Resolution No. 2022-148 Lease Agreement with DISH Wireless
Resolution No. 2022-148
Approving a Telecommunications Lease Agreement with DISH Wireless, LLC
for Commons Park Tower #1
Whereas, the City of Fridley’s Telecommunications Ordinance (City Code Section 205.30) provides
approved locations for large telecommunications facilities in the City of Fridley (City) in the public
interest to limit impact telecommunications towers have to the community; and
Whereas, the City’s own water tower structures are made available when feasible for shared use
by telecommunications carriers through a long-term lease; and
Whereas, a preliminary review of proposed telecommunications plans from DISH Wireless, LLC,
for the Commons Park Water Tower #1 has been completed by the City; and
Whereas, the lease agreement has been reviewed by staff and the City attorney, and found to be
acceptable.
Now, therefore be it resolved, the City Council hereby approves the attached lease agreement
between the City of Fridley and DISH Wireless, LLC, for cellular communications equipment and
facilities at Commons Park Water Tower #1, subject to any final modifications of terms the City
Attorney recommends.
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Passed and adopted by the City Council of the City of Fridley this 12 day of December,
2022.
_______________________________________
Scott J. Lund – Mayor
Attest:
Melissa Moore – City Clerk
MEMORANDUMOFLEASE
(s):____________________________
ASITE LEASE AGREEMENT dated ____________________, 20___ (collectively, the
LeaseCity of Fridley
and____________________________,a____________
was made regarding a portion of the following property:
Seeattached Exhibit A incorporated herein for all purposes
TheLeaseisforatermthatiscurrentlyscheduledtoexpireon_____________, 20__.Tenant
shallhavethe rightto extend the Leaseforfour(4) additional and successivefive(5)-year terms.
INWITNESSWHEREOF, the parties hereto haveexecuted this memorandum.
LANDLORD:City of Fridley
By:
Printed Name:Scott J. Lund
Title:Mayor
Date:
LANDLORD:City of Fridley
By:
Printed Name:WalterWysopal
Title:City Manager
Date:
TENANT:
By:
Printed Name:
Title:
Date:
STATE OF MINNESOTA)
)ss.
COUNTY OF ANOKA)
On this ___ day of __________, 20___, before me a Notary Public within and for said
County, personally appeared Scott Lund and Walter Wysopal, to me personally known, who being
each by me duly sworn, each did say that they are respectively the Mayor and City Manager of the
City of Fridley, the municipality named in the foregoing instrument, and that the seal affixed to
said instrument was signed and sealed on behalf of said municipality by authority of its City
Council and said Mayor and City Manager acknowledged said instrument to be the free act and
deed of said municipality.
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
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STATE OF ____________________ )
) ss.
COUNTY OF __________________ )
This instrument was acknowledged before me by ______________,the
____________________________of, alimited liability
company, for and on behalf of said entity.
Dated: ________________________
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
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Memorandum of LeaseAExhibit A
Legal Description
(s): _________________________
TheProperty is legally describedas follows:
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SITE LEASE AGREEMENT
___________SITE
FRIDLEY, MINNESOTA
THIS SITE LEASE AGREEMENTismade as of the latter signature dates below(the
, but is effective as of _________, 20__City of
Fridley, Minnesota, a Minnesota municipal corporation, having a mailing address of7071
University Avenue NE, Fridley, Minnesota55432LandlordDISH Wireless L.L.C., a
Colorado limited liability company having a place of business at 9601 S. Meridian Blvd.,
Englewood, Colorado 80112Tenant.
RECITALS:
WHEREAS,Landlord desires to lease to Tenant and Tenant desires to lease from
Landlordcertain premises described below subject to the terms and conditions set forth herein.
NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION,as of the
Effective Date, the parties agree as follows:
1.Leased Premises. For purposes of operating wireless communications services, and subject to
the terms and conditions of this Lease, Landlord hereby leases to Tenant and Tenant leases
from Landlord the following premises:
a.A portion of Landlords Property, located in the City of Fridley, County of Anoka,State
of Minnesota, which is legally described on ExhibitAattached hereto and incorporated
herein
areattached, connected, enclosed and/or contained, which is legally described on the
attached Exhibit B; and
b.
receivers, connecting cables and appurtenances areattached and located; and
c.
)will belocated; and
d.Non-exclusive rightsto run utility lines and cables totheEquipment Shelteracross a
; and
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e.A non-exclusive right of access across a portion of ss and
egress from the adjacent right of way to the Equipment Shelter and to the Structure so that
Tenant has access to its Antenna Facilities.
All of the aforementioned items (a) (e) are depicted on Exhibit B, attached hereto and
incorporated herein, a
satellite dishes,
duplexers, remote radios, receivers, connecting cables, utility lines,cabinets, Equipment Shelter
and related equipmentand are more specifically depicted on the Antenna Site Application which
is attached hereto asExhibit Cand is incorporated herein.
2.Rent.
a.Initial Rent Amount, Adjustments. As consideration for this Lease, Tenant shall pay
Landlord an annual rent in the amount ofTwenty-Four Thousand and 00/100Dollars
($24,000.00)per year during the Initial Term (as defined in paragraph4hereof)
which shall be increased on the first dayofeachRenewal Term(as defined in Paragraph 4
hereof), by fivepercent(5%)Rent, as shown on Exhibit Dattached
hereto and incorporated herein.
b.Time of Payment, Taxes. The Rent shall be paid annually inadvance byJanuary 1 of each
year. In addition to the Rent, Tenant agrees to timely pay its prorata share of any taxes or
payments(s) in lieu of taxes directly attributable to the installation of Tenants Antenna
Facilities upon the LeasedPremises.The Parties ac
receipt of an IRS approved W-9 form setting forth the tax identification number of
Landlord (or of the person or entity to whom Rent is to be made payable, if applicable).
Landlord also acknowledges and agrees that the first Rent payment may not be received by
Landlord until ninety (90) days after the Commencement Date(hereinafter defined).
c.Sublease. The Tenantshall not be allowed to sublease space on the Structureto additional
telecommunications providersor to sublease the use of its conduit or coaxial access to other
telecommunication providers as to allow such other telecommunications providers to use
Tenants existing Antenna Facilities. Separate lease agreements for additional ground and
antenna space shall be with the Landlord, not the Tenant.
d.Escrow. Within sixty (60) days ofthethe Tenantshall
escrow Ten Thousand with Landlord for the
duration of the term of the Lease to be utilized by Landlord to pay costs incurred by
Landlord pursuant to subparagraphs 2(e), paragraph 5, or subparagraph 15(d). Said escrow
balance shall be replenished when withdrawals are made so as to maintain the Escrow
Amountbalance of Ten Thousand Dollars ($10,000.00).
e.Miscellaneous. Tenant shall pay for all actual, reasonable and documented costs of Landlords
plan review, inspections,and project management costs for this project or any future
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modifications within sixty (60)days after Landlord sends an invoice along with reasonable
supporting documentation for such fees in excess of Escrow (subparagraph 2(d)) to Tenant;
provided, however that in no event shall Tenant be obligated to pay more than $10,000.00 per
year.In addition to consulting and engineering inspection costs, Tenant shall reimburse
Landlord for all reasonable costs associated with reviewing this Lease and approving Ten
application, including but not limited to all reasonable
review time and third-partyconsultant fees and expenses. All fees and invoices must be paid
within sixty (60) days after Landlord sends Tenant an invoice for the same.
3.Governmental Approval Contingency.
a.Tenant Application. Tenants right to use the Leased Premises is expressly made contingent
upon its obtaining all the certificates, permits, zoning and other approvals that may be
required by any federal, state, or local authority
. This shall include the interference and engineering studies specified in
subparagraphs3(b) and 3(c) below on the Structure to be conducted at Tenants expense.
