HomeMy WebLinkAboutItem 7B, T-Mobile Cell Antennas
Request for Council Action
.
Prepared By: James Lehnhoff, City Planner
Meagan Beekman, Planner I
Council Meeting Date: May 27, 2008
Conditional Use Permit for T -Mobile to Install Cellular Antennas and Related
Ground Equipment at the City Water Tower
Budgeted Amount:
$0.00
Actual Amount:
$0.00
Funding Source:
Recommendation:
1. Approve Planning Case 08-007 for a Conditional Use Permit for T-mobile Cellular
Antennas on the City Water Tower with at 4251 Fernwood Street Based on the Findings
of Fact and the Submitted Plans as Amended by the Ten Conditions in the May 27,
2008, Memo to the City Council.
2. Authorize Staff to Negotiate the Lease Agreement between
Communications and the City of Arden Hills with a Yearly Lease Rate of $
Yearly Increase of _%.
T-Mobile
with a
Supporting Documents:
1. May 27,2008, Memo to the City Council Regarding the T-Mobiie Conditional Use Permit
Request
2. Planning Commission Minutes from March 5, 2008
3. Conditional Use Permit
4. Lease Agreement
5. Planning Case Report 08-007
~
~HILLS
MEMORANDUM
DATE: May 27, 2008
TO: Mayor & City Council
FROM: Meagan Beekman, Planner I
James Lehnhoff, City Planner
SUBJECT: Planning Case #: 08-007
Conditional Use Permit
T-Mobile (paul Harrington)
4251 Fernwood Street
Request
1. Approve Planning Case 08-007 for a Conditional Use Permit for T-mobile Cellular Antennas
on the City Water Tower with at 4251 Femwood Street Based on the Findings of Fact and the
Submitted Plans as Amended by the Ten Conditions in the May 27, 2008, Memo to the City
Council.
2. Authorize Staff to Negotiate the Lease Agreement between T-Mobile Communications and
the City of Arden Hills with a Yearly Lease Rate of $ with a Yearly Increase of _%.
Backl!round
The applicants have requested a conditional use permit (CUP) to install nine panel antennas on to
the stem ofthe City water tower located at 425 I Femwood Street (north water tower). Three of
the antennas will be at a height of73 feet and six will be at a height of 83 feet.
Immediately to the east of the tower is an existing equipment building that houses the ground
equipment for the antennas that are currently located on the water tower. The existing ground
structure is at capacity; however, the water tower itself is capable of accommodating additional
antennas and there is sufficient land to accommodate additional ground equipment. T-Mobile is
proposing to construct a new, 360 square foot equipment building to house the ground equipment
for the proposed antennas. This building would be located to the north of the tower, across the
access road to the site.
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Ground Structure
The Zoning Code currently states that the City wiII construct a ground structure to house the
equipment for all future applicants and that applicants wiIllease this space from the City
(Section 1325.09 Subd 6.2.B.2.b). However, this means that the City is responsible for
maintenance and other long-term costs for the building. In order to be in compliance with this
zoning regulation, T-Mobile did initiaIly propose to construct the building and give it to the City
upon completion. In return, T-Mobile would request a credit for the cost of the construction
against their lease rate.
Requiring the City to own and maintain the ground equipment structure is an uncommon zoning
requirement. Upon review ofthis requirement, the Public Works Director, City Attorney, and
City Planner determined that it is not in the best interest of the City to own and maintain this
structure due to potential liability and cost. While the likely purpose of the requirement is to
consolidate ground equipment, this goal can be achieved through different means. Therefore,
Staff is recommending that the Zoning Code be amended to eliminate the requirement for City
ownership and that T-Mobile maintain ownership of the structure.
Staff is preparing a Zoning Code amendment for the June Planning Commission meeting that
would address the issues (location, design, etc) related to placing additional ground equipment
on City property but aIlow ownership and maintenance to remain with the user. T-Mobile is
aware and supportive of the potential Zoning Code change. The CUP and lease can be approved
contingent upon approval ofthe forthcoming Zoning Code amendment.
The applicant has submitted a letter addressing the zoning code requirements, a site plan,
landscaping plan, and elevations of the site with the proposed changes (Attachment D).
Lease Al!reement
The City is currently leasing space on the two water towers to four ceIlular providers, and each
of the leases contains different terms and requirements. In order to provide more consistency
and standard requirements for future requests, the City Attorney prepared a standard lease. The
standard lease is intended to be used as a template for future requests and likely lead to a faster
review process.
City Staff and the City Attorney have been reviewing the standard lease with T -Mobile, and the
City Attorney is supportive of the current draft (Attachment C). In summary, the lease makes T-
Mobile responsible for the foIlowing:
. Any additional costs associated with maintenance to the water tower due to the ceIlular
equipment;
. Restoring any damage to the grass or road from their equipment and use;
. Completing an interference study prior to the issuance of building permits to ensure
compatibility with existing equipment;
. Submitting a $5,000 financial surety to the City for future removal of the equipment in
case the equipment is abandoned by T -Mobile.
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Although the T -Mobile legal department has not finalized the latest draft, additional significant
changes to the lease are not expected. However, the yearly lease rate and yearly rate of increase
have not been determined. T-Mobile is proposing a lease rate of$1,500 per month ($18,000 per
year) with a yearly increase of three percent. The first term of the lease is for five years, and T-
Mobile can extend the lease for three additional five year terms subject to the provisions in the
lease. Such lease extensions are common in the other leases in Arden HiIls and in other cities.
A representative for T -Mobile will be at the City Council meeting to discuss the proposed rate,
yearly increase, and terms. If a rental rate and yearly increase can be finalized at the meeting,
the Council Can authorize Staff to complete the lease language review and execute the contract
based upon the negotiated rental rates and increases. If there are any significant changes to the
draft lease after the Council review, those changes would be brought back to the City Council for
approval prior to executing the lease. Alternatively, the Council Can require the fuIllease to
come back to the Council prior to execution.
The conditional use permit is contingent upon approval of the lease, and the lease is contingent
upon the zoning code amendment that will be presented to the Planning Commission in June.
