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00-076CITY OF SHOREWOOD • RESOLUTION NO.00- o 7 6 A RESOLUTION GRANTING A CONDITIONAL USE PERMIT TO METRICOM, INC. WHEREAS, Metricom, Inc. (Applicant) is a communications carrier licensed by the Federal Communications Commission to provide telecommunications services to the Minneapolis/St. Paul metropolitan area; and WHEREAS, the Applicant has determined that, in order to provide uninterrupted telecommunications services to the South Lake area, it requires an antenna site in the easterly one-half of the City of Shorewood; and WHEREAS, the Applicant has therefore applied for a Conditional Use Permit for the construction of a communications equipment enclosure on the site of the Shorewood Southeast Area water tower and proposes to install as many as sixteen (16) communications antennae on the water tower itself; and WHEREAS, the Applicant proposes to lease from the City of Shorewood the necessary premises for the construction of a 10-foot by 10-foot communications equipment enclosure and the required space on the water tower pursuant to a long-term lease on a portion of the property legally described as: • "The South 200.00 feet of the East 200.00 feet of Lot 34, Auditor's Subd. No. 141, Hennepin County, Minnesota"; and WHEREAS, the Applicant's request has been reviewed by the City Planner, and his recommendations have been duly set forth in a memorandum to the Planning Commission dated 12 July 2000, which memorandum is on file at City Hall; and WHEREAS, the Applicant's request has been reviewed by the City Engineer, and his recommendations have been duly set forth in a memorandum to the Planning Commission dated 17 July 2000, which memorandum is on file at City Hall; and WHEREAS, after required notice, a public hearing was held and the application reviewed by the Planning Commission at its regular meeting on 18 July 2000, the minutes of which meeting are on file at City Hall; and WHEREAS, the Applicant's application was considered by the City Council at its regular meeting held on 24 July 2000, at which time the City Planner's and City Engineer's memoranda were reviewed, the minutes of the Planning Commission were reviewed, comments were heard from City Council members and staff, and approval given for the Conditional Use Permit, subject to review and completion of a satisfactory lease agreement between the City and the Applicant. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Shorewood as follows: FINDINGS OF FACT 1. That the subject water tower site is located on the Southeast Area water tower property and is presently zoned R-IA, single-family residential. The site is currently occupied by the Shorewood water tower, an equipment shelter owned by AT&T Wireless Services, and an equipment enclosure owned by Sprint Spectrum, LP. 2. That the land use surrounding the site is as follows: North and west- State Highway 7 South — Cemetery East — Two-family residential and commercial 3. That Section 1201.23, Subd. 4a. of the Shorewood City Code provides for governmental and public regulated utility buildings and structures to be constructed within the R- lA zoning district by Conditional Use Permit, subject to certain requirements of screening and landscaping when abutting a residential use in a residential district. . 4. That the Applicant's activity serves a valuable purpose in the community, and there is a need for the activity and services provided by the Applicant in order that the community be properly serviced, and that the Federal Telecommunications Act requires that local governments accommodate personal communications services within their boundaries. S. That the proposed use of the land is in accordance with the official City Comprehensive Plan and will not adversely affect the general welfare, public health and safety of the community. 6. That approval of the proposed Conditional Use Permit should be in the form of a lease agreement setting forth the rights and obligations of the parties to the Agreement. CONCLUSIONS That the Applicant's application for a Conditional Use Permit for the construction of a communications equipment enclosure as shown on Exhibit A and antenna array as shown on Exhibit B is hereby granted, subject to the provisions of City Code, Section 1201.04, Subd. l.d.(1), the recommendations of city staff, the City's telecommunication consultant, and the following additional conditions: 1. That the grant and term of the Conditional Use Permit shall comply and be subject to all of the terms and conditions set forth in a Water Tower Space Lease Agreement to be negotiated between the City and the Applicant. 2 • 2. That the site shall be restored and landscaped in accordance with a landscape plan to be approved by the Zoning Administrator. For the purpose of assuring and guaranteeing to the City that the landscape improvements to be constructed, installed and furnished by the Applicant, shall be completed according to the approved plans, the Applicant agrees to escrow with the City a cash deposit or provide the City with an irrevocable letter of credit approved by the City in an amount equal to 150% of the total cost of said improvements. Said escrow deposit or letter of credit shall remain in effect for a period of two growing seasons following the completion of the required improvements. The said escrow deposit or letter of credit may be reduced in its amount or replaced by a maintenance bond at the discretion of the City upon acceptance by the City of the improvements. • 3. That this resolution, together with the Exhibits attached hereto and the Water Tower Space Lease Agreement, be filed and recorded with the Hennepin County Recorder or Registrar of Titles within thirty (30) days of certification hereof. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 14th day of August 2000. /Z C-_ WOODY LOVE, MAYOR ATTEST: BRADLEY J. SEN, ACTING CITY CLERK/ADMINISTRATOR 3 WATER TOWER SPACE LEASE AGREEMENT • THIS WATER TOWER SPACE LEASE AGREEMENT (the Agreement) is made as of 640bej- A-, 2000 (the Effective Date), between Metricom, Inc., a Delaware corporation, 333 West Julian Street, San Jose, CA 95110 (Lessee); and City of Shorewood, a Minnesota municipal corporation, 5755 Country Club Road, Shorewood, Minnesota, 55331 (City). STATEMENT OF FACTS City owns certain real estate located at 5500 Old Market Road, in the City of Shorewood, in the County of Hennepin, State of Minnesota, legally described in Exhibit A hereto (the Premises). City owns and operates a municipal water tower on the Premises (the Tower). Lessee desires to enter into this non-exclusive lease to lease a portion of the Premises and certain space on the Tower for the purpose of installing, maintaining and operating certain equipment therein and thereon. NOW THEREFORE, in consideration of the mutual promises and covenants contained in this 40 Agreement, the parties agree as follows: 1.) TERM. (a) Initial Term. The term of this Agreement shall commence on the commencement of physical construction on the site, or October 1, 2000, whichever comes first, and continue for a period of five (5) years, through September 30, 2005 (the Initial Term), unless sooner terminated as provided for herein. (b) Renewal Term(s). The term of this Agreement shall automatically renew on the same terms and conditions herein, for up to three (3) additional periods of five (5) years each (the Renewal Terms), unless earlier terminated as provided for herein. The Initial Term and all Renewal Terms are collectively referred to herein as the "Term." 2.) DEMISE OF SPACE. City hereby lets and demises unto Lessee, and Lessee hereby receives and accepts from City, the following: (a) Site Enclosure Space. City shall provide sufficient space near the Water Tower to accommodate the construction, maintenance and operation of an equipment enclosure, pursuant to the specifications and requirements listed in Exhibit B hereto, to contain certain equipment therein. 0 (b) Tower Space. (1) Initial -- City shall provide space on the Tower for the purpose of attaching • the transmitting equipment in the locations and apparatus and facilities used in connection therewith (the Initial Equipment) set forth in Exhibit C, in the locations designated in such exhibit (the Tower Space). (2) Additional Equipment and Modifications -- Any plans to: (i) materially modify, change or replace the Equipment; (ii) materially modify or change the installation of such Equipment; (iii) change the location or frequency of all or any part of the Equipment; or (iv) add any additional equipment to the Tower, shall be submitted for City's prior approval. Items (i) through (iv), inclusive, shall hereinafter be collectively referred to as the "Additional Equipment." Lessee shall promptly, upon demand by City, pay for an evaluation performed by an independent structural engineer and/or a professional communications engineer, retained by City, as City deems necessary, to determine whether the Additional Equipment will interfere with existing or proposed operations on the Premises, and whether the Tower can structurally support the Additional Equipment. In addition, proportional adjustment to the Base Rent shall be agreed upon by the parties hereto, if additional antennae will be installed or additional space on the Tower is required to accommodate the Additional Equipment. The Initial Equipment and Additional Equipment shall hereinafter be collectively referred to as the "Equipment." • (c) Access. Subject to acts of God and other occurrences beyond the reasonable control of the parties, Lessee and its authorized agents shall have access to the Premises twenty-four hours a day, seven days a week in order to maintain and operate its Equipment thereon. Lessee shall request access to the Premises in advance, at a place designated by the City. The Building Space and Tower Space are collectively referred to herein as the "Leased Premises." 3.) RENT. (a) Base Rent. (,v i R _644rVA6 I F_l,s (1) Effective Date -- During the period from the Effective Date throug - , Lessee shall pay rent (the Base Rent) to City, for the Leased Premises, in an annualized amount of Eighteen Thousand and no/100 Dollars ($18,000) per year pro rated (based upon a 360 day year basis). The nonrefundable annual payment for such period shall be paid in equal quarterly installments in advance of each quarter starting January 1, April 1, July 1, and October 1 of each year. • 2. • (2) e un 1- of_ to , s Ise au €Fig ..ee Zh(. us and-n 0.