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HomeMy WebLinkAboutOrdinance 823ORDINANCE N0.823 BEING AN ORDINANCE ALLOWING THE CONSTRUCTION AND USE OF AN ANTENNA UPON CITY PROPERTY THE CITY COUNCIL OF THE CITY OF COLUb~IA HEIGHTS DOES ORDAIN: Section t. Lease to General Television, Inc. The lease atteched hereto as Exhibit A and made a part hereof between the City of Columbia Heights, a municipal corporation, and General Television, Inc., a Colorado corporation, is herewith adopted for the purposes contained in said lease and for the purpose of granting General Television, Inc. a limited franchise for the purpose of the erection and use of an antenna and related facilities upon property of the City of Columbia Heighte. The M~yor and City Manager are herein authorized to enter into said lease subject to the restrictions of this Ordinance No. 823 and the Charter of the City of Col- umbia Heights. Section 2. Effective Date This ordinance shall be in full force and effect from and after thirty days after its passage. Offered by: Norber9 Seconded by: Heimtz First Reading: July 8, 1974 Second Reading: July 22, 1974 Roll Call - All Ayes son, Secretary Pr tempore to the Council Bruce G. Nawrocki, Mayor EXHIBIT A: LEASE LEASE AGREEMENT Made this day of , 1974, between the CITY OF COLUMBIA HEIGHTS, Minnesota (hereinafter referred to as "Grantor"), and GENERAL TELEVISION, INC., a Colorado corporation, (hereinafter referred to as "Grantee"). WITNESSETH: ARTICLE I: LEASED PREMISES Grantor does hereby lease, demise and let unto Grantee, and Grantee does hereby hire and take from Grantor a portion of the real property located at 4700 Stinson Blvd., Columbia Heights, Minnesota, (hereinafter described as "the demised premises"), adjacent to and immediately ~orth of the municipal water standpipe located at the above address, which demised premises are more fully described and legally described on the attached Exhibit A which by this reference is incorporated herein. ARTICLE II: INITIAL TERM AND EXTENDED TERM The initial term of this lease shall be fifteen (15) years, unless sooner terminated as hereinafter provided, commencing on the 1st day of September, 1974, and terminating on the 31st day of August 31, 1989. Grantee is hereby granted the 9ption to extend the term of this lease upon the same terms and conditions as herein contained except as hereinafter expressly provided for an extended term of ten (10) years. The rental during said extended term, if any, shall be a reasonable rental to be agreed upon by Grantee and Grantor after Grantee exercises its option to extend the term of this lease and prior to the commencement of the extended term of this lease. If no agreement is reached between Grantor and Grantee as to the amount of rental for the additional ten (10) years, within six (6) months after written notice of election by Grantee, said notice is void and said optiQn lapses. Grantee may exercise said option to extend the term of this lease by giving to Grantor written notice of its election to do so at least twelve (12) months prior to the expiration of the initial term of this lease. ARTICLE III: RENT Grantee agrees to pay and Grantor agrees to receive and accept therefore as rent Five Hundred and no/lO0 ($500.00) Dollars per month, payable., in advance of the first day of each month for the period commencing September 1, 1974, and terminating December 31, 1975. The monthly rental payment for the period commencing January 1, 1976, mud terminating December 31, 1976, shall be determined by multiplying the cost of living percentage increase or decrease from September 1, 1974, to August 31, 1975, times five hundred ($500.00) Dollars and adding any increase (or subtracting any decrease) to the five hundred ($500.00) Dollar monthly payment figure. Similarly, the monthly rental figure for each succeeding year of said original term of fifteen (15) years shall be calculated in the same fashion, i.e. reflecting cost of living percentage increases or decreases based on a one year term terminating the previous August 31 multiplied by the last prevailing monthly lease.~payment amount, then having such increase added or such decrease in the cost of living subtracted therefrom to determine the monthly rental amount ~or each succeeding year in the fifteen (15) year term. Such cost of living increase shall be determined by applying the Consumer Price In~ex for the Minneapolis-St. Paul area for urban wage earners and clerical workers as compiled by the United States Department of Labor, Bureau of Labor Statistics. ARTICLE IV: USE OF PREMISES Grantee may use the demised premises for the purpose of the construction and operation of a communications tower and related facilities, as described herein. ARTICLE V: PER_MITS AND APPROVALS The Grantee shall be solely responsible at its expense for procuring such governmental permits and approvals as may be required for a communications tower and ancillary facility as contemplated by this -2- lease. The Grantee shall be solely responsible at its expense for constructing and maintaining the tower and facility in full compliance with applicable regulations of the Federal Aviation Administration. ARTICLE VI: NATURE OF FACILITY The Grantee shall construct at its sole expense upon the demised premises a 180 foot high communications tower capable of withstanding 120 m.p.h, winds, consistent with the standards and specifications set forth on the attached Exhibit