HomeMy WebLinkAbout3E - Water Tower Leases
WATER TOWER LEASE AGREEMENT
This Water Tower Lease Agreement ("this Lease") is entered into
this day of 1990, by and between the City of
Prior Lake, a Minnesota Municipal corporation ("Lessor") and
Minnea~olis SMSA Limited Partnership by US WEST NewVector Group,
Inc., 1ts General Partner ("Lessee").
In consideration of the terms and conditions of this agreement,
the parties agree as follows:
1) Leased Premises. Subject to the terms and conditions of this
Lease, Lessor leases to Lessee certain space on Lessor's water
tower located at 4741 Tower Street SE, square feet of ground
space for an equipment building adjacen~to the reservoir and
certain other property (collectively referred to as the
"Premises"). The property is legall~ described in Exhibit A
attached hereto (the "Property"), subJect to any and all existing
easements.
2) Term: Renewals: The term of this Lease shall be five (5)
years, commencing on (the "Commencement Daten)
and ending December 31, 1995. Lessee shall have the right to
extend this Lease for four (4) additional five-year renewal terms
subject to all of the terms and conditions of this lease. This
Lease shall automatically be renewed for each successive renewal
term unless one of the following events occurs: 1) Lessee
notifies Lessor of Lessee's intention not to renew the Lease at
least sixty (60) days prior to the expiration of the initial
term or any renewal term; or 2) Lessor notifies Lessee of
Lessor's intention not to renew the lease at least sixty (60)
days prior to the expiration of the initial term or any renewal
term. 3) Lessee is not found to be in default of any of the terms
or conditions of the Lease. If either Lessor or Lessee gives such
notice to the other party, this Lease shall terminate 365 days
from the date said notice was given.
3) Rent 01 Upon the Commencement Date, the Lessee shall pay
Lessor, as rent, the following sum of seven hundred fifty
($750.00) per month (Rent) based upon Lessee's installation as
described in Exhibit B (Site Plan). The entire annual rent shall
be paid on January 3 of each year in advance for that lease year
that the lease is in force with the City of Prior Lake at
Lessor's address specified in ~aragraph 20 below. The initial
year shall include an addit10nal days of rent prorated from
the Commencement Date until 12/31/90:-
02) On the Commencement Date of the Lease, the Lessee
agrees to provide the Lessor the following supplementary
equipment, all of which are at the cost and expense of the
Lessee:
a) Three (3) Motorola Ultra portable telephones.
(Model # F09NFD8478AG)
b) Three (3) extra batteries.
c) Three (3) 12 volt adapters.
At the commencement date of each renewal term, the Lessee shall
replace, at Lessee's cost, the above described cellular
equipment with three (3) similar and cost effective telephones of
comparable value. Note: This is to be arranged in a side letter
agreement because of waiver of warranties.
03) The rent shall be increased annually by an amount
e9Ual to the increase in the Consumer Price Index (CPI) for the
M1nneapolis/st. Paul area as determined by the Minneapolis
Library Department of Economics, said annual increase not to
exceed 5%.
04) If this Lease is terminated at a time other than on
the last day of the month, Rent shall be prorated as of the date
of termination and, in the event of termination for any reason
other than nonpayment of rent, all prepaid Rents shall be
refunded to the Lessee. Said prorated Rent shall be that portion
of Rent for one calender year which the number of days in such
period bears to 365.
05) Lessee may not add additional equipment and/or
antennas from that shown on Exhibit C without the approval of the
Lessor, which approval shall not be unreasonably withheld or
delayed. Lessor may charge additional rent for additional
equipment or antennas from that shown on Exhibit C.
06) At least sixty (60) days prior to any five year
renewal term, Lessee shall provide Lessor with co~ies of all then
current leases for similar water towers with s1milar e9Uipment
installations by Lessee with other municipalities 1n the
metropolitan area. The Rent for the initial year of any
five-year renewal term shall be adjusted (increased or decreased)
to the highest adjusted Rent paid by Lessee to the Lessors of the
above current leases. In no event shall the Rent to the City of
Prior Lake be lower than Seven Hundred Fifty Dollars ($750.00)
per month.
4) Property Use. (01) Lessee may use the leased premises for
this installation, operation, and maintenance of facilities for
the transmission and reception of radio communication signals in
such frequencies as may be assigned to Lessee by the Federal
Communications commission (the "FCC") and for the storage of
related equipment in accordance with the terms of this Lease.
Lessee shall use the leased premises in compliance with all
federal, state, and local laws and regulations. Lessor agrees to
reasonably cooperate with Lessee in Obtaining, at Lessee's
expense, any federal licenses and permits required for Lessee's
use of the lease premises.
