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HomeMy WebLinkAbout6.a. Tower Lease Agreement ROSEN'1LOUNT EXECUTIVE SUMMARY UTILITY COMMISSION Utility Commission Meeting: November 18, 2013 AGENDA ITEM: Tower Lease Agreement AGENDA SECTION: New Business PREPARED BY: Andrew J. Brotzler, PE, Director of Public AGENDA NO. Works / City Engineer 6.a. ATTACHMENTS: Tower Lease Agreement APPROVED BY: t RECOMMENDED ACTION: Recommend City Council Approval of Tower Lease Agreement with Verizon Wireless for Cellular Equipment on Connemara Water Tower. BACKGROUND: Attached is the Tower Lease Agreement that has been reviewed and marked for proposed changes by Verizon Wireless, City staff, and the City Attorney. The rent is calculated based on the new rates approved by the City Council on August 20,2013,with the exception of the annual renewal increase of 3% instead of 5%. Verizon will not accept a 5% annual increase and has indicated they will seek alternate sites if the City will not agree on their proposal of a 3% annual increase. Below is an outline of the proposed items in the Lease Agreement: • Six (6) tower-mounted antennas and 200 square feet of ground space • $25,250 annual rent with a 3% annual increase • Initial term- 5 years • Automatic extensions - 3 extension periods of 5 years each • Total of 20 years SUMMARY: Staff is requesting that the Utility Commission make a recommendation for City Council approval of the Tower Lease Agreement with Verizon Wireless. G:\ANTENNAS\Verizon\20131118 UC Draft Lease Agreement-02VER2013N.docx TOWER LEASE AGREEMENT This Lease Agreement ("Lease" or"Agreement") is made and entered into this day of , 2013 ("Effective Date"), by and between the CITY OF ROSEMOUNT, a Minnesota municipal corporation, with an office at 2875 145th Street West, Rosemount, Minnesota, 55068-0510 ("Lessor") and VERIZON WIRELESS (VAW) LLC D/B/A VERIZON WIRELESS, a Delaware limited liability company, ("Lessee") its successor and assigns, for the leasing of certain property interest at the Connemara Water Tower site at 13831 Connemara Trail, Rosemount, Minnesota pursuant to the following terms: A) Lessor is the owner of certain real property located in the County of Dakota, State of Minnesota, described in EXHIBIT A, attached hereto and made a part hereof by this reference (the "Property"). B) Lessee desires to obtain a lease on a portion of the Property consisting of tower space for six (6) antennas and ground space (approximately 200 square feet) for an equipment compound (the "Premises"), as well as right-of-way for ingress and egress and utilities thereto. The Premises are described in EXHIBIT A, attached hereto and made a part hereof by this reference. The Premises may be more specifically described following a survey which may be obtained at a later time. For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee agree as follows: Article 1 In addition to the terms that are defined elsewhere in this Agreement, the following terms are used in this Agreement: A) Tower: The Water Tower located at 13831 Connemara Trail on which a portion of the Premises are located. B) Lessor: City of Rosemount C) Lessor's Address: 2875 145th Street West Rosemount,Minnesota 55068-0510 Telephone: (651) 423-4411 D) Lessor's Rent Payee: City of Rosemount 2875 145th Street West Rosemount,Minnesota 55068-0510 Telephone: (651) 423-4411 E) Lessee: Verizon Wireless (VAS LLC d/b/a Verizon Wireless F) Lessee's Address: 180 Washington Valley Road Bedminster,NJ 07921 Attn: Network Real Estate Page 1 G:\ANTENNASIVerizon\LEASE AGREEMENT-02VER2013N Markup.docxG:lANTENNAS\Verizon\LEASE AGREEMENT 02VER2013N Vorizon draft.docx 2363624v2 MINC Skittles G) Commencement Date: See Article 3.02. Rent: See Article 3.02. I) Extension Periods: Three (3) automatic renewal periods of five (5) years, each beginning at midnight on the expiration date of the prior term. J) The antenna system will include mounting of up to six (6) antennas, mounting supports and appurtenances on the Tower as described on attached EXHIBIT A, and the site drawings. Article 2 2.01 RIGHT OF ENTRY. Lessor shall permit Lessee, prior to the Commencement Date, free access to the Property and the Premises, at Lessee's cost, to conduct surveys, subsurface boring tests, feasibility and final configuration assessments, environmental assessments, and other inspections of the Property and Premises, as Lessee may deem necessary. 2.02 LEGAL DESCRIPTION. Lessor grants Lessee the right, but not the obligation, at any time during the term of this Agreement, to obtain a survey of the Premises at Lessee's expense. The legal description that may be derived from the survey will, upon approval thereof by Lessor, become part of EXHIBIT A which will be attached hereto and made a part hereof, and shall control in the event of any inconsistency between it and the original legal description included in EXHIBIT A. Article 3 3.01 LEASE '1ERM. The initial five (5) year term of this Lease shall begin on the Commencement Date as hereinafter defined. Beginning on the Commencement Date, the Lessor shall deliver possession of the Premises to Lessee, together with nonexclusive right for ingress and egress, seven (7) days a week, twenty-four(24) hours a day, and for the installation and maintenance of utility wires, cables, conduits, and pipes under or along a twenty-foot wide right-of-way and easement extending from the nearest public right-of-way to the Premises, at the location shown on EXHIBIT A. Lessor agrees to execute without delay any easement documents covering the then current lease term as may be required by any utility company in connection with Lessee's use of the Premises. 3.02 RENT. The initial five (5) year term of this Agreement shall begin on the Commencement Date (as hereinafter defined) at which time rental payments shall commence at an annual rental of Twenty-Five Thousand, Two Hundred Fifty Dollars ($25,250.00), increased annually each January 1 starting January 1, 2015, by an amount equal to the percent change in the Consumer Price Index ("CPI") or 3% whichever is greater, as set forth herein. The annual rent shall be paid on or before the first day of January, except that for the first calendar year, the annual rent shall be prorated and paid as described below. The initial term shall commence on the first day of the month in which Lessee commences installation of the equipment on the Premises, or on the first Page 2 G:\ANTENNAS\Verizon\LEASE AGREEMENT-02VER2013N Markup.docxG:1ANTENNASIVenz©na6E-ASE AGREEMENT 02VER2013N Verizon draft.docx 2363624v2 MINC Skittles day of March, 2014, whichever occurs first (either of the foregoing being the "Commencement Date"). Lessor and Lessee agree that they shall acknowledge in writing the Commencement Date in the event the Commencement Date is based upon the date Lessee commences installation of the equipment on the Premises. In the event the Commencement Date is the fixed date set forth above, there shall be no written acknowledgement required. Lessor and Lessee acknowledge and agree that initial prorated annual rental payment may not actually be sent by Lessee until thirty(30) days after the Commencement Date or after a written acknowledgement confirming the Commencement Date,if such an acknowledgement is required. The rent shall be increased on January 1st of each subsequent year by an amount equal to the increase in the CPI or 3%, whichever is greater, as provided herein. The first year of the increase will be 2015. The CPI shall mean the "Consumer Price Index for all Urban Consumers, all Cities, all Items (1967=100)" as published by the United States Department of Labor Statistics for the month of September of the preceding year, or if such index shall be discontinued,the successor index thereto, or if there shall be no successor index, such comparable index as shall be mutually agreed upon by the parties hereto. Lessor shall be responsible for communicating all rental increases to the Lessee. Until such time as Lessor makes such computation and provides Lessee with documentation of any rental adjustment, Lessee shall pay to Lessor the Rent in the identical annual amounts paid by Lessee in the preceding lease year preceding the rental adjustment and, in the event the rental adjustment computation provided by Lessor requires an increase in the amount of the annual Rent, Lessee shall, within thirty(30) days following Lessor giving notice to Lessee of the computation of any such increase, pay to Lessor the amount of such increase. If the CPI is discontinued or revised, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as if the CPI had not been discontinued or revised. In the event Lessee disagrees with Lessor on the CPI calculation, the parties shall submit this matter to binding arbitration in accordance with the rules of the American Arbitration Association. Each party shall be responsible for their own costs and fees. Such rent shall be paid to the City of Rosemount or to such other person, firm, or place as the Lessor may, from time to time, designate in writing at least thirty (30) days in advance of any rental payment date. 3.03 RIGHT TO EXTEND. The Lease shall automatically renew for three (3) additional five (5) year terms unless Lessee provides written notice of termination 60 days prior to the end of the current term. 3.04 RENEWAL RENTAL. The annual rental for each year of the five (5) year extension terms shall increase as described in Article 3.02. 3.05 LESSEE'S USE. Lessee shall use the Premises for the purpose of constructing, maintaining, and operating a wireless communication facility and uses incidental thereto (the "Facility"), consisting of ground space not to exceed 200 square feet, six (6) panel and dish antennas, and all necessary connecting wave guide and appurtenances attached to Lessor's existing water tank. Up to six (6) antennas and/or their supports shall be mounted as described on EXHIBIT A and the site drawings, unless prior approval from the Lessor is obtained. Lessee shall Page 3 G:\ANTENNAS\Verizon\LEASE AGREEMENT-02VER2013N Markup.docxG:\ANTENNAS\Vcrizon\LEASE AGREEMENT 02VER2013N Vorizon draft.docx 2363624v2 MINC Skittles have the right to replace, repair, or otherwise modify its utilities, equipment, antennas and/or conduits or any portion thereof, and the frequencies over which the equipment operates, whether the equipment, antennas, conduits or frequencies are specified or not on any attachment hereto, subject to City Engineer's review and approva . - . . - - • - - • - conditioned or delayed. 