HomeMy WebLinkAbout6.h. Tower Lease Agreement 4 ROSEMOUNT EXECUTIVE SUMMARY
CITY COUNCIL
City Council Meeting: April 15, 2014
AGENDA ITEM: Tower Lease Agreement AGENDA SECTION:
Consent
PREPARED BY: Andrew J. Brotzler, PE, Director of Pttb}jc AGENDA NO Vi.1,1,
Works / City Engineer
ATTACHMENTS: Tower Lease Agreement APPROVED BY:
RECOMMENDED ACTION: Motion to Approve the Tower Lease Agreement with Cingular
Wireless PCS, LLC (AT&T) for the Cellular Equipment on the Connemara Water Tower and
Authorize Necessary Signatures
BACKGROUND:
Attached is the Tower Lease Agreement between the City and Cingular Wireless PCS,LLC (AT&T) that
has been reviewed by AT&T, City staff and the City Attorney, as well as the Utility Commission members
at the April 7, 2014 Utility Commission meeting. The Utility Commission has made a recommendation
for City Council approval of the Tower Lease Agreement.
Below is an outline of the terms of the Lease Agreement:
• Nine (9) tower-mounted antennas and approximately 276 square feet of ground space
• $34,650 first-year rent (prorated) with an annual rent escalator of 5%
• Initial term—5 years
• Automatic extensions—3 extension periods of 5 years each
• Total of 20 years
The rent is calculated based on the rates approved by the City Council in August 2013. AT&T has
requested that the condition of using the Consumer Price Index (CPI) as an alternate rent escalator be
removed from the lease. Members of the Utility Commission were agreeable to removing this condition
based on the fact that the CPI has not exceeded 4% in the past 22 years. If the CPI should rise above 5%
during the term of the lease, the City does not necessarily lose money, but rather the ability to lease the
space to another tenant for a higher annual rent.
SUMMARY:
Staff is requesting Council approval and execution of the Tower Lease Agreement with Cingular Wireless
PCS, LLC (AT&T) for the cellular equipment on Connemara Tower. A signed agreement from AT&T is
expected to be received soon and will be distributed for City signatures.
G:W NTENNAS\AT&T\20140415 CC Approve Lease Agreement-02ATT2014N.docx
TOWER LEASE AGREEMENT
This Lease Agreement ("Agreement") is made and entered into this day of
, 2014, by and between the CFIY OF ROSEMOUNT, a Minnesota municipal
corporation, with an office at 2875 145th Street West, Rosemount, Minnesota, 55068-0510
("Lessor") and New Cingular Wireless PCS, LLC, 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
nine (9) antennas and ground space (approximately 276 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: New Cingular Wireless PCS,LLC
F) Lessee's Address: New Cingular Wireless PCS,LLC
Attn: Network Real Estate Administration
Re: Cell Site#: MPLSMNU3270;
Cell Site Name: Shannon Park (MN)
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Fixed Asset No.: 12564780
575 Morosgo Dr. NE
Suite 13-F West Tower
Atlanta, GA 30324
Site Manager Name: Rick Jones
Phone: 952-656-9341
With a copy to: New Cingular Wireless PCS,LLC
Attn.: Legal Department
Re: Cell Site #: MPLSMNU3270;
Cell Site Name: Shannon Park (MN)
Fixed Asset No.: 12564780
208 S. Akard Street
Dallas, Texas, 75202-4206
G) Commencement Date: The initial term of this Agreement shall begin on the first day
of the month following the date Lessee begins installation of any of its Equipment
on the Premises and the Tower, and subject to the terms of Paragraph 3.07
following, shall end on the fifth anniversary of the Commencement Date (the
Expiration Date). The Commencement Date shall be no earlier than the date on
which all conditions precedent detailed in EXHIBIT C have been met, and no later
than December 1, 2014.
H) Rent: Thirty-Four Thousand, Six Hundred Fifty Dollars ($34,650) annually in the
first year and as a minimum, further described in Section 3.02. As described in
Section 3.02, Lessee shall pay the Lessor rent annually in advance beginning forty-
five (45) days after the Commencement Date for the first year (pro-rated for the
period from the Commencement Date through December 31, 2014), and thereafter
on the first day of January. Any initial partial year will be prorated.
I) Extension Periods: Three (3) automatic renewal periods of five (5) years, beginning
at midnight on the Expiration Date of the initial term, but subject to Section 3.03.