__ D 8;0 en all pa_ ab n.--th e © r nde . h erm, Les d shall t ie-Lease renises, annrr d t usted- t-tts ti- ag ray 1 1 —advert enei-ng-en I Ja u 1, 2 and -eon o --4 W--each 'alLLe rlar -year tYtefea t , tyro in The Base Rent shall be adjusted at the rate of $60.00 per month for each antenna in excess of sixteen (16) antennae. (3) Annual Adjustments -- The annualized Base Rent shall be increased as of January 1, 2001, and each year as of January 1 thereafter, by the greater of. a. five percent (5%) of the previous year's annualized Base Rent; or b. by an amount equivalent to the increase in the Consumer Price Index for All Urban Consumers, All Cities, All Items (1984 = 100) (the CPI), 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 hereto. To determine the annual increase in Base Rent under this paragraph, the annualized Base Rent for the previous calendar 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 one year earlier. Such fraction shall be converted to a percentage equivalent, and shall be multiplied by the previous year's Base Rent. (b) Additional Rent. All taxes, charges, costs and expenses that are directly attributable to Lessee's improvements and Lessee hereby assumes, together with all interest and penalties that may accrue thereon, if Lessee fails to pay the same, and all damages, costs, expenses and sums that City may incur or that may become due by reason of any default by Lessee or failure by Lessee to comply with the terms and conditions hereof, shall be deemed to be "Additional Rent"; and, in the event of nonpayment thereof, City shall have all rights and remedies as hereinafter provided for failure to pay Base Rent when due. 4.) GOVERNMENTAL APPROVAL CONTINGENCY. Lessee's right to use the Leased Premises is expressly contingent upon its obtaining, in advance, all the certificates, permits, zoning and other approvals that may be required by any federal, state, or local authority. City shall cooperate with Lessee in its efforts to obtain such approvals and shall take no action • that would adversely affect the status of the Leased Premises with respect to the Lessee's 3. proposed use thereof. In addition, before obtaining a building permit, Lessee shall cause to be performed and pay the reasonable cost of: (i) a radio frequency interference study performed by • ar independent, qualified communications engineer selected by the City, showing that Lessee's use contemplated herein will not interfere with any existing communications facilities upon the Tower (the Interference Study); and (ii) an engineering study performed by an independent structural engineer selected by the City, showing that the Tower is able to support the Equipment, without prejudice to the City's use thereof (the Structural Stability Study). If the Interference Study reveals that there is a potential for interference that cannot be reasonably remedied by the Lessee, or the Structural Stability Study reveals that the structure is unable to safely bear the weight of the equipment, neither of such findings shall constitute a default by either party hereto. 5.) OWNERSHIP. (a) Tower. City shall at all times retain exclusive title to and interest in, and control of the Tower and the Premises. (b) Equipment. Lessee shall at all times retain exclusive title to and interest in, and control of the Equipment. The Equipment shall at all times remain the personal property of Lessee and shall not be fixtures on the Premises. 6.) USE, INSTALLATION AND NON-INTERFERENCE. Lessee shall use the Leased Premises only for and in connection with the operation and maintenance of a City - approved communications antenna facility, equipment and cabinets and uses incidental thereto for providing radio and wireless telecommunication services. The Equipment shall be installed at Lessee's sole cost and expense in a manner approved by City in advance. A government unit may be allowed to place antennae or other communication facilities on the tower regardless of potential or actual interference with Lessee's use; however, if Lessee's use of the property is materially affected, Lessee may terminate the Lease. A government unit is to include Public Safety agencies, including Law Enforcement, fire and ambulance services. Lessee shall immediately cure any such interference or, if such interference cannot immediately be cured, shall temporarily reduce power or cease the offending operations, until a cure at full power is achieved. With the exception of government units, City agrees to prevent any subsequent carrier from installing its equipment on the Premises if it is reasonably anticipated to interfere with Tenant's use of the property. 