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HomeMy WebLinkAbout104-90 Ordinance CORRECTED RECORD OF ORDINANCES Dayton Legal Blank Co, Form No. 30043 -~--~_._-,- --~._,------",-~ -------------"---------~--_._..._--_._- -~-----_._._._-,--,-_. ~~-'----r__ I Ordinance NO'nl~4...90 Jcorrected) Passednu ., uuuuun 19n =,==~,=:==c:==_ ;i"'=c-,:,:==--=-=,--- ---~----~-----~._--~--------~------ ---.-- - ----------..---- ----~-_..._------- II II II AN ORDINANCE AUTHORIZING THE CITY i! MANAGER TO NEGOTIATE AND SIGN A MUTUALLY BENEFICIAL AGREEMENT WITH CELLULAR ONE AND TO APPROVE THE USE OF AVERY PARK FOR A CELLULAR TELEPHONE CELL SITE, AND DECLARING AN EMERGENCY WHEREAS, the Cellular One cellular telephone company has proposed to lease the summit of the Avery Road Water Tower and land adjacent to said tower; and WHEREAS, a new cell location is needed in order for Cellular One to provide adequate cellular phone service to many of Dublin's residents and businesses; and WHEREAS, it has been determined that the new cell location, on the top of the City's water tower in Avery Park will in no way adversely affect the performance or security of the City's water system; and WHEREAS, Cellular One has submitted a proposed lease agreement for space in Avery Park for a cell site; and WHEREAS, the current zoning ordinance does not permit communication towers over 35 feet in height on residentially zoned land or in a public park; and WHEREAS, Cellular One's cell service area is so restricted by the technical requirements of its system that a cell is clearly needed within the immediate area of the park; and, WHEREAS, the alternate location proposed for a free-standing tower by Cellular One, outside Dublin is a more visible and generally a less desirable location; and, WHEREAS, Council may vary its own ordinances; NOW, THEREFORE, BE IT ORDAINED by the Council of Dublin, state of Ohio, 7 of the elected members concurring: Section 1. That the City manager is hereby authorized to enter into a lease agreement with Cellular One for space in Avery park when he determines that the terms and conditions of said lease are in the best interest of the City of Dublin. In no case shall the terms and conditions of said lease agreement be less favorable to the City than those currently proposed by Cellular One. Section 2. That this Ordinance is declared to be an emergency measure necessary for the preservation of the public health, safety or welfare of the City, the reason for such emergency being the necessity to provide an adequate means of communication to many of Dublin's residents, businesses and emergency services; and, therefore, this Ordinance shall take effect and be in force immediately upon its passage. Passed this 19th day of November , 1990. i.~~ .~yor - Pre' ing Officer ii Attest: IU~1o~'~~ ii IClerk of 0 cil I' :1 " 'I Sponsor: Director of Development I II I' " " Ii ' hereby certify that copies of this Ord:nancc/~~6h:Jti6" were posted in the Ii City of Dub!:n in atcordance with Sect:on 731.25 of the Ohio Revised Code. Ii ~~ f/f;f'~' / Clerk of ound, Dublin, Ofiio .. ' ADMINISTRATIVE REPORT TO: Members of City Council FROM: Tim Hansley, City Manager DATE: November 16, 1990 SUBJECT: Proposed Lease of Portion of Avery Park * * * Initiated By: Terry Foegler and Adore' Kurtz, Department of Development Suuonary At the November 5, 1990 meeting of the City Council, an affirmation of concept was, given for the co-location of a cellular telephone cell with City emergency antennae at the Avery Road Water Tower. It was the sense of Council that several issues should be addressed and several concerns mitigated. The lease attached to this report is the result of a meeting between the City Manager, representatives of the administration, the Law Director and representatives and counsel for Cellular One and attempts to produce a lease acceptable to both landlord and tenant. With the lease received in the November 5th Council packet as a starting point, the attached lease was generated. A comparison of some of the lease provisions are outlined below: Lease Agreement Original Proposal Current Proposal 50 years term 35 years term 10 years renewal interval 5 years renewal interval Exclusive Non-exclusive $20,000 cash payment 20,000 cash payment $500 monthly rent with $550 monthly rent with 1/2 CPI increments annually CPI increments annually Only Cellular One may terminate Both parties may terminate No security deposit $5,000 security deposit No notice of new towers 90 day notice of towers within a 3 mile radius No restrictions on Manley Deed restrictions on Road site Manley Road site MEMBERS OF CITY COUNCIL November 16, 1990 Page Two Secondary Agreement Original Proposal CUrrent Proposal $20,000 payment $20,000 payment 6 portable and 6 portable and 6 6 mobile phones mobile phones $5,000 donation every 5 years to Parks Department Staff believes that the financial package coupled with the concessions of Cellular One with regard to the City's concern about tower proliferation is an outstanding proposal far superior to those negotiated by other municipalities and townships. Cellular One has consistently preferred the Avery Road site to the location on Manley Road and will pay a premium of at least $120,000 to locate at Avery Road even when the $225,000 cost of 10875 Manley Road is factored in. The Law Director concurs with the staff in this matter. Staff believes the lease is essentially ready for Council affirmation. Action Recommended: That the City Manager be authorized to enter into and sign a Mutually Beneficial Agreement with Cellular One and that the Council vary Ordinance 62-89 to permit a cell site to be placed on top of the City-owned Avery Road Water Tower. Attachments THier ...--:-:..;.~....,~'-""--"~~ ...----::.~,.."":'.....; ,i~I-' . rl ; ,i ~' r~ [I" [" II \" \., , , t, .J) I, ,I, I' , LAW OFFICES ~J r-~~~~~ :; J i RICHARD CONNOR RILEY & ASSOCIATE I ---,_...1 j CiTY elF DUBLiN _.....-...,..----~ RICHARD CONNOR RILEY 14299 SOUTH WOLF ROAD ORLAND PARK, IL 60462-1932 OF COUNSEL AREA CODE 708 RICHARD C, RILEY TELEPHONE 403-1 890 October 31, 1990 FACSIMILlE 403-2094 NANCY E. LEONARD LEGAL ASSISTANT Ador'e Flynn Kurtz Development Review Specialist/Code Enforcement Officer City of Dublin 5131 Post Road, Suite #105 Dublin, Ohio 43017 Re: Ameritech Mobile Communications, Inc. (AMCI) Cellular Onel Avery Park Water Tower Dear' Ms. Kurtz: Ameritech Mobile Communications, Inc. , (AMCI) has been informed by counsel for Cellular One of Columbus that Cellular One is proposing to locate cellular equipment on the water tower in Avery Park in the City of Dublin. AMCI appreciates the opportunity to express their views on this proposal. As you know from our conversations and from statements made in public before the Planning and Zoning Commission, AMCI has consistently encouraged cooperation between municipalities and the cellular telephone industry. Accordingly, AMCI supports the City of Dublin entering into an agreement with Cellular One allowing them to lease a portion of the Avery Park water tower for the purpose of installing transmitting and receiving antennas and constructing the necessary equipment shelter. Although AMCI has no current plans to utilize the Avery Park water tower, they request that the lease between the City of Dublin and Cellular One allow for the possible future use by AMCI of said water tower n~cognizing that their use would have to be compatible with Cellular One's installation. Thank you for your continued interest and cooperation. Very truly yours, RICHARD CONNOR RILEY & A ~~ Richard Connor -Riley RCR/nel cc: John K. Cusack, Director of External Affairs, AMCI Sally W. Bloomfield, Attorney for Cellular One ,7'~"-i"~\ \D) r~ aJ ~ \LJL.L;! ,\1 ! i LAW OFFICESlJU l NOV - 5 I99J : l~ RICHARD CONNOR RILEY & ASSOCIATE _ ----1 't . CITY OF DUBLIN ' RICHARD CONNOR RILEY 14299 SOUTH WOLF ROAD ORLAND PARK, IL 60462-1932 OF COUNSEL AREA CODE 708 RICHARD C, RILEY TELEPHONE 403-1890 October 31, 1990 FACSIMILIE 403-2094 NANCY E, LEONARD LEGAL ASSISTANT Ador'e Flynn Kurtz Development Review Specialist/Code Enforcement Officer City of Dublin 5131 Post Road, Suite #105 Dublin, Ohio 43017 Re: Ameritech Mobile Communications, Inc. (AMCI) Cellular One/ Avery Park Water Tower Dear Ms. Kurtz: Ameritech Mobile Communications, Inc., (AMCI) has been informed by counsel for Cellular One of Columbus that Cellular One is proposing to locate cellular equipment on the water tower in Avery Park in the City of Dublin. AMCI appreciates the opportunity to express their views on this proposal. As you know from our conversations and from statements made in public before the Planning and Zoning Commission, AMCI has consistently encouraged cooperation between municipalities and the cellular telephone industry. Accordingly, AMCI supports the City of Dublin entering into an agreement with Cellular One allowing them to lease a portion of the Avery Park water tower for the purpose of installing transmitting and receiving antennas and constructing the necessary equipment shelter. Although AMCI has no current plans to utilize the Avery Park water tower, they request that the lease between the City of Dublin and Cellular One allow for the possible future use by AMCI of said water tower recognizing that their use would have to be compatible with Cellular One's installation. Thank you for your continued interest and cooperation. Very truly yours, CONN R RILEY & A ~ Riley RCR/nel cc: John K. Cusack, Director of External Affairs, AMCI Sally W. Bloomfield, Attorney for Cellular One . . ...il**"'~ City of Columbus Public Utilities and Aviation Department Jf- w.\l.",bU',~, ... Mayor Dana G, Rinehart l.... G, Raymond Lorello, Director il * ~ ~ ~~~ t'>/':(~f1}'F'l:"t 3 April 1991 City of Dublin, Ohio Columbus Cellular Telephone Company 6665 Coffman Road 350 East Wilson Bridge Road Dublin, Ohio 43017 Worthington, Ohio 43085 Gentlemen: RE: APPROVAL OF INSTALLATION ON AVERY ROAD WATER TOWER, DUBLIN, OHIO This wi 11 acknowledge receipt of your request for approval in the above-captioned matter as set forth in the correspondence of John C. Rosenberger, Esq., to the undersigned, dated March 14, 1991. The March, 1974, Contract between the City of Columbus, Ohio, and the Village (now City) of Dublin, Ohio, would not appear to requi re our approval under these circumstances. Nevertheless, pursuant to and solely as an accommodation to your request the City of Columbus hereby approves the proposed installation. It is an express condition of such approval that it s ha 11 not create or be construed as creating for the City of Columbus any liability or obligation to any party or person in connection with such installation. Pl ease execute a copy of thi s 1 etter acknowl edgi ng your agreement wi th thi 5 condition. Very t~. ~~YMO LORE O. DIR CTOR PUBLIC UTILITIES & AVIATION DEPARTMENT AGREEMENT CONFIRMED CITY OF DUBLIN, OHIO and By ~~ By () Its CITY ~,H}!rC;[R Its GRL:R DUBLii..., OtHO pc: Daniel Drake, City Attorney James P. Joyce, P.E., Deputy Director John R. Doutt, P.E., Administrator Utilities Complex Municipal Electric Plant Airports Division 910 Dublin Road, Columbus, Ohio 43215.1116 2500 Jackson Pike 614/645-3147 Port Columbus International Airport 614/239-4000 Columbus, Ohio 43223 FAX 614/645-3654 FAX 614/239-4066 Director's Otflc. 614/645-6141 4600 International Gateway Electricity Division 614/645.6371 Columbus, Ohio 43219 Sew.rag. and Drainage Division 614/645.7175 Water Division 614/645-7020 Bolton Field Airport 614/645-3634 FAX 614/645.3601 2000 Norton Road, Columbus, Ohio 43226 '-L.._ "'!..... _~ "_1.._......_:_ __ ~_.._I "'___....._:... 1::-..._I......,l'!>p . . LAW OFFICES BRICKER & ECKLER JOHN W. BRICKER (1..3.'8..' 