3.06 The Facility consists of a tower-mounted antenna system and ground space for an equipment pad as shown on EXHIBIT A, including all necessary connecting appurtenances sufficient to be a fully-operable communications facility for its intended licensed communications coverage areas. This may include, radio transmission and computer equipment, batteries and generator equipment. All improvements shall be at Lessee's expense. Lessee shall maintain the Premises in reasonable condition. All private utilities such as electrical power, natural gas, telephone, or other cables required by the Lessee shall be installed underground at the Lessee's expense,and in the locations shown on EXHIBIT A. In addition, in the event of a natural or man-made disaster, in order to protect the health, welfare, and safety of the community, Lessee may erect additional telecommunications facilities and install additional equipment on a temporary basis on the Property to assure continuation of service. Such temporary operation shall not exceed ninety(90) days unless written approval is obtained from the Lessor. Lessee hereby consents to the use of Lessor's Property by one or more additional communication providers for the erection, operation, and maintenance of transmission facilities (including antenna structures) so long as, to each such additional provider; a) Lessor provides not less than thirty(30) days prior written notice to Lessee of the erection of such facility,together with facility specifications, and such facility will not interfere with Lessee's then current equipment,b) no changes shall be made to the antenna structure of such other provider without thirty(30) days prior written notice to Lessee. Lessor shall require that any agreement with such other provider shall include a provision requiring compliance by such other provider with the provisions of this section. 3.07 INTERFERENCE. Lessor will require all occupants at this location to adhere to the same technical standards as set forth herein. In its use of the Premises, Lessee will not interfere with the existing operations of Lessor, the existing communications of public safety or service agencies including public schools, fire departments, police departments, sheriff departments, or the existing communications conducted by public services provided by Lessor such as water and sewer services. In the event of any such interference, Lessee shall take all actions necessary to eliminate such interference in accordance with reasonable technical standards. If any such interference inhibits Lessor's operations on the Property, and Lessee does not correct or commence to correct such interference within 24 hours, or if there are intermediate levels of interference and Lessee does not correct or commence to correct such interference within thirty(30) days following written notice, Lessee shall discontinue operating such equipment, on Lessor's demand, unless and until it can be operated without interference, or shall replace the interfering equipment with alternative equipment that does not cause such interference. All efforts to commence to correct interference shall proceed to completion with reasonable diligence. Lessee shall additionally have the option to terminate this Agreement,without a termination fee. Page 4 - G:WNTENNAS\Verizon\LEASE AGREEMENT-02VER2013N Markup.docx_:.•• - - ! !• 2363624v2 MINC Skittles Upon written notice by Lessor that Lessor has a bona fide request from any other party to lease or otherwise occupy the Premises, Lessee agrees to provide the Lessor within sixty(60) days the radio frequencies currently in operation or to be operated in the future of each transmitter and receiver installed and operational on the Premise. Lessor may then have a registered professional engineer of Lessor's choice perform, at no cost to Lessee, the necessary interference studies to insure that Lessee's frequencies will not cause harmful radio interference to other tenants. For the purpose of this Agreement, harmful interference shall be defined as transmitters that produce receiver desensing because of inadequate frequency spacing between new transmitters and existing receivers, or transmitters that produce second, third or fifth order intermodulation products within twenty(20) KHz of existing receivers on the Premises. Should subsequent occupants cause any interference with the operations of Lessee, and if such interference is not eliminated, Lessee shall have the right to terminate this Agreement without any penalty or further liability or seek injunctive relief enjoining such interfering use generated by any other subsequent occupant of the Property. 3.08 TERMINATION. This Agreement may be terminated, without any penalty or further liability unless described herein, on sixty(60) day written notice as follows: a) by either party on default of any covenant or term hereof by the other party,which default is not cured within sixty (60) days following receipt of notice of default (without, however, limiting any other rights available to the parties pursuant to any other provisions hereof) except in the case of Lessor default, Lessee may exercise termination rights without fee or charge, provided each party shall have such extended period as may be required beyond the sixty(60) days if the nature of the cure is such that it reasonably requires more than sixty(60) days and the party commences the cure within the sixty(60) day period and thereafter continuously and diligently pursues the cure to completion;or b) by Lessee if it is unable to obtain or maintain any license, permit or other governmental approval necessary to the construction or operations of the Facility or Lessee's business; or c) by Lessee if the Premises are or become unacceptable to Lessee under the Lessee's design or engineering specifications for its Facility or for the communications systems to which the Facility belongs; or d) by Lessee, in its sole discretion, if it determines that the use of the Premises is obsolete or unnecessary. No later than ninety(90) days after the termination of this Agreement, by expiration of the term or otherwise, Lessee will remove its personal property and fixtures and restore the Premises to their condition on the Commencement Date,reasonable wear and tear and casualty loss excepted. Notice of the Lessee's exercise of its right to terminate shall be given to Lessor in writing by certified mail, return receipt requested, and shall be effective upon receipt of such notice by the Lessor as evidenced by the return receipt. All rentals paid for the lease of the Property up to said termination date shall be retained by Lessor; any prepaid annual rent for periods after said termination date shall be refunded. Upon such termination, this Agreement shall become null and void and all the parties shall have no further obligations, including the payment of money, except to the extent of the representations, warranties and indemnities made by each party to the other hereunder. Article 4 4.01 LESSEE'S INSURANCE. At all times during the term, Lessee, at its own expense, shall maintain: I) "All Risk" property insurance for its property's replacement cost; (II) Page 5 G:\ANTENNAS\Verizon\LEASE AGREEMENT-02VER2013N Markuo.docxG:\ANTENNAS\Verizon\LEASE AGREEMENT 02VER2013N Verizon draft doer, 2363624v2 MINC Skittles commercial general liability insurance for bodily injury, death or property damage arising out of any occurrence. The minimum limit of liability, combined single limit coverage, shall be Three Million and 00/100 Dollars ($3,000,000) for any number of claims arising out of the same occurrence; and (III) worker's compensation insurance as required by law. Lessee will name the Lessor as an additional insured under its commercial general liability policy. Lessee will require its insurance company to give at least thirty(30) days prior written notice of termination or cancellation of the policy to the additional insured. 4.02 LESSOR'S INSURANCE. At all times during the term of this Agreement, Lessor will carry and maintain fire and extended coverage insurance covering the Tower, its equipment and common area furnishings in amounts not less than their full replacement costs. Lessor shall also carry commercial general liability insurance in amounts reasonably determined by Lessor. The minimum limit of liability coverage shall continuously be maintained at the then current limit of Lessor's liability under Minnesota Statutes,Section 466.04 4.03 WAIVER OF SUBROGATION. Lessor and Lessee each waive any and all rights to recover against the other, or against the officers, directors, shareholders, partners, joint ventures, employees, agents, customers, invitees or business visitors of such other parry, for any loss or damage to such waiving party arising from any cause covered by any property insurance required to be carried pursuant to this section or any other property insurance actually carried by such party. Lessor and Lessee, from time to time,will cause their respective insurers to issue appropriate waiver of subrogation rights endorsements to all property insurance policies carried in connection with the Tower or the Premises or the contents of either. 4.04 DAMAGE. If the Premises or a portion of they Tower necessary for Lessee's occupancy is damaged during the term of this Lease by any casualty which is insured under standard fire and extended coverage insurance policies, Lessor will repair or rebuild the Premises to substantially the condition in which the Premises were immediately prior to such destruction. The Rent or Renewal Rent, as applicable,will be abated proportionately during any period in which there is substantial interference with the operation of Lessee's business. If the Premises are damaged to the extent that it would take, in Lessor's and Lessee's reasonable judgment, more than thirty (30) days to repair, then either Lessor or Lessee may terminate this Lease. If the Tower is damaged to the extent that it would take, in Lessor's reasonable judgment, more than thirty(30) days to repair, then Lessor may terminate this Lease. 4.05 CASUALTY. If any portion of the Owner's Property or Communications Facility is damaged by any casualty and such damage adversely affects Lessee's use of the Property, this Agreement shall terminate as of the date of the casualty if Lessee gives written notice of the same within thirty(30) days after Lessee receives notice of such casualty. 4.06 LESSOR COMPLIANCE. Lessor represents and warrants that, as of the date of this Lease, the Premises and the Property comply with all applicable laws, statutes, ordinances, rules, codes, regulations, orders, and interpretations of all Federal, State and other governmental or quasi-governmental authorities having jurisdiction over the Property (collectively, "Laws"). At its sole cost and expense, Lessor will promptly comply with all Laws, and will cause the Premises and the Property to comply with all Laws, except to the extent that such compliance is Page 6 G:IANTENNAS\Verizon\LEASE AGREEMENT-02VER201 3N Markup.docx_.. • • • •- - • -- • ! ! - _• - - .__. 2363624v2 MINC Skittles required solely as a result of Lessee's use or occupancy of the Premises. If any modifications are required to be made to the Property after the date hereof as a result of any Laws, Lessee shall have no liability for any costs therefor,whether as a pass-through of operating expenses or otherwise. 4.07 LESSEE COMPLIANCE. Lessee will promptly comply with all applicable Laws relating to Lessee's use or occupancy of the Premises. At its sole cost and expense, Lessee will promptly cause the Premises to comply with all applicable Laws to the extent that such compliance is required solely as a result of Lessee's use or occupancy of the Premises. 4.08 ENVIRONMENTAL MA1'1'FRS. a) Lessee will be responsible for and will defend, indemnify, and hold Lessor, its agents, and employees harmless from and against any and all direct claims, costs, and liabilities, including attorney's fees and costs, arising out of or in connection with the cleanup or restoration of the Premises associated with the Lessee's use of Hazardous Materials; b) Lessor will be responsible for and will defend, indemnify, and hold Lessee, its agents, and employees harmless from and against any and all direct claims, costs, and liabilities, including attorney's fees and costs, arising out of or in connection with the clean-up or restoration of the Premises associated with the Lessor's use of Hazardous Materials. Nothing herein shall be deemed waiver by the Lessor of the limitations on liability set forth in Minnesota Statutes, Chapter 466. Lessor hereby states that, to the best of Lessor's knowledge, prior to Lessee's use of the property there are no "Hazardous Materials" present on the Property; c) "Hazardous Materials" means asbestos or any hazardous substance, waste, or materials as defined in any Federal, State, or local environmental or safety law or regulation including, but not limited to, CERCLA. Lessor acknowledges that Lessee may be utilizing and maintaining on the Property sealed batteries, propane/diesel/gasoline,HVAC system,and a halon/FM200 fire suppression system. The obligations of this section shall survive the expiration or other termination of this Agreement. Article 5 5.01 UTILITIES AND TAXES. Lessee will be responsible for all utilities required by its use of the Premises. Lessee will pay its proportionate share of utilities furnished by Lessor, or will arrange to have its utilities separately metered. Lessee will pay any increase in real estate taxes, or any governmental charge or assessment that Lessor demonstrates arises by reason of Lessee's occupancy,use or operations on the Premises. In the event that the real estate tax assessment on Lessor's property reflects Lessee's improvements, Lessor agrees to provide to Lessee in a timely manner, a copy of the assessment. Lessee may contest, at its expense, any assessment imposed on the Premises or Lessee's activities. 5.02 TITLE AND QUIET ENJOYMENT. Lessor represents and warrants to Lessee that a) Lessor has full right, power and authority to execute this Agreement, and will provide Lessee with evidence of such authority; b) Lessor has good and marketable title to the Premises free and clear of any liens or mortgages except those matters which are recorded with the County Recorder as of the Effective Date; and c) there is direct legal ingress and egress to the Premises for Lessee's use for vehicles and pedestrians from a public right-of-way. Lessor further covenants that Lessee shall have quiet enjoyment of the Premises during the term of this Agreement and any Page 7 G:\ANTENNAS\Verizon\LEASE AGREEMENT-02VER2013N Markup.docx_:.•• - ! ! _ _ - ._- 2363624v2 MINC Skittles renewal thereof. For any encumbrance which is a matter of public record, Lessor will promptly obtain from such encumbering entity a non-disturbance agreement stating that so long as Lessee is not in default hereunder,this Agreement will continue in full force and effect. Lessor agrees to notify Lessee immediately if at any time during the term of this Agreement, Lessor decides to subdivide, sell or change the status of the Premises or the Property, or if Lessor learns of any pending or threatened or contemplated actions, litigation, claims, condemnations or other proceedings which would affect the Premises or any part of the Premises, or any land use or development proposals affecting property in the vicinity of the Property of which Lessor receives actual notice. 5.03 SUCCESSORS AND ASSIGNS. This Agreement shall run with the Property and shall be binding on and inure to the benefit of the parties, their respective successors, personal representatives and assigns. 