Landlord shall cooperate with Tenant in its efforts to obtain and retain such Government
Approvalsand shall take no action that would adversely affect the status of the Leased
Premises with respect to the Tenants proposed use thereof. Tenant shall not consider this
Lease, or the negotiations to enter into a lease, as alleviating the Tenant from any and all
requirements for Tenant to obtain required GovernmentApprovals including conditional
use permits or other special approvals required by City, County, State or Federal
Governments.
¡ȁ Interference Study. Before obtainingany building permit, if required, or before making for
any new installation, or before making any modification, improvement, or expansion of
existing Antenna Facilities,Tenant must pay for the reasonable cost of a radio frequency
interference study, carried out by an independent and qualified professional selected by the
Tenant, which approval shall not be unreasonably withheld, showing that Tenants
intended use will not interfere with any existing communications facilities, if other
communications facilities are currently located on the Structure.If the study finds that there
is a potential for interference that cannot be reasonably remedied, Landlord may deny the
building permitor the proposed modification, improvement,or expansion.Tenant shall
bands and
for use in the Interference Study. Landlord shall
.
c.Structural Engineering Certification.Before obtaining any required building permit for any
new installation, or for any Substitution, modification, improvement, or expansion of existing
Antenna Facilities, Tenant shall provide an engineering study carried out by a qualifiedand
independent professionalengineer, licensed in the State of Minnesota,selectedby the Tenant,
toensure substantive substitutions, modifications, improvements or expansiondo not
materially adverselyStructureor the use of the Structureby
another tenant with equipment on the Structure.If the study finds that the Structure is
inadequate to support the proposed Antenna Facilities, modifications,improvements,or
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expansion,Landlord may deny the building permitor said modifications, improvements,or
expansion.In its sole discretion, Landlord may waive the requirement of an engineering study
for modifications to the Antenna Facilities.
d.Non-Approval. In the event that any application necessary under subparagraph 3(a) above
is finally rejected or any required GovernmentApproval issued to Tenant is canceled,
expires, lapses, or is otherwise withdrawn or terminated by agovernment authority so that
Tenant, in its sole discretion, will be unable to use the Leased Premises for its intended
purposes, or if an interference or engineering study, whether conducted pursuant to
subparagraphs3(b) and 3(c) above or otherwise, should indicate, in Tenants sole
discretion, that the Leased Premisesare unsatisfactory for Tenants intended use, Tenant
shall have the right to terminate this Lease and no further Rent shall be due following the
terminationofthis Lease. Notice of Tenants exercise of its right to terminate pursuant to
this subparagraph shall be givento Landlord in writing as provided in accordance with
Paragraph 25, Notices, of this Lease. Except as otherwise stated in this Lease, upon such
termination, this Lease shall become null and void and the partiesshall have no additional
obligation to each other except as provided in paragraphs 11, 13, and 15.
4.Term and Renewal. Notwithstanding the Execution Date of this Lease, the Initial Termof
this Lease shall commence on the first day of the month
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equipment Commencementandend onthe day before the fifth (5) annual
anniversary of the Commencement Date.Subject to the terms and conditions of this Lease,
Tenant shall have the right to extend and renewthis Lease for four (4)additional five (5) year
renewal periods (each a Renewal Term) commencing on the date following the expiration
date of the Initial Term or of any subsequent Renewal Term. This Lease shall be automatically
renewed for each of the four Renewal TermsunlessTenantsends written notice of non-renewal
toLandlordno later than ninety(90) days prior to the expiration of the Initial term orany
Renewal Term, such notice to be providedin accordance with Paragraph 25of this Lease. The
5.Tenant Use.
a.User Priority. Tenant agrees that the following priorities of use, in descending order, shall
apply in the event of communication interference or other conflict while this Lease is in
effect, and Tenants use shall be subordinatedaccordingly:
i.Landlord;
ii.Public safety agencies, including law enforcement, fire, and ambulance services
that are not part of the Landlord;
iii.Other governmental agencies whoseuse is not related to public safety;
iv.Tenant and other government-regulated entities whose antenna offer a service to
the general public for a fee in a manner similar to public utility, such as long
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distance and cellular telephone, not including radio or television broadcasters and
pre-existing tenants.
v.0±¤ȃ¤·¨²³¨¦ ³¤ ³² ¤·¨²³¨¦ ³ ³§¤ 0±®¯¤±³¸ ¯±¨®± ³® ³§¤ %¥¥¤¢³¨µ¤ $ ³¤Ǿ
¤·¢«´£¨¦ ¸ ¬®£¨¥¨¢ ³¨®² ®¥ ¸ ¤·¨²³¨¦ ¤°´¨¯¬¤³ ¢®¥¨¦´± ³¨® £ȝ®±
¥±¤°´¤¢¸ ¢§ ± ¢³¤±¨²³¨¢² ®¢¢´±±¨¦ ¥³¤± ³§¤ %¥¥¤¢³¨µ¤ $ ³¤ȁ
b.Purposes. Tenant shall use the Leased Premises only for the purpose of installing,
maintaining, and operating theAntenna Facilitiesand uses incidental thereto for providing
wireless telecommunications services which Tenant is legally authorized to provide to the
public. This use shall be non-exclusive, and Landlord specifically reserves the right to
allow the Landlords Property, except the Leased Premises, to be used by other parties and
to make additions, deletions, or modifications to its own facilities on
except as set forth in subparagraph 5(a) herein. Tenants installation, maintenance and
operation of the Antenna Facilities shall at all times comply with all applicable ordinances,
statutes,and regulations of local, state,and federal governmental agencies.
rty, the Structure and any of its
Tenant shall have exclusiveuse of its Antenna Facilities.
c.Modifications, Improvements or Expansion of Antenna Facilities. Tenant agrees that it will
install only antennas that Tenantknows will not interfere with existing antennas or with
antennas with higher priority. If Tenant seeks to modify, improve, or expandits Antenna
Facilities, then Tenant must obtain a building permit from Landlord and comply with
subparagraphs3(b) and 3(c) requiring an interference study and engineering study, unless
such requirement is waived in writing by Landlord. A modification, improvementor
expansionthat expands or alters the Antenna Facilities located on the Structure or outside
the Equipment Shelterfrom the location of the existing Antenna Facilities depicted on
Exhibit Cas of the ExecutionDate or as Exhibit Cmay be subsequently amended, shall
increase the annualized Rent by a proportionate amount, as determined by Landlord. An
amendment to this Lease may also be required. Tenant shall
reimburse Landlord for all reasonable costs associated with amending this Lease due to
of, improvementsto, or expansion ofthe Antenna Facilities,
including all actual, reasonable and documented not
to exceed an amount to be agreed upon at the time of the request for such modification.
d.Substitutions. In the event Tenant directly replaces an antenna or other item of
telecommunications equipment with an antenna or other item of telecommunications
equipment of the identicalmake, model, weight, loadSubstitut
Tenant shall notify Landlord as set forthherein.
In the event Tenant intends to make a Substitutionof antenna or other item of
telecommunications equipment, Tenant shall notify Landlord at least twenty-four (24)
hours, or as promptly as possible in the event of a service outage, in advance of making
said Sub-
572-3566.
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e.Pre-Construction Plans. Prior to construction for any and all modificationsof,
improvements toor expansion ofthe Antenna Facilities proposed after the Effective Date,
Tenant shallprovide Landlordor
ctronic file format that
the improvements proposed to be placed on the Structure or Leased Premises consisting of
the following:
1)Line or CAD drawings showing the actual physical location of all planned
installations plus materials and construction methods;
2)Specifications for all planned installations;
3)Diagrams of proposed Antenna Facilities;
4)A complete and detailed inventory of all equipment and personal property of Tenant
proposed to be placed on the Leased Premises;
5)Results of the interference study required by subparagraph3(b);
6)Results of the engineering study required by subparagraph3(c); and
7)Updated Antenna Site Application.