100 SOUTH THIRD STREET ,JOHN ECKLER cRETIREDI BRUCE G. LYNN KAREN ~UELLLR MOORE COLUMBUS, OHIO 43215-4291 USA "'''RABt..E PALMER CAROL L. BAILEY WIWAM H. LE1GHNER STE:VEN R. KERBER ANNE MARtE SF'ERFtA JAMES.J. HUOHES III CHAM.ES F'. GLANCER CHARLES H. WALKER l.. BRENT MILLER DIANE A. RICHARDS JAMES,J. HUGHES MICHAEL A. MESS SCOTT w. TAEBEL HARRY WRIGHT IV ,JAMa S. MONAHAN CHARLES H. WATERMAN III TELEPHONE (614) 227-2300 SUE 'NYSKIVER YOUNT JAMES F. FLYNN EI..SERT J. KRAM JAMES A. RUTLEDGE CATHERINE M. BAUARO CAM.TON E. AMMONS RICHARD O. ROGOVlN RANDALL E. Io400RE F'AX (6'4) ZZ7-Z390 GORDON F'. lITT KIRK D. TRAMMEL EDWARD A. MA TTO JOHN W. COOK III MARK..I, PALMER PRtCE D. FINLEY MICHAEL~. SUWVAN ,JOHN W. PHllUPS JERRY ORJrotES ALLEN co."" W. ~RCELL THOMAS E. WORKMAN RICHARD T. TAPS - MARK C. POMEROY H. AANOYBAHK SALLY W. BLOOMFIELD CHARL&5 H. f14cCRE.'RY III ANDREW A. FOlKERTH BRUCE A. f14cLENNAN STEPHEN K. YOCER ,JAfI4ES P. BURNES WRITER'S DIRECT DIAL NUMBER FRANK L. MERRILL STEPHEN H. .JOHNSON CHARLES P. FREIBURGER ELISABETH A. SOUEGUA OUINnN F'. UNDSIl4ITH TRACY' L. BRYSON ..JAMES A. READE:Y ..J. f14ICHAEL KOTA JotARK A. ENGEL DAAt.ENE A. GERSON NICHOLAS A. PITTNER KENNETH C. ..JOHNSON .JEANNE.... f14ARTOGUO RICHARD F. KANE DAVID K. CONRAD Bt:TSY A. $WIFT .JOHN~. BIAATH. ..JR. RICHARD S. LOVERING WILLlAM w. SPENCER f14ICHAEL S. HOLMAN DIANE M. SIGNORACCI (614) 227-2338 TOO H. FRIEDMAN RICHARD C. SIMPSON REBECCA C. PRINCEHORN .JACK ROSATI. .JR. ..JOHN P. BEAVERS PERCY SQUIRE SUSAN E. GEARY DAVID G. BAKER GRETCHEN A. McBEATH SYLVIA LYNN GIWS RICHARD C. PFEIF'F'ER. ..JR. CRAIG A. HADDOX March 14, 1991 KAREN L NEUfI4AH OF' COUNSl:L MICHAEL.J. RENNER JotAATHA POST BAXTER .JAfI4ES L.. ZAFRIS ..JOSEPH S. GILL ..JOHN C. ROSENBERGER THOMAS E. DUTTON KIRK N. GUY tOGAll'L. UNOLEY' .J ERRY E. NATHAN CHARLES O. SMITH .JOYCE B. UNK MARSHALL. L. LERNER f14ARY W. CHRISTENSEN DARLENE E. CHAVERS RETlMl) RANDOLPH C. WISEfI4AN ROBERT C. RAFFERTY MEUSA O. STONE RICHARD C. PtCKCTT DONALe R. KELLeR TIMOTHY .J. OWENS BERNAOETTEJ.aO~ CLAYTON C. HOSKINS Mr. Raymond Lorello Director Department of Public Utilities and Aviation 910 Dublin Road Columbus, Ohio 43215 Re: Approval of installation on Avery Road Water Tower, Dublin, Ohio Dear Ray: This Firm has the pleasure of representing Columbus Cellular Telephone Company, more commonly known as Cellular One (hereinafter "Cellular One II ) . Cellular One and the City of Dublin, Ohio (hereinafter "Dublin") have concluded the negotiation of an Option to Lease and Lease Agreement (hereinafter "Lease Agreement") which will permit Cellular One to install on the Avery Road water tower certain cellular telephone facilities. As you know, the Avery Road water tower was constructed by and is part of the Dublin water system. The City of Columbus, Ohio (hereinafter "Columbus") furnishes to Dublin surplus water pursuant to a March, 1974, Contract (hereinafter "Water Contract II ). The Water Contract requires, under some circumstances, the approval of the Columbus Director of Public Service. I am advised that with regard to the Water Contract, the rights and responsibilities of the Director of Public Service are now vested in you as the Director of Public Utilities and Aviation. '> . BRICKER & ECKLER Mr. Raymond Lorello March 14, 1991 Page 2 The Lease Agreement is contingent upon the satisfaction of certain items set forth therein. Two of those items involve Columbus. In the Lease Agreement at Subsection l7(e)(i) on page 13 appears the following: "Written approval of the Columbus Division of Water shall also be required due to the fact that the Dublin Water Supply System is part of the Columbus Water System. Further, such approval is mandated by Tenant's contract with the City of Columbus." In the Lease Agreement at Subsection l7(e)(ix) on page 14 appears the following: "Approval of construction plans and specifications by Tenant, Landlord, and City of Columbus, Division of Water." While my review of the Water Contract discloses no express provision which would require the approval of Columbus under these circumstances, Dublin has required, as demonstrated by the quoted provisions, the approval of Columbus. The purpose of this correspondence is to respectfully request such approval. To assist you in responding to such request, please find the enclosed: 1. A copy of the executed Lease Agreement; - 2. A copy of the Water Contract; 3. Drawings entitled "Cellular One Cell Site CS-223", prepared by Burgess and Niple, Limited, dated February 27, 1991, and comprised of sheets 1-5; 4. Drawings entitled "Waveguide Configuration Thru Drywall and Drywall Extension", prepared by Cellular One and marked Drawing No. DWD-02-01A; 5. Drawings entitled "Coaxial and Eliptical Runs Inside Tank Above Condo Dome", prepared by Cellular One and marked Drawing No. DWD-OI-01B; 6. Drawings entitled "Antenna Platform", prepared by Pitt- Des Moines, Inc., and marked Drawing EIAB and Drawing EIB; '. J # BRICKER & ECKLER Mr. Raymond Lorello March 14, 1991 Page 3 7. Specifications entitled "Painting Instructions", prepared by Pitt-Des Moines, Inc., and comprised of sheets 1 and 2 with an attachment of sheets 1-4; and 8. Calculations entitled "Antenna Platform", prepared by Pitt-Des Moines, Inc., and comprised of page i and pages 6.0 - 6.23. We greatly appreciate your attention to our request. Please feel free to contact me with your questions. Rosenberger JCRjdsc Enclosures copy: Daniel Drake, Esq. John Murphy Terry Solt Sally Bloomfield, Esq. 53.45 . DRAFT AGREEMENT BETWEEN CITY OF DUBLIN AND CELLULAR ONE OF COLUMBUS This AGREEMENT is made this day of November, 1990, by and between THE CITY OF DUBLIN, OHIO ("city"), its successors and assigns, having an address at 6665 Coffman Road, Dublin, Ohio and COLUMBUS CELLULAR TELEPHONE COMPANY ("Cellular One"), its successors and assigns, having an address at 350 East wilson Bridge Road, worthington, ohio 43085. In consideration for the city's agreement to enter into an option to Lease and Lease Agreement dated , 1990 ("Lease") with Cellular One for the use of the water tower located in Avery Park, Dublin, Ohio and for its cooperation in assisting Cellular One to obtain the appropriate local governmental approvals, Cellular One and the City do hereby agree to the following: 1. Cellular One will provide rent-free to the City six (6) cellular mobile telephones (hardware only) and six (6 ) portable cellular mobile telephones (hardware only). Said telephone equipment will only be delivered after the Commencement Date, if any, as defined in the Lease. Cellular One will also pay the City twenty thousand dollars ($20,000) which the City may use to pay for air time for the cellular telephones, or use for whatever other purpose it chooses. 