrance coverage, inOlud.ing prenIises!operations
OOverage, independent contractor's liability, completed
operations coverage, and contraci:u.a1 l.iability
coverage, in a combined sin9le l1mi-t of -not 1ess than
One Mi.11ion l)01lars ($1,000,000) p~r occurrence,
subject to One M:Lllion Dollars ($1,000,000) aggregate.
Tenant may satisfy thi.s requirement by underlying
insurance plus an umbrella 1iabil.ity policy.
b.
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Neii:hOlr party shal1. be liable to the other (or to the
other's successors or assi.gns) fo>: -atly loss or damage
caused by fire Or any of the risks enumarated in' a
standard "All Risk" :insurance policy, and, in the even1;
of Such insured loss, nei:ther party's i:nsurance company
shall have a subrogated claim aga.inat the other.
c. Tenant shall provide to Landlord, pr.ior to the
Commencement Date of the Lease term, evidence of the
requ.ired insurance .in the fo:rm of a certificate of
insurance iSsued by an insuranee company licensed to do
business in the state Of Minnesota, which .includes all
coverages required in Paragraph 9(a) above and contains
evidence of the waiver Of subrogation contained in
Paragraph 9(b) above. Said Cert:tfica-te shall also
prOVide that the coverage sha],1' not be cancel-led,
nonrenewed, Or materially changed wi1:bbut thirty (30)
.days pri,or written notioe to Landlord. - -
10. nama",.. or Destruction. If the Property or the water
Tower are destroyed or -damaged so as, :in Tenant'-s _ judgment to
hinder its effective use of the Antenna Facilities, Tenant may
el.ect to terminate this Lease upon thirty (30) days written
notice to Landlord.
/-----
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11. Condemnat.ion. In .the event the whOle of the. Property
is taken_ by eminent domain, the Lease Shail. tOlrmina-\;e as of the
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datei::l:l::1e to -the Property vests in .the condellllting authority.- In
the event a portion of the Property is taken by eminent domain,
either party sha~l have the right to terminate this Lease as of
the date of title transfer, by giving tltirty (30) dayS w.rii:i:en
notice to the other party.. In the event of any taking under the
power of eminent domain, Tenant shall not bl;i-, entitled to any
port;ion of the awerd - psi" for the talting and Landlord shall,
receive the full a1Ul;lunt of such awax-d, Tenant hereby expreSSly
wa;i.ving any r:lght or Claim to any portion thereof. A1,. though all
damages, whether awarded as compensation for diminution ~n value
of the leasehold or to the fee of the Property, shall belops_ to
Landlord, . Tenant Shall. have the right to c+a:lm and :J:'ecover f=m
- t4e oondemning author:!. ty, but not from Landlord; ,such
compensation as may be separately ",warded or recoverabl.e by
Tenant on a9count of any and aLl damage to _ Tenant's _ business- by
re'ason of the taking- and for or on account of any cost or lOa.!! to
which Tenant mig_ht be put in removing its e;qui-pment, personal.
property, Antenna Fa01lities, and l.ea~ehol.d improvements.
1.2. Xndemn.if:lca1:ion. Tenant agrees to ind'elnn:l:fy. defend,
and hOld harmlSaa Landlord arid f.ts eleeted O:f:fib~.al.s, officers,
employees, agents, and representatives, from and aga1rist any and
all claims, costs, l.osses, expenses, demands, act~onS'. or-oauses
of aotion, inCl.uding reasonable attorneys' fees 'l!I'\d pther costs
and expenses of 1:itigation, which may be assertea. against or
incurred by the Landl.ord or for which the Landlord ~ay be hel.d
l.iable, which arise from the negligence, willful miscondUC1:, or
other fault of Tenant or i1:s employees, or-suboorltraotors in the
performance of tltia Lease or from the instal.lat:i.on, operation,
use, maintenanoe, repair, removal, Or preBen1!'a of Tenant's
transmission facilities on the Property and the ~at~r Tower, and
specifical.ly incl.ud~ng the represen1:ations and,' 'tl'a,rranties of
paragraph 1-4(b) of this Lease. .
13. No1;ices. Al.l. notices, r~quests, demands, and o'l:her
communications hereunder shal.l be ~n ~i1:ing and shall. be deemed
given ~f personally del~vered or mailed, oert~fied mail, return
receipt requested, to the fol.lowing addresses:
If to Landlord, to: City of Arden: Hills
1450 W. Highway 96
Arden Hills, MN 55112 ,
ATTENTION: City Adminis-trator
If 1:0 Tenant, to: Minnesota_ Cell.ular Telephone Company
(d/b/a Cel.lular One)
7900 Xerxes Avenue South, #1300
Bloomington, MN 55431
ATTENTION: Direotor of Engineering
With a copy to: McCaw Cellular Communications
5808 Lake Washington Blvd. N.S.
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ATTENTION: Legal Department
14. Preo;Jen'tations and W=-.-ant:les.
B. Landlord represents that:
i. It has fu11 right, power, and authOrity 1:0 execute
this Lease; and
ii. Xt has good and unencumbered title of the Property
free and Clear of any 1iens. or mortgag_es.
Landlord warrants that Tanant shall have the quiet
enjoyment of the Property during the tenu of this
Lease in accordance with its-terms.
b. Tenant represents and warrants that its' equipment,
personal property, and Antenna FaCilities, and any or
their component parts or byproducts, do not constitute
hazardous wastes or substances under State or Federal
laws. Tenant furt:her represents and warrants that, in
the event af breakage, leakage, in~ineratian, or other
calamity, neither its equipment, personal property,'_or
Antenna Facilities, nor- any' o~ 'tMir' cOmponent parts
or byproducts, would constitute sueh hazar_dous wastes
or substances.
i/""'.._ 15. ASlliqmnent. Tenant may not assj,gn this Lease without
\..,..- Lendl.ord's prior -written COnsent, which consent shall not be
unreasonably withheld, but may, without such consent, and so long
as Tenant shall remain liable for- the performance -of Tenant's
obligations hereunder, assign this Lease in whole or in part; (i)
as security for Tenant's perfonuance of obligations incurred in
order to make imprOVelllents to the Leased Premises, or (it) to any
entity contrOlling, controlled by or under common contrOl with
Tenant. Any transfer of this Lease from Tenant by me>:,ger,
COnSOlidation, or liqUidstion, shall not be deemed an aSSignment
for purposes hereof. Landlord's consent to any assignment shall
not be deemed to be a- cons=t to any subsequent as';':l.grnnen-l:. Any
assignmenl: other than in accordance with this seot:lon shall be
voidable by Landlord _sixty (60) days after Landlord acquires
knowledge of such as"1:ignment, during which period, Landlord shall
have -the-option to terminate this,Lease.
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16. MiscelJ.aneous.
a. Each party agr"',",s to furnish to the other, within ten
(10) days after request, such _ truthful. estoppel
information as the other may reasonably request.
b. This Lease constitutes the entire agreement and
understanding of the parties, and supercedes all
9
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offers, negotiation~, and other agreements 01: any kind.
There are no representations or \lnderstandings oE any
kind not set forth herein. Any modifice:l:ion of or
aGendment to tnis Lease must be in writing and executed
by bo-!:h parties.
c.
This Lease shall be oonstrued in accordance with. the
laws Of the State of Minnesota.
d. If any term of this Leasa is found to be void or
invalid, suoh inva1idity shall not affect the remain.ing
terms of this Lease, which shall continue in full force
and effect.
e. Tenant agrees -1:0 pay Landlord all reasonable expenses
incurred by Landlord in rev.:lewing_ this Lease,
amendments to the Lease proposed by the Tenant, or in
reviewing any other matters which require Landlord's
review, consent, or approval pursuant to the t;erms Of
this Lease. The expenses referred to herein shall
include engineermg, legal, and other admin:lstrative
eXpenses, but Shall noi: exceed $1,000.00 in connection
with the City's initial review or S200.00 in connection
, wi i:h any subsequent review.
f.
:t.andlorC\ shall not 'unreasonAbly withhold or delay any
approvals and consents reserved to it under this Lease.
Landlord hereby waives any and all lie~ 'rights it may
have, statutory or Otherwise, concerning the Ant;enna
Facil:l:t.1ee Or any portion thereOf, whioh shall be
deemed personal property for the purposes of this
Lease, regardless of whether or not same is deemed real
or personal property under app1icable laws, and
Landlord give", Tenant the right to remove all or any
pOrtion of same from time to t:ime at Tenant_'s sole
discretion without Landlord's consent provided thai: all
rental payment Obligai:ions of the Tenant are current at
the time of such removaJ..
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17. Contingency. This_ Agreement shall be contj,ngent upon
Landlord's obtaining the access easement described on Bxhibi t
"D" "ai:tached, which permits' the Tenant: to access _the Leased
Premises from -!:he B",is'l:ing pub~ic road over property owned by the
ContrOl Da:l:a Corpo:cation. If t:h1.g contingency is not satisfil'd
within thirty (30) days of the date hereof, t:his Agreement: shaJ.I
be null and void.
10
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Thi.s Lease waS executed as of the date firs_t -set above.
LANDLORD:
::~ =l: H4t-
Thomas R. Sather
It:s Mayor
By; ~ ~ ~
Gary R. erger
Its City-Administrator_
TENANT: _
MINNESOTA CELLULAR TELEPHONE COMPANY
By: 0-%2;~
...-uav:id Tlialer
Its General Manager
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EXHIBIT "An
.llntenna FACILITIES
Up to six DBSS3F antennas or equivalent aM:ennas spac""d
approximately equa11y -around the oir\lUJllference of the TOwer. All
cable"" hangers, oonnectors, and other such hardware as may be
required - -to attach all antennas to Tenant I S Equipment Build:l.ng.
Up to two miorowave dishes at a maximum of 120 inches in
diameter.
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Attachment 7 B-2
First Amendment to the
Water Tower Lease Agreement
March 26, 2002
April 30, 2007, City Council Meeting
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FIRST AMENDMENT TO THE WATER TOWER LEASE AGREEMENT
THIS FIRST AMENDMENT TO THE..\IIIATER TOWER LEASE AGREEMENT
("Amendment") is entered into on this ';uJi1. day of ~ 2002, by and
between The City of Arden Hills, a Minnesota municipal corporation ("Landlord") and AT&T
Wireless Services of Minnesota, Inc., d/b/a AT&T Wireless, a Nevada corporation, having an
office at 2515 24th Avenue South, Minneapolis, Minnesota 55406, as successor-in-interest to
Minnesota Cellular Telephone Company (d/b/a Cellular One) ("Tenant").
WHEREAS, Landlord and Tenant entered into a Water Tower Lease Agreement
("Lease") dated April 18, 1989, which is incorporated herein and made a part hereof by
reference, in regard to property located at 4251 Femwood Avenue, Arden Hills, Minnesota, and
relating to the installation and operation of Tenant's wireless communications equipment; and
WHEREAS, Landlord and Tenant desire to amend the Lease to: (1) allow for the
installation of additional antennas and related coaxial cable; and (2) modify the rent in
conjunction with the additional antennas; and
WHEREAS, Landlord and Tenant hereby express their mutual desire and intent to
amend the Lease.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
set forth, and other good and valuable consideration, receipt of which is acknowledged, Landlord
and Tenant agree as follows:
1. The leased portions ofthe Property and Water Tower, as defined in Section 20fthe
Lease, shall be expanded to include an additional three (3) antennas, including
related equipment and cabling, as more specifically described on the attached
Exhibit "A".
2. The monthly rent as stipulated in Section 4(a) of the Lease is hereby amended.
Commencing on the date that Tenant begins installation of the additional antennas,
the monthly rent will be increased by One Hundred-thirty-five dollars ($135.00) per
each additional antenna, per month, for a total increase of Four-hundred five Dollars
($405.00) per month.
3. All capitalized terms not herein defined shall have the same definitions as in the
Lease.