Lease Comparison
For comparison, the existing ceIlular antenna leases on the City water towers are as foIlows:
2008 Arden Hills Cell Lease Information for City Water Towers
Company 2008 Rate Increase Contract Location
Monthly Yearly Rate Frequency Approved Expires
Snrint $1,150.00 $13,800.00 15% Everv 5 years 2000 2025 South
Nextel $991.00 $11,892.00 15% Everv 5 years 1995 2020 South
AT&T $1,355.79 $16,269.48 CPI Everv 5 years 1989 2014 North
T-Mobile 1 $1,150.00 $13,800.00 15% Every 5 years 2000 2025 South
The proposed three percent yearly increase from T -Mobile results in a higher rental rate than a
15 percent increase every five years. For example, by year six of the lease, the $18,000 base rent
would have increased to $20,866.93 with a three percent yearly increase or to $20,700 with a 15
percent increase every five years. Although there is not a standard yearly increase in the
adjacent communities, COmmon increases range from 3-5 percent per year or a 15 percent
increase every five years.
Although height, location, roadways, number of antennas, and population density Can impact
rental rates, the foIlowing rates and heights were reported by adjacent communities in 2007:
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2007 Rate Comparisons
Citv Company Height Rate
Roseville T-Mobile 150 $ 14,233
Roseville Sprint 150 $ 27,231
Roseville Sprint 150 $ 18,221
Roseville Nextel 150 $ 9,516
Roseville T-Mobile 150 $ 18,221
Roseville Sprint 150 $ 24,396
Roseville Verizon 150 $ 23,334
Roseville Cingular 150 $ 22,000
Moundsview Sprint 150 $ 15,656
Moundsview T-Mobile 150 $ 15,656
Shoreview Sprint 140 $ 19,236
New Briqhton Verizon 165 $ 23,300
New Briohton Nextel 165 $ 15,500
New Brighton Sprint 165 $ 16,800
Mean $ 18,807
Median $ 18,221
The City of New Brighton recently reviewed a request from T -Mobile to construct an 80 foot
tower with antenna in Hidden Oaks Park. In April, City of New Brighton staff had indicated that
the lease rate was likely to be in the "$20,000 range." A request has been placed to New
Brighton to find out the final lease rate; however, the information was not available in time for
inclusion in this memo. Staff will forward the information to the Council as soon as it is
received.
Findine.s of Fact
The Planning Commission offers the following twenty findings of fact for review:
General Findings:
1. The proposed antennas would not exceed the height ofthe tallest existing antenna.
2. CeIl anteunas are a permitted accessory use on City water towers.
3. The proposed antennas are compatible with the character ofthe nature ofthe industrial
area and will not adversely impact the surrounding properties
4. The antennas will be painted to match the color of the water tower
5. The equipment building will be screened with several existing trees and two additional
spruce trees to be planted by the applicant
6. The equipment building will be constructed by the applicant and dedicated to the City
7. The water tower stem on which the antennas will be mounted is structurally capable of
handling the additional load.
8. The proposed plan is not anticipated to have any impact on the risks of contamination to
the City's water supply
9. The water tower has sufficient room to house the proposed equipment
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10. The proposed equipment building will provide sufficient room from the necessary ground
equipment to accommodate the antennas
I 1. The proposed plan is not anticipated to increase the water tower or reservoir maintenance
costs to the City
12. The proposed plan will not be harmful to the health of workers maintaining the water
tower or reservoir.
13. Cell antennas are a conditionally accessory use in the I-Flex District
On the Conditional Use Permit Evaluation Criteria:
14. The proposed plan would not have any impact on traffic or parking conditions
15. The proposed plan will not produce any permanent noise, glare, odors, vibration, smoke,
dust, air pollution, heat, liquid or solid waste, and other nuisance characteristics
16. The proposed plan will not impact drainage
17. The proposed plan will not impact population density
18. The proposed plan is not expected to have a significant impact on visual and land use
compatibility with uses and structures on surrounding land or adjoining land values
19. Park dedications are not applicable
20. The proposed plan does not conflict with the general purpose and intent of the zoning
code or the Comprehensive Development Plan for the City.
Recommendation
The Planning Commission reviewed Planning Case 08-007 and unanimously recommends
approval (6-0) ofthe Conditional Use Permit based on the findings offact and the submitted
plans as amended by the following ten conditions:
1. The project shall be completed in accordance with the plans submitted as amended by
the conditions of approval. Any significant changes to these plans, as determined by
the City Planner, shall require review and approval by the Planning Commission and
City Council.
2. The antennas and all mounts shall be painted to match the color ofthe water tower.
3. Upon removal of any equipment the applicant shall repair all holes, scratches, rust, or
damage to the tower caused by the supports from these antennas and the tower shall
be repainted with primer and matching paint to ensure that the metal is protected.
4. All cables associated with this project shall be properly secured and will not impede
the use of the access tube to the water tower.
5. A building permit shall be obtained for all proposed antennas prior to installation.
6. A building permit shall be obtained for all proposed structures prior to installation.
7. The equipment building shall be constructed and owned by T-Mobile.
8. Antennas shall not be installed and building permits shaII not be issued until a lease
agreement is approved by the City Council.
9. Any termination of the lease agreement will lead to a termination of the Conditional
Use Permit.
10. A Conditional Use Permit drafted by the City Attorney shall be signed by the
applicant prior to the issuance of any building permits.
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Options
1. Approve the proposal as submitted.
2. Approve the proposal with conditions.
3. Deny the application with reasons for denial. If the City denies the petitioners request, "...it
must state in writing the reasons for the denial at the time it denies the request."
4. Table for additional information.
Deadline for Al!:encv Actions
The City of Arden Hills received the completed application for this request on February 5, 2008.
Pursuant to Minnesota State Statue, the City provided the applicant with written reasons for an
additional 60 day review period. The review deadline has been extended to June 4, 2008.
lfthe lease is not finalized at the May 27,2008, meeting, Staffrecommends approving the CUP
so that the City meets the statutory deadline. Approving the CUP does not authorize T -Mobile to
begin work because the CUP is contingent upon the lease.
Attachments
A: Planning Commission Minutes from March 5, 2008
B: Conditional Use Permit
C: Draft Lease Agreement
D: Planning Case Report 08-007 to the Planning Commission.
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Attachment A
May 27,2008, City Council Meeting
Planning Commission
Meeting Minutes
From March 5, 2008
Ms. Beekman reported that the applicant submitted a Conditional Use Permit to
instaII nine panel antennas on the stem of the City water tower located at 4251
Femwood Street at a maximum height of 83 feet. In order to accommodate the
ground equipment for the new antennas, T-mobile is proposing to construct a 360
square foot building adjacent to the water tower that would be given to the City
upon completion. She then provided backgronnd information and said Staff
recommends approval subject to the following ten conditions.
March 5, 2008, Planning Commission Meeting
DRAFT Meeting Minutes
PLANNING CASE # 08-007 - CONDITIONAL USE PERMIT; T-MOBILE
COMMUNICATIONS; 4251 FERNWOOD STREET- PUBLIC HEARING
1. The project shall be completed in accordance with the plans submitted as
amended by the conditions of approval. Any significant changes to these
plans, as determined by the City Planner, shall require review and approval by
the Planning Commission and City Council.
2. The antennas and all mounts shall be painted to match the color of the water
tower.
3. Upon removal of any equipment the applicant shall repair all holes, scratches,
rust, or damage to the tower caused by the supports from these antennas and
the tower shall be repainted the primer and matching paint to ensure that the
metal is protected.
4. All cables associated with this project shaII be properly secured and will not
impede the use of the access tube to the water tower.
5. A building permit shaII be obtained for all proposed antennas pnor to
installation.
6. A building permit shall be obtained for all proposed structures pnor to
installation.
7. The equipment building shall be constructed by T-Mobile and given to the
City upon completion.
8. Antennas shall not be instaIIed and building permits shall not be issued until a
lease agreement is approved by the City Council.
9. Any termination of the lease agreement will lead to a termination of the
Conditional Use Permit.
10. A Conditional Use Permit drafted by the City Attorney shall be signed by the
applicant prior to the issuance of any building permits.
Chair Larson opened the floor to Commission questions.
Commissioner Modesette inquired ifthe City owns the other structure that serves
antennas. Mr. Lehnhoff stated that they do not.
Commissioner Stodola inquired if the other structure would be tom down. Mr.
Lehnhoff stated that it would not be tom down and it is owned by a different
provider.
Commissioner Holewa inquired about the number of cell phone carriers that are
operating on the tower. Mr. Lehnhoff stated that currently there are two carriers.
Ms. Beekman stated that the current building is housing the ground equipment for
the two carriers. She stated they have access to the tower for necessary
maintenance.
Commissioner Holewa clarified that the current structure wiII stay and an
additional structure wiII be built. Ms. Beekman stated that is correct.
Commissioner Holewa inquired about how power would be run to the new
building. Ms. Beekman stated she thinks they wiII run power from the existing
utilities on the site.
Mr. Lehnhoff stated that the City would not pay for it. Mr. Lehnhoff stated that
he previously misspoke. He stated that this tower has one carrier on it and the
other tower has two carriers.
Commissioner Holewa stated that there is a need to paint the tower periodically
and inquired if the equipment would impede the painting. Ms. Beekman stated
that the lease agreement would address the on-going maintenance. She stated the
antennas would be painted to match the water tower.
Mr. Lehnhoff stated there is a requirement for the applicant to pay for any
additional cost above and beyond the maintenance the City would do otherwise.
Commissioner Holewa inquired ifthere is a potential for other cell carriers to
have access to the new building. Ms. Beekman stated that there would be.
Commissioner Stodola inquired ifthere has been any thought for other uses of the
building other than for ceIl antennas equipment. Ms. Beekman stated that there
has not.
Chair Larson opened the public hearing at 7:20 p.m.
Chair Larson invited anyone for or against the application to come forward and
make comment.
Chair Larson closed the public hearing at 7:21 p.m.
Commissioner Stodola stated she thinks it wilI have minimal impact on the
neighborhood.
Commissioner Stodola moved, seconded by Commissioner Sand, to recommend
approval of Planning Case 08-007 for a Conditional Use Permit at 4251 Femwood
Street based on the findings of fact and the submitted plans, subject to the ten
conditions as listed in staffs March 5, 2008 report.
The motion carried unanimously (6-0).
This Planning Case will be reviewed at the Monday, March 31, 2008, City
Council meeting.
Attachment B
Conditional Use Permit
May 27, 2008, City Council Meeting
STATE OF MINNESOTA
COUNTY OF RAMSEY
CITY OF ARDEN HILLS
CONDITIONAL USE PERMIT
T-MOBILE CENTRAL LLC
CASE NO. 08-007
1.0 Recitals.
A. The City of Arden Hills, a Minnesota Municipal Corporation represents
that it is the record fee owner of the following described property
situated in Ramsey County, Minnesota, to wit (the "Property"):
Parcell: W 190 ft. of N 150 ft of S 162 ft of E l/2 of SE l/4 (subj. to Rd.) in
Section 22, Township 30, Range 23, Ramsey County, Minnesota.
Property Tax Parcel Number: 223023410001
B. On the 8th day of February, 2008, Carlson & Harrington, an agent for T-
Mobile Central LLC ("Permittee"), a Delaware limited liability company,
submitted a completed application for review of a conditional use permit
at 4251 Fernwood Street to install and operate nine (9) panel antennas
on the City water tower between a height of 73 and 83 feet as measured
from grade; construct a 180 square foot accessory building to the north
of the water tower to house electronic ground equipment; install cabling
and appurtenances on the water tower to connect the antennae to the
electronic ground equipment in the accessory building; and obtain
easements from the City for the equipment and access to the site. The
plans and specifications are more fully described in the documents on
file at the City of Arden Hills in Planning Case 08-007 that were prepared
by T-Mobile Minneapolis Market (Project Information, Site Plan, Enlarged
Site Plan, and Landscaping Plan dated January 9, 2008; and Sections &
Elevations dated February 8, 2008) and date stamped May, 27, 2008, by
the City of Arden Hills.
C. At a public hearing on the 5th day of March, 2008, the Arden Hills
Planning Commission reviewed the application, the report and
recommendations of the Arden Hills City Planner, the comments made at
the public hearing, and recommended approval of the conditional use
permit (the "CUP") subject to certain conditions.
2.0 Approval of CUP. On the 27th day of May, 2008, the Arden Hills City Council
considered the recommendations of the Arden Hills City Planner, the
recommendations of the Planning Commission, the effects of the proposed CUP
on the health, safety, convenience and general welfare of the owners and
occupants of the surrounding land, and the community as a whole; and passed a
motion approving Planning Case 08-007 approving the CUP. The approval of the
City of Arden Hills is subject to the following conditions.
A. The Project shall be completed in accordance with the plans
submitted in Exhibit A as amended by the conditions of approval.
Any significant changes to these plans, as determined by the City
Planner, shall require review and approval by the Planning
Commission and City Council.
B. The antennas and all mounts shall be painted to match the color of
the water tower.
C. Upon removal of any equipment the applicant shall repair all holes,
scratches, rust, or damage to the tower caused by the supports from
these antennas and the tower shall be repainted with primer and
matching paint to ensure that the metal is protected.
D. All cables associated with this project shall be properly secured and
will not impede the use of the access tube to the water tower.
E. A building permit shall be obtained for all proposed antennas prior to
installation.
F. A building permit shall be obtained for all proposed structures prior
to installation.
G. The equipment building shall be constructed and owned by T-Mobile.
H. Antennas shall not be installed and building permits shall not be
issued until a lease agreement is approved by the City Council.
I. Any termination of the lease agreement will lead to a termination of
the Conditional Use Permit.
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3.0 Compliance. Permittee hereby agrees to comply with the conditions of
approval for this Conditional Use Permit.
Dated this 27th day of May, 2008
CITY OF ARDEN HILLS
By:
Stanley D. Harpstead
Its: Mayor
STATE OF MINNESOTA
)
)
)
COUNTY OF RAMSEY
On this _ day of , 2008, before me, a notary public within
and for said county, personally appeared Stanley D. Harpstead, to me known to be the
Mayor of the City of Arden Hills, and he executed the foregoing instrument and
acknowledged that he executed the same by authority of and on behalf of City of
Arden Hills.
Notary Public
Dated this _ day of
,2008
PERMITTEE
By:
Name:
Its:
STATE OF MINNESOTA
)
)
)
COUNTY OF RAMSEY
On this _ day of , 2008, before me, a notary public within
and for said county, personally appeared , to me known to be
the President of Permittee, or the of the Permittee, a Delaware limited
liability company, and s/he executed the foregoing instrument and acknowledged that
s/he executed the same by authority of and on behalf of the corporation.
Notary Public
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Attachment C
May 27, 2008, City Council Meeting
Draft Lease Agreement
SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT ("Lease"), is dated day of , 2008
("Effective Date") and is entered into by and between the City of Arden Hills ("Landlord"), and
T-Mobile Central LLC, a Delaware limited liability company ("Tenant").
For good and valuable consideration, the parties agree as follows:
I. Landlord Property. Landlord is the owner of the follqwing described property
located in Arden Hills, Ramsey County, Minnesota:
The west 190 feet of the north 150 feet ofth7soufliJl(j2 feet of the east 'l2 of the
southeast \4 of Section 22, Township 30, Ran.ge 23;atI!'i. a Water Tower located
thereon.
2. Leased Premises. Subject to the terms and conditions of this Lease, L.a;nqlord hereby
leases to Tenant and Tenant leases from L.andlord the following portions of Landlord
Property:
(a). The portion of the Landlord.Property which will be used by Tenant to construct
a building which will house Tt!llatlt's cabinetry and equipment ("Accessory
Building").
(b). The portion ofth.eWater Tower]oeated betWeen a minimum height of 73 feet
and amaxlmum height of 83 feet measured from grade which will be used to
mount antenna; install cabling and appurtenances necessary to connect the
antennae to the equipment and cabinetry located within the Accessory Building;
and the cabinetry and equipment located within the Accessory Building
(cgllt;ctively herein the "Communications Antenna Facilities").
(c). A noncex<:;lusive easement over those portions of the Landlord Property from the
public right-of-way and from the nearest public utilities to the Accessory
Building ("Access Easement Area").
The1\ecessory Building, the Communications Antenna Facilities and the Access
EasemeritArea are hereby collectively referred to as the "Leased Premises". The
Landlord Property and the Leased Premises are illustrated on Exhibit A, consisting of
pages; prepared by dated
; and attached and incorporated as Exhibit A.
3. Constrnction of Accessory Bnilding and Communication Antenna Facilities.
Tenant shall be all owed to construct the Accessory Building and Communications
Antenna Facilities on the Landlord Property in compliance with plans and specification
approved by the Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed.
4. Rent.
(a) Amount. Adjustments. As a condition for this Lease, Tenant shaII pay Landlord
an annual rent in the amount of for the initial year, which shall
be increased each year on January I following the first anniversary of the
Commencement Date, and annually thereafter, by three percent (3%) of the
previous year's annualized rental.
(b) Time ofPavrnent. Taxes. For the first year, the rentalshaII be pro rated through
December 31 and shall be paid to Landlord withil1itlrirty (30) days of the full
execution of this Lease. If the Tenant does not Ill~~t'the requirements referenced
in Subparagraph 5(a) below by October 31,'20C!8!and Tenant has diligently
pursued such requirements, Landlord shall TefUnd any rental payment made by
the Tenant and this Lease shall terminats:;r!n addition to the annual rental, Tenant
agrees to timely pay its any personalpl'Pperty tax, real property tax, or any other
tax or fee which is directly attri1l11t~ble to the presence or installation of the
Antenna Facilities.
5. Governmental Approval Continl!encv.
(a) Tenant Application. Tenant's right to use the'iJ-.,yased Premises is expressly made
contingent upon its obtaining allthe certifi'oatl:s, permits, zoning and other
approvals that may be required by anyfcedl:ral, state, or local authority.
(b) lnterfer~nceistud"Y.!B.efore obtaining a buildirlg permit, Tenant must pay for the
reaSOnable cost of (i) a radio frequency interference study carried out by an
independent and qualified professional reasonably selected by the Landlord
showirigthat T~l1al1t's>intendeduse will not interfere with any existing
communications! facilitiesasofth.e Effective Date, and (ii) an engineering study
showing thatthe Water Towefis able to support the Tenant's Facilities, as
defiriedin Subpat!lgraph 7(b), without prejudice to the City's existing use of the
Water TOWer. If the study finds that there is a potential for interference that
cannot be reasonably remedied or for prejudice to the Water Tower, Landlord
shall notify Tenant of the potential interference in writing with sufficient detail
so that Tenant may, at its sole election, attempt to eliminate the potential for
such interference. If, after a reasonable opportunity to address the potential
interference, Tenant is unable to do so, Landlord may terminate this Lease
immediately and refund the initial rental to Tenant.
(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 Tenant is cancelled, expires, lapses, or is otherwise withdrawn or
terminated by governmental authority so that Tenant, in its sole discretion, will
be unable to use the Leased Premises for its intended purposes, Tenant shaII
have the right to terminate this Lease and be reimbursed for the rental payment if
made pursuant to Subparagraph 4(b) above. Notice of Tenant's exercise of its
right to terminate shall be given to Landlord in writing by certified mail, return
2
receipt requested, and shaIl 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 shaIl become nuIl and void and the
parties shaIl have no further obligations to each other.
6. Term and Renewals. The "Initial Term" of this Lease shaIl commence on the earlier of
(i) the date Tenant commences construction of the Accessory Building andlor
Communication Antenna Facilities, or (ii) six (6) months after the Effective Date and
end on December 31 foIlowing the fifth anniversary of the Effective Date of the Lease.
