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95-1084Council F'ile # �5 — �O$�� . �.F� � ,� �. ;�-�� Presented By Referred To Green Sheet # ZSSgI RESOLUTION CITY OF SAiNT PAUL, MtNNESOTA Committee: Date WHEREAS, Destineer Corporation desires to lease space at the McKnight Road Standpipe site on McKniqht Road at Wilson Avenue in Saint Paul, Minnesota, said site owned and operated by the Saint Paul Board of Water Commissioners, hereinafter referred to as the "BOard"; and WHEREAS, Board staf£ has prepared the attached lease aqreement which provides for a£ive-year lease starting at a one-year lease rate of $7,560 and increasing each subsequent year at a rate equal to the Consumer Price Index; and WHEREAS, The Board did adopt Board Resolution No. 4379 which approved said lease agreement; now, therefore, be it RESOLVED, That the attached lease agreement between the City of Saint Paul, the Saint Paul Board of Water Commissioners, and Destineer Corporation is hereby approved and that the proper officers are hereby authorized to execute said lease agreement on behalf of the City of Saint Paul. Requested by Department of: Adopted by Council: Aate `�. _ a- �-� ��cjs �� Adoption Certified by Coundl Secretary � Approved by M�or: Date � Water Utility BY ��.M'�^.e �L • �=�z.t-'c-c-i.`� C Bernie R. Bullert - General Manager Fo Appr e�y City Attorney � BY � /� i [ 5 Approv ayo for Subm' on to Council "`� Br a� Council F'ile # �5 - �d�` '��_,�,-'�;�� Presented By Referred To Green Sheet # Z.-888 t RESOLIlTtQN CITY OF SA1NT PAUL, MINNESOTA Committee: Date WHEREAS, Destineer Corporation desires to lease space at the McKnight Road Standpipe site on McKnight Road at Wilson Avenue in Saint Paul, Minnesota, said site owned and operated by the Saint Paul Board of Water Commissioners, hereinafter referred to as the "Board"; and WHEREAS, Board staff has prepared the attached lease agreement which provides for a five-year lease starting at a one-year lease rate of $7,5b0 and increasinq each subsequent year at a rate equal to the Consumer Price Index; and WHEREAS, The Board did adopt Board Resolution No. 4379 which approved saicl lease agreement; now, therefore, be it RESOLVED, That the attached lease agreement between the City of Saint Paul, the Saint Paul Board of Water Commissioners, and Destineer Corgoration is hereby approved and that the proper officers are hereby authorized to execute said lease agreement on behalf of the City of Saint Paul. 1'�"�.�' i by Council: Date 4. „.� ,-�} ��ct�s �"" by Council Secreiary by M,�jor. Aate Requested by Department of: Water Utility BY• �.2.v�^ F �[ • ��z.t��z.�ti C Bernie R. Bullert - General Managex Fo Appr City Attomey By. � i �j Approve Ray for Subm' on to Couual v t---- � _ By. -�'� =Y�(3�-�i�---� " �� 95 SEPTEMBER 6, 1995 qs - to$� �� GREEN SHEET N� Z g g g � MRIAVDATE INITIAVDATE OEPARTMENTOIRECTOR fj $'2��2j /�CITYCOUNCIL CITV ATrOflNEY ��y7�❑ CIN CLERK BU�GET DIRECTOR � FIN & MGT. SERVICES DIR. MAYOF (OR ASSISTANi} O TOTAL # QF SICaNATURE PAGES � 2 {CLIP All LOCATIONS FOR SIGNATURE) r1oN qEQUESiEO: City Council approval of resolu[io�concurring with action taicen by the Board oi Water Commissioners in executing the attached lwe�2} agreement�which lease�space at the McRnight Road Standpipe site to Destineer Gorporation��.G�r�y `a��.,.*�'�.3 .__ PLANNIN6 COMMISSION _ pVIL SERVICE COMMISSION _qBCOMMITTEE _ _ STAFF _ _ �ISTRICTCOURT _ SUPPORTS WHICH COUNCIL OB.IECTNE� PERSONAL SERVICE CANTRACTS MUST ANSWER THE FOLLOWING OUESTIONS: 1. Has ihis personlfirm ever worketl under a coniracf for thi5 tlepartment? YES NO 2. Has this persoNFirm ever been a city employee? YES NO 3. Does thls persoN6rm possess a skdl not normaily possessed 6y any current city emR�oyee? YES NO Explei� all yes answers on seperete sfieet and attach to gresn sheet PROBIEM, ISSUE.OPPORTUNITY(Wno. Wha4 Wnen, Where, Why�: The Board of Water Commissioners has the opportunity to receive revenue by leasing space at its water tower site on McKnight Road at Wilson Avenue. �� ,. _ � ., � Soard of Tdater Commissioners will receive a yearly revenue of $14,8 0. a��a . _. ..�*� #�' RU� 2 9 �3�5 � �UG 24 �995 yg��6 ��.��r��' tSct, G.s 33 ��9 \L AMOUNT OF TRANSACTION $ COSTlREVENUE BUDGETED (CIRCLE ONE) YE� NO 7{fdG SOURCE NIA ACTIVITY NUMBER CIAL INFORMATION' (EXPLAIN� c�rr oF sr. P,�ui OFRCE OF THE BOARD OF WATER COMMISSiONERS RESOLUTtON - 6ENERAL FORtrI gs-ingy No 4379 PRESEMED 8Y Rettman August 14, 1995 COMMISSIONER DATE WHEREAS, Destineer Corporation desires to lease space from the Hoard of Water Commissioners on its McKniqht Road Standpipe site on McKnight Road at Wilson Avenue in Saint Paul, Minnesota, and on the Standpipe itse�f to install ar.d operate paqing communication equipment; and WHEREAS, The Destineer Corporation desires tc share certain leased space with the Skytel Corporation; and WHEREAS, The Board did adopt a Water Tpwer Site Leasing Policy on 3uly 10, 1995, which aliows such space ieasing and imposes certain conditions on such leasing; and, WHEREAS, Staff has prepared the attached lease agreement which complies with all conditions of the Water Tower Site Leasing Policy and provides for a five-year lease starting at a one-year lease rate of $7,560 and increasing each subsequent year at a rate equal to the Consumer Price Index; and WHEREAS, The General Manager of the Water Utility, I�r. Bernie R. Bullert, recommends Board approval af the attached lease aqreement; now, therefore, be it Water Comxnissioners Yeas �vor__ Naps e... �. Adopted bp the Board of Water Commissioners SECY. cirr of sT. P�►u� OFRCE OF THE BOARD OF WATER COMMI5510NER5 RESOLUTION—GENERAL FORM q�-,�� No 43�9 COEMSMES Rettman bA � August 14 1995 RESOLVED, That the attached lease aqreement between the Board of Water Commissioners and Destineer Corporation is hereby approved and that the proper officers are hereby authorized to execute said lease aqreement on behalf of the Board; and, be it FURTHER RESOLVED, That $6,000 £ee shall be applied towards McKnight Road Standpipe site. Water Commissioners Ye � Arcand Harris President Rettman President Guerin Nays .00 of the first year's lease landscape improvements on the Adopted by the Board of Water Commissioners £avor!+ _ OpposPrL � August 14, 1995 ' � � �I , _/: I SAINT PAUL C��lOp�' � t) �� i wa ree �rriirrr SAINT PAUL WATER UTILITY WATER TOWER STlE LEASE AGREENIENT Between Board of Water Commissioners and Destineer Corporation August I995 WATER T�WER SITE LEASE AGREEMEIVT' Between the Board of Water Commissipners and Destineer Corporation TABLE OF CONTENTS (1) �2� [3] [4l I�l [6] [�l L83 [9J (101 [iil [12j [13] [14) [15j [16) {17} [�gl [i9] ��1 [21] [��I [23] {24] [�l [26] [2 �2ga �29) (36] [31] i321 j33] [34) 95 Leased Premises. - • . . . . . . . . . . . . . . . . • • - . . . . . . . . . . . . . . . . . . . . . . 1 Term ofI.ease......•--.....•-• .............••-••..........i Re� .............................................................. 1 Landscape Screening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Primary Use of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 LESSEE'S Use of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Operation and Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Utility Service .............................................4 Costaud Eapense . .........................................4 Rightaf Entry .......................................................4 Ta�ces ..............................................................4 Insurance. ..............................................4 Cancellation or Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Notice..................................................6 Assignment and 3ubl+etting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Maintenance and Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Paymepts in Case of Aefault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 5urrender of Premises . . . . . . • • - • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Indemnity..............•---.............................6 Holdover .................................•••............6 Pollution and Contaminants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Ca�rolling Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Destr�ction ...............................................7 Evems of Defauit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Compliance with Laws . .....................................8 Non-I?iscruuination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Liens...................................................9 Emine� Domain ...........................................9 DefauttRemedies ...........................................9 Defau(t of Paymeut . . . . . . . . . . . . . . . . . • • • . . . . . . . . . . . . . . . . . . . . 10 Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Amended ............................................. il Qniet Eqjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Authority ............................................... 11 Signature Pages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Appendix WAT�R TOWER STTE LEASE AGREEMENT g rj —�, Q�� Between Destineer Corporation and the Board of Water Commiccioners This agreement is made this day of , 19_, between the BOARD OF WATER COMMISSIONERS OF THE CIT'Y OF SAINT PAUL, 8 Fourth Street East, Suite 400, Saint Paui, Minnesota 55101-1007, hereinafter called LESSOR, and DES'I'INEER CORPORATION, 200 South Lamar Street, Jackson, Mississippi 39201, hereinafter cailed LESSEE. In consideration of the terms and conditions of this agreement, LESSOR and LESSEE agree as follows: [lj I�sgsl Premiscs. The LESSOR, in considerarion of the payment of the Basic Rent and Additional Rent hereinafter specified to be paid by the LESSEE, and the covenants and agreements herein contained, dces hereby lease, demise and let unto LESSEE certain areas on the LESSOR' S property, whose address is: 393 North McKnight Road, 5aint Paul, Minnesota 55119-5307 and which is legally described as_ The west Z50 feet of the east 283 feet of ihe south 300 feet of the north 1190 feet of the soixttteast 1 /, of Saction 35, Township 29, Range 22, of the County of Ramsey in the State of Minnesota. {A) These certain areas lie on the top and west side of the water storage tank located on the property and on land adjacent to the tank. Tfie specific azea on top of the tower wiil be mutuaily determined by the parties to the I.ease. It is understood by the parties that this is a non-exclusive Lease and that other areas on top of the LE5SOR'S elevated water storage tanlF and ihe adjacent land may be leased to other entities. These certain areas ue shown generally on attached Exhibit "A", incorporated herein by this refer- ence. [2] Term of L.�a_ce. The term of this lease shall be 5 years, commencing as of the day of , 1995, and expiring on the day of , 2000. Upon expiration of the iniriai term, this lease shail automaticaliy renew for successive periods of 5 years unless either party serves written notice upon the other parry sixty {60) days prior to the expiration of this lease or any extension thereof. Upon exp'sration or termination, LESSEE shall have thirty {30) days to remove ali equipment from the demised premis�,s and to make ail necessary repairs. (3j $g� Rent shall consist of Basic Rem and such Additionai Rent as may apply. LESSEE shali pay all rent in advance, on the first day of the term of the lease and on the first day of each payment period thereafter as indicated in the Payment Schedule below: 95 {A} Basic Rent, Based on LESSEE'S original installations as described in Ezhibit "B", inco;porated herein by reference, LESSEE shalI gay to the LESSOR a yearly basic rem fee of seven thousand, five hundred and siery dol]ars ($7,560.Od) as determined by the rental fee schedule in Exhibit "C" incorporated herein by reference. Any changes to the equipment proposed by the I,ESSEE in E�ibit "B" shall be considered a new instaliation and as such st�all be subject to the terms and conditions of Exhibit "C" and Exhibit "D". Said fee sha11 be payable in advance each year with tfie first payment due upon the execution of this agreement. Each payment thereafter shall be due each successive year on or before the anniversary date of this agreement. The basic rent fee shall be increased annually by an amount equal to the increase in the Consumer Price Index (CPI) as prrnided below. However, the rent shali not in any case increase more than 8% per year, nor shall it ever be decreased. The CPI shall mean the "Consumer Price Index for All Urban Consumers, All Cities, AII Items (19fi7 = 100)" as puhlished by rhe United States Department of Labor, Bureau of Iabor Stadsttcs or, if such index shail be discontinuerl, the successor index thereta or, if there shall be no successor index, such comparable index as shall be mutually agreed ugon by the pariies hereto. To determine the annual rental increase io 6e paid by LESSEE, ihe monthly rental for the grevious year shall be mu(tipiied by a fraction, tkie numerator of which shall be the CPI for the quarter immediately preceding the annual anniversary date of the Lease and the denominator shail be the CPI for the conesponding quarter of one year earlier. LESSOR shall be responsible for communicating all rental increases to LESSEE. If this L.ease is terminated at any time other than on the last day of a lease year, rent shall be prorated, based on a three hundred sixty-frve (365) day year, as of the date of termination, and in the event of termination for any reason other than no�ayment of rent, all prepaid rents shall be refunded to the LESSEE. (B) �dc3itional Rent. AdditionaS Rent means all amounts, other than Basic Rent provided for in paragcxph (3-A} abave, that LFSSEE shall be obligated to pay under this paragraph or other provisions of this L�ease. Additional Rent shall include, but is not limited to, the foliowing fees, costs and expenses: (i) costs for the repairs, improvements or alteraYions required to be made by the I.ESSEE in paragraph 16 of this L,ease; {2) all taaces on reaity or personalty, general or special, and ali public rates, dues, charges and assessments, general or special, of any kind upon the L�ased Premises; and (C} Property insurance gremium and/ar uninsured iosses as set forth in paragraph (12) of Yhis I.ease. 2 95 In the event that LESSEE does not make such payments (or any payments required to be paid as Additional Rent), LESSOR may make rhe payments at its oprion, and the payments so paid become Additional Rent, and are due and payable by the LESSEE with the payment of Basic Rent next required after written notice of same to the LESSEE by LESSOR. LESSEE shall make all payments of Basic Rent and Additional Rent to LESSOR at the following address: Board of Water Commissioners, 8 Fourth Street East, Ste. 400, Saint Paul, Minnesota 55101-100'7 The applicabie account number for Ciry Finance Accounting Code is: &50.28906-5303-00010 [4] j an Screenin� LFSSOR shail plarn and maintain lanclscape screening on the north and west side of LESSEE'S Buiiding. LESSEE shail pay to the LESSOR at the time of contract execution a one-time landscaping fee of five hundrefl dollars ($500.00} as reimbursement for such screening. [Sj �� iT� of Pre�r+icrc_ The primary purpose of the Leased Premises is for a water tower and apgurtenances to provide water service to customers of the LESSOR. In the event that the use of the tower for water service is jeopardized because of antenna usage on the tower, the LESSOR may require reasonabie changes in the terms and conditions of this agreement in order to prevent such jeopardy. [6] �, ' of i. _. The LESSEE shall use and occupy the Leased Premises for ihe transmission and reception of communications signals authorized for use by the Federal Communications Commission (FCC), and for the installation, operation and maintenance of iu communications equipment as oudined in Exhibit "B". LESSEE shail have 24 hour access to the Irased premises