4. In the event of any inconsistencies between the Lease and this Amendment, the
terms of this Amendment shall take precedence.
5. Except as expressly set forth in this Amendment, the Lease otherwise is unmodified,
remains in full effect, and is incorporated and restated herein as if fully set forth at
length. Each reference in the Lease to itself shall be deemed also to refer to this
Amendment.
6.
If, in spite of Tenants efforts to adequately cover, protect or remove its equipment or
facilities; Landlord incurs any increased costs in the maintenance of its water tower
which are attributable to the presence of Tenant's equipment or facilities on or near
such tower, Tenant shall reimburse Landlord for the reasonable increased costs
incurred by Landlord due to the presence of such equipment or facilities. An
example of such an increased cost would include, without limitation, increased cost
of rigging or scaffolding due to the presence of Tenant's equipment or facilities at
the site. Landlord shall submit a written invoice to Tenant delineating any such
increased costs incurred. Tenant shall remit the invoiced amount to Landlord within
thirty days of the date of the invoice.
[Signatures appear on following page.)
MI-101A1Arden Hills
. '
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IN WITNESS WHEREOF, said parties have caused this First Amendment to the Water
Tower Lease Agreement to be executed as of the date first above written.
LANDLORD:
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Date:
TENANT: AT&T Wireless Services of Minnesota, Inc., dIbIa AT&T Wireless,
::....~,.Vl
MiC~rdOCk
Its: System Dev~loP!TIent Manager
Date: q /.;ltjt:>Z
I
STATEOF~~An-/L- )
h7 )ss
COUNTY OF 'J"</Vh1/7/it )
On this K day of YTzMeh , 2002 before me personally appeared
~ ~ ,and acknowledged under oath that he/she is the
7J~; 2A' of the City of Arden Hills, the Landlord named in the attached
instrument, and as such was authorized to execute this instrument on behalf of the Landlord.
WITNESS my hand and t lcial seal affixed the day and year first above written.
CYNTHIA L YOUNG
NOTARYPIBIl-"'IESOI'A
lite .. EIpRI.....31.2l105
cz..,
otary Pu~li~ in and tor ~ ate of ~::/.d.~
y Commission Expires: 01/h:Jdff :5'
STATE OF COLORADO )
.'-..... . . ) ss
COUNTY OF .D\!^;'v\iUL )
On this ~ day of ~Ot:\f' 1v , 2002 before me personally appeared
Michael Murdock, and acknowledged under oath that he is the System Development Manager
of AT&T Wireless Services of Minnesota, Inc., the Tenant named in the attached instrument,
and as such was authorized to execute this instrument on behalf of the Tenant.
WITNESS my hand and the official seal affixed the day and year first above written.
,
o
Notary Public in and for \Kle State of '\
My Commission Expires. COMMISSIO EXPIRES:
1\lcu ~h lS, 24,,;)
MI-101A/Arden Hills
Attachment 7B-3
Proposed Second Amendment to the
Water Tower Lease Agreement
May 1, 2007
April 30, 2007, City Council Meeting
Cell Site No: Arden Hills 25491
Site Address: 4251 Fernwood Street, Arden Hills, MN 55112
SECOND AMENDMENT TO WATER TOWER LEASE AGREEMENT
THIS SECOND AMENDMENT TO WATER TOWER LEASE AGREEMENT ("Second
Amendment") dated as of the date below is by and between City of Arden Hills, Minnesota, a Minnesota
municipal corporation, having a mailing address at 1245 West Highway 96 Arden Hills, MN 55112-5794
(hereinafter referred to as "Landlord") and New Cingular Wireless PCS, LLC, a Delaware limited liability
company, successor in interest to AT&T Wireless Services of Minnesota, Inc., d/b/a AT&T Wireless, a Nevada
corporation having a mailing address at 6100 Atlantic Boulevard, Norcross, GA 30071 (hereinafter referred to
as HT enant").