5.04 COMPLETE AGREEMENT. It is hereby mutually agreed and understood that this Agreement contains all agreements, promises and understandings between Lessor and Lessee and that no other agreements, promises, or understandings shall or will be binding on either Lessor or Lessee in any dispute, controversy or proceeding at law and any addition, variation or modification to this Agreement shall be void and ineffective unless in writing and signed by parties hereto. 5.05 APPLICABLE LAW. This Agreement and the performance thereof shall be governed, interpreted, construed and regulated by the laws of the State in which the Premises are located. 5.06 NOTICES. All notices and other communications including changes in Lessor's Rent Payee, required or permitted under this Agreement shall be in writing and shall be given by United States first class mail, postage prepaid, registered or certified, return receipt requested, or by hand delivery(including by means of a professional messenger service) addressed to the party for whom it is intended at its address set forth in Article 1. Any such notice or other communication shall be deemed to be effective when actually received or refused. Either party may by similar notice given change of address to which future notices or other communications shall be sent. 5.07 AUTHORITY. Each of the individuals executing this Agreement on behalf of the Lessee or the Lessor represents to the other party that such individual is authorized to do so by requisite action of the other party to this Agreement by requisite action of the party to this Agreement on behalf of which it is executed. 5.08 DUTIES. This section intentionally left blank. 5.09 RECORDING. Lessor shall execute and Lessee shall be permitted to record, at any time, a memorandum of this Agreement. If this Lease Agreement is terminated prior to the expiration of its term, Lessee shall record an appropriate instrument to clear the memorandum from the title to the Property. 5.10 ADDITIONAL MAINTENANCE EXPENSES. All additional expenses; Page 8 G:\ANTENNAS\Verizon\LEASE AGREEMENT-02VER2013N Markup.docxG:\ANTENNAS\Verizon\LEASE AGREEMENT 02VER2013N Verizon draft.docx 2363624v2 MINC Skittles ee ee _ . ' :.. . , of maintaining the Property, including painting or other maintenance of the Tower on which Lessee's antennas are to be mounted, which result from Lessee's occupancy of the Property, shall be paid promptly to Lessor by Lessee upon Lessor's delivery of an itemized bill to Lessee of such additional costs. 5.11 APPROVAL. Lessee may not erect the Facility or other improvements on the Property until Lessee receives all approvals from the Rosemount City Council pursuant to applicable city ordinances. 5.12 PRIMARY USE. The primary purpose of the Tower is to provide water service to residents of Rosemount. In the event that the use of the Tower for water service is jeopardized because of Lessee's antenna usage on the Tower,the Lessor may require Lessee to make such adjustments to its facilities or operations as are necessary to ensure that Lessor's use is no longer jeopardized. 5.13 CONDEMNATION. If a condemning authority takes any portion of the Lessor's Property and such taking adversely affects Lessee's use of the Lessor's Property, this Agreement shall terminate as of the date of taking, if Lessee gives written notice of the same within thirty(30) days after Lessee receives notice of such taking. Lessee shall be entitled to no portion of any condemnation award except the value of its physical improvements on the Property. Upon termination of this Lease by reason of condemnation, Lessor shall return to Lessee any prepaid rent, prorated to the date of taking. Lessee may make claims against the condemning authority for any relocation benefits or other damages to which it may be entitled by law. Sale of all or part of the Property to a purchaser which has the power of eminent domain in the face of the exercise of the power shall be treated as a taking by condemnation, and the date of such conveyance shall be deemed the date of taking. 5.14 MISCELLANEOUS. A) This Agreement maybe signed in counterparts by the parties hereto. B) Each party shall from time to time, within twenty (20) days after written request from the other party, execute, acknowledge and deliver an estoppel certificate indicating that the Agreement and any amendments thereto are in full force and effect, setting out the current monthly rental amount, date rent is paid through, expiration date of the then current term, and acknowledge that there are not, to such party's knowledge, any uncured defaults, or specifying such defaults if any are claimed. C) If either party is represented by broker or listing agent, each party is responsible for all commission,fee or other payment to such agent. D) Accurate as-built or record drawings as approved by the City Engineer shall be provided to the City within 30 days after installation of Lessee's facilities. E) The rights of Lessee under this Agreement are subject and subordinate to the rights of the following lessees: Page 9 GAANTENNASIVerizon\LEASE AGREEMENT-02VER2013N Markup.docxG:1ANTENNAS\Verizon\LEASE AGREEMENT 02VER2013N Verizon draft.docx 2363624v2 MINC Skittles o T-Mobile USA under that certain Tower Lease Agreement by and between the City of Rosemount and T-Mobile USA dated March 1, 1997 and amended December 29, 2011. o Clear Wireless LLC under that certain Tower Lease Agreement by and between the City of Rosemount and Clear Wireless LLC dated January 19,2010. Lessee acknowledges receipt of a copy of said Tower Lease Agreements. F) Lessee shall place no advertising on the site or on any structure on the site. G) All antenna panels will be painted to match the Tower. H) All landscaping and turf which is damaged by Lessee shall be restored to a condition reasonably acceptable to Lessor. I) Lessee shall not use any process or method in the installation, maintenance or removal of any improvement on the Tower by means of welding, cutting tool, or other device, which could damage the Tower, including its interior and exterior paint or any equipment attached thereto, without the Lessor's prior written consent,which shall not be unreasonably withheld. J) Lessee must keep its leased area free of debris and in compliance with all applicable Laws. K) Lessee shall remove its Facility at Lessee's cost, upon reasonable notice to allow maintenance, repair, repainting, or restoration to other activity as reasonably required by Lessor. There may be scheduled interruptions in use of the Facility. Except in the case of an emergency Lessor shall give Lessee thirty (30) days' notice of repair, repainting or restoration. In case of an emergency, Lessor may require Lessee to immediately remove Lessee's Facility upon notification to Lessee by telephone. An "emergency" shall be deemed to exist only in those situations which constitute an immediate threat to the health or safety of the public or immediate danger to the Property. In the event the use of Lessee's Facility is interrupted, Lessee shall have the right to maintain mobile cellular sites on wheels on the Property or after approved by Lessor, on any land owned or controlled by Lessor in the immediate area of the Property. L) Lessee may assign this Agreement without any approval or consent of the Lessor to the Lessee's principal, affiliates, subsidiaries of its principal, or to any entity which acquires all or substantially all of Lessee's assets in the market defined by the Federal Communications Commission in which the Property is located by reason of merger, acquisition or other business reorganization. As to other parties,this Agreement may not be sold, assigned or transferred without the written consent of the Lessor, which such consent will not be reasonably withheld, delayed or conditioned. No change of stock ownership, partner interest or control of Lessee or transfer upon partnership or corporate dissolution of Lessee shall constitute an assignment hereunder. L) Lessee may assign this Agreement to a parent, subsidiary or purchaser of all or substantially all of Lessee's assets upon prior written notice to Lessor. M) Lessee will pay the Lessor for expenses incurred when Lessor is required to lock or unlock Page 10 G:WNTENNAS\Verizon\LEASE AGREEMENT-02VER2013N Markup.docx_:.• _ _ •-F • ! ER2013N Verizon draft.docx 2363624v2 MINC Skittles facilities to provide access to Lessee for routine maintenance scheduled during non-business hours. Business hours are Monday through Friday 7:00 a.m. to 3:00 p.m. Lessee will be invoiced for staff time at their overtime rate plus benefits. The number of hours charged will be determined by the Teamsters contract in place with the City at the time of the service request (currently 2.5 hours for each call out). Lessee will pay charges within 30 days of receipt of the invoice. N) Lessee will provide 24-hour notice to Lessor of any on-site routine maintenance that will involve Lessee's personnel or equipment on the Property.. Notice must be given by phone to the Rosemount Public Works Department at 651-322-2022. 0) If Lessor elects during the term to sell, otherwise transfer or grant to a third party by easement or other legal instrument, an interest in and to any portion of the Tower and/or Property occupied by Lessee for the purpose of operating and maintaining communications facilities or the management thereof, with or without an assignment of this Agreement to such third party, Lessee shall have the right of first refusal to meet any bona fide offer of sale or transfer on the same terms and conditions of such offer. If Lessee fails to meet such bona fide offer within thirty (30) days after written notice thereof from Lessor, Lessor may sell or grant the easement or interest in the Property or portion thereof to such third person in accordance with the terms and conditions of such third party offer. IN WITNESS WHEREOF,the parties hereto have set their hand and affixed their respective seals the day and year written below. LESSOR: CITY OF ROSEMOUNT By. William H.Droste,Mayor By. Page 11 G:IANTENNAS\Verizon\LEASE AGREEMENT-02VER2013N Markup.docxG:\ANTENNAS\Verizon\LEASE AG' A A ! - ! 2363624v2 MINC Skittles Amy Domeier, City Clerk LESSEE: VERIZON WIRELESS (VAW) LLC d/b/a Verizon Wireless By Lynn Ramsey Its:Area Vice President Network Date Page 12 G:ANTENNAS\Verizon\LEASE AGREEMENT-02VER2013N•Markup.docx_:.•• • • •- - • - . . - ! - - .