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00-952Gouna7 FiIc # em - g s�. ORiGi�AL Preseated Ey Re`e:red To Co�ttee: Date 1 WHEREAS, the City of Saint Paul does own fee sunple title, "for the benefit of the Boazd of 2 Water Commissioners," to the water tower site commonly known as the McKnight Road 3 Standpipe site, which is located at 393 McKnight Road in Saint Paul, Minnesota: and WHEREAS, XM Satellite Radio, Tnc. desires to lease space at the Highwood Standpipe site to install and operate a wireless communication system; and 8 WHEREAS, the Board of Water Commissioners did adopt Board Resolution No. 4731 which 9 approved a Lease Agreement with XM Satellite Radio, Inc. and requested the Honorable Council 10 of the City of Saint Paul to likewise grant approval; now, therefore, be it 11 12 RESOLVED, That the Lease Agreement between the City of Saint Paul, the Board of Water 13 Commissioners, Saint Paul, Minnesota, and XM Satellite Radio, Inc. allowing the installation 14 and operation of a wireless communication system at the Highwood Standpipe site is hereby 15 approved substantially in the form submitted, and that the proper officers are hereby authorized 16 to execute said Lease Agreement on behalf of the City of Saint Paul. Req_ues:ed by Departnen[ of: ydop6on Cer�ed by Council Secretary Ey. • .. . . . . . • , r„�',� /"i % � �/ � � � Green sheet r 107.A3?� RESOLUTION Ci7Y OF SAINT PAUL, MINNESOTA a� S aint Paul Regional Water Services Bv �r c ��s . f�u--�-�t/�� eneral Manager Form Appr y Ciry Atto By. Approved y Mayor for Submitsion to Council By. ,4dopted by Council: 1?ate9�_ \\ 30 00 ao-qsa- Paul Begional Water Services TOTpL S OF SIGNATURE PAGES 1 GREEN SHEET oa�Nn�roaee�ae No 1 Q2232 anconri OIYATTOIIIEY_��1� ❑CRYC{iltK V!M ', Af�11tlLLtFkNLFtOR � /i` �❑ qY11pI�lfFRY/�LCf6 I IYVOIt1�Y9AJ11I1� • �� (CLIP ALL LOCA ONS FOR SIGNATURE) Approval of Council Resolution approving a lease agreement bet4reen the City of Saint Paul, th Board of Water Commissioners and XM Satellite Radio, Inc. allowing the installation of digita satellite radio equipment at the f3cKnight Road Standpipe site on McKnight Road in Saint Paul. Attachments: 1) Proposed Resolution 2) Lease Agreement 3) Boatd of Water Commissioners Resolution No. 4735 PUINNING COMMISSION CB COMMITTEE � CIVIL SERVICE COMMISSION Board of Water Commissioner tlas tnis a�auNfim� evwMOrked unaer a wntract for this deparcmeM? vES NO Fias thia peroaJfiim e�er 6een a cilY empbyee? rES tdo Dces Mi6 personlfiim po88e68 a Sitlll not nonnailypos6esseC by any artent cily empbyeEl YES NO �s this persor.Srm a ta.peted vendor7 YES NO Main atl ves a�uers on seoarate sheet and attach to oreert Sheet XM Satellite Radio, Inc. desires to lease space on the Board of Water Commissioners' McKnight Road Standpipe site to opetate a wireless communication system. Staff and the assistant city attorney prepared the attached lease which was approved by the Board of Water Commissioners on September 12, 2000. Because the City of Saint Paul owns the site for the benefit of the Board of Wa,ter Commissioners, the City must also be a party to any lease of the site. Board of Water Commissioners will receive additional revenue. C�t€�� s��rc`� ��,��s None Revenue potential will not be realized. OF 7WJISACTION S SOURCE huwana (exctar� COSTJREVENUE BUDGETED (qRCLE ONEJ ACTMTY NUMBER YES NO _i ,, �a BOARD OF WATER CAMMISSIONERS RESOLUTION — GENERAL FORM pRESENTED BY Harris COMMISSIONER po -qS �-- N 4735 pq � September 12,.2000 WAEREAS, XM Satellite Radio, Inc., desires to lease space from the Boazd of Water Commissionexs on its McKnight Road Standpipe site located at 393 North McKnight Road, Saint Paul, tiSinnesota 55119, to install and operate a satellite radio system; and ��'fIEREAS, staff and the assistant city attomey have prepazed a Lease Agreemeat whsch provides for a five {5} yeaz lease and which automatically renews for two (2) additional five (�) year terms, starting at an azmual lease rate of $6,500 and increasing each subsequent yeaz; and WIiEREAS, the Lease Agreement is recoznmznded for approval by staff and is approved as to form by the C3ty Attorney's Office; row, thereiore, be it I�SOLVEI3, that LL'�e Lease Agreement betrveen the Board oi Wate; �omnissioners and �41 Satellite Radio, Inc., is hereby app:oved substantially in the form submitted, and that the proper officers aze hereby authorized to execute said Lease Agxeesnent on'oehalf of the Board; and, be it FURTHER RESOLVED, that the Honorable Council of the City of Saint Paul is hereby reques�ed to approve said Lease Agreement and to authorize the proper officers of the City of Saint Faul to execute said Lease A�eement on behalf of the City. Water Commissioners Yeas Cardinal Naqs Harris Vice President Haselmann President Reiter Adopted by the Board of Water Commissionezs In favor 4 _ Opposed � Sentember 12, � 2000 (/r,,..c.� O secv. oo- 9 s �- SITE LEASE AGREEMENT between BOARD OF WATER COMIVIISSIONERS and XM SATELLITE RADIO, INC. This Lease Agreement ("Lease") is entered into this � 2� day of Se �,.-t �' , 2Q�0, between the BOARD OF WATER COMNIISSIONERS, Saint P ul, Minnesota, a municipal corporation under the laws ofthe State of Minnesota ("Lessor"), and XM SATELLTTE RADIO, INC., a Delawaze corporation, whose address is 1250 23rd Street, Washington, DC 20037 ("Lessee"). In considerauon of the terms and conditions of this Lease, the parties agree as follows: Leased Premises. Lessor hereby leases to Lessee certain space located at and on the Lessor's McKnightRoad Standpipe site located at 393 North McKnight Road, Saint Paul, Minnesota 55119- 5307, which is legally described in attached Exhibit "A," Legal Description and Site Plan. The water storage facility and its appurtenances ("Structure"), and the Lessor's land upon which the Structure is situated are collectively called "the Properiy." The properry interest leased and granted by the Lessor, ("Leased Premises") are the foilowing: • Ground space comprised of approximately ] 20 usable squaze feet. • Structure exterior space for attachment of antennas at FAGL • Space required for cable runs to connect equipment and antennas • Non-exclusive easements required to run utility lines and cables • A non-exclusive easement across the Property for access No other space or properry interests are being leased to Lessee except as described above and as described on Exhibit "A," Legal Description and Site Plan. 2. Term/Renewals. (a) The term of this Lease shall commence on the date first written above and shall terminate on December 31, 2005. Lessee and Lessor agree to enter into an addendum to this Lease confirming ttie Commencement Date, as contained in Eachibit "C," Memorandum of Lease Recording. (b) Lessee shall have the right to extend this Lease for up to two additional five-year terms (each a Renewal Term) subject to (c) below; (c) This Lease sha11 automatically be renewed for each successive Renewal Term unless Lessee is in default of any of the terms or conditions of this Lease, or unless Lessee notifies Lessor of its intention not to renew prior to commencement of the succeeding Renewal Term. N:\CLERICAL\BOARDWgreements\LEASEUCM Satellite_001 oo-qSa. 3. Renz Rent shall consist of Base Rent and such Addirional Rent as may apply. Lessee shall make all payments of Base Rent and Additional Rent to Lessor at the following address: Board of Water Commissioners 8 4th Street E, Ste. 400 Saint Paul, Minnesota 55101-1007 Lessor's FIN number is # 41-6005521 If this Lease is terminated, pursuant to the terms and conditions ofthis Lease, rent sha11 be pro-rated to the ternvnation date or the date on which all of Lessee's equipment is removed from the Leased Premises, whichever is later_ Lessee shall pay a11 rent annually in advance, on the first day of the term of this Lease and artnually on or before the first day of each January thereafter, as indicated in the payment schedule below: (a) Base Rent. Lessee sha11 pay Lessor, as rent, the sum of Six Thousand Five Hundred and No/Dollars ($6,500), ("Annual Rent"), per yeaz based upon Lessee's installation and operation of the antenna facilities and frequencies identified in Eachibit "B,"Antenna Facilities and FNequencies, ("Antenna Facilities"), and located within the Leased Premises as shown on E�ibit "A," Legal Description and Site Plan. The first year's rent shall be pro-rated to the end of 2000, and shall be paid within thirty (30) days of the commencement date. The entire annual rent due hereunder sha11 be paid prior to January first of each succeeding year. Lessee may not install and/or operate any additional antennas or related equipment beyond the antennafacilitiesandfrequenciesidentifiedinExhibit"B," AntennaFacilitiesandFrequencies and the two (2) additional antennas without a provision for additional rent and the prior written consent of Lessor, such consent not to be witt�heid or delayed without cause. (1) Annuai Increase Gommencing January 1, 20Q 1, the rent sha11 be increased annually by Five percent (5%) of the Annual Rent. (2) Re-evaluation at Renewal Term At the commencement of each Renewal Term, the Base Rent will be evaluated and established based on the following criteria: At least 120 days prior to the end of each five-year term Lessor shall notify Lessee in writing of its request for a re-evaluation of the Base Rent. The re-evaluation determines whether the Base Rent for the first year of the next five-year term wiil be either: (1) as determined by the Annual Increase; or (2) the re-evaluated rent ("Re-Evaluated RenY') as calculated using the provisions detailed in this section. N:\CLERICAL\BOARDV+,greements\LEASEVCM Satellite_001 Qp �[S a` Base Rent. (continued) Included in the notification for re-evaluation of the Base Rent, Lessor sha11 provide Lessee with at least five (5) current annual rents for water tower sites in the Minneapolis metropolitan area ("Similar Rents"), which sha11 be averaged and such resulting average shali be considered to be the Re-evaluated Rent. If Lessee does not concur with Lessor's perception of the prevailing mazket rate as evidenced by Lessor's provided Sunilar Rents, Lessee may provide Lessor, in writing, with at least five (5) Similar Rents paid by Lessee from leases executed within the previous twelve (12) months ("Newly Executed Rents"). The two highest and two lowest rents from those so provided by Lessor and Lessee shall be discarded, and the remaining rents from both parties will be averaged together. The resulting calculated average shall be considered to be the Re-Evaluated Rent. If Lessee does not provide Lessor with Newly Executed Rents within thirty (30) days of receipt of Lessor's Similar Rents, then the calculated average shall be determined solely from the Similar Rents provided by the Lessox. In the event that there aze less than five (5) Newly Executed Rents for Lessee to provide to Lessor, then Lessee sha11 provide a11 Newly Executed Rents which are auailable, and Lessor shall provide an equal number of Similar Rents. The rents provided by both parties sha11 be averaged together and the resulting calculated average sha11 be considered to be the Re- Evaluated Rent, provided, however, that in the event Lessee is unable to provide at least tlu�ee (3) Newly Executed Rents, then the calculated average shall be determined solely from the Similar Rents provided by the Lessor. The Base Rent for the first year of each Renewal Term sha11 be either the (1) Annual Increase, ar(2) Re-Evaluated Rent, whichever is greater. In no event shall the annual anstallment of rent due hereunder following such adjustment or review be less than the amount of such installment in the previous year increased by five percent (5%). Should the re-evaluation process require more than 120 days to complete, the Annual Increase amount will be paid to Lessor prior to January 1 of the first year of the Renewal Term. Any 3ncremental increase in rent that may be due as a result of the re-evaluation at Renewal Term will be paid by Lessee to Lessor for the period between January 1 of the first year of the Renewal Term and the date that the re-evaluation at Renewal Term is completed. (b) Additionai Rent. Additionai Rent means all amounts, other than Base Rent provided for in paragraph 3(a) above, that Lessee sha11 be obligated to pay under this paragraph or any other pazagraph of this Lease. Additional Rent shall include the following fees, costs and expenses: (1) costs for the repairs, improvements or alterafions required to be made by Lessee in Section 6. Maintenance and Repairs, (2) all taxes on equipment personally owned by Lessee, general or special. As a condition of Lessee's obligation to pay any taz, Lessor shall provide Lessee documentation from the t�ing authority indicating with reasonable certainty that the tax was direcdy attributable to Lessee's tenancy. Lessee sha11 N:\GLERICAL\BOARDV�qreements�LEASEVCM Satellite_001 00 - 4sr Additional Rent. (continued) have the right to file an assessment appeal, and Lessor shall cooperate in any such appeal as reasonably requested by Lessee, all at Lessee's sole cost and expense; (3) all publac utility rates, dues, and chazges of any kind for utilities used by Lessee at the Leased Premises; and (4) fees, costs and expenses for properry insurance andlor uninsured losses as set forth in Section 13. Insurance. In the event that Lessee does not pay the required Additional Rent, Lessor may, at lts option, and after ten (10) days prior written notice to Lessee, make such payments. Upon Lessor's notice to Lessee that it has made these payments, those amounts become due and payable by Lessee within thirry (30) days. (c) Lessee shall pay to Lessor a one time landscape screening fee of One Thousand and No/Dollars ($1,000). Said fee sha11 be paid within thirty (30) days of the commencement date 4. Use ojLeased Premises. (a) Lessee may use the Leased Premises for the installation, removal, replacement, operation, and maintenance of facilities for the transmission and reception of radio communica6on signals in such frequencies as are identified in E�ibit "B," Antenna Facilities and Frequencies and for the storage of related equipment in accordance with the terms of this Lease. This use shall be non-exclusive and Lessar retains the right to lease space to other parties, provided the use of such space does not interfere with Lessee's operations. Lessee shall use the Leased Premises in compliance with all federal, state, and local laws and regulations. This Lease is contingent upon Lessee receiving all permits, license or approvals from a11 local, state, or federal 1and use jurisdictions or agenc3es (e.g. F.A.A. and F.C.C.) for the intended use of the Leased Premises. Lessee sha11 obtain all such necessary permits, licenses or approvals. Lessor agrees to cooperate with Lessee, at Lessee's expense, in obtaining a11 such necessary permits, licenses or approvals. Lessee shall reimburse Lessor's reasonable expenses for obtaining all licenses, permits and any and al1 other necessary approvals that may be required for Lessee's intended use of the Leased Premises. Lessee sha11 use the Leased Premises in compliance with all federal, state, and local laws and regulations. (b) The primary use and purpose of the Leased Premises is for a water storage structure and appurtenances to provide water service to customers of the Lessor. Lessor's operations in connection with pursuit of this primary use of the Leased Premises ("Operations") take priority over Lessee's operations and Lessor reserves the right to take any action it deems necessary, in its reasonable discretion, to repair, maintain, alter or improve the Property in connection with its Operations. N:SCLERICAL\BOARD�Agreemenis\LEASEV(M Satellite_001 4 00 - qsi- Use of Leased Premises. (continued) In the event that the use of the Structure for water service is jeopazdized because of Lessee's operations on the Siructure, Lessor shall provide written nofice of such event to Lessee. Lessor and Lessee agree to work together to cure the occu�ence which causes such jeopazdy. In the event of severe jeopardy (e.g. an antenna falling into the water Structure), Lessee shall immediately cease operations at that site. Only in the case of severe }eopazdy may the Lessoz remove Lessee's equipment. This severe jeopazdy would be deemed an emergency situation. In the case of a non-severe jeopardy (e.g. a loose cable that blocks access through a caged ladder), Lessee shail make ail good efforts to cure such jeopazdy within thirry (30) days of receipt of written notice of event. If Lessee does not cure such jeopazdy within thirty (30) days of receipt of written notice of event, said occurrence of jeopardy sha11 constitute an event of default as otherwise defined in Section 12. Termination. If circumstances beyond the control of Lessee prohibit the jeopardy from reasonably being cured within thiriy (30) days, Lessee shall notify Lessor of such circumstances and commence actions required to cure the jeopardy (e.g. assessing the problem, ordering necessary equipment) within seven (7) days of Lessor's written notice of jeopardy and shall diligently pursue the cure to completion within a reasonable rime thereafter. S. Installation of Equ�ment and Leasehold Improvements (a) Lessee shall have the right, at its sole cost and expense, to install, operate and maintain in accordance with good engineering practices, and with al1 applicable Federal Communications Commission ("PCC") rules and regulations, on the Leased Premises, a11 necessary equipment, personal property, and facilities which include radio transmitting and receiving antennas and frequencies not to exceed that designated in Er,hibit "B," Antenna Facilities and Frequencies. (b) Lessee's initial installation of all Antenna Facilities and any and a11 subsequent revisions and(or modifications of the same, shall be subject to prior approval by Lessor. In the case of non- material revisions or modifications, Lessee shall provide oral notification of such plans, and Lessor shall provide oral approval or objection within forty-eight (48) hours of receipt. Failure to make any oral objection within foriy-eight (48) hours of receipt shall be deemed approval by Lessar. In the case ofmaterial revisions ormodifications, Lessee sha11 provide written notice and Lessor shall approve or object to such plans within thirty (30) days of receipt, and failure to make any objection within said thirty (30) day period shall be deemed approval by Lessor. Any damage to the Properly, Leased Premises, or any equipment thereon caused by Lessee's instaliation and operations shall be repaired ar replaced at Lessee's expense and to Lessor's reasonable sa6sfacrion. (c) Lessee shail provide Lessor with a site plan consisfing of line or CAD drawings and diagrams of the Antenna Facilities and the improvements installed on the Property by Lessee, which show the actual location of all equipment and improvements. Said drawings shall be accompanied by a complete and detailed inventory of a11 equipment, personal properiy, frequencies, and Antenna Facilities, and shall be attached hereto as E�ibit "A," Legal Description and Site Plan and E�ibit `B," Antenna Facilities and Frequencies, prior to installation. N:ICLERICAL\BOARDW.greemants�LEASEVCM Satelfite_001 5 oo-qs�- Installation of Equinment and Leasehold Improvements. (continued) (d) The manner in which Lessee's Antenna Facilities or improvements aze attached to the Structure shall be subject to prior written approval by Lessor. Lessor shall approve or object to the manner of attachment within ten (10) days of receipt of such plans, and Lessor s failure to make any objections within said ten (10) day period sha11 be deemed approval by Lessor. (e) Prior to modifying or placing additional transmitter or receiver &equencies on the Leased Premises, Lessee agrees to notify the Lessor at least sizcty (60) days before the same are modified or additional frequencies aze added so that the Lessor can perform the necessary interference studies to insure that the modified or additional frequencies will not cause harmful radio interference to Lessor's or its existing tenants' operations. Lessee shall pay the reasonable costs for any such interference studies which will be performed by Lessor's own registered professional communications engineer. In the alternative, Lessee may perform the interference studies and submit the results to the Lessor. However, the Lessor, in its sole discretion, sha11 retain the right provided herein to submit the study results to ats own registered professional communications engineer for review at Lessee's expense. 