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Sample
Model Site Lease Agreement
Source: League of Minnesota Cities, Research memo
for city officials, 575B4.2 July 1996
Site Lease Agreement for Personal Communications Systems, Cellular or Page
Antenna Locations
SITE LEASE
AGREEMENT
THIS SITE LEASE
AGREEMENT (“Lease”), made this day of________ 2000 __ between City of
______________________________ (“Landlord”), and _______________
______________________ a ________________________ organized and existing under
the laws of_________________________________________ (“Tenant”).
For good and
valuable consideration, the parties agree as follows:
1. Leased
Premises. Subject to the terms and conditions of this Lease, Landlord
hereby leases to Tenant and Tenant leases from Landlord a portion of Landlord’s
property, consisting of approximately ____ square feet, located at
_____________________________, County of ______________, State of Minnesota,
legally described in Exhibit A attached hereto, subject to any and all existing
easements, and a portion of the ____________ Water Tower or other structures
(“Structure”), between a minimum height of _____ feet and a maximum height of
feet measured from grade as more particularly shown in Exhibit B attached
hereto, on which directional antennas, connecting cables and appurtenances will
be attached and located, the exact location of each to be reasonably approved by
Landlord’s Director of _____________________ together with a non-exclusive
easement for reasonable access thereto and for adequate utility services,
including sources of electric and telephone facilities also shown on Exhibit B
(“Leased Premises”).
2. Rent.
(a) Amount.
Adjustments. As consideration for this Lease, Tenant shall pay Landlord an
annual rent in the amount of _______________ for the initial year, which shall
be increased each year on January 1, by the greater of: (a) five percent (5%)
of the previous year’s annualized rental, or (b) by an amount equal to the
increase in the Consumer Price Index (“CPI”). 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 Labor Statistics, or if such index
shall be discontinued, the successor index, or if there shall be no successor
index, such comparable index as mutually agreed upon by the parties. To
determine the annual rental increase to be paid by Tenant under a CPI adjuster,
the annualized rental for the previous year shall be multiplied by a percentage
figure, computed from a fraction, the numerator of which shall be the CPI for
the third quarter of the preceding year and the denominator of which shall be
the CPI for the corresponding quarter of one year earlier. Such fraction shall
be converted to a percentage equivalent. The resulting percentage fixture shall
be multiplied by the previous year’s rent (annualized for the first year, see
Paragraph 4 below).
(b)
Time of Payment. Taxes. Landlord shall communicate all rental increases
to the Tenant in writing by the preceding December 1 of each year. The annual
rental shall be paid before January 1 of each year. For the first year, the
rental shall be pro rated through December 31 and shall be paid to Landlord in
full at the time Lease is executed. If the Tenant does not meet the requirements
referenced in Subparagraph 3(a) below by _____________ and Tenant has diligently
pursued such requirements, Landlord shall refund the Tenant rental payment made
at the time of Lease execution and this Lease shall terminate. In addition to
the annual rental, Tenant agrees to timely pay its pro rata share of any taxes
or payment in lieu of taxes required as a result of this Lease.
3. Governmental Approval
Contingency.
(a)
Tenant Application. Tenant’s right to use the Leased Premises is
expressly made contingent upon its obtaining all the certificates, permits,
zoning and other approvals that may be required by any federal, state, or local
authority. This shall include the engineering study specified in Subparagraph
3(b) below on the Structure to be conducted at Tenant’s expense. Landlord shall
cooperate with Tenant in its efforts to obtain and retain such approvals and
shall take no action which would adversely affect the status of the Leased
Premises with respect to the Tenant’s proposed use thereof.
(b) Interference
Study. Before obtaining a building permit, Tenant must pay for the
reasonable cost of (i) a radio frequency interference study carried out by an
independent and qualified professional selected by the Landlord showing that
Tenant’s intended use will not interfere with any existing communications
facilities and (ii) an engineering study showing that the Structure is able to
support the Tenant’s Facilities, as defined in Subparagraph 5(b), without
prejudice to the City’s use of the Structure. If the study finds that there is a
potential for interference that cannot be reasonably remedied or for prejudice
to the Structure, Landlord may terminate this Lease immediately and refund the
initial rental to Tenant.
