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04-598C:,c:c:..:�� ��'D Grze^ She_� r 3 v 1�1 S�S AESOLUTiON CITY O ?rzszrte3 Ev �e`e__ed To NT PAUL MIt�Ti�SOT; Cc�ttee: Date 1 WHEREAS, the Ciry of Saint Paul does possess fee simple title to the water tower site 2 commonly known as the St. Anthony Water Tower Site located at 1515 North Cleveland 3 Avenue, St. Paul, Minnesota 55114 (the "Property"), such possession of tide being for 4 benefit of the Boazd of Water Commissioners of the City of Saint Paul (the `Boazd"); and WHEREAS, VoiceStream Minneapolis, Inc. desires to lease space at the Properiy from the Board to install and operate a wireless communication system; and 9 WHEREAS, the Board did adopt Board Resolution No. 4966 which approved a Lease 10 Agreement VoiceStream Minneapolis, Inc. and requested the Honorable Council of the 11 City of Saint Paul, as possessors of title to the Property for benefit of the Boazd, likewise 12 grant approval; now, therefore, be it 13 � 14 15 16 17 18 RESOLVED, that the Lease Agreement dated between the Board of Water Commissioners of the City of Saint Paul and VoiceStream Minneapolis, Inc. allowing the installation and operation of a wireless communication system at the Board's St. Anthony Water Tower Site is hereby approved and that the proper officers are hereby authorized to execute said Lease Agreement on behalf of the City of Saint Paul. �� Requeste3 by Depz of: ,S �y '-PF �,_ 0 Saint Paul Re ional Water Services $Y Q_�D� General Manager Porm Apo: oved 'c;' C:7 A[[orn�y Zdoption CerLied by Cocac� Seee;a.y Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green She�et� � Depar6neM/office/council: Date Initiated: � WA - W�rU61iTy 28-MRY-04 Green Sheet NO: 3017595 � : DeoartrneM Sent To Person Initial/Date ConYad Person 8 Phone: ' � Steve Schneider i � 0 Waur Utilitv ' ' 662�4 ' Assign � 1 R'ater Utiiitv Deoartment Director .��D� Must Be on Council Agenda by (Date): � Number , 2 Citv Attomev � �•y __ 0&JUN-04 � For — , . Routing ; 3 Mavor's Office _ ' Mavor/Ass_stant ( 0� ,3 � 6 � 0 ' � / �� Order 4 ouoci� —� P �' ° "' ' ����� 5 Ci[v Clerk Gtiri Clerk ��,�,� �- , — , Total # M Signature Pages _(Clip Ali �owtions for Signature) Adopt Council Resolurion approving a lease agrmt betwn the BWC and VoiceSh�eam Mpls Inc allowing the installa6on & operauon of I a wireless communication system at the St. Anthony Pazk Water Tower in St. Paul. Attachments: 1) staffreport 2) proposed council , resolution 3) lease agreement. or Rejed (R): Planning Commission CIB Committee Civil Service Commission Personal Service Contrects Must Answer the Following Questions: 1. Has this personffirm ever worked under a contract for this department? Yes No 2. Has this personlfirm ever been a city empioyee? Yes No 3. Does this person/frm possess a skill not normaily possessed by any current city employee? Yes No Explain all yes answers on separate sheet and attach to green sheet i Initiating Problem, Issues, Opportunity (Whq What, When, Where, Why): VoiceStream Mpls, aka T-Mobile, desires to lease space on the Boazd of Water Commissioners St. Anthony Pazk Water Tower site at 1515 North Cleveland Avenue m install and operate a wireless intemet system. ', AdvanWqeslfApproved: Boazd of Water Commissioners will receive additional revenue Disadvanqqes If Approved: None. �I Disadvanqges If Not Approved: ' Revenue potential will not be realized. Total Amount of Trensaction: Fundinq Source: CosNRevenue Budgeted: Activity Number: RECEIVED MAYDR'S OF�ICE ��� �,���Pw�� r�,r��r� ,� Financiallnformation: tgppp #p p vg�ry,{ (Explain) �J�a'� S� `� E t1Y 0`�- 5q5� Staff Report May 28, 2004 Wireless communication Lease Agreement between Board of Water Commissioners and VoiceStream Minneapolis, Inc. VoiceStream Minneapolis, Ina (VoiceStream) desires to install and operate wireless communication equipment at the St. Anthony Park Water Tower site. The request includes placing six 6-foot tall panel antennae on the tower and 5-foot tall cabinets inside the structure base. Following negotiations with VoiceStream, staffprepared the attached 5-year lease that automatically renews for three additional5-yeaz terms and has a starting annual rent of $19,500 with 5% annual rent increases. The $19,500 annual rent amount consists of $18,000 for standazd system installation and $1,500 for rent of interior storage. Also included is a provision to reestablish the rent amount using mazket compazison at the end of each 5-year term, if desired by the Board. St. Anthony Park Community Council approved the installation at its May 13, 2004 meeting. In addition to VoiceStream being responsible for all costs necessary to install and operate their system, the lease also requires that VoiceStream pay for the following: Frequency intermodulation and site radiation studies to be performed by the utility's RF Engineering firm, Owl Engineering, Inc. • Plan review and conshuction inspection by the utility's water tower Engineering firm, Kollmer Consultants, Inc. See the following attachments: ➢ May 6, 20041etter of approval from St. Anthony Park Community Council ➢ proposed Lease Agreement V:�Engneering\CLERICAL�BOARD�ResoWtionsU.EASE\T-MObile\St Mthony_Ciry Council_OS-27-04.doc 1d b�t-59Y STTE LEASE AGREEMENT Between Board of Water Commissioners of the City of Saint Paul and VoiceStream Minneapolis, Inc. This Site Lease Agreement ("I,ease'� is entered into this 11�' day of May, 2004 between the BOARD OF WATER COMNIISSIOlVERS OF THE CTTY OF SAINT PAUL, a municipal corporation under the laws of the State of Minnesota ("Lessor"), and VOICESTREAM MINNEAPOLIS, INC., a Delaware corporation, whose addtess is 8550 West Bryn Mawr, Suite 100, Chicago, Illinois 60631 ("Lessee'�. In consideration of the terms and condirions of this Lease, the parties agree as follows: I. Leased Premises. Lessor hereby leases to Lessee certain space located at and on the Lessor's St. Anthony Park Water Tower Site located at 1515 North Cleveland Avenue, Saint Paul, Minnesota 55108, which is legally described in attached E�ibit "A,"Legal Description and Site Plan. The water siorage facility and its appurtenances ("Structure"), and the Lessor's land upon which the Structure is situated aze coliectively called "the Property." The property interest leased and granted by the Lessor to Lessee (collectively, the "Leased Premises") consists of the following: • space inside pedestal comprised of approximately usable square feet; • Structure e�cterior 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 property interests aze being leased to Lessee except as described above and as described on E�ibit "A," Legal Description and Site Plan. 2. Terms/Renewals. (a) The initial term of this Lease shall commence on the date of Saint Paul City Council approval, (the "Commencement Date'�, and shall terminate on December 31, 2009. Lessee and Lessor agree to enter into an addendum to this Lease confirming the Commencement Date, as contained in Exhibit "C," Memorandum of Lease Recording. (b) Lessee sha11 have the right to extend this Lease for three (3) additional five (5) 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 beyond applicable notice and cure periods 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 Terxn. V:�Engu�eering\CLERICAL�BOARD�Agreements�L.EASEIT-MObil\St Mthony_OS-1 l-04.doc 0�-5�� 3. Rent 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: 2004: Boazd of Water Commissioners Attn: Bill Tschida 8 4th Street E., Ste. 400 Saint Paul, Minnesota 55101-1007 2005: Boazd of Water Comuussioners Attn: Bill Tschida 1900 Rice Street N. Maplewood, Minnesota 55113 Lessor's FIN number is # 41-6005521 If this Lease is terminated, pursuant to the terms and conditions of this Lease, rent shall be pro- rated to the termination date or the date on which a11 of Lessee's equipment is removed from the Leased Premises, whichever is later. Within thiriy (30) days after the date of the tennination, Lessor shall retum to Lessee any amounts that Lessee has prepaid to Lessor. Lessee shall pay all rent annually in advance, as indicated in the payment schedule below: (a) Base Rent. Lessee shall pay Lessor, as rent, the sum of Nineteen Thousand Five Hundred and No/Dollazs ($19,500), ("Annual RenY'), per yeaz based upon Lessee's installation and operation of the antenna facilities and frequencies identified in Exhibit "B," Antenna Facilities and Frequencies, ("Antenna Facilities"), as is more fully described in Section 5. Installation ofEquipment and Leasehold Improvements. The first year's Annual Rent shall be pro-rated to the end of 2004, and shall be paid within sixty (60) days after the Commencement Date. Thereafter, the Annual Rent due hereunder shall be paid prior to January first of each succeeding yeaz. Lessee may not install and/or operate any additional antennas or related equipment beyond those Antenna Facilities and frequencies identified in E�ibit "B," Antenna Facilities and Frequencies without the prior written consent of Lessor, such consent not to be withheld or delayed withoutcause. (1) Annual Increase Commencing January 1, 2005, and on January 1�` of each subsequent yeaz, the Annual Rent shall be increased annually by 5%. V:�Engineering\CI.EAICAL�BOARDW�reements�I,EASE\T-Mobil\SC ,4nthany_OS-11-04.doc ,��. " •� (2) Re-evaluation at Renewal Term If desired by the Lessor, the Base Rent shall be re-evaluated based on the following procedure: Lessor shall notify L,essee in writing of its desire to re-evaluate the Base Rent no later than sixty (60) days prior to the end of each five (5) year term. Inciuded in the notification for re-evaluation, Lessor shall provide the Lessee with at least five (5) annual rents for similar water tower sites with similar antennae and equipment in the Minneapolis and St Paul metropolitan azea as examples of prevailing mazket rents. If Lessee does not concur with Lessor's perceprion of the prevailing market rate as evidenced by Lessor's provided rents, Lessee may provide Lessor, in writing, with at least five (5) current lease rents paid by Lessee for similaz water tower sites in the Minneapolis and St. Paul metropolitan azea. The two highest and rivo lowest rents provided by Lessor and Lessee shali be discazded, and the remaining rents &om both parties shall be added together and averaged. The Base Rent for the first year of each renewal term shall be either the figure calculated above by means of (1) Annual Increase, or (2) Re-evaluation at Renewal Term, whichever is greater. However, in the event Lessor provides to Lessee said written request for re-evaluation and list of sunilaz rents at least sixty (60) days prior to the end of each five (5) yeaz term list and Lessee subsequenfly fails to provide its list of similar rents by the end of the five (5) year term, Base Rent for the first yeaz of the next renewal term shall be as determined by (Z) Re- evaluation at Renewal Term above. In no event shall the annual installment of rent due hereunder, following such adjushnent or review, be less than the amount of such installment in the previous yeaz increased by five percent (5%). Additional Rent Additional Rent means all amounts, other than Base Rent provided for in paragraph 3(a) above, that Lessee shall be obligated to pay under this pazagraph or any other pazagraph of this Lease. Additional Rent skiall include the following fees, costs and expenses: (1) costs for the repairs, improvements, or alterations 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 obiigation to pay any taY, Lessor shall provide Lessee documentation from the taxing authority indicating with reasonable certainty that the tax was direcUy attributable to Lessee's tenancy. Lessee shall have the right to file an assessment appeal, and Lessor shall cooperate in any such appeal as reasonably requested by Lessee, ail at Lessee's sole cost and expense; V:�En�neerin�\CLERICAL�BOARD\AgreementslLEASE\T-Mob�l\St. Mthany_OS-I1-04.doc Oy-5q8' (3) all public utiliTy rates, dues, and chazges of any kind for utilities used by Lessee at the Leased Premises; and (4) fees, costs, and expenses for properiy insurance and/or nn;n�,red losses as set forth in Section 13. Insurance. In the event that Lessee does not pay the required Additional Rent to the appropriate party, Lessor may, at its option, and after thirty (30) 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 thirty (30) days. 4. Use ofLeased Premises. (a) Prunarv Use of Propertv. The primary use and purpose of the Property, including the Leased Premises, is for a water storage structure and appurtenances to provide water service to customers of the Lessor ("Primary Use"). Lessor's operations in connection with pursuit of the Primary Use ("Lessor's 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 Properry in connection with Lessor's Operations. (b) Jeopazdv of Primarv Use. In the event that the use of the Structure for water service is jeopardized because of Lessee's operations, Lessor shall provide written notice of such event to Lessee. Lessor and Lessee agree to work together to cure the occurrence that causes such jeopardy. In the event of severe jeopazdy (e.g. an antenna falling into the water within the Structure), Lessee shall immediately cease operations at that site until the time that the immediate danger has subsided or been remedied. Only in the case of severe jeopazdy may Lessor remove Lessee's equipment. This severe jeopazdy would be deemed an emergency situation that poses an immediate danger. In the case of a non-severe jeopardy (e.g. a loose cable that blocks access through a caged ladder), Lessee shall make all good efforts to cure such jeopardy within thiriy (30) days of receipt of written notice of event. If Lessee does not cure such jeopazdy within tlurry (30) days of receipt of written notice of event, said occurrence of j eopazdy shall constitute an event of default as othenvise defined in Section 12. Termination. If circumstances beyond the control of Lessee prohibit the jeopazdy from reasonably being cured within thirty (30) days, Lessee shall notify Lessor of such circumstances and commence actions required to cure the jeopazdy (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 time thereafter. (c) Lessee's Use of Leased Premises. Lessee shall have the right, at its sole cost and expense, to install, operate, maintain, replace, store or remove its Antenna Facilities and frequencies as shown in Exhibit "B," Antenna Facilities and Frequencies and in its duly approved construction plans, as described in Section. S Installation ofEquipment and Leasehold Improvements. Lessee's use shall be non- exclusive and Lessor retains the right to lease space to other parties, provided that other parties' use of such space does not interfere with Lessee's operations. V �Ene neezin�\CLERICAL�BOARDWg'eements�I.EASE\T-Mobil\St. Mthony_OS-I1-04.doc 4 oy-5�� (d) Lessee's Ground Equipment. The Property is located in a residential neighborhood. Therefore, the design and appeazance of ground equipment storage facilities shall be subject to stricter standards than may be usual and customary. Regardless of City of Maplewood minimal building permit requirements, Lessee shall provide ground equipment storage facilities and landscaping screening that are consistent with other buildings and structures in the neighborhood, as solely determined by the Lessor. (e) Laws Governing Use. Lessee shall use the Leased Premises only in accordance with good engineering practices and in compliance with a11 applicable Federal Communications Commission ("FCC'� federal, state, and local rules, laws and regulations. This Lease is contingent upon Lessee receiving ali permits, licenses or approvals from all local, state, or federal land use jurisdictions or agencies for Lessee's pernutted use of the Leased Premises. Lessee shall, at its sole cost and expense, obtain all such necessary permits, licenses or approvals. Lessor agrees to cooperate with Lessee in Lessee's pursuit all such necessary pernrits, licenses or approvals, and I,essee shall reimburse Lessor its reasonable costs to provide such cooperation. S. Installation ofEquipment and Leasehold Improvements (a) Conshuction Pians. For the initial installation of all Antenna Facilities and for any and all subsequent revisions and/or modifications of same, Lessee shall provide Lessor and Lessor's Water Tower Construction Engineer ("Construction Engineer") each with two (2) sets of construcfion plans ("Construction Plans") consisting of the following: 1) line or CAD drawings showing location of all planned installations plus materials and construction methods; 2) specifications for a11 planned installations; 3) diagrams of proposed Antenna Facilities; 4) a complete and detailed inventory of all equipment and personal property of Lessee. Construction Plans shall be easily readable and subject to prior written approval by the Construction Engineer, which shall not be unreasonably withheld, conditioned or delayed. Lessee sha11 be solely responsible for all costs associated with said review and approval by Construction Engineer at a cost not to exceed $1,500. (b) Construction Schedulin¢. At least three (3) days prior to Lessee's construction mobilization, Lessee shall conduct a pre-construction meeting on the Properiy. Said meeting shall be attended by the Construction Engineer, Lessee's representative and all parties involved in the installation. (c) Construction Inspection. All consiruction activity shall be subject to inspection and approval by the Construction Engineer. If deemed necessary or desirable by the Constnzction Engineer, construction work performed without direct inspection and approval of the Construction Engineer will not be accepted and shall be removed or uninstalled at Lessee's sole expense. V:�Engineering\CLERICAL�BOARD�.Sgreements�I.EASE\"C-Mobii\SC Anthony_OS-i ]-04 doc 0`1-59g Lessee shall be solely responsible for all costs associated with said inspection and approval by Constniction Engineer at a cost not to exceed $1,500. (d) Damage by Lessee. Any damage to the Property, Leased Premises, or any equipment thereon caused by Lessee's instaliation and operations shall be repaired or replaced at Lessee's expense and to Lessor's reasonable satisfaction. 6. Maintenance and Repairs. (a) Lessee shall, at its own wst and expense, maintain its equipment in good and safe condition, and in compliance with applicable fire, health, building, and other life safety codes, and shall repair any part of the Properiy that may be damaged by Lessee's installation and operation. (b) Lessee shall have sole responsibility for the maintenance, repair, and security of its equipment, personai property, 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 Structure shall be the same color as the Structure. Cables shall not be painted on the site, but shall instead be of a color sufficiently close to that of the Structure, as approved by Lessor. (c) Except in emergency situations, Lessor shall provide Lessee with not less than thirty (30) days prior written notice when Lessor paints or repairs its Stnxcture. Upon receiving such notice, it shall 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 repairuig of the Structure or the Properiy causes Lessee's operation of the Antenna Facilifies to be intemxpted, Lessee may maintain a mobile site on the Property or, after approval by Lessar, on any land owned or controlled by Lessor in the nnmediate azea of the Property. Rent sha11 be abated on a prorated daily basis during such interruptions if the interruption lasts for longer than thirty (30) days. 7. Properfv Access. Lessor is in the process of revising its Security Plan, which includes procedures for accessing water tower sites. When revised, said Security Plan will control access to the Properry and the Leased Premises by a11 outside persons, including Lessee's employees, agents and assigns. Upon fmal revision, Lessor shall submit a copy of said Security Plan to Lessee, and Lessee agrees it shall conduct its operations on the Properry and the Leased Premises in accordance with all requirements and conditions of said Security Plan. Subject to the requirements and conditions of said Security Plan, Lessee and Lessor agree to the following: (a) Lessee shall have access to the Leased Premises and Property 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. V:�Engineering\CLERICAUBOARD4lgeemenis�LEASE\T-Mobil\St. Mihany_09-1 I-04 doc ��,- 5R8' (b) Lessee may, at its own cost and expense, enter upon the Property to study and determine the Property's suitability for any other use of Lessee, which studies may include surveys, radio wave propagation measurements, or field strength tests. (c) Lessor retaius the right to examine and inspect the Leased Premises for safety reasons and to ensure that I.essee's covenants aze being met. Lessor shall be liable for, 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. Prior to final revision and submission ofthe Securiry Pian to Lessee, Lessee sha11 contact Chuck Ka�aloski at 651-266-1664, or 651-775-6173 to obtain access to the Property and Leased Premises. 