Subject to the terms and conditions of this Lease, Tenant s4:ilFhave the right to extend
this Lease for three (3) additional five (5) year renewal periods ("Renewal Term")
commencing on January 1 following the expiration~~te;Qf:~lte Initial Term and of any
subsequent Renewal Term. This Lease shaIl be:automat1s"lly renewed for each
successive Renewal Term unless Tenant sends written notice of non-renewal to
Landlord no later than ninety (90) days priortothe expiration ofthelnitial Term or any
Renewal Term, such notice to be provided in accordance with Para.graph 23 of this
Lease.
7. Tenant's Use.
(a) User Prioritv. Tenant agt-eeS(th~t the following priorities of use, in descending
order, shaII apply in theyyentofe9ipmunication interference or other conflict
while this Lease is in effect; and Tenant'silse shall be subordinate accordingly:
" ".dd..... .'_.
"-. .......
. ... ........ '.._"- .
I. Lar1dJord's.pre-existi~gilsebf the Lal"ltllord Property as of the Effective
Date;
2. Tenant andothergovernment regulated entities whose antennae provide
safety and rescue services. As to these parties, priorities shall be based
on a firstin time basis,Le. parties coming to the Landlord Property first,
have first in time protections from users of the Landlord Property at a
later dahl' and parties coming to the Landlord Property last must not
interfere with existing users ofthe Landlord Property.
(b). Purposes. Ten;ant shaIl use the Leased Premises only for the purpose of
installing, m<tintaining, repairing, removing and operating the Accessory
Building <tndCommunications Antenna Facilities and uses incidental thereto for
providingradio and wireless telecommunication services which Tenant is legaIly
authorized to provide to the public. This use shall be non-exclusive, and
Landlord specificaIly reserves the right to aIlow the Leased Premises to be used
by other parties, provided such other parties do not interfere with Tenant's
operations and use. Landlord may make additions, deletions, or modifications to
its own facilities on the Leased Premises. Tenant shaIl comply with all
applicable ordinances, statutes and regulations of local, state and federal
government agencies.
3
(c). Construction. Tenant may erect and operate an antenna array in accordance with
its submitted application. If Tenant seeks to increase the number of antennas, it
must first pay for an evaluation carried out by a qualified professional, retained
by Landlord demonstrating that (i) each additional antenna will not interfere
with existing antennas and that (ii) any Water Tower can structurally support the
additional antennas. The cost of each evaluation must be paid by the Tenant
within thirty (30) days after receiving a detailed invoice of the cost. Landlord
must consent to installation of additional antennas, such consent will not be
unreasonably withheld. If Landlord consents, the parties will negotiate the
amount of additional rental for the antennas.
(d). Operation. Tenant shall have the right, at itssoIe.cqst and expense, to operate
and maintain the Communication Antenna FaCilities on the Leased Premises in
accordance with good engineering practices, with all apPlipable FCC rules and
regulations. Any damage done tothe Leased premises!,'or other Landlord
Property, including the Water TO\v~r,during Tenant's installa.tipn or caused by
Tenant's operations, shall be repaired at Tenant's.expense withiITthjrty (30) days
after notification of damage. TheiA.ccessory Building and Communications
Antenna Facilities shall remain the exclusive property of the Tenant, unless
otherwise provided in thisl,ease.
(e). Maintenance. Improvement Expeiises. AIl modifications to the Leased Premises
and all improvements perfoIJ11ed for']"'.enant's benefit shall be at the Tenant's
expense and such improV'em~n~s; including Accessory Building and
Communications Antenna Fagilities, shaII be maintained in a good state of
repair, and secured by TenanC''.I'he portions of the Tenant's Communication
Antenna Facilities mounted on the'\Vater Tower shall, at all times be painted, at
Tenant's expense, the Satne .color aS1:lie Water Tower.
(I); .'.R.eplacements. Before Tenant may add additional antennas or alter the antenna
configuration from that shown as part of Exhibit A, Tenant must notifY and
provide a/detailed proposal to Landlord. Tenant shall submit to Landlord a
detailed proposal for any such replacement facilities 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 Tenant's expense.
Landlord may not unreasonably withhold approval.
(g). Drawings. Within sixty (60) days of Tenant's completion of construction,
Tenant shall provide Landlord with as-built drawings of the Accessory Building
and Communication Antenna Facilities.
(h). No Interference. Tenant 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. Tenant shall not unreasonably interfere with the
operations of any prior tenant using the Water Tower and shall not interfere with
4
the working use of the water storage facilities thereon by Landlord as of the
Effective Date.
(i). Access. Tenant, at all times during this Lease, shall have access to the Leased
Premises in order to install, operate, and maintain its Accessory Building
Communication Antenna Facilities. Tenant shall have access to the Water Tower
only with the approval of Landlord. Tenant shall request access to the Water
Tower twenty-four (24) hours in advance, except in an emergency, in which
event, Tenant may access the Water Tower and notify the Landlord as soon as
reasonably practicable thereafter. In the event it iSl1~8essary for Tenant to have
access to the Water Tower at some time other th~ithe normal working hours of
Landlord, Landlord may charge Tenant for its'!eri1pIDyees' wages that Landlord
may incur in providing such access to Tenallt,'providedthat such wages do not
exceed fifty dollars ($50.00) per hour.
(j). Payment of Utilities. Tenant shalLsepl!tately meter charges forthe consumption
of electricity and other utilitiesllssociated with its use of the Leased Premises
and shall promptly pay all costs associllted theI"~With.
8. Emerl!.encv Facilities. In the event of a natuhi]:o.r man made disaster; or if the FCC
issues an order determining the Tenant's CommtiniCiations Antenna Facilities poses a
danger to the health, welfare, and safety of the corblj"I"llnity, or if the Communication
Antenna Facilities need to be temporarily reIIlPvs:d in of(J~r to repair, paint or maintain
the Water Tower',T:{)j}ll1ltmay, at itscost,onatetnp<."1.r{ltY basis, place a cell-on-wheels
("COW"), on a,pomoilofthe Landlord Property approved by Landlord to assure
continuation.(j~service. Such temporary operation shall not exceed the period of time
for which the Gommunication Antenna Facilities are inoperable.
;;;c.;.-.,.
9. Additional MaitttenanceExpenses..Tenant shall promptly pay to Landlord within
thirty (30)d.ays of written notice, all additional Landlord expenses incurred in repairing
any damage t(} t!1'" Wals:rTower caused by Tenant's installation of its antennas on the
Water Tower, if anY. Notwithstanding anything in this Lease to the contrary, and
subject to the rights contained herein, Tenant shall promptly repair any damage to the
Landlord Property caused by Tenant's installation, maintenance, repair, removal and
operation of the Accessory Building andlor Communications Antenna Facilities upon
written notice from. Landlord.