6. Maintenance and Repairs. (a) Lessee shall, at its own cost and expense, maintain its equipment in good and safe condition and in compliance with applicable fire, heaith, building and other life sa£ety codes, and shall repair any part of the Leased Premises that was damaged by the placement of Lessee's equipment thereon. (b) Lessee shall have sole responsibility for the maintenance, repair, and security of its equipment, personal properry, Antenna Facilities, and leasehold improvements, and shall keep the same in good repair and condition during the Lease Term. All Antenna Facilities and appurtenances affixed to the Shuchxre shall be painted the same colar as the Shucture. (c) Except in emergency situations, Lessor shall provide Lessee with prior written notice of at least thirry (30) days when Lessor paints or repairs its Structure. Upon receiving such notice, it sha11 be the sole responsibility of Lessee to provide adequate measures to cover, protect or remove, at Lessee's discretion, Lessee's equipment, personal property and Antenna Facilities, and to protect the same from paint and debris fallout which may occur during the paint restoration process or repairs. In the event that Lessor's painting or repairing of the Structure or the Property causes Lessee's operation of the Antenna Facilities to be interrupted, Lessee may maintain a mobile site on the Property or, after approval by Lessor, on any land owned or controlled by Lessor in the immediate area of the Property. Rent shall be abated on a prorated daily basis during such interruptions if the interruption lasts for longer than thirty (30) days. 7. Pro�erty Access. (a) Lessee sha11 have access to the Leased Premises and Properiy twenty-four (24) hours a day, seven (7) days a week by means of existing access in order to install, remove, repair, operate, and maintain its Antenna Facilities. N:ICLERICAI\BOARDWgreementslLEASEVCM Satellite 001 6 00 - qs a- Propertv Access.(continued) (b) Lessor is granted unlimited access to examiue and inspect the Leased Premises for safery reasons and to insnre that Lessee's covenants aze being met. Lessor shall be liable to and hold harmless Lessee from any damage to the Leased Premises or to Lessee's equipment and antenna facilities caused by Lessor in exercising its right to examiue and inspect the Leased Premises. (c) Lessee may also, at its own cost and ea�pense, enter upon the Property to study and detemune the Properry's suitability for any other use of Lessee, wluch studies may include surveys, radio wave propagation measurements or field strength tests. 8. Utilities. Lessor makes no representations that utilities adequate for Lessee's use of the Leased Premises are availabie. Lessee will pay for a11 utilities used by it at the Leased Premises. Lessor will cooperate with Lessee in Lessee's efforts to obtain utilities from any location provided by Lessor or the servicing utility. 9. Personal Pro�ertv and Real Estate Tazes. If any of Lessee's improvements constructed on the Leased Premises should cause the Properry, or any portion of it, to be taxed for real estate purposes, it shall be the liability of Lessee to pay that portion of such properiy taxes directly attributable to Lessee's equipment, provided Lessor shall give Lessee prior written notification ofsuch tases so that Lessee will have the oppornuuty to appeaz before the taYing authority to contest such taxes. Natwithstanding Lessee's right to contest such taa�es, Lessee shall pay its share of such taxes within thirty (30) days of receiving notice of the same. 10. Compliance and Statutes Regulations andA� rovals L,essee's use ofthe Leased Premises herein is contingent upon its obtaining all certificates, permits, zoning, and other approvals that may be required by any federal, state or local authority, including but not limited to an engineering study and a radio frequency interference study. Lessee's Antenna Facilities and any other facilities sha11 be erected, maintained and operated in accordance with all state ar federal or local or municipal statutes, ordinances, rules or regulations now in effect, or that hereafter may be issued by the FCC or any other governing bodies, and in accordance with any Leased Premises standards annexed hereto as E�ibit "D," Technical Minirnum Site Standards. Il. Interference. (a) All frequencies proposed for initiai use shall be evaluated by Lessor's communications registered professional engineer. Lessee sha11 pay the reasonable costs of such evaluation. Lessee shail not transmit or receive radio waves at the Properiy until such evaluation has been satisfactorily completed. (b} Lessee's installation, operation, and maintenance of its transmission facilities shall not daznage or interfere in any way with Lessor's operations, including Lessor's radio frequency transmission, or repair and maintenance activities. Lessor's operations take priority over Lessee's operaCions and Lessor reserves the right to take any action it deems necessary, in its reasonable discretion, N.ICLERiCAL1BOARDWgreements\LEASEIXM Satellite 001 �D-ZSa- Interference.(continued) to repair, maintain, alter or unprove the Properiy in connection with Lessor's Property operations as may be necessary. For all substantial improvements or repairs, Lessor agrees to provide Lessee with at least siaty (60) days advance notice of the same and to reasonably cooperate with Lessee to carry out such activities with a minimum amount of interference to L,essee's transmission operarions. For zninor repairs or maintenance Lessor agrees to give two (2) days advance notice of any such activities to Lessee and to reasonabiy cooperate with Lessee to carry out such activities with a m;n;mum amount of interference to Lessee's transmassion operations. Nonetheless, if Lessor's use ofthe Properry does cause interference with Lessee's operation, the Lessor shall not be responsible, and, at Lessee's choice, Lessee may terminate tlus Lease under the notice provisions and conditions as contained elsewhere in this Lease. In the event of an emergency situation which poses an immediate threat of substantial hann or damage to persons andlor properry on the Leased Premises, Lessor may enter the Leased Premises and take such actions as are required to protect individuals or personal property from such immediate threat of substantial harm or damage; provided that promptly after such emergency entry into the Leased Premises, and in no event later than twenty-four (2G) hours after such entry, Lessor gives written notice to Lessee of Lessor's entry onto the Leased Premises. (c) In its use of the Leased Premises, Lessee may not interfere with the Operations of Lessor or other parties who were occupants of the Properry priar to the commencement date of this Lease, provided that the equipment used by Lessor or other occupants is operating within the technical perimeters specified by its manufacturer and/or as defined by the FCC. In the event of any such interference, Lessee shall take all actions necessary to immediately eliminate such interference in accordance with reasonable technical standards. In the event Lessee cannot correct the interference, Lessee sha11 have the option to terminate this Lease without further liability hereunder, upon sixty (60) days written notice to Lessor. (d) Lessor will not grant a lease to any other pariy for use of the Properiy, if such use would or is likely to interfere with Lessee's operations on the Leased Premises. Any future lease by Lessor ofthe Property to additional parties which permits the installation of conununications equipment shall be conditioned upon not interfering with Lessee's use ofthe Leased Premises, and shall be terminated if interference occurs and is not corrected within a reasonable tnne. Notwithstanding the foregoing, Lessee acknowledges that Lessor may lease the Property, or any part of it, to other parties in close proximity to the Leased Premises, and Lessee agrees to work cooperatively with any such other parties, using accepted technical standards in accordance with FCC standazds, to ensure that such other parties' use and Lessee's use will be compatible and will not cause interference with each other. Lessor agrees that it will require the same obligation of all such future parties in any lease or agreement with such future parties. Further, Lessee agrees to meet the conditions set forth in E�ibit "D," Technical Minimum Site Standards. (e) Lessor in no way guarantees to Lessee noninterference with Lessee's transmission operations, provided, however, that in the event that any other party requests permission to place any type of additional antenna or transmission facility on the Property, the procedures of this Section shall govern to deterntine whether such antenna or transmission facility will interfere with Lessee's transmission operations. N:\GLERICAUBOARDWgreementsLLEASEVCM Satellite 001 00 -gs� Interference.(continued) If Lessor receives any such request or proposal from a party seeking to lease space on the Property, Lessor shall submit the proposal complete with 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 with said tlurty (30) day period shall be deemed consent by Lessee, subject to interference provisions of paragraph 11(c) of this Lease, to the installation of antennas or transmission facilities pursuant to said proposal. Lessee shall not be responsible fot the expenses incurred in any independent validation of such interference objections. (c� In the event that Lessee ar other tenants on the Properry experience interference of their approved frequencies and they cannot reach agreement as to the cause and remedy of such interference, the Lessor's own registered professional communications engineer shall determine such cause and remedy and Lessee shall abide by the engineer's determination. Lessar agrees that it will require the same obligation of a11 such fuiure parties in any lease or agreement with such other parties. (g) Without limiting the foregoing or any other remedy. Lessee shall have the right to terminate this Lease upon sixty (60) days written notice in the event its reception or transmission is interfered with by Lessor or its other tenants' equipment, such right to terminate shall become void if Lessor cures such interference within thirty (30) days of receipt of written notice. 12. Termination. Except as otherwise provided herein, this Lease may be terminated by either party upon sixty (60) days written notice to the other pariy for the following reasons: (a) by either party upon a default of any covenant or term hereof by the other party, which default is not cured witlun sixry (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, ar pursuant to any other provisions hereo fl, or if such cure cannot be completed within sixty (60) days, within such reasonable time as may be required provided the defaulting party commences the cure within ten (10) days of receipt of written notice of default and diligently pursues such cure to completion. (b) by Lessee if it is unable to obtain or maintain any license, pernut, ar other governmental approval necessary for the conshucrion and(or operation of the Antenna Facilities or Lessee's business; (c) by Lessee if the Leased Premises is or becomes unusable under Lessee's design or engineering specifications for its Antenna Facilities, or communications system. (d} by Lessor, if it determines, after review by an independent structural engineer, that the Property is structurally unsound, including but not limited to considerafion of age of the structure, damage or deshuction of all or part of the Property from any source, or factors relating to condition of the Properry; (e) by Lessor if Lessee fails to pay rent provided for in Section 3. Rent within thirry (30) days of receipt of written notice from Lessor of a rent or other payment being overdue. N:\CLERlCAU60ARDVigreements\LEASEIXM Satellite_001 oo- q5?- 13. Insurance. a) Lessee shall obtain and maintain adequate insurance to protect the parties against any and all clauns, demands, actions, judgments, expenses, and liabilities which may arise out of or result from Lessee's use of the Leased Premises. Any applicable policy shall list the Lessor and the City of Saint Paul as additional insured, and shall provide that it will be the primary coverage. The insurance coverage must include, at au�inimum, Comprehensive General Liability Insurance Coverage, including premises/operafion coverage, bodily injury, property damage, independent contractors liability, compieted operations coverage, and conttactual liability coverage, in a combined single lunit of not less than One Million Five Hundred Thousand Dollars ($1,500,000) per occurrence, subject to Three Million Dollars ($3,000,000) aggregate. Lessee may satisfy this requirement with underlying insurance and/or an umbrella policy. (b) Lessee shall provide Lessor, prior to the Commencement Date and before each Renewal Term of this Lease, 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 inparagraph 13(a) above. Said certificate sha11 also provide that the coverage may not be canceled, or non-renewed, or materially changed without thirty (30) days written notice to Lessor. I4. Indenanitv. Lessee agrees to indemnify, defend, save and hold harmless the Lessor and the City of Saint Paul, and/or any agents, officers or employees thereof from all claims, demands, actions or causes of action of whatsoever nature or character, arising out of, or by reason of, the Lease of the herein described Leased Premises by the Lessor to Lessee, or arising out of, or by reason of, the use or condition ofthe Leased Premises, or as aresultofLessee's operations or business activities taking place on the Leased Premises, provided the same is not due to the contributory negligence or willful misconduct of the Lessor, the Ciry of Saint Paul andlor any agents, officers or employees thereof. It is fully understood and agreed that Lessee is aware of the conditions of the Leased Premises and leases the same "as is." I5. Damage or Destruction. If the Properry or any portion thereof is destroyed or damaged so as to hinder its effective use, Lessee may elect to terminate this Lease upon thirty (30) days written notice to Lessor. In such event, all rights and obligations of the parties shall cease as of the date of the damage or destruction and Lessee shall be entitled to the raimbursement of any rent prepaid by Lessee, prorated to the date of the event. 16. Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given when personally delivered or mailed, certified mail, return receipt requested, to the following addresses: If to Lessor, to: Board of VJater Commissioners Attn: Bill Tschida 8 Fourth Street East, Suite 4Q0 SaintPaul, MN 55101-1007 If to Lessee, to: XM Satellite Radio, Inc. Attn: Joseph TiUebaum, General Counsel 1500 Eckington Place N.E. Washington, DC 20402-2194 N:\CLERICAL\BOARD1AgreementslLEASEV(M Satellite_001 10 8o-qs2- 17. Representations and Warranties. (a) Lessor represents that (i) it has full right, power, and authoriry to execute this Lease; (ii) it has good and unencumbered title to the Property free and cleaz of any liens or mortgages, subject to such liens of record; (iii) Lessee shall haue quiet enjoyment of the Leased Premises during the term of this Lease in accordance with its terms. (b) Lessor represents that it has no knowledge of any substauce, chemical or waste on the Property that is identified as hazardous, toxic or dangerous in any applacable federal, state or local law or regularion as defined in paragraph 17 (c) of this Lease Lessee represents and warrants that its use of the Leased Premises herein will not generate and it will not store or dispose on the Properry nor transport to or over the Property any hazardous substance, chemical or waste contrary to any law or regulation. Lessee fiu•ther agrees to hold Lessor harmless from and indemnify Lessor against any release of any such hazardous substance, and any damage, loss, expense or liability resuiting from the breach of this representation or from the violation of any state or federal law by such release associated with Lessee's use of hazardous substances, mcluding payment of a11 attorneys' fees, costs and penalties incurred as a result thereof, except for any release caused by the negligence orwillful misconduct ofLessor, its employees or agents. (c) "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazazdous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environxnental law, regulation or rule presently in effect ar promulgated in the future, as such laws, regulations or nxles may be amended from time to time. Lessor acknowledges Lessee's use of batteries as back-up power and deems them acceptable as long as such batteries are used in accordance with all applicable laws and good engineering practices. (d) The individuals signing and executing this agreement on behalf of Lessee warrant that they have the requisite corporate power and authority to enter into and perform this agreement on behalf of Lessee. 1&. No Liabilitv on Lessor. Except due to Lessor's willfui misconduct, Lessor shall not be liable for any damage to Lessee's equipment or facilities, and Lessor shall not be liable for vandalism or malicious mischief caused by third parties, known or ui�iown, to Lessee's equipment or facilities. 19. Assignmen� (a) Lessee may not assign or sublet this Lease without the prior written consent of Lessor, which consent sha11 not be withheld or delayed without reasonable cause. Notwithstanding the provisions of this pazagraph, Lessee shall have the right, without Lessor's consent, to assign this Lease to any financially responsible parent, subsidiary or affiliate of Lessee or any corporation into which Lessee may be merged or consolldated or which purchases all or substantially all of the assets of Lessee, as long as assignee assumes the obligations of this Lease. Any approved sublease that is entered into by Lessee shall be subject to all of the provisions of this Lease. (b) The parties acknowledge that this is a nonexclusive lease. Nothing in this Lease sha11 preclude Lessor from leasing other space on the Property to any other person ar entity which may be in competition with Lessee, or any other party, subject to the conditions set forth in Section 11. Interference. N:\CLERICAL\BOARD1Agreements�LEASEUCM Satellite_001 1 I 00 - 9Sa' 20. Successnrs and Assigns. This Lease shall run with the Properry. This Lease shaU be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns. 21. Surrender oj'Premises. At the expiration of the uvtial tertn of this Lease, or any Renewal Term, or any earliertermination ofthis Lease. Lessee shall quitpeacefully and sunenderpossession of said Leased Premises in as good condition as when it was delivered to Lessee, reasonable wear and tear and casualty loss excepted. Lessee shall remove its equipment, personal property, Antennas Facilities, and leasehold improvements from the Property on or before date of expiration or termination, and shall repair any damage to the Property caused by such equipment, all at Lessee's own wst and expense. 