J) The antenna system will include mounting of up to nine (9) 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,
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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 TERM. The term of this Lease shall begin on the Commencement
Date and shall expire on the Expiration Date. 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 a location to be
approved by the Lessor's City Engineer.
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. This Agreement shall be for an initial term of five (5) years,
commencing on the Commencement Date, at an annual rental of Thirty-Four Thousand, Six
Hundred Fifty Dollars ($34,650), increased annually by an amount equal to the percent change in the
Consumer Price Index ("CPI") or four five percent (5%), whichever is greater, as set forth herein.
All rent shall be paid on or before the first day of each year (i.e.,January 1) immediately following
the Commencement Date of the initial term and any Renewal Terms of this Agreement, except that
for the first year, Lessee shall pay one (1) years rent, in advance, prorated from the Commencement
Date through December 31, and resume payment of the annual rent on the second year of the initial
term which will start on January 1 following the Commencement Date. First year payment is due
forty-five (45) days after Commencement Date as set forth in Article 1H.
The annual rent shall be increased each year, from the annual rent rate for the previous year,
by an amount equal to the percent change in the CPI or four five percent (5%), whichever is greater,
as provided herein. The date of the first increase will be January 1, 2015. The CPI „hall mean the
"Consumer Price Index for all Urban Consumer;, all Cities, all Items (1967-100)" as published by
the United States Department of Labor Statistics, 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. I.essor shall be responsible for communicating all rental
increases to the Lessee.,
I atal such time as Lessor makes such computation and provides Lessee with documentation
Lessee in the preceding lease year preceding the rental adjustment and, in the event the rental
adjastmenr computation provided by Lessor require., an increase in the amount of the annual Rent,
any such increase, pay to I.esor the amount of such increase If the CPI is discontinued or revised,
such other government index or computation with which it is replaced shall he used in order to
obtain substantially the Jame result as if the CPI had not been discontinued or revised. In the event
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arbitration in accordance with th rule.; of the American Arbitration A.;.;ocial-ion. Each parte Shall be
respon3ible for their own co;ts and fee;.
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 upon the same
terms and conditions for each additional five (5) year extension term unless Lessee provides written
notice to Lessor at least sixty (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 including the transmission and reception of communications signals (the "Facility"),
consisting of ground space of not to exceed 276 square feet, a number of panel and dish antennas,
none of which shall exceed six feet (6') in height, and all necessary connecting wave guide and
appurtenances attached to Lessor's existing water tank. Up to nine (9) 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.
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 locations approved by the City Engineer.
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, 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
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adhere to the same technical standards as set forth herein.
In its use of the Premises, Lessee will not interfere with the operations of Lessor, the
communications of public safety or service agencies including public schools, fire departments,
police departments, sheriff departments, or the 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 termination fee described in
Article 3.07.
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 Premises by Lessee, which shall not exceed 180 frequencies
at the time of such request. Lessor may then have a registered professional engineer of Lessor's
choice perform the necessary interference studies to insure that the proposed tenant's frequencies
will not cause harmful radio interference to Lessee's frequencies. In such case, if it is determined
that the proposed tenant's frequencies will likely cause harmful radio interference to Lessee's
frequencies, then Lessor will not grant the lease, license or any other right to the proposed tenant.
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. Lessee shall pay to Lessor a charge
for the portion of such studies reasonably related to Lessee's frequencies in an amount not to exceed
Five Hundred Dollars ($500) per study.
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; 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, in its sole discretion, 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
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upon written notice to Lessor for any reason at any time prior to commencement of construction of
the Facility by Lessee.
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.
All portions of the Facility brought onto the Property by Lessee will be and remain Lessee's
personal property and, at Lessee's option, may be removed by Lessee at any time during the term of
this Agreement. Lessor waives any and all lien rights it may have, statutory or otherwise, concerning
the Facility or any portion thereof. The Facility shall be deemed personal property for purposes of this
Agreement, regardless of whether any portion is deemed real or personal property under applicable
law;Lessor consents to Lessee's right to remove all or any portion of the Facility from time to time in
Lessee's sole discretion and without Lessor's consent.
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 prior to said
termination date shall be retained by Lessor. Upon such termination, this Agreement shall become
null and void and all the parties shall have no further obligations, including the payment of money.