10. IntentionallyQniitted.
II. Additional Buildinl!.s. Tenant acknowledges that Landlord may permit additional
buildings to be constructed on the Landlord Property.
12. Defense and Indemnification.
(a) General. Tenant agrees to defend, indemnify and hold harmless Landlord and its
elected officials, officers, employees, agents, and representatives, from and
5
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 Landlord, except those,
which arise from the negligence, willful misconduct, or other fault of Landlord.
Tenant shall defend all claims to the extent caused by its installation, operation,
use, maintenance, repair, removal, or presence of Tenant's Antenna Facilities,
equipment and related facilities on the Leased Premises
(b) Hazardous Materials. Without limiting the scope of ~Hbparagraph 12(a) above,
Tenant will be solely responsible for and will d.~l'~d, indemnify, and hold
Landlord, its agents, and employees harmless,nl%~ffi. and against any and alI
claims, costs, and liabilities, including atto~@~s"fli~~ and costs, to the extent
caused by Tenant's use of Hazardous Mat~rials. Fo~i:purposes of this Lease,
"Hazardous Materials" shall be interpr~ted broadly ahr.lj,'s,gecifically includes,
without limitation, asbestos, fuel, batteries or any hazardouSliubstance, waste, or
materials as defined in any federal,stllte, or local environmentlllor safety law or
regulations including, but not limited to, CERCl,}\.
(c) Landlord's Warranty. Landlord represents and warrants that it has no
knowledge of any Haz<frdous]\1aterials on l.I1t:Landlord' s Property. Landlord
agrees to defend, indernnifYarid,hold hat!XIl.~ss Tenant and its officers,
employees, contractors, agents, andrepl"tst:rtatives,jfrom and against any and alI
claims, costs, losses, expenses, del11ands,llc,~gT!$' or causes of action, including
reasonablea.ttorneys' fees andoth~r costs and expenses of litigation, which may
be asserted against orincurredby Tenant as a result of (i) Landlord's breach of
the warranty herein,andlor (ii)l.I1ose damages or bodily injuries, including
death, resulting frgh1l.11e existence, discovery or release of Hazardous Materials
on the Landlord's Property caused by Landlord, or third parties not related to
Tenant, priorto and during the Initial Term and any Renewal Term of this
Lease,,~xcept<those, which arise from Tenant's negligence or wilIful
misconduct, all subject to the provisions of Minnesota Statutes Chapter 466.
(d) Tenant's Warrantv. Tenant represents and warrants that its use of the Leased
Premises wiIInot generate and Tenant will not store or dispose of on the Leased
Premises, nor! transport to or over the Leased Premises, any Hazardous
Materials,inviolation of the law, unless Tenant specificalIy informs Landlord
thereofinwriting twenty-four hours prior to such storage, disposal or transport,
or otherwise as soon as Tenant becomes aware of the existence of Hazardous
Materials on the Leased Premises. Notwithstanding the foregoing, it is agreed
and understood that the Tenant 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.
6
13. Insurance.
(a) Workers' Compensation. The Tenant must maintain Workers' Compensation
insurance in compliance with all applicable statutes. The policy shall also
provide Emp]oyer's Liability coverage with limits of not less than $500,000
Bodily Injury each accident, $500,000 Bodily injury by disease, policy limit, and
$500,000 Bodily Injury by disease, each employee.
(b) General Liabilitv. The Tenant must maintain an occurrence form commercial
general liability coverage. Such coverage shall inSIl,l.de, but not be limited to,
bodily injury, property damage -- broad foIDl,:;U'ld persona] injury, for the
hazards of Premises/Operation, broad form c())1.Ji'a~t!ifll, independent contractors,
and productslcompleted operations.
The Tenant must maintain aforementiol1ed commercial gerietfllIiability coverage
with limits of liability not less than$l,OOO,OOO each occtll"j"~nse; $],000,000
personal and advertising injury; $2,000,000 general aggregate,iand $2,000,000
products and completed operations aggregate. These limits may be satisfied by
the commercial general liability coverage orin combination with an umbrella or
excess liability po]icY,f'Jilf()yided coverage afforded by the umbrella or excess
policy is no less than thej.111o.~~IYing commercia] general liability coverages.
(c) Automobi]e Liabilitv. The'];enantnrustcarry Automobi]e Liability coverage.
Coverage shallatford tota]~liability]imitsfor Bodi]y Injury Liability and
Property Damage Liability ill:the amount of $1,000,000 per accident. The
liabi]ity limits may be.afforded'under the Commercial Policy, or in combination
with an Umbrella orExcess Liability Policy provided coverages afforded by the
Umbrella Excess<I'qlicy 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) Tenant Propertv Insurance. The Tenant 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, ]oss. of use and comply with any ordinance or law
requirements.
7
(e) Additional Insured - Certificate of Insurance. The Tenant 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,
licensed to do business in the state of Minnesota, which includes all coverages
required in this Paragraph 13. Tenant will name Landlord as an Additional
Insured on the General Liability and Commercial Automobile Liability Policies.
The Certificate(s) shall also provide the coverage may not be canceled or
reduced without thirty (30) days prior written notice to Landlord.
14. Damage or Destruction. If the Leased Premises is destroyed or damaged, without
contributory fault of the Tenant or its agents, so as, in Tenant's judgment, to hinder its
effective use of the Communication Antenna Facilities, Tenant may elect to terminate
this Lease upon thirty (30) days' written notice to Landlord. Inthe event Tenant elects to
terminate the Lease, Tenant shall be entitled to reimbursement of prepaid rent covering
the period subsequent to the date of damage t(i ot destruction oftheLeflsed Premises.