22. Marking und LightingReguirements. Lessor acknowledges that it shall be responsibie at Lessor's sole cost and expense, for compliance with all building marking and lighting requirements that the Federal Aviation Administration ("FAA") may require with respect solely to the height of Lessor's Structure. The responsibility, however, is expressly limited to the requirements that would be required of an elevated water storage facility having no communications equipment installed on it, irrespective of Lessee antennae. Lessor shall indemnify and hold harmless Lessee from any fines or other liabilities caused by Lessor's failure to comply with such requirements for the elevated water storage facility Structure. Further, should the FAA cite Lessee or in the event any claims are brought against L,essee because the Structure alone is not in compliance as opposed to the water Structure and antennae, then Lessor shall indemnify Lessee for full costs, liabilities, damages and expenses, including reasonable attorney's fees. Further, if Lessor does not cure the conditions of noncompliance on ihe Structure within the time frame allowed by the citing agency, Lessee may terminate this Lease immediately without any fiuther liability hereundex upon written notice to Lessor. Lessee acknowledges that it shall be responsible at Lessee's sole cost and expense, far compliance with all building marking and lighting requirements that the Federai Aviation Administration ("FAA") may require with respect to Lessee's antennae. Tn the event the FAA determines that Lessor's water tank needs to be marked, lighted or in any way modified due to the existence of Lessee's antennae, Lessee shall have the option to mark and light the tank at its own expense, or to terminate this Lease, pursuant to Section 12. Termination, and remove a11 its equipment at its own cost without any further liability to either party hereunder upon thiriy (30) days written notice to Lessor. Said marking, lighting and modifying shall be subject to priar written approval by Lessor, such approval not to be withheld without cause. Lessor shall approve or object to such plans within thirry (30) days of receipt, and failure to make any objection within said thirty (30) day period sha11 be deemed approval by Lessor. 23. RF Compliance. (a) Lessor's communications registered engineer may perform a radiation survey of the Property following Lessee's initial RF transmissions on the Premises. Lessee shall pay the reasonable costs for such survey, which costs shall not exceed $1,000. (b) Lessor shail cooperate with and permit Lessee to implement reasonable measures at the trans- mitting site, including restricting public access and posting signs and markings, in order far Lessee to fulfill its Radio Frequency exposure obligations. Lessor agrees that in the event any N:ICLERICALIBOARD�AgreementslLEASEIXM Satellite_001 12 00 -9s�- RF Com hn� •ance. (continued) future lessee ("Future Lessee") causes the entire site to exceed FCC Radio Frequency radiation lunits, as measured on the Premises, Lessar shail hold the Future Lessee liable for such later-arising non-compliance. 24. Miseellaneous. (a) Each parry agrees to fiarnish to the other, within twenty (20) days after norice of receipt of the request, such truthful estoppei information as the other party may reasonably request. (b) This Lease constitutes the entire agreement and understanding of the parties and supersedes any and all offers, negoriations, or other agreements of any kind. 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. (c) This Lease shall be conshued in accordance with the laws of the State of Minnesota. Any 1ega1 action may only be commenced and proceed in the relevant district court in Ramsey County, Saint Paul, Minnesota. (d) 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. (e) Upon request by Lessee, Lessor agrees to execute a recordable Memorandum of this Lease. ( fl Any claim, controversy or dispute arising out ofthis Lease sha11 be settled by binding azbitration in accordance with the applicable rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court hauing jurisdiction thereof. The arbitration sha11 be conducted in the state where the properry is located. The arbitrator shall haue the authority only to award compensatory damages and shall not have authority to award punitive damages or other noncompensatory damages. The parties hereby waive all rights to and claims for monetary awards other than compensatory damages. The arbitrator shall be either a retired judge or another professional whose expertise includes the subject azea of the dispute. (g) E�ibits "A" through "D" listed below are hereby incorporated into this Lease by reference. E�ibit "A" Legal Description and Site Plan E�ibit "B" Antenna Facilities and Frequencies E�ibit "C" Memorandum of Lease Recording E�ibit "D" Technical Minimum Site Standards END N.ICLERICAL\BOARDWgreementslLEASEVCM Satellite_001 13 Q�� lJ� IN WITNESS WIiEREOF, the parties hereto have executed this Lease, the day and yeaz first above written. Lessor: APPROVED: I: Bernie R. Bullert, General Manager Saint Paul Regional Water Services Approved as to form: l: Assistant City Attorney APPROVED: By Its Legal Counsel N 1CLERICAL\BOARDWgreementslLEASE�XM Sateliite_001 BOARD OF WATER COMNIISSIONERS FIN 41-6005521 By James C. Reiter, President 7anet Lindgren, Secretary CITY OF SAINT PAUL: By Mayor By City Clerk By Director, Office of Financial Services XM SATELLITE RADIO, INC. 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Kincaid � ►gS� (spaceabovedvslmefor Recrnd�'s use anly) Memorandum of Lease T HIS MEMORANDUM OF LEASE is entered into as of , by and between BOARDOFWATERCOMNIISSIONERS,SaintPaul,Minnesota,amunicipalcorporationunder the laws of the State of Mannesota ("Lessor"), and XM SATELLITE RADIO, INC., a Delaware corporation, whose address is 1250 23rd Street, Washington, DC 20037("Lessee"). AGREEMENT 1. LEASE oF P1tEMISES. For the purpose of installing, operating, and maintaining a communicarion facility and other improvements, Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, certain premises located at 393 North McKnight Road, City of Saint Paul, County of Ramsey, State of Minnesota, and more particularly described in, and on the terms and conditions more particularly set Forth in, that certain Communication Facility Lease dated September 12, 2�00 (the "Lease") by and between Lessor and I,essee, which terms and conditions are hereby incorporated by reference. 2. The Term of Lease shall terminate on December 31, 2005, subject to two (2) additional terms of five (5) years each. 3. The Lease provides in part the grant of easement for unrestricted rights of access and to electric and telephone facilities. 4. The subject property affected by the filing and recording of this Memorandum of Lease is described in Exhibit "A," attached hereto and incorporated herein by reference. EXHIBIT "C" ao- `tSa' IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first above written. Approved Lessor. Board of Water Cownussioners, a Minnesota Municipal Corporation B Matthew J. Pfohl Its: Assistant City Attomey By: 7ames C. Reiter Its: President By: Janet Lindgren Its: Secretazy CITY OF SAINT PAUL By: Its: Mayor By: Its: City Clerk By: (name typedj jname typed] Its: Director, Office of Financial Services [name typedJ Lessee XM Satellite, Inc, a Delawaze Corporation � James G. Meyers, Director of Site Develapment 0 0- t5s- ACKNOWLEDGEMENTS STATE OF COUNTY OF ss. beforeme, Notary Public, personally appeared Matthew 7. Pfohl, James C. Reiter and Janet Lindgren, personally laiown to me (or proved to me on the basis of sarisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capaciry, and that by his signature on the inshument, the person, or the enrity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public My commission expires: (S�AL) STATE OF COUNTY OF On appeared _ before me, ss. Notary Public, personally personally lmown to me (ar proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and aclmowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public (SEAL) My commission expires: po- qS� ACKNOWLEDGEMENTS STATE OF COUNTY OF ss. before me, Notary Public, personaily appeared Frederick K. Owusu, personally taiown to me (or proved to me on the basis of sarisfactory evidence) to be the person whose name is subscribed to the within instrument and aclmowledged to me that he executed the same in his authonzed capacity, and that by his signature on the instrument, the person, or the enrity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public My commission expires: (SEAL) STATE OF COiJN i'Y OF ss. On , before me, , Notary Public, personally appeared _ personally laiown to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and aclmowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entiry upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public (SEAL) My commission expires: pp_9S?• TECHIVICAL NIINIMUM SITE STANDARDS Saint Paul Regional Water Services Water Tower Antenna Site All equipment must be housed in an RF fight, metal enclosure that provides at least 60 db of attenuation to any intemal RF signals. Desk-top base stations and open racks cannot be used without special approval. Addirional sluelding kits may be requixed. 2. At least 60 db of isolation for 450 MI3Z, 800 MFIZ and 900 MHZ transmitters and 30 db of isolation for 150 MHZ and 40 MFIZ transmitters must be provided. A hannonic filter must be provided on the transmitters between the antenna and any ferrite device used. Additional filtering and isolation may be required and will be considered on a case-by-case basis. 3. Maximum transmitter power allowed into the antenna feed line shall be 110 watts per transmitter. Higher power levels will be considered on a case-by-case basis. Additional protective devices may be required. 4. Only jacketed copper Heliax cable sha11 be permitted far transmission lines at the site. All on-site intercabling must use RGl9, RGi142, RGl214 or %z inch Superflex. RGi8 or any other single shielded cable wili not be allowed. Proposed transmitters that will cause second order, third order or fifth order intermodulation products on existing receiver frequencies will not be permitted on the site. A receiver with the same frequency as an existing second order, third order or fifth order intermodulation product at the site will not be permitted on the site. 6. All transmitters shall be equipped with band-pass cavities that will provide at least the following attenuation of side band noise, if needed: 4Q MHZ band: 150 MHZ band: 450 MHZ band: 840J900 NIHZ band: Microwave: 50 db at 1 MHZ 50 db at 1.5 MF�Z 50 db at 2.5 MI3Z 50 db at 10 MF3Z 50 db at 20 M�IZ EXHIBIT "D" OOr q J � TECIINICAL D�NIMUM SITE STANDt�RDS - Continued 7. Each cabinet must be identified by the owner's name, address, FCC station license number and the name and telephone number of the responsible service agency. 8. Prior to approving any application for antenna space at the site an engineering study will be prepared by the Engineer for the St. Paul Water Utility consisting of at least the following items: a. Intermodulation interference (IM) calculations of all transmitters and receivers known to exist in the area at time of application. (Study will include 2nd, 3rd and Sth order IM terms, and A+ B- C, three-product terms.) b. Transmitter noise and receiver desensing calculations of all equipment at the site. a Analysis of best equipment and antenna locations at the site. d. Analysis of AC power requirements. e. Report to prospective site user regazding application. 9. Pian and specifications to secure equipment to the tower must be submitted to and approved by Saint Paul Regional Water Services prior to instailarion. -End- Gouna7 FiIc # em - g s�. ORiGi�AL Preseated Ey Re`e:red To Co�ttee: Date 1 WHEREAS, the City of Saint Paul does own fee sunple title, "for the benefit of the Boazd of 2 Water Commissioners," to the water tower site commonly known as the McKnight Road 3 Standpipe site, which is located at 393 McKnight Road in Saint Paul, Minnesota: and WHEREAS, XM Satellite Radio, Tnc. desires to lease space at the Highwood Standpipe site to install and operate a wireless communication system; and 8 WHEREAS, the Board of Water Commissioners did adopt Board Resolution No. 4731 which 9 approved a Lease Agreement with XM Satellite Radio, Inc. and requested the Honorable Council 10 of the City of Saint Paul to likewise grant approval; now, therefore, be it 11 12 RESOLVED, That the Lease Agreement between the City of Saint Paul, the Board of Water 13 Commissioners, Saint Paul, Minnesota, and XM Satellite Radio, Inc. allowing the installation 14 and operation of a wireless communication system at the Highwood Standpipe site is hereby 15 approved substantially in the form submitted, and that the proper officers are hereby authorized 16 to execute said Lease Agreement on behalf of the City of Saint Paul. Req_ues:ed by Departnen[ of: ydop6on Cer�ed by Council Secretary Ey. • .. . . . . . • , r„�',� /"i % � �/ � � � Green sheet r 107.A3?� RESOLUTION Ci7Y OF SAINT PAUL, MINNESOTA a� S aint Paul Regional Water Services Bv �r c ��s . f�u--�-�t/�� eneral Manager Form Appr y Ciry Atto By. Approved y Mayor for Submitsion to Council By. ,4dopted by Council: 1?ate9�_ \\ 30 00 ao-qsa- Paul Begional Water Services TOTpL S OF SIGNATURE PAGES 1 GREEN SHEET oa�Nn�roaee�ae No 1 Q2232 anconri OIYATTOIIIEY_��1� ❑CRYC{iltK V!M ', Af�11tlLLtFkNLFtOR � /i` �❑ qY11pI�lfFRY/�LCf6 I IYVOIt1�Y9AJ11I1� • �� (CLIP ALL LOCA ONS FOR SIGNATURE) Approval of Council Resolution approving a lease agreement bet4reen the City of Saint Paul, th Board of Water Commissioners and XM Satellite Radio, Inc. allowing the installation of digita satellite radio equipment at the f3cKnight Road Standpipe site on McKnight Road in Saint Paul. Attachments: 1) Proposed Resolution 2) Lease Agreement 3) Boatd of Water Commissioners Resolution No. 4735 PUINNING COMMISSION CB COMMITTEE � CIVIL SERVICE COMMISSION Board of Water Commissioner tlas tnis a�auNfim� evwMOrked unaer a wntract for this deparcmeM? vES NO Fias thia peroaJfiim e�er 6een a cilY empbyee? rES tdo Dces Mi6 personlfiim po88e68 a Sitlll not nonnailypos6esseC by any artent cily empbyeEl YES NO �s this persor.Srm a ta.peted vendor7 YES NO Main atl ves a�uers on seoarate sheet and attach to oreert Sheet XM Satellite Radio, Inc. desires to lease space on the Board of Water Commissioners' McKnight Road Standpipe site to opetate a wireless communication system. Staff and the assistant city attorney prepared the attached lease which was approved by the Board of Water Commissioners on September 12, 2000. Because the City of Saint Paul owns the site for the benefit of the Board of Wa,ter Commissioners, the City must also be a party to any lease of the site. Board of Water Commissioners will receive additional revenue. C�t€�� s��rc`� ��,��s None Revenue potential will not be realized. OF 7WJISACTION S SOURCE huwana (exctar� COSTJREVENUE BUDGETED (qRCLE ONEJ ACTMTY NUMBER YES NO _i ,, �a BOARD OF WATER CAMMISSIONERS RESOLUTION — GENERAL FORM pRESENTED BY Harris COMMISSIONER po -qS �-- N 4735 pq � September 12,.2000 WAEREAS, XM Satellite Radio, Inc., desires to lease space from the Boazd of Water Commissionexs on its McKnight Road Standpipe site located at 393 North McKnight Road, Saint Paul, tiSinnesota 55119, to install and operate a satellite radio system; and ��'fIEREAS, staff and the assistant city attomey have prepazed a Lease Agreemeat whsch provides for a five {5} yeaz lease and which automatically renews for two (2) additional five (�) year terms, starting at an azmual lease rate of $6,500 and increasing each subsequent yeaz; and WIiEREAS, the Lease Agreement is recoznmznded for approval by staff and is approved as to form by the C3ty Attorney's Office; row, thereiore, be it I�SOLVEI3, that LL'�e Lease Agreement betrveen the Board oi Wate; �omnissioners and �41 Satellite Radio, Inc., is hereby app:oved substantially in the form submitted, and that the proper officers aze hereby authorized to execute said Lease Agxeesnent on'oehalf of the Board; and, be it FURTHER RESOLVED, that the Honorable Council of the City of Saint Paul is hereby reques�ed to approve said Lease Agreement and to authorize the proper officers of the City of Saint Faul to execute said Lease A�eement on behalf of the City. Water Commissioners Yeas Cardinal Naqs Harris Vice President Haselmann President Reiter Adopted by the Board of Water Commissionezs In favor 4 _ Opposed � Sentember 12, � 2000 (/r,,..c.� O secv. oo- 9 s �- SITE LEASE AGREEMENT between BOARD OF WATER COMIVIISSIONERS and XM SATELLITE RADIO, INC. This Lease Agreement ("Lease") is entered into this � 2� day of Se �,.