2. The telephone must be used solely on the Cellular One, its successors and assigns, system. Cellular service ("airtime") and the monthly set-up fees will be at the City's sole cost and expense and will be predicated upon the subscriber options that ". AGREEMENT dated November , 1990 city of Dublin and Cellular One of Columbus Page 2 the city selects for each telephone. The cellular telephones will be immediately returned to Cellular One by the city in good working condition upon any non-use thereof on the Cellular One system, and/or upon any non-use thereof for a period to two ( 2 ) consecutive months, and/or upon the non-payment of any invoices rendered to the City from Cellular One for the use thereof. 3. In addition, Cellular One will make donations totalling five thousand dollars ($5,000) in currency or in-kind contributions to the City's Department of Parks and Recreation ("Bureau of Parks") during each five (5) year period of the Lease between the city and Cellular One involving the Avery Park water tower. Cellular One will collaborate with the City's Department of Parks and Recreation with respect to the projects that the Department of Parks and Recreation desires to be funded by the five (5 ) year contributions of Cellular One. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective and duly authorized representatives. CITY OF DUBLIN, OHIO By: Timothy C. Hansley City Manager CELLULAR ONE OF COLUMBUS By: Donald B. Miller President & General Manager OPTION TO LEASE AND LEASE AGREEMENT THIS LEASE AGREEMENT, made the day of , 1990, by and between THE CITY OF DUBLIN, OHIO, its successors and assigns, having an address at , (hereinafter referred to as "Landlord") , and COLUMBUS CELLULAR TELEPHONE COMPANY, its successors and assigns, having an address at 350 East Wilson Bridge Road, Worthington, ohio 43085, (hereinafter referred to as "Tenant"). WIT N E SSE T H: WHEREAS, Landlord is the owner of certain premises located in the city of DUblin, Franklin county, State of Ohio, upon which Landlord has constructed a water tower ("Tower"), said premises being more particularly described on Exhibit A attached hereto and made a part hereof (hereinafter the premises and Tower collectively being referred to as the "Premises"); and WHEREAS, Tenant is involved in cellular mobile communications, regulated by the Federal Communications commission and desires to lease from Landlord a portion of the Premises as more particularly described on Exhibits B and B-1 attached hereto and made a part hereof (hereinafter referred to as the "Leased Area") and desires to lease an easement(s) for ingress and egress to and from the Leased Area and for the installation, maintenance, use, operation and replacement of utilities to serve the Leased Area over, under and through that portion of the Premises described in Exhibit B- 2 attached hereto and made a part hereof, hereinafter referred to as the "Easement Area") (the Easement Area and the Leased Area being collectively hereinafter referred to as the "Demised Premises"), all for the purpose of installing and constructing transmission and receiving and related facilities as more particularly set forth herein and described on Exhibit C attached hereto and made a part hereof (hereinafter referred to as "Tenant's Facility"); and WHEREAS, the execution of this Lease and the execution and granting of the easements as contemplated herein has been authorized by Dublin City Council Ordinance No. , passed , 1990, by the Dublin City council, said Ordinance being incorporated herein as if fully rewritten herein. NOW, THEREFORE, in consideration of the premises and the mutual promises and benefits contained herein, the parties hereto hereby agree as follows: PREMISES AND TITLE l. (a) Landlord hereby leases the Demised Premises to Tenant. Landlord covenants and warrants that ( i ) as of the date hereof, Landlord holds good and marketable fee simple title to the Premises; (ii) Landlord has full authority and power to enter into this Lease; and (iii) so long as this Lease is in effect and Tenant is not in default, Tenant shall, at all times during the continuance hereof, have quiet, continuous, peaceable and undisturbed possession and enjoyment of the Demised Premises and rights-of-way granted herein, free from the claims of Landlord and all persons claiming under, by or through Landlord, and free from the claims of all persons through or under whom Landlord claims, subject to the terms and conditions of this Lease. (b) Landlord agrees to lease or use any other areas of the Premises for placement of communications facilities only if prior to the placement of such communications facilities Tenant agrees in writing that the new leases and/or uses will not interfere with Tenant's use of Tenant's Facilities. (c) If there presently and/or hereafter exists a mortgage lien(s) on the Premises, Landlord shall obtain from such mortgagee(s) and deliver to Tenant, a "non-disturbance" letter in substantially the form marked Exhibit A-1 attached hereto and made a part hereof, which letter must be acceptable to counsel for Tenant. (d) Tenant shall order, at its sole cost, a Commitment for Leasehold Title Insurance with respect to the Demised Premises. If said Commitment discloses any liens, defects of and/or encumbrances on title ("defects") which are not acceptable -2- to counsel for Tenant, Tenant shall notify Landlord of said defects and Landlord shall have thirty (30) days from the date of Tenant's notice to correct the defect(s). If Landlord does not elect to correct said defect(s), Tenant may, at its sole option, reject or accept said defects, by giving written