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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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.
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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.
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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