Items 1 through 7shall collectively be referred to as the Construction Plans
.Landlordshall review and approve such Construction Plans if acceptableto
Landlord, and Landlordsapprovalshall not be unreasonably withheld, conditioned or
delayed.If Landlord fails to either approve the Construction Plans or provide awritten
request for changes tosaid Construction Plans to Tenant within the thirty (30) day period,
the Construction Plans will be deemed approved by Landlord. If Landlord disapproves of
the Construction Plans, then the Tenant shall provide Landlord with revised Construction
disapproves of the revised Construction Plans, Tenant may either i) make further revisions
to the Construction Plans and submit them to Landlord for review or ii) terminate this Lease
without further liability except as found in paragraphs 11, 13, and 15of this Lease, by
providing written notice to Landlordin the manner set forth in paragraph 25. Tenant shall
be solely responsible for all costs associated with said review andapproval of Construction
Plans subject to the limitations set forth above.
f.Post-Construction As-Built Drawings. Unless duplicative of previously submitted and
approved drawings, within thirty (30) daysafter Tenant modifies, improves or expandsthe
Antenna Facilities, Tenant shall provide Landlord with as-built drawings in electronic file
Exhibit Cthat
consist of as-built drawings of the Antenna Facilities and themodifications,improvements
or expansion
show the actual location of all equipment and modifications, improvementsor expansion
on the Structure or outside the Equipment Shelter. In the event there is a ground
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modification, then said drawings shall be accompanied by a complete and detailed site
survey of property, inventory of all equipment, personal property and the
modified, improved or expandedAntenna Facilitieslocated on the Structure or outside the
Equipment Shelter. Landlord retains the right to survey the installed equipment.
g.Contractor Approval. Any contractor chosen by Tenant to carry out construction,
installation, maintenance,or any other work on the Structuremust be pre-approved by the
Landlord prior to the pre-construction meeting, which approval shall not be unreasonably
withheld, conditioned or delayed. Contractor informationwhich shall be provided to
Landlord shall include at aminimum:
Name and contact information; and
Experience (with water storage tank installations); and
OSHA violations within the previous three years.
Landlord retains sole discretion and reserves the right to reject any and all contractors the
Tenant may propose forthemodification or installation workif the contractors are not
qualified, licensed and insured.All work performed on the Antenna Facilitiesshall be
performed by professionalswho perform the type of work to be performedon a daily basis
and who have any necessary professional licenses or certifications for the type of work to
be performed.
h.Inspection.Landlord may engage a consulting engineer toinspect,beginning with the pre-
construction conference and continuing through
modification/installation/construction/punch-list and verification of as-builts at project
completion as determined solely by Landlord, at Tenants expense. Landlord will not
arbitrarily require more inspectionsthanarereasonably necessary to insure the continued
delivery of service and security of LandlordsPropertyand the Structure. Tenant shall pay
for all costs of Landlords inspections,as well as expansion,modification,and installation
project management costs pursuant to subparagraph2(e). Prior to energizing any future
modificationstoTenantsAntenna Facilities,all punch list items related to installation
must be substantially complete (the exception may be weather related finish painting, etc.
as determined by Landlord).Prior to the installation of new equipment, modifying,
improving,expanding,or upgradingexisting equipment on the Leased Premises, any
existing improperly installed equipment, unsatisfactory conditions related to previously
installed equipment, or any necessary maintenance shall be completed prior to such
installation, modification, improvement, expansion,or upgrade. All work requiring
inspection shall be requested at least forty-eight (48) hours in advance and shall be
requested during normal working hours, which are 7:00 a.m. to 4:00 p.m., Monday through
Friday, exclusive of holidays. Tenant shall providesafe means of access to all areas of the
installation
equipment necessary to gain access to the installation areas.
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i.TenantsOperationand On-Going Maintenance.Landlord will maintain and repair
thereto, the Structure, and all areas of the Leased Premises
where Tenant does not have exclusive control, in good and tenantable condition, subject to
reasonable wear and tear and damage from the elements. Tenant shall have the right, at its
sole expense, to operate and maintain the Antenna Facilities on the Leased Premises, as
depicted on Exhibit C,in accordance with good engineering practices with all applicable
FCC rules and regulations. Tenants installation of all Antenna Facilities shall be done
according to the Construction Plans approved by Landlordpursuant to Paragraph 5(e)
hereof, which approval shall not be unreasonably withheld or delayed. Any damage done
by Tenant, its employees or agents to the Leased Premises or other Landlord Property
including the Structure during installation or during operations, shall be repaired by Tenant
at Tenants expense within thirty (30) days after notification of damage, or scheduled with
Landlord if weather conditions prohibit repairs. The Antenna Facilities shall remain the
exclusive property of the Tenant, unless otherwise expressly provided in thisLease.
Landlord waives any and all lien rights it may have, statutory or otherwise, concerning the
Antenna Facilities or any portion thereof. The Antenna Facilities shall be deemed personal
property for purposes of this Lease, regardless of whether any portion is deemed real or
personal property under applicable law.
any portion of the s sole discretion, at
and without Landlord's consent, uponsixty (60)days prior written
notice to Landlord.
j.No Interference. Tenant shall, at its own expense, maintain any equipment on or attached
to the Leased Premises and owned by Tenant in a safe condition, in good repair and in a
manner so as avoidconflictingwith the use of the surrounding Landlords Property by
Landlord, reasonable wear and tear and damage from casualty not caused by Tenant
excepted. Tenant shall not unreasonably interfere with the operations of other existing
tenantswith equipment on the Structureand shall not interfere with the working use of the
water storage facilities thereon or to be placed thereon by Landlord.
k.Access. Tenant, at all times during this Lease, shall have exclusive access to its Antenna
Facilities located on the LeasedPremises in order to install, operate, repair, and maintain
its Antenna Facilities. Tenant shall request access to the Structure twenty-four (24) hours
in advance, except in an emergency, and Landlord approval thereof shall not be
unreasonably withheld, conditionedor delayed. Access to AntennaFacilitieson the
Structureshall be with prior notice, Tenants employees identification and in the presence
of a Both the Landlord and the Tenant
shall maintain a written record of all site visits, including the name of all personnel. In the
event it is necessary for Tenant to have access to the Structure at some time other than the
normal working hours of Landlord,which are 7:00 a.m. to 4:00 p.m. Monday through
Friday, exclusive of holidays, Landlordmay charge Tenant for whatever expense,
and overtime,Landlord may incur in providing such access
to Tenant.Except in cases of emergency, Landlord shall not have access to the Antenna
Facilities ground level equipment building on the Leased Premises unless accompanied by
All reimbursement shall be paid within sixty (60) days from the date
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together with reasonable supporting documentation
evidencing such costs.
l.Payment of Utilities
use of the Leased Premises are available. Tenant shall separately meter charges for the
consumption of electricity and other utilities associated with its use of the Leased Premises
and shall be responsible to promptly pay all costs associated therewith. Landlord will
the servicing utility.Landlord grants to Tenant and its utility providers non-exclusive
easement(s) for utilities, including, without limitation, fiber optic cabling and electrical
t at the
Easement-party
providers of utility services, including but not limited to, fiber, gas, electric and telephone,
may utilize the Easements. If required by any such third-party provider, Landlord agrees
to execute a separate recordable document or other reasonable documentation evidencing
such rights without the payment of additional consideration. The Parties acknowledge and
agree that Tenant may wish to obtain real property rights or interests from third-parties
and, if requested, Landlord shall promptly provide commercially reasonable assistance to
Tenant with respect to obtaining such rights. Landlord also grants to Tenant: (a) the right
to use any fiber installed at the Proper
(b)the right to install such fiber services on, through, over and/or under the Property in
available conduit.It is expressly acknowledged and agreed that independent third party
providers of utility services, including, but not limited to, fiber, may utilize the Easements
and conduit for the installation of lines, equipment, and all necessary appurtenances,
without the execution of any further documentation. In the event that the existing electric,
gas, telephone, cable or fiber utility sources located on the Property are insufficient for
-party
nstall such utilities
that the location of such utilities shall be mutually agreed upon by Landlord and Tenant
prior to the commencement of installation thereof.
m.Quiet Enjoyment. Tenant, upon paying the rent shall peaceably and quietly have, hold and
enjoy the Leased Premises and shall not be disturbed in its possession, use and enjoyment
of the Leased Premises. Landlord shall not cause or permit any use of the Landlord's
Property that interferes with or impairs (a) the integrity of the Structure to which the
Antenna Facilities are attached or (b) the quality of the communication services being
rendered by Tenant from the Leased Premises.