15. Lease Termination.
(a) Events of Termination. Except as othetj,\(iseprovided herein, this Lease may be
terminated upon sixty (60).days written l10tice to the other party as follows:
(I) by either party upon a default of any coveI\lant or term hereof by the other
party, which defaulhis notejlfedwithinsixty (60) days of receipt of
writtei).notice of default to the other party (without, however, limiting
an.yothefnghts of the parties pursuant. to any other provisions hereof)
urtless such d~fault may not reasonably be cured within a sixty (60) day
period in whiSh case, this Lease may not be terminated if the defaulting
party cOnun~nCesflstion to cure the default within such sixty (60) day
periodandproceeds.tyithdue diligence to fully cure the default;
(2) by Temllltfor cause if it is unable to obtain or maintain any license,
permit orotl1er governmental approval necessary for the construction
and/or operation of the Antenna Facilities or Tenant's business;
(3) by Tenant for cause if the Leased Premises is or becomes unacceptable
for technological reasons including without limitation shadowing or
interference under Tenant's Antenna Facilities, design or engineering
specifications or the communications systems to which the Antenna
Facilities belong;
(4) by Landlord, after the expiration of the second Renewal Term, and upon
one year's prior written notice to Tenant if the City Council, after the
expiration of all applicable appeal periods, votes, to discontinue use of
the Landlord Property as a Water Tower and equipment Building;
8
(5) by Landlord after the expiration of the second Renewal Term, and upon
one year's prior written notice to Tenant, if an independent licensed
structural engineer determines that the W ater Tower is structurally
unsound, including, but not limited to, consideration of age of the Water
Tower, damage or destruction of all or part of the Water Tower on the
Leased Premises from any source;
(6) by Landlord if Tenant fails to comply with applicable ordinances, or state
or federal law, or any conditions attached)o government approvals
granted thereunder, after a public hearing befdr~the Landlord's Council.
'C,
(b) Notice of Termination. The parties shall giv".J:\lpti~~.of Termination in writing
by certified mail, return receipt requested.E;:u~h Ndti@",shall be effective upon
receipt as evidenced by the return receipt,dr such lai~t4ate as stated in the
Notice. All rentals paid for the Lease prior to said terrfiin1'ltion date shall be
retained by Landlord, unless such termination is due to anl.ll1<:ured default or
breach by Landlord, or Landlord's, or third party's, interfere!)Ce with the
Communication Antenna Facilities and/or Te!)ant's operations.
(c) Tenant's Liabilitv for Early Termination. If Tenant terminates this Lease other
than of right as provided in this Lease, Tenant shall pay to Landlord as
liquidated damages for early tertl1mation, twent,y-five25% of the annual rent for
the year in which Tenantterminates,(ll.rdess Tehl.\ht terminates during the last
year of any.T.""w under ParagraphSahdT~ant has paid the annual rental for
that year in which event, no further amounts shlill be due Landlord.
(d) Securitv/Site Restoration. On the Effective Date of this Lease, Tenant shall
deposit "lyith Landlord the sum of five thousand and noli 00 dollars
($5,000.00),(removal-restorationsecurity) to guarantee Tenant's performance of
the allegations described in this subdivision. In the event that the Lease is
terminated. or Ilotrenewed, Tenant shaII have sixty (60) days from the date of
terminatidl1pr expiration to remove the Accessory Building and Communication
Antenna Facilities from the Landlord Property; to restore the Landlord to its
condition prior to Tenant's use; and to restore the surface of the Water Tower. If
Tenant satisfi.es its removal and restoration obligations, the removal-restoration
security shall be refunded to Tenant, or, otherwise such security should be
retained by. the Landlord and the Accessory Building and Communication
Antenn.aFacilities shall be deemed abandoned and become the property of the
Landlord and tenant shaII have no further rights thereto.
16. Limitation of Liability. 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..
9
] 7. T emporarv Interruptions of Service. If the FCC issues an unappealable order that the
continued operation of the Antenna Facilities wiII cause or contribute to an immediate
threat to public health and/or safety, Landlord may order Tenant to discontinue its
operation. Tenant shall immediately comply with such an order. Service shall be
discontinued only for the period that the immediate threat exists. If the discontinuance
extends for a period greater than three days, either consecutively or cumulatively,
Tenant shall have the right to terminate this Lease within its sole discretion.
18. Interference
(a) With Water Tower. Tenant shall not interfere witli;I.,lihdlord's existing use of the
Water Tower as of the Effective Date and agJ;y~~;'1b'!<r, se all such actions which
unreasonably and materially interfere withjY,ifildlortlf se thereof no later than
three business days after receipt of wtjtten notice e interference from
Landlord, except intermittent operati(m for the purposef.testing, until the
interference has been eliminated. Inthe event that Tenant's cessation of action is
material to Tenant's use of the Leased Premises and such cessation fiustrates
Tenant's use of the Leased Premises, within Tenant's sole discretion, Tenant
shall have the immediate right to terminate this Lease.
(b) With Pre-Existing Usets.lfTenant's Antenna Facilities cause impennissible
interference with pre-exi~ting teIlaIlt~ witheq.uipment installed prior to the
Effective Date, Tenant shall/take allllle<l~ur~s. necessary to correct and eliminate
the interference. Jf.the interferen(;e(;annotlJ~yl.iminated within 48 hours after
receiving Landlord'~.written notice of the interference, Tenant shall immediately
cease operating its;Xntenna Facilities and shall not reactivate operation, except
intermittent operatiOllfor the purpose of testing, until the interference has been
eliminated.. If th~j}Rt~r;t'eryn.ce cannot be eliminated within sixty (60) days after
delivering.writte.llnoticetotheother party, Landlord or Tenant may terminate
this Lease inunediately.
(c) Interference StudyCNew Occupants. Upon written notice by Landlord that it has
a bona fide request from any other party to lease an area including or in close
proximity to the Leased Premises ("Leased Premises Area"), Tenant agrees to
provide Landlord, within sixty (60) days, the radio frequencies currently in
operation or to be operated in the future of each transmitter and receiver installed
and operational by Tenant on the Leased Premises at the time of such request.
Landlord may then have an independent, registered professional engineer of
Landlord's choosing perform the necessary interference studies to determine if
the new applicant's frequencies wiII cause harmful radio interference to Tenant.
Landlord shall require the new applicant to pay for such interference studies,
unless the Landlord or other higher priority user requests the use, in which case
the requesting party shall pay for the studies.
(d) Interference - New Occupants. Landlord agrees that it wiII not grant a future
lease in the Leased Premises Area to any party who is of equal or lower priority
10
to Tenant, if such party's use is reasonably anticipated to interfere with Tenant's
operation of its Communication Antenna Facilities. Landlord agrees further that
any future lease of the Leased Premises Area will prohibit a user of equal or
lower priority from interfering with Tenant's Communication Antenna Facilities.
Landlord agrees that it will require any subsequent occupants of the Leased
Premises Area of equal or lower priority to Tenant to provide Tenant these same
assurances against interference. Landlord shall have the obligation to eliminate
any interference with the operations of Tenant caused by such subsequent
occupants. If such interference is not eliminated, Tenant shall have the right to
terminate this Lease or seek injunctive relief against'the interfering occupant, at
Tenant's expense.