(c)
Non-approval. In the event that any application necessary under
Subparagraph 3(a) above is finally rejected or any certificate, permit, license,
or approval issued to Tenant is cancelled, expires, lapses, or is otherwise
withdrawn or terminated by governmental authority so that Tenant, in its sole
discretion, will be unable to use the Leased Premises for its intended purposes,
Tenant shall have the right to terminate this Lease and be reimbursed for the
rental payment if made pursuant to Subparagraph 2(b) above. Notice of Tenant’s
exercise of its right to terminate shall be given to Landlord in writing by
certified mail, return receipt requested, and shall be effective upon receipt of
such notice by Landlord as evidenced by the return receipt. Except as required
under Subparagraph 13(d) below, upon such termination, this Lease shall become
null and void and the parties shall have no further obligations to each other.
4.
Term and Renewals. The “Initial Term” of this Lease shall commence
on the date in the first paragraph of this Lease (“Effective Date”) and end on
December31 of the fifth calendar year of the Lease. Subject to the terms and
conditions of this Lease, Tenant shall have the right to extend this Lease for
three (3) additional five (5) year renewal periods (“Renewal Term”) commencing
on January 1 following the expiration date of the Initial Term or of any
subsequent Renewal Term.
__________________________
1[OPTION
1: This Lease shall be automatically renewed for each successive Renewal Term
unless either Landlord or Tenant sends written notice of non-renewal to the
other no later than ninety (90) days prior to the expiration of the Initial Term
or any Renewal Term, such notice to be provided in accordance with Paragraph 21
of this Lease.]
[OPTION 2: This Lease shall expire at the
end of the Initial Term or any Renewal Term unless Tenant sends written notice
to Landlord of Tenant’s election to renew at least ninety (90) days prior to the
expiration of the Initial Term or any Renewal Term, such notice provided in
accordance with Paragraph 21 of this Lease.]
5. Tenant's Use.
(a) User Priority. Tenant agrees that the following priorities of use,
in descending order, shall apply in the event of communication interference or
other conflict while this Lease is in effect, and Tenant’s use shall be
subordinate accordingly:
1. Landlord;
2. Public
safety agencies, including law enforcement, fire, and ambulance services, that
are not part of the Landlord;
3.
Other
governmental agencies where use is not related to public safety; and
4.
Government-related entities whose antennae offer a service to the general public
for a fee, in a manner similar to a public utility, such as long distance and
cellular telephone, not including radio or television broadcasters.
(b) Purposes.
Tenant shall use the Leased Premises only for the purpose of installing,
maintaining, and operating a Landlord-approved communications antenna facility,
equipment, cabinets and an accessory building, and uses incidental thereto for
providing radio and wireless telecommunication services which Tenant is legally
authorized to provide to the public. This use shall be non-exclusive, and
Landlord specifically reserves the right to allow the Leased Premises to be used
by other parties and to make additions, deletions, or modifications to its own
facilities on the Leased Premises. Tenants communications antenna facility shall
consist of antennas at a Landlord-approved location, along with cables and
appurtenances connected to an accessory building or cabinet located on the
Leased Premises (“Antenna Facilities”). Tenant shall comply with all applicable
ordinances, statutes and regulations of local, state and federal government
agencies.
(c) Construction.
Tenant may erect and operate an antenna array in accordance with its submitted
application attached as Exhibit B. If Tenant seeks to increase the number of
antennas, it must first pay for an evaluation carried out by a qualified
professional, retained by Landlord demonstrating that (i) each additional
antenna will not interfere with existing antennas or with proposed antennas with
a higher priority and that (ii) any Structure can structurally support the
additional antennas. The cost of each evaluation must be paid by the Tenant
within 30 days after receiving written notice of the cost. Landlord must consent
to installation of additional antennas, such consent will not be unreasonably
withheld. If Landlord consents, the parties will negotiate the amount of
additional rental for the antennas.