WHEREAS, Landlord and Tenant entered into a Water Tower Lease Agreement, dated April 18, 1989,
as amended by a First Amendment to the Water Tower Lease Agreement, dated March 26, 2002, whereby
Landlord leased to Tenant certain Leased Premises, therein described, that are a portion of the Property located
at 4251 Femwood Street, Arden Hills Ramsey MN 55112 ("Lease"); and
WHEREAS, Landlord and Tenant desire to extend the term of the Lease; and
and
WHEREAS, Landlord and Tenant desire to modify, as set forlh herein, the rent payable under the Lease;
WHEREAS, Landlord and Tenant desire to modify, as set forth herein, the Tenant's obligations to pay
rent to Landlord for a Rent Guarantee Period; and
WHEREAS, Landlord and Tenant, in their mutual interest, further wish to amend the Lease as set forth
below.
NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
1. Term. The Term of the Lease shall be amended to provide that the Lease has a new initial term
of 60 months ("New Initial Term"), commencing on May 1, 2007. The Term will be automatically renewed for
up to 5 additional 60 month terms (each an "Extension Term") without further action by Tenant.
2. Termination. In addition to any rights that may exist in the Lease, after the Rent Guarantee
Period, as defined below, Tenant may terminate the Lease at any time with 30 days prior written notice to
Landlord; provided, that Tenant pays to Landlord an amount equal to 12 months of the then current rent.
3. Modification of Rent. Commencing on May I, 2007, the rent payable under the Lease shall be
$1,012.66 per month, and shall continue during the Term, subject to adjustment as provided below.
Landlord Initial:
Tenant Initial:
4. Modification of Tenant's Obligation to Pay - Rent Guarantee. Notwithstanding Tenant's
obligations to pay rent set forth under the Lease, for a 48 month period commencing May I, 2007 and ending
April 30, 2011("Rent Guarantee Period"), Tenant hereby agrees that Tenant's obligation to pay rent is
guaranteed and such obligation will not be subject to offset or cancellation by Tenant. Notwithstanding the
foregoing, if Landlord exercises any of Landlord's rights to terminate the Lease, if any, Tenant will be released
from any and all of its obligations to pay rent during the Rent Guarantee Period as of the effective date of the
tennination.
5. Future Rent Increases. The Agreement is amended to provide that commencing on May I,
2012, rent shall be increased by 8.00% and every fifth year by 8.00% of the then current rent.
6. Acknowledgement. Landlord acknowledges that: I) this Second Amendment is entered into of
the Landlord's free will and volition; 2) Landlord has read and understands this Second Amendment and the
underlying Lease and, prior to execution of the Second Amendment, was free to consult with counsel of its
choosing regarding Landlord's decision to enter into this Second Amendment and to have counsel review the
tenns and conditions of the Second Amendment; 3) Landlord has been advised and is informed that should
Landlord not enter into this Second Amendment, the underlying Lease between Landlord and Tenant, including
any termination or non-renewal provision therein, would remain in full force and effect.
7. Notices. Section 13 of the Lease is hereby deleted in its entirety and replaced with the following:
NOTICES. All notices, requests, demands and communications hereunder will be given by first class certified
or registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to
be effective when properly sent and received, refused or returned undelivered. Notices will be addressed to the
parties as follows. As to Tenant, New Cingular Wireless PCS, LLC c/o Network Real Estate Administration,
Cell Site # N118333, Cell Site Name: Arden Hills, 6100 Atlantic Boulevard, Norcross, GA 30071; with a copy
to Attn.: Legal Department, New Cingular Wireless PCS, LLC, Re: Cell Site # N118333, Cell Site Name:
Arden Hills, 5 Wood Hollow Drive, Parsippany, NJ 07054; and as to Landlord, City of Arden Hills, 1245 West
Highway 96, Arden Hills, MN 55112. Either party hereto may change the place for the giving of notice to it by
thirty (30) days prior written notice to the other as provided herein.