6.Emergency Facilities. In the event of a natural or manmade disaster, in order to protect the
health, welfare, and safety of the community, Tenant may erect additional Antenna Facilities
and install additional equipment on a temporary basis on the Leased Premises to assure
continuationof service. Such temporary operation shall not exceed ninety(90) days unless
Tenant obtains written approval from the Landlord.
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7.. All modifications to the Leased
Premises and all improvements or expansion
expense. Upon notice from Landlord, Tenant shall promptly pay to Landlord expenses incurred
in maintaining the Leased Premises d
Premises together
with reasonable supporting documentation evidencing such costs. All such modifications
made by Landlord for T
8.\[Omitted\].
9.Additional Buildings. Tenant acknowledges that Landlord may permit additional buildings to
be constructed on Landlords Property. At such time as this may occur, Landlordwill permit
Equipment Shelter and will allow
attachmentsto its building so as to give the appearance that all buildings are a connected
facility. Said attachments will be made at no cost to Landlordor Tenant, will not compromise
Equipment Shelter, and will not unreasonably interfere with
the operation and maintenance ofTenants Antenna Facilities.
10.Relocation.
TemporaryRelocationDuringReconditioning,PaintingandRepairs.Intheeventthat Landlord
electsto recondition,paintor otherwiseundertakemaintenanceof theStructure,
Propertyor the LeasedPremisesrequiringthe temporaryrelocationor removalof the Antenna
Facil
repair,repainting,restorationor otheractivityasrequiredby Landlord.Exceptin the caseof an
emergency, Landlord shall give Tenant one hundred twenty (120)
existonly in those situationswhichconstituteanimmediatethreatto the healthor safetyof the
anytype of
temporaryfacilitynecessaryto keepitsAntennaFacilitiesoperational.
Tenants with equipment on the Structure will have priority based on the date of their leases (with
the existingleaseshavinghighest priority)if spaceis limit
cost and expense. After receiving not less than one hundred eighty (180) days prior notice, Tenant
mustrelocateor removethe AntennaFacilitiesatitssole costandexpense.IfTenantfailsto
removeAntennaFacilitieswithinthe timeframestatedin the notice,Landlordmayremove
AntennaFacilitiesandstorethe AntennaFacilitiesaccordingly.Tenantshallberequiredto
reimburse Landlord for any reasonable expenses incurred by Landlord forremoving and storing
Antenna Facilities. Landlord shall provide an itemized statement ofcosts incurred by Landlord.
Tenant shall be responsible for reinstalling its Antenna Facilities following completion of the work
.Notwithstandingthe foregoing,Landlordagreesthat Tenantshallnot
berequiredto relocateitsequipmentmorethan one(1)timeeveryfive(5)yearsexceptin the
event of emergency or casualty.
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11.Defense and Indemnification.
a.General.Landlord represen
Date, is free of Hazardous Materials, including asbestos-containing materials and lead
conditions resulting in any environmental investigation, inquiry,or remediation. Landlord
and Tenant agree that each will be responsible for compliance with any and all applicable
governmental laws, rules, statutes, regulations, codes, ordinances, or principles of common
law regulating or imposing standards of liability or standards of conduct with regard to
protection of the environment or worker health and safety, as may now or at any time
nducted in or on
Landlord and Tenant each indemnify the other against and hold the
other harmless from any and all costs (including reasonable attorneysfees andexpenses)
and claims, actions, damages, obligations, liabilities and liens which arise out of i) the
breach of the Lease by the indemnifying party; and ii) the use and/or occupancy of the
Landlords Property, except for any claims, actions, damage, obligations, liabilities and
liens arising from any negligent or intentional misconduct of the indemnified party. This
provisionshall survive the termination ofthis Lease.
Notwithstanding any language to the contrary found within this Lease, nothing contained
herein shall be deemed a waiver by the Landlord of any governmental immunity defenses,
statutory or otherwise. Further, any and all tort claims brought by the Tenant orits successors
or assigns shall be subject to any governmental immunity defenses of the Landlord and the
maximum tort liability limits provided by Minnesota Statutes, Chapter 466.
b.Hazardous Materials. Without limiting the scope of subparagraph 11(a) above, Landlord
and Tenant agree to hold harmless and indemnify the other from, and to assume all duties,
responsibilities and liabilities at the sole cost and expense of the indemnifying party for,
payment of penalties, sanctions, forfeitures, losses, costs or damages, and for responding
to any action, notice, claim, order, summons, citation, directive, litigation, investigation or
s obligations or
representations under Paragraph 11a. Landlord agrees to hold harmless, defend,and
indemnify Tenant from, and to assume all duties, responsibilities and liabilities at the sole
cost and expense of Landlord for, payment of penalties, sanctions, forfeitures, losses, costs
or damages, and for responding to any Claims, to the extent arising from subsurface or
Hazardous Materialsprior to the
CommencementDate of this Leaseor from such contamination caused by the acts or
omissions of the Landlord during the Term. Tenant agrees to hold harmless, defend,and
indemnify Landlord from, and to assume all duties, responsibilities and liabilities at the
sole cost and expense of Tenant for, payment of penalties, sanctions, forfeitures, losses,
costs,or damages, and for responding to any Claims, to the extent arising from Hazardous
MaterialsFor the purposes of this Lease
Hazardous Materialsshall be interpreted broadly and specifically includes, without
limitation, asbestos, fuel, batteries or any hazardous substance, waste, or material as
defined in any federal, state or local environmental or safety laws or regulation including,
11
but not limited to the Comprehensive Environmental Response, Compensation and
Liability Act(CERCLA).As long as it complies with applicable Laws, Tenant shall have
the right to keep standard quantities of batteries on the Leased Premises to provide backup
power toits Antenna Facilities.
c.. Tenant represents and warrants that the use of the Leased Premises will
notgenerate,and Tenant will not store or dispose of on the LeasedPremises, nor transport
to or over the Leased Premises, any Hazardous Materialsin violation of applicable laws,
unless Tenant specifically informs Landlord thereof in writing twenty-four (24) hours prior
to such storage, disposal,or transport, or otherwise as soon as Tenant becomes aware of
the existence of Hazardous Material on the Leased Premises.Tenant shall provide initial
and annual updates of Material Safety Datasheets (MSD) on all hazardous materials that
are part of, or necessary to, the operation of the Antenna Facilitiesand maintenance thereof.
Tenant warrants that no hazardous material supplies used in routine maintenance and or
repair will be stored on the Leased Premises. The obligations of this paragraph 11(c) shall
survive the expiration or other termination of this Lease.
d.
ses or
leasing or
continued leasing of the Leased Premises would expose Tenant to undue risks of liability to
a government agency or third party, Tenant will have the right, inaddition to any other
rights it may have at law or in equity, to terminate this Lease upon written notice to
Landlord.
12.Insurance.
a.Landlord Obligations
cost and expense, the following insurance coverage Commercial General Liability of not
less than $1,000,000 per occurrence and $2,000,000 aggregate. All such policies shall be
endorsed to include Tenant as an additional insured. Subject to the policy minimums set
forth above in this Section 10.1, the insurance required of Landlord hereunder may be
maintained by a blanket or master policy that includes properties other than the Property
-insurance program.
b.Tenant Obligations
insurance with such limits as required by Applicable Law; and (iii) Commercial General
Liability with a minimum limit of $1,000,000 per occurrence and $2,000,000 aggregate.