B which by this reference is incorporated herein. The tower shall remain personal property irrespective of the manner or degree of its attachment to real property and shall be the property of Grantee. The provision that the tower shall remain personal property shall not be binding upon the City of Columbia Heights or any other governmental unit relating to taxation of said tower or any other purpose other than for purposes of this lease. The tower shall be so equipped, painted and maintained in compliance with applicable regulations of the Federal Aviation Administra- tion, that the Grantor will not be required to illuminate its adjacent municipal water standpipe in order-to comply with FAA regulations. The Grantee shall also construct at its sole expense a small all-weather building adjacent to the tower on the demised premises on a specific location designated by Grantor, within a reasonable time after execution of this agreement, title to which building shall be in Grantor. The building shall be designed by Grantee to the satisfaction of Grantor and constructed according to plans approved by Granto~ or, in the alternative, as set forth in Exhibit C if attached hereto and agreed upon prior to the execution of this agreement; provided, however, that Grantee shall not be required to construct any said building which exceeds eight thousand ($8,000.00) Dollars in construction cost, based on no less than two compe- titive proposals. Grantor shall be solely responsible at its expense -3- for all upkeep, maintenance and repair to said building, which Grantor shall perform in good faith pursuant to Article VII hereof. For as long as Grantee is in possession of the demised premises hereunder, Grantee shall be entitled to the use of one hundred (100') square feet inside said building for purposes of its communication facility in conjunction with the tower. Grantee shall be obligated to pay no rent for such use of the building and shall be obligated to pay no other costs or charges in respect of such use and occupancy. Upon the termination or expiration of this lease, Grantee shall have the right to remove its property from said building irrespective of the manner or degree of attachment thereof to the building, and in so doing, Grantee shall incur no liability to Grantor except that Grantee shall repair any damage actually done to the building or demised premises in effecting such removal and shall indemnify Grantor for any expenses incurred as a result of said removal. ARTICLE VII: REPAIRS Grantor covenants at its sole aost-and expenseto maintain in as good condition and repair as it was at the time Grantor took possession of same the building to be constructed upon the demised premises, normal wear excepted. Grantor covenants at its sole cost and expense immediately with all reasonable diligence to make all necessary repairs or maintenance to the roof, structural or other parts of the building, The Grantor further covmnants that the building will be kept free from violation of laws, ord- inance and regulations relating thereto and agrees to ~mediately make any alterations, improvements or additions to the building required at any time during the term of this lease on account of any law, ordinance or regulation relating thereto. ARTICLE VIII: INSTALLATIONS, SIGNS AND FIXTURES Grantee shall be permitted to attach to the tower or building one or more signs which identify the communications facility as being a pg~t of the business conducted by Grantee, provided that such signs comply with -4- applicable ordinances or regulations. Grantor shall be permitted to attach to the building such reasonable identification signage as it deems appropriate~ also subject to applicable ordinanaces and regulations. Grantee shall ~have the right from time to time to install on or at- tach to the demised premises, trade fixtures and equipment and any such trade fixtures and equipment installed on or attached to the demised premises by Grantee shall remain the property of Grantee and Grantor agrees that Grantee shall have the right at any time and from time to time to remove such fixtures and equipment, provided, however, that Grantee shall at its sole expense promptly repair any damage caused to the demismdTpremises by reason of any such removal of said fixtures or equipment. ARTICLE IX: INSURANCE The demised premises, tower and building shall be insured as provided in this Article IX. At any time and from time to time during the term of this Lease either party shall at the request of the other party supply reasonable documentation of its compliance with provisions of this Article IX. Grantee agrees to and shall procure and maintain standard liability, fire and extended coverage insurance covering the tower, Grantee's use of its portion of the building and its use of the demised premises, which insurance shall insure both Grantee and Grantor from and against claims, demands or actions for injury or death of any one person in an amount of not less than Fifty Thousand and 00/100 ($50,000.00) Dollars, and for injury to or death of more than one person in any one accident to the limit of One Million and 00/100 ($1,000,000.00) Dollars, and for damage to property in an amount of not less than Fifty Thousand and 00/100 ($50,000.00) Dollars, made by or on behalf of any person, firm or entity arising from the conduct of Grantee's affairs on the demised premises. Insurance coverage hereunder may be amended to require greater or smaller coverage if deemed advisable by the Insurance Committee or Insurance Commission of the City of Columbia Heights based upon a change in the statutory or common law liability of municipalities. -5- ARTICLE X: DAMAGE T__O, DESTRUCTION OR IMPAIRMENT OF STRUCTURES In the event the building is destroyed or substantially damaged, Grantor shall forthwith cause the same to be repaired or rebuilt at least to its original specifications. Grantee shall be entitled to provide temporary quarters on or adjacent to the demised premises for its equipment or facilities theretofore housed in the building until the building is ready for reoccupancy. Grantee's rental obligation shall not abate in the event of such damage or destruction to the building provided Grantor acts in good faith and as promptly as reasonabl~ possible to repair or replace the building. In the event insurance proceeds received by Grantor are not sufficient to cover the cost of repair or replacement, Grantee agrees to contribute 50% of the difference between such insurance proceeds and the actual reasonable repair or replacement costs. In the event the tower is destroyed, damaged to the extent of 80 % of its original cost, or subjected to any'.~new or amended regulation or regulations of the Federal Aviation Administration or any other govern- mental agency or any new or amended law or ordinance or the tower or demised premises are taken in whole or in part by eminent domain and such law, regulation or taking materially impairs the utility to Grantee of the tower or demised premises, for the purposes contemplated by this Lease, then within sixty (60) days of the occurrence of any such destructimn, damage, taking or impairment, Grantee may terminate this lease by giving to Grantor within said 60 day period thirty (30) days written notice of termination. Grantor covenants and agrees that any alteratinns, improvements and repairs made by it to the building pursuant to the terms of this lease shall comply with all applicable laws, crdinances and regulations relating thereto. If the Grantor shall be obligated to repair or restore the building, delay on its part in so doing caused by strikes or labor stoppages, war, civil commotion, shortage of materials due to governmental restrictions -6- or strikes involving suppliers, or other emergencies of similar nature which are beyond Grantor's control shall not be a violation by Grantor of the provisions of this lease. ARTICLE XI:GRA~OR~S USE OF DEMISED PREMISES Grantor shall be entitled subject to the provisions of this Article XI, to the use of the tower to be constructed upon the demised premises, with- out charge, for its own communications antenna~ and related facilitiem. Such antennae and facilities will be designed and installed in cooperation with Grantee and shall occupy an intermediate portion of the tower. Grantor shall further be entitled to occupy without charge the remainder of the building to be constructed on the demised premises and to use the same for any purpose which does not interfere with the Grantee's use of the tower and its portion of the building. Grantor shall be further entitled to sublease or license others to use all or any portion of Grantor's portion of the building, for Grantor's account and upon such terms and conditions as Grantor desires provided that no use of the building by any sub-grantee or licensee of Grantor shall be permitted which interferes with Grantee's use of the tower and its portion of the building. Grantor shall notify Grantee of proposed tenants and proposed uses at least 30 days prior to such proposed occupancy and use. Should a dispute arise as to the technological compatibility or interference with Grantee's use of the tower with respect to any proposed use by Grantee, each conflicting party may choose an arbitrator which will elect a third. The majority decision of the arbitrator's shall be binding upon the parties. Such arbitration shall be governed by the Rules of the American Arbitration Association. ARTICLE XII: REMEDIES OF THE GRANTOR It is agreed between the Grantor and the Grantee, and these presents are upon this condition~ that, if the Grantee shall neglect or fail to perform or observe any of the covenants contained in this lease on the part of Grantee to be performed or observed, or if the Grantee shall be declared bankrupt or -7- insolvent according to law, or if any receiver or receivers of the property of the Grantee be appointed, or if any assignment shall be made of the Grantee's property for the benefit of creditors, or if the estate hereby created shall be taken or impaired on execution or by other process ~ law, then, in any of said cases (notwithstanding any license or waiver of any former breach of covenant, or waiver of the benefit thereof, or consent in a former instance), and subject to the second paragraph of this Article XII, Grantor at any time thereafter, upon not less than ten (10) days written notice to Grantee, may lawfully enter into or upon~the demised premises or any part thereof, in the name of the whole, and repossess the same as of their former estate, anything herein to the contrary notwithstanding and expel the Grantee and those claiming through or under Grantee and remove their effects (forcibly, if necessary) and, if Grantor gects, may store the same for the account and at the expense and risk of Grantee, without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant. Repossession