(02) Lessee shall have the right, at its sole cost and
expense, to install, oper~te, and maintain on the leased portions
of the Property the improvements which include a building to
house Lessee's equi~ment (the "Equipment Building"). Lessee shall
submit to Lessor 1ts plans for said improvements prior to
construction. All such improvements shall be constructed with the
Lessor's approval, such approval shall not be unreasonably
withheld. No such installation and/or construction shall
interfere with or damage the mechanical or electrical systems of
Lessor's Property. The Equipment Building and all equipment
stored or operated therein shall remain the exclusive property of
Lessee, subject to the provisions of Paragraph 15 of this Lease.
No equipment shall be stored on the Property outside of the
Equipment Building.
5) Building Construction Standards.
(01) The exterior finish of the building must be brick
or a material which simulates the appearance of a brick fascia.
Cedar and redwood would be considered acceptable alternatives.
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(02) A site Landscape Plan (Exhibit B) and Building
Construction Plan shall be submitted in accordance with City
policy and criteria and subject to the review and approval of the
city of Prior Lake before construction.
(03) Lessee's Antenna Facilities shall at all times be
painted, at Lessee's expense, the same color as the adjoining
elevated storage tank.
6) Installation of E
01 Lessee s a ave e r1g , a 1 s so e cost and
expense to install, operate, and maintain in accordance with good
engineering practices, with all applicable FCC rules and
regulations, on the leased portions of the Tower described in
Exhibit C attached hereto, all of the equi~ment, personal
property, and facilities which facilities 1nclude radio
transmitting and receiving antennas (the "Antenna Facilities").
(02) Lessee's installation of all such equipment,
personal property, and facilities shall be done according to
plans approved by Lessor, which approval shall not be
unreasonably withheld. AllY damage done to the Lessor's property
and/or water tower during installation and/or during operations
shall be repaired or replaced at Lessee's expense.
(03) Lessee shall provide Lessor with as-built drawings
of the equipment installed on the Tower and the im~rovements
installed on the property, which show the actual locat1on of all
equipment and improvements. Said drawings shall be accompanied
by a complete and detailed inventory of all equipment, personal
property, and Antenna Facilities actually placed on the Tower.
7) E~ipment Upgrade. Lessee may update or replace the Antenna
Facil1ties from time to time with the prior written approval of
Lessor, provided that the re~lacement facilities are not greater
in number than the exist1ng facilities and that any change in
their location on the leased portions of the Tower is reasonably
satisfactory to Lessor. Lessee shall submit to Lessor a detailed
proposal for any such replacement facilities and any supplemental
materials as may be reasonably requested, for Lessor's
evaluation and approval, which approval shall not be unreasonably
withheld.
8) Building Maintenance. (01) Lessee shall, at its own expense,
maintain Equipment Building and any equipment on or attached to
the premises in a safe condition, in <Jood repair and in a manner
suitable to Lessor so as not to confl1ct with the use of the
premises by Lessor. Lessee shall not unreasonably interfere
with the working use of the water storage facilities.
(02) Lessee shall have sole responsibility for the
maintenance, repair, and security of its e9Uipment, personal
property, Antenna Facilities, and leasehold 1mprovements, and
shall keep the same in good repair and condition during the Lease
term.
(03) Lessee must keep
rodents, vermin and anything of a
nature or which would create
heat or noise, etc.
the property free of debris,
dan~erous, noxious or offensive
a f1re hazard, undue vibration,
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(04) In the event the Lessor repaints its water tower,
it shall be the responsibility of the Lessee to provide ade9?ate
measures to cover the Lessee's building and protect such fac11ity
from paint and debris fallout which may occur during the paint
restoration process.
9) Property Access. (01) Lessee,
Lease, shall have vehicle ingress
and access to the Equipment Building
the existing roadway access.
(02) Lessee, at all time during this Lease,
access to the Property and the Equipment Building
install, operate, and maintain its transmission
Lessee shall have access to the Tower only with the
Lessor. Lessee shall request access to the Tower
(24) hours in advance, except in an emergency,
approval thereof shall not be unreasonably withheld.
at all times during this
and egress over the Property
and the Tower by means of
shall have
in order to
facilities.
approval of
twenty-four
and Lessor's
(03) Lessor shall be allowed and granted access to the
leased premises at reasonable times to examine and inspect the
leased premises for safety reasons or to ensure that the Lessee's
covenants are being met.
10) utilities. Lessee shall separately meter charges for the
consumption of electricity and other utilities associated with
its use of the leased premises and shall pay all costs associated
therewith.