7.) MAINTENANCE AND REPAIR. (a) Tower. City shall be solely responsible for the maintenance and repair of the Premises and the Tower in a safe condition and fit for the use contemplated hereby. Except, however, any damage resulting from the acts or omissions of Lessee or its authorized agents shall be repaired by City, and Lessee shall reimburse City, upon demand, for all reasonable costs associated with such repair. Prior to issuance of a certificate of occupancy Lessee agrees to pay to the City the City Engineer's estimate to powerwash the Tower. The City shall provide Lessee with copies of invoices for any such repairs. r� 4. (b) Equipment. Lessee shall pay and be solely responsible for the maintenance and • repair of the Equipment. If Lessee fails to timely maintain or repair the Equipment as herein required, City may, but is not hereby required to, after 30 days notice to Lessee, take reasonable steps to maintain or repair the Equipment, and Lessee shall reimburse City, upon demand, for all reasonable costs associated with such repair and maintenance.. In addition, at all times during the Term, all of the Equipment installed on the Tower shall be painted the same color as the Tower, at the sole expense of Lessee. 8.) EVENTS OF DEFAULT. The occurrence of any one or more of the following events shall constitute an Event of Default under this Agreement: (a) Failure to Pay. Lessee shall fail to timely pay any amount due under this Agreement, and such failure shall continue uncured for more than thirty (30) days after - receipt of notice thereof from City; (b) Failure to Perform. Except as otherwise stated herein, Lessee shall fail to perform any other covenant of this Agreement and Lessee does not cure or reasonably commence and proceed diligently to cure such failure within sixty (60) days after receipt of notice thereof from City; or (c) Bankruptcy. During the Term: (i) Lessee shall make an assignment for the benefit of creditors; (ii) Lessee files a voluntary petition under the Bankruptcy Code of' the United States or any state statute similar thereto, or Lessee be adjudged insolvent or a bankrupt pursuant to an involuntary petition; (iii) a receiver or trustee is appointed for the • property of Lessee by reason of insolvency of Lessee and such receiver or trustee is not discharged within 60 days; (iv) any department of the state or federal government, or any officer thereof duly authorized, takes possession of the business or property of Lessee by reason of the insolvency of Lessee; (v) Lessee continues in possession without the appointment of a receiver or trustee under Chapter 11 of the Bankruptcy Code;. or (vi) Lessee is the subject of any petition or proceeding related to relief from creditors.. 9.) REMEDIES ON DEFAULT. If an Event of Default occurs, City may at any time thereafter: (a) Terminate this Agreement. Terminate this Agreement pursuant to Section 10(b) below; and/or (b) Other Available Remedies. Pursue any other available remedies at law or in equity that may appear necessary or desirable to enforce performance and observance of any obligation, agreement, or covenant of this Agreement. 10.) TERMINATION. Upon termination of this Agreement, except if terminated by reason of an Event of Default, Lessee shall be entitled to a refund of any Base Rent paid in advance. This Agreement may be terminated pursuant to any of the following provisions.: (a) By Notice. Lessee may elect to terminate this Agreement, without cause, as of the • end of the Initial Term or any subsequent Renewal Term by giving notice to the City at 5. least ninety (90) days prior to the expiration of the Initial Term or any subsequent Renewal Term. (b) By Default. Either party may terminate this Agreement as described in this • paragraph. If City or Lessee fail to perform any covenant of this Agreement and does not cure or reasonably commence and proceed diligently to cure such failure within sixty (60) days after receipt of notice thereof from the other party, the other party may at any time thereafter: (i) terminate this Agreement as of the date stated in such notice; and/or (ii) subject to the limitations of Section 26(k) herein, pursue any other available remedies at law or in equity that may appear necessary or desirable to enforce performance and observance of any obligation, agreement, or covenant of this Agreement. (c) By Failure of Governmental Approval Contingency. Lessee may terminate this Agreement if the Governmental Approval Contingency is not satisfied as a result of an adverse finding in either the Interference Study or the Structural Stability Study. (d) By Lessee. Lessee may terminate this Agreement with cause, if: (i) Lessee gives City at least sixty (60) days notice of Lessee's exercise of this provision; (ii) Lessee is not in default under the terms hereof, (iii) Lessee pays City all outstanding amounts that are due and payable hereunder as of the termination date; and: (1) Lessee is unable, after exerting all reasonable efforts, to obtain and/or maintain any license, permit or other governmental approval necessary for the construction and/or operation of the Equipment or Lessee's business; (2) The Premises is or becomes unacceptable for technological reasons • substantiated by the opinion of a radio frequency expert mutually agreed upon by the City and Lessee at the sole expense of the Lessee; (e) By CitX. City may terminate this Agreement if City gives Lessee at least sixty (60) days notice of City's exercise of this provision, and: (1) City's Council decides, for any reason, to redevelop the Premises, or any portion thereof, in a manner inconsistent with the continued use of the Leased Premises by Lessee, and/or discontinues use of the Tower for all purposes. The City will undertake its best efforts to provide notice of at