Article 4
4.01 LESSEE'S INSURANCE. During the Term, Lessee will carry, at its own
cost and expense, the following insurance: (i) workers' compensation insurance as required by law;
and (ii) commercial general liability (CGL) insurance with respect to its activities on the Property,
such insurance to afford protection of up to Three Million Dollars ($3,000,000) per occurrence and
Six Million Dollars ($6,000,000) general aggregate, based on Insurance Services Office (ISO) Form
CG 00 01 or a substitute form providing substantially equivalent coverage. Lessee's CGL insurance
shall contain a provision including Lessor as an additional insured. Such additional insured
coverage:
(a) shall be limited to bodily injury, property damage or personal and advertising injury caused, in
whole or in part, by Lessee, its employees, agents or independent contractors;
(b) shall not extend to claims for punitive or exemplary damages arising out of the acts or
omissions of Lessor, its employees, agents or independent contractors or where such coverage is
prohibited by law or to claims arising out of the gross negligence of Lessor, its employees, agents
or independent contractors; and
(c) shall not exceed Lessee's indemnification obligation under this Agreement, if any.
At all times during the term, Lessee, at its own expense, shall maintain "All Risk" property
insurance for its property's replacement cost
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
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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 party, 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 Article 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 the 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 (unless Lessee places temporary
transmission and reception facilities on the Property as set forth below, in which case there shall be
no Rent abatement). 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 either (i) Lessor undertakes to rebuild or restore the Tower and this
Agreement is not otherwise terminated, or (ii) Lessor does not undertake to rebuild or restore the
Tower and/or this Agreement is otherwise terminated, Lessor agrees to permit Lessee to place
temporary transmission and reception facilities on the Property, but only until such time as either (1)
the Tower is restored and Lessee is able to operate the Facility from the Premises, or (2)Lessee is
able to activate a replacement transmission facility at another location. Such temporary facilities will
be governed by all of the terms and conditions of this Agreement, including Rent.
4.05 CASUALTY. If any portion of the Lessor's Property or Lessee's Facility is
damaged by any casualty and such damage adversely affects Lessee's use of the Property, in Lessee's
sole determination, 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
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.
4.07 LESSEE COMPLIANCE. Lessee will promptly comply with all 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 Laws to the extent that such compliance is required
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solely as a result of Lessee's use or occupancy of the Premises.
4.08 ENVIRONMENTAL MATTERS. a) Lessee will be solely 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 brought onto the Property by Lessee; b) Lessor will be solely 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 or the Property associated with the
Lessor's use of Hazardous Materials on the Property. 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. Lessee shall state the nature of
hazardous materials at the facility including, asbestos, batteries and fuel supply; d) In the event
Lessee becomes aware of any Hazardous Materials on the Property, or any environmental, health or
safety condition or matter relating to the Property not caused by Lessee, that, in Lessee's sole
determination, renders the condition of the Premises or Property unsuitable for Lessee's use, or if
Lessee believes that the leasing or continued leasing of the Premises would expose Lessee to undue
risks of liability to a government agency or third party, Lessee will have the right to terminate this
Agreement upon written notice to Lessor.
The obligations of this section shall survive the expiration or other termination of this
Agreement.
Article 5
5.01 UTILITIES AND TAXES.
UTILITIES. 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.
TAXES.
(a) If applicable, Lessor shall be responsible for timely payment of all taxes and
assessments levied upon the lands, improvements and other property of Lessor, including any such
taxes that may be calculated by the taxing authority using any method, including the income
method. Lessee shall be responsible for any taxes and assessments attributable to and levied upon
Lessee's leasehold improvements on the Premises (including any proportionate increase in taxes that
is attributable to the value of Lessee's leasehold improvements) if and as set forth in this Section
5.01 and Lessee will also be responsible for the payment of all taxes assessed to Lessee under
Minnesota law for the privilege of use and possession of the Premises pursuant to Minnesota
Statutes, Section 272.01 or otherwise. Nothing herein shall require Lessee to pay any inheritance,
franchise, income, payroll, excise, privilege, rent, capital stock, stamp, documentary, estate or profit
tax, or any tax of similar nature, that is or may be imposed upon Lessor.
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(b) In the event Lessor receives a notice of assessment with respect to which taxes or
assessments are imposed on Lessee's leasehold improvements on the Premises, Lessor shall provide
Lessee with copies of each such notice immediately upon receipt. For any tax amount for which
Lessee is responsible under this Agreement, Lessee shall have the right to contest, in good faith, the
validity or the amount thereof using such administrative, appellate or other proceedings as may be
appropriate in the jurisdiction, and may defer payment of such obligations, pay same under protest,
or take such other steps as Lessee may deem appropriate. This right shall include the ability to
institute any legal, regulatory or informal action in the name of Lessee,with respect to the valuation
of the Premises. Upon request and where deemed appropriate by Lessee, Lessor shall assign to
Lessee all of Lessor's right, tide and interest in and to any protest right or refund claim for taxes for
which Lessee is responsible under this Section 5.01. The expense of any proceedings described in
this Section shall be borne by Lessee and any refunds or rebates secured as a result of Lessee's
action shall belong to Lessee, to the extent the amounts were originally paid or borne by Lessee.