-t �' , 2Q�0, between the BOARD OF WATER COMNIISSIONERS, Saint P ul, Minnesota, a municipal corporation under the laws ofthe State of Minnesota ("Lessor"), and XM SATELLTTE RADIO, INC., a Delawaze corporation, whose address is 1250 23rd Street, Washington, DC 20037 ("Lessee"). In considerauon of the terms and conditions of this Lease, the parties agree as follows: Leased Premises. Lessor hereby leases to Lessee certain space located at and on the Lessor's McKnightRoad Standpipe site located at 393 North McKnight Road, Saint Paul, Minnesota 55119- 5307, which is legally described in attached Exhibit "A," Legal Description and Site Plan. The water storage facility and its appurtenances ("Structure"), and the Lessor's land upon which the Structure is situated are collectively called "the Properiy." The properry interest leased and granted by the Lessor, ("Leased Premises") are the foilowing: • Ground space comprised of approximately ] 20 usable squaze feet. • Structure exterior space for attachment of antennas at FAGL • Space required for cable runs to connect equipment and antennas • Non-exclusive easements required to run utility lines and cables • A non-exclusive easement across the Property for access No other space or properry interests are being leased to Lessee except as described above and as described on Exhibit "A," Legal Description and Site Plan. 2. Term/Renewals. (a) The term of this Lease shall commence on the date first written above and shall terminate on December 31, 2005. Lessee and Lessor agree to enter into an addendum to this Lease confirming ttie Commencement Date, as contained in Eachibit "C," Memorandum of Lease Recording. (b) Lessee shall have the right to extend this Lease for up to two additional five-year terms (each a Renewal Term) subject to (c) below; (c) This Lease sha11 automatically be renewed for each successive Renewal Term unless Lessee is in default of any of the terms or conditions of this Lease, or unless Lessee notifies Lessor of its intention not to renew prior to commencement of the succeeding Renewal Term. N:\CLERICAL\BOARDWgreements\LEASEUCM Satellite_001 oo-qSa. 3. Renz Rent shall consist of Base Rent and such Addirional Rent as may apply. Lessee shall make all payments of Base Rent and Additional Rent to Lessor at the following address: Board of Water Commissioners 8 4th Street E, Ste. 400 Saint Paul, Minnesota 55101-1007 Lessor's FIN number is # 41-6005521 If this Lease is terminated, pursuant to the terms and conditions ofthis Lease, rent sha11 be pro-rated to the ternvnation date or the date on which all of Lessee's equipment is removed from the Leased Premises, whichever is later_ Lessee shall pay a11 rent annually in advance, on the first day of the term of this Lease and artnually on or before the first day of each January thereafter, as indicated in the payment schedule below: (a) Base Rent. Lessee sha11 pay Lessor, as rent, the sum of Six Thousand Five Hundred and No/Dollars ($6,500), ("Annual Rent"), per yeaz based upon Lessee's installation and operation of the antenna facilities and frequencies identified in Eachibit "B,"Antenna Facilities and FNequencies, ("Antenna Facilities"), and located within the Leased Premises as shown on E�ibit "A," Legal Description and Site Plan. The first year's rent shall be pro-rated to the end of 2000, and shall be paid within thirty (30) days of the commencement date. The entire annual rent due hereunder sha11 be paid prior to January first of each succeeding year. Lessee may not install and/or operate any additional antennas or related equipment beyond the antennafacilitiesandfrequenciesidentifiedinExhibit"B," AntennaFacilitiesandFrequencies and the two (2) additional antennas without a provision for additional rent and the prior written consent of Lessor, such consent not to be witt�heid or delayed without cause. (1) Annuai Increase Gommencing January 1, 20Q 1, the rent sha11 be increased annually by Five percent (5%) of the Annual Rent. (2) Re-evaluation at Renewal Term At the commencement of each Renewal Term, the Base Rent will be evaluated and established based on the following criteria: At least 120 days prior to the end of each five-year term Lessor shall notify Lessee in writing of its request for a re-evaluation of the Base Rent. The re-evaluation determines whether the Base Rent for the first year of the next five-year term wiil be either: (1) as determined by the Annual Increase; or (2) the re-evaluated rent ("Re-Evaluated RenY') as calculated using the provisions detailed in this section. N:\CLERICAL\BOARDV+,greements\LEASEVCM Satellite_001 Qp �[S a` Base Rent. (continued) Included in the notification for re-evaluation of the Base Rent, Lessor sha11 provide Lessee with at least five (5) current annual rents for water tower sites in the Minneapolis metropolitan area ("Similar Rents"), which sha11 be averaged and such resulting average shali be considered to be the Re-evaluated Rent. If Lessee does not concur with Lessor's perception of the prevailing mazket rate as evidenced by Lessor's provided Sunilar Rents, Lessee may provide Lessor, in writing, with at least five (5) Similar Rents paid by Lessee from leases executed within the previous twelve (12) months ("Newly Executed Rents"). The two highest and two lowest rents from those so provided by Lessor and Lessee shall be discarded, and the remaining rents from both parties will be averaged together. The resulting calculated average shall be considered to be the Re-Evaluated Rent. If Lessee does not provide Lessor with Newly Executed Rents within thirty (30) days of receipt of Lessor's Similar Rents, then the calculated average shall be determined solely from the Similar Rents provided by the Lessox. In the event that there aze less than five (5) Newly Executed Rents for Lessee to provide to Lessor, then Lessee sha11 provide a11 Newly Executed Rents which are auailable, and Lessor shall provide an equal number of Similar Rents. The rents provided by both parties sha11 be averaged together and the resulting calculated average sha11 be considered to be the Re- Evaluated Rent, provided, however, that in the event Lessee is unable to provide at least tlu�ee (3) Newly Executed Rents, then the calculated average shall be determined solely from the Similar Rents provided by the Lessor. The Base Rent for the first year of each Renewal Term sha11 be either the (1) Annual Increase, ar(2) Re-Evaluated Rent, whichever is greater. In no event shall the annual anstallment of rent due hereunder following such adjustment or review be less than the amount of such installment in the previous year increased by five percent (5%). Should the re-evaluation process require more than 120 days to complete, the Annual Increase amount will be paid to Lessor prior to January 1 of the first year of the Renewal Term. Any 3ncremental increase in rent that may be due as a result of the re-evaluation at Renewal Term will be paid by Lessee to Lessor for the period between January 1 of the first year of the Renewal Term and the date that the re-evaluation at Renewal Term is completed. (b) Additionai Rent. Additionai Rent means all amounts, other than Base Rent provided for in paragraph 3(a) above, that Lessee sha11 be obligated to pay under this paragraph or any other pazagraph of this Lease. Additional Rent shall include the following fees, costs and expenses: (1) costs for the repairs, improvements or alterafions required to be made by Lessee in Section 6. Maintenance and Repairs, (2) all taxes on equipment personally owned by Lessee, general or special. As a condition of Lessee's obligation to pay any taz, Lessor shall provide Lessee documentation from the t�ing authority indicating with reasonable certainty that the tax was direcdy attributable to Lessee's tenancy. Lessee sha11 N:\GLERICAL\BOARDV�qreements�LEASEVCM Satellite_001 00 - 4sr Additional Rent. (continued) have the right to file an assessment appeal, and Lessor shall cooperate in any such appeal as reasonably requested by Lessee, all at Lessee's sole cost and expense; (3) all publac utility rates, dues, and chazges of any kind for utilities used by Lessee at the Leased Premises; and (4) fees, costs and expenses for properry insurance andlor uninsured losses as set forth in Section 13. Insurance. In the event that Lessee does not pay the required Additional Rent, Lessor may, at lts option, and after ten (10) days prior written notice to Lessee, make such payments. Upon Lessor's notice to Lessee that it has made these payments, those amounts become due and payable by Lessee within thirry (30) days. (c) Lessee shall pay to Lessor a one time landscape screening fee of One Thousand and No/Dollars ($1,000). Said fee sha11 be paid within thirty (30) days of the commencement date 4. Use ojLeased Premises. (a) Lessee may use the Leased Premises for the installation, removal, replacement, operation, and maintenance of facilities for the transmission and reception of radio communica6on signals in such frequencies as are identified in E�ibit "B," Antenna Facilities and Frequencies and for the storage of related equipment in accordance with the terms of this Lease. This use shall be non-exclusive and Lessar retains the right to lease space to other parties, provided the use of such space does not interfere with Lessee's operations. Lessee shall use the Leased Premises in compliance with all federal, state, and local laws and regulations. This Lease is contingent upon Lessee receiving all permits, license or approvals from a11 local, state, or federal 1and use jurisdictions or agenc3es (e.g. F.A.A. and F.C.C.) for the intended use of the Leased Premises. Lessee sha11 obtain all such necessary permits, licenses or approvals. Lessor agrees to cooperate with Lessee, at Lessee's expense, in obtaining a11 such necessary permits, licenses or approvals. Lessee shall reimburse Lessor's reasonable expenses for obtaining all licenses, permits and any and al1 other necessary approvals that may be required for Lessee's intended use of the Leased Premises. Lessee sha11 use the Leased Premises in compliance with all federal, state, and local laws and regulations. (b) The primary use and purpose of the Leased Premises is for a water storage structure and appurtenances to provide water service to customers of the Lessor. Lessor's operations in connection with pursuit of this primary use of the Leased Premises ("Operations") take priority over Lessee's operations and Lessor reserves the right to take any action it deems necessary, in its reasonable discretion, to repair, maintain, alter or improve the Property in connection with its Operations. N:SCLERICAL\BOARD�Agreemenis\LEASEV(M Satellite_001 4 00 - qsi- Use of Leased Premises. (continued) In the event that the use of the Structure for water service is jeopazdized because of Lessee's operations on the Siructure, Lessor shall provide written nofice of such event to Lessee. Lessor and Lessee agree to work together to cure the occu�ence which causes such jeopazdy. In the event of severe jeopardy (e.g. an antenna falling into the water Structure), Lessee shall immediately cease operations at that site. Only in the case of severe }eopazdy may the Lessoz remove Lessee's equipment. This severe jeopazdy would be deemed an emergency situation. In the case of a non-severe jeopardy (e.g. a loose cable that blocks access through a caged ladder), Lessee shail make ail good efforts to cure such jeopazdy within thirry (30) days of receipt of written notice of event. If Lessee does not cure such jeopazdy within thirty (30) days of receipt of written notice of event, said occurrence of jeopardy sha11 constitute an event of default as otherwise defined in Section 12. Termination. If circumstances beyond the control of Lessee prohibit the jeopardy from reasonably being cured within thiriy (30) days, Lessee shall notify Lessor of such circumstances and commence actions required to cure the jeopardy (e.g. assessing the problem, ordering necessary equipment) within seven (7) days of Lessor's written notice of jeopardy and shall diligently pursue the cure to completion within a reasonable rime thereafter. S. Installation of Equ�ment and Leasehold Improvements (a) Lessee shall have the right, at its sole cost and expense, to install, operate and maintain in accordance with good engineering practices, and with al1 applicable Federal Communications Commission ("PCC") rules and regulations, on the Leased Premises, a11 necessary equipment, personal property, and facilities which include radio transmitting and receiving antennas and frequencies not to exceed that designated in Er,hibit "B," Antenna Facilities and Frequencies. (b) Lessee's initial installation of all Antenna Facilities and any and a11 subsequent revisions and(or modifications of the same, shall be subject to prior approval by Lessor. In the case of non- material revisions or modifications, Lessee shall provide oral notification of such plans, and Lessor shall provide oral approval or objection within forty-eight (48) hours of receipt. Failure to make any oral objection within foriy-eight (48) hours of receipt shall be deemed approval by Lessar. In the case ofmaterial revisions ormodifications, Lessee sha11 provide written notice and Lessor shall approve or object to such plans within thirty (30) days of receipt, and failure to make any objection within said thirty (30) day period shall be deemed approval by Lessor. Any damage to the Properly, Leased Premises, or any equipment thereon caused by Lessee's instaliation and operations shall be repaired ar replaced at Lessee's expense and to Lessor's reasonable sa6sfacrion. (c) Lessee shail provide Lessor with a site plan consisfing of line or CAD drawings and diagrams of the Antenna Facilities and the improvements installed on the Property by Lessee, which show the actual location of all equipment and improvements. Said drawings shall be accompanied by a complete and detailed inventory of a11 equipment, personal properiy, frequencies, and Antenna Facilities, and shall be attached hereto as E�ibit "A," Legal Description and Site Plan and E�ibit `B," Antenna Facilities and Frequencies, prior to installation. N:ICLERICAL\BOARDW.greemants�LEASEVCM Satelfite_001 5 oo-qs�- Installation of Equinment and Leasehold Improvements. (continued) (d) The manner in which Lessee's Antenna Facilities or improvements aze attached to the Structure shall be subject to prior written approval by Lessor. Lessor shall approve or object to the manner of attachment within ten (10) days of receipt of such plans, and Lessor s failure to make any objections within said ten (10) day period sha11 be deemed approval by Lessor. (e) Prior to modifying or placing additional transmitter or receiver &equencies on the Leased Premises, Lessee agrees to notify the Lessor at least sizcty (60) days before the same are modified or additional frequencies aze added so that the Lessor can perform the necessary interference studies to insure that the modified or additional frequencies will not cause harmful radio interference to Lessor's or its existing tenants' operations. Lessee shall pay the reasonable costs for any such interference studies which will be performed by Lessor's own registered professional communications engineer. In the alternative, Lessee may perform the interference studies and submit the results to the Lessor. However, the Lessor, in its sole discretion, sha11 retain the right provided herein to submit the study results to ats own registered professional communications engineer for review at Lessee's expense. 6. Maintenance and Repairs. (a) Lessee shall, at its own cost and expense, maintain its equipment in good and safe condition and in compliance with applicable fire, heaith, building and other life sa£ety codes, and shall repair any part of the Leased Premises that was damaged by the placement of Lessee's equipment thereon. (b) Lessee shall have sole responsibility for the maintenance, repair, and security of its equipment, personal properry, Antenna Facilities, and leasehold improvements, and shall keep the same in good repair and condition during the Lease Term. All Antenna Facilities and appurtenances affixed to the Shuchxre shall be painted the same colar as the Shucture. (c) Except in emergency situations, Lessor shall provide Lessee with prior written notice of at least thirry (30) days when Lessor paints or repairs its Structure. Upon receiving such notice, it sha11 be the sole responsibility of Lessee to provide adequate measures to cover, protect or remove, at Lessee's discretion, Lessee's equipment, personal property and Antenna Facilities, and to protect the same from paint and debris fallout which may occur during the paint restoration process or repairs. In the event that Lessor's painting or repairing of the Structure or the Property causes Lessee's operation of the Antenna Facilities to be interrupted, Lessee may maintain a mobile site on the Property or, after approval by Lessor, on any land owned or controlled by Lessor in the immediate area of the Property. Rent shall be abated on a prorated daily basis during such interruptions if the interruption lasts for longer than thirty (30) days. 7. Pro�erty Access. (a) Lessee sha11 have access to the Leased Premises and Properiy twenty-four (24) hours a day, seven (7) days a week by means of existing access in order to install, remove, repair, operate, and maintain its Antenna Facilities. N:ICLERICAI\BOARDWgreementslLEASEVCM Satellite 001 6 00 - qs a- Propertv Access.(continued) (b) Lessor is granted unlimited access to examiue and inspect the Leased Premises for safery reasons and to insnre that Lessee's covenants aze being met. Lessor shall be liable to and hold harmless Lessee from any damage to the Leased Premises or to Lessee's equipment and antenna facilities caused by Lessor in exercising its right to examiue and inspect the Leased Premises. (c) Lessee may also, at its own cost and ea�pense, enter upon the Property to study and detemune the Properry's suitability for any other use of Lessee, wluch studies may include surveys, radio wave propagation measurements or field strength tests. 8. Utilities. Lessor makes no representations that utilities adequate for Lessee's use of the Leased Premises are availabie. Lessee will pay for a11 utilities used by it at the Leased Premises. Lessor will cooperate with Lessee in Lessee's efforts to obtain utilities from any location provided by Lessor or the servicing utility. 9. Personal Pro�ertv and Real Estate Tazes. If any of Lessee's improvements constructed on the Leased Premises should cause the Properry, or any portion of it, to be taxed for real estate purposes, it shall be the liability of Lessee to pay that portion of such properiy taxes directly attributable to Lessee's equipment, provided Lessor shall give Lessee prior written notification ofsuch tases so that Lessee will have the oppornuuty to appeaz before the taYing authority to contest such taxes. Natwithstanding Lessee's right to contest such taa�es, Lessee shall pay its share of such taxes within thirty (30) days of receiving notice of the same. 10. Compliance and Statutes Regulations andA� rovals L,essee's use ofthe Leased Premises herein is contingent upon its obtaining all certificates, permits, zoning, and other approvals that may be required by any federal, state or local authority, including but not limited to an engineering study and a radio frequency interference study. Lessee's Antenna Facilities and any other facilities sha11 be erected, maintained and operated in accordance with all state ar federal or local or municipal statutes, ordinances, rules or regulations now in effect, or that hereafter may be issued by the FCC or any other governing bodies, and in accordance with any Leased Premises standards annexed hereto as E�ibit "D," Technical Minirnum Site Standards. Il. Interference. (a) All frequencies proposed for initiai use shall be evaluated by Lessor's communications registered professional engineer. Lessee sha11 pay the reasonable costs of such evaluation. Lessee shail not transmit or receive radio waves at the Properiy until such evaluation has been satisfactorily completed. (b} Lessee's installation, operation, and maintenance of its transmission facilities shall not daznage or interfere in any way with Lessor's operations, including Lessor's radio frequency transmission, or repair and maintenance activities. Lessor's operations take priority over Lessee's operaCions and Lessor reserves the right to take any action it deems necessary, in its reasonable discretion, N.ICLERiCAL1BOARDWgreements\LEASEIXM Satellite 001 �D-ZSa- Interference.(continued) to repair, maintain, alter or unprove the Properiy in connection with Lessor's Property operations as may be necessary. For all substantial improvements or repairs, Lessor agrees to provide Lessee with at least siaty (60) days advance notice of the same and to reasonably cooperate with Lessee to carry out such activities with a minimum amount of interference to L,essee's transmission operarions. For zninor repairs or maintenance Lessor agrees to give two (2) days advance notice of any such activities to Lessee and to reasonabiy cooperate with Lessee to carry out such activities with a m;n;mum amount of interference to Lessee's transmassion operations. Nonetheless, if Lessor's use ofthe Properry does cause interference with Lessee's operation, the Lessor shall not be responsible, and, at Lessee's choice, Lessee may terminate tlus Lease under the notice provisions and conditions as contained elsewhere in this Lease. In the event of an emergency situation which poses an immediate threat of substantial hann or damage to persons andlor properry on the Leased Premises, Lessor may enter the Leased Premises and take such actions as are required to protect individuals or personal property from such immediate threat of substantial harm or damage; provided that promptly after such emergency entry into the Leased Premises, and in no event later than twenty-four (2G) hours after such entry, Lessor gives written notice to Lessee of Lessor's entry onto the Leased Premises. (c) In its use of the Leased Premises, Lessee may not interfere with the Operations of Lessor or other parties who were occupants of the Properry priar to the commencement date of this Lease, provided that the equipment used by Lessor or other occupants is operating within the technical perimeters specified by its manufacturer and/or as defined by the FCC. In the event of any such interference, Lessee shall take all actions necessary to immediately eliminate such interference in accordance with reasonable technical standards. In the event Lessee cannot correct the interference, Lessee sha11 have the option to terminate this Lease without further liability hereunder, upon sixty (60) days written notice to Lessor. (d) Lessor will not grant a lease to any other pariy for use of the Properiy, if such use would or is likely to interfere with Lessee's operations on the Leased Premises. Any future lease by Lessor ofthe Property to additional parties which permits the installation of conununications equipment shall be conditioned upon not interfering with Lessee's use ofthe Leased Premises, and shall be terminated if interference occurs and is not corrected within a reasonable tnne. Notwithstanding the foregoing, Lessee acknowledges that Lessor may lease the Property, or any part of it, to other parties in close proximity to the Leased Premises, and Lessee agrees to work cooperatively with any such other parties, using accepted technical standards in accordance with FCC standazds, to ensure that such other parties' use and Lessee's use will be compatible and will not cause interference with each other. Lessor agrees that it will require the same obligation of all such future parties in any lease or agreement with such future parties. Further, Lessee agrees to meet the conditions set forth in E�ibit "D," Technical Minimum Site Standards. (e) Lessor in no way guarantees to Lessee noninterference with Lessee's transmission operations, provided, however, that in the event that any other party requests permission to place any type of additional antenna or transmission facility on the Property, the procedures of this Section shall govern to deterntine whether such antenna or transmission facility will interfere with Lessee's transmission operations. N:\GLERICAUBOARDWgreementsLLEASEVCM Satellite 001 00 -gs� Interference.(continued) If Lessor receives any such request or proposal from a party seeking to lease space on the Property, Lessor shall submit the proposal complete with 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 with said tlurty (30) day period shall be deemed consent by Lessee, subject to interference provisions of paragraph 11(c) of this Lease, to the installation of antennas or transmission facilities pursuant to said proposal. Lessee shall not be responsible fot the expenses incurred in any independent validation of such interference objections. (c� In the event that Lessee ar other tenants on the Properry experience interference of their approved frequencies and they cannot reach agreement as to the cause and remedy of such interference, the Lessor's own registered professional communications engineer shall determine such cause and remedy and Lessee shall abide by the engineer's determination. Lessar agrees that it will require the same obligation of a11 such fuiure parties in any lease or agreement with such other parties. (g) Without limiting the foregoing or any other remedy. Lessee shall have the right to terminate this Lease upon sixty (60) days written notice in the event its reception or transmission is interfered with by Lessor or its other tenants' equipment, such right to terminate shall become void if Lessor cures such interference within thirty (30) days of receipt of written notice. 12. Termination. Except as otherwise provided herein, this Lease may be terminated by either party upon sixty (60) days written notice to the other pariy for the following reasons: (a) by either party upon a default of any covenant or term hereof by the other party, which default is not cured witlun sixry (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, ar pursuant to any other provisions hereo fl, or if such cure cannot be completed within sixty (60) days, within such reasonable time as may be required provided the defaulting party commences the cure within ten (10) days of receipt of written notice of default and diligently pursues such cure to completion. (b) by Lessee if it is unable to obtain or maintain any license, pernut, ar other governmental approval necessary for the conshucrion and(or operation of the Antenna Facilities or Lessee's business; (c) by Lessee if the Leased Premises is or becomes unusable under Lessee's design or engineering specifications for its Antenna Facilities, or communications system. (d} by Lessor, if it determines, after review by an independent structural engineer, that the Property is structurally unsound, including but not limited to considerafion of age of the structure, damage or deshuction of all or part of the Property from any source, or factors relating to condition of the Properry; (e) by Lessor if Lessee fails to pay rent provided for in Section 3. Rent within thirry (30) days of receipt of written notice from Lessor of a rent or other payment being overdue. N:\CLERlCAU60ARDVigreements\LEASEIXM Satellite_001 oo- q5?- 13. Insurance. a) Lessee shall obtain and maintain adequate insurance to protect the parties against any and all clauns, demands, actions, judgments, expenses, and liabilities which may arise out of or result from Lessee's use of the Leased Premises. Any applicable policy shall list the Lessor and the City of Saint Paul as additional insured, and shall provide that it will be the primary coverage. The insurance coverage must include, at au�inimum, Comprehensive General Liability Insurance Coverage, including premises/operafion coverage, bodily injury, property damage, independent contractors liability, compieted operations coverage, and conttactual liability coverage, in a combined single lunit of not less than One Million Five Hundred Thousand Dollars ($1,500,000) per occurrence, subject to Three Million Dollars ($3,000,000) aggregate. Lessee may satisfy this requirement with underlying insurance and/or an umbrella policy. (b) Lessee shall provide Lessor, prior to the Commencement Date and before each Renewal Term of this Lease, 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 inparagraph 13(a) above. Said certificate sha11 also provide that the coverage may not be canceled, or non-renewed, or materially changed without thirty (30) days written notice to Lessor. I4. Indenanitv. Lessee agrees to indemnify, defend, save and hold harmless the Lessor and the City of Saint Paul, and/or any agents, officers or employees thereof from all claims, demands, actions or causes of action of whatsoever nature or character, arising out of, or by reason of, the Lease of the herein described Leased Premises by the Lessor to Lessee, or arising out of, or by reason of, the use or condition ofthe Leased Premises, or as aresultofLessee's operations or business activities taking place on the Leased Premises, provided the same is not due to the contributory negligence or willful misconduct of the Lessor, the Ciry of Saint Paul andlor any agents, officers or employees thereof. It is fully understood and agreed that Lessee is aware of the conditions of the Leased Premises and leases the same "as is." I5. Damage or Destruction. If the Properry or any portion thereof is destroyed or damaged so as to hinder its effective use, Lessee may elect to terminate this Lease upon thirty (30) days written notice to Lessor. In such event, all rights and obligations of the parties shall cease as of the date of the damage or destruction and Lessee shall be entitled to the raimbursement of any rent prepaid by Lessee, prorated to the date of the event. 16. Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given when personally delivered or mailed, certified mail, return receipt requested, to the following addresses: If to Lessor, to: Board of VJater Commissioners Attn: Bill Tschida 8 Fourth Street East, Suite 4Q0 SaintPaul, MN 55101-1007 If to Lessee, to: XM Satellite Radio, Inc. Attn: Joseph TiUebaum, General Counsel 1500 Eckington Place N.E. Washington, DC 20402-2194 N:\CLERICAL\BOARD1AgreementslLEASEV(M Satellite_001 10 8o-qs2- 17. Representations and Warranties. (a) Lessor represents that (i) it has full right, power, and authoriry to execute this Lease; (ii) it has good and unencumbered title to the Property free and cleaz of any liens or mortgages, subject to such liens of record; (iii) Lessee shall haue quiet enjoyment of the Leased Premises during the term of this Lease in accordance with its terms. (b) Lessor represents that it has no knowledge of any substauce, chemical or waste on the Property that is identified as hazardous, toxic or dangerous in any applacable federal, state or local law or regularion as defined in paragraph 17 (c) of this Lease Lessee represents and warrants that its use of the Leased Premises herein will not generate and it will not store or dispose on the Properry nor transport to or over the Property any hazardous substance, chemical or waste contrary to any law or regulation. Lessee fiu•ther agrees to hold Lessor harmless from and indemnify Lessor against any release of any such hazardous substance, and any damage, loss, expense or liability resuiting from the breach of this representation or from the violation of any state or federal law by such release associated with Lessee's use of hazardous substances, mcluding payment of a11 attorneys' fees, costs and penalties incurred as a result thereof, except for any release caused by the negligence orwillful misconduct ofLessor, its employees or agents. (c) "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazazdous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environxnental law, regulation or rule presently in effect ar promulgated in the future, as such laws, regulations or nxles may be amended from time to time. Lessor acknowledges Lessee's use of batteries as back-up power and deems them acceptable as long as such batteries are used in accordance with all applicable laws and good engineering practices. (d) The individuals signing and executing this agreement on behalf of Lessee warrant that they have the requisite corporate power and authority to enter into and perform this agreement on behalf of Lessee. 1&. No Liabilitv on Lessor. Except due to Lessor's willfui misconduct, Lessor shall not be liable for any damage to Lessee's equipment or facilities, and Lessor shall not be liable for vandalism or malicious mischief caused by third parties, known or ui�iown, to Lessee's equipment or facilities. 19. Assignmen� (a) Lessee may not assign or sublet this Lease without the prior written consent of Lessor, which consent sha11 not be withheld or delayed without reasonable cause. Notwithstanding the provisions of this pazagraph, Lessee shall have the right, without Lessor's consent, to assign this Lease to any financially responsible parent, subsidiary or affiliate of Lessee or any corporation into which Lessee may be merged or consolldated or which purchases all or substantially all of the assets of Lessee, as long as assignee assumes the obligations of this Lease. Any approved sublease that is entered into by Lessee shall be subject to all of the provisions of this Lease. (b) The parties acknowledge that this is a nonexclusive lease. Nothing in this Lease sha11 preclude Lessor from leasing other space on the Property to any other person ar entity which may be in competition with Lessee, or any other party, subject to the conditions set forth in Section 11. Interference. N:\CLERICAL\BOARD1Agreements�LEASEUCM Satellite_001 1 I 00 - 9Sa' 20. Successnrs and Assigns. This Lease shall run with the Properry. This Lease shaU be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns. 21. Surrender oj'Premises. At the expiration of the uvtial tertn of this Lease, or any Renewal Term, or any earliertermination ofthis Lease. Lessee shall quitpeacefully and sunenderpossession of said Leased Premises in as good condition as when it was delivered to Lessee, reasonable wear and tear and casualty loss excepted. Lessee shall remove its equipment, personal property, Antennas Facilities, and leasehold improvements from the Property on or before date of expiration or termination, and shall repair any damage to the Property caused by such equipment, all at Lessee's own wst and expense. 22. Marking und LightingReguirements. Lessor acknowledges that it shall be responsibie at Lessor's sole cost and expense, for compliance with all building marking and lighting requirements that the Federal Aviation Administration ("FAA") may require with respect solely to the height of Lessor's Structure. The responsibility, however, is expressly limited to the requirements that would be required of an elevated water storage facility having no communications equipment installed on it, irrespective of Lessee antennae. Lessor shall indemnify and hold harmless Lessee from any fines or other liabilities caused by Lessor's failure to comply with such requirements for the elevated water storage facility Structure. Further, should the FAA cite Lessee or in the event any claims are brought against L,essee because the Structure alone is not in compliance as opposed to the water Structure and antennae, then Lessor shall indemnify Lessee for full costs, liabilities, damages and expenses, including reasonable attorney's fees. Further, if Lessor does not cure the conditions of noncompliance on ihe Structure within the time frame allowed by the citing agency, Lessee may terminate this Lease immediately without any fiuther liability hereundex upon written notice to Lessor. Lessee acknowledges that it shall be responsible at Lessee's sole cost and expense, far compliance with all building marking and lighting requirements that the Federai Aviation Administration ("FAA") may require with respect to Lessee's antennae. Tn the event the FAA determines that Lessor's water tank needs to be marked, lighted or in any way modified due to the existence of Lessee's antennae, Lessee shall have the option to mark and light the tank at its own expense, or to terminate this Lease, pursuant to Section 12. Termination, and remove a11 its equipment at its own cost without any further liability to either party hereunder upon thiriy (30) days written notice to Lessor. Said marking, lighting and modifying shall be subject to priar written approval by Lessor, such approval not to be withheld without cause. Lessor shall approve or object to such plans within thirry (30) days of receipt, and failure to make any objection within said thirty (30) day period sha11 be deemed approval by Lessor. 23. RF Compliance. (a) Lessor's communications registered engineer may perform a radiation survey of the Property following Lessee's initial RF transmissions on the Premises. Lessee shall pay the reasonable costs for such survey, which costs shall not exceed $1,000. (b) Lessor shail cooperate with and permit Lessee to implement reasonable measures at the trans- mitting site, including restricting public access and posting signs and markings, in order far Lessee to fulfill its Radio Frequency exposure obligations. Lessor agrees that in the event any N:ICLERICALIBOARD�AgreementslLEASEIXM Satellite_001 12 00 -9s�- RF Com hn� •ance. (continued) future lessee ("Future Lessee") causes the entire site to exceed FCC Radio Frequency radiation lunits, as measured on the Premises, Lessar shail hold the Future Lessee liable for such later-arising non-compliance. 24. Miseellaneous. (a) Each parry agrees to fiarnish to the other, within twenty (20) days after norice of receipt of the request, such truthful estoppei information as the other party may reasonably request. (b) This Lease constitutes the entire agreement and understanding of the parties and supersedes any and all offers, negoriations, or other agreements of any kind. 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. (c) This Lease shall be conshued in accordance with the laws of the State of Minnesota. Any 1ega1 action may only be commenced and proceed in the relevant district court in Ramsey County, Saint Paul, Minnesota. (d) 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. (e) Upon request by Lessee, Lessor agrees to execute a recordable Memorandum of this Lease. ( fl Any claim, controversy or dispute arising out ofthis Lease sha11 be settled by binding azbitration in accordance with the applicable rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court hauing jurisdiction thereof. The arbitration sha11 be conducted in the state where the properry is located. The arbitrator shall haue the authority only to award compensatory damages and shall not have authority to award punitive damages or other noncompensatory damages. The parties hereby waive all rights to and claims for monetary awards other than compensatory damages. The arbitrator shall be either a retired judge or another professional whose expertise includes the subject azea of the dispute. (g) E�ibits "A" through "D" listed below are hereby incorporated into this Lease by reference. E�ibit "A" Legal Description and Site Plan E�ibit "B" Antenna Facilities and Frequencies E�ibit "C" Memorandum of Lease Recording E�ibit "D" Technical Minimum Site Standards END N.ICLERICAL\BOARDWgreementslLEASEVCM Satellite_001 13 Q�� lJ� IN WITNESS WIiEREOF, the parties hereto have executed this Lease, the day and yeaz first above written. Lessor: APPROVED: I: Bernie R. Bullert, General Manager Saint Paul Regional Water Services Approved as to form: l: Assistant City Attorney APPROVED: By Its Legal Counsel N 1CLERICAL\BOARDWgreementslLEASE�XM Sateliite_001 BOARD OF WATER COMNIISSIONERS FIN 41-6005521 By James C. Reiter, President 7anet Lindgren, Secretary CITY OF SAINT PAUL: By Mayor By City Clerk By Director, Office of Financial Services XM SATELLITE RADIO, INC. 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F o � a w � � h a � w N � 3 �� r x O � � zi� a W° 0� a a Z r i- a�r H C p 6 v �nN z �°u VZ y� �Z U � 0 r �a y N W WV ZV r? �� w u� r. y 0 WY a F F '�53 > KVO V'QK _ � � o u � m z 0 0 � � m� � � =a � 2 N 3 N � z Y 6 F-� k. . Q r aw o� Oo —qS?' @ ((t�))} ��^� �o�� a°„ �r w=_ e�� 3d� U ��= J �Ommm N WU �'^�` m W� nln� ..� �W �V a 3,,, � Y O�^ 5<�� W F Q w . r 3 a O � � n 4 t � W F � G n N O � h W S� F U'J t zz� i OYd 6 aF�- z ° �n, Q i, 0 6 d � � 3 m Y 0 z � � � c m o W m N 7 � =a � � oo- qsr �z � �_ do r+� wl4 Recarding Requested by: XM Satell3te, 7nc. 1250 23xd Street Washington, DC 20037 N'hen Recorded Mail to: XM Satellite, Inc. 1500Ec'mngton Place N.E. Washington, DC 20037 ath�: Royce J. Kincaid � ►gS� (spaceabovedvslmefor Recrnd�'s use anly) Memorandum of Lease T HIS MEMORANDUM OF LEASE is entered into as of , by and between BOARDOFWATERCOMNIISSIONERS,SaintPaul,Minnesota,amunicipalcorporationunder the laws of the State of Mannesota ("Lessor"), and XM SATELLITE RADIO, INC., a Delaware corporation, whose address is 1250 23rd Street, Washington, DC 20037("Lessee"). AGREEMENT 1. LEASE oF P1tEMISES. For the purpose of installing, operating, and maintaining a communicarion facility and other improvements, Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, certain premises located at 393 North McKnight Road, City of Saint Paul, County of Ramsey, State of Minnesota, and more particularly described in, and on the terms and conditions more particularly set Forth in, that certain Communication Facility Lease dated September 12, 2�00 (the "Lease") by and between Lessor and I,essee, which terms and conditions are hereby incorporated by reference. 2. The Term of Lease shall terminate on December 31, 2005, subject to two (2) additional terms of five (5) years each. 3. The Lease provides in part the grant of easement for unrestricted rights of access and to electric and telephone facilities. 4. The subject property affected by the filing and recording of this Memorandum of Lease is described in Exhibit "A," attached hereto and incorporated herein by reference. EXHIBIT "C" ao- `tSa' IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first above written. Approved Lessor. Board of Water Cownussioners, a Minnesota Municipal Corporation B Matthew J. Pfohl Its: Assistant City Attomey By: 7ames C. Reiter Its: President By: Janet Lindgren Its: Secretazy CITY OF SAINT PAUL By: Its: Mayor By: Its: City Clerk By: (name typedj jname typed] Its: Director, Office of Financial Services [name typedJ Lessee XM Satellite, Inc, a Delawaze Corporation � James G. Meyers, Director of Site Develapment 0 0- t5s- ACKNOWLEDGEMENTS STATE OF COUNTY OF ss. beforeme, Notary Public, personally appeared Matthew 7. Pfohl, James C. Reiter and Janet Lindgren, personally laiown to me (or proved to me on the basis of sarisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capaciry, and that by his signature on the inshument, the person, or the enrity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public My commission expires: (S�AL) STATE OF COUNTY OF On appeared _ before me, ss. Notary Public, personally personally lmown to me (ar proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and aclmowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public (SEAL) My commission expires: po- qS� ACKNOWLEDGEMENTS STATE OF COUNTY OF ss. before me, Notary Public, personaily appeared Frederick K. Owusu, personally taiown to me (or proved to me on the basis of sarisfactory evidence) to be the person whose name is subscribed to the within instrument and aclmowledged to me that he executed the same in his authonzed capacity, and that by his signature on the instrument, the person, or the enrity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public My commission expires: (SEAL) STATE OF COiJN i'Y OF ss. On , before me, , Notary Public, personally appeared _ personally laiown to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and aclmowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entiry upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public (SEAL) My commission expires: pp_9S?• TECHIVICAL NIINIMUM SITE STANDARDS Saint Paul Regional Water Services Water Tower Antenna Site All equipment must be housed in an RF fight, metal enclosure that provides at least 60 db of attenuation to any intemal RF signals. Desk-top base stations and open racks cannot be used without special approval. Addirional sluelding kits may be requixed. 2. At least 60 db of isolation for 450 MI3Z, 800 MFIZ and 900 MHZ transmitters and 30 db of isolation for 150 MHZ and 40 MFIZ transmitters must be provided. A hannonic filter must be provided on the transmitters between the antenna and any ferrite device used. Additional filtering and isolation may be required and will be considered on a case-by-case basis. 3. Maximum transmitter power allowed into the antenna feed line shall be 110 watts per transmitter. Higher power levels will be considered on a case-by-case basis. Additional protective devices may be required. 4. Only jacketed copper Heliax cable sha11 be permitted far transmission lines at the site. All on-site intercabling must use RGl9, RGi142, RGl214 or %z inch Superflex. RGi8 or any other single shielded cable wili not be allowed. Proposed transmitters that will cause second order, third order or fifth order intermodulation products on existing receiver frequencies will not be permitted on the site. A receiver with the same frequency as an existing second order, third order or fifth order intermodulation product at the site will not be permitted on the site. 6. All transmitters shall be equipped with band-pass cavities that will provide at least the following attenuation of side band noise, if needed: 4Q MHZ band: 150 MHZ band: 450 MHZ band: 840J900 NIHZ band: Microwave: 50 db at 1 MHZ 50 db at 1.5 MF�Z 50 db at 2.5 MI3Z 50 db at 10 MF3Z 50 db at 20 M�IZ EXHIBIT "D" OOr q J � TECIINICAL D�NIMUM SITE STANDt�RDS - Continued 7. Each cabinet must be identified by the owner's name, address, FCC station license number and the name and telephone number of the responsible service agency. 8. Prior to approving any application for antenna space at the site an engineering study will be prepared by the Engineer for the St. Paul Water Utility consisting of at least the following items: a. Intermodulation interference (IM) calculations of all transmitters and receivers known to exist in the area at time of application. (Study will include 2nd, 3rd and Sth order IM terms, and A+ B- C, three-product terms.) b. Transmitter noise and receiver desensing calculations of all equipment at the site. a Analysis of best equipment and antenna locations at the site. d. Analysis of AC power requirements. e. Report to prospective site user regazding application. 9. Pian and specifications to secure equipment to the tower must be submitted to and approved by Saint Paul Regional Water Services prior to instailarion. -End- Gouna7 FiIc # em - g s�. ORiGi�AL Preseated Ey Re`e:red To Co�ttee: Date 1 WHEREAS, the City of Saint Paul does own fee sunple title, "for the benefit of the Boazd of 2 Water Commissioners," to the water tower site commonly known as the McKnight Road 3 Standpipe site, which is located at 393 McKnight Road in Saint Paul, Minnesota: and WHEREAS, XM Satellite Radio, Tnc. desires to lease space at the Highwood Standpipe site to install and operate a wireless communication system; and 8 WHEREAS, the Board of Water Commissioners did adopt Board Resolution No. 4731 which 9 approved a Lease Agreement with XM Satellite Radio, Inc. and requested the Honorable Council 10 of the City of Saint Paul to likewise grant approval; now, therefore, be it 11 12 RESOLVED, That the Lease Agreement between the City of Saint Paul, the Board of Water 13 Commissioners, Saint Paul, Minnesota, and XM Satellite Radio, Inc. allowing the installation 14 and operation of a wireless communication system at the Highwood Standpipe site is hereby 15 approved substantially in the form submitted, and that the proper officers are hereby authorized 16 to execute said Lease Agreement on behalf of the City of Saint Paul. Req_ues:ed by Departnen[ of: ydop6on Cer�ed by Council Secretary Ey. • .. . . . . . • , r„�',� /"i % � �/ � � � Green sheet r 107.A3?� RESOLUTION Ci7Y OF SAINT PAUL, MINNESOTA a� S aint Paul Regional Water Services Bv �r c ��s . f�u--�-�t/�� eneral Manager Form Appr y Ciry Atto By. Approved y Mayor for Submitsion to Council By. ,4dopted by Council: 1?ate9�_ \\ 30 00 ao-qsa- Paul Begional Water Services TOTpL S OF SIGNATURE PAGES 1 GREEN SHEET oa�Nn�roaee�ae No 1 Q2232 anconri OIYATTOIIIEY_��1� ❑CRYC{iltK V!M ', Af�11tlLLtFkNLFtOR � /i` �❑ qY11pI�lfFRY/�LCf6 I IYVOIt1�Y9AJ11I1� • �� (CLIP ALL LOCA ONS FOR SIGNATURE) Approval of Council Resolution approving a lease agreement bet4reen the City of Saint Paul, th Board of Water Commissioners and XM Satellite Radio, Inc. allowing the installation of digita satellite radio equipment at the f3cKnight Road Standpipe site on McKnight Road in Saint Paul. Attachments: 1) Proposed Resolution 2) Lease Agreement 3) Boatd of Water Commissioners Resolution No. 4735 PUINNING COMMISSION CB COMMITTEE � CIVIL SERVICE COMMISSION Board of Water Commissioner tlas tnis a�auNfim� evwMOrked unaer a wntract for this deparcmeM? vES NO Fias thia peroaJfiim e�er 6een a cilY empbyee? rES tdo Dces Mi6 personlfiim po88e68 a Sitlll not nonnailypos6esseC by any artent cily empbyeEl YES NO �s this persor.Srm a ta.peted vendor7 YES NO Main atl ves a�uers on seoarate sheet and attach to oreert Sheet XM Satellite Radio, Inc. desires to lease space on the Board of Water Commissioners' McKnight Road Standpipe site to opetate a wireless communication system. Staff and the assistant city attorney prepared the attached lease which was approved by the Board of Water Commissioners on September 12, 2000. Because the City of Saint Paul owns the site for the benefit of the Board of Wa,ter Commissioners, the City must also be a party to any lease of the site. Board of Water Commissioners will receive additional revenue. C�t€�� s��rc`� ��,��s None Revenue potential will not be realized. OF 7WJISACTION S SOURCE huwana (exctar� COSTJREVENUE BUDGETED (qRCLE ONEJ ACTMTY NUMBER YES NO _i ,, �a BOARD OF WATER CAMMISSIONERS RESOLUTION — GENERAL FORM pRESENTED BY Harris COMMISSIONER po -qS �-- N 4735 pq � September 12,.2000 WAEREAS, XM Satellite Radio, Inc., desires to lease space from the Boazd of Water Commissionexs on its McKnight Road Standpipe site located at 393 North McKnight Road, Saint Paul, tiSinnesota 55119, to install and operate a satellite radio system; and ��'fIEREAS, staff and the assistant city attomey have prepazed a Lease Agreemeat whsch provides for a five {5} yeaz lease and which automatically renews for two (2) additional five (�) year terms, starting at an azmual lease rate of $6,500 and increasing each subsequent yeaz; and WIiEREAS, the Lease Agreement is recoznmznded for approval by staff and is approved as to form by the C3ty Attorney's Office; row, thereiore, be it I�SOLVEI3, that LL'�e Lease Agreement betrveen the Board oi Wate; �omnissioners and �41 Satellite Radio, Inc., is hereby app:oved substantially in the form submitted, and that the proper officers aze hereby authorized to execute said Lease Agxeesnent on'oehalf of the Board; and, be it FURTHER RESOLVED, that the Honorable Council of the City of Saint Paul is hereby reques�ed to approve said Lease Agreement and to authorize the proper officers of the City of Saint Faul to execute said Lease A�eement on behalf of the City. Water Commissioners Yeas Cardinal Naqs Harris Vice President Haselmann President Reiter Adopted by the Board of Water Commissionezs In favor 4 _ Opposed � Sentember 12, � 2000 (/r,,..c.� O secv. oo- 9 s �- SITE LEASE AGREEMENT between BOARD OF WATER COMIVIISSIONERS and XM SATELLITE RADIO, INC. This Lease Agreement ("Lease") is entered into this � 2� day of Se �,.-t �' , 2Q�0, between the BOARD OF WATER COMNIISSIONERS, Saint P ul, Minnesota, a municipal corporation under the laws ofthe State of Minnesota ("Lessor"), and XM SATELLTTE RADIO, INC., a Delawaze corporation, whose address is 1250 23rd Street, Washington, DC 20037 ("Lessee"). In considerauon of the terms and conditions of this Lease, the parties agree as follows: Leased Premises. Lessor hereby leases to Lessee certain space located at and on the Lessor's McKnightRoad Standpipe site located at 393 North McKnight Road, Saint Paul, Minnesota 55119- 5307, which is legally described in attached Exhibit "A," Legal Description and Site Plan. The water storage facility and its appurtenances ("Structure"), and the Lessor's land upon which the Structure is situated are collectively called "the Properiy." The properry interest leased and granted by the Lessor, ("Leased Premises") are the foilowing: • Ground space comprised of approximately ] 20 usable squaze feet. • Structure exterior space for attachment of antennas at FAGL • Space required for cable runs to connect equipment and antennas • Non-exclusive easements required to run utility lines and cables • A non-exclusive easement across the Property for access No other space or properry interests are being leased to Lessee except as described above and as described on Exhibit "A," Legal Description and Site Plan. 2. Term/Renewals. (a) The term of this Lease shall commence on the date first written above and shall terminate on December 31, 2005. Lessee and Lessor agree to enter into an addendum to this Lease confirming ttie Commencement Date, as contained in Eachibit "C," Memorandum of Lease Recording. (b) Lessee shall have the right to extend this Lease for up to two additional five-year terms (each a Renewal Term) subject to (c) below; (c) This Lease sha11 automatically be renewed for each successive Renewal Term unless Lessee is in default of any of the terms or conditions of this Lease, or unless Lessee notifies Lessor of its intention not to renew prior to commencement of the succeeding Renewal Term. N:\CLERICAL\BOARDWgreements\LEASEUCM Satellite_001 oo-qSa. 3. Renz Rent shall consist of Base Rent and such Addirional Rent as may apply. Lessee shall make all payments of Base Rent and Additional Rent to Lessor at the following address: Board of Water Commissioners 8 4th Street E, Ste. 400 Saint Paul, Minnesota 55101-1007 Lessor's FIN number is # 41-6005521 If this Lease is terminated, pursuant to the terms and conditions ofthis Lease, rent sha11 be pro-rated to the ternvnation date or the date on which all of Lessee's equipment is removed from the Leased Premises, whichever is later_ Lessee shall pay a11 rent annually in advance, on the first day of the term of this Lease and artnually on or before the first day of each January thereafter, as indicated in the payment schedule below: (a) Base Rent. Lessee sha11 pay Lessor, as rent, the sum of Six Thousand Five Hundred and No/Dollars ($6,500), ("Annual Rent"), per yeaz based upon Lessee's installation and operation of the antenna facilities and frequencies identified in Eachibit "B,"Antenna Facilities and FNequencies, ("Antenna Facilities"), and located within the Leased Premises as shown on E�ibit "A," Legal Description and Site Plan. The first year's rent shall be pro-rated to the end of 2000, and shall be paid within thirty (30) days of the commencement date. The entire annual rent due hereunder sha11 be paid prior to January first of each succeeding year. Lessee may not install and/or operate any additional antennas or related equipment beyond the antennafacilitiesandfrequenciesidentifiedinExhibit"B," AntennaFacilitiesandFrequencies and the two (2) additional antennas without a provision for additional rent and the prior written consent of Lessor, such consent not to be witt�heid or delayed without cause. (1) Annuai Increase Gommencing January 1, 20Q 1, the rent sha11 be increased annually by Five percent (5%) of the Annual Rent. (2) Re-evaluation at Renewal Term At the commencement of each Renewal Term, the Base Rent will be evaluated and established based on the following criteria: At least 120 days prior to the end of each five-year term Lessor shall notify Lessee in writing of its request for a re-evaluation of the Base Rent. The re-evaluation determines whether the Base Rent for the first year of the next five-year term wiil be either: (1) as determined by the Annual Increase; or (2) the re-evaluated rent ("Re-Evaluated RenY') as calculated using the provisions detailed in this section. N:\CLERICAL\BOARDV+,greements\LEASEVCM Satellite_001 Qp �[S a` Base Rent. (continued) Included in the notification for re-evaluation of the Base Rent, Lessor sha11 provide Lessee with at least five (5) current annual rents for water tower sites in the Minneapolis metropolitan area ("Similar Rents"), which sha11 be averaged and such resulting average shali be considered to be the Re-evaluated Rent. If Lessee does not concur with Lessor's perception of the prevailing mazket rate as evidenced by Lessor's provided Sunilar Rents, Lessee may provide Lessor, in writing, with at least five (5) Similar Rents paid by Lessee from leases executed within the previous twelve (12) months ("Newly Executed Rents"). The two highest and two lowest rents from those so provided by Lessor and Lessee shall be discarded, and the remaining rents from both parties will be averaged together. The resulting calculated average shall be considered to be the Re-Evaluated Rent. If Lessee does not provide Lessor with Newly Executed Rents within thirty (30) days of receipt of Lessor's Similar Rents, then the calculated average shall be determined solely from the Similar Rents provided by the Lessox. In the event that there aze less than five (5) Newly Executed Rents for Lessee to provide to Lessor, then Lessee sha11 provide a11 Newly Executed Rents which are auailable, and Lessor shall provide an equal number of Similar Rents. The rents provided by both parties sha11 be averaged together and the resulting calculated average sha11 be considered to be the Re- Evaluated Rent, provided, however, that in the event Lessee is unable to provide at least tlu�ee (3) Newly Executed Rents, then the calculated average shall be determined solely from the Similar Rents provided by the Lessor. The Base Rent for the first year of each Renewal Term sha11 be either the (1) Annual Increase, ar(2) Re-Evaluated Rent, whichever is greater. In no event shall the annual anstallment of rent due hereunder following such adjustment or review be less than the amount of such installment in the previous year increased by five percent (5%). Should the re-evaluation process require more than 120 days to complete, the Annual Increase amount will be paid to Lessor prior to January 1 of the first year of the Renewal Term. Any 3ncremental increase in rent that may be due as a result of the re-evaluation at Renewal Term will be paid by Lessee to Lessor for the period between January 1 of the first year of the Renewal Term and the date that the re-evaluation at Renewal Term is completed. (b) Additionai Rent. Additionai Rent means all amounts, other than Base Rent provided for in paragraph 3(a) above, that Lessee sha11 be obligated to pay under this paragraph or any other pazagraph of this Lease. Additional Rent shall include the following fees, costs and expenses: (1) costs for the repairs, improvements or alterafions required to be made by Lessee in Section 6. Maintenance and Repairs, (2) all taxes on equipment personally owned by Lessee, general or special. As a condition of Lessee's obligation to pay any taz, Lessor shall provide Lessee documentation from the t�ing authority indicating with reasonable certainty that the tax was direcdy attributable to Lessee's tenancy. Lessee sha11 N:\GLERICAL\BOARDV�qreements�LEASEVCM Satellite_001 00 - 4sr Additional Rent. (continued) have the right to file an assessment appeal, and Lessor shall cooperate in any such appeal as reasonably requested by Lessee, all at Lessee's sole cost and expense; (3) all publac utility rates, dues, and chazges of any kind for utilities used by Lessee at the Leased Premises; and (4) fees, costs and expenses for properry