______________________
1Option
1 and Option 2 represent alternative renewal rights of Landlord and Tenant.
Option 1 is an automatic renewal, but also gives Landlord the right of
non-renewal at the end of each five year term. Option 2 requires an affirmative
notice to renew by Tenant, but does not give the Landlord the right of
non-renewal (unless it is for cause or otherwise provided in section 14).
(d) Operation.
Tenant shall have the right, at its sole cost and expense, to operate and
maintain the Antenna Facilities on the Leased Premises in accordance with good
engineering practices, with all applicable FCC rules and regulations. Tenant’s
installation of all Antenna Facilities shall be done according to plans approved
by Landlord, which approval shall not be unreasonably withheld. Any damage done
to the Leased Premises or other Landlord property including the Structure during
installation or during operations, shall be repaired at Tenant’s expense within
30 days after notification of damage. The Antenna Facilities shall remain the
exclusive property of the Tenant, unless otherwise provided in this Lease.
(e) Maintenance.
Improvement Expenses. All modifications to the Leased Premises and all
improvements made for Tenant’s benefit shall be at the Tenant’s expense and such
improvements, including antenna, facilities and equipment, shall be maintained
in a good state of repair, at least equal to the standard of maintenance of the
Landlord’s facilities on or adjacent to the Leased Premises, and secured by
Tenant. If Tenant’s Antenna Facilities are mounted on the Structure they shall,
at all times, be painted, at Tenant’s expense, the same color as the Structure.
(f) Replacements.
Before the Tenant may update or replace the Antenna Facilities, Tenant must
notify and provide a detailed proposal to Landlord. Tenant shall submit to
Landlord a detailed proposal for any such replacement facilities and any other
information reasonably requested by Landlord of such requested update or
replacement, including but not limited to a technical study, carried out at
Tenant’s expense. Landlord may not unreasonably withhold approval.
(g) Drawings.
Tenant shall provide Landlord with as-built drawings of the equipment and
improvements installed on the Leased Premises, which show the actual location of
all Antenna Facilities. Said drawings shall be accompanied by a complete and
detailed inventory of all equipment, personal property, and Antenna Facilities
actually placed on the Leased Premises.
(h)
No Interference. Tenant shall, at its own expense, maintain any
equipment on or attached to the Leased Premises in a safe condition, in good
repair and in a manner suitable to Landlord so as not to conflict with the use
of the surrounding premises by Landlord. Tenant shall not unreasonably interfere
with the operations of any prior tenant using the Structure and shall not
interfere with the working use of the water storage facilities thereon or to be
placed thereon by Landlord.
(i)
Access. Tenant, at all times during this Lease, shall have access to the
Leased Premises in order to install, operate, and maintain its Antenna
Facilities. Tenant shall have access to the Structure only with the approval of
Landlord. Tenant shall request access to the Structure twenty-four (24) hours in
advance, except in an emergency, and Landlord’s approval thereof shall not be
unreasonably withheld or delayed. In the event it is necessary for Tenant to
have access to the Structure at some time other than the normal working hours of
Landlord, Landlord may charge Tenant for whatever expense, including employees’
wages, that Landlord may incur in providing such access to Tenant.
(j) Payment of
Utilities. Tenant shall separately meter charges for the consumption of
electricity and other utilities associated with its use of the Leased Premises
and shall promptly pay all costs associated therewith.
6. Emergency
Facilities. In the event of a natural or man made disaster, in order to
protect the health, welfare, and safety of the community, Tenant may erect
additional Antenna Facilities and install additional equipment on a temporary
basis on the Leased Premises to assure continuation of service. Such temporary
operation shall not exceed 90 days unless Tenant obtains written approval from
the Landlord.
7. Additional
Maintenance Expenses. Upon notice from Landlord, Tenant shall promptly
pay to Landlord all additional Landlord expenses incurred in maintaining the
Leased Premises, including painting or other maintenance of the Structure, that
are caused by Tenant’s occupancy of the Leased Premises.