for purposes of insralling, repairing and removing the radio equipment, provided that LFSSEE shall g'rve advauce notice to LESSOR of any instailation, repa'u or removal, and shall undertake such work only after receiving approvai from the LESSOR, which will not be unreasonably withheld. LESSEE further agrees not to do any act which will interfere with or endanger the proper use of the elevated water swrage tank. LE5SOR at all times reserves the right to take action it deems necessary to maintain, repair, aiter ar improve the premises and to temgorarily snspend the Lease and remove LESSEE'S antenna and equipment in order that such work can be done. T] Ooeration and E.n_Limm �. LESSEE shall install, operate and maintain its equipment in accordance with all appticable laws and regulations, and in accordance with all Technical Minimum Site Standards, Erliibit "D", incorporated herein by reference. LESSEE shail operate its equipmem so as not to cause interference with any other communication transmitting or receiving equipment whether located on the premises or not. If LESSEE is advised that its equipment is causing interference with other communication transmitting or receiving equipment, it shall 3 95~108� eliminate such interference within twenty-four (24) hours or cease using the equipment causing the interference except for short tests necessary for the elimination of ihe interference. It is further agreed that LFSSOR in no way guarantees ta I,ESSEE noninterference to the operation of LESSEE'S equipment. (8j Utility Service. LESSOR wiil aliow I.ESSEE, at LESSEE'S cost and e�cpense, to connect its equipment to the existing utility services. LESSEE thereatier agrees w fiunish and pay for the cost of utility service, provided that LESSEE shaii also be responsible for all repairs or alterations to utility equipment arising out of the use of the demised premises by LESSEE. LESSOR shall not be responsibie for any damage due to the irnerruption of utility serrice. [9] Cost and Eapense. LESSEE shali install and maintain all equipment at its sole cost and eacpense and upon removal of said equipment, LESSEE shail be responsibte for restoring the surface wherever attachments, or strucWres, have been made to its original condition. The pazries agree that the radio equipment shall remain the personai propetty of the LESSEE, and shail be kept in repair by LESSEE. [10] Itir�t of Entrv. At all times during the term of this (ease, the LFSSQR shafl have the right, by itseif, its agents and employees, to enter into and upon the Leased Premises dnring reasonable business hours or, in the event of an emergency, at any time for any legitimate purQose. [ll] Taaees• (a) I,ecsor's TaXes. LESSOR shall be responsible for and pay all ta�es and assessments against the Leased Premises. (b) i_,ESS�F.'c T�xes• LESSEE shall be solely responsible for and pay all taYes on its building or personal property. (12j Inc�irance. (A) T.FfiRF��S i�,w� . The LESSEE shall acquire and mainiain during the term of this lease the foliowing coverage: {I) The LESSEE shall be responsible for the self insurance of, ar the acquisition of Commercial Property Insurance on, its personal property. (2) COMFREHENSIVE GENERAL LIABILTTY INSURANCE including blanket contracn�al liability coverage, personal injury liability coverage and broad form property damage liability endorsement in the fotiowing aunounts: Personai Injury: Property Damage: $500,000.00 ! each person $i,500,Q00.W 1 each occurrence $1,OOd,OQQ.OQ / each occurrence 4 ��a�� Such insurance shall: (a) name the LESSOR and the City of Saint Paui as addirional in- sured; @) be primary with respect to LESSOR'S insurance or self-insurance; (c) not exclude explosion, collapse and underground praperty damage; (d) be written on an "Occurrence" Form policy basis; and {e) not contain an "aggregate" policy limit unless specifically approved in writing by LESSOR. (3} AUI'4MOBIL.E LIABILI'TI' INSURANCE with minimum limits of $600,000 combined single limit and $i aggregate, covering hired, non-owned and owned automo- biles. {4) WORKERS' COMPENSATION INSURANCE with not less than statutory minimum limits; and EMPLOYERS' LIABILITY INSURANCE with minimum limits of at least $100,000 per accident and with an all states endorsement. (5} The I,ESSEE shali sugply to LESSOR current insurance certificates for policies required in Paragraph [l2]. The said certificates shall certify whether or not the agent has errors and omissions insurance coverage. (6) The limits cited under each insuzance requirement above establish minimums; and it is the sole responsibility of the LESSEE ro pwchase and maintain additional insurance that may be necessary in relation to this ]ease. ('n Nothing in this contract shall constitute a waiver by the LESS4R of any statutary limits or exceptions on liability. (8) LESSEE shall piace the insurance with responsible insurance companies authorized and licensed to do business in the State of Minnesota and approved by LESSOR, and shall deliver copies of the policies to LESSOR on the date of LESSEE'S execution of ihis agreement. The palicies required in paragraph ji2] shall be endoxsed to indicate that the lnswer cannot cancel or change the insurance without first giving the LESSOR 30 days' written notice. (B) �4'aiver of Subr� ioa. LESSOR waives its right of subrogation for damage to the Building, contents therein, loss of use thereof, and/or loss of income, up to the amount of insuruice proceeds cailected. LESSEE waives its right of subrogaiion for damage to property in tYe I.eased Premises, tass of use thereof, loss of income andlor accounts receivable, up to the amount of their respective insurance proceeds colle�ted. The parties shall notify their respective insurance companies, in writing, of the provisions of ihis paragraph; and, if either cannot waive its subrogation rights, such party shall immediately notify the other parry, in writing. 5 95-1084 [13} Ca.�nation or Term�n_�+n_ This lease shall be subject to canoellation and termination by either party at any time during the term upan ninery (90) days written norice w the other party. In the eve� of such termimaxian, and on the effective date of such termination, LESSOR shalt return any uneamed rental paid by the LESSEE wiihout interest. [14} y� Ati �tices herein provided to be given, or that may be given by either party to the other, shall be deemed to have been fully given when served personally on LESSOR or LESSEE, or when made in writing and deposited in the United States Mail, certified and postage prepaid, and addressed to the LESSEE or the LESSOR at the addresses s� on page (1). The address to which the notice shall be mailed may be changed by written notice given by either party to the other. Nothing herein shall preclude the giving of such address change notice by personal service. [15] A�.c ignmer_�t and S�bletting. LFSSEE shali not assign or subiet this Lease without the written consent of the LFSSOR, which consent must be obtained prior to the execution of any agreement to subtease the Leased Premises. [i6j 1l4aintenance and Rep� LESSEE shall, at its own cost and expense, be responsible for a11 repairs, maintenance and upkeep of the Building and the LESSEE'S equipment, inciuding but not limited to emergency repairs of any kind, routine maintenance and repair to keep the I.eased Premises in good repair, safe and in compliance wish applicabie fire, health, building and otfier life-safety codes; and all regairs and maintenance needed to keep the building in good condition. [1'7� Pavme�s in Casse of DefaLh. LESSEE shall pay LESSOR all costs and expenses, including reasonable attomey's fees in any action brought by LFSSOR to recover any rent due and u�aid hereunder, or for the breach or default of any of the covenants or agreements contained in this Lease, or to recover possession of said property, whether snch action progresses to judgment or not. [18] .�*+�pn r of icec. The LESSEE, at the expiration of said term, or any sooner termination of this lease, shail quit peacefully and surrender possession of said property and its appurtenances to LESSQR in as good order and condition as the property was delivered to the LESSEE. [19] �. The LESSEE agrees to indemnify, defend, saue and hold harmless the LFSSOR and the City of Saint Paul and any agents, officers and employees thereof from all claims, demands, actions or causes of action of wiiatsoever mature or character, arising out of or by reason of the Lease of the herein described I.eased Premises by the LESSOR to the LESSEE, or the use or condirion of the I.eased Premises or as a result of the operarions or business activities taking piace on the Leased Premises. It is fully understood and agreed that LESSEE is awaze of the conditions of the Izased Premises and leases tfie satne "as is." [20j Holdover. Any holdover after the expiration of the term of this Lease shall be allowed oniy a8er receiving the written consent of the LE5SOR. Said tenancy shall be deemed to be a tenancy only from month-to-month. AIl other terms and conditions of this Lease shali be applicable. J 9�-108� [21] Polhrtion and on aminants_ LESSEE agrees to comply with ali ordinances, laws, rules and regulations enacted by any governmental body or agency relatttrg to the comrol, abatement or emission of air and water contaminants and tfie disposal of refuse, solid wastes or liquid wastes. LESSEE sk�ait bear ail costs and expenses arising from comptiance wiih said ordinances, laws, rules, or regularions and shall indemnify, defend, save and hold harmless LESSOR from all liability, including without limitation, fines, forfeitures, and penalries arising from the failure by LESSEE to comply with such ordinances, laws, rules or regulations. LFSSOR has the right to perform cieanup and cf�arge the LESSEE as Additiona( Rent for such costs should the LESSEE fail to comply. [22] Controlling irasP In the event there is any prior existing lease or rentai agreement between LESSEE and LFSSOR (or its predecessor in interest) covering the subject properry, it is agreed and understood that this Lease shall cancel and terminate any prior leases or rentai agreements as of the effective dare of this lease. [23] �s�ipII� In the event of damage to or destruction of the Leased Premises or in the event the premises becomes untenantable due to such damage during the term of ihis Lease, LESS012 may at its option: (A) terminate the lease upon fifteen (15) days' written notice to LESSEE; or (B) within fifteen (15) days agree to restore the premises within a reasonable time period following the casualty, charging the costs in excess of the insurance proceeds, if any, to the LESSEE as Additional Rent; or (C) may direct that LESSEE promptly restore the Leased Premises to substantiaily the condition existing immediateiy prior to such damage or destruction, and for that purQose, if such dam- age or destruction was caused by perils insured against the LESSOR shall make available to LESSEE pro-rata, as work progresses, the net proceeds of such insurance. If such proceeds aze insu�cient to pay the entire cost thereof, LESSEE agrees to pay as Additionai Rent, a lump sum payment {or in a form agreed upon by the LESSOR} equai to the remainder of such cost. 'The Basic Rents to be paid during the restoration period sfiall be abated in proportion to the percentage of loss and impairment of the use of the Leased 1'remises as determined by the LESSOR, times the number of days of loss or impairment. [24] F.ve c o€ Defa �1t. The occunence of any of the following events during the term of this I.ease shall constitute an event of default by the LESSEE: (A) the filing of a petition to have LESSEE adjudicated bankrupt or a petition for reorganization or arrangement under any laws of the United States relating to bankruptcy filed by LESSEE; r� 95 (B) in the event a petition to have LFSSEE adjudicated bankrupt is filed against LESSEE, the failure to dismiss such petition within ninely (90) days from the date of such filing; (C) the assets of LFSSEE or of the business conducted by LESSEE on the I.eased Premises be assumed by any trustee or other person pursuant to any judicial proceedings; (D) LESSEE makes any assignment for the benefit of creditors; (E} the failure by LFSSEE to timely pay Basic Rent or Additiamal Rent as required by this Lease; (F} the failure by LESSEE to observe and perform any covenant, condition or agreement on its part to be observed or performed as required by this Lease; or (G) the failure by LESSEE or its surety to discharge, satisfy or release any lien or lien statement filed or recorded against the Leased Premises within sixty days after the date of such filing or recording, whichever date is earlier. Either the LFSSOR or the LESSEE shall have the right to terminate th'ss lease at any time if either party defauits in any material covenant, term or condition of Lease, provided however, that the injured party shatl first give thirty (30) days notice to LESSOR of such default, providing the other party with an opportunity to cure such default during the said thirty (30) day period. It is an express covenant and agreement of LESSOR and LESSEE that LESSOR may, at its election, terminate this Lease in the event of the occurrence of any of the evenu described in this paragraph or in paragraph [2Tj relating to liens by giving not less than ten days' written notice to LESSEE; and when so terminated, LESSOR may reenter the Leased Premises. Tfiis Izase and its Leased Premises shall not be treated as an asset of LESSEE'S estate. It is further expressly understood and agreed that LESSOR shall be entided upon such reentry, notwithstanding any other provision of this Lease, to exercise such rights and remedies as are provided in Paragraph [29] of this Lease. (25] C,omnLa.Hw with La_ ws. The property described herein may be used for only the purposes stated herein. It is the sole and exclusive responsibility of the LESSEE in the use of the property to comply with all Iaws, rules, regulations or ordinances imposed by any jurisdiction affecting the use to which the prc�erty is proposed to be put. Inability or failure by the LFSSEE to comply with any of said laws, rules, regulations or ordinances will not relieve ttie LESSEE of the obligation to pay the rental provided herein. [26] Non-Discrimination The LFSSEE for itself, its personal representatives, successors in interest and assigns, as a part of the consideration hereof, dces hereby covenant and agree, as a covenant running with the land, that (A) no person, on the ground of race, sex, color creed, religion, age, disability, marital status, status with respect to public assistance or national origin or ancestry shali be excluded from E� 95-108 participating in, be denied the benefits of or be otherwise subjected to discrimination in the use of sa'td facilities; (B) that in connection with the construction of any improvements on said lands and the fumishing of services thereon, no dicc�;,n;�tion shall be practicxd in the selection of employees and con- tractors, by conuacwrs in the sel�tion and retendon of first tier subcontractors, and by first-tier subcontractors in the sele�tion and retention of second-tier subcontractors; (C) that such discrimination shali not be practiced against the public in its access in and use of the facilities and services pmvided for public accommodations (such as eating, sleeping, rest and recreation) constructed or operated on the Leased Premises; and (D) that the LESSEE shall use the premises in compliance with all other requirements imposed pursuant to the 5aint Paul Legislative Code Chapter 183. [27j j,iens• The LESSEE shall not permit mechanic's liens or other liens to be�led or established or to remain against the I.eased Premises for labor, materials or services fumished in connection with any additions, modifications, improvements, repairs, renewals or replacements made to the Leased Premises, or for any other reason; provided that if the LESSEE shall first notify the LESSOR of its intention to do so and shall deposit in escrow with the LESSdR a sum of money or a bond or inevocable letter of credit acceptable to the LESSOR equal to the amount of the claim of lien, LESSEE may in good faith contest any such claims or mechanic's or other liens filed or established and in such event may permit the items contested to remain undischarged and unsatisfied during the Qeriod of such contest. If, in the opinion of the LESSOR, the nanpayment of any such items subjecu the Leased Premises to any loss or forfeiture, the LESSOR may require the LFSSEE to use the escrow account to promptly pay ail such unpaid items and if LESSEE fails to pay from the escrow account, the LESSOR may pay and charge the LESSEE as Additionai Rent. [28] In the event the entire Leased Premises aze taken by eminent domain, or such portion thereof is so taken that in LESSEE'S reasonable judgement it is uneconomic thereafter to restore the Leased Premises and procePd under the terms and provisions of this Lease, LESSEE may termimate this Lease by giving to LESSOR thirty days' written notice of termination, effeciive as of the date on which the condemning authority acquires legal title or physical possession of the Leased Premises. LE5SEE hereby waives and releases any claim to or share in the Award of Compensation for the taking, noiwithstanding any other provision of law, this Lease or any oiher agreement, LESSEE may to the extent otherwise permitted in the eminent domain proceeding, remove its own trade fistures at its own expense. (29) ILQfauk Remedies. In the event an Event of Defanit occurs under pazagraph {24] of this Lease, LESSOR may exercise any one or more of the foliowing remedies: (A) reenter and take possession of the Premises without termination of this Lease, and use its best efforts to lease the Premises to or enter into an agreement with another person for the account of LESSEE; � g5-1084 {B) terminate this Iease, exciude LESSEE fram possession of the Premises, and use its best efforts to lease the Premises to or enter imo an agreement with another in accordance with agplicable law; (C) exclude LESSEE from possession of the Premises, with or without terminating this Lease and opetate the Premises itself; {D) oerminate the I.ease, exclude LESSEE from possession of the Leased Premises, seli ali ar any part of the Premises at tlie best price obrainable (provided such sale is permitted by applicable law,) such sate to be on such terms and c�ndmons as ihe LESSOR, in its sole discretion, shali determine and apply the proceeds of such sale less any expenses thereof for the account of the LESSEE. (E) exercise any remedies availabie to it under the Minnesota Uniform Commercial Code; (F) take whatever action at law or in equity may appear necessary or appropriate to coitect the Basic Rent and Addirional Rent then due and thereafter to become due, ar to enforce perform- ance and observance of any obligation, agreement or covenant of the LESSEE under this I.ease. (G) in exercising any of its remedies set forth in this Section, the LESSOR may, whether or not the Lease is then in effect, hold the LFS5EE liable for the difference between the payments and other costs for which the LESSEE is responsible under this Lease. No remedy herein conferred upon or reserved to LESSOR is intended to be exciusive of any other available remedy or remedies, but each such remedy shall be cumulative and shalt be in addition to every other remedy given under this Lease or now or thereafter existing at law or in equity by statute. No delay or omission to exercise any such right or power accruing apon any defautt shali impair any such right or power or shali be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the LESSOR to exercise any remedy reserved to it in this Provision, it shali not be necessary to give any notice, other than such notice as may be herein expressly required. (30] I�iault of Fa�rment. LESSEE agrees that, should it default on any payment owing and due to be paid to LESSOR as provided in this agreement, including but nat limited to Basic Rent and Additional Rent, then the remaining w�paid balance shall, at the option of the LESSOR, immed- iately become due. LFSSEE iwther agrees that the LFSSOR may, at its option and without notice to LFSSEE, enter judgment against LESSEE in Ramsey Coumy District Caurt for the amount of the unpaid balance. A.nd LESSEE does hereby confess judgment in the amount of the unpaid bal- ance due upon default, and does authorize the LESSOR to enter judgment as provided above. LESSEE dces hereby agree that the LESSOR, at its opdon, may enter a judgment, at any time within oire year of ihe time the ]ast payment shall have come due, for the fiill amoum of the nnpaid balance due pursuant to the confession of judgment provided herein. 10 95 [31) Alterations. The LESSEE will not make any alterations to the premises without the written conseni of the L�SSOR, such consent not to be unreasonably withheld. If the LFSSEE desires to make any such alterations, an accurate description shall first be submitted to and approved by the LESSOR and such aiterations shall be done by the LESSEE at its own expense. All such work shali be performed under the LESS�R'S supervision and any improvements made to the Leased Premises at the LESSEE'S expense shali become the property of the LESSOR at the end of the lease period. LESSEE agrees that all aiterations will be done in a workmarilike manner and in conformance with applicable buiiding codes, that the structival integrity and building systems of the building will not be impaired, and that no liens wiii attach to the premises by reason thereof. (32] Amended. Anything herein contained to the contrary not withstanding, this Lease may be terminated, and the provisions of this I_ease may be, in writing, amended by mutual consent of the parties herein. [33] (,j�riet Eniovment. LESSQR covenants and agrees with LESSEE that upon LESSEE'S paying the rent and observing and performing all the terms, covenants and conditions on LESSEE'S part to be observed and performed, LESSEE may peacefully and quiedy enjoy the premises, subject nevertheless to the terms and conditions of this Agreement. [34] �, The individuals signing this Agreement on behalf of a party represent and warrant they are fully empowered to act on behalf of said entities. Furihermore, both parties are fully empowered to execute, deliver and perform the various obligations under this Agreement. IN WITNESS WHEREOF, The parties hereto have set caused ffiis Agreement to be executed on their behalf as of the day and year fust above written. Recommended for approval: BOARD OF WATER CONIIVIISSIONER5 OF THE CITY OF SAINT PAUL General Manager Form Approved: Assistant City Attorney STATE OF MINNESOTA ) )� COUI�TTY OF RAMSEY ) By its President By iu Secretary The foregoiag instrumem was xknowledged before me this _ day of ^, 1995, by Dino Guerin, President, and Janet M. Lindgren, 5ecretary, on behalf of the Board of Water Commissioners of the City of Saini Paul. Notary Public il 95 CITY OF SAIlVT PAUL By its Mayor By its City Clerk STATE OF MIl�INESOTA } ) ss COUNTY OF RAMSEY ) By its Director, DeQarnnem of Finance and Managemera Services The foregoing instrument was acknowledged before me tlus ` day of 1995, by Norm Coleman, Mayor, on behalf of the Ciry of Saint Paul. Notarv Fublic STATE OF MINNESOTA ) ) ss COUNTY OF RAMSEY ) The foregoing instrument was aclmowledged before me this day of , 1495, by Fred O�uusu, City Clerk, and Maztha Lazson, Director of the Department of Finance and Management Services, on behalf of the Ciry of 5aint Paul. Notary Public DESTINEER CORPORATIOPI By its Manager STATE OF MISSISSIPPI) ) ss COUNTY OF ) Its Vice President- and Coiporate Praurement Officer The foregoing instr�w�ent was aclmowledged before me U�is _ day of 1995, by Dudley G. Norman, Manager-Site Administration, and 3ohn Nikolic, Vice President and Coiporate Procurement Officer, on behalf of Destineer Corporation. Notary Public 12 BRUNING w i t so v�. ��! e, . Dr��cevaaY i F��.�e. fo be, cebca�Qd by t U-Et t;fy M � N '.� � � S O � o / M ` � l .3. J � ROVEO Suitd�v.g -4-o bc b��l� by [-esse DeStg�n � �oc.z.�"�o�. av� � ,�s��ti�,-t-�oti.. o� ati� � ec�utPw.eri awd ap�r�er.s�c,e5 ' thc,�vd:v.� �{-k+e, bu,tding, „^� 5�} be, aP � ra•ted ��•.. wr�`Fti� �Y � �a,-�e�- U-�l��y �r�o�t` -�a iws�al�b��oK. � 95-�.08� zso' ZSo' _� �••_ 8-4- rR. WATER UTILITY - CiTY OF 5T, PAUL, M11V111. �t�c.Kv..�l,.} Rd . S'Fav.d P: p c. t_E�,SE. �a�TE. -_ `�-�-;-� �X�1f�91t °A° Destineer Corporation Lease Site Equipment and Operafing Frequency Band Li.st 95-148� • One 500 watt iransmitter operating on the 940.225 MHz or 940.775 MHz or 930.2125 MHx frequency band, but not more than one frequency or transmitter at one time with one Scala Omnidirectional antenna using I coaYial cable. • One Channel Master .75 meter receive-only satellite antenna with one GPS receive only antenna both using '/ coaxial cable. • One receiver utilizing the 901.225 MHz or 90 L775 MHz or 901.78125 MHz frequency band, but not more than one frequency at one time, with one Scala Omnid'uectional antenna using'i coaxial cable. Any changes to ihe above equipment proposed by the LESSEE shall be considered a new installation and as such sha11 be subject to the tenns and conditions of E�ibit "C" and Exhibit "D". DESFREQS.EXEI August 7, 1995 Exhibit "B" i 0 9 � � i V V ", ST. PAUL WATER UTII.ITY RADIO ANTENNA SITE MONTffi.Y LEASE RATES For Year 1995 1995 Single User: Community Repeater: Mulri-Use Antenna Radio Common Carrier (RCC) 800 MHZ Trunking System & E-SMR: Microwave Dish: CON ii NT RF_VIEW FEE: Singie User, Cellular or Trunking: E-SMR: Yeariy increases will be based on CPI. ANRATEC.EXfi August4, 1995 $174.00 $240.00 $280.00 $50.00/mo.ea.Transmitter $50.00lmo.ea. Receiver $50.00/mo.ea. Antenna $50.00lmo.ea. Standard 2'ac2' Floor space $350.Q0 $325.00 per frequency pair �1,025.00 per application Exhibit "C" TECHNICAL MINIMUM SITE STANDARDS � 5'" 1 Q 8�° S� Paul Water Utility Water Tower Communications Site All equipment must be housed in an RF right, metal enciosure that pmvides at least 60 db of aztenuation to any intemal RF signa3s. Besk-top base starions and open racks cannot be used without special approval. Additional shieiding kits may be required. 2. At least 60 db of isolation for 450 MHZ, 800 MHZ and 900 MHZ transmitters and 30 db of isolation for I50 IvIHZ and 40 MHZ �ansmitters must be provided. A harmonic filter must be provided on the transmitte� between the antenna and any ferriie device used. Additional filtering and isolation may be required and will he considered on a case-by-case basis. 3. Maximum transmitter power allowed into the antenna feed line shall be 110 watts per transmitter. (Higher power leveis wiil be considered on a case-by-case basis. Additional protecrive devices may be required.) 4. Only jacketed copper Heli� cable sha11 be permitted for transmission line at the site. All on-site intercabling must use RGf9, RG/142, RG/214 or I/2 inch SuperElex. RGlB or any other single shielded cable will not be allowed. Proposed transmitters that will cause second order, tkurd order or fifth order intermodulation products on e�risting receiver frequencies will not be pennitted on the site. A receiver with the same frequency as an existing sewnd order, third order or fifth arder intennodulation product at the site, wiil not be permitted on the site. 6. All transmitters shall he equipped with band-pass caviries that will provide at least the following attenuarion of side band noise, if needed: 40 MHZ band: 150 MHZ band: 450 MF3Z band: 8001900 MHZ band: Microwave: 50 db at 1 MHZ 50 db at 1.5 MEIZ 50 db at 2.5 MHZ SOdbatlOMHZ 50 db at 20 MHZ Exhibit "D" �T�.� A� 1 of 2 MINIMUM SITE STANDARDS - Cantinued 9 5 — � o$ � Each cahinet must be identified by the owne�'s name, address, �CC 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 (Il4� calculations of all transmitters and receivers known to exist in the area at time of applicarion. (Study will include 2nd, 3rd and Sth order IM terms, and A+ B- C, three-product terms.) b. c. d. e. Transmitter noise and receiver desensing calcularions of all equipment at the site. Analysis of best equipment and antenna locations at the site. Analysis of AC power requirements. Report to prospective site user regarding application. 9. Plan and specifications to secure equipment to the tower must be submitted to and approved by the Water Utility prior to installation. - End - TSTAND.EXH qugust A. 1995 Exhibit "D" 2of2 Council F`ile # �„'�J � �O $� �"` '` � ' - -¢ �� _ � �, e Presented By Referred To Green Sheet # ZSSE 1 RESOLUTION C17Y OF SA1NT PAUL, MINNESOTA Committee: Date WHEREAS, Destineer Corporation desires to lease space at the McKnight Road Standpipe site on McKnight Road at Wilson Avenue in Saint Paul, Minnesota, said Site owned and operated by the Saint Paul Board of Water Commissioners, hereinafter referred to as the "Board"; and WHEREAS, Board staf£ has prepared the attached lease agreement which provides £or a five-year lease starting at a one-year lease rate of $7,560 and increasing each subsequent year at a rate equal to the Consumer Price Index; and WHEREAS, The Board did adopt Board Resolution No. 4379 which approved said lease agreement; now, therefore, be it RESOLVED, That the attached lease aqreement between the City of Saint Paul, the Saint Paul Board of Water Commissioners, and Destineer Corporation is hereby approved and that the proper o£ficers are hereby authorized to execute said lease agreement on behalf of the City of Saint Paul. Requested by Department of: Adopted by Coundl: Date h� ,_� �-z ��c�s �..,�,..�_�"." Adoption Cettified by Council Secretary �x -._ �_ Approved by By. � ' Water Utility BY• ��2�tiv"`r rL • ��yz.c-�--� 0 Bernie R. Bullert - General Manager Fo Appr Ciry Attomey B � /� � ( 5 Approve 4ayc for Sub ' on to Council 'UC� By. �� q5-IcB� ,� DEPARTMENT/OFFICE/COUNCIL DATE INITIATED �� 1 V� � H O O � Water ut�i�t s121�9s GREEN SHEET INITIAVDATE INITIAVDATE CANTACT PERSON 8 PHONE O DEPARTMENT OIRECTOR ��' �-L'f�LJ � CIN COUNCIL Bernie R. Bullert - 66274 ASSIGN � CITYATfORNEY $�y� qNCLERK NUMBEF FOfl MUST BE ON COUNCIL AGENDA BY (DATE) ROUTING BUDGET DIRECTOR � FIN. & MGT. SERVICES DIR. $$PT�MBER 6 1995 ORDEP MAVOfl(ORASSISTANn � TOTAL # OF SIGNATURE PAGES � Z �CLIP ALl LOCATIONS FOR SIGNATURE) ACTION RE�UESTED. City Council approval of resolution�concurring with action taken b;� the Board of tdater Commissioners in executing the attached b�we�} agreement�which leasesspace at the McKnight Road Standpipe site to Destineer Corporation��l�3�E��•l�1�w -- °�- �'� RECAMMENDATIONS: Approve (A) ar Re�ac� (R) pERSONAL SERVICE CONTFlACTS MUST ANSWER TME FOLLOWING �UESTIONS: _ PLANNING COMMISSION _ CIVIL SERVICE COMMISSION � Has this personttirm ever worked untler a contrect for this department? _ CIB COMMIT7EE _ 1'ES NO 2. Has this personflirm ever been a cily employee? _ STAFF — VES NO _ OIS7RiCT COURT _ 3. Does ihis personlfirm possess a skifi na normally possessed by any currem ciry empfoyee? SUPPORTS WHICH COUNqL OBJECTIVE? YES NO Explain all yes answers on separete sheet and attach to green sheet INITIATMG PROBLEM, ISSUE, OPPORTUNITY (Who, Wha�, When, Where, Whyp The Board of Water Commissioners has the opportunity to receive revenue by leasing space at its water tower site on McKnight Road at Wilson Avenue. �� Qu� 2a'9s� � n ��;m FDVANTAGESIFAPPROVE� " ° ' `" ' "�'�� Board of Water Commissioners will receive a yearly revenue of $14,8 0. :� ��+�"�t �`.�##:` AU� 2 � 1��5 ? DISADVANTAGESIFAPPROVED � p—ry ] p � ' ! M b..6J �� V L. P..A �UG 24 1995 v�� AT��`? DISADVANTAGES IF NOTAPPROVED tScc G.s. 33 y49 r e. TOTAL AMOUNT OF TflANSACTION 5 N�A COST/REVENUE BUDGETED (CIRCLE ONE) YE NO FUNDING SOURCE N�A ACTIVITV NUMBER FINANCIAL INFORMATION' (EXPLAINJ CITY OF ST. PAUL OFRCE OF THE BOARD OF WATER COMMISSIONERS RESOIUTION - GENERAL FORM _. 