]9. Assil!nment. Tenant may, upon written notice to Landlord,ttaI)sfer (by assignment or
sublease) its rights arising under this Lease to/any corporation, partnership or other
entity which (i) is controlled by, controllinggl"uIlder common control with Tenant, (ii)
shall merge or consolidate with or into Te1l.aUf, (iii) shall succeed to a!lor substantially
all the assets, property and business of Ten ant, or (iv) may be requiredil1 connection
with any offering, merger, acquisition,iecognizedsecurity exchange or financing.
Upon such assignment, Tenant shall be relieyed of all liabilities and obligations
hereunder and Landlord shall look solely to the assignee for performance under this
Lease and all obligations hereunder'.. Said assignlllj:nt shaII only be effective upon
receipt by Landlord of written aC]<now!edgement from assignee of their assumption of
all liabilities and obligations hereUllder. Under. all other.circumstances, such transfer
shall require Landlord's..written c()~~eIlt;whlch consent shall not be unreasonably
withheld, conditioned ordj:layed. ~gt.withstandinganything to the contrary herein,
Landlord hereby consents tg:the assignment by Tenant 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 LeasedJ>relpis~~.CSecured Party").
20. Condemnation. In the: event the whole of the Leased Premises is taken by eminent
domain, this Lease shall terminate as ofthe date title to the. Leased Premises vests in the
condemning authority. Ineyj:nt 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, Tenant shall not be entitled to any portion of
the reward paid for the taking and the Landlord shall receive full amount of such award.
Tenant 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, Tenant 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 Tenant on account of any
and all damage to Tenant's business and any costs or expenses incurred by Tenant in
moving/removing its Communication Antenna Facilities and Accessory Building.
21. Disputes. Except in the event where a party seeks immediate injunctive relief
unavailable in arbitration, any dispute arising under this Lease is subject to binding
11
arbitration in accordance with the Wireless Industry Arbitration Rules of the American
Arbitration Association ("AAA"), to the fullest extent such Rules are permitted by, and
to the extent not inconsistent with, applicable law and the rules set forth below, which
shall be controlling to the extent they differ from such rules of the AAA. Unless
otherwise agreed, the arbitration shall be held in the state where the Landlord Property
is located. The arbitrator shall have experience in the subject matter involved in the
dispute and be a member of the Telecommunications Panel. The arbitrator shall not
have any material past or present family, business or other relationship with any party,
affiliate, director or officer thereof, or any "associate" (as defined in Rule 12b-2 of the
Securities Exchange Act of 1934, as amended) of any such/party, affiliate, director or
officer. Each party shall have the right to discovery in th~same scope and substance as
would be permitted under the Federal Rules of c:fviFRt()cedure. Notwithstanding
anything contained herein to the contrary, in the event that either Landlord or Tenant
shall be unable to join a material interested party in any arbifnltion arising out of or
relating to this Lease, for any reason, the Rarty unable to join the/ll1aterial interested
party may elect, within fifteen (15) days.afterbecoming aware of sucni!"iability to join,
to have the claim, dispute or other matter in question settled in a court of~a1lf rather than
pursuant to arbitration as set forth under this Paragraph.
22. Enforcement and Attornevs'Fees. In the evehtthat either party to this Lease shall
bring a claim in arbitration to enf()I"ce.lU1Y rights hereunder, the prevailing party shall be
entitled to recover costs and reasonabJeat~(>lTleys' feesiricurred as a result of such claim.
.... .......-....
23. Notices. All notices.hereunder mustlJe i~~trrl.gall4shall be deemed validly given if
delivered personally or ifsent by certifie4mail, return receipt requested, addressed as
follows (or any other address that theRartY to be notified may have designated to the
sender by like notice):
If to Landlord, to:
If to Tenant, to:
With a copy to:
And with copy to:
With copy to:
City AdministratQt
City of Arden Hills
1245 West Highway 96
Arden Hills, MN 55112
T-Mobile USA, Inc.
12920 Southeast 38th Street
Bellevue, W A 98006
Attention: PCS Lease Administrator
Attention Legal Department
T-Mobile Central LLC
8550 W. Bryn Mawr Ave., Suite 100
Chicago, IL 6063]
Attention: Lease Administration Manager
Attention Legal Department
12
24. Authority. Each of the individuals executing this Lease on behalf of the Tenant 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.
25. Bindin!! Effect. 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.
26. Comnlete Lease: Amendments. This Lease constitufes'the entire agreement and
understanding of the parties and supersedes alli'j)fl"er.s,negotiations, and other
agreements of any kind. There are no representatioIlspr 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.
27. Governin!! Law. This Lease shall be construed in accordance with tneIaws of the State
of Minnesota.
28. Limitation of Liability. Nothing in the Lease snail be deemed a waiver of any
limitation of liability or defenses under Minnesota Statutes Chapter 466 or any other
provision oflaw.
29. Severability. If any term of this Lease is foundbe.voidoj"invalid, such invalidity shall
not affect the remaining. terms of this Lease, which .shall continue in full force and
effect.
30. Memorandum. Upon request by either party, the parties agree to promptly execute and
deliver a recordable Meniorandum of this Lease in a form acceptable to both parties,
which may be recorded by the partyrequesting the Memorandum of Lease.
31. Waiver of Landlord's Lien. Landlord hereby waives any and all lien rights it may
have, statutory or otherwise, concerning the Accessory Building andlor Communication
Antenna Facilities or any portion thereof, which shall be deemed personal property for
the purposes of this Lease, whether or not the same is deemed real or personal property
under applicable laws, and Landlord gives Tenant 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 thisLease, in Tenant's and/or Secured Parties' sole discretion and without
Landlord's consent. Subject to the provisions of Section 15(d) ofthis Agreement.
13
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
Its:
STATE OF MINNESOTA )
)SS
COUNTY OF )
The foregoing instrument was ack110wledged before me this day of
, 2008, by Stanley Harpstead and Ronald Moorse, respectively
the Mayor and City Administratoroftl1e City Arden Hills and executed the Agreement by
authority of the City Council. .
Notary Public
14
TENANT:
T-Mobil Centra] LLC,
a Delaware limited liability company
By:
Hossein Sepehr
Its:
STATE OF MINNESOTA)
)SS
COUNTY OF )
& Operations
The foregoing instrument was acknowletiged byfore me this day of
, 2008, by Hossein Sepehr, the Director of Engineering &
Operations, of T -Mobile Central LLC, limited liability company, on behalf of the
company.
F:lusers\Jessica\JerryIArdcn HilIsISITE LEASE AGREEMENT-3.doc
15
Attachment D
Report to the Planning Commission
From March 5, 2008.
Available online at:
http://www.ci.arden-hiIIs.mn.us/planningcases
May 27,2008, City Council Meeting