insurance andlor uninsured losses as set forth in Section 13. Insurance. In the event that Lessee does not pay the required Additional Rent, Lessor may, at lts option, and after ten (10) days prior written notice to Lessee, make such payments. Upon Lessor's notice to Lessee that it has made these payments, those amounts become due and payable by Lessee within thirry (30) days. (c) Lessee shall pay to Lessor a one time landscape screening fee of One Thousand and No/Dollars ($1,000). Said fee sha11 be paid within thirty (30) days of the commencement date 4. Use ojLeased Premises. (a) Lessee may use the Leased Premises for the installation, removal, replacement, operation, and maintenance of facilities for the transmission and reception of radio communica6on signals in such frequencies as are identified in E�ibit "B," Antenna Facilities and Frequencies and for the storage of related equipment in accordance with the terms of this Lease. This use shall be non-exclusive and Lessar retains the right to lease space to other parties, provided the use of such space does not interfere with Lessee's operations. Lessee shall use the Leased Premises in compliance with all federal, state, and local laws and regulations. This Lease is contingent upon Lessee receiving all permits, license or approvals from a11 local, state, or federal 1and use jurisdictions or agenc3es (e.g. F.A.A. and F.C.C.) for the intended use of the Leased Premises. Lessee sha11 obtain all such necessary permits, licenses or approvals. Lessor agrees to cooperate with Lessee, at Lessee's expense, in obtaining a11 such necessary permits, licenses or approvals. Lessee shall reimburse Lessor's reasonable expenses for obtaining all licenses, permits and any and al1 other necessary approvals that may be required for Lessee's intended use of the Leased Premises. Lessee sha11 use the Leased Premises in compliance with all federal, state, and local laws and regulations. (b) The primary use and purpose of the Leased Premises is for a water storage structure and appurtenances to provide water service to customers of the Lessor. Lessor's operations in connection with pursuit of this primary use of the Leased Premises ("Operations") take priority over Lessee's operations and Lessor reserves the right to take any action it deems necessary, in its reasonable discretion, to repair, maintain, alter or improve the Property in connection with its Operations. N:SCLERICAL\BOARD�Agreemenis\LEASEV(M Satellite_001 4 00 - qsi- Use of Leased Premises. (continued) In the event that the use of the Structure for water service is jeopazdized because of Lessee's operations on the Siructure, Lessor shall provide written nofice of such event to Lessee. Lessor and Lessee agree to work together to cure the occu�ence which causes such jeopazdy. In the event of severe jeopardy (e.g. an antenna falling into the water Structure), Lessee shall immediately cease operations at that site. Only in the case of severe }eopazdy may the Lessoz remove Lessee's equipment. This severe jeopazdy would be deemed an emergency situation. In the case of a non-severe jeopardy (e.g. a loose cable that blocks access through a caged ladder), Lessee shail make ail good efforts to cure such jeopazdy within thirry (30) days of receipt of written notice of event. If Lessee does not cure such jeopazdy within thirty (30) days of receipt of written notice of event, said occurrence of jeopardy sha11 constitute an event of default as otherwise defined in Section 12. Termination. If circumstances beyond the control of Lessee prohibit the jeopardy from reasonably being cured within thiriy (30) days, Lessee shall notify Lessor of such circumstances and commence actions required to cure the jeopardy (e.g. assessing the problem, ordering necessary equipment) within seven (7) days of Lessor's written notice of jeopardy and shall diligently pursue the cure to completion within a reasonable rime thereafter. S. Installation of Equ�ment and Leasehold Improvements (a) Lessee shall have the right, at its sole cost and expense, to install, operate and maintain in accordance with good engineering practices, and with al1 applicable Federal Communications Commission ("PCC") rules and regulations, on the Leased Premises, a11 necessary equipment, personal property, and facilities which include radio transmitting and receiving antennas and frequencies not to exceed that designated in Er,hibit "B," Antenna Facilities and Frequencies. (b) Lessee's initial installation of all Antenna Facilities and any and a11 subsequent revisions and(or modifications of the same, shall be subject to prior approval by Lessor. In the case of non- material revisions or modifications, Lessee shall provide oral notification of such plans, and Lessor shall provide oral approval or objection within forty-eight (48) hours of receipt. Failure to make any oral objection within foriy-eight (48) hours of receipt shall be deemed approval by Lessar. In the case ofmaterial revisions ormodifications, Lessee sha11 provide written notice and Lessor shall approve or object to such plans within thirty (30) days of receipt, and failure to make any objection within said thirty (30) day period shall be deemed approval by Lessor. Any damage to the Properly, Leased Premises, or any equipment thereon caused by Lessee's instaliation and operations shall be repaired ar replaced at Lessee's expense and to Lessor's reasonable sa6sfacrion. (c) Lessee shail provide Lessor with a site plan consisfing of line or CAD drawings and diagrams of the Antenna Facilities and the improvements installed on the Property by Lessee, which show the actual location of all equipment and improvements. Said drawings shall be accompanied by a complete and detailed inventory of a11 equipment, personal properiy, frequencies, and Antenna Facilities, and shall be attached hereto as E�ibit "A," Legal Description and Site Plan and E�ibit `B," Antenna Facilities and Frequencies, prior to installation. N:ICLERICAL\BOARDW.greemants�LEASEVCM Satelfite_001 5 oo-qs�- Installation of Equinment and Leasehold Improvements. (continued) (d) The manner in which Lessee's Antenna Facilities or improvements aze attached to the Structure shall be subject to prior written approval by Lessor. Lessor shall approve or object to the manner of attachment within ten (10) days of receipt of such plans, and Lessor s failure to make any objections within said ten (10) day period sha11 be deemed approval by Lessor. (e) Prior to modifying or placing additional transmitter or receiver &equencies on the Leased Premises, Lessee agrees to notify the Lessor at least sizcty (60) days before the same are modified or additional frequencies aze added so that the Lessor can perform the necessary interference studies to insure that the modified or additional frequencies will not cause harmful radio interference to Lessor's or its existing tenants' operations. Lessee shall pay the reasonable costs for any such interference studies which will be performed by Lessor's own registered professional communications engineer. In the alternative, Lessee may perform the interference studies and submit the results to the Lessor. However, the Lessor, in its sole discretion, sha11 retain the right provided herein to submit the study results to ats own registered professional communications engineer for review at Lessee's expense. 6. Maintenance and Repairs. (a) Lessee shall, at its own cost and expense, maintain its equipment in good and safe condition and in compliance with applicable fire, heaith, building and other life sa£ety codes, and shall repair any part of the Leased Premises that was damaged by the placement of Lessee's equipment thereon. (b) Lessee shall have sole responsibility for the maintenance, repair, and security of its equipment, personal properry, Antenna Facilities, and leasehold improvements, and shall keep the same in good repair and condition during the Lease Term. All Antenna Facilities and appurtenances affixed to the Shuchxre shall be painted the same colar as the Shucture. (c) Except in emergency situations, Lessor shall provide Lessee with prior written notice of at least thirry (30) days when Lessor paints or repairs its Structure. Upon receiving such notice, it sha11 be the sole responsibility of Lessee to provide adequate measures to cover, protect or remove, at Lessee's discretion, Lessee's equipment, personal property and Antenna Facilities, and to protect the same from paint and debris fallout which may occur during the paint restoration process or repairs. In the event that Lessor's painting or repairing of the Structure or the Property causes Lessee's operation of the Antenna Facilities to be interrupted, Lessee may maintain a mobile site on the Property or, after approval by Lessor, on any land owned or controlled by Lessor in the immediate area of the Property. Rent shall be abated on a prorated daily basis during such interruptions if the interruption lasts for longer than thirty (30) days. 7. Pro�erty Access. (a) Lessee sha11 have access to the Leased Premises and Properiy twenty-four (24) hours a day, seven (7) days a week by means of existing access in order to install, remove, repair, operate, and maintain its Antenna Facilities. N:ICLERICAI\BOARDWgreementslLEASEVCM Satellite 001 6 00 - qs a- Propertv Access.(continued) (b) Lessor is granted unlimited access to examiue and inspect the Leased Premises for safery reasons and to insnre that Lessee's covenants aze being met. Lessor shall be liable to and hold harmless Lessee from any damage to the Leased Premises or to Lessee's equipment and antenna facilities caused by Lessor in exercising its right to examiue and inspect the Leased Premises. (c) Lessee may also, at its own cost and ea�pense, enter upon the Property to study and detemune the Properry's suitability for any other use of Lessee, wluch studies may include surveys, radio wave propagation measurements or field strength tests. 8. Utilities. Lessor makes no representations that utilities adequate for Lessee's use of the Leased Premises are availabie. Lessee will pay for a11 utilities used by it at the Leased Premises. Lessor will cooperate with Lessee in Lessee's efforts to obtain utilities from any location provided by Lessor or the servicing utility. 9. Personal Pro�ertv and Real Estate Tazes. If any of Lessee's improvements constructed on the Leased Premises should cause the Properry, or any portion of it, to be taxed for real estate purposes, it shall be the liability of Lessee to pay that portion of such properiy taxes directly attributable to Lessee's equipment, provided Lessor shall give Lessee prior written notification ofsuch tases so that Lessee will have the oppornuuty to appeaz before the taYing authority to contest such taxes. Natwithstanding Lessee's right to contest such taa�es, Lessee shall pay its share of such taxes within thirty (30) days of receiving notice of the same. 10. Compliance and Statutes Regulations andA� rovals L,essee's use ofthe Leased Premises herein is contingent upon its obtaining all certificates, permits, zoning, and other approvals that may be required by any federal, state or local authority, including but not limited to an engineering study and a radio frequency interference study. Lessee's Antenna Facilities and any other facilities sha11 be erected, maintained and operated in accordance with all state ar federal or local or municipal statutes, ordinances, rules or regulations now in effect, or that hereafter may be issued by the FCC or any other governing bodies, and in accordance with any Leased Premises standards annexed hereto as E�ibit "D," Technical Minirnum Site Standards. Il. Interference. (a) All frequencies proposed for initiai use shall be evaluated by Lessor's communications registered professional engineer. Lessee sha11 pay the reasonable costs of such evaluation. Lessee shail not transmit or receive radio waves at the Properiy until such evaluation has been satisfactorily completed. (b} Lessee's installation, operation, and maintenance of its transmission facilities shall not daznage or interfere in any way with Lessor's operations, including Lessor's radio frequency transmission, or repair and maintenance activities. Lessor's operations take priority over Lessee's operaCions and Lessor reserves the right to take any action it deems necessary, in its reasonable discretion, N.ICLERiCAL1BOARDWgreements\LEASEIXM Satellite 001 �D-ZSa- Interference.(continued) to repair, maintain, alter or unprove the Properiy in connection with Lessor's Property operations as may be necessary. For all substantial improvements or repairs, Lessor agrees to provide Lessee with at least siaty (60) days advance notice of the same and to reasonably cooperate with Lessee to carry out such activities with a minimum amount of interference to L,essee's transmission operarions. For zninor repairs or maintenance Lessor agrees to give two (2) days advance notice of any such activities to Lessee and to reasonabiy cooperate with Lessee to carry out such activities with a m;n;mum amount of interference to Lessee's transmassion operations. Nonetheless, if Lessor's use ofthe Properry does cause interference with Lessee's operation, the Lessor shall not be responsible, and, at Lessee's choice, Lessee may terminate tlus Lease under the notice provisions and conditions as contained elsewhere in this Lease. In the event of an emergency situation which poses an immediate threat of substantial hann or damage to persons andlor properry on the Leased Premises, Lessor may enter the Leased Premises and take such actions as are required to protect individuals or personal property from such immediate threat of substantial harm or damage; provided that promptly after such emergency entry into the Leased Premises, and in no event later than twenty-four (2G) hours after such entry, Lessor gives written notice to Lessee of Lessor's entry onto the Leased Premises. (c) In its use of the Leased Premises, Lessee may not interfere with the Operations of Lessor or other parties who were occupants of the Properry priar to the commencement date of this Lease, provided that the equipment used by Lessor or other occupants is operating within the technical perimeters specified by its manufacturer and/or as defined by the FCC. In the event of any such interference, Lessee shall take all actions necessary to immediately eliminate such interference in accordance with reasonable technical standards. In the event Lessee cannot correct the interference, Lessee sha11 have the option to terminate this Lease without further liability hereunder, upon sixty (60) days written notice to Lessor. (d) Lessor will not grant a lease to any other pariy for use of the Properiy, if such use would or is likely to interfere with Lessee's operations on the Leased Premises. Any future lease by Lessor ofthe Property to additional parties which permits the installation of conununications equipment shall be conditioned upon not interfering with Lessee's use ofthe Leased Premises, and shall be terminated if interference occurs and is not corrected within a reasonable tnne. Notwithstanding the foregoing, Lessee acknowledges that Lessor may lease the Property, or any part of it, to other parties in close proximity to the Leased Premises, and Lessee agrees to work cooperatively with any such other parties, using accepted technical standards in accordance with FCC standazds, to ensure that such other parties' use and Lessee's use will be compatible and will not cause interference with each other. Lessor agrees that it will require the same obligation of all such future parties in any lease or agreement with such future parties. Further, Lessee agrees to meet the conditions set forth in E�ibit "D," Technical Minimum Site Standards. (e) Lessor in no way guarantees to Lessee noninterference with Lessee's transmission operations, provided, however, that in the event that any other party requests permission to place any type of additional antenna or transmission facility on the Property, the procedures of this Section shall govern to deterntine whether such antenna or transmission facility will interfere with Lessee's transmission operations. N:\GLERICAUBOARDWgreementsLLEASEVCM Satellite 001 00 -gs� Interference.(continued) If Lessor receives any such request or proposal from a party seeking to lease space on the Property, Lessor shall submit the proposal complete with 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 with said tlurty (30) day period shall be deemed consent by Lessee, subject to interference provisions of paragraph 11(c) of this Lease, to the installation of antennas or transmission facilities pursuant to said proposal. Lessee shall not be responsible fot the expenses incurred in any independent validation of such interference objections. (c� In the event that Lessee ar other tenants on the Properry experience interference of their approved frequencies and they cannot reach agreement as to the cause and remedy of such interference, the Lessor's own registered professional communications engineer shall determine such cause and remedy and Lessee shall abide by the engineer's determination. Lessar agrees that it will require the same obligation of a11 such fuiure parties in any lease or agreement with such other parties. (g) Without limiting the foregoing or any other remedy. Lessee shall have the right to terminate this Lease upon sixty (60) days written notice in the event its reception or transmission is interfered with by Lessor or its other tenants' equipment, such right to terminate shall become void if Lessor cures such interference within thirty (30) days of receipt of written notice. 12. Termination. Except as otherwise provided herein, this Lease may be terminated by either party upon sixty (60) days written notice to the other pariy for the following reasons: (a) by either party upon a default of any covenant or term hereof by the other party, which default is not cured witlun sixry (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, ar pursuant to any other provisions hereo fl, or if such cure cannot be completed within sixty (60) days, within such reasonable time as may be required provided the defaulting party commences the cure within ten (10) days of receipt of written notice of default and diligently pursues such cure to completion. (b) by Lessee if it is unable to obtain or maintain any license, pernut, ar other governmental approval necessary for the conshucrion and(or operation of the Antenna Facilities or Lessee's business; (c) by Lessee if the Leased Premises is or becomes unusable under Lessee's design or engineering specifications for its Antenna Facilities, or communications system. (d} by Lessor, if it determines, after review by an independent structural engineer, that the Property is structurally unsound, including but not limited to considerafion of age of the structure, damage or deshuction of all or part of the Property from any source, or factors relating to condition of the Properry; (e) by Lessor if Lessee fails to pay rent provided for in Section 3. Rent within thirry (30) days of receipt of written notice from Lessor of a rent or other payment being overdue. N:\CLERlCAU60ARDVigreements\LEASEIXM Satellite_001 oo- q5?