--- 2363624v2 MINC Skittles EXHIBIT A SKETCH AND DESCRIPTION OF PROPERTY, LEASE AREA AND ACCESS/UTILITY EASEMENT: See attached Exhibit (site drawings) LEGAL DESCRIPTION OF OWNER'S PROPERTY: Address: 13831 Connemara Trail Rosemount,Minnesota Legal: That part of the Southeast 1/4 of Section 19, T115, R19,Dakota County,Minnesota, described as follows: Commencing at the northeast corner of Lot 1, Block 3, Country Hills Third Addition; thence N 1 deg. 12'41" W along the east line of said plat 80 feet to the point of beginning;thence continuing N 1 deg. 12'41" W a distance of 250 feet;thence N 89 deg. 28'03" E a distance of 300 feet;thence S 1 deg, 12'41" E a distance of 250 feet;thence S 89 deg. 28'03" W a distance of 300 feet,to the point of beginning. It is agreed by Lessor and Lessee that the precise legal description for the Lessor's Property will be corrected, if necessary, and that the correct legal description may be placed on this EXHIBIT A by Lessee. Page 13 G:\ANTENNAS\Verizon\LEASE AGREEMENT-02VER201 3N•Markup.docx - - - • - ' ' - 2363624v2 MINC Skittles EXHIBIT B TO SITE AGREEMENT FORM OF MEMORANDUM OF AGREEMENT THIS MEMORANDUM evidences that an Agreement was made and is hereby entered into by written agreement effective this day of , 2013, between the City of Rosemount, a Minnesota Municipal Corporation ("Lessor"), and VERIZON WIRELESS (VAW) LLC D/B/A VERIZON WIRELESS, a Delaware limited liability company,the terms and conditions of which are incorporated herein by reference. Such Agreement provides, in part,that Lessor, for valuable consideration, leases to Verizon Wireless a part of that certain property owned by Lessor which is described in EXHIBIT A attached hereto and incorporated herein for a term of five (5) years commencing no later than , 2013, which term is subject to three (3) additional five (5) year extension terms. Page 14 G:\ANTENNAS\Verizon\LEASE AGREEMENT-02VER2013N Markup.docxG:VWTENNAS\Verizon\LEASE AGREEMENT 02VER2013N Vcrizon draft.docx 2363624v2 MINC Skittles EXHIBIT C TO SITE AGREEMENT CONDITIONS PRECEDENT 1) All permits from all local or federal land use jurisdictions for the intended use. 2) All local airspace authorities and FAA determination of no hazard to airspace. 3) FCC authorization to utilize this location for the intended use. 4) Review and approval of site plan and landscape (plantings) plan by the City,paid for by Lessee. 5) Lessee will pay for a review of the proposed structural addition to the Tower by a registered professional Engineer of the Lessee's choosing. 6) Lessee's technical reports must establish to its exclusive satisfaction that the property is capable of being suitably engineered to accomplish Lessee's intended use of the property. Page 15 G:\ANTENNAS\Verizon\LEASE AGREEMENT-02VER2013N Markup.docxG:\ANTENNAS\Verizon\LEASE AGREEMENT 02VER2013N Vcrizon draft.docx 2363624v2 MINC Skittles Memorandum of Lease THIS MEMORANDUM evidences that an Agreement was made and is hereby entered into by written agreement effective this day of , 201_, between the City of Rosemount, a Minnesota municipal corporation ("Lessor"), and VERIZON WIRELESS (VAW) LLC D/B/A VERIZON WIRELESS ("Lessee"), a Delaware limited liability company, the terms and conditions of which are incorporated herein by reference. Such Agreement provides, in part, that Lessor, for valuable consideration, leases to Lessee a part of that certain property owned by Lessor which is described in EXHIBIT A attached hereto and incorporated herein for a term of five (5) years commencing no later than March 1, 2014, which term is subject to three (3) additional five(5) year extension terms. Lessor: Lessee: City of Rosemount VERIZON WIRELESS (VAW) LLC d/b/a Verizon Wireless By Its Mayor By Lynn Ramsey By Its Area Vice President Network Its City Clerk Date: Date: MIN Skittles Memorandum 433146v2 CBR RS220-179 G:\ANTENNAS\Verizon\Memorandum of Lease-02VER2013N.DOCX STATE OF MINNESOTA ) ) SS. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this day of , 201 , by William H. Droste and Amy Domeier, the mayor and city clerk of the City of Rosemount, a municipal corporation under the laws of the State of Minnesota, Lessor. Notary Public NOTARY STAMP OR SEAL STATE OF ILLINOIS ) ) SS. COUNTY OF COOK ) • The foregoing instrument was acknowledged before me this day of , 201 , by Lynn Ramsey, the Area Vice President Network of VERIZON WIRELESS (VAW) LLC d/b/a Verizon Wireless, a limited liability company under the laws of the State of Delaware, Lessee. Notary Public NOTARY STAMP OR SEAL THIS INSTRUMENT DRAFTED BY: Kennedy& Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 MIN Skittles Memorandum 433146v2 CBR RS220-179 G:\ANTENNAS\Verizon\Memorandum of Lease-02VER2013N.DOCX EXHIBIT A LEGAL DESCRIPTION OF OWNER'S PROPERTY: Address: 13831 Connemara Trail Rosemount,Minnesota Legal: That part of the Southeast 1/4 of Section 19, T115,R19,Dakota County,Minnesota, described as follows: Commencing at the northeast corner of Lot 1,Block 3, Country Hills Third Addition; thence N 1 deg. 12'41" W along the east line of said plat 80 feet to the point of beginning;thence continuing N 1 deg. 12'41" W a distance of 250 feet;thence N 89 deg. 28'03" E a distance of 300 feet;thence S 1 deg, 12'41" E a distance of 250 feet;thence S 89 deg. 28'03" W a distance of 300 feet,to the point of beginning. 433146v2 CBR RS220-179 G:\ANTENNAS\Verizon\Memorandum of Lease-02VER2013N.DOCX