8. Utilities. Lessor makes no representations that utilities adequate for Lessee's use of the Leased Premises aze available. Lessee wiil pay for all 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 Propertv and Real Estate Tazes. If any of Lessee's improvements constructed on the Leased Premises should cause the Properiy, 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 of such taxes so that Lessee will have the opportunity to appeaz before the ta�cing authority to contest such taxes. Notwithstanding Lessee's right to contest such taxes, Lessee shall pay its shaze of such taxes within ninety (90) days of receiving notice of the same. 10. Compliance and Statutes. Reeulations. and Approvals. Lessee's use of the 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 shall be erected, maintained, and operated in accordance with all state or 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 Exhibit "D," Technical Minimum Site Standards. II. Interference. (a) All frequencies proposed for nutial use shall be evaluated by Lessor's registered professional radio frequency engineer ("RF Engineer"), and Lessee shall pay all costs of said evaluation. RF Engineer shall provide said evaluation no later than thiriy (30) days after frequencies are provided to him by Lessee. Lessee shall not transmit or receive radio waves at the Property until such evaluation has been satisfactorily completed. V:�Engineering\CLERICAL�BOARDW@reements�[.EASE\T-Mobil\SC Mthony_OS-I I-04 doc '] 0�-59� (b) Lessee shall provide at least thirty (30) days written notice to Lessor before modifying or placing additional transmitter or receiver frequencies on the Leased Premises. Said notice shall describe all equipment and frequencies proposed to be added or modified and shall be subject to review and approva� by the RF Engineer, which shall not be unreasonably withheld, conditioned or delayed. Said review shall consist of necessary interference studies to ensure that the modified or additional frequencies will not cause hatmful radio interference to Lessor's Operations or the operations of Lessor's existing tenants. Lessee shall pay all costs for any such interference studies. In the alternative, Lessee may perform the interference studies and submit the results to the Lessor for review and approval. However, the Lessor, in its sole discretion, sha11 retain the right provided herein to submit the study results to the RF Engineer for review at Lessee's sole expense. (c) Lessee's installauon, operation, and maintenance of its Antenna Facilities shall not damage or interfere in any way with Lessor's Operations, including Lessor's radio frequency transmission, or repair and maintenance activiries. Lessor's Operations take priority over Lessee's operations and Lessor reserves the right to take any ac6on it deems necessary, in its reasonable discretion, to repair, maintain, alter, or improve the Properiy in connection with Lessor's Operations as may be necessary. For all substantial unprovements or repairs, Lessor agrees to provide Lessee with at least sixty (60) days advance notice of the same and to reasonably cooperate with Lessee to carry out such activities with a murimum amount of interference to Lessee's transmission operations. For minor repairs or maintenance, Lessor agrees to give two (2) days advance notice of any such activities to Lessee and to reasonably cooperate with Lessee to cazry out such activities with a muumum amount of interference to Lessee's transmission operations. Nonetheless, if Lessor's use of the Property does cause interference with Lessee's opera6on, Lessor shall not be responsible, and, at Lessee's choice, Lessee may temunate this 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 harm or damage to persons and/or property 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 (24) hours after such entry, Lessor gives written notice to Lessee of Lessor's entry onto the Leased Premises. (d) In its use of the Leased Premises, Lessee may not interfere with Lessor's Operations or other parties who were occupants of the Property prior 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 shall have the option to ternunate this Lease without further liability hereunder, upon sixty (60) days written notice to Lessor. Lessee shall not be responsible for interference that results from a change in the operations of other