8. Advances in
Technology. As technology advances and improved antennas are developed
which are routinely used in Tenant’s business, Landlord may require, in its sole
discretion, the replacement of existing antennas with the improved antennas if
the new antennas are more aesthetically pleasing or otherwise foster a public
purpose, as long as the installation and use of the improved antennas are
practical and technically feasible at this location.2
9. Additional
Buildings. Tenant acknowledges that Landlord may permit additional
buildings to be constructed on the property described in Exhibit A. At such time
as this may occur, Tenant will permit said buildings to be placed immediately
adjacent to Tenant’s building and will allow “attachments” to its building so as
to give the appearance that all buildings are a connected facility. Said
attachments will be made at no cost to Tenant and will not compromise the
structural integrity of Tenant’s building.
10. Defense and Indemnification.
(a) General.
Tenant agrees to defend, indemnify and hold harmless Landlord and its elected
officials, officers, employees, agents, and representatives, from and against
any and all claims, costs, losses, expenses, demands, actions, or causes of
action, including reasonable attorneys’ fees and other costs and expenses of
litigation, which may be asserted against or incurred by Landlord or for which
Landlord may be liable in the performance of this Lease, except those which
arise solely from the negligence, willful misconduct, or other fault of
Landlord. Tenant shall defend all claims arising out of the
installation, operation, use, maintenance, repair, removal, or presence of
Tenant’s Antenna Facilities, equipment and related facilities on the Leased
Premises.
____________________
2The
industry tends to object strongly to this provision. Thus if the initial
installation of the antenna array is not aesthetically objectionable, you may
choose to negotiate this term away for other provisions the City wants or for
larger rental payments.
(b) Hazardous
Materials. Without limiting the scope of Subparagraph 10(a) above, Tenant
will be solely responsible for and will defend, indemnify, and hold Landlord,
its agents, and employees harmless from and against any and all claims, costs,
and liabilities, including attorney’s fees and costs, arising out of or in
connection with the cleanup or restoration of the Leased Premises resulting from
Tenant’s use of Hazardous Materials. For purposes of this Lease, “Hazardous
Materials” shall be interpreted broadly and specifically includes, without
limitation, asbestos, fuel, batteries or any hazardous substance, waste, or
materials as defined in any federal, state, or local environmental or safety law
or regulations including, but not limited to, CERCLA.
(c) Tenant’s
Warranty. Tenant represents and warrants that its use of the Leased
Premises will not generate and Tenant will not store or dispose of on the Leased
Premises, nor transport to or over the Leased Premises, any Hazardous Materials,
unless Tenant specifically informs Landlord thereof in writing twenty-four hours
prior to such storage, disposal or transport, or otherwise as soon as Tenant
becomes aware of the existence of Hazardous Materials on the Leased Premises.
The obligations of this Paragraph 10 shall survive the expiration or other
termination of this Lease.
11. Insurance.
(a) Workers’
Compensation. The Tenant must maintain Workers’ Compensation insurance in
compliance with all applicable statutes. The policy shall also provide
Employer’s Liability coverage with limits of not less than $500,000 Bodily
Injury each accident, $500,000 Bodily Injury by disease, policy limit, and
$500,000 Bodily Injury by disease, each employee.
(b) General Liability.
The Tenant must maintain an occurrence form comprehensive general liability
coverage. Such coverage shall include, but not be limited to, bodily injury,
property damage -- broad form, and personal injury, for the hazards of
Premises/Operation, broad form contractual, independent contractors, and
products/completed operations.
The Tenant must maintain aforementioned comprehensive general liability coverage
with limits of liability not less than $1,000,000 each occurrence; $1,000,000
personal and advertising injury; $2,000,000 general aggregate, and $2,000,000
products and completed operations aggregate. These limits may be satisfied by
the comprehensive general liability coverage or in combination with an umbrella
or excess liability policy, provided coverage afforded by the umbrella or excess
policy’ are no less than the underlying comprehensive general liability
coverages.