11) Personal
improvements
property to
liability of
Property and
constructed on
be taxed for
said Lessee to
Real Estate Taxes. If any
the property should cause part
real estate purposes, it shall
pay such property taxes.
such
of the
be the
12) License Fees. Lessee shall pay, as the~ become due and
payable, all fees, charges and expenses requ1red for licenses
and/or permits required for Lessee's cellular use of the leased
premises.
13) Com~liance with statutes and Requlations. Lessee's Antenna
Facilit1es and building shall be erected, maintained and operated
in accordance with site standards, state statutes, rules and
regulations now in effect or that thereafter may be issued by the
FCC and related governing bodies.
14) Interference. Lessee's installation, operation, and
maintenance of its transmission facilities shall not damage or
interfere in ~ny way with Lessor's water tower operations or
related repa1r and maintenance activities. Lessor, at all time
during this Lease, reserves the right to take anr action it deems
necessary, in its sole discretion, to repair, ma1ntain, alter, or
improve the leased premises in connection with water tower
operations and to temporarily interfere with Lessee's
transmission operations, equipment, or Antenna Facilities as may
be necessary in order to carry out any of such activities. The
Lessor agrees to give reasonable advance notice of any such
activities to the Lessee and to reasonably cooperate with Lessee
to carry out such activities with a minimum amount of
interference with Lessee's transmission operations.
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Lessor in no way guarantees to Lessee noninterference with
Lessee's transmission operations, provided, however, that in the
event any other party requests permission to place any type of
additional antenna or transmission facility on the Tower or the
Property, the procedures of this paragraph 11 shall govern to
determine whether such antenna or transmission facility will
interfere with Lessee's transmission operations.
If Lessor receives anr such request, Lessor shall submit the
proposal complete w1th all technical specifications reasonably
requested by Lessee to Lessee for review for noninterference.
Lessee shall have thirty (30) days following receipt of said
proposal to make any objections thereto, and failure to make any
objection within said thirty (30) day period shall be deemed
consent by Lessee to the installation of antennas or transmission
facilities pursuant to said proposal. If Lessee gives notice of
objection due to interference during such 30 day period then
Lessor shall not proceed with such proposal.
In the event Lessee's transmission operations interfere with any
type of electronic reception or transmission of other parties in
the surrounding area Lessee agrees to remedy such interference in
accordance with the applicable regulations and standards of the
FCC. Lessee warrants that it shall maintain all of its Antenna
Facilities in full compliance with all applicable regulations of
the FCC.
15) Termination. Except as otherwise provided herein, this
Lease may be terminated by either one party upon sixty (60) days'
written notice of default to the other party as follows: (a) by
either party upon a default of any covenant or term hereof by the
other party, which default is not cured within sixty (60) days of
receipt of written notice of default to the other party (without,
however, limiting any other rights of the parties at law, in
equity, or pursuant to any other provisions hereof); (b) by
Lessee if it is unable to obtain or maintain any license,
permit, or other governmental approval necessary for the
construction and/or operation of the transmission facilities or
Lessee's business; (c) by Lessee if the pro~erty is or becomes
unacceptable under the Lessee's des1gn or engineering
specifications for its Antenna Facilities or the communications
systems to which the Antenna Facilities belong; (d) by Lessor if
the Prior Lake City Council decides, at its sole discretion and
for any reason, to redevelop the property and/or discontinue use
of the Tower for all purposes, or (e) by Lessor if it determines,
in its sole discretion and for any reasons, that the Tower is
structurally unsound for use as a water tower, including but not
limited to consideration of age of the structure, damage or
destruction of all or part of the Tower or the Property from any
source, or factors relating to condition of the property.
Upon termination of this Lease for any reason, Lessee shall
remove its equipment, personal property, Antenna Facilities, and
leasehold improvements from the Tower and the Property on or
before date of termination, and shall repair any damage to the
Tower and the Property caused by such equipment, normal wear and
tear excepted; all at Lessee's sole cost and expense. Any such
property which is not removed by the end of lease period shall
become the property of Lessor.
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16) Insurance. (01) Lessee shall provide Comprehensive General
Liability Insurance Coverage, including premises/operation
coverage, independent contractors liability, completed operations
coverage, and contractual liability coverage, in a combined
single limit of not less than Two Million Dollars ($2,000,000)
per occurrence, subject to Two Million Dollars ($2,000,000)
aggregate. Lessee may satisfy this requirement by underlying
insurance plus an umbrella policy.
(02) Neither party shall be liable to the other (or to
the others successors or assigns) for any loss or damages caused
by fire or any of the risks enumerated in a standard "All Risk"
insurance policy, and in the event of such insured loss, neither
party's insurance company shall have a subrogated claim against
the other.
(03) Lessee shall provide Lessor, prior to the
Commencement Date and before each renewal of the Lease term,
evidence of the required insurance in the form of a certificate
of insurance issued by an insurance company licensed to do
business in the state of Minnesota, which includes all coverage
required in Paragraph 8 (02) above. Lessee will name Lessor as
an additional insured on the certificate(s). Said certificate
shall also provide that the coverage may not be cancelled,
non-renewed, or materially changed without thirty (30) days'
prior written notice to Lessor.
17) Damaqe or Destruction. If the Property or the Tower
destroyed or damaged so as to hinder its effective use of
Antenna Facilities, Lessee mar elect to terminate this Lease
thirty (30) days' written not1ce to Lessor. In such event,
rights and obligations of the parties shall cease as of the
of the damage or destruction and Lessee shall be entitled to
reimbursement of any rent prepaid by Lessee.
18) Condemnation. In the event the whole of the Property is
taken by eminent domain, this Lease shall terminate as of the
date title to the Property vests in the condemning authority. In
event a portion of the Propertr is taken by eminent domain,
either party shall have the r1ght to terminate this Lease as of
said date of title transfer, by giving thirty (30) days' written
notice to the other party. In the event of any taking under the
power of eminent domain, Lessee shall not be entitled to any
portion of the reward paid for the taking and the Lessor shall
receive full amount of such award. Lessee shall hereby expressly
waive 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 Property, shall belong to
Lessor, Lessee shall have the right to claim and recover from the
condemning authority, but not from Lessor, such compensation as
may be separately awarded or recoverable by Lessee on account of
any and all damage to Lessee's business and any costs or expenses
incurred by Lessee in moving/removing its equipment, personal
property, Antenna Facilities, and leasehold improvements.
are
the
upon
all
date
the
19) Indemnification. Lessee agrees to indemnify, defend, and hold
harmless Lessor and its elected officials, officers, employees,
agents, and representatives, from and a9ainst any and all claims,
costs, losses, expenses, demands, act1ons, or causes of action,
including reasonable attorneys' fees and other costs and expenses
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of litigation, which may be asserted against or incurred by the
city or for which the city may be liable, which arise from the
negligence, willful misconduct, or other fault of Lessee or its
employees, agents, or subcontractors in the performance of this
Lease or from the installation, operation, use, maintenance,
repair, removal, or presence of Lessee's transmission facilities
on the Property and the Tower{ and specifically including the
representations and warrant1es of paragra~h 21 (02) of this
Lease, provided same is not due to the neg11gence or default of
Lessor.
If Lessee fails or neglects to defend such actions, Lessor may
defend the same and any expenses (includin<J reasonable attorneys'
fees) which it may payor incur in defend1ng said actions, as
well as the amount of any judgment or settlement which it may be
required to pay, shall promptly be reimbursed by Lessee.
20) Notices. All notices, requests, demands, and
communications hereunder shall be in writing and shall be
given if personally delivered or mailed, certified mail,
receipt requested, to the following addresses:
other
deemed
return
City of Prior Lake
4629 Dakota street SE
Prior Lake, MN 55372
Attention: City Manager
Minneapolis SMSA Limited Partnership
us WEST NewVector Group, Inc.
3350 161st Avenue SE
P.O. Box 7329
Bellvue, Washington 98008-1329
Attention: Real Estate Department
21) Representations and Warranties. (01) Lessor represents that
(a) it has full right, power, and authority to execute this
Lease; and (b) it has good and unencumbered title to the Property
free and clear of an~ liens or mortgages. Lessor warrants that
Lessee shall have qu1et enjoyment of the Property during the term
of this Lease in accordance with its terms. (c) Lessor warrants
that Lessee shall have quiet enjoyment of the Property during the
term of this lease or any renewal thereof, subject to the terms
of this Lease.
If to Lessor, to:
If to Lessee, to:
(02) Lessee represents and warrants that its use of the
Premises, herein, will not generate and it will not store or
dispose on the Premises nor transport to or over the Premises any
hazardous substance except as specifically described hereafter:
Lessee will locate one or more electrical storage batteries,
temporary diesel <Jenerator and related fuel on the Premises to be
used for power wh1ch may be constructed of or contain a hazardous
substance and further agrees to hold Lessor harmless from and
indemnify Lessor against any release of any such hazardous
substance and any damage, loss, or expense or liability resulting
from the breach of this representation or from the violation of
any state or federal law by such release including all attorneys
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fees, costs and penalties incurred as a result thereof except any
release caused by the negligence of Lessor, its employees or
agents. For purposes hereof, hazardous substance shall include,
but not be limited to, substances defined as "hazardous
substances", "hazardous materials" or "toxic substances" in the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, the Hazardous Materials Transportation
Act and the Resource Conservation and Recovery Act.