parties after the Commencement Date of this Lease. (e) Lessor will not grant a lease to any other party for use of the Property, if such use would or is likely to interfere with Lessee's operations on the Leased Premises. Any future lease by V:�Engineering\CLERICAUBOARDWereements�[,EASE\T-Mabil\St Mthony_OS-Il-04.doc g 0�-S�g Lessor of the Properiy to additional parties that permits the installation of communications equipment shall be conditioned upon not interfering with Lessee's use of the Leased Premises, and shall be terminated if interference occurs and is not corrected within a reasonabie time. Notwithstanding the foregoing, Lessee aclmowiedges that Lessor may lease the Property, or any part of it, to other parties in ciose proximity to the Leased Premises, and Lessee agrees to work cooperatively with any such other parties, using accepted technical standards in accordance with FCC standards, 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 Exhibit "D," Technical Minimum Site Standards. (fl Lessor in no way �uarantees to Lessee noninterference with Lessee's transmission operations, provided, however, that in the event that any other party requests pemussion to place any type of additionai antenna or transmission facility on the Property, the procedures of this Section shall govern to detertnine whether such antenna or transmission facility will interfere with Lessee's transmission operations. In the event 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 foliowing receipt of said proposal to make any objections thereto, and failure to make any objection within said thirty (30) day period shall be deemed consent by Lessee, subject to interference provisions of paragraph 11(c) of this Lease, to the instaliation of antennas or transmission facilities pursuant to said proposal. Lessee shall not be responsibie for the expenses incurred in any independent validation of such interference objections. (g) In the event that Lessee or other tenants on the Property experience interference of their approved frequencies and they cannot reach agreement as to the cause and remedy of such interference, the RF Engineer shall determine such cause and remedy and Lessee shall abide by the RF Engineer's determination. Lessor agrees that it will require the same obligation of all such future parties in any lease or agreement with such other parties. (h) 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 ternrinated by either pariy upon sixty (60) days written notice to the other party 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 within sixty (60) days of receipt of written notice of default to the other party (without, however, limiting any other rights of the parties at law, in equity, or pursuant to any other provisions hereo fl, or if such cure cannot be completed within sixry (60) days, V:�En�eering\CLERICAUBOARDWgeemenis�LEASEIT-Mobil\St. Mthony_OS-11-04.doc () U-�-S'►� within such reasonable time as may be required provided the defaulting pariy commences the cure within ten (10) days of receipt of written notice of default and diligently pursues such cure to completion; (b) by L,essee if it is unable to obtain or maintain any license, permit, or other governmental approval necessary for the construction and/or operation ofthe Antenna Facilities or L,essee's business; (c) by I,essee if the Leased Fremises or Antenna Facilities aze or become unusable under Lessee's design or engineering specifications for its Antenna Facilities, or the communications system to which the Antenna Facilities belong; (d) by Lessor, if it determines, after review by an independent shuctural engineer, that the Property is structurally unsound, including but not lunited to consideration of age of the Structure, damage or destruction of all or part of the Properry from any source, or factors relating to condition of the Property; (e) by Lessor if Lessee fails to pay rent provided for in Section 3. Rent within thirty (30) days of receipt of written notice from Lessor of a rent or other payment being overdue. 13. Insurance. (a) Lessee shall obtain and maintain adequate insurance to protect the parties against any and all claims, demands, actions, judgments, expenses, and liabilities that may arise out of or result from Lessee's use of the Leased Premises. Any applicable liability policy shall list the Lessor and the City of Saint Paul as addirional insured, and shall provide that it will be the primary coverage. The insurance coverage must include, at a minimum, Comprehensive General Liability Insurance Coverage, including premises/operation coverage, bodily injury, property damage, independent contractors liabiliry, completed operations coverage, and contractualliability coverage, in a combined single limit 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 in pazagraph 13(a) above. Said certificate shall also provide that the coverage may not be canceled, or non-renewed, or materially changed without thiily (30) days written notice to Lessor. T 4. Indemnitv. 