95-��y N 4379 PRESe�o ev Rettman August 14, 1995 COMMISSIONER DATF WHEREAS, Destineer Corporation desires to lease space from the Board of Water Commissioners on its McKnight Road Standpipe site on McKnight Road at Wilson Avenue in Saint Paul, Minnesota, and on the Standpipe itse2f to install ar.d operate paging communication equipment; and WHEREAS, The Destineer Corporation desires tc share certain leased space with the Skytel Corporation; and WHEREAS, The Board did adopt a Water Tower Site Zeasing Policy on July 10, 1995, which ailows such space leasing and imposes certain conditions on such leasing; and, WHEREAS, Staff has prepared the attached lease agreement which complies with all conditions of the Water Tower Site Leasing Policy and provides for a five-year lease startir.g at a one-year lease rate of $7,560 and increasinq each subsequent year at a rate equal to the Consumer Price Index; and WHEREAS, The General Manager of the Water Utility, I�ir. Bernie R. Bullert, recommends Board approval of the attached lease agreement; now, therefore, be it Water Commissioners Yeas Nays Adopted by the Board of Watez Commissioners 19 — In favor__ Oppos� SEGY. c�n oF sr. P�u� OFHCE OF THE BOARD OF WATER COMMISSIONERS RESOLUTION—GENEftAI FORM q�- �� No 4379 PRESENTED BY Rettman � August 14, 1995 COMM�SSIONER DA - RESOLVED, That the attached lease agreement between the Board of Water Commissioners and Destineer Coxporation is hereby approved and that the proper officers are hereby authorized to execute said lease agreement on behalf of the Board; and, be it FURTHER RESOLVED, That $6,000.00 of the first year's lease fee shall be applied towards landscape improvements on the McKnight Road Standpipe site. Water Commissioners Y � Arcand Harris Jice President Rettman President Guerin Nays Adopted by the Board of Water Commissioners In favor 4_ Oppose*a � August 14, 1 995 ' / ��I � , ' SAINT PAUL 45y1 1. � O a. I � �' i WATER Il'fILfTY SAINT PAUL WATER UTILITY WATER TOWER SITE LEASE AGREEMENT Between Board of Water Commissioners �! Destineer Corporation August I995 WATER TOWER SITE LEASE AGREEMENT Between the Board of Water Commissioners and Destineer Corporation TABLE OF CONTENTS [l� L21 [3] [4] [Sl [6] �� 8� t9� [10] [11] [12] [13] [14] [15j (16] [17j [18] [i9] �20� �21) [22} [23] (24j C2s] [ �� L�gl [29] [30] [31] (32] [33] [34] • . , � .. Leased Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Term ofLease .............................................1 Re� .............................................................. 1 Landscape Screening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Primary Use of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 LESSEE'S Use of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Operation and Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Utility Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Cost and Eltpense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Right Entry .......................................................4 Tases ..............................................................4 Insurance . ..............................................4 Cancellation or Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Notice..................................................6 Assignment and Subletting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Maintenance and Repaus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Payments in Case of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Surrender of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Indemnity...............................................6 Holdover................................................6 Pollution and Contawivants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Controlling LeasE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Destrudion ...............................................7 Eveuts of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Non-Discrinunation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Liens...................................................9 EminentDomain ...........................................9 DefauitRemedies ...........................................9 Defauit of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Amended. .......................................•••••. 11 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Authority .........................................•••••. 11 Signature Pages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Appendiu WATER TOWER S1TE LEASE AGREEMENT 9�-- ], Q S!�{, Between Destineer Corporation and the Board of Water Commissioners This agreement is made this day of , 19_, between the BOARD OF WATER COMMISSIONERS OF THE CTTY OF SAINT PAUL, 8 Fourth Street East, Suite 400, Saint Paul, Minnesota 55101-1007, hereinafter called LESSOR, and DESTINEER CORPORATION, 200 South Iamar Street, Jackson, Mississippi 39201, hereinafter ca]led LESSEE. In consideration of the terms and conditions of ihis agreement, LESSOR and LESSEE agree as follows: [1) The LESSOR, in considerarion of ihe payment of the Basic Rent and Additional Rent hereinafter specified to be paid by the LESSEE, and the wvenarns and agreemenu herein contained, does hereby lease, demise and let unto LESSEE certain azeas on the LESSOR' S property, whose address is: 393 North McKnight Road, Saint Paul, Minnesota 55119-5307 and which is legally described as: The west 250 feet of the east 283 feet of the south 300 feet of the north 1190 feet of the southeast'/, of Section 35, Township 29, Range 22, of the County of Ramsey in the State of Minnesota. (A) These certain areas lie on the top and west side of the water storage tank located on the property and on land adjacent to the tank. The specific azea on top of the tower will be mutually determined by the parties to the Lease. It is understood by the parties that this is a non�xclusive Lease and that other areas on top of the LESSOR'S elevated water storage tanl� and the adjacent land may be leas�d to other entities. These certain azeas are shown generally on attached Exhbit "A", incorporated herein by this refer- ence. [2] Term of Leace. The term of this lease shall be 5 years, commencing as of the day of , 1995, and expiring on the day of , 2000. Upon expiration of the initial term, this lease shall automatically renew for successive periods of 5 years unless either party serves wriuen �otice upon the other parry siYty {60) days prior to the expiration of this lease or any extension thereof. Upon expiration or termination, LESSEE shall have thirty (30} days to remove all equipment from the demised premises and to make all necessary repairs. [3] $� Rern shall consist of Basic Rent and such Additional Rent as may apply. LESSEE shall pay all rent in advance, on the first day of the term of the lease and on the first day of each payment period thereafter as indicated in the Payment Schedule below: 1 95 {A} Basic Rent. Based on LFSSEE'S origimal installations as described in Exhibit "B", incorporated herein by reference, LFSSEE shall pay to the LESSOR a yearly basic rent fee of seven thousand, five hundred and sixty dollars ($7,560.00) as determined by the rental fee schedule in E�ibit "C" incorporated herein by reference. Any changes to the equipment praposed by the LESSEE in Exhibit "B" shall be considered a new installation and as such shall be subject to the terms and conditions of E�ibit "C" and Exhibit "D". Said fee shall be payable in advance each year with the first payment due upon the execution of this agreement. Each payment thereafter shall be due each successive year on or before the anniversary date of this agreement. The basic rent fee shall be increased annually by an amount equal to the increase in the Consumer Price Index (CPI) as provided below. However, the rent shall not in any case increase more than 8% per year, nor shall it ever be decreased. The CPI shall mean the "Consumer Price Index for All Urban Consumers, All Cities, All Items (1967 = 100)" as published by the United States Department of Iabor, Bureau of Labor Statistics or, if such index shall be discontinued, the successor index thereto or, if there shall be no successor index, such comparable index as shall be mutually agreed upon by the parties hereto. To determine the annual rental increase to be paid by LESSEE, the monthly rental for the previous year shall be multiplied by a fraction, the numerator of which shall be the CPI for the quarter immediately preceding the annual anniversary date of the Lease and the denominator shall be the CPI for the corresponding quarter of o� year earlier. LESSOR shall be responsible for communicating all rental increases to LESSEE. If this I�ase is terminated at any time other than on the last day of a lease year, rent shall be prorated, based on a three hundred sixty-five (365) day year, as of the date of termination, and in the event of termination for any reason other than no�ayment of rent, all prepaid rents shall be refunded to the LFSSEE. (B) Addit�onal Reut. Additional Rent means all amounts, other than Basic Rent provided for in paragaph (3-A) above, that LESSEE shall be obligated to pay under this para�h or other provisions of this I.ease. Additional Rent shall include, but is not limited to, the following fees, costs and expenses: (1) costs for the repairs, improvements or alterations required to be made by the LESSEE in paragraph 16 of this Lease; (2) all taxes on realty or personalty, general or special, and all public rates, dues, chazges and assessments, general or special, of any kind upon the Lzased Premises; and (C) Properry insurance premium and/or uninsured losses as set forth in paragaph {12) of this L.ease. �a 95-108� In the event that LESSEE does not make such payments (or any payments required to be paid as Additional Rent), LESSOR may make the payments at its option, and the payments so paid become Additional Rent, and are due and payable by the LESSEE with the payment of Basic Rent next required after written notice of same to the LESSEE by LESSOR. LESSEE shall make all payments of Basic Rent and Additional Rent to LE5SOR at the following address: Board of Water Comwissioners, 8 Fourth Street East, Ste. 400, Saint Paul, Minnesota 55101-1007 The applicable account number for City Finance Accounting Code is: 850-28906-5303-00010 [4] i.�n �creen'n�: LESSOR shall plant and maintain landscape screening on the north and west side of LESSEE'S Building. LESSEE shall pay to the LESSOR at the time of contract execution a one-time landscaping fee of five hundred dollars ($500.00) as reimbursement for such screening. [5] Avn�y_ilce of Premicpc= The primary purpose of the I..eased Premises is for a water tower and appurtenances to provide water service to customers of the LFSSOR. In the event that the use of the tower for water service is jeopardized because of antenna usage on the tower, the LESSOR may require reasonable changes in the terms and conditions of this agreement in arder to prevent such jeopazdy. [6] i. 4 ' se of Pre i_. The LESSEE shall use and occupy the I.eased Premises for the transmission and reception of communications signais authorized for use by the Federal Communications Commission (FCC), and for the installation, operauon and maintenance of its communications eguipment as oudined in Exhibit "B". LESSEE shall have 24 hour access to the leased premises for purposes of installing, repairing and removing the radio equipment, provided that LFSSEE shall give advance notice to LESSOR of any installation, repair or removal, and shall undertake such work only after receiving approval from the LESSOR, which will not be unreasonably withheld. LESSEE further agrees not to do any act which will interfere with or endanger the proper use of the elevated water storage tank. LESSOR at all times reserves the right to take action it deems necessary to maintain, repair, alter or improve the premises and to temporarily suspend the Lease and remove LESSEE'S antenna and equipment in order that such work can be done. [7J Operation and Eauinment. LESSEE shall install, operate and maintain its equipment in aa:ordance with all applicable laws and regulations, and in accordance with all Technical Minimum Site Standards, Exhibit "D", incorporated herein by reference. LESSEE shall operate its equ�ment so as not to cause interference with any other communicarion iransmitting or receiving equipment whether located on the premises or not. If LESSEE is advised that its equipment is causing interference with other communication transmitting or receiving equipment, it shall 3 95-108� eliminate such irnerference within twenty-four (24) hours or cease using the equipment causing the interference except for short tests necessary for the elimination of the interference. It is futthet agreed that LE5SOR in no way guarantees to LESSEE noninterference to the operation of LESSEE'S equipment. {8] Utility Service. LESSOR will allow LES5EE, at LESSEE'S cast and expense, to connect its equipment to the eacisting utility services. LESSEE thereafter agrees to furnish and pay for the cost of utility service, provided that LESSEE shall also be responsible for all repairs os alterations to utility equipment arising out of the use of the demised premises by LESSEB. LESSOR shall not be responsible for any damage due to the interruption of utility service. (9] Cost and Eanense. LESSEE shall install and maintain all equipment at its sole cost and expense and upon removal of said equipment, LESSEE shall be responsible for restoring the surface wherever attachments, or siruchues, have been made to its original condition. The parties agree that the radio equipment shall remain the personal property of the LESSEE, and shall be kept in repair by LESSEE. [IO] Rinht of F.