of the demised premises shall terminate and revoke this Lease Agreement, but without prejudice to any accrued rights hereunder. In case of any default by it, Grantee shall receive written notice specifically designating such default by certified mail Return receipt requested) or in manner ordinarily prescribed for purpose of service of a s~mmons in an action at law and if the default or defaults mentioned an any such notice be not cured within thirty (30) days after mailing of notice or completion of service as otherwise herein provided (~ within such reasonable time thereafter as may be necessary to cure such default where such default is other than the payment of money and is of suc~h a character as to reasonably require more than thirty (30) days to cure), then the foregoing provision of this Article XII shall be fully applicable. ARTICLE XIII: SURRENDER OF POSSESSION; REMOVAL OF TOWER At the expiration of the tenancy created hereunder, whether by lapse of time or otherwise, Grantee shall surrender peacea>ly the demised premises to Grantor. -8- Grantee shall, notwithstanding any termination or expiration of this lease, or repossession of the demised premises, be entitled to dismantle and remove the tower and its related equipment and facilities, and to do so with due diligence after such expiration, termination or reposs- ession. Grantee shall in such case return to Grantor any equipment or facilities of Grantor's which are attached to the tower. Grantee shall be obligated to remove any foundation materials or structures related to the tower and to restore the demised premises.to their condition prior to construc- tion of the tower at the option of Grantor. ARTICLE XIV: OTHER USES OF THE TOWER Third ~arties may be allowed to rent the use of portion of the tower with the mutual and joint consent of Grantor and Grantee. Such users will be charged a reasonable rental mutually agreeable to Grantor and Grantee, the gross proceeds of which shall be divided 35% to Grantor and 65% to Grantee. As used in this Article XIV, the term "gross rental" shall include all receipts'from~third party?users of the tower. No use shall be permitted of the tower by any third party which interferes with any use or any planned use of the tower by Grantor or Grantee, or with any then-current use of the tower by any other person already using the tower. The use of the tower by any third party shall be further subject to the condition that such third party shall have first'procured and agreed to maintain public liability, fire and extended coverage insurance covering its use of the tower in such amounts, upon such terms and from such insurer(s) as may be mutually acceptable to Grantor and Grantee. Should any dispute arise as to whether a proposed third party user does, in fact, interfere, such dispute shall be submitted to arbitration as in Article XI herein. ARTICLE XV: COVENANT OF QUIET TITLE Grantor covenants that it has good right and title to make this laas~ and that if Grantee shall well and truly perform the covenants, terms and conditions hereof by it to be kept and performed, Grantor will defend -9- such rights of possession as are created here of Grantee against all lawful claims, and Grantee shall have and possess the demised premises peaceably and quietly during the term hereby created for the uses and purposes herein contemplated. ARTICLE XVI: DEFAULTS OF THE GRANTOR In the event the Grantor defaults in the performance of any of the terms or conditions in this ~ase contained on the part of the Grantor to be performed then, and in 'any such event or events, the Grantee, after written notice specifying the nature of such default is given by the Grantee to the Grantor, may, if the Grantor does not cure such default with reasonable diligence, cure such defaults on behRlf of and at the expense the Grantor, and Grantor agrees to pay to Grantee forthwith the amount so paid or expended by Grantee. Nothing herein contained shall preclude the Grantee from proceeding to collect the amount so paid or expended by it. Further, noting contained in this lease shall deprive the Grantee of any right or remedy it may have by law, or in equity or otherwise, including but n~limited to terminatinn of this lease and action for specific performance of this lease, for any default in the performance of the terms ~nd conditions of this lease. ARTICLE k-VII: SUCCESSORS AND ASSIGNS The terms, covenants and provisions of this lease shall be binding upon and inure to the bermfit of the parties hereto, their respective successors and assigns. It is expressly understood and agreed between the parties hereto that this lease is personal to the parties hereto, and neither patty shall assign or alienate in whole or in part that party's interest hereunder without the prior written assent of the other, which assent shall not be unreasonably withheld. ARTICLE XVIII: MISCELLANEOUS PROVISIONS This Lease, executed at Columbia Heights, Minnesota, shall be governed by the law of the state of Minnesota. No alteration, amendment, recission or waiver of this lease or any part thereof shall be effective unle~ in writing and signed by each party hereto. No waiver, extension or undulgence given at any time by either party shall operate as or be -10- deemed a waiver, extension or indulgence with respect to any subsequent or other breach hereof. The Article captions contained herein are for convenie~nce of reference only and