(c) Lessee shall have the right but not the obligation to pay any taxes due by Lessor
hereunder if Lessor fails to timely do so, in addition to any other rights or remedies of Lessee. In
the event that Lessee exercises its rights under this Section due to such Lessor default, Lessee shall
have the right to deduct such tax amounts paid from any monies due to Lessor from Lessee.
(d) Any tax-related notices shall be sent to Lessee in the manner set forth in Section
5.06 and, in addition, a copy of any such notices shall be sent to the following address. Promptly
after the effective date of this Agreement, Lessor shall provide the following address to the taxing
authority for the authority's use in the event the authority needs to communicate with Lessee. In the
event that Lessee's tax addresses changes by notice to Lessor, Lessor shall be required to provide
Lessee's new tax address to the taxing authority or authorities.
New Cingular Wireless PCS,LLC
Attn: Network Real Estate Administration—Taxes
Re: Cell Site #: MPLSMNU3270; Cell Site Name: Shannon Park (MN)
Fixed Asset No.: 12564780
575 Morosgo Drive NESuite 13-F West Tower
Atlanta, GA 30324
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 tide to the Premises free
and clear of any liens or mortgages except those matters which are of public record 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 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
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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 in the form attached hereto as EXHIBIT B.
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 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 notice to Lessee of such additional costs.
5.11 APPROVAL. Lessee may not erect the Facility or other improvements on
Page 10 G:A:ANTFNNAS\.ATeaVI,I-.ASF:AGRFEMFNT-02.1172014N-Finatdocx
the Property until Lessee receives all approvals from the Rosemount City Council pursuant to
applicable city ordinances. In addition, this Agreement is subject to the conditions precedent
detailed in EXfIIBIT C attached hereto.
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 antenna usage on the installation of the Facility, 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 the Premises or Lessee's use of the Lessor's
Property, in Lessee's sole determination, 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 Lessor's condemnation award but may pursue its
own separate award for the value of its physical improvements on the Property, including the
Facility, moving expenses and business dislocation expenses. 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 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 MISCE-I ANEOUS.
A) This Agreement may be signed in counterparts by the parties hereto.
B) Each party agrees to furnish to the other, within ten (10) days after request, such truthful
estoppel information as the other may reasonably request.
C) Lessee represents that they have not been represented by a real estate broker or other listing
agent in this transaction for purposes of commission, fee or other payment to such broker or any
other leasing agent claiming to have represented Lessee. If Lessor is represented by broker or listing
agent Lessor 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:
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.
Page I I G:AANTENNASV AT&T\LEASE AGREILMLN I -02ATT2074N-Final.docx
o Verizon Wireless (VAW) LLC under that certain Tower Lease Agreement by and
between the City of Rosemount and Verizon Wireless (VAW) LLC dated March 25,
2014.
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 the property free of debris caused by Lessee and anything of a dangerous,
noxious or offensive nature or which would create a hazard, undue vibration, heat, noise, etc. if
caused by Lessee.
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 remove Lessee's Facility but shall notify Lessee by telephone within a
reasonable time. 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, sell or transfer its interest under this Agreement,without Landlord's
consent to (i) Lessee's parent, subsidiary, or an Affiliate, or (ii) any entity that acquires all or
substantially all of the Lessee's assets in the market as defined by the Federal Communications
Commission in which the Property is located . Lessee may not otherwise assign this Agreement or
sublet the Premises without Landlord's consent,Landlord's consent not to be unreasonably
withheld, conditioned or delayed.
For purposes of this Agreement, an "Affiliate" of Lessee means any entity that(directly or
indirectly) controls, is controlled by, or under common control with, that party. "Control" of an
entity means the power (directly or indirectly) to direct the management or policies of that entity,
whether through the ownership of voting securities, by contract, by agency or otherwise. For the
avoidance of doubt, an Affiliate of Lessee includes Lessee's parent company.