�rv. At all times during the term of this lease, the LESSOR shail have the right, by itseif, its agenu and employees, to enter into and upon the I.eased Premises during reasonable business hours or, in the event of an emetgency, at any time for any legitimate purpose. [ll] Talccs. (a) i.. rc.e�es. LFSSOR shali be responsible for and pay all tazes and assessments against the Leased Premises. (b) i. .S .'c T xes. LESSEE shall be solely responsible for and pay all tates on its building or personal property. [12] Ina�rance. (A) ' The LESSEE shall acquire and maintain during the term of this lease the following coverage: (1) The LESSEE shall be responsible for the self insurance of, or the acquisition of Commercial Properry Insurance on, its personal properry. (2) COMPREHENSIVE GENERAL LIABILITY INSURANCE including blanket comractual liability coverage, personal injury liability coverage and broad form groperty damage liability endorsement in the following amounts: Personal Injury: $500,000.00 / each person $1,500,000.00 / each occurrence Property Damage: $1,000,000.00 / each occurrence 4 95-1084 Such insurance shall: (a) name the LESSOR and the City of Saint Paul as additional in- sured; (b) be primary with respect to LESSOR'S insurance or self-insurance; {c) not exclude explosion, collapse and underground properry damage; (d) be written on an "Occurrence" Form policy basis; and (e) not contain an "aggregate" policy limit unless specifically approved in writing by LESSOR. (3) AUTOMOBILE LIABILITY INSURANCE with minimum limits of $600,000 combined single limit and $1,000,000 aggregate, covering hired, non-owned and owned automo- biles. (4) WORKERS' COMPENSATION INSURANCE with not less than statutory minimum limits; and EMPLOYERS' LIABILTI'Y INSURANCE with minimum limiu of at least $100,000 per accident and with an all states endorsement. (5) The LESSEE shail supply ro LESSOR current insurance certificates for policies required in Paragraph [12]_ The said certificates shall certify whether or not the agent has errors and omissions insurance coverage. (6) The limits cited under each insurance requirement above establish minimums; and it is the sole responsibility of the LESSEE to purchase and maintain additionai insurance that may be necessary in relation to this lease. ('n Nothing in this conuact shall constitute a waiver by the LESSOR of any statutory limits or exceptions on liability. (8) LESSEE shall place the insurance with responsible insurance companies authorized and licensed to do business in the State of Minnesota and approved by LESSOR, and shal] deliver copies of the policies to LESSOR on the date of LFSSEE'S execution of this agreement. The policies required in paragiaph {12} shall be endorsed to indicate that the insurer cannot cancei or change the insurance without first giving the LESSOR 30 days' written notice. (B) Waiver of SubroQation. LFSSOR waives its right of subrogation for damage to the Building, contents therein, loss of use thereof, and/or loss of income, up to the amount of insurance proceeds coliected. LESSEE waives its zight of subrogarion for damage to properry in the Leased Premises, loss of use thereof, loss of income and/or accounts receivable, up to the amount of their respective insurance proceeds collec[ed. The parties shall notify their respective insurance companies, in writing, of the provisions of this paragraph; and, if either cannot waive its subrogarion rights, such party shall immediately notify the other party, in writing. E 95�108� [13] Canc�llation or Termination. Thu lease shall be subject to ca�ellation and termination by either party at any time during the term upon ninety (90) days written norice to the other party. In the evern of such termimrion, and on the effective date of such termination, LESSOR shail retum any unearned rental paid by the LESSEE without interest. [14] LY9� All notices herein provided to be given, or that may be given by either party to the other, shall be deemed to have been fiilly g'rven when served personally on LESSOR or LESSEE, or when made in writing and deposited in the United States Mail, certified and postage prepaid, and addressed to the LFSSEE or the LESSOR at the addresses srated on page (i). The address to which the notice shall be mailed may be changed by written notice given by either party to the other. Nothing herein shall preclude the giving of such address change notice by personal service. (15j A_ �cc'�ent and SublettLg, LESSEE shall not assign or sublet this Lease without the written consent of the LFSSOR, which consent must be obtained prior to the execution of any agreement to sublease the Leased Premises. [16] 1_� inten nce nd Ren �rs. LESSEE shall, at its own cost and expense, be responsible for all repairs, maintenance and upkeep of the Building and the LESSEE'S equipment, including but not limited to emergency repairs of any kind, routine maintenance and repair to keep the Leased Premises in good repair, safe and in compliance with applicable fire, health, building and other life-safety codes; and all repairs and maintenance needed to keep the building in good condition. [17j P�ymerns in Case of Default. LESSEE shali pay LESSOR all costs and expenses, including reasonable attorney's fees in any action brought by LESSOR to recover any rent due and u�aid hereunder, or for the breach or default of any of the covenants or agreements contained in this L.ease, or to recover possession of said properry, whether such action progresses to judgment or not. [18] S��n r of �ri cec. The LE5SEE, at the expiration of said term, or any sooner termination of this lease, shail quit peacefully and surrender possession of said property and iu appurtenances to LESSOR in as good order and condition as the property was delivered to the LESSEE. [19� I� 11ie LESSEE agrees to indemnify, defend, save and hold hazmless the LESSOR and the City of Saint Paul and any agents, officers and 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 the LFSSEE, or the use or condirion of the Leased Premises or as a result of the operarions or business activities taldng place on the Leased Premises. It is fully understood and agreed that LFSSEE is awaze of ihe conditions of the Leased Premises and leases the same "as is." (20] Holdover. Any holdover after the expiration of the term of this Lease shall be allowed only after receiving the written consent of the LESSOR. Said tenancy shall be deemed to be a tenancy only from month-to-month. All other terms and conditions of this Lease shall be applicable. 0 95 [21] Poll . ion and ontAminams. LESSEE agrees to compiy with all ordinances, laws, rules and regulations enacted by any governmental body or agency relating to the control, abatement or emission of air and water contaminants and the disposal of refuse, solid wastes or liquid wastes. LESSEE shall bear ali costs and expenses azising from compliance with said ordinances, laws, rules, or regulations and shall indemnify, defend, save and hold hazmless LESSOR from ail liability, inciuding without limitarion, fines, forfeitures, and penalries arising from the failure by LESSEE to comply with such ordinances, laws, rules or regulations. LES50R has the right to perform cleanup and cf�arge the LFSSEE as Additional Rent for such cosu should the LESSEE fail to comply. [22] Controlling .� ce. In the event there is any prior existing lease or rental agreement between LFSSEE and LFSSOR (or its predecessor in interest) covering the subject property, it is agreed and understood that this Lease shall cancel and terminate any prior leases or rentai agreements as of the effective date of this lease. [23] � In the event of damage to or destruction of the Leased Premises or in the event the premises becomes untenantable due to such damage during the term of this Lease, LESSOR may at its option: (A) terminate the lease upon fifteen (15) days' written notice to LESSEE; or (B) within fifteen (15) days agree to restore the premises within a reasonable time peziod following the casuaity, charging the costs in excess of the insurance proceeds, if any, to the LESSEE as Additional Rent; or (C) may direct that LESSEE prompdy restore the Leased Premises to substantially the condition existing immediately prior to such damage or destruction, and for that purpose, if such dam- age or destruction was caused by perils insured against the LESSOR shall make avaiiable to LESSEE pro-raia, as work progresses, the net proceeds of such insurance. If such proceeds aze insufficient to pay the entire cost thereof, LESSEE agrees to pay as Additional Rent, a lump sum payment {or in a form agrced upon by the LESSOR) equal to the remainder of such cost. The Basic Rents to be paid during the restoration period shall be abated in proportion to the percentage of loss and impairment of the use of the Izased Premises as determined by the LFSSOR, times the number of days of loss or impairment. [24] F.ve of fa �Ft. The occurtence of any of the following events during the term of this Lease shall constitute an event of default by the LESSEE: (A) the filing of a petirion w have LE5SEE adjudicated bankrupt or a perition for reorganization or arraagement under any laws of the United States relating to banlmiptcy filed by LESSEE; 7 95 (B) in the event a petition to have LESSEE adjudicated bankrupt is filed against LESSEE, the failure to dismiss such petition within ninery (90) days from the date of such filing; (C) the assets of LESSEE ar of the business conducted by LESSEE on the I.eased Premises be assumed by any uustee or other person pursuant to any judicial proceedings; (D) LESSEE makes any assignment for the benefit of creditors; (E) the failure by LE5SEE to timely pay Basic Rent or Additional Rent as required by this Lzase; (F) the failure by LESSEE to observe and perform any covenant, condition or agreement on its part to be observed or performed as required by this Lease; or (G) the failure by LESSEE or its surety to discharge, satisfy or release any lien or lien statement filed or recorded against the Leased Premises within sixty days after the date of such filing or recording, whichever date is earlier. Either the LESSOR or the LESSEE shall have the right to terminate this lease at any time if either party defaults in any material covenant, term or condition of Lease, provided however, that the injured parry shall first give thirry (30) days norice to LESSOR of such default, providing the other party with an opportunity to cure such default during the said thirty (30) day period. It is an express covenant and agreement of LESSOR and LESSEE that LESSOR may, at its election, terminate this Lease in the event of the occurrence of any of the events described in this paragraph or in paragraph [27J relating to liens by giving not less than ten days' written notice to LESSEE; and when so terminated, LFSSOR may reenter the Leased Premises. This Lease and iu I.eased Premises shall not be treated as an asset of LESSEE'S estate. It is fwther expressly understoal and agreed that LESSOR shall be entided upon such reentry, notwithstanding any other provision of this Lease, to exercise such rights and remedies as are provided in Paragraph [29j of this Lease. [25] ComoL_a_�+!p with Laws, The property described herein may be used for only the purposes stated herein. It is the sole and exclusive responsibility of the LE5SEE in the use of the properry to comply with all laws, rules, regularions or ordinances imposed by any jurisdiction affecting the use to which the property u proposed to be put. Inability or failure by the LESSEE to comply with any of said laws, rules, regulations or ordinances will not relieve the LESSEE of the obligarion to pay the rentai provideti herein. [26] l�ion-Discrflnination. The LESSEE for itself, its personal representatives, successors in interest and assigns, as a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the land, that (A) no person, on the ground of race, sex, color creed, religion, age, disability, marital status, status with respect to public assistance or national origin or ancestry shall be excluded from 0 95 participating in, be denied the benefits of or be otherwise subjected to discrimination in the use of said facilities; (B) that in connecfion with the construction of any improvements on said lands and the furnishing of services thereon, no discrimination shall be practiced in the selection of employees and con- tractors, by contractors in the selection and reiention of first tier subcontractors, and by first-tier subconiractors in the selection and retention of second-tier subcontractors; (C) that such discrimination shall not be practiced against the public in its access in and use of the facilities and services provided for public accommodations (such as eating, sleeping, rest and recreation) constructed or operated on the Lzased Premises; and (D) that the LESSEE shall use the premises in compliance with all other requirements imposed pursuant to the Saint Paul Legisladve Code Chapter 183. [27] L�, The LESSEE shall not permit mechanic's liens or other liens to be filed or established or to remain against the Leased Premises for labor, materials or services fumished in connection with any addirions, modifications, improvemems, repairs, renewals or replacements made to the Leased Premises, or for any other reason; provided that if the LESSEE shall first notify the LES50R of its intention to do so and shali deposit in escrow with the LFSSOR a sum of money or a bond or irrevocable letter of credit acceptable to the LFSSOR equal to the amount of the claim of lien, LESSEE may in good faith contest any such claims or mechanic's or other liens filed or established and in such event may permit the items contested to remain undischazged and unsatisfied during the period of such contest. If, in the opinion of the LESSOR, the nonpayment of any such items subjects the Leased Premises to any loss or forfeiture, the LESSOR may require the LESSEE to use the escrow account to promptly pay all such u�aid items and if LESSEE fails to pay from the escrow account, the LES50R may pay and chazge the LESSEE as Additional Rent. [28] In the event the entire Leased Premises are taken by eminent domain, or such portion thereof is so taken that in LESSEE'S reasonable judgement it is uneconomic thereafter to restore the Leased Premises and proceed under the terms and provisions of this Lease, LESSEE may terminate this Lease by giving to LESSOR thirty days' written notice of termination, effective as of the date on which the condemning authority acquires legal tiUe or physical possession of the Leased Premises. LESSEE hereby waives and releases any claim to or shaze in the Awazd of Compensation for the taking, notwithstanding any other provision of law, this Lease or any other agreement. LESSEE may to the extent otherwise permitted in the eminent domain proceeding, remove its own irade fixtures at iu own expense. [29] Default Remedies. In the event an Event of Default occurs under pazagtaph [24] of this Lease, LESSOR may exercise any one or more of the following remedies: (A) reenter and take possession of the Premises without terminarion of this I.ease, and use its best efforts to lease the Premises to or e�er into an agreement with another person for the account of LESSEE; � 95 (B} termimte thu lease, exclude LFSSEE from possession of the Premises, and use its best efforts to lease the Premises to or enter into an agreement with another in accordance with appiicable law; (C) exclude LESSEE from poss�ssion of the Premises, with or without terminating this Lease and operate the Premises itself; (D) terminate the Lease, exclude LESSEE from possession of the Leased Premises, sell all or any part of the Premises at the best price obtainabie (provided such sale is permitted by appiicable law,) such sale to be on such terms and conditions as the LESSOR, in its sole discretion, shall determic� and apply the proceeds of such sale less any expenses thereof for the account of the LESSEE. (E) exercise any remedies available to it under the Minnesota Uniform Commercial Code; (F) take whatever action at law or in equity may appear necessary or appropriate to collect the Basic Rent and Additional Rent then due and thereafter to become due, or to enforce perform- ance and observance of any obligation, agreement or covenant of the LFSSEE under this Lease. (G) in exercising any of iu remedies set forth in this Section, the LESSOR may, whether or not the Lease is then in effect, hold the LFSSEE liable for the difference between the paymenu and other costs for which the LESSEE is responsible under this Izase. No remedy herein conferred upon or reserved to LESSOR is intended to be exclusive of any other available remedy or remedies, but each such remedy shall be cumulative and shall be in addition to every other remedy given under this Lease or now or thereafter ezisting at law or in equiry by statute. No delay or omission to exercise any such right or power accruing upon any default shall impair any such right or power or shall be consirued to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed e�cpedient. In order to entitle the LESSOR to exercise any remedy reserved to it in this Provision, it shall not be necessary to give any notice, other than such notice as may be herein expressiy required. [30] Default of Pa�mem. LFSSEE agrees that, should it default on any payment owing and due to be paid to LESSOR as provided in this agreement, including but not limited to Basic Rent and Additional Rent, then the remaining unpaid balance shall, at the oprion of the LFSSOR, immed- iately become due. LESSEE further agrces that the LESSOR may, at its option and without notice to LFSSEE, enter judgment against LFSSEE in Ramsey County District Court for the amount of the u�aid balance. And LESSEE does hereby confess judgment in the amount of the unpaid bal- ance due upon default, and does authorize the LESSOR to enter judgment as provided above. LESSEE dces hereby agree that the LESSOR, at its option, may enter a judgment, at any dme within one year of the time the last payment shall have come due, for the fiill amount of the unpaid balance due pursuant to the confession of judgment provided herein. 10 95 [31j Alterations. The LESSEE will not make any alterations to the premises without the written consent of the LESSOR, such conseni not to be unreasonably withheld. If the LESSEE des'ues to make any such alterations, an accurate description shall first be submitted to and approved by the LESSOR and such alterations shall be done by the LESSEE at its own expense. All such work shall be performed under the LESSOR'S supervision and any improvemenis made to the Leased Premises at the LESSEE'S expense shall become the properry of the LESSOR at the end of the lease period. LESSEE agrees that all alterations wiil be done in a workmanlike manner and in conformance with applicable building codes, that the struciural integrity and building systems of the building will not be impaired, and that no liens will attach to the premises by reason thereof. (32] Amended. Anything herein contained to the conlrary not withstanding, this Lease may be terminated, and the provisions of this Ixase may be, in writing, amended by mutual consent of the parties herein. [33] Qmet Enioy�rn. LESSOR covenants and agrees with LFSSEE that upon LESSEE'S paying the rent and observing and performing all the terms, covenants and condidons on LESSEE'5 part to be observed and performed, LESSEE may peacefully and quiedy enjoy the premises, subject nevertheless to the terms and conditions of this Agreement. [34] At�h4rity, The individuals signing this Agreemern on behalf of a party represent and warrant they aze fuily empowered to act on behalf of said entities. Furthermore, both parties are fuily empowered to execute, deliver and perform the various obligations under this AgreQmem. IN WITi�iESS WHEREOR, The parties hereto have set caused this Agreement to be executed on the'sr behalf as of the day and year fust above written. Recommended for approval: BOARD OF WATER COD'IA�IISSIONERS OF THE CITY OF SAINT PAUL General Manager Form Appmved: Assistant Ciry Attorney STATE OP MINNESOTA ) )� COUNTY OF RAMSEY ) By its President By its Secretary 7he foregoing iastrume� was xlmowledged before me this _ day of _, 1995, by Dino Guerin, President, and Janet M. Lindgen, Secretary, on behalf of the Boazd of Water Commissioners of the City of Saint Paul. Notary Public � 11 95 CITY OF SAINT PAUL By its Mayor By its City Clerk 1084 By its Director, Departmem of Finance and Managemem Services STATE OF MINNESOTA ) ) ss COUNTY OF RAMSEY ) The foregoing inshwnent was aclmowledged before me this behalf of the City of Saint Paul. day of 1995, by Norm Coleman, Mayor, on Notary Public STATE OF MINNESOTA ) ) ss COUNTY OF RAMSEY ) The foregoing instrument was aclmowledged before me this _ day of 1995, by Fred Owusu, City Clerk, and Martha Luson, I7irector of the Depariment of Finance and Management Services, on behalf of the City of Saint Paul. ��►Q�l By its Manager Its Vice President- and STATB OF MISSIS51PPI) ) ss COiINTY OF ) DESTINEER Corporate Prceurement Officer The foregoing instrument was aclmowledged before me this _ day of 1995, by Dudley G. Norman, Manager-Site Administration, and John Nikolic, Vice President and Coiporate Procurement Officer, on behalf of Destineer Corporation. Notary Public � 12 BRUNIN6 40.5253 w i t-So v�. �v e, . M � N � { =. S i 1 S Y J � 95 a5o' �t��teWay I �-'- 1 - ' - -i t � � O 0 M DeSt�� oc.a�low a.�ot. I tr•S�1�arF�ot-. o� a�� ec�wPw.e�n'� av.d a��ck2.ra�c.e5, � �h�l�d�� -i-t.�. bu� ld�Ng, rv��, 5�- b e. aP P rrnt e�4 ��•, ,ur�'�'�'va� b'Y `Fb`g V.-fa.�t-e,r u� pr�o� � t�5��lof�o�. �o- ■ a,. rR. WATER UTILt7Y - C(TY OF ST. PAUL, MlNN. �"` �"�_ �o l�c.K�.�k. Rcl .'S P :P a s- 4-�t 5 flEYiSIONS �..�,sE. s�rE - - � .__..:-� Exhibit ,�A�� $iiitd:�ng -�ra 6t tvil� by Gess� Destineer Corporation Lease Site Equipment and Operating Frequency Band List 95-108� One 500 watt transmitter operating on the 940.225 MHz or 940.775 MHz or 930.2125 MHz frequency band, but not more than one frequency or transmitter at one time with one Scala Omnidirectional antenna using I coaacial cable. One Channel Master .75 meter receive-only satellite antenna with one GPS receive only antenna both using 'I co�ial cable. One receiver utilizing the 901.225 MHz or 901.775 MHz or 901.78125 MHz frequency band, but not more than one frequency at one ume, with one Scala Omnidirectional antenna using'/ waxiai cable. Any changes to the above equipment proposed by the LESSEE shall be considered a new installation and as such sha11 be subject to the terms and conditions of E�ibit "C" and Exhibit "D". — � DESFREQB.EXFI August7, 1995 Exhibit °B" 95-108� ST. PAUL WATER UTILITY RADIO ANTENNA SITE MONTHLY LEASE RATES For Year 1995 1995 Single User: Community Repeater: Mulri-Use Antenna Radio Common Cazrier (RCC) 800 MHZ Trunking System & E-SMR: Microwave Dish: CONSULTANT REVIEW FEE: Single User, Cellular or Trunking: E-SMR: Yearly increases will be based on CPI. $170.00 $240.00 $280.00 $50.00>mo.ea.Transmitter $50.00/mo.ea. Receiver $50.00/mo.ea. Antenna $50.00/mo.ea. Standard 2'�c2' Floorspace $350.00 $325.00 per frequency pair $1,025.00 per application -� „�,,��.� ��4,,�5 Exhibit "C" TECHNICAL MINIMUM SITE STANDARDS 9 5 — 1 � $ �' S� Paul Water Utility Water Tower Communications Site 1. All equipment must be housed in an RF tight, metal enclosure that provides at least 60 db of aitenuation to any intemal RF signals. Desk-top base starions and open racks cannot be used without special approval. Additional shielding kits may be required. 2. At ieast 60 db of isolation for 450 NSHZ, 800 MHZ and 900 MHZ transmitters and 30 db of isolarion for l50 MHZ and 40 MHZ transmitters must be provided. A harmonic fiiter must be pmvided on the transmitters between the antenna and any ferrite device used. Additianal filtering and isolation may be required and will be considered on a case-by-case basis. 3. Maacimum 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. Addirional protective devices may be required.) 4. Only jacketed copper Heliax cable shall be permitted for transmission line at the site. Ail on-site intercabling must use RGI9, RG/142, RG/214 or 1/2 inch Superflex. RG/8 or any other single shielded cable will not be aliowed. Proposed transmitters that witi cause second order, third order or fi£th 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 caviries that will provide at least the following attenuation of side band noise, if needed: 40 MHZ band: 150 MI-IZ band: 450 MHZ band: 800/900 MIIZ band: Microwave: 50 db at 1 MHZ 50 db at 1.5 MEIZ 50 db at 2.5 MHZ 50 db at 10 MHZ 50 db at 20 MHZ Exhibit "D" �,�.� ,��4,,�5 i of 2 MINIMUM SITE STANDARDS - Continued 9 5 �� 8 �' 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 applicarion for antenna space at the site an engineering study will be prepazed by the Engineer for the St. Paul Water Utility consisring of at least the foilowing items: a. Intermodulation interference (Il� calculations of all transmitters and receivers known to exist in the area at rime of applicarion. (Study will include 2nd, 3rd and Sth order IM terms, and A+ B- C, three-product terms.) b. c. d. e. Transmittsr noise and receiver desensing caicularions of all equipment at the site. Analysis of best equipment and antenna locations at the site. Analysis of AC power requirements. Report to prospective site user regarding application. 9. Plan and specifications to secure equipment to the tower must be submitted to and approved by the Water Utility prior to installation. - End - Exhibit "D" - \ 1STAND.El'I-I Augu24. 1995 � O � "- � � q5 - to8� ,� DEPAqTMENTlOFFICE/COUNCII. pATE MITIATED �� I V� �� O 1 Water Utilit . 8/21/95 GREEN SHEE CONTACT PERSON & PHONE O DEPARTMENT OIRECTOR LJ � CITY COUNCIL �NITIALIDATE Bernie R. Bullert - 66274 ASSIGN �CITVATTORNEV $jA-9) �❑ CITVCLERK NUMBERFOH MUST BE ON COUNCIL AGEN�A BV (DATE) pOUTING BUD6ET DIFECTOR � FIN. & MGT SERVICES DiR. S�`,PT$MB�`R 6 1995 OflUEN MAVOR(OfiASSISTANT) � TOTAL # OF SIGNATURE PAGES � 2 (CIIP ALL LQCATIONS FOR SIGNATURE) ACTION REQUESTED. City Council approval of resolution�concurring with action talcen by the Board oi �dater Commissioners in executing the attached twe�{g} agreement�which leasesspace at the McKnight Road Standpipe site to Destineer Corporation��lil��E�i.� F^- �'� RECOMMENDATIONS: Apprwe (A) vr qelect (R) PEflSONAL SERVICE CONTRACTS MUST ANSWER THE POLLOWING QUESTIONS: _ PLANNMG COMMISSION _ CNIL SERVICE COMMISSION �� Has this persoMfirm ever worked under a contract for this departmeni? _ CIB COMMITfEE _ �'ES NO 2. Hes this person7firm ever been a city employee? _ STAFP — VES NO _ otSTRiCT CoUac _ 3. Does ihis persoNSirm possess a skill not normafty possessetl by any current ciTy employee? SUPPORTS WHICH COUNCIL OBJECTIVE� VES NO Expfain ali yes answers on separete sheet antl attech to green sheet INITIATING PROBLEM, ISSUE. OPPORTUNITV (Who, What, When. Where, Why) The Board of Water Commissioners has the opportunity to receive revenue by leasing space at its water tower site on McKnight Road at Wilson Avenue. �� au� 2a �9� �� ,.;��,F�.- ADVANTAGES IF APPROVED " � " ' � � Board of Water Commissioners will receive a yearly revenue of $14,8 0. y� ��€� �?t�' AU� 2 � 1��5 _ ..� DISADVANTAGESIFAPPROVED � ^ i �- � � ' ��°a./�[ R �� AUG 24 9995 �I�`� AT��r°�.��;' DISADVAN7A6E5 IF NOT APPROVED tJ�tt �i.S, 3 : 3 ��9 r s. 70TAL AMOUN7 OF TRANSACTION 5 N�A COSTlREVENUE BUDGETED (CIRCLE ONE) YE NO FUNOIfdG SOURCE _ N�A ACTIVITY NUMBER FINANCIAL INFORMATION: (EXPLAIN) CIl1f OF 5T. PAUL OFFCE OF THE BOARD OF WATER COMMISSIONERS 9 S� I�$�y RESOlUT10N-GENERAL FORM N, 4379 coMMi55�oN�R Rettman pAT August 14, 1995 WHEREAS, Destineer Corporation desires to lease space from the Board of Water Commissioners on its McKnight Road Standpipe site on Mcxnight Road at Wilson Avenue in Saint Paul, Minnesota, and on the Standpipe itself to install ar.d operate paging communication equipment; and WHEREAS, The Destineer Corporation desires ta share certzin leased space with the Skytel Corporation; and WHEREAS, The Board did adopt a Water Tower Site Leasing Policy on July 10, 1995, which allows such space leasing and imposes certain conditions on such leasing; and, WHEREAS, Staff has prepared the attached lease agreement which complies with all conditions of the Water Tower Site Leasing Policy and provides �or a five-year lease startir.g at a one-year lease rate of $7,560 and increasing each subsequent year at a rate equal to the Consumer Price Index; and WHEREAS, The General Manager of the Water Utility, Mr. Bernie R. Bullert, recommends Board approval of the attached lease aqreement; now, there£ore, be it Water Commissioners Yeas Nays Adopted by the Board of Water Commissioners In favor__ Oppos� SECY. CITY OP ST. PAUL OFRCE OF THE BOARD OF WATER COMMISSIONERS RESOLUTION—.GENEftAI FORM �j�j-�� No 4379 GOMM Rettman pA August 14 1995 RESOLVED, That the attached lease agreement between the Board of Water Commissioners and Destineer Corporation is hereby approved and that the proper officers are hereby authorized to execute said lease agreement on behalf of the Board; and, be it FURTHER RESOLVED, That $6,000.00 of the first year's lease fee shall be applied towards landscape improvements on the McKnight Road Standpipe site. Water Commissioners Y � Arcand Harris Klice President Rettman President Guerin In favor!+ — Nays Oppose� � Adopted by the Bosrd of Water Commissioners August 14, 1995 ��J� SECY. SAINT PAUL A � yl np� �„ ' V O � �� i WATER UTILRY SAINT PAUL WATER UTILITY WATER TOWER SITE LEASE AGREEMENT Between Board of Water Commissioners FTiTJ Destineer Corporation August I995 WATER TOWER SITE LEASE AGREEMENT Between the Board of Water Commissioners and Destineer Corporation TABLE OF CONTENTS [1) [Zl [3} [4] [5] [6] �7l �8l (9] [101 [ll] [12] I13) [14J [15] [16J [17j [18j (19J [20) [21] [22l [23] [24] [25] [26] [27l [2gl I j30) {31} [ [33] (34] • 1; Leased Premise�s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Term ofLease .............................................1 Reut.............................................................. 1 Landscape Screening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Primary Use of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I.ESSEE'S Use of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Operation and Equipmern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Utility Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Cost and Elcpense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Right of Entry .......................................................4 Taaces..............................................................4 Insurance . ..............................................4 Cancellation or Termivation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 l�iotice ..................................................6 Assignment and Subletting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Maintenance and Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Payments in Case of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Surrender of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Indemnity...............................................6 Holdover................................................6 Pollution and Contaminants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Comrolling Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Destrudion ...............................................7 Events of Defauit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Compliance with Laws . .....................................8 Non-Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • • • • . 8 Liens...................................................9 EmmeM Domain ...........................................9 Default Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Default of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Amended. ............................................. 11 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i l Authority ............................................... 11 Signature Pages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Appendix WATER TOWER SITE LEASE AGREEMENT � � — � � � �, Between Destineer CorporaYion and the Board of Water Commissioners This agreement is made this day of , 19 , between the BOARD OF WATER COMMISSIONERS OF THE CITY OF SAINT PAUL, 8 Fourth Street East, Suite 400, Saint Paul, Minnesora 55101-1007, hereinafter called LE5SOR, and DESTINEER CORPORATION, 200 South Lamar Street, Jackson, Mississippi 39201, hereinafter called LESSEE. In consideration of the terms and conditions of this agreement, LESSOR and LESSEE agree as follows: [17 The LESSOR, in considerarion of the payment of the Basic Rent and Additional Rent hereinafter specified to be paid by the LFSSEE, and the covenants and agreements herein contained, does hereby lease, demise and let unto LESSEE certain azeas on the LESSOR' S properry, whose address is: 393 North McKnight Road, Saint Paul, Minnesota 55119-5307 and which is legally described as: The west 250 feet of the east 283 feet of the south 300 feet of the north 1190 feet of the southeast'/ of Section 35, Township 29, Range 22, of the County of Kamsey in the State of Minnesota. (A) 'These certain areas lie on the top and west side of the water storage tank located on the property and on land adjacent to the tank. The specific area on top of the tower will be mutually determined by the parties to the Lzase. It is understood by the parties that this is a non-exclusive Ixase and that other azeas on top of the LESSOR'S elevated water storage tanl� and the adjacent land may be leased to other entities. These certain areas are shown generally on attached F.�chibit "A", incorporated herein by this refer- ence. {2] Tersn of L.��ce.. Tfie term of this lease shall be 5 years, commencing as of the day of , 1995, and expiring on the day of , 2000. Upon er.piration of the initial term, this lease shall automatically renew for successive periods of 5 years unless either pariy serves written notice upon the other party sizty (60) days prior to the expiration of this lease or any extension thereof. Upon expiration or termination, LESSEE shall have thirty (30) days to remove all equipment from the demised premises and to make all necessary repairs. [3] $�� Rem shall consist of Basic Rent and such Additional Rent as may apply. LFSSEE shall pay all rent in advance, on the fust day of the term of the lease and on the first day of each payment period thereafrer as indicated in the Payment Schedule below: 95�10 (A) Bacic Rent. Based on LESSEE'S original instailations as described in Exhibit "B", incorporated herein by reference, LESSEB shall pay to the LESSOR a yearly basic rent fee of seven thousand, five hundred and sixty dollars ($7,560.00} as determined by the rental fee schedule in Exhibit "C" incorporated herein by reference. Any changes to the equipment proposed by the LFSSEE in E�chibit "B" shall be considered a new inslallation and as such shall be subject to the terms and conditions of Exhibit "C" and Exhibit "D". Said fee shall be payable in advance each year with the first payment due upon the execution of this agreement. Each gaymenz thereafter st�all be due each successive year on or before the anniversary date of this agreement. The basic rent fee shall be increased annually by an amount equal to the increase in the Consumer Price Index {CPI) as provided below. However, the rent shatl not in any case increase more than 8% per year, nor shall it ever be decreased. The CPI shall mean the "Consumer Price Index for All Urban Consumers, All Cities, Ail Items (1967 = 100)° as published by the United States Department of Labor, Bureau of Labor Statistics or, if such index shall be discontinued, the successor index thereto or, if there shall be no succ:essor index, such comparable index as shall be mutually agreed upon by the parties hereto. To determine the annual rental increase to be paid by LESSEE, the monthly rental for the previous year shall be multiplied by a fraction, the numerator of which shall be the CPI for the quarter immediately preceding the annual anniversary date of the Lease and the denominator shall be the CPI for the corcesponding quarter of o� year earlier. LESSOR shall be responsible for communicating all rental increases to LESSEE. If this Ixase is terminated at any time other than on the last day of a lease year, rent shall be prorated, based on a three hundred sixry-five (3b5) day year, as of the date of termination, and in the event of terminaaon for any reason other than no�ayment of rent, ali prepaid rents shall be refunded to the LESSEE. (B) Additional Rem. Addirional Rent means all amounts, other than Basic Rent provided for in paragraph (3-A) above, that LFSSEE shail be obligated to pay under this paragraph or other provisions of this Lease. Additional Rent shall include, but is not limited to, the following fees, costs and expenses: (i) costs for the repairs, improvements or alterations required to be made by the I.ESSEE in paragraph 16 of this Lease; (2) all taxes on realty or personalty, general or special, and all public rates, dues, chazges and assessments, general or special, of any kind upon the Leased Premises; and (C) Property insurance premium andlor uninsured losses as set forth in paragraph (12) of this Lease. 2 95-108� In the event that LESSEE dces not make such payments (or any payments required to be paid as Addiaonal Rent}, LESSOR may make ffie paymerns at its option, and the payments so paid become Additional Rent, and are due and payable by the LESSEE with the payment of Basic Rent next required after written notice of same to the LESSEE by LESSOR. LESSEE shall make all payments of Basic Rent and Additionai Rent to LESSOR at the following address: Board of Water Commissioners, 8 Fourth Street East, Ste. 400, Saint Paul, Minnesota 55101-1007 The applicable account number for City Finance Accounting Code is: 850.28906-5303-00010 [4j T an Sc�reeninQC L.ESSOR shall plant and maintain landscape screening on the north and west side of LESSEE'S Building. LESSEE shall pay to the LESSOR at the time of contract execution a one-time landscaping fee of five hundred dollazs ($500.00) as relmbursement for such screening. [5] P�ry Use of Premises. The primary purpose of the Leased Fremi�es is for a water tower and appurtenances to provide water service to customers of the LESSOR In the event that the use of the tower for water service is jeopardized because of antenna usage on the tower, the LESSOR may require reasonable changes in the terms and conditions of this agreement in order to prevent such jeopazdy. [6j I.ESSEE'S Use of Premises. The LESSEE shall use and occupy the Leased Premises for the transmission and reception of communicadons signals authorized for use by the Federal Communications Commission (FCC), and for the installation, operation and maintenance of its communications equipment as oudined in Exhibit "B". LFSSEE shall have 24 hour access to the leased premises for purposes of installing, repairing and removing the radio equipment, provided that LESSEE shall give advance nodce to LFSSOR of any installation, repair or removal, and shall undertake such work only after receiving approval from the LESSOR, which will not be unreasonably withheld. LE5SEE further agrees not to do any act which will interfere with or endanger the proper use of the elevated water storage tank. LESSOR at all times reserves the right to take action it deems necessary to maintain, regair, alter or improve the premises and to temporarily suspend the Lease and remove LESSEE'S antenna and equipment in order that such work can be done. [7] O�ration a�d EqLnmeut. LESSEE shall install, operate and maintain its equipment in accordazice with all applicable laws and regulations, and in accordance with all Technicai Minimum Site Standards, Exhibit "D", incorporated herein by reference. LFSSEE shall operate its equipment so as not to cause interference with any other communicarion transmitting or receiving equipment whether located on the premises or not. If LESSEE is advised that its equipment is causing interference with other communication transmitting or receiving equipment, it shall 3 • ' �-��. � .� .� eliminate such interference within twenty-four (24) hours or cease using the equipment causing the interference except for short tests necessary for the elimination of the interference. It is further agreed that LESSOR in no way guarantees to LESSEE noninterference to the operation of LESSEE'S equipment. [8] Utility Service. LESSOR wili allow LESSEE, at LESSEE'S cost and expense, to connect its equipmern w the existing utility services. LESSEE thereafter agrees to furnish and pay for the cost of utility service, provided that LESSEE sha11 also be responsible for all repairs or alterations to utility equipmeni arising out of the use of the demised premfses by LESSEE. LESSOR shall not be responsible for any damage due to the interruption of utility service. [9� Cost and Ex�ense. LESSEE shall install and maintain all equipment at its sole cost and �pense and upon removal of said equipment, LESSEE shall be responsible for restoring the surface wherever attachmenis, or structures, have been made to its original condirion. The parties agree that the radio equipment shall remain the peisonal property of the LESSEE, and shall be kept in repair by LESSEE. [10] Rinh� of Entrv. At all rimes during the term of this lease, the LESSOR sha11 have the right, by itself, its agents and employees, to enter into and upon the Leased Premises during reasonable business hours or, in the evem of an emergency, at any time for any legitimate purpose. [ll] T�es• (a) Lessor's Taxes. LFSSOR shall be responsible for and pay ail tases and assessments against the L.eased Premises. (b) LESSEE's Tax�s. LESSEE shall be solely responsible for and pay all ta�es on its building or personai property. [12] Incurance. (A) I.FCS .F.'S n,�ncr, The LESSEE shall acquire and maintain during the term of this lease the following coverage: (1) The LESSEE shall be responsible for the self insurance of, or the acquisition of Commercial Property Insurance on, its personal property. (2) COMPREHENSIVE GENERAL LIABILTTY INSURANCE including blanket conuactual liability coverage, personal injury liability coverage and broad form property damage liability endorsement in the foilowing amounts: Personal Injwry: Properry Damage: $500,000.00 / each person $1,500,000.00 / each occurrence $1,000,000.00 / each occurrence 4 95�108� Such insurance shall: (a) name the LESSOR and the Ciry of Saint Paui as additional in- sured; (b) be primary with respect to LESSOR'S insurance or self-insurance; (c) not exclude expiosion, wllapse and underground property damage; (d) be written on an "Occurrence" Form policy basis; and (e) not contain an "aggregate" policy limit unless specifically approved in writing by LESSOR. (3) AUTOMOBILE LIABILITY INSURANCE with minimum limits of $600,000 combined single limit and $1,000,000 aggregate, covering hired, non-owned and owned automo- biles. (4) WORKERS' COMPENSATION INSURANCE with not less than statutory minimum limits; and EMPLOYERS' LIABILTI'Y INSURANCE with minimum limits of at least $100,000 per accident and with an all states endorsement. (5) Ttte LESSEE shall supply to LESSOR current insuruxz certificates for policies required in Paragraph [12]. The said certificates shall certify whether or not the agent has errors and omissions insurance coverage. (6) The limits cited under each insurance requirement above establish minimums; and it is the sole responsibility of the LESSEE to purchase and maintain additional insurance that may be necessary in relation to this lease. ('� Nothing in diis contract shali constitute a waiver by the LESSOR of any statutory limits or exceptions on liabiliry. (8) LFS5EE shall place the insurance with responsible insw�ance companies authorized and licensed to do business in the State of Minnesota and apgroved by LESSOR, and shall deliver copies of the policies to LESSOR on the date of LESSEE'S execution of this agreement. The policies required in paragraph [12] shall be endorsed to indicate that the insurer cannot cancel or change the insurance without first giving the LESSOR 30 days' written notice. (B) Waiver of Subrogation. LFSSOR waives its right of subrogation for damage to the Building, contents therein, loss of use thereof, andlor loss of income, up to the amount of insurance proceeds coliected. LESSEE waives its right of subrogation for damage to property in the I.eased Premises, loss of use thereof, loss of income and/or accounts receivable, up to the amount of their respective insurance proceeds collected. The parties shail notify their respective insurance companies, in wriring, of the provisions of this paragraph; and, if either cannot waive its suhrogation rights, such party shall immediately notify the other party, in writing. 5 95~108� [13] Ca,+rPnAt;on or Te_rminatinn, 'I7iu lease shall be subject w cancellation and termination by either party at any time during the term upon ninety (90) days written norice to the other party. In the event of such termination, and on the effective date of such termination, LESSOlt shall retum any unearned rental paid by the LESSEE without interest. [14] ]y�js�, All notices herein provided to be given, or that may be given by either party to the other, shall be deemed to have been fiilly given when served personally on LESSOR or LESSEE, or when made in writang and deposited in the United States Mail, certified and postage prepaid, and addressed to the LESSEE or the LESSOR at the addresses stated on page (1). The address to which the notice shall be mailed may be changed by written notice given by either party to the other. Nothing herein shall preclude the giving of such address change notice by personal service. [15] Assignment and Sublettin¢. LFSSEE shall not assign or sublet this Lease without the written consent of the LESSOR, which consent must be obtained prior to the execution of any agreement to sublease the Leased Premises. (16] Maintenance and Repairs. LESSEE shall, at its own cost and e�cpense be responsible for all repairs, maintenance and upkeep of the Building and the LESSEE'S equipment, including but not limited to emergency repairs of any kind, routine maintenance and repair to keep the Leased Premises in good repair, safe and in compliance with applicable fire, health, building and other life-safery codes; and ail repairs and maintenance needed to keep the building in good condition. {17j Pavmentc in ace of Defa �1t. LESSEE shall pay LESSOR ail costs and eacpenses, including reasonable attorney's fees in any action brought by LESSOR to recover any rent due and unpaid hereunder, or for the breach or default of any of the covenants or agreements contained in this Lease, or to recover possession of said properry, whether such action progresses to judgment or not. [18] S�m�ender of Premises. The LESSEE, at the expirauon of said term, or any sooner termination of this lease, shall quit peacefully and surrender possession of said property and its appurtenances to LESSOR in as good order and condition as the property was delivered to the LESSEE. (19] Indem�nitv The LESSEE agrees to indemnify, defend, save and hold harmiess the LESSOR and the City of 5aint Paul and any agents, officers and 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 LFSSOR to the LESSEE, or the use or condision of the Leased Premises or as a result of the operations or business acrivities taking place on the Lzased Premises. It is fully understood and agreed that LESSEE is awaze of the conditions of the Leased Premises and leases the same "as is." [20] Holdover, Any holdover after the expiration of the term of this Lease shall be allowed only after receiving the written wnsent of the LESSOR. Said tenancy shall be deemed to be a tenancy only from month-to-month. All other terms and conditions of this L.ease shall be applicable. C� 95 [21] Po i,tion and ontaminantc, LESSEE agrees to comply with all ordinances, laws, rules and regulations enacted by any governmenral body or agency relating to the control, abatement or emission of air and water contaminants and the disposal of refuse, solid wastes or liquid wastes. LESSEE shail bear all costs and expenses arising from compliance with said ordinances, laws, rules, or regulations and shall indemnify, defend, save and hold harmless LESSOR from all liability, including without limitation, fines, forfeitures, and penalries azising from the failure by LESSEE to comply with such ordinances, laws, rules or regulations. LESSOR has the right to perform cleanup and charge the LESSEE as Addmonal Rent for such costs should the LESSEE fail to comply. [22] �ntrolling i�� In the event there is any prior existing lease or rental agreement between LESSEE and LESSOR (or its predecessor in interest) covering rhe subject property, it is agreed and understood that this Lea,se shall cancel and terminate any grior leases or rentai agreements as of the effective date of this lease. [23] � In the event of damage to or destruction of the Leased Premises or in the event the premises becomes untenantable due to such damage during the term of this Lease, LESSOR may at its option: (A) terminate the lease upon fifteen (15) days' written notice to LESSEE; or (B) within fifteen (15) days agree to restore the premises within a reasonable time period following the casualty, charging the costs in excess of the insurance proceeds, if any, to the LESSEE as Additional Rent; or (C) may direct that LESSEE prompdy restore the Leased Premises to substantially the condition exisring immediately prior to such damage or destruction, and for that purpose, if such dam- age or destruction was caused by perils insured against the LESSOR shall make available to LESSEE pro-rata, as work progresses, the �ret proceeds of such insura�e. If such proceeds aze insufficient to pay the entire cost thereof, LESSEE agrees to pay as Additional Rent, a lump sum payment (or in a form agrced upon by the LFSSOR) equal to the