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 of the Leased Premises, or as a result of Lessee'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 City of Saint Paul and/or any agents, contractors, officers, or employees thereof. It is fully understood and agreed that Lessee is awaze of the conditions of the Leased Premises and leases the same "as is." V:�En�neering\CLERICAL�BOARDWgreements�[.EASE\T-Mabil\St. Mthony_OS-11-04.doc 1 Q O�l- 5gg 1 S. Dama�e or Destruction. If the Property 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 L,essor. 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 entided to the reimbursement of any rent prepaid by Lessee, prorated to the date of the event. I6. Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given when personaily delivered or mailed, certified mail, retum receipt requested, to the following addresses: If to Lessor: 2004: Board of Water Commissioners � Attn: Bill Tschida 8 4th Street E. Ste. 400 Saint Paul, Minnesota 55101-1007 2005: Boazd of Water Comrnissioners J Athi: Bill Tschida 1900 Rice Street N. Maplewood, Minnesota 55113 If to Lessee: VoiceStream Minneapolis, Inc. 8550 W. Bryn Mawr Ave., Suite 100 Chicago,IL b0631 Attn: Lease Administration & Legal Dept. With a Copy to: VoiceStream Minneapolis Inc. c/o T-Mobile USA 12920 SE 38�' Street, Bellewe, WA 98006 Attn: PCS Lease Administration & Legal Dept. I7. 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 clear of any liens or mortgages, subject to such liens of record; (iii) Lessee sha11 have 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 substance, chemical or waste on the Properry that is identified as l�azardous, toxic or dangerous in any applicable federal, state or local law or regulation as defined in paragraph 17 (c) of this Lease. Lessor will be solely liable for and will defend, indemnify and hold Lessee, its agents and employees hannless from and against any and all direct claims, costs and liabilities, including reasonable attorneys' fees and costs, arising out of or in connection with the removal, cleanup or restoration of the Properiy with respect to hazazdous, toxic or dangerous materials from any and all sources other than those hazardous, toxic or dangerous materials introduced to the V:�Engineering\CLERICAL�BOARDUIgreements�l.EASE\1'-Mobil\St Mihony_OS-1l-04.dac 1 ] O�l- 55g Property by Lessee. Lessee represents and warrants that its use of the Leased Premises herein will not generate and it will not store or dispose on the Properiy nor transport to or over the Property any hazardous substance, chemical or waste contrary to any law or regulation. Lessee further agrees to hold Lessor harmless from and indemnify L,essor against any release of any such hazazdous substance, and any damage, loss, expense, or liability resulting 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, including payment of all reasonable attomeys' fees, costs, and penalties incurred as a result thereof, except for any release caused by the negligence or willful misconduct of Lessor, its employees, or agents. (c) "Hazazdous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazazdous or toxic waste, hazardous or toxic material, hazazdous or toxic or radioactive substance, or other snnilaz term by any federal, state, or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations, or rules may be amended from time to tune. Lessoz acknowiedges Lessee's use of batteries as back-up power and deems them acceptable as long as such batteries aze 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. 18. No Liabilifv on Lessor. Except due to Lessor's willful misconduct or gross negiigence, Lessor shall not be liable for any damage to Lessee's equipment or Antenna Facilities, and Lessor shall not be liable for vandalism or malicious mischief caused by third parties, known or unknown, to Lessee's equipment or facilities, nor shall Lessor be liable for any lost revenue, business or profits of Lessee. I9. Assignment. (a) Lessee may not assign or sublet this Lease without the prior written consent of Lessor, which consent shall not be withheld or delayed without reasonable cause. Norivithstanding 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 consolidated or which purchases all or substanrially 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 acknowiedge that this is a nonexclusive lease. Nothing in this Lease shall preclude Lessor from leasing other space on the Property to any other person or entity which may be in competition with Lessee, or any other pariy, subject to the conditions set forth in Section 11. Interference. 20. Successors and Assipns. This Lease shall run with the Property. This Lease shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns. V:�En�aeenn�\CLERICAL�BOARDWp�eemenis�I.EASEIT-MObi1�St Mrhony_OS-11-04.doc 12 o�t-s��a 2I. Surrender of Premises. At the expiration of the initial term of this Lease, or any Renewal Term, or any eazlier termination of this Lease, Lessee shall quit peacefully and surrender possession of the Leased Prennises 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 cost and expense. 22. Markine and Liphtin� Reauirements. Lessor acl�owledges that it sha11 be responsible, at Lessor's sole cost and expense, for compliance with all building mazking and lighting requirements that the Federal Aviation Aduiinistration ("FAA") may require with respect solely to the height of Lessor's Shucture. The responsibility, however, is expressly limited to the requirements that would be required of an elevated water stornge facility having no communications equipment installed on it, irrespective of Lessee's antennae. Lessor shall indemnify and hold hannless 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 aze brought against Lessee because the Structure alone is not in compliance, as opposed to the Structure and antennae, then Lessor shall indenmify Lessee for full costs, liabilities, damages and expenses, including reasonable attorney's fees. Further, if Lessor does not cure the conditions of noncompliance on the Structure within the time frame allowed by the citing agency, Lessee may ternunate this Lease immediately without any fiuther liability hereunder upon written notice to Lessor. Lessee acknowledges that it shall be responsible at Lessee's sole cost and expense, for compliance with all building mazking and lighting requirements that the FAA may requue with respect to Lessee's antennae. In the event the FAA deterxnines that Lessor's water tower needs to be mazked, 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 all its equipment at its own cost without any further liabiliTy to either pariy hereunder upon thirry (30) days written notice to Lessor. Said mazking, lighting and modifying shall be subject to prior written approval by Lessor, such approval not to be withheld without cause. Lessor shall approve or object to such plans within thirty (30) days of receipt, and failure to make any objection within said thiriy (30) day period shall be deemed approval by Lessor. 23. RFRadiation Comnliance. (a) The RF Engineer will perform a radiation survey of the Properiy following Lessee's initial RF transmissions on the Leased Premises. Lessee shall pay the costs for such survey. (b) Lessee sha11 implement all measures at the transmission site required by FCC regulations, including but not limited to posting signs and mazkings. Lessor shall cooperate with and permit Lessee to implement all reasonable measures in order for Lessee to fulfill its Radio Frequency exposure obligations. Lessor agrees that in the event any future party causes the V:�Engineerin�\CLEAICAUBOARDWgeements�LEASEIT-MObil�St. Mthony_OS-I1-04 doc LJ 0`{� 59,g entire site to exceed FCC Radio Frequency radiation limits, as measured on the Lease Premises, Lessor shall hold such future par[y liable for all such later-arising non-compliance. 24.Third Parlv Apvrovals. Inspections and Evaluations. The Lessee shall be responsible for all costs associated with obtaining required reviews, approvals, inspections, studies surveys or evaluations, whether required by this Lease or by other governing authorities. 25. Miscellaneous. (a) Each party agrees to furnish to the other, within thirty (30) days after notice of receipt of the request, such truthful estoppel 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, negotiations, 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. No provision of this Lease will be deemed waived by either party unless expressly waived in writing by the waiving party. No waiver shall be implied by delay or any other act or omission of either party. No waiver by either party of any provisions of this Lease shall be deemed a waiver of such provision with respect to any subsequent matter relating to such provision. This Lease may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute a single instrument. (c) This Lease shall be construed in accordance with the laws of the State of Minnesota. Any legal action may only be commenced and proceed in the relevant district court in Ramsey County, Saint Paui, 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 I.essee, L,essor agrees to execute a recordable Memorandum of this Lease. (fl Exhibits "A" through "D" listed below aze hereby incorporated into this L.ease by reference. Exhibit "A" Legal Description and Site Plan Exhibit "B" Antenna Facilities and Frequencies Exhibit "C" Memorandum of Lease Recording Exhibit "D" Technical Minimum Site Standards [Remainder of this pa�e is left intentionally blank] V��Eneineering\CLERICAUBOARDWgreements\LEA56lT-Mobii\St Antf�ony_06-08-04.doc 14. C1�-5g`6 � IN WITNESS WHEREOF, the parties hereto have executed this Lease, the day and year first above written. Lessor: Approved: By Stephen P. Schneider, General Manager Saint Paul Regional Water Services BOARD OF WATER COMNIISSIONERS OF THE CITY OF SAINT PAUL FIN 41-6005521 Patrick Harris, President Approved as to form: : Approved: By Janet Lindgren, Secretary CITY OF SAINT PAUL: By Mayor By City Clerk By Director, Office of Financial Services Lessee: VOICESTREAM MINNEAPOLIS, INC. Tax ID By By Its Legal Counsel Michael O'Rourke Director of Engineering and Operations V:�Engineering\CLERICAL�BOARDW�reements�I.EASE\T-MObil\St Mthony_OS-I l-04.dac 15