Tenant will maintain Completed Operations coverage for a minimum of two years
after the construction is completed.
(c) Automobile Liability.
The Tenant must carry Automobile Liability coverage. Coverage shall afford total
liability limits for Bodily Injury Liability and Property Damage Liability in
the amount of $1,000,000 per accident. The liability limits may be afforded
under the Commercial Policy, or in combination with an Umbrella or Excess
Liability Policy provided coverage of ridges afforded by the Umbrella Excess
Policy are no less than the underlying Commercial Auto Liability coverage.
Coverage shall be provided for Bodily Injury and Property Damage for the
ownership, use, maintenance or operation of all owned, non-owned and hired
automobiles.
The Commercial Automobile Policy shall include at least statutory personal
injury protection, uninsured motorists and underinsured motorists coverages.
(d) Tenant
Property Insurance. The Tenant must keep in force during the term and any
renewals of the Lease a policy covering damages to its property at the Leased
Premises. The amount of coverage shall be sufficient to replace the damaged
property, loss of use and comply with any ordinance or law requirements.
(e) Hazardous
Materials Coverage. Tenant must carry sufficient coverage, to the reasonable
satisfaction of Landlord, for damage caused by Hazardous Materials.
(f) Adjustment to
Insurance Coverage Limits. The coverage limits set forth herein shall be
increased at the time of any Renewal Term by the greater of the Consumer Price
Index as calculated under Paragraph 2(a) or 25%.
(g) Additional
Insured - Certificate of Insurance. The Tenant shall provide, prior to
tenancy, evidence of the required insurance in the form of a Certificate of
Insurance issued by a company (rated A+ or better) by Best Insurance Guide,
licensed to do business in the state of Minnesota, which includes all coverages
required in this Paragraph 11. Tenant will name Landlord as an Additional
Insured on the General Liability and Commercial Automobile Liability Policies.
The Certificate(s) shall also provide the coverage may not be canceled,
non-renewed, or materially changed without thirty (30) days prior written notice
to Landlord.
12. Damage or
Destruction. If the Leased Premises is destroyed or damaged, without
contributory fault of the Tenant or its agents, so as, in Tenant’s judgment, to
hinder its effective use of the Antenna Facilities, Tenant may elect to
terminate this Lease upon 30 days’ written notice to Landlord. In the event
Tenant elects to terminate the Lease, Tenant shall be entitled to reimbursement
of prepaid rent covering the period subsequent to the date of damage to or
destruction of the Leased Premises.
13. Lease Termination.
(a) Events of
Termination. Except as otherwise provided herein, this Lease may be
terminated upon sixty (60) days written notice to the other party as follows:
(i) by either
party upon a default of any covenant or term hereof by the other party, which
default is not cured within sixty (60) days of receipt of written notice of
default to the other party (without, however, limiting any other rights of the
parties pursuant to any other provisions hereof);
(ii) by Tenant
for cause if it is unable to obtain or maintain any license, permit or other
governmental approval necessary for, the construction and/or operation of the
Antenna Facilities or Tenant’s business;
(iii) by Tenant
for cause if the Leased Premises is or becomes unacceptable for technological
reasons including without limitation shadowing or interference under Tenant’s
Antenna Facilities, design or engineering specifications or the communications
systems to which the Antenna Facilities belong;
(iv) by
Landlord, upon 120 day’s prior written notice to Tenant if its Council decides,
for any reason, to redevelop the Leased Premises in a manner inconsistent with
continued use of the Leased Premises by Tenant and/or discontinue use of the
Structure for all purposes;
(v) by
Landlord if it determines that the Structure is structurally unsound, including,
but not limited to, consideration of age of the Structure, damage or destruction
of all or part of the Structure on the Leased Premises from any source, or
factors relating to condition of the Leased Premises;
(vi) by
Landlord if it determines that a potential user with a higher priority under
Subparagraph 4(a) above cannot find another adequate location, or the Antenna
Facilities unreasonably interfere with another user with a higher priority,
regardless of whether or not such an interference was predicted in the initial
interference study that was part of the application process, provided that for a
one year period after termination under this subparagraph, Landlord shall not
lease the Leased Premises to another party with equal or lesser priority for the
same use as that of Tenant; or
(vii) by
Landlord if it determines that Tenant has failed to comply with applicable
ordinances, or state or federal law, or any conditions attached to government
approvals granted thereunder, after a public hearing before the Landlord’s
Council.
(b)
Notice of Termination. The parties shall give Notice of Termination in
writing by certified mail, return receipt requested. Such Notice shall be
effective upon receipt as evidenced by the return receipt, or such later date as
stated in the Notice. All rentals paid for the Lease prior to said termination
date shall be retained by Landlord.
(c) Tenant’s
Liability for Early Termination. If Tenant terminates this Lease other than
of right as provided in this Lease, Tenant shall pay to Landlord as liquidated
damages for early termination, 150% of the annual rent for the year in which
Tenant terminates, unless Tenant terminates during the last year of any Term
under Paragraph 3 and Tenant has paid the annual rental for that year.
(d)
Site Restoration. In the event that this Lease is terminated or not
renewed, Tenant shall have 60 days from the termination or expiration date to
remove its Antenna Facilities, and related equipment from the Leased Premises,
repair the site and restore the surface of the Structure. Upon the commencement
of this Lease, Tenant shall deposit with Landlord the sum of $5,000.00, which
shall be fully refunded to Tenant upon the timely removal of the Antennas
Facilities, and related equipment, the repair of the site and the restoration of
the Structure surface to the reasonable satisfaction of the Landlord. In the
event that Tenant’s Antenna Facilities, and related equipment are not removed to
the reasonable satisfaction of the Landlord, they shall be deemed abandoned and
become the property of the Landlord and Tenant shall have no further rights
thereto. Tenant has notified the Landlord that the following entities have an
interest in the Antenna Facilities and related equipment because of financing
arrangements:
________________________________________________
________________________________________________
________________________________________________
If Landlord removes the Antenna
Facilities or related equipment, Landlord must give written notice to the above
entities at the addresses provided, informing them that Antenna Facilities or
related property have been removed and will be deemed abandoned if not claimed
and the storage fees and other reasonable costs paid within thirty (30) days.
14. Limitation of
Landlord’s Liability. If Landlord terminates this Lease other than as
of right as provided in this Lease, or Landlord causes interruption of the
business of Tenant or for any other Landlord breach of this Lease, Landlord’s
liability for damages to Tenant shall be limited to the actual and direct costs
of equipment removal, relocation or repair and shall specifically exclude any
recovery for value of the business of Tenant as a going concern future
expectation of profits, loss of business or profit or related damages to
Tenant.
15. Temporary
Interruptions of Service. If Landlord determines that continued
operation of the Antenna Facilities would cause or contribute to an immediate
threat to public health and/or safety (except for any issues associated with
human exposure to radio frequency omissions, which is regulated by the federal
government), Landlord may order Tenant to discontinue its operation. Tenant
shall immediately comply with such an order. Service shall be discontinued only
for the period that the immediate threat exists. If Landlord does riot give
prior notice to Tenant, Landlord shall notify Tenant as soon as possible after
its action and give its reason for taking the action. Landlord shall not be
liable to Tenant or any other party for any interruption in Tenant’s service or
interference with Tenant’s operation of its Antenna Facilities, except as may’
be caused by the willful misconduct of the Landlord, its employees or agents. If
the discontinuance extends for a period greater than three days, either
consecutively or cumulatively, Tenant shall have the right to terminate this
Lease within its sole discretion.
16. Tenant Interference.
(a) With Structure.