8. Other Terms and Conditions Remain. The Lease is amended to incorporate all the provisions
set forth on Schedule I attached hereto. In the event of any inconsistencies between the Lease and this Second
Amendment and the provisions set forth on Schedule I, the terms of this Second Amendment and Schedule I
shall controL Except as expressly set forth in this Second Amendment, the Lease otherwise is unmodified and
remains in full force and effect. Each reference in the Lease to itself shall be deemed also to refer to this Second
Amendment.
9. Capitalized Terms. All capitalized terms used but not defined herein shall have the same
meanings as defined in the Lease.
[NO MORE TEXT ON THIS PAGE - SIGNATURES TO FOLLOW ON NEXT PAGE]
landlord Initial:
Tenant Initial:
IN WITNESS WHEREOF, the parties have caused their properly authorized representatives to execute
and seal this Second Amendment on the date and year below.
LANDLORD:
City of Arden Hills, Minnesota, a Minnesota
municipal corporation
TENANT:
New Cingular Wireless PCS, LLC, a Delaware
limited liability company
By:
By:
Name:
Name:
Title:
Title:
Tax Id
Date
WITNESSED BY:
By:
By:
Name:
Name:
Title:
Title:
SCHEDULE I
TO
SECOND AMENDMENT TO WATER TOWER LEASE AGREEMENT
Additional Agreement Terms and Conditions
The Lease is amended to include the following terms and conditions:
L Expansion of Permitted Use: Landlord hereby agrees, at the direction of Tenant, to allow the Tenant to
modify, supplement, replace, upgrade, expand or refurbish the equipment related to the Antenna Facilities,
increase the number of antennas thereon or relocate the Antenna Facilities within the Leased Premises at any
time during the term ofthis Lease, and Landlord shall cooperate with Tenant in all respects in connection with
the foregoing. If Landlord does not comply with the terms of this section, Tenant may terminate this Lease and
shall have no further liability to Landlord.
Landlord Initial:
Tenant Initial:
LANDLORD ACKNOWLEDGEMENT
CORPORATE ACKNOWLEDGEMENT
STATE OF
)
)
COUNTY OF )
I CERTIFY that on _, 200_,
representative] personally came before me and acknowledged under oath that he or she:
(a) is the [title] of
the corporation named in the attached instrument,
(b) was authorized to execute this instrument on behalf of the corporation and
(c) executed the instrument as the act of the corporation.
[name of
[name of corporation],
Notary Public:
My Commission Expires:
TENANTACKNO~EDGEMENT
)
) SS.
)
STATE OF
COUNTY OF
I certifY that I know or have satisfactory evidence that is the person
who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as the of New Cimmlar
Wireless PCS. LLC. to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED:
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of
My appointment expires:
Attachment 7B-4
Cellular Antenna Rates for other
Nearby Cities
December 12,2006
April 30, 2007, City Council Meeting
The cellular antenna lease rates for the cities of Mounds View, New Brighton, Roseville, and
Shoreview were collected in December 2006 to compare to the Arden Hills cellular antenna lease
rates:
Citv
Arden Mounds New
Company Hills Roseville View Brighton Shoreview
Cinoular $12,060 $22,000 $8,200 Shoreview
Sorint/Nextel 1 $11,892 $27,371 $15,656 $15,100 leases six
Sorint/Nextel 2 $18,221 $15,600 spaces on
Sprint/Nextel 3 $9,516 $16,300 their water
tower at a
Sprint/Nextel 4 $24,396 rate of
T-Mobile 1 $13,800 $14,233 $16,656 $16,400 $20,000
T-Mobile 2 $9,900 per
Verizon 1 $33,502 $15,791 $22,600 antenna
Verizon 2 $18,221 $18,818 $15,000 per year
Verizon 3 $23,334 $20,000
Average Yearly
Income per
Antenna $12,584 $21,199 $16,730 $15,456 $20,000
Average Monthly
Income per
Antenna $1,049 $1,767 $1,394 $1,288 $1,667
The cellular tower lease rates are based on actual or projected revenue for 2006. The lease rates
are affected by the height and location of the tower as well as the need from the cellular provider
and the number of people a particular tower can serve. Shoreview and New Brighton indicated
that other wireless companies were attempting to negotiate lower lease rates.