shall not be taken into account in construing or inter- preting this lease. ARTICLE XIX: NOTICES Any notice or other communication required or permitted under this lease shall be deemed given if delivered to the other party, or two (2) days after being mailed to the other party by Certified Mail, return receipt re- quested, postage prepaid and addressed: To Grantor: 590 40th Avenue Northeast Columbia Heights, MN 55421 To Grantee: Suite 115 Hennepin Square 2021 East Hennepin Avenue Minneapolis, Minnesota 55413 or in manner provided for service of a summons or legal process in a civil case. ARTICLE ~X: TAXES Grantee-shall make-timely-payment of all real estate taxes attribu- table to the tower and a pro-rate portion of such taxes attributable to the demised portion of said~butlding-~to be apportioned on a square=footage-basi~s. ARTICLE XXI: GOOD FAITH REPRESENTATIONS Grantee represents that it has negotiated in good faith and that it will use only a portion of the towem at or about the level of 120 feet for its proposed use. Grantee further represents that it will use good faith attempts to rent the remainder of the tower to third party users and that not specifically describing the exact portion to be used by the Grantee arises from technological difficulties and not from an intended expansion of its own use of the demised premises. Should Grantee need a location on said tower in lieu of the location at or about 120 feet, Grantor agrees to allow Grantee to choose an alternative site upon said tower so long as such proposed alternative site does not interfere with any use or proposed use by Grantor. Should Grantee choose to install facilities on a second location on said tower, such second or subsequent use shall be allowed hereunder provided that Grantee shall pay to Grantor thirty-five percent (35%) of the reasonable rental value of said location. Should the parties be unable to agree upon a reasonable value, such dispute shall be submitted to arbitration in the manner described in Article XI herein. Any expanded use of the said tower other than that specifically represented to the City Council of the City of Columbia Heights shall constitute a breach of this agreement and shall entitle said Grantor to employ such rem~dies at law and equity as are deemed appropriate by Grantor tO fulfill the integer of this agreement. -11- ARTICLE XXII: CONDITIONS FOR RATIFICATION A. Grantee shall be suJect to and will perform on its part all the terms and conditions of Sections 94 to 102, inclusive, of the Charter of the City of Columbia Heights. B. Grantee shall not issue any capital stock on account of this franchise or lease or the value thereof. Grantee shall have no right to receive, upon condemnation proceedings brought by the City to acquire the public utility exercising such'franchise,~ any return on account of the franchise or its value. C. No sale or lease of said franchise shall be ac-rive until the assignee or leasee shall have filed in the office of the City clerk of the City of Columbia Heights an instrument duly executed, reciting the fact of such s~ale or lease, accepting the terms of the franchise, and agreeing to perform all the conditions required of the grantee thereunder. D. The City Council of the City of Columbia Heights shall have the power with respect to any poles, masts, wires or other fixtures to require such alterations therein, or relocation or rerouting thereof, as the Council at any time deem necessary for the safety, health, or convenience of the public, and particularly the Council shall have the power to require the removal of such poles, masts, wires, or other fixtures bearing wires and the placing underground of all wires for whatsoever purpose used. E. The franchise and lease herein shall not be binding upon the City of Colum- bia Heights until its acceptance by the grantee within thirty(30) days after passage by the City Council. The franchise and lease herein shall be subject to the referendum powers of the people as provided by Charter. Acceptance by grantee shall be construed to be an acceptance of and consent to all the terms, conditions, and limitations contained in the ordinance granting this lease and franchise as well as the provisions of the Charter of the City of Columbia Heights. -12- IN WITNESS WHEREOF, the respective parties have caused this lease and franchise agreement to be executed in duplicate the day and year first above written. In the presence of: The City of Columbia Heights, Minne~ota By Bruce G. Nawrocki, Its Mayor and Malcolm O. Watson, Its Manager -Lessor- -Grantor- General Television, Inc. By Its -Lessee- -Grantee- STATE_OF MINNESOTA) ) SS. COUNTY OF ANOKA ) On this __day of ., 1974, before me, a Notary Public within and for said County, personally appeared Malcolm O. Watson, City Manager of the City of Columbia Heights, a Municipal corporation, and Bruce G. Nawrocki, Mayor of the City of Columbia Heights, a Municipal horporation, to me known to be the persons described in and who executed the same as their free acts and deeds, and as the free act and deed of said corporation. Notary Public STATE OF ) )SS. COUNTY OF ) On this day of , 1974, before me, a Notary Public within amd for said County, personally appeared to me known to be the person described in and who executed the foregoing :£n- strument, and acknowledged that he executed the same as his free actand deed and as the free act and deed of said corporation. Notary Public