notice to Landlord of its election. (e) Landlord hereby warrants and represents to Tenant the following, which shall be true and correct at all times hereafter, as well as on the date hereof, and for which liability for breach shall survive the Lease: (i) To the best of Landlord's knowledge, information and belief, after performing due diligence, the Premises and/or the Demised Premises, in its current state, conform with all laws, ordinances, statutes or regulations of any governmental agency, or any applicable private restriction. No notice of the violation of any of said laws, ordinances, statutes, regulations or restrictions has been received by Landlord. (ii) To the best of Landlord's knowledge, information and belief, after performing due diligence, the Premises and/or Demised Premises has not been used for the storage, reclamation, or disposal of any toxic, contaminating, and/or hazardous materials. During its ownership of the Premises and/or Demised Premises, Landlord has committed no acts or omissions which could cause or contribute to the release or threatened release of any toxic, contaminating, and/or hazardous substances. (iii) Landlord does hereby Tenant harmless from and against any and all losses, expenses, claims, damages, liabilities and/or any costs whatsoever, whether in law or in equity, which arise out of, are due to, or are based upon Landlord's breach of the aforesaid representations and warranties. TERM 2. The term of this Lease shall commence on the first day of the calendar month next following the date Tenant sends written notice, if any, to Landlord that the conditions set forth hereinbelow in Paragraph 17(e) have been met to Tenant's sole satisfaction (hereinafter referred to as the "Commencement Daten) and shall end at midnight on the last day of the month preceding the month in which the thirty-fifth (35th) annual anniversary of the Commencement Date shall have occurred. At the time the -3- Commencement Date is established, the parties hereto will enter into a Supplemental Letter Agreement stipulating the Commencement Date of the term of the Lease as provided herein. Tenant shall have renewal options for five years each after the initial term of the Lease. Tenant shall give Landlord written notice of its option to renew prior to the expiration of the then existing term or option period. The terms of the Lease for the initial thirty- five (35) year term shall apply to each option period except that the Landlord and Tenant may negotiate changes to non-monetary provisions, such as Tenant's obligations with respect to landscape maintenance, upkeep and maintenance of Tenant's Facilities, Landlord's supervision of Tenant's access to the Facilities, etc. Tenant shall be responsible for all expenses attributable to any permit and license applications, and Landlord shall have no obligations with respect thereto. Landlord agrees, however, if necessary, to execute such consents, and to cooperate with Tenant, at Tenant's expense, in obtaining all licenses, variances, and permits as may be necessary or required for the operation and construction of Tenant's Facility. CONSTRUCTION AND USE 3. (a) Promptly after the Commencement Date, Tenant shall have the right to construct the Tenant's Facility at its sole cost and expense, in good workmanlike manner, in accordance with applicable governmental laws and regulations, and free of any liens or claims for work, labor and services. Landlord shall not have any obligation to construct or maintain, repair or replace Tenant's Facility or any part thereof. Tenant shall use the Facility only in connection with a cellular radio and mobile telephone communication station and any other communications related activities. (b) Landlord shall not be liable for any damage to Tenant's Facility unless said damage is due to or arises out of any act, negligence, or omission on the part of Landlord and/or any of Landlord's quests, licensees, invitees, contractors, employees and/or agents. Tenant agrees that Landlord is not -4- liable for acts of random vandalism caused by members of the public who have access to Avery Park. (c) Tenant shall provide earth berm landscaping surrounding the base station constructed by Tenant; said landscaping to be in accordance with the Landlord's specifications. (d) Tenant shall provide and install, at its sole cost and expense, new coaxial cable for Landlord's fire and safety communications systems located at the Demised Premises. Furthermore, Tenant shall, at its sole cost and expense, relocate Landlord's presently existing antenna at the Tower to a new platform location on the Tower to be constructed by Tenant. (e) Tenant does hereby agree to reimburse Landlord for all expenses incurred on behalf of Landlord, by Landlord's engineer or an engineer hired by Landlord, solely in connection with the design and construction of Tenant's Facility and the project contemplated herein. (f) Tenant does hereby agree to be responsible for the payment of all engineering, fabrication, and installation costs incurred in connection with the pitt-Des Moines, Inc. platform/mount to the Tower. RENTAL 4. The rental for the term of the Lease shall be a one- time initial payment (the "Initial Payment") of twenty thousand dollars ($20,000) payable at the Commencement Date plus for the five ( 5 ) years of the terms of this Lease the total rent shall be thirty-three thousand dollars ($33,000), which sum shall be paid by Tenant to Landlord in equal monthly installments of five hundred fifty dollars ($550) on the last day of every calendar month for which such installment is being made. Tenant's obligation to pay said monthly rent shall commence as of the Commencement Date of this Lease. The rental for each successive five ( 5) year period of the term of the Lease shall be calculated as follows~ -5- (i) The rent for each successive five (5) year period of the term remaining in the Lease shall be increased for each period by the percentage increase, if any, in the Consumer Price Index ("CPI"), "ALL