remainder of such cost. The Basic Rents to be paid during the restoration period shail be abated in proportion to the percentage of loss and impairment of the use of the Leased Premises as determineci by the LESSOR, times the number of days of loss or impairment. [24] Eveuts of Defauh. The occurrence of any of the following events during the term of this Lease shall constitute an event of default by the LESSEE: (A) the filing of a petition w have LESSEE adjudicated banlffupt or a petition for reorganization or arrangement under any laws of ihe United Srates relating to bankruptcy filed by LESSEE; 7 g5-108� (B) in the event a petition to have LESSEE adjudicated banimipt is filed against LESSEE, the failure to dismiss such petition within ninery (90) days from the date of such filing; (C) the asseu of LESSEE or of the business conducted by LESSEE on the I.eased Premises be assumed by any trvstee or other person pursuant to any judicial proceedings; (D} LESSEE makes any assignment for the benefit of creditors; (E) the failure by LESSEE to timely pay Basic Rent or Additional Rent as required hy this Lxase; (F) the failure by LFSSEE to observe and perform any covenant, condition or agzeement on its part to be observed or performed as required by this Lease; or (G) the failure by LESSEE or its surety to dischacge, satisfy or release any lien or lien statement filed or recorded against the Leased Premises within sixty days after the date of such filing or recording, whichever date is earlier. Either the LPSSOR or the LFSSEE shall have the right to terminate this lease at any time if either party defaults in any material covenant, term or condidon of Lease, provided however, that the injured party sha13 first give thirty (30) days notice to LESSOR of such default, providing the other party with an opportunity to cure such default during the said thirty (30) day period. It is an express covenant and agreement of LESSOR and LESSEE that LESSOR may, at its election, terminate this Lease in the event of the occurrence of any of the events described in this paragraph or in paragraph (27] relating to liens by giving not less than ten days' written notice to LFSSEE; and when so termnaated, LESSOR may reenter the Leased Premises. This I.ease and its I.eased Premises shall not be treated as an asset of LESSEE'S estate. It is further expressly understoal and agreed that LESSOR shall be entided upon such reentry, notwithsianding any other provision of this Lease, to exercise such rights and remedies as are provided in Paragraph [29] of this I.ease. j25] Com°iiance with Iaws. The property described herein may be used for only the purposes stated herein. It is the sole and exclusive responsibility of the LESSEE in the use of the properry to compiy with all laws, rules, regulations or ordinances imposed by any jurisdiction affecting the use to which the prc�erty is proposed to be put. Inability or failure by the LES5EE to compiy with any of said laws, rules, regulations or ordinances will not relieve the LESSEE of the obligation to pay the zenral provided herein. [26j Non-I)isc_rimination. The LESSEE for itself, its personal representatives, successors in interest and assigns, as a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the land, that (A) no person, on the ground of race, sex, color creed, religion, age, disability, marital status, status with respect to public assistance or national origin or ancestry shall be excluded from 0 95 participaung in, be denied the benefits of or be otherwise subjected to discrimination in the use of said facilities; (B) that in connection with the consiruction of any improvement� on said lands and the furnishing of services thereon, no discrimination shall be practiced in the selection of employees and con- iractors, by contractors in the selection and retention of fust tier subcontractors, and by first-tier subcontractors in the selection and retention of second-tier subcontractors; (C} that such diiscrimination shall not be practiced against the public in its access in and use of the facilities and services provided for public accommodations (such as eating, sleeping, rest and recreation) constructed or operated on the Leased Premises; and (D) that the LESSEE shall use the premises in compliance with all other requirements imposed pursuant to the Saint Paul Legislative Code Chapter 183. [27j I.ienc The LESSEB shall not permit mechanic's liens or other liens to be filed or established or to remain against the Ixased Premises for Iabor, materials or services fumished in connection with any additions, modificxtions, improvements, repairs, renewals or repiacements made to the Leased Premises, or for any other reason; provided that if the LESSEE shall First notify the LESSOR of its intention to do so and shall deposit in escrow with the LESSOR a sum of money or a bond or inevocable letter of credit acceptable to the LFSSOR equal to the amount of the claim of lien, LFSSEE may in good faith contest any such clanns or mechanic's or other liens filed or established and in such event may permit the items contested to remain undischazged and unsatisfied during the period of such contest. If, in the opinion of the LFSSOR, the nonpayment of any such items subjecu the Leased Premises to any loss or forfeiture, the LES50R may require the LESSEE to use the escrow account to prompUy pay all such u�aid items and if LESSEE fails to pay from the escrow account, the LESSOR may pay and charge the LESSEE as Additional Rent. {28] Ent�,. In the event the entire I.eased Premises aze taken by eminent domain, or such portion thereof is so taken that in LES5EE'S reasonable judgement it is uneconomic thereafter to restore the Leased Premises and proceed under the terms and provisions of this Lease, LESSEE may terminate this Lease by g'rving to LESSOR thirty days' written notice of termination, effective as of the date on which the condemning authority acquires legal tide or physical possession of the Ixased Premases. LESSEE hereby waives and releases any claim to or share in the Awazd of Compensation for the taking, notwithstanding any other provision of law, this Lease or any other agreement. LESSEE may to the extent otherwise permitted in the eminent domain proceeding, remove its own trade fixtures at its own expense. [29j Default Remedies. In the event an Event of Default occurs under pazagraph [24] of this Lease, LESSOR may exercise any one or more of the following remedies: (A) reenter and rake possession of the Premises without terminarion of this Lzase, and use its best efforts to lease the Premises to or enter into an agreement with another person for the account of LFSSEE; � 95 -1084 (B) terminate this lease, exclude LESSEE from possession of the Premises, and use its best efforts to lease the Premises to or enter into an agreement with another in accordance with appiicabie law; (C) exciude LESSEE from possession of the Premises, with or without terminating this L.ease and operate the Premises itself; (D) terminate the Lease, exclude LESSEE from possession of the Leased Premises, sell all or any part of the Premises at the best price obrainable (provided such sale i� permittec! by applicable taw,) such sale to be on such terms and conditions as the LESSQR, in its sole discretion, shal( determuie and apply the proceeds of such sale less any expenses thereof for the account of the LESSEE. (E) exerci�e any remedies available to it under the Minnesota Uniform Commercial Code; (F) take whatever action at law or in equity may appear necessary or appropriate to collect the Basic Rem and Additional Rem then due and thereafter to become due, or to enforce perform- ance and observance of any obligation, agreement or covenant of the LESSEE under this I.ease. (G) in exercising any of its remedies set forth in this Section, the LESSOR may, whether or not the I.ease is then in effect, hold the LFSSEE liable for the difference between the payments and other costs for which the LESSEE is responsible under this Lzase. No remedy herein conferred upon or reserved to LESSOR is intended to be exclusive af any other available remedy or remedies, but each such remedy shall be cumulative and shall be in addition to every other remedy given under this Lease or now or thereafter existing at law or in equity by statute. No delay or omission to exercise any such right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed e�edient. In order to entide the LESSOR to ezercise any remedy reserved to it in this Provision, it shall not be necessary to give any notice, other than such notice as may be herein elcpressly required. j30] p�fault of P�,y�g� LESSEE agrces that, should it default on any payment owing and due to be paid to LESSOR as provided in this agreement, including but not limited to Basic Rent and Additional Rent, then the remaining unpaid balance shall, at the option of the LFSSOR, immed- iately become due. I.ESSEE further agrees that the L.ESSOR may, at its option and without notice to LFSSEE, enter judgment against LESSEE in Ramsey County District Court for the amount of the u�aid balance. And LE5SEE does hereby confess judgment in the amount of the unpaid bal- ance due upon default, and dces authorize the LESSOR to enter judgment as provided above. LESSEE dces hereby agree that the LESSOR, at its option, may enter a judgment, at any time within one year of the time the last payment shall have come due, for the full amount of the unpaid balance due pursuant to the wnfession of judgment provided herein. 10 95 (31] Alterations. The LESSEE will not make any alteradons to the premises without the written consent of the LFSSOR, such consent not to be unreasonably withheld. If the LESSEE desires to make any such alterations, an accurate description shali first be submitted to and approved by the LESSOR and such alterations shall be done by the LESSEE at its own expense. Ail such work shall be performed under the LFSSOR'S supervision and any improvements made to the Leased Premises at the LE5SEE'S expense shall become the property of the LESSOR at the end of the lease period. LESSEE agrees that all alterations will be done in a workmanlike manner and in conformance with applicable buiiding codes, that the structiu�ai integrity and building systems of the building will not be impaired, and that no liens will attach to the premises by reason thereof. [32] Amended. Anything herein comained to the contrary not withstanding, this Lease may be terminated and the provisions of this L.ease may be, in writing, amended by mutual consent of the parties herein. [33] O�riet Eaj9ymeat. LFSSOR covenants and agrees with LESSEE that upon LFSSEE'S paying the rent and observing and performing all the terms, covenants and conditions on LESSEE'S part to be observed and performed, LESSEE may peacefully and quietly enjoy the gremises, subject nevertheless to the terms and conditions of this Agreement. [34j A1�thpIIt� The individuals signing this Agreemem on behalf of a party represent and warrant they aze fully empowered to act on behaif of said entiries. Furthermore, both parties are fully empowered to execute, deliver and perform the various obtigations under this Agreement. IN WITNESS WHEREOF, The parties hereto have set caused this Agreement to be executed on their behalf as of the day and year first above written. Recommended for approval: BOARD OF WATER COA'IMISSIONERS OF THE CITY OF SAINT PAUL General Manager Form Approved: Assistant City Attorney STATE OF MINNESOTA ) )� COUNTY OF RAMSEY ) By its President By its Secretary 'Ihe foregoing ins�vmeffi was xknowledged before me this _ day of _, 1995, hy Dino G�erin, President, and Janet M. Lindgren, Secretary, on behaif of the Boazd of Water Commissioners of ffie City of Sairn Paul. Notary Public � 11 95 CITY OF SAINT PAUL By its Mayor By its City Clerk �� By its Direaor, Depaztmem of Finance and Manageme� Services STATE OF MINNESOTA ) ) ss COUNTY OF RAMSEY ) The foregoing instrument was aclmowledged before me tlris behalf of the Ciry of Saint Paul. day of 1995, by Norm Coleman, Mayor, on Notary Publlc STATE OF MINNESOTA ) ) ss COUNTY OF RAMSEY ) The foregoing instrument was aclaiowledged before me this ! day of 1995, by Fred Owusu, City Clerk, and Mariha Larson, Director of the Depaziment of Finance and Management Services, on behaif of the City of Saint Paul. Notary Public DESTINEER CORPORATION By its Manager Its Vice President- and Corporate Prceurement Of&cer STATE OF MISSISSIPPI) ) ss COL3NTY OF ) The foregoing instrument was acl�owledged before me this _ day of 1995, by Dudley G. Norman, Manager-Site Administration, and John Nikolic, Vice President and Corporate Prceurement Officer, on behalf of Destineer Corporation. Notary Public ^� 12 BRUNIN6 40-5253 W i t so ►�. �,v e, . 95-�084 zso' �r i �o,.ce { be cc,l,ocafed �i ��,-�.- u-�� r�fy M � N aiiild:v.g -Fa 6c. l�,�1�- by Lesse / ■ a+. De6ig�n � �oca�[o�. av� I iv,s-htla. o� all � e��w.eK aY.d aP�c�-er.av+c.e5, l �h -l-�e� bu� Id�v,g, r�n., 5-'c be aP P ro.�est i�... wr:`�tvg �' 'Fk`g �.-lzv-4-e�- U-�t� Pr�o� �Ea iY,s�alla�+ori. ZSo' TR. WATER UTILJTY - ClTY OF ST. PAUL, MINN. l�K�..�1�. R�1. S-Yav.dP:�r�. �,.�sE. s4rE g�4-a REVISIONS � � � �0 � o / M 5 Y J � - - � ._.�.>_ Extiibit ,�A�� Destineer Corporation Lease Site Equipment and Operating Frequency Band List 95—�.08�a One 500 watt iransmitter operating on the 940.225 MHz or 940.775 MI3z or 930.2125 MI3z frequency band, but not more than one frequency or transmitter at one time with one Scala Omnidirectional antenna using I inch coaYial cable. One Channel Master .75 meter receive-only satellite antenna with one GPS receive oniy antenna both using '/ coasial cable. One receiver utilizing the 901.225 MHz or 901.775 MHz or 901.78125 MHz frequency band, but not more than one frequency at one time, with one Scala Omnidirectional antenna using'/ co�ial cable. Any changes to the above equipment proposed by the LESSEE shall be considered a new installation and as such shall be subject to the terms and conditions of E�ibit "C" and Exhibit "D". -� D�� ,��7,1�5 Exhibit "B" 95�10$� ST. PAUL WATER UTILITY RADIO ANTENNA SITE MONTHLY LEASE RATES For Year 1995 1995 Single User: Community Repeater: Mulri-Use Antenna Radio Common Carrier (1ZCC) 800 MHZ Trunking System & E-SMR: Microwave Dish: CONSULTANT REVIEW FEE: Single User, Cellular or Trunking: E-SMR: Yearly increases will be based on CPI_ $170.00 $240.00 �, :� �� $SO.00imo.ea.Transmitter $50.00/mo.ea. Receiver $50.00/mo.ea. Antenna $50.00/mo.ea. Standard 2'x2' Floorspace $350.00 $325.00 per frequency pair $1,025.00 per appiication � ,�,,��.� ��,4,,�5 Exhibit "C" TECHNIGAL MINIMUM SITE STANDARDS 9�' 1 O g�t' S� Paul Water iJtility Water Tower Communications Site 1. All equipment must be housed in an RF tight, metal enclosure that provides at least 60 db of attenuarion to any intemal RF signals. Besk-top base starions and open racks cannot be used without special approval. Additional shielding kits may be required. 2. At least 60 db of isolation for 450 ME1Z, 800 MHZ and 900 MHZ transmitters and 30 db of isolation for 150 MEIZ and 40 NIHZ transmitters must be provided. A harmonic fiiter 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. Addirionai protective devices may be required.} 4. Only jacketed copper Heli� cabte shall be permitted for transmission line at the site. All on-site intercabling must use RG/9, RG/142, RG/214 or i/2 inch Superflex. RG/8 or any other single shielded cable wiil not he allawed. 5 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 exisring second order, third order or fifth order itttermodulation product at the site, wili not be permitted on the site. 6. All transmitters shall be equipped with band-pass caviries that will provide at least the following attenuarion of side band noise, if needed: 40 MHZ band: I50 MIiZ band: 450 MI�Z band: 800/900 MHZ band: Microwave: 50 db at 1 MEIZ 50 db at 1.5 MF3Z 50 db at 2.5 MHZ 50 db at 10 MHZ 50 db at 20 MHZ Exhibit "D" � TSTAND.f�I August 4, 1995 ` �• �