All such policies shall be endorsed to include Landlord as additional insured.
c.Insurance Requirements. All policies required by this Section 10 shall be issued by insurers
that are (1) licensed to do business in the state in which the Property and/or Structureare
located, and (2) rated A-
12
d.Waiver of Subrogation. To the fullest extent permitted by law, Landlord and Tenant for
themselves and any and all parties claiming under or through them, including, without
limitation, their respective insurers, hereby mutually release and discharge each other and
the othe
employees, contractors, and/or any other person or entity for whom a Party is legally
responsible from any claims for damage to any person or to the Premises or any other real
or personal property that are or are claimed to have been caused by or result from risks
insured against under any insurance policies carried by the waiving party and in force at
the time of such damage and hereby waive any right of subrogation that might otherwise
exist in or accrue to any person on account thereof. All policies required to be carried by
either Party herein shall contain an endorsement in favor of the other Party waiving the
. THIS RELEASE
SHALL APPLY EVEN IF THE LOSS OR DAMAGE IS CAUSED BY THE FAULT OR
NEGLIGENCE OF A PARTY HERETO OR BY ANY PERSON FOR WHICH SUCH
PARTY IS RESPONSIBLE. EACH PARTY AGREES TO NOTIFY ITS INSURANCE
CARRIER(S) OF THIS PROVISION.
13.Damage or Destruction.Any damage done to the Leased Premises or other Landlord property
including the Structure during installation or during operations caused by Tenant or its
employees or contractors sixty (60)days after
remain the exclusive property of the Tenant, unless otherwise provided in this Lease.
If the Leased Premises is destroyed or damaged, without contributory fault of the Tenant or its
may elect to terminate this Lease upon thirty (30)days written notice to Landlord.
14.Defaultand Right to Cure.The following will be deemed a default by Tenantand a breach
of this Lease: i) non-payment of Rent if such Rent remains unpaid for more than sixty (60)
days after written notice from Landlord of such failure to pay; or ii) failure to reimburse
Landlord for expensesas required in this Lease within sixty (60)days after written notice
thereof by Landlord or iii) Tenant's failure to perform any other term or condition under this
Leasewithin sixty (60)days after written notice from Landlord specifying the failure. No such
failure, however, will be deemedtoexist with respect to any non-monetary default ifTenant
has commencedtocure such default within such period and providedthatsuch efforts are
prosecutedtocompletion with reasonable diligence. Delay in curing a default will be excused
if due to causes beyond the reasonable control of Tenant. If Tenant remains in default beyond
any applicable cure period, Landlord will have the right terminate this Lease upon written
notice to Tenant and to exercise any and all rights and remedies available to it under law and
equity.
The following will be deemed a defaultby Landlord and
failure to provide access to the Leased Premises as required by this Lease within twenty-four
problem asrequired by this Lease within twenty-four (24) hours after written notice of such
failure;or iii) Landlord's failure to perform any term, condition or breach of any warranty or
13
covenant under this Lease within sixty (60)days of written notice from Tenant specifying the
failure. No such failure, however, will be deemed to exist if Landlord has commenced to cure
the default within such period and provided such efforts are prosecuted to completion with
reasonable diligence. Delay in curing a default will be excused if due to causes beyond the
reasonable control of Landlord. If Landlord remains in default beyond any applicable cure
period, Tenant will havethe right to
cure from any monies due to Landlord from Tenant, and ii) exercise any and all other rights
available to it under law andequity.
NOTWITHSTANDING ANYTHING IN THIS LEASE TO THE CONTRARY,
NEITHER PARTY NOR ANY OF ITS AGENTS, CONTRACTORS OR EMPLOYEES,
SHALL BE LIABLE TO THE OTHER PARTY OR ANY PERSON CLAIMING
THROUGH THAT PARTY FOR ANY EXEMPLARY, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES FOR ANY CAUSE WHATSOEVER.
15.Lease Termination.
a.Events of Termination.This Lease may be terminated by either party upon sixty (60)days
written notice to the other party,providedin accordance with Paragraph 25, Notices, of
this Lease, as follows:
i.By either party upon adefault of any covenant or term hereof by the other
party, which default is not cured with in sixty (60)days of receipt of written
notice of default to the other party; provided, however that the 60-day period
shall be extended so long as the party commences to cure the default and
diligently proceeds to cure the default(without, however, limiting any other
rights of the Parties pursuant to any other provision hereof); or
ii.By Tenant if it is unable to obtain or maintain any Governmental Approval
necessary for the construction and/or operation of the Antenna Facilities or
Tenants business; or
iii.By Tenantifthe Leased Premises are or become unusable under Tenants
design or engineering specifications for its Antenna Facilities, or the
communications system to which the Antenna Facilities belong or for
technological reasons including without limitation shadowing or
interference under TenantsAntennaFacilities; or
iv.By Landlord ifan independent engineer engaged by Landlord determines
that the Structure is structurally unsound, including, but not limited to,
consideration of age of Structure, damage or destruction of all or part of the
Structure on the Leased Premises from any source or factors relating to
condition of the Leased Premisesand Landlord or Tenant elects not to make
any necessary repairs; or
14
v.Uponsix(6y Landlord to Tenant if its
Council decides, for any reason, to redevelop the Leased Premises;or
vi.
Council decides, for any reason, to relocate the Structureor discontinue use
of the Structure on the Leased Premises;
vii.By Landlord, upon six(6ifan engineering studydetermines
that a potential user with a higher priority userunder subparagraph 5(a) above
cannot find another adequate location, or upon sixty (60)
daysnotice if the Antenna Facilities unreasonably interfere with another user,
£ ³§ ³ ¨³¤±¥¤±¤¢¤ ¢ ®³ ¡¤ ±¤ ²® ¡«¸ ¡ ³¤£regardless of whether or
not such an interference was predicted in the initial interference study that was
part of the application processfollowing written notice to Tenant of such
interference and after expiration of a thirty (30) day cure period provided that
Antenna Facilities or the portion thereof causing the interference until such
cure is completed.)¥ , £«®±£ ²¤¤ª² ³® ³¤±¬¨ ³¤ ³§¨² ,¤ ²¤ ¯´±²´ ³ ³®
³§¨² ²´¡¯ ± ¦± ¯§ ΐΔ Ȩµ¨ȩ £´¤ ³® ¯±¨®±¨³¸ ´²¤± ¤¤£ ±¤« ³¤£ ³® ¯´¡«¨¢
² ¥¤³¸Ǿ ³§¤ ³§¨² ,¤ ²¤ ¬ ¸ ¡¤ ³¤±¬¨ ³¤£ ¡¸ , £«®±£ ¶¨³§®´³ ¥´±³§¤±
®¡«¨¦ ³¨® ³® 4¤ ³ȁ )¥ , £«®±£ ²¤¤ª² ³® ³¤±¬¨ ³¤ ³§¨² ,¤ ²¤ ¯´±²´ ³
¯´¡«¨¢ ² ¥¤³¸Ǿ ³§¤ ¡¤¥®±¤ ³¤±¬¨ ³¨¦ ³§¨² ,¤ ²¤ ¯´±²´ ³ ³® ³§¨²
²´¡¯ ± ¦± ¯§ ΐΔ Ȩµ¨ȩǾ , £«®±£ ²§ «« ¬ ª¤ «« ±¤ ²® ¡«¤ ¤¥¥®±³² ³®
±± ¦¤ ¯« ¢¤¬¤³ ®¥ ³§¤ ¯±¨®±¨³¸ ´²¤± ¨ ¶ ¸ ¶§¨¢§ ¶¨«« ®³ ¤¢¤²²¨³ ³¤
³§¤ ±¤¬®µ « ®¥ 4¤ ³ ®± ³¤±¬¨ ³¨® ®¥ ³§¨² ,¤ ²¤ȁ )¥ , £«®±£ ¨² ´ ¡«¤
³® ±± ¦¤ ¥®± ¬´³´ « ¯« ¢¤¬¤³ ®¥ 4¤ ³ £ ³§¤ ¯±¨®±¨³¸ ´²¤± ´±¤« ³¤£
³® ¯´¡«¨¢ ² ¥¤³¸Ǿ , £«®±£ ¬ ¸ ³¤±¬¨ ³¤ ³§¨² ,¤ ²¤ ¯´±²´ ³ ³® ³§¨²
²´¡¯ ± ¦± ¯§ ΐΔ Ȩµ¨ȩǾ ¡´³ , £«®±£ ²§ «« ®³ ³ ¸ ³¨¬¤ ®µ¤± ³§¤ ¡ « ¢¤
®¥ ³§¤ ³§¤ ¤·¨²³¨¦ 4¤±¬ £ «« ´¤·¯¨±¤£ 2¤¤¶ « 4¤±¬²Ǿ «¤ ²¤ ³§¤
,¤ ²¤£ 0±¤¬¨²¤² ³® ®³§¤± ¯ ±³¸ ¶¨³§ ¤°´ « ®± «¤²²¤± ¯±¨®±¨³¸ ¥®± ³§¤
£®¢´¬¤³¤£ ±¤«®¢ ³¨® ¢®²³² ®± ±¤¨¬¡´±²¤ ³§¤ ¬®²³ ±¤¢¤³ ²¨· ¬®³§² ®¥
±¤³ ¢®««¤¢³¤£ ¥±®¬ 4¤ ³Ǿ ¶§¨¢§¤µ¤± ¨² «¤²²; or
µ¨¨¨ȁ"¸ , £«®±£ ¨¥ ¨³ ±¤ ²® ¡«¸ £¤³¤±¬¨¤² ³§ ³ 4¤ ³ § ² ¥ ¨«¤£ ³® ¢®¬¯«¸
¶¨³§ ¯¯«¨¢ ¡«¤ ®±£¨ ¢¤² ®± ²³ ³¤ ®± ¥¤£¤± « « ¶Ǿ ®± ¸ ¢®£¨³¨®²
³³ ¢§¤£ ³® ¦®µ¤±¬¤³ ¯¯±®µ «² ¦± ³¤£ ³§¤±¤´£¤±following written
notice to Tenant of such failure and after expiration of a thirty (30) day cure
period, except that this Lease shall not be terminated if the failure cannot
reasonably be cured within such thirty (30) day period and the Tenant has
commenced to cure the failure within such thirty (30) day period and
diligently pursues the cure to completion.
b.Notice of Termination. In accordancewith Paragraph 25, Notices, the parties shall give
notice of termination in writing by certified mail, return receipt requested. Such notice shall
15
be effective upon receipt as evidenced by the return receipt. Except as set forth herein, all.
AllRentpaid for the Lease prior to said termination date shall be retained by Landlord.
c.Tenants Liability for Early Termination. If Tenant terminates this Lease other than
pursuant to arightof termination provided in this Lease, Landlord shall have all rights and
remedies at law and in equity as provided in the Lease.
d.Site Restoration.Within one hundred twenty (120) days following the expiration or earlier
terminationof this Lease,Tenant shallremove its Antenna Facilities and related equipment
from the Leased Premises, repair the site and restore the surface of the Structureto the
condition existing prior to installation of such facilities, reasonable wear and tear excepted.
Should this situation occur during the winter season, the one hundred twenty-day
restoration period shall commence at the start of weather permissible to allow the quality
of workmanship as reasonably determined by the Landlord and conclude within a time
period as reasonably determined by the Landlord. In the event that Tenants Antenna
Facilities and related equipment are not removed within one hundred twenty (120) days
following the termination, they shall be deemed abandoned and become the property of the
Landlord, and Tenant shall have no further rights thereto. In the event that Tenants
AntennaFacilities, and related equipment are not removed to the reasonable satisfaction of
the Landlord, the Landlord shall have the option to take the following actions:
i.Fully decommission the AntennaFacilities, have the AntennaFacilities
removed, and repair the site and restore the property, and bill the Tenant for the
cost of such actions,after first applying any escrow fund,
required by paragraph 2(d),with the Landlord. If Landlordremoves the Antenna
Facilities or related equipment, Landlord must give written notice to anyknown
mortgagee of Tenant at the addresses provided, informing them that Antenna
Facilities or related property have been removed and will be deemed abandoned
ifnot claimed and the storage fees and other reasonable costs paid within sixty
(60)days;or
ii.Take full ownership of the AntennaFacilities.
This provision shall survive the termination of this Lease.
16.Limitation of Landlords Liability. If Landlord terminates this Lease other than pursuant to
a right of termination provided in this Lease, or Landlord causes interruption of the business
of Tenant, or for any other Landlord breach of this Lease, Landlords liability for damages to
Tenant shall be limited to the actual and direct costs of the replacement of this site in Tenants
networkincluding, withoutlimitation,equipmentremoval,relocationor repair,andallcost
associatedwith the identificationof anewsiteforTenantsreplacementcommunications
facility,the negotiationof itspurchaseor lease,applyingforanynecessarygovernmental
approvals,andthe costof constructinganewantennasupport structure,including without
limitation,surveys,designs,foundation,steel,anderectionof the structureandsupporting
facilities, but not including any recovery for special, consequential or incidental damages or
16
for value of the business of Tenant as a going concern, future expectation of profits, loss of
business or profit or related damage to Tenant.
17.Temporary Interruptions of Service. If Landlord reasonably determines that continued
operation of the Antenna Facilities would cause or contribute to an immediate threat
to public health and/or safety (except for any issues associated with human exposure to radio
frequency emissions, which is regulated by the federal government), Landlord may order
Tenant to discontinue itsoperation. Tenant shall immediately comply with such order. Service
shall be discontinued only for the period that the immediate threat exists. Landlord shall not
be liable to Tenant or any other party for any interruption in Tenants service or interference
with Tenants operation of its Antenna Facilities except as may be caused by the negligence or
willful misconduct of the Landlord, its employees or agents. If the discontinuance extends for
a period great than three (3) days, either consecutively or cumulatively, Tenant shall have the
right to install atemporary transmission and reception facility on Las
approved by Landlord, which approval shall not be unreasonably withheld, conditioned or
delayed, or to terminate this Lease within its sole discretion for cause and without payment of
a termination fee. Further, Tenant shall be entitled to a reimbursement of prepaid rent covering
the period subsequent to the date of service discontinuance.
18.Tenant Interference.
a.With Structure.In the performance of its approved useof the Antenna Facilities, 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 so as to avoid conflictingwith the use of
the surrounding premises by Landlord. Tenant shall not interfere with Landlords use of
theStructure and agrees to cease all such actions that unreasonably and materially interfere
with Landlords use thereof no later than three (3) business days after receipt of written
notice of the interference from Landlord. In the event that Tenants cessation of action is
material to Tenants use of the Leased Premises and such cessation frustrates Tenants use
of the Leased Premises, within Tenants sole discretion, Tenant shall have the immediate
right to terminate this Lease for cause and without paymentof a termination fee. Further,
Tenant shall be entitled to a reimbursement of prepaid rent covering the period subsequent
to the date of interference from Landlord.
b.With Higher Priority Users. If Tenants Antenna Facilities cause impermissible
interference with higher priority users as set forth under subparagraph 5(a) above,Tenant
shall take all measures necessary to correct and eliminate the interference. If the
interference cannot be eliminated withinseventy-two (72)hours after receiving Landlords
written notice of the interference, Tenant shall immediately cease operating its Antenna
Facilities and shall not reactivate operation, except intermittent operation for the purpose
of testing, until the interference has been eliminated. If the interference cannot be
eliminated with thirty(30) days after Tenant receivesLandlords written notice, either
partymay at its option terminate this Lease immediately.Notwithstanding the foregoing,
Landlord may not terminate the Lease if Tenant commences to eliminate the interference
within such sixty (60) day period and proceeds with due diligence to eliminate the
interference.