Tenant shall not interfere with Landlord’s use of the Structure and agrees to
cease all such actions which unreasonably and materially interfere with
Landlord’s use thereof no later than three business days after receipt of
written notice of the interference from Landlord. In the event that Tenant’s
cessation of action is material to Tenant’s use of the Leased Premises and such
cessation frustrates Tenant’s use of the Leased Premises, within Tenant’s sole
discretion, Tenant shall have the immediate right to terminate this Lease.
(b) With Higher
Priority Users. If Tenant’s Antenna Facilities cause impermissible
interference with higher priority users as set forth in under Subparagraph 5(a)
above or with pre-existing tenants, Tenant shall take all measures necessary to
correct and eliminate the interference. If the interference cannot be eliminated
within 48 hours after receiving Landlord’s written notice of the interference,
Tenant shall immediately cease operating its Antenna Facilities and shall not
reactivate operation, except intermittent operation for the purpose of testing,
until the interference has been eliminated. If the interference cannot be
eliminated within 30 days after Tenant received Landlord’s written notice,
Landlord may at its option terminate this Lease immediately.
(c) Interference
Study - New Occupants. Upon written notice by Landlord that it has a bona
fide request from any other party to lease an area including or in close
proximity to the Leased Premises (“Leased Premises Area”), Tenant agrees to
provide Landlord, within sixty (60) days, the radio frequencies currently in
operation or to be operated in the future of each transmitter and receiver
installed and operational by Tenant on the Leased Premises at the time of such
request. Landlord may then have an independent, registered professional engineer
of Landlord’s choosing perform the necessary interference studies to determine
if the new applicant’s frequencies will cause harmful radio interference to
Tenant. Landlord shall require the new applicant to pay for such interference
studies, unless the Landlord or other higher priority user requests the use. In
that event, the Tenant and all other tenants occupying the Leased Premises Area
shall pay for the necessary interference studies, pro rata.
(d) Interference -
New Occupants. Landlord agrees that it will not grant a future lease in the
Leased Premises Area to any party who is of equal or lower priority to Tenant,
if such party’s use is reasonably anticipated to interfere with Tenant’s
operation of its Antenna Facilities. Landlord agrees further that any future
lease of the Leased Premises Area will prohibit a user of equal or lower
priority from interfering with Tenant’s Antenna Facilities. Landlord agrees that
it will require any’ subsequent occupants of the Leased Premises Area of equal
or lower priority to Tenant to provide Tenant these same assurances against
interference. Landlord shall have the obligation to eliminate any interference
with the operations of Tenant caused by’ such subsequent occupants. If such
interference is not eliminated, Tenant shall have the right to terminate this
Lease or seek injunctive relief against the interfering occupant, at Tenant’s
expense.
17. Assignment.
This Lease, or rights thereunder, may not be sold, assigned, or transferred at
any time by Tenant except to Tenant’s affiliates or subsidiaries. As to other
parties, this Lease may not be sold, assigned, or transferred without the
written consent of the Landlord, such consent not to be unreasonably withheld.
For purposes of this paragraph, an “affiliate” or “subsidiary” means an entity
in which Tenant owns greater than a 50% interest. Landlord hereby
consents to the assignment by Tenant of its rights under this Lease as
collateral to any entity which provides financing for the purchase of the
equipment to be installed at the Leased Premises.3
18. Condemnation.
In the event the whole of the Leased Premises is taken by eminent domain, this
Lease shall terminate as of the date title to the Leased Premises vests in the
condemning authority. In event a portion of the Leased Premises is taken by
eminent domain, either party shall have the right to terminate this Lease as of
said date of title transfer, by giving thirty (30) days’ written notice to the
other party. In the event of any taking under the power of eminent domain,
Tenant shall not be entitled to any portion of the reward paid for the taking
and the Landlord shall receive full amount of such award. Tenant hereby
expressly waives any right or claim to any portion thereof. Although all
damages, whether awarded as compensation for diminution in value of the
leasehold or to the fee of the Leased Premises, shall belong to Landlord, Tenant
shall have the right to claim and recover from the condemning authority, but not
from Landlord, such compensation as may be separately awarded or recoverable by
Tenant on account of any and all damage to Tenant’s business and any costs or
expenses incurred by Tenant in moving/removing its equipment, personal property,
Antenna Facilities, and leasehold improvements.