Page 12 G:AANFI?NNAS\AT&T VI.HASIi AGRPF'MFNT-02X1112014N-FinaLdoce
M) Lessee will pay the Lessor for expenses incurred when Lessor is required to lock or unlock
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. Invoices to
Lessee shall be sent to the following address:
New Cingular Wireless PCS,LLC
Attn: Network Real Estate Administration
Re: Cell Site #: MPLSMNU3270;
Cell Site Name: Shannon Park (MN)
Fixed Asset No.: 12564780
4300 Market Pointe Drive, Suite 350
Bloomington, MN 55435
N) Lessee will provide 24-hour notice to Lessor of any on-site routine maintenance that will
involve Lessee's personnel or equipment at the water tower location. Notice must be given by
phone to the Rosemount Public Works Department at 651-322-2022.
0) Except for any indemnity obligations set forth in this Agreement, and otherwise
notwithstanding anything to the contrary in this Agreement, Lessee and Lessor each waives any
claims that each may have against the other with respect to consequential, incidental or special
damages, however caused, based on any theory of liability.
Page 13 G:A ANTENNAS\:AT&TVLEASE AGREEMENT-02ATT2014N-Finaldocx
EXHIBIT A
SKETCH AND DESCRIPTION OF PROPERTY:
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 14 G:A ANTENNAS V AT&T\LEAS!I AGRI?IS60!N"I'-02A I I2014N-F inaLdocx
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EXHIBIT B
TO SITE AGREEMENT
MEMORANDUM OF AGREEMENT
THIS MEMORANDUM evidences that an Agreement was made and is hereby entered into by
written agreement effective this day of , 2014, between the City of
Rosemount, a Minnesota Municipal Corporation ("Lessor"), and New Cingular Wireless PCS, LLC,
a Delaware limited liability company, ("Lessee"), 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 the purpose of Lessee installing, operating and maintaining a
communications facility and other improvements, for a term of five (5) years commencing on
, 2014, which term is subject to three (3) additional five (5) year
extension terms.
This Memorandum is not intended to amend or modify, and shall not be deemed or construed as
amending or modifying, any of the terms, conditions or provisions of the Agreement, all of which
are hereby ratified and affirmed. In the event of a conflict between the provisions of this
Memorandum and the provisions of the Agreement, the provisions of the Agreement shall control.
The Agreement shall be binding upon and inure to the benefit of the parties and their respective
heirs, successors, and assigns, subject to the provisions of the Agreement.
Page 15 G:AANTI-NN ASV AT&T VLEASE AG RHFMKN'I'-02:V11'2014N-Final.docx
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 City'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.
7) Without limiting the foregoing, the suitability of the Premises and Property for Lessee's use
and Lessee's ability to obtain and maintain all governmental licenses, permits, approvals or
other relief required of or deemed necessary or appropriate by Lessee for its use of the
Premises, including without limitation applications for zoning variances, zoning ordinances,
amendments, special use permits, and construction permits.
Page 16 G:A ANTENNAS VAPi1 P21 k'.:ASH:AG R1;KVII;N't-112ATI'2014N-Pinal.docx
IN WITNESS WHEREOF, the parties hereto have set their hand and affixed their
respective seals the day and year first above written.
LESSOR: CITY OF ROSEMOUNT
By:
William H. Droste, Mayor
By:
Amy Domeier, City Clerk
LESSEE: NEW CINGULAR WIRELESS PCS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By:
Its:
Date
Page 17 G:A ANTI?NNASV ATM VLD:.ASIS AGRI MAIENT-02AII2014N-Final.docx
MUNICIPAL CORPORATE ACKNOWLEDGMENT
STATE OF MINNESOTA )
) ss
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this day of
, 2014, by William H. Droste, as Mayor, and Amy Domeier, as City
Clerk, both of the City of Rosemount, a Minnesota municipal corporation, on behalf of the
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
Notary Public in and for the State
of Minnesota residing at
My appointment expires
Page 18 G:AANIl NNASV AT&T VLEASH AGREE:NIN:NT-021'11'2014N-Final.docx
LESSEE ACKNOWLEDGMENT
STATE OF
) ss
COUNTY OF
The foregoing instrument was acknowledged before me this day of
, 2014, by as
of AT&T Mobility Corporation, the Manager of New
Cingular Wireless PCS, LLC, the Lessee named in the attached instrument, and as such was
authorized to execute this instrument on behalf of the Lessee.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
Notary Public in and for the State
of residing at
My appointment expires
Page 19 G:AANTFNNASVAT&"P\LEASE AGRGI SMI N'I'-02A'IT2014N-Pinal docx