17
c.Interference StudyforNew Occupants. Upon written notice by Landlord that it has a bona
fide request from any other party to lease anfor the
purposes of installing and operating antenna and related communications equipment,
Tenant shall provide to Landlord within sixty (60) days the radio frequencies currently in
operation or anticipated by Tenant to be operated in the future of each transmitter and
receiver installed and operational on the Leased Premises at the time of such request.
Landlord may then have an independent, registered professional engineer of Landlords
choosing perform the necessary interference studies to determine if the new applicants
frequencies will cause harmful radio interference to Tenant. Landlord shall require the
potential new tenantto pay for such interference studies.
d.NoInterference byNew Occupants. Landlord agrees that it will not grant a future leasefor
Propertyto any party who is of equal or lower priority to
Tenant, if such partys use is reasonably anticipated to interfere with Tenants operation of
its Antenna Facilities. Landlord agrees further that any future lease of
will prohibit a user of equal or lower priority from interfering with Tenants Antenna
Facilities. Landlord agrees that it will require any subsequent occupants of
Propertyof 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 operation of the Antenna Facilities causedby such subsequent occupants.If such
interference is not eliminated, Tenant shall have the right to terminate this Lease or seek
injunctive relief against the interferingoccupantor exercise any other rights and remedies
available to Tenant at law or in equity, at Tenants expense.
19.Noise. All Antenna Facilitiesshall be constructed and operated in such a manner as to minimize
the amount of noise impacts to residents of nearby homes and the users of recreational areas,
such as public parks and trails. Noise attenuation measures shall be requiredfor all air-
conditioning units. Backup generators shall only be operated during power outages and for
testing and maintenance purposes. At any time, noise attenuation measures may be required
by the Landlordwhen deemed necessary. Testing and maintenance activities of Antenna
Facilitieswhich generate audible noise shall occur between the hours of seven a.m.(7:00a.m.)
and four p.m. (4:00p.m.), weekdays (Monday through Friday, non-holiday) excluding
emergency repairs, unless allowed at other times by theLandlord. Testing and maintenance
activities that do not generate audible noise may occur at any time, unless otherwise restricted
by the Landlord.
20.Installation of a Generator.Tenant shall not install or place any generator on
Property without Landlords prior written approval, which approval shall not be unreasonably
withheld, conditioned or delayed. Notwithstanding the foregoing, Tenant shall be permitted to
place an emergency generator within its Leased Premises for a period up to seven (7)days in
the event of a power failure to the Antenna Facilities. In the event that Landlord grants approval
for the placement of a generator on Property, or Tenant is permitted to place a
generator within its Leased Premises due to an emergency power failure, Tenant agrees to
maintain or repair any such generator within its Leased Premises, as located on Exhibit B.
Tenant further agrees that Landlord may limit the noise level at Property which
18
may prohibit the use of the generator and that the installation of any generator must fall within
the noise level limits set by Landlord. In the event that Tenant exceeds the noise level set forth
by Landlord, Tenant shall take all such steps requested by Landlord to reduce the sound levels
to the level approved by Landlord, including, but not limited to, installing additional mufflers,
or any other requirements that may be requested by Landlord, including but not limited to
ceasing all operations of the generator. All sound reduction measures requested by Landlord
shall be performed at Tenants sole cost and expense. If Tenant fails to comply with Landlords
proposed sound reduction measureswithin fifteen (15) days after receipt of written notice from
Landlord, Tenant shall be deemed in default hereunder. Tenant shall further repair any and all
damage caused by the use of the generator upon Property.
21.Assignment. This Lease, or rights there under, may not be sold, assigned, or transferred at any
time by Tenant,exceptto TenantsAffiliates,without the prior written consent of the Landlord,
whose consent shall not be unreasonably withheld. For purposes of this paragraph, an
Affiliatemeans an entity that controls, is controlled by or under common control with
Tenant.Landlord hereby consents to the assignment by Tenant of its rights under this Lease as
collateral to any entity that provides financing for the purchase of equipment used by Tenant
in connection with the provision of wireless telecommunication services. Landlord may freely
assign this Lease in full without Tenants consent; provided, however, any such sale,
assignment or transfer will be subject to this Lease.If Landlord assigns this Lease, Landlord
shall provide Tenant with notice of the assignment and the identity of the assignee(the
Assignee, and Tenant agrees to accept said Assignee, attorn to said Assignee and release
Landlord of its obligations under this Lease and accept Assignee as Landlord under this Lease.
22.Condemnation. In the event the whole of the Leased Premises is taken by eminent domain,
this Lease shall terminate as of the date title to the Leased Premises vests in the condemning
authority. In the event a portion of the Leased Premises is taken by eminent domain, either
party shall have the right to terminate this Lease as of the said date of title transfer, by giving
ninety(90) days written notice to the other party. In the event of ataking under the power of
eminent domain, Tenant shall not be entitled to any portion of the awardpaid for the taking
and the Landlord shall receive thefull amount of such award. Tenant hereby expressly waives
any right or claim to any portion thereof. Although all damages, where awarded as
compensation for diminution value in 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 the Landlord, such compensation as may be separately awarded or
recoverable by Tenant on account of any and all damage toTenants business and any costs or
expenses incurred by Tenant in moving/removing its equipment, personal property, Antenna
Facilities and leasehold improvements.
23.Disputes.In the event any claim, controversy or dispute arising out of this Lease not resolved
within thirty (30)days following notice of the dispute the parties shall in good faith first engage
in face-to-face negotiations to resolve such claim, controversy or dispute. If the parties are
unable to resolve the matter following face-to-face negotiations, it shall be submitted first and
promptly to mediation. Each party shall bear its own cost of mediation. If mediation does not
result in settlement within forty-five (45) days after the matter was submitted to mediation,
either party may file a claim in AnokaCounty District Court.
19
24.Enforcement and AttorneysFees. In the event that either party to this Lease shall bring a
claim inAnokaCounty District Court to enforce any rights hereunder, the prevailing party
shall be entitled to recover costsand reasonable attorneysfees and other reasonable
enforcement costsand expenses incurred as a result to such claim.
25.Notices. All notices, except those required by Section 5(d) relating to notice of Substitutions,
hereunder must be in writing and shall be deemed validly given ifand whensent by certified
mail, return receipt requested, or by courier services, addressed as follows (or any other address
that the party to be notified may have designated to the senderby like notice):
If to Landlord:City of Fridley
CityManager
7071University Avenue NE
Fridley, MN 55432
With a copy to:Kennedy & Graven,Chartered
Attn:Fridley City Attorney
150 South Fifth Street, Suite 700
Minneapolis, MN 55402
If to Tenant:
DISH Wireless L.L.C.
Attn:LeaseAdmin
5701 S. Sante Fe Dr.
Littleton, CO 80120
With a copy to:
DISH Network
Attn: Wireless Legal Dept. 9601
S.Meridian Blvd. Englewood,
CO 80112
26.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 respective Parties.
27.Binding Effect. This Lease shall run with . This Lease shall extend to and
bind the heirs, personal representatives, successors and assigns of the parties hereto.
28.Complete Lease; Amendments. This Lease constitutes the entire agreement and
understanding of the parties and supersedes all offers, negotiation, and other agreements of any
kind. There are no representations or understandings of any kind not set forth herein. Any
20
modification of or amendment to this Lease must be in writing and executed by both parties
hereto. The Exhibits heretoare incorporated into this Lease by reference.
29.Governing Law. This lease shall be construed in accordance with the laws of the State of
Minnesota.
30.Severability.If any term of this Lease is found to be void or invalid, such invalidity shall not
affect the remaining terms of this Lease, which shall continue in full force and effect.
31.Memorandum. Upon request by either party, the parties agree topromptly execute and deliver
a recordable Memorandum of Leasein substantially the same form as found in the attached
Exhibit D.
32.Counterparts. This Lease may be signed in counterpart by the parties hereto, each of which
shall be deemed an original, but all of which,when taken together, shall constitute a single
instrument.
33.Cooperation. The parties hereby agree to cooperate with each other and their authorized
representatives regarding any reasonable request made subsequent to execution of this Lease,
to correct any clerical errors contained in this Lease and to provide any and all additional
documentation deemed necessary by either party to effectuate the transaction contemplated by
this Lease. The parties further agree that tocooperateas used in this Lease includes but is
not limited to, the agreement by the parties to execute or re-execute any documents that either
party reasonably deems necessary and desirable to carry out the intent to this Lease.
34.Subordination and Non-Disturbance.
Mortgage
by Landlord which, from time to time, may encumber all or part of the Property; provided,
however, the lender under every such Mortgage shall, in the event of a foreclosure of
occupancy of and have access to the Leased Premises, as long as no Event of Default by Tenant
exists under this Agreement. If the Property is encumbered by a Mortgage as of the Effective
a non-disturbance agreement, in recordable form, for each such Mortgage. If Landlord defaults
in any payment or other performance obligations under any Mortgage encumbering the
Property, Tenant may, at its option (but without any obligation), cure or correct such default
and, upon doing so, Tenant: (a) shall be subrogated to any and all rights, titles, liens, and/or
equities of the holders of such Mortgage; and (b) may offset the full amount against any Rent
or other amount owed by Tenant to Landlord under this Agreement.
35.Force Majeure.Notwithstanding anything to the contrary in this Agreement, neither Party
shall be liable to the other Party for nonperformance or delay in performance of any of its
obligations under this Agreement due to causes beyond its reasonable control, including,
without limitation, strikes, lockouts, pandemics, labor troubles, acts of God, accidents,
technical failure governmental restrictions, insurrections, riots, enemy act, war, civil
commotion, fire, explosion, flood, windstorm, earthquake, natural disaster or other casualty
21
Force Majeureon the occurrence of a Force Majeure condition, the affected Party
shall immediately notify the other Party with as much detail as possible and shall promptly
inform the other Party of any further developments. Immediately after the Force Majeure event
isremoved or abates, the affected Party shall perform such obligations with all due speed.
Neither Party shall be deemed in default of this Agreement to the extent that a delay or other
breach is due to or related to a Force Majeure event. A proportion of the Rent herein reserved,
according to the extent that such Force Majeure event shall interfere with the full enjoyment
and use of the Premises, shall be suspended and abated from the date of commencement of
such Force Majeure event until the date that such Force Majeure event subsides. If such Force
Majeure event prevents the affected Party from performing its obligations under this
Agreement, in whole or in part, for a period of forty-five (45) or more days, then the other
Party may terminate this Agreementimmediately upon Notice to the affected Party.
36.Rights Upon Sale of Property or Structure. Should Landlord, at any time during the Term,
sell or transfer all or any part of the Property or the Structure to a purchaser other than Tenant,
such transfer shall be subject to this Agreement and Landlord shall require any such purchaser
instrument signed by Landlord and the third party transferee. If Landlord completes any such
transfer without executing such a written instrument, then Landlord shall not be released from
its obligations to Tenant under this Agreement, and Tenant shall have the right to look to
Landlord and the third party for the full performance of this Agreement. In addition to, and
not in limitation of the preceding, in the event the Landlord sells or transfers either its rights in
payments) derived from the Premises under this Agreement, in either case separate from the
underlying Structure and/or Property, to any third party who is not an Affiliate of Landlord,
then prior to any such sale or transfer Landlord shall first provide Tenant with a right of first
refusal (ROFRIn order to evaluate the terms and
conditionsoffered to Landlord by such third party Landlord shall provide Tenant with a full,
complete and unredacted copy thereof and Tenant shall have thirty (30) days from receipt
th
the same terms and conditions as offered to Landlord by such third party (except as may be
mutually agreed upon to the contrary).
(The remainder of this page was intentionally left blank.)
22
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed onthe date
and year writtenbeloweffective as of the Effective Date.
LANDLORD
CITY OF FRIDLEY
CITY OF FRIDLEY
By:_____________________________
Scott Lund
Its Mayor
By:_____________________________
Walter Wysopal
Its City Manager
STATE OF MINNESOTA)
)ss.
COUNTY OF ANOKA)
Onthis ___ day of __________, 20__, before me a Notary Public within and for said
County, personally appeared Scott Lundand Walter Wysopal, to me personally known, who being
each by me duly sworn, each did say that they are respectively the Mayor and City Managerof the
City of Fridley, the municipality named in the foregoing instrument, and that the seal affixed to
said instrument was signed and sealed on behalf of said municipality by authority of its City
Council and said Mayor and City Manageracknowledged said instrument to be the free act and
deed of said municipality.
_____________________________________
Notary Public
ACKNOWLEDGEMENTS CONTINUE ON THE FOLLOWING PAGE.
23
TENANT
DISH Wireless, L.L.C.
By:
Name:
Title:
Date:
STATE OF ____________)
) ss.
COUNTY OF ___________)
On this _____ day of ___________, 20___, before me a Notary Public within and for said County,
personally appeared ___________,to me personally known, who being by me duly sworn, did say
that he/sheis the _______________ofDISH Wireless, L.L.C., a Coloradolimited liability company,
the Tenant named in the attached instrument, and as such was authorized to execute this instrument
on behalf of thesaid company.
Notary Public
24
LIST OF EXHIBITS
Legal Description of Property
Leased Premises
Antenna Facilities
Rent Schedule
Memorandum of Lease
25
Exhibit A
Legal Description of Property
Real property in AnokaCounty, Minnesota, legally described as follows:
26
Exhibit B
Leased Premises
To the Site Lease dated ______________________, ____________, 20_____, by and between the City of
Fridley, Minnesota, a Minnesota municipal corporation, as Landlord, Dish Wireless L.L.C.,aColorado
limited liability company,as Tenant.
The Leased Premises is legally described as follows:
27
Exhibit C
Antenna Facilities
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
Exhibit D
Rent Schedule
Calendar YearAnnual Rent
IfRene
IfRenewed:
IfRenewed:
IfRenewed:
Listed rent increases shall occur automatically without notice.
49
Exhibit E
Memorandum of Lease
50
MEMORANDUMOFLEASE
(s):____________________________
ASITE LEASE AGREEMENT dated ____________________, 20___ (collectively, the
LeaseCity of Fridley
and____________________________,a____________
was made regarding a portion of the following property:
See attached Exhibit A incorporated herein for all purposes
The Lease isfor a termthatiscurrentlyscheduledtoexpire on_____________,20__.Tenant
shall have the right to extend the Lease forfour (4) additional and successive five(5)-year terms.
INWITNESS WHEREOF, the parties hereto have executed this memorandum.
LANDLORD: City of Fridley
By:
Printed Name:Scott J. Lund
Title:Mayor
Date:
LANDLORD:City of Fridley
By:
Printed Name:WalterWysopal
Title:City Manager
Date:
TENANT:
By:
Printed Name:
Title:
Date:
51
STATE OF MINNESOTA)
)ss.
COUNTY OF ANOKA)
On this ___ day of __________, 20___, before me a Notary Public within and for said
County, personally appeared Scott Lund and Walter Wysopal, to me personally known, who being
each by me duly sworn, each did say that they are respectively the Mayor and City Manager of the
City of Fridley, the municipality named in the foregoing instrument, and that the seal affixed to
said instrument was signed and sealed on behalf of said municipality by authority of its City
Council and said Mayor and City Manager acknowledged said instrument to be the free act and
deed of said municipality.
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
52
STATE OF ____________________ )
) ss.
COUNTY OF __________________ )
This instrument was acknowledged before me by ______________,the
____________________________of, alimited liability
company, for and on behalf of said entity.
Dated: ________________________
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
53
Memorandum of LeaseAExhibit A
Legal Description
(s): _________________________
TheProperty is legally describedas follows:
54