(03) Lessor represents and warrants to Lessee that
hazardous substances have not been generated, stored or disposed
of on the Property not have the samee been transported to or over
the Property. "Hazardous substance" shall be interpreted broadly
to mean any substance or material defined or designated as
hazardous or toxic waste, hazardous or toxic material, hazardous
or toxic or radioactive substance, or other similar term by any
federal, state or local environmental law, regulation or rule
presently in effect or promulgated in the future, as such laws,
regulations or rules may be amended from time to time; and shall
be interpreted to include, but not limited to, any substance
which after release into the environment will or may reasonably
be anticipated to cause sickness, death or disease. Lessor will
hold Lessee harmless from and indemnigy Lessee against and from
any damage, loss, expenses or liability resulting from any breach
of this representation and warranty including all attorneys' fees
and costs incurred as a result thereof.
22) Assignment. (01) Lessee may not assign or sublet this Lease
without the prior written consent of Lessor, which consent shall
not be unreasonably withheld or delayed. Not withstanding the
provisions of this paragraph, Lessee shall have the right,
without Lessor's consent, to assign this Lease to anr parent,
subsidiary or affiliate of Lessee or any corporation 1nto which
Lessee may be merged or consolidated or which purchases all or
substantially all of the assets of Lessee, as long as Lessee
remains obligated on the Lease. Any approved sublease that is
entered into by Lessee shall be subject to all of the provisions
of this Lease.
(02) The parties acknowledge that this is a nonexclusive
lease. Nothing in this Lease shall preclude Lessor from leasing
other space for communications equipment to any person or entity
which may be in competition with Lessee, or any other partr,
subject to ;the conditions set forth in paragraph 14 of th1S
Lease.
23) Successors and Assigns. This Lease shall run
Property described on Exhibit A. This Lease shall
upon and inure to the benefits of the parties, their
successors, personal representatives and assigns.
24) Miscellaneous. (01) Each party agrees to furnish to the
other, within ten (10) days after request, such truthful estoppel
information as the other may reasonably request.
with the
be binding
respective
(02) This Lease constitutes the entire agreement and
understanding of the parties and su~ersedes all offers,
negotiations, and other agreement of any k1nd. There are not
representations or understandings of any kind not set forth
herein. Any modification of or amendment to this Lease must be
in writing and executed by both parties.
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(03) This Lease shall be construed in accordance with
the laws of the state of Minnesota.
(04) If any term of this Lease is found to be void or
invalid, such invalidity shall not effect the remaining terms of
this Lease,which shall continue in full force and effect.
(OS) Lessee agrees to pay Lessor all reasonable expenses
incurred b~ Lessor in reviewing this Lease Agreement. These
expenses lnclude engineering, legal and other administrative
expenses, but not to exceed $1,000.00.
25) Remedy. The Lessor and the Lessee agree that the Lessee's
sole remedy under this Lease shall be the termination of the
Lease and removal of its Antenna Facilities from the Leased
Premises. The Lessee shall not be entitled to monetary damages
nor to any injunctive relief.
This Lease was executed as of the date first set above.
Lessor:
City of Prior Lake
By:
Its:
Mayor
By:
Its:
Lessee:
City Manager
Minneapolis SMSA Limited Partnership
US WEST NewVector Group, Inc.
By:
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EXHIBIT A
LEASED PREMISES
ON THE PROPERTY
Pursuant to that certain Water Tower Lease Agreement dated
, between the City of Prior Lake, as Lessor
and Minneapolis SMSA Limited Partnership, US WEST NewVector
Grou~, Inc. as Lessee, Lessee is leasing from Lessor a certain
port1on of the real property owned by the Lessor (the
"Property"), which is legally described as follows:
Property Address:
4741 Tower Street SE
Property Description:
180' x 240' in SW 1/4 of SE 1/4 of 2-122-14
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EXHIBIT B
SITE LANDSCAPE PLAN
US WEST:
1.) Proposed driveway must be constructed of bituminous and
tapered to the width of the existing driveway.
2.) The view to the southwest must be improved via the addition
of seven Austrian Pines as added to the site Plan (Exhibit B)
3.) The exterior finish of the building must be brick or a
material that resembles brick or cedar or redwood.
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EXHIBIT C
ANTENNA FACILITIES ON TOWER
(see attached description)
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