least one year to Lessee; (2) An independent structural engineer determines that the Tower is structurally unsound, after considering all reasonable factors, including without limitation, the age of the Tower, damage or destruction of all or any part thereof, and factors relating to condition of the Premises; (3) After considering relevant engineering studies, City determines that a City of Shorewood Government Unit as provided for in Section 6 herein cannot find another adequate location on the Tower, or the Equipment • W unreasonably interferes with the City of Shorewood Governmental Unit's • use of the Tower; or (4) City reasonably determines that Lessee 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 City's Council. (f) By Destruction. Either party may terminate this Agreement upon thirty (30) days notice, if, as a result of any natural disaster, act of God or other occurrence beyond the control of the parties hereto, all or any part of the Leased Premises is destroyed or damaged to the extent that it is reasonably determined by City that such will be unusable for more than one hundred twenty (120) days. If this Agreement is not so terminated, City shall undertake to repair or replace the Leased Premises within a reasonable period of time, and if such damage renders the Leased Premises unfit for Lessee's use, and Lessee, by reason thereof, discontinues its use of such facilities, the Base Rent payments due hereunder shall abate in proportion to that part of the Leased Premises that is rendered unusable, until such time as the Leased Premises is again operational. 11.) INTERRUPTION. If the FCC determines that continued operation of the Equipment would cause or contribute to an immediate threat to public health and/or safety (except for issues associated with human exposure to radio frequency omissions, which is regulated by the federal government), City may order Lessee to discontinue its operation of the Equipment, or any part thereof. Pursuant to such order, such disconnection shall continue only for the period that the immediate threat exists. City shall not be liable to Lessee or any other party for any interruption of Lessee's operations at the Premises, except as may be occasioned by the willful misconduct of City, its employees or agents. During the Term, a temporary interruption or discontinuance of the operation of the Tower, Lessee's operations at the Premises, or any part or combination thereof, resulting from some occurrence beyond the reasonable control of City, shall not constitute a default under this Agreement, if the length of such interruption or discontinuance is commensurate with the seriousness of the event that caused the interruption or discontinuance. 12.) COMPLIANCE WITH LAW. (a) Lessee. Lessee shall (i) acquire, at Lessee's sole expense, all necessary federal, state and local certificates, permits, licenses, zoning and other approvals that are necessary for Lessee to operate and maintain the Equipment on the Premises, as contemplated in this Agreement, and (ii) comply with all federal, state and local laws, and regulations that are applicable to such use of the Premises. (b) Cam. Subject to Section 12(a) above, City shall: (i) acquire, at City's expense, all necessary federal, state and local certificates, permits, licenses, zoning and other approvals that are necessary for City to operate and maintain the Tower, and (ii) comply with all federal, state and current local laws, and regulations that are applicable to the • operation and maintenance of the Tower. 7. 13.) TAXES. Lessee shall be solely responsible for charges, levies, taxes, assessments and similar impositions, directly attributable to Lessee's Equipment, � �' b, or that arise • out of Lessee's use of the Tower. Lessee shall have the right to file an assessment appeal and City shall cooperate in any such appeals as reasonably requested by Lessee, all at the Lessee's !' sole cost and expense. ! 14.) UTILITIES. Lessee shall be responsible for payment and separate metering of all utility services directly with the utility providers for services consumed by Lessee's operations at the Premises. 15.) INDEMNIFICATION. Lessee and City each indemnify and hold harmless the other and their respective 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 arising out of the use and occupancy of the Leased Premises by Lessee, which may be asserted against or incurred by either party or for which either party may be liable in the performance of this Lease, except those to the extent that the same arise from the negligence, willful misconduct, or other fault of either party. Lessee shall defend all claims arising out of the installation, operation,. use, maintenance, repair, removal, or presence of Lessee's Antenna Facilities equipment and related facilities on the Leased Premises. 16.) REPRESENTATIONS AND WARRANTIES. Without limiting the scope of subparagraph 15 above, Lessee will be solely responsible for and will defend, indemnify, and hold City, 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 Premises associated with the Lessee'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, other than such materials used in the ordinary course of Lessee's business in accordance with all applicable laws and regulations. City represents that owner has no knowledge of any substance, chemical or waste on the City's property that is identified as hazardous, toxic or dangerous in an applicable federal, state or local law or regulation. 17.) INSURANCE. (a) Coverage. During the Term, Lessee shall, at it's sole expense, obtain and keep in force comprehensive general liability coverage with limits of not less than One Million Dollars ($1,000,000) each occurrence; One Million Dollars ($1,000,000) personal injury; One Million Dollars ($1,000,000) general aggregate, and One Million Dollars ($1,000,000) products and completed operations aggregate, covering Lessee's work and operations at or in connection with the Premises, and naming City as an additional insured. • CA (b) Evidence of Coverage. Not less than ten (10) days prior to the expiration of any . then current policy, Lessee shall deliver to City, evidence of insurance in a form reasonably acceptable to City. Such policy shall also provide that City must receive thirty (30) days' notice of any expiration or cancellation thereof, and shall be issued by a company reasonably satisfactory to City. Lessee shall notify City at least thirty (30) days prior to any material change in the insurance coverage. (c) Landlord's Insurance. City shall maintain commercial general liability insurance against liability for personal injury, death or damage arising out of City's use or management of the Structure by City, its employees or agents, with combined single limits of not less than $600,000. City shall also maintain fire and extended coverage Insurance insuring the Structure for its full insurable value (subject to reasonable deductibles). (d) Waiver of Subrogation. Notwithstanding anything in this Lease to the contrary, each party releases the other party from all liability, whether for negligence or otherwise, in connection with any loss covered by any policies which the releasing party carries with respect to such property or is required to be carried hereunder, but only to the extent that such loss is collectible under such insurance policies. Any policy required to be obtained pursuant to this lease shall contain a waiver of subrogation in favor of the party hereto. 18.) ASSIGNMENT. This Agreement and Lessee's rights and duties established. hereunder, may be sold, assigned, or transferred at any time by Lessee to Lessee's parent,. • affiliate, or subsidiary, without notice to or the consent of City. Subject to the foregoing sentence, Lessee shall not assign this Agreement or any of the rights or duties established hereunder without the prior written consent of City. City's consent shall not be unreasonably withheld or unduly delayed. For purposes of this section, an "affiliate" or "subsidiary" means an entity that owns greater than a fifty percent (50%) interest or any entity which is controlling, under the control of or controlled by a common entity. City hereby consents to the assignment of its rights under this Agreement, as collateral, to any entity that provides financing for the purchase of the equipment to be installed at the Leased Premises. 19.) . CONDEMNATION. (a) Entire Leased Premises. If, during the Term, the entire Leased Premises shall be taken as a result of the power of eminent domain, condemnation proceedings, or other like proceedings (the "Proceedings"), this Agreement and all right, title, and interest of Lessee hereunder shall cease and come to an end on the date of taking of possession pursuant to the Proceedings. (b) Portion of the Leased Premises. If, during the Term, less than the entire Leased Premises shall be taken by the Proceedings, this Agreement shall, upon taking of possession pursuant to the Proceedings, terminate as to the portion of the Leased Premises so taken, and either party may elect to terminate this Agreement with respect to the remainder of the Leased Premises, as of the date of taking such possession, by giving • the other party at least thirty (30) days notice. If neither City or Lessee elects to terminate a this Agreement as to the remainder of the Leased Premises, this Agreement shall continue in full force and effect, but the Base Rent shall be reduced pro rata in accordance with the percentage of value of the Leased Premises so taken compared with the total value of the Leased Premises immediately prior to such taking. Nothing herein contained shall affect Lessee's obligation to pay in full the Additional Rent. City shall, however, at City's sole cost and expense, restore that portion of the Leased Premises not so taken to a complete architectural unit for the use and occupancy of Lessee. (c) Lessee's Share of Condemnation Award. If all or any portion of the Leased Premises is taken, Lessee shall not be entitled to any portion of any payment or award made in connection therewith. Lessee hereby expressly waives any right or claim to any portion of such award or payment. Lessee shall, however, have the right to claim and recover from the condemning authority, but not from City, such compensation as may be separately awarded or recoverable by Lessee on account of any and all damage to Lessee's business, equipment and relocation costs and expenses. 