104-90 Ordinance CORRECTED
RECORD OF ORDINANCES
Dayton Legal Blank Co, Form No. 30043
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Ordinance NO'nl~4...90 Jcorrected) Passednu ., uuuuun 19n
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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
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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
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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~
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(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
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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
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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
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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
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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.
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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.
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( 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
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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
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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
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. '
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
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