- 13. Insurance. a) Lessee shall obtain and maintain adequate insurance to protect the parties against any and all clauns, demands, actions, judgments, expenses, and liabilities which may arise out of or result from Lessee's use of the Leased Premises. Any applicable policy shall list the Lessor and the City of Saint Paul as additional insured, and shall provide that it will be the primary coverage. The insurance coverage must include, at au�inimum, Comprehensive General Liability Insurance Coverage, including premises/operafion coverage, bodily injury, property damage, independent contractors liability, compieted operations coverage, and conttactual liability coverage, in a combined single lunit of not less than One Million Five Hundred Thousand Dollars ($1,500,000) per occurrence, subject to Three Million Dollars ($3,000,000) aggregate. Lessee may satisfy this requirement with underlying insurance and/or an umbrella policy. (b) Lessee shall provide Lessor, prior to the Commencement Date and before each Renewal Term of this Lease, 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 inparagraph 13(a) above. Said certificate sha11 also provide that the coverage may not be canceled, or non-renewed, or materially changed without thirty (30) days written notice to Lessor. I4. Indenanitv. Lessee agrees to indemnify, defend, save and hold harmless the Lessor and the City of Saint Paul, and/or any agents, officers or employees thereof from all claims, demands, actions or causes of action of whatsoever nature or character, arising out of, or by reason of, the Lease of the herein described Leased Premises by the Lessor to Lessee, or arising out of, or by reason of, the use or condition ofthe Leased Premises, or as aresultofLessee's operations or business activities taking place on the Leased Premises, provided the same is not due to the contributory negligence or willful misconduct of the Lessor, the Ciry of Saint Paul andlor any agents, officers or employees thereof. It is fully understood and agreed that Lessee is aware of the conditions of the Leased Premises and leases the same "as is." I5. Damage or Destruction. If the Properry or any portion thereof is destroyed or damaged so as to hinder its effective use, Lessee may elect to terminate this Lease upon thirty (30) days written notice to Lessor. In such event, all rights and obligations of the parties shall cease as of the date of the damage or destruction and Lessee shall be entitled to the raimbursement of any rent prepaid by Lessee, prorated to the date of the event. 16. Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given when personally delivered or mailed, certified mail, return receipt requested, to the following addresses: If to Lessor, to: Board of VJater Commissioners Attn: Bill Tschida 8 Fourth Street East, Suite 4Q0 SaintPaul, MN 55101-1007 If to Lessee, to: XM Satellite Radio, Inc. Attn: Joseph TiUebaum, General Counsel 1500 Eckington Place N.E. Washington, DC 20402-2194 N:\CLERICAL\BOARD1AgreementslLEASEV(M Satellite_001 10 8o-qs2- 17. Representations and Warranties. (a) Lessor represents that (i) it has full right, power, and authoriry to execute this Lease; (ii) it has good and unencumbered title to the Property free and cleaz of any liens or mortgages, subject to such liens of record; (iii) Lessee shall haue quiet enjoyment of the Leased Premises during the term of this Lease in accordance with its terms. (b) Lessor represents that it has no knowledge of any substauce, chemical or waste on the Property that is identified as hazardous, toxic or dangerous in any applacable federal, state or local law or regularion as defined in paragraph 17 (c) of this Lease Lessee represents and warrants that its use of the Leased Premises herein will not generate and it will not store or dispose on the Properry nor transport to or over the Property any hazardous substance, chemical or waste contrary to any law or regulation. Lessee fiu•ther agrees to hold Lessor harmless from and indemnify Lessor against any release of any such hazardous substance, and any damage, loss, expense or liability resuiting from the breach of this representation or from the violation of any state or federal law by such release associated with Lessee's use of hazardous substances, mcluding payment of a11 attorneys' fees, costs and penalties incurred as a result thereof, except for any release caused by the negligence orwillful misconduct ofLessor, its employees or agents. (c) "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazazdous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environxnental law, regulation or rule presently in effect ar promulgated in the future, as such laws, regulations or nxles may be amended from time to time. Lessor acknowledges Lessee's use of batteries as back-up power and deems them acceptable as long as such batteries are used in accordance with all applicable laws and good engineering practices. (d) The individuals signing and executing this agreement on behalf of Lessee warrant that they have the requisite corporate power and authority to enter into and perform this agreement on behalf of Lessee. 1&. No Liabilitv on Lessor. Except due to Lessor's willfui misconduct, Lessor shall not be liable for any damage to Lessee's equipment or facilities, and Lessor shall not be liable for vandalism or malicious mischief caused by third parties, known or ui�iown, to Lessee's equipment or facilities. 19. Assignmen� (a) Lessee may not assign or sublet this Lease without the prior written consent of Lessor, which consent sha11 not be withheld or delayed without reasonable cause. Notwithstanding the provisions of this pazagraph, Lessee shall have the right, without Lessor's consent, to assign this Lease to any financially responsible parent, subsidiary or affiliate of Lessee or any corporation into which Lessee may be merged or consolldated or which purchases all or substantially all of the assets of Lessee, as long as assignee assumes the obligations of this Lease. Any approved sublease that is entered into by Lessee shall be subject to all of the provisions of this Lease. (b) The parties acknowledge that this is a nonexclusive lease. Nothing in this Lease sha11 preclude Lessor from leasing other space on the Property to any other person ar entity which may be in competition with Lessee, or any other party, subject to the conditions set forth in Section 11. Interference. N:\CLERICAL\BOARD1Agreements�LEASEUCM Satellite_001 1 I 00 - 9Sa' 20. Successnrs and Assigns. This Lease shall run with the Properry. This Lease shaU be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns. 21. Surrender oj'Premises. At the expiration of the uvtial tertn of this Lease, or any Renewal Term, or any earliertermination ofthis Lease. Lessee shall quitpeacefully and sunenderpossession of said Leased Premises in as good condition as when it was delivered to Lessee, reasonable wear and tear and casualty loss excepted. Lessee shall remove its equipment, personal property, Antennas Facilities, and leasehold improvements from the Property on or before date of expiration or termination, and shall repair any damage to the Property caused by such equipment, all at Lessee's own wst and expense. 22. Marking und LightingReguirements. Lessor acknowledges that it shall be responsibie at Lessor's sole cost and expense, for compliance with all building marking and lighting requirements that the Federal Aviation Administration ("FAA") may require with respect solely to the height of Lessor's Structure. The responsibility, however, is expressly limited to the requirements that would be required of an elevated water storage facility having no communications equipment installed on it, irrespective of Lessee antennae. Lessor shall indemnify and hold harmless Lessee from any fines or other liabilities caused by Lessor's failure to comply with such requirements for the elevated water storage facility Structure. Further, should the FAA cite Lessee or in the event any claims are brought against L,essee because the Structure alone is not in compliance as opposed to the water Structure and antennae, then Lessor shall indemnify Lessee for full costs, liabilities, damages and expenses, including reasonable attorney's fees. Further, if Lessor does not cure the conditions of noncompliance on ihe Structure within the time frame allowed by the citing agency, Lessee may terminate this Lease immediately without any fiuther liability hereundex upon written notice to Lessor. Lessee acknowledges that it shall be responsible at Lessee's sole cost and expense, far compliance with all building marking and lighting requirements that the Federai Aviation Administration ("FAA") may require with respect to Lessee's antennae. Tn the event the FAA determines that Lessor's water tank needs to be marked, lighted or in any way modified due to the existence of Lessee's antennae, Lessee shall have the option to mark and light the tank at its own expense, or to terminate this Lease, pursuant to Section 12. Termination, and remove a11 its equipment at its own cost without any further liability to either party hereunder upon thiriy (30) days written notice to Lessor. Said marking, lighting and modifying shall be subject to priar written approval by Lessor, such approval not to be withheld without cause. Lessor shall approve or object to such plans within thirry (30) days of receipt, and failure to make any objection within said thirty (30) day period sha11 be deemed approval by Lessor. 23. RF Compliance. (a) Lessor's communications registered engineer may perform a radiation survey of the Property following Lessee's initial RF transmissions on the Premises. Lessee shall pay the reasonable costs for such survey, which costs shall not exceed $1,000. (b) Lessor shail cooperate with and permit Lessee to implement reasonable measures at the trans- mitting site, including restricting public access and posting signs and markings, in order far Lessee to fulfill its Radio Frequency exposure obligations. Lessor agrees that in the event any N:ICLERICALIBOARD�AgreementslLEASEIXM Satellite_001 12 00 -9s�- RF Com hn� •ance. (continued) future lessee ("Future Lessee") causes the entire site to exceed FCC Radio Frequency radiation lunits, as measured on the Premises, Lessar shail hold the Future Lessee liable for such later-arising non-compliance. 24. Miseellaneous. (a) Each parry agrees to fiarnish to the other, within twenty (20) days after norice of receipt of the request, such truthful estoppei information as the other party may reasonably request. (b) This Lease constitutes the entire agreement and understanding of the parties and supersedes any and all offers, negoriations, or other agreements of any kind. 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. (c) This Lease shall be conshued in accordance with the laws of the State of Minnesota. Any 1ega1 action may only be commenced and proceed in the relevant district court in Ramsey County, Saint Paul, Minnesota. (d) 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. (e) Upon request by Lessee, Lessor agrees to execute a recordable Memorandum of this Lease. ( fl Any claim, controversy or dispute arising out ofthis Lease sha11 be settled by binding azbitration in accordance with the applicable rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court hauing jurisdiction thereof. The arbitration sha11 be conducted in the state where the properry is located. The arbitrator shall haue the authority only to award compensatory damages and shall not have authority to award punitive damages or other noncompensatory damages. The parties hereby waive all rights to and claims for monetary awards other than compensatory damages. The arbitrator shall be either a retired judge or another professional whose expertise includes the subject azea of the dispute. (g) E�ibits "A" through "D" listed below are hereby incorporated into this Lease by reference. E�ibit "A" Legal Description and Site Plan E�ibit "B" Antenna Facilities and Frequencies E�ibit "C" Memorandum of Lease Recording E�ibit "D" Technical Minimum Site Standards END N.ICLERICAL\BOARDWgreementslLEASEVCM Satellite_001 13 Q�� lJ� IN WITNESS WIiEREOF, the parties hereto have executed this Lease, the day and yeaz first above written. Lessor: APPROVED: I: Bernie R. Bullert, General Manager Saint Paul Regional Water Services Approved as to form: l: Assistant City Attorney APPROVED: By Its Legal Counsel N 1CLERICAL\BOARDWgreementslLEASE�XM Sateliite_001 BOARD OF WATER COMNIISSIONERS FIN 41-6005521 By James C. Reiter, President 7anet Lindgren, Secretary CITY OF SAINT PAUL: By Mayor By City Clerk By Director, Office of Financial Services XM SATELLITE RADIO, INC. 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F o � a w � � h a � w N � 3 �� r x O � � zi� a W° 0� a a Z r i- a�r H C p 6 v �nN z �°u VZ y� �Z U � 0 r �a y N W WV ZV r? �� w u� r. y 0 WY a F F '�53 > KVO V'QK _ � � o u � m z 0 0 � � m� � � =a � 2 N 3 N � z Y 6 F-� k. . Q r aw o� Oo —qS?' @ ((t�))} ��^� �o�� a°„ �r w=_ e�� 3d� U ��= J �Ommm N WU �'^�` m W� nln� ..� �W �V a 3,,, � Y O�^ 5<�� W F Q w . r 3 a O � � n 4 t � W F � G n N O � h W S� F U'J t zz� i OYd 6 aF�- z ° �n, Q i, 0 6 d � � 3 m Y 0 z � � � c m o W m N 7 � =a � � oo- qsr �z � �_ do r+� wl4 Recarding Requested by: XM Satell3te, 7nc. 1250 23xd Street Washington, DC 20037 N'hen Recorded Mail to: XM Satellite, Inc. 1500Ec'mngton Place N.E. Washington, DC 20037 ath�: Royce J. Kincaid � ►gS� (spaceabovedvslmefor Recrnd�'s use anly) Memorandum of Lease T HIS MEMORANDUM OF LEASE is entered into as of , by and between BOARDOFWATERCOMNIISSIONERS,SaintPaul,Minnesota,amunicipalcorporationunder the laws of the State of Mannesota ("Lessor"), and XM SATELLITE RADIO, INC., a Delaware corporation, whose address is 1250 23rd Street, Washington, DC 20037("Lessee"). AGREEMENT 1. LEASE oF P1tEMISES. For the purpose of installing, operating, and maintaining a communicarion facility and other improvements, Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, certain premises located at 393 North McKnight Road, City of Saint Paul, County of Ramsey, State of Minnesota, and more particularly described in, and on the terms and conditions more particularly set Forth in, that certain Communication Facility Lease dated September 12, 2�00 (the "Lease") by and between Lessor and I,essee, which terms and conditions are hereby incorporated by reference. 2. The Term of Lease shall terminate on December 31, 2005, subject to two (2) additional terms of five (5) years each. 3. The Lease provides in part the grant of easement for unrestricted rights of access and to electric and telephone facilities. 4. The subject property affected by the filing and recording of this Memorandum of Lease is described in Exhibit "A," attached hereto and incorporated herein by reference. EXHIBIT "C" ao- `tSa' IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first above written. Approved Lessor. Board of Water Cownussioners, a Minnesota Municipal Corporation B Matthew J. Pfohl Its: Assistant City Attomey By: 7ames C. Reiter Its: President By: Janet Lindgren Its: Secretazy CITY OF SAINT PAUL By: Its: Mayor By: Its: City Clerk By: (name typedj jname typed] Its: Director, Office of Financial Services [name typedJ Lessee XM Satellite, Inc, a Delawaze Corporation � James G. Meyers, Director of Site Develapment 0 0- t5s- ACKNOWLEDGEMENTS STATE OF COUNTY OF ss. beforeme, Notary Public, personally appeared Matthew 7. Pfohl, James C. Reiter and Janet Lindgren, personally laiown to me (or proved to me on the basis of sarisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capaciry, and that by his signature on the inshument, the person, or the enrity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public My commission expires: (S�AL) STATE OF COUNTY OF On appeared _ before me, ss. Notary Public, personally personally lmown to me (ar proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and aclmowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public (SEAL) My commission expires: po- qS� ACKNOWLEDGEMENTS STATE OF COUNTY OF ss. before me, Notary Public, personaily appeared Frederick K. Owusu, personally taiown to me (or proved to me on the basis of sarisfactory evidence) to be the person whose name is subscribed to the within instrument and aclmowledged to me that he executed the same in his authonzed capacity, and that by his signature on the instrument, the person, or the enrity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public My commission expires: (SEAL) STATE OF COiJN i'Y OF ss. On , before me, , Notary Public, personally appeared _ personally laiown to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and aclmowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entiry upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary Public (SEAL) My commission expires: pp_9S?• TECHIVICAL NIINIMUM SITE STANDARDS Saint Paul Regional Water Services Water Tower Antenna Site All equipment must be housed in an RF fight, metal enclosure that provides at least 60 db of attenuation to any intemal RF signals. Desk-top base stations and open racks cannot be used without special approval. Addirional sluelding kits may be requixed. 2. At least 60 db of isolation for 450 MI3Z, 800 MFIZ and 900 MHZ transmitters and 30 db of isolation for 150 MHZ and 40 MFIZ transmitters must be provided. A hannonic filter must be provided on the transmitters between the antenna and any ferrite device used. Additional filtering and isolation may be required and will be considered on a case-by-case basis. 3. Maximum transmitter power allowed into the antenna feed line shall be 110 watts per transmitter. Higher power levels will be considered on a case-by-case basis. Additional protective devices may be required. 4. Only jacketed copper Heliax cable sha11 be permitted far transmission lines at the site. All on-site intercabling must use RGl9, RGi142, RGl214 or %z inch Superflex. RGi8 or any other single shielded cable wili not be allowed. Proposed transmitters that will cause second order, third order or fifth order intermodulation products on existing receiver frequencies will not be permitted on the site. A receiver with the same frequency as an existing second order, third order or fifth order intermodulation product at the site will not be permitted on the site. 6. All transmitters shall be equipped with band-pass cavities that will provide at least the following attenuation of side band noise, if needed: 4Q MHZ band: 150 MHZ band: 450 MHZ band: 840J900 NIHZ band: Microwave: 50 db at 1 MHZ 50 db at 1.5 MF�Z 50 db at 2.5 MI3Z 50 db at 10 MF3Z 50 db at 20 M�IZ EXHIBIT "D" OOr q J � TECIINICAL D�NIMUM SITE STANDt�RDS - Continued 7. Each cabinet must be identified by the owner's name, address, FCC station license number and the name and telephone number of the responsible service agency. 8. Prior to approving any application for antenna space at the site an engineering study will be prepared by the Engineer for the St. Paul Water Utility consisting of at least the following items: a. Intermodulation interference (IM) calculations of all transmitters and receivers known to exist in the area at time of application. (Study will include 2nd, 3rd and Sth order IM terms, and A+ B- C, three-product terms.) b. Transmitter noise and receiver desensing calculations of all equipment at the site. a Analysis of best equipment and antenna locations at the site. d. Analysis of AC power requirements. e. Report to prospective site user regazding application. 9. Pian and specifications to secure equipment to the tower must be submitted to and approved by Saint Paul Regional Water Services prior to instailarion. -End-