19. Disputes.
Any claim, controversy or dispute arising out of this Lease not resolved within
ten (10) days following notice of the dispute, shall be submitted first and
promptly to mediation. Each party shall bear its own costs of mediation. If
mediation does not result in settlement within forty-five (45) days after the
matter was submitted to mediation, either party may file a claim in arbitration
in accordance with the applicable rules of the American Arbitration Association.
The award rendered by the arbitrator may be entered as a judgment in any court
having jurisdiction thereof. The arbitration shall be conducted in the county
where the Leased Premises is located. Arbitration shall be the exclusive remedy
of the parties.4
20. Enforcement
and Attorneys’ Fees. In the event that either party to this Lease shall
bring a claim in arbitration to enforce any rights hereunder, the prevailing
party shall be entitled to recover costs and reasonable attorneys’ fees incurred
as a result of such claim.
_____________________
3The
industry may strongly object to this language as an interference with their
power to reorganize as business conditions may demand. You may choose to
negotiate this term away if the City Council feels that one company is about as
good a tenant as another.
4Some
companies in the industry strongly object to arbitration. Some cities do not
like it either. This is certainly a subject for negotiation.
21. Enforcement
and Attorney's Fees. All notices hereunder must be in writing and shall
be deemed validly given if delivered personally or if sent by certified mail,
return receipt requested, addressed as follows (or any other address that the
party to be notified may have designated to the sender by like notice):
If to Landlord, to:
___________________________________________
If to Tenant, to:
___________________________________________
with a copy to:
___________________________________________
22. Authority.
Each of the individuals executing this Lease on behalf of the Tenant or
the Landlord represents to the other party that such individual is authorized to
do so by requisite action of the party to this Lease.
23. Binding
Effect. This Lease shall run with the Leased Premises. This Lease shall
extend to and bind the heirs, personal representatives, successors and assigns
of the parties hereto.
24. Complete
Lease: Amendments. This Lease constitutes the entire agreement and
understanding of the parties and supersedes all offers, negotiations, and other
agreements of any kind. There are no representations or understandings of any
kind not set forth herein. Any modification of or amendment to this Lease must
be in writing and executed by both parties.
25.
Governing Law. This Lease shall be construed in accordance with the
laws of the State of Minnesota.
26. Limitation
of Liability. Nothing in the Lease shall be deemed awaiver of any
limitation of liability or defenses under Minnesota Statutes Chapter 466 or any
other provision of law.
27.
Severability. If any term of this Lease is found be void or invalid,
such invalidity shall not affect the remaining terms of this Lease, which shall
continue in full force and effect.
28. Memorandum. Upon request by
either party, the parties agree to promptly execute and deliver a recordable
Memorandum of this Lease in a form acceptable to both parties which may be
recorded by the party requesting the Memorandum of Lease.5
IN WITNESS
WHEREOF, the parties hereto have set their hands and affixed their respective
seals the day and year first above written.
LANDLORD: CITY OF
_______________________________________
By
_____________________________________________
Its Mayor
By
_____________________________________________
Its City Manager
TENANT:
______________________________________________, a
______________________________________corporation
By
_____________________________________________
Its
_____________________________________________
STATE OF MINNESOTA )
) SS
COUNTY OF _________ )
The foregoing instrument was
acknowledged before me this ________ day of _________, 20___, by
____________________________ the Mayor and City Manager respectively of the City
of _____ on behalf of the corporation.
________________________________________________
Notary Public
______________________________
51f
you choose to use this language and do not intend to record this Lease
immediately, you need not fill in the acknowledgement blanks at the end.
STATE OF _______________ )
)SS
COUNTY OF _______________ )
The foregoing
instrument was acknowledged before me this _______ day of _______, 20____ by
_____________, the ____________ of ______________, on behalf of the
corporation.
______________________________________________
Notary Public
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