ITEMS," U.S. Average (1967 = 100), as measured by the U.S. Bureau of Labor statistics, or any successor indices, for the month prior to the commencement Date of the subsequent period over and above the said CPI for I the month in which the prior period shall have commenced. No decrease in the CPI shall reduce the rent for any period below the rental paid for the immediately preceding period. It is understood and agreed by the parties hereto that in no event shall the rent for any successive period exceed a twenty percent (20%) increase over and above the five (5) year period. INSURANCE AND TAXES 5. (a) During the term hereof, Tenant shall be responsible for all personal property taxes and insurance as to Tenant's Facility and shall carry, at no cost to Landlord, adequate comprehensive public liability insurance with limits of not less than $1,000,000.00 for bodily injury and death, and not less than $500,000.00 for property damage. Tenant will name Landlord as an additional insured thereon as its interest may appear and will indemnify Landlord against claims for injuries and death sustained by persons or damage to Property, arising out of Tenant's use and occupancy of the Demised Premises by the Tenant, excepting therefrom those which are due to or arise solely out of Landlord's negligence. (b) Landlord will indemnify Tenant against claims for injuries and death sustained by persons or damage to property arising out of Landlord's use and occupancy of the Premises. (c) During the term hereof, the Tenant, at Tenant's sole cost and expense, shall be responsible for any increase in real estate taxes and assessments, both general and special, levied against the Premises, solely due to the construction of Tenant's Facility upon the Demised Premises. ASSIGNMENTS 6. The Tenant shall not assign this Lease without the prior written consent of the Landlord, which consent Landlord agrees shall not be unreasonably withheld. Notwithstanding -6- anything contained herein to the contrary, Tenant shall have the right to assign or transfer this Lease to a parent entity, if any, or any of its partners, subsidiaries, affiliates, or related entities, or to a successor entity in the event of merger, consolidation, transfer, sale, stock purchase or public offering. Such assignment or transfer of the Lease shall not constitute an unauthorized assignment or transfer of this Lease and shall not require the consent of the Landlord. DEFAULT 7. If Tenant shall fail to pay the rent for a period of fifteen (15) days after receipt of written notice to Tenant of such default, or if Tenant shall fail to perform any other agreements or conditions contained herein, and such failure shall not be corrected within thirty (30) days after Tenant shall have received written notice from Landlord of such failure (or such longer period as may be required to correct such failure, if within sad thirty (30) days, Tenant shall commence to correct the same and thereafter diligently pursue the correction thereof), Tenant shall be n default hereunder. Upon the occurrence of any such event of default, Landlord shall have all rights permitted by law, including, but not limited to, the right at its election to terminate this Lease and thereafter, the Landlord may reenter the Demised Premises and take possession thereof in any manner then permitted by law. EMINENT DOMAIN 8. In the event the Demised Premises or any part thereof shall be taken or condemned permanently or temporarily for any public or quasi-public use or purpose by any competent authority in appropriation proceedings or by any right of eminent domain, the compensation award therefor shall be allocated between Landlord and Tenant as their respective interests may appear and as permitted by law. HOLDING OVER 9. In ~~e event Tenant continues to occupy the Demised Premises after the last day of the term hereby created, and the -7- Landlord elects to accept rent thereafter, a tenancy from month to month only shall be created and not for any longer period. UTILITIES 10. Landlord shall have the responsibility to cooperate with Tenant (without any expense to Landlord) in requesting and/or obtaining permission and/or service from the proper utility companies in order to ensure that all utilities are made available to the Demised Premises necessary to allow Tenant to fully operate its business to be conducted thereon. Tenant shall pay all new utility installation charges, if any, and all utility charges used in connection with the Tenant's business from the Co~mencement Date of this Lease. RECORDING 11. Landlord hereby covenants, represents and warrants to Tenant that prior to Landlord transferring any of its right, titel and/or interest (as hereinafter defined) in and to the Demised Premises and/or prior to Landlord's mortgaging any of its right, title and interest in and to the Demised Premises, Landlord shall give sixty (60) days prior written notice to Tenant of said transfer and/or mortgage; furthermore, on or before ten (10) days prior to Landlord transferring any of its right, title and/or interest, whether legal, beneficial and/or equitable, in and to the Demised Premises, and/or prior to Landlord mortgaging any of its right, title and/or interest, whether legal, beneficial and/or equitable, in and to the Demised Premises, this lease and/or a short form referring to this Lease describing the Demised Premises and setting forth the term of this Lease shall be recorded by the Landlord and Landlord shall give a copy of said recorded short form or recorded Lease to Tenant. Tenant shall reimburse Landlord for all costs incurred by Landlord in preparing and recording such short form of this Lease. In the event Landlord fails to timely record said short form as set forth herein, Landlord does hereby appoint Tenant as its attorney-in-fact to prepare said short form of Lease for recording purpodes and to execute said short form of Lease for -8- recording purposes on behalf of Landlord. Notwithstanding anything contained herein to the contrary, Landlord further covenants, warrants and represents to Tenant that in the event Landlord transfers any of its right, title and/or interest in and to the Demised Premises, and/or in the event Landlord mortgages any of its right, title and/or interest in and to the Demised Premises, Landlord shall transfer and/or mortgage same subject to Cellular One's rights as set forth in this option to Lease and Lease Agreement and shall further notify said transferee in a separate writing of Tenant's interest, with copy of same to Tenant. SURRENDER AT END OF TERM 12. At the expiration or termination of this Lease, whether by lapse of time or otherwise, Tenant will peaceably and quietly surrender to Landlord the Tower, in its original condition except for reasonable wear and tear, acts of God and other conditions beyond the control of Tenant, and except further that Tenant agrees to leave in place the pitt-Des Moines, Inc. platform/mount which Tenant has installed on the Demised Premises and to give Landlord title to same. In such event, Tenant shall have no claims for refund of any rent paid to Landlord through said date of expiration or termination. TITLE TO IMPROVEMENTS 13. Title to Tenant's Facility, as well as all fixtures and chattels used in connection therewith, shall be and shall remain the property of Tenant and the exclusive ownership by Tenant is herein acknowledged by Landlord. TERMINATION 14. Tenant shall have the right to terminate this Lease at any time without any penalty or further liability whatsoever in the event the location of the Tenant's Facility becomes unacceptable for receiving and/or transmitting radio waves in accordance with Tenant's engineering and other requirements and/or in the event Tenant's Facility becomes unacceptable in accordance with the standards, requirements and conditions then -9- demanded by the Federal Communications commission or other state, federal, or local regulatory authority. In such event, Tenant shall have no claims for refund of any rent paid to Landlord through said date of expiration or termination. Landlord shall have the right to terminate this Lease in the extraordinary event that Tenant's Facilities pose a proven threat to the safety of the water supply in the water tower on the Demised Premises, in which event Landlord shall give Tenant a one year notice to vacate. If Landlord gives such one-year notice, Tenant shall have no obligation to make payments to Landlord for any period beyond the date that Tenant vacates the Demised Premises. BROKERS 15. The parties hereto mutually warrant, represent and agree to and with each other that there is no real estate broker involved in this transaction. Landlord and Tenant hereby respectively further warrant and represent to and with each other that any fees, commissions or remunerations claimed by reason of this transaction shall be the sole obligation of said party claimed against, and said party shall indemnify and hold harmless the other from and against any and all demands, losses, costs and expenses of any kind whatsoever arising out of, by reason of, or in connection with said claim for a broker's commission in this transaction. NOTICES 16. All notices required under this Lease to be served upon either party shall be sent by registered or certified mail, return receipt requested, and shall be deemed served when deposited in the United States mail, properly stamped and addressed to the party for whom it is intended at its address hereinabove set forth (in the case of notice to Tenant, a copy of all notices must be forwarded to Robert S. Ginsberg, Esq., 1800 Midland Building, 101 Prospect Avenue West, Cleveland, Ohio 44115, or to such other address as the Landlord or Tenant shall hereafter give notice to the other in writing. -10- MISCELLANEOUS PROVISIONS 17. (a) It is mutually stipulated and agreed by and between the parties hereto that this instrument contains the entire agreement between them as of this date, and that the execution thereof has not been induced by either party by any representations, promises or undertakings not expressed herein, and that there are no collateral agreements, stipulations, promises or undertakings whatsoever by the respective parties in any way affecting the subject matter of this Lease which are not expressly contained in this instrument and no change, alteration or modification hereof may be made except in writing signed by both parties hereto. (b) The terms, covenants and conditions hereof shall be binding upon and inure to the benefit of the parties hereto, and their respective heirs, successors, assigns, and personal representatives. (c) This Lease shall be construed under the laws of the State of Ohio. (d) Tenant, or its authorized representatives, shall be given and is hereby granted the right of ingress and egress in, on over and through the Premises at any and all times for the purpose of constructing the Tenant's Facility and/or for the purpose of determining what repairs or replacements, if any, are necessary to be made by Tenant and for the further purpose of making said necessary repairs or replacements. (e) This Lease and Tenant's obligation hereunder are subject to and contingent upon the following conditions (all of which must be met without cost or expense to the Landlord), which must be satisfied as set forth herein within two ( 2 ) months from the date of this Lease Agreement. In the event said contingencies are not met to Tenant's sole satisfaction by said date, this Lease Agreement shall immediately terminate and be of no further force and effect as between the parties hereto, unless said date is extended by the mutual agreement of the parties hereto. -11- ( i ) Tenant obtaining all governmental approvals (including, but not limited to, platting, subdivision, zoning, zoning variances and/or rezoning classifications) necessary, in Tenant's sole opinion, to allow Tenant to develop the Demised Premised as intended by Tenant. Tenant and Landlord shall submit applications to commence the appropriate proceedings to obtain such approvals, if necessary. Landlord agrees to cooperate in every manner with Tenant and assist Tenant in obtaining the appropriate approvals as aforesaid. (ii) A determination, in Tenant's sole opinion, that the Premised and/or Demised Premises are satisfactory for the Tenant's intended use. In order to make such determination, Landlord hereby grants to Tenant the right to enter the Premises and Demised Premises for the purpose of conducting engineering tests, soil test borings, preparing a survey, and an inspection of utility services, as well as such other tests as Tenant, in its sole discretion, shall determine to make on or about the Premises and Demised Premises. (iii) The Demised Premised being acceptable to Tenant, in its sole opinion, for purposes of receiving and transmitting radio waves in accordance with Tenant's engineering and other requirements. (iv) Tenant obtaining the necessary Licenses and permits enabling Tenant to construct Tenant's Facility and operate Tenant's intended business. ( v) Tenant receiving from Landlord, if necessary, the easement referred to in Paragraph 11 hereinabove, which easement must be acceptable to counsel for Tenant. (vi) Tenant receiving a commitment for Leasehold Title Insurance solely acceptable to counsel for Tenant. (vii) Tenant receiving Exhibit A-1, if applicable, in form and substance solely acceptable to counsel for Tenant. (viii) Landlord and Tenant mutually agreeing to the location of the Demised Premised. Tenant shall have a survey of the Demised Premised prepared, at its sole cost and expense, and upon completion thereof, the legal description shall be attached hereto as Exhibit "B-1." (f) Landlord understands that monetary damages are not sufficient in the event of breach of Landlord's obligation to lease the Demised Premised to Tenant and, therefore, failure to perform by Landlord herein shall entitle Tenant to specific -12- performance to enforce the validity of this Lease on behalf of Tenant. (g) For the purpose of guaranteeing the construction and installation of the Pitt-Des Moines platform/mount on the Demised Premises, Tenant agrees, upon the execution of this Lease, to provide Landlord with a security deposit in the amount of five thousand dollars ($5,000), which shall be applied to the Initial Payment owed by Tenant hereunder (if Tenant does not terminate this Lease under Paragraph 17(e) above), or returned to Tenant on the date of the termination of the Lease pursuant to Paragraph 17(e) above or if this Lease is terminated under Paragraph 14 above prior to the Commencement Date. (h) In the event that Tenant finds it necessary to build a cellular tower outside the municipal limits of the city of Dublin as they exist as of November 1990, within a three-mile radius of the Demised Premises, at least ninety (90) days prior to constructing on the new site, Tenant will notify Landlord and seek its input as to the effects, if any, upon Landlord's residents. Tenant will use its best efforts to accommodate the concerns, if any, relative to the proposed site which are raised by Landlord during the notice period. ( i ) Tenant agrees that with respect to its property located at 1085 Manley Road, Concord Township, Delaware County, ohio, other than the placement of a temporary tower to be used until the Tenant is able to operate its Facilities on the Demised Premises, Tenant will not construct a tower to be used to provide cellular service nor will it sell such property to another entity licensed by the Federal Communications Commission to provide cellular service in the Columbus, Ohio market. Notwithstanding anything else contained herein to the contrary, in the event this Lease does not commence according to its terms, the aforesaid subparagraph 17(h)(i) shall be null and void and of no force and effect as between the parties hereto without any further writtten documentation being necessary as between the parties hereto, and Tenant shall have no obligation -13- and/or liability pursuant to the terms thereof as benefit the Landlord herein, and, in the further event this Lease does commence according to its terms, but Landlord terminates the Lease, for any reasons whatsoever, prior to the expiration of the term, and said property located on Manley Road, Concord Township, Delaware County, Ohio is still owned by Tenant, the aforesaid terms and conditions of paragraph l7(h)(i) shall immediately become null and void as between the parties hereto, without any further written documentation being necessary as between the parties hereto, and Tenant shall have no obligation and/or liability pursuant to the terms thereof as benefit the Landlord h~rein. IN WITNESS WHEREOF, the parties hereunto set their hands the day and year first above written. SIGNED IN THE PRESENCE OF: LANDLORD: CITY OF DUBLIN, OHIO By: Its: TENANT: COLUMBUS CELLULAR TELEPHONE COMPANY By: Its: STATE OF OHIO ) ) SS: COUNTY OF FRANKLIN ) BEFORE ME, a Notary Public, personally appeared the above- named , , of the CITY OF DUBLIN, OHIO, who acknowledged that he/she did sign the foregoing instrument for and on behalf of said City of Dublin, Ohio, being thereunto duly authorized, and that the same is his/her free act and deed individually and the free act and deed of said City of Dublin, Ohio. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of , 1990. Notary Public -14- . ' STATE OF OHIO ) ) SS: COUNTY OF FRANKLIN ) BEFORE ME, a Notary Public, personally appeared the above- named , , of COLUMBUS CELLULAR TELEPHONE COMPANY, who acknowledged that he/she did sign the foregoing instrument for and on behalf of said Columbus Cellular Telephone Company, being thereunto duly authorized, and that the same is his/her free act and deed individually and the free act and deed of said Columbus Cellular Telephone Company. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of , 1990. Notary Public This instrument prepared by: Robert S. Ginsberg, Esq. 1800 Midland Building 101 Prospect Avenue West Cleveland, Ohio 44115 -15-