20.) QUIET ENJOYMENT. Except as otherwise provided for herein, Lessee shall have quiet and peaceable possession of the Leased Premises throughout the Term, and City will not intentionally disturb Lessee's occupancy thereof as long as Lessee is not in default hereunder. Notwithstanding the foregoing, Lessee's right to quiet enjoyment shall not apply to events beyond the control of City, or interference during periods of normal and extraordinary repairs and maintenance of the Premises or Tower by City. 21.) REMOVAL AND SURRENDER.' Unless otherwise agreed to in writing by City, within a reasonable period of time, not to exceed sixty (60) days, after the expiration or • earlier termination of the Term, Lessee shall, at Lessee's sole expense, remove all of the Equipment from the Premises, and restore and surrender the Premises to City in good condition without damage thereto, reasonable wear and tear and casualty excepted. If Lessee fails to timely remove as required herein: (i) the Equipment shall be deemed abandoned and become the property of City (subject to the interests of other persons or entities disclosed in writing to City prior to the date of hereof); (ii) City may remove and store Lessee's Equipment at Lessee's sole cost and expense; and (iii) City may take reasonable steps to remove the same and restore the Leased Premises, and Lessee shall be responsible for, and pay upon demand by City, all reasonable costs associated with such removal and restoration. 22.) BINDING EFFECT. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, assigns and successors in interest. 23.) LIENS. Lessee shall not permit any mechanics or other liens to be filed or placed against the Premises or any part thereof by reason of work, services, materials supplied to or claimed to have been supplied to Lessee, and if such lien is filed against the Premises at any time, Lessee shall cause the same to be discharged of record by paying the amount claimed to be due, shall deposit with the court an amount equal to the amount claimed, or shall post bond for the same, within thirty (30) days of the date of such filing. If Lessee shall fail to discharge such lien or to so deposit such amount within such period, then, City may, but is not hereby required to, 10. • take reasonable steps to discharge such lien, and Lessee shall reimburse City, upon demand, for all reasonable costs incurred by City in connection with such discharge. • ID 24.) ADDITIONAL BUILDINGS. City shall have the right to permit the construction of other buildings and equipment on the Premises, pursuant to the specifications and requirements set forth in Exhibit B, and Lessee shall permit such buildings to be placed immediately on the Premises. 25.) NOTICE. Any notice, election, request, or other communication herein required or permitted to be given or served shall be delivered to the other party hereto (with receipt obtained therefor), or mailed by United States certified mail, return receipt requested, postage prepaid, properly addressed to such other party at the following address: (a) If to Lessee: Network Real Estate Metricom, Inc. 333 West Julian Street San Jose, CA 95110 with an additional copy to: • (b) If to City: • City of Shorewood 5755 Country Club Road Shorewood, Minnesota 55331 Attention: Bradley J. Nielsen, City Administrator with an additional copy to: Larkin, Hoffman, Daly & Lindgren, Ltd. 1500 Norwest Financial Center 7900 Xerxes Avenue South Bloomington, Minnesota 55431 Attention: Timothy J. Keane, City Attorney Unless and until changed by notice as herein provided, notices and communications shall be addressed to the above -listed addresses. Each such mailed notice or communication shall be deemed to have been given to, or served upon the party to which addressed, (i) on the date the same is personally delivered or (ii) on the date set forth on the certified receipt. All payments required by this Agreement shall be made to City at the address designated above, or as may be hereafter designated. il. 26.) MISCELLANEOUS. (a) Applicable Law. The parties acknowledge that this Agreement is subject to the . provisions of applicable federal and state laws and regulations. Any obligation, duty or provision under this Agreement that conflicts with any provision of applicable federal or state laws or regulations, is to that extent void. This Agreement has been made, and its validity, performance and effect shall be determined in accordance with the internal laws of the State of Minnesota. (b) Waiver. The waiver by either party of a breach or violation of, or failure of either party to enforce, any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach or violation or relinquishment of any rights hereunder.. (c) Entire Agreement and Modification. This writing represents the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all previous agreements of whatever nature between the parties with respect to the subject matter. This Agreement may not be altered or amended except by an agreement in writing signed by both parties. (d) Headings; Exhibits. The headings of sections in this Agreement are for convenience only; they form no part of this Agreement and shall not affect its. interpretation. The Statement of Facts contained herein, and all schedules, exhibits, addenda or attachments referred to herein are incorporated in and constitute a part of this Agreement. (e) Severability. If any part of this Agreement is invalid or unenforceable under • applicable law, that part shall be ineffective only to the extent of such invalidity or unenforceability without in any way affecting the remaining parts of the provision or this Agreement. (f) Sublet/Sublicensing Prohibited. Subject to Section 18, Lessee shall not sublease, license or otherwise make the Leased Premises available to others for use in any manner. (g) Construction. Both parties hereby acknowledge that they participated equally in the negotiation and drafting of this Agreement and that, accordingly, no court construing this Agreement shall construe it more stringently against one party than against the other. (h) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. (i) Trade Term Usage. Words used in this Agreement shall be given the meanings that they normally possess in the wireless communications industry, unless otherwise specifically defined herein. • 12. 0) Recording. At the option of either party, this Agreement, or a mutually agreeable Memorandum hereof, may be recorded in the real property records of the county where • the Premises is located. C, • (k) Limitations on City's Liability. Notwithstanding any provisions to the contrary contained herein, if City terminates this Agreement other than as provided in this Agreement, or breaches this Agreement, City's liability for damages to Lessee as a result thereof, shall be limited to the actual and direct costs of Equipment removal, relocation and repair, and shall specifically exclude any recovery for value of the Lessee's business as a going concern, future expectation of profits, loss of business or profit, or related damages to Lessee; provided, however, this provision shall not prevent Lessee from maintaining an action to seek equitable relief. (1) Authority. City represents and warrants that City has full authority to enter into and sign this Agreement and has good and marketable title to the Owner's Property. (m) Alterations. The Lessee shall make no material alternations to the equipment, facilities and antenna as depicted in Exhibits B and C without the written consent of the City. (n) Laws. This Agreement shall be construed in accordance with the laws of the State of Minnesota. Each party agrees to furnish to the other, within (10) days after request, such truthful estoppel information as the other may reasonably request. 13. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated on page 1 hereof. LESSEE: Metri , By: Its.. A"`, P"RACE OPS. STATE OF ) ss. COUNTY OF ) CITY: City of S 00 By: Its: Mayor By:. Its: City Adm' •ator The foregoing instrument was acknowledged before me on _, 2000, by , the of Metricom, Inc., a Delaware corporation, on behalf of corporation. Notary Public STATE OF ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me on �i._ r', 2000, by Woody Love and Bradley J. Nielsen, the Mayor and City Administrator, respectively, of the City of Shorewood, a Minnesota municipal corporation, oj..b�hJalf of the,, orp�.or tiopn. THIS INSTRUMENT WAS DRAFTED BY: LARKIN, HOFFMAN, DALY & LINDGREN, Ltd. 1500 Norwest Financial Center 7900 Xerxes Avenue South Bloomington, Minnesota 55431 Telephone: (612) 835-3800 (TJK) #611302 v1 14. Notary Pu ` - ' eYe ;MELA J. NELLINC- NOTARY PUBLIC MINNESOTA ' "° Commission Expires Jan. 31, 2M5 Approved As To Form ROW Legal Department By: L,� Date: '°j^ .30, 1,0,00 • Is • • • 0 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California } } County of Santa Clara) On October 4, 2000, before me, Anthony E. Rodriguez, Notary Public, personally appeared Dick Au , personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. ANTHOW E RODRM Z WITNESS my hand and official seal coon 0 119U" Nofty MAC - CC"W to Santa ciara county My Comm. 6�ies w9 31.?�2 Place Notary Seal Above Signat, f ary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment to another document Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity (ies) Claimed by Signer Signer's Name: ❑ Individual ❑ Corporate Officer ❑ Partner - ❑ Limited ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: ❑ General Number of Pages: Top of Th EXHIBIT A Attached to and Forming'a part of the is Water Tower Space Lease Agreement between Metricom, Inc., as Lessee and City of Shorewood, as City Legal Description - Premises: "The South 200.00 feet of the East 200.00 feet of Lot 34, Auditor's Subdivision No. 141, Hennepin County, Minnesota." • • #611302 vl EXHIBIT B • Attached to and Forming a part of the Water Tower Space Lease Agreement between Metricom, Inc., as Lessee and City of Shorewood, as City Proposed Equipment Enclosure • txsn w SPW CMvOuW is aJR1EDETNON& —, w 2' W CONOWT oWNG FE= raw MEN= m uewa verRK= r-W x r-.e la' c 1a' LEASE AR 1 1 °C&"nW ASPK-LT t ACM RC10 1 1l 1 1 1 1 BLOW EtErtWAL-.-I - CARM e1 CONOW aRam � oats w COWOW 1 ` ` ELa7w.x POINT ` EXHIBIT C Attached to and Forming a part of the Water Tower Space Lease Agreement between Metricom, Inc., as Lessee and City of Shorewood, as City Equipment to be placed on the Towers, and Location(s) thereof ,P RAVM »M#" ".) • • 400MG TANK ELEVATION