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HomeMy WebLinkAbout6.h. Approve AT&T Tower Lease Agreementr CITY OF ROSEMOUNT EXECUTIVE SUMMARY FOR ACTION CITY COUNCIL MEETING DATE: April 18, 2000 Attached is the Executive Summary from the Utility Commission Meeting of April 17, 2000 where the Commission approved the Tower Lease Agreement with AT &T. Staff recommends that the City Council approve the Tower Lease Agreement with AT & T and authorize the necessary signatures. RECOMMENDED ACTION: MOTION TO APPROVE THE TOWER LEASE AGREEMENT WITH AT & T AND AUTHORIZE THE NECESSARY SIGNATURES. COUNCIL ACTION: AGENDA ITEM: Approved AT & T Tower Lease Agreement AGENDA SECTION: Consent PREPARED BY: Mark Fremder Senior Engineering Technician AGEN . b . - H ATTACHMENTS: Executive Summary from Utility Commission Meeting of April 17, 2000 PROVED BY: Attached is the Executive Summary from the Utility Commission Meeting of April 17, 2000 where the Commission approved the Tower Lease Agreement with AT &T. Staff recommends that the City Council approve the Tower Lease Agreement with AT & T and authorize the necessary signatures. RECOMMENDED ACTION: MOTION TO APPROVE THE TOWER LEASE AGREEMENT WITH AT & T AND AUTHORIZE THE NECESSARY SIGNATURES. COUNCIL ACTION: CITY OF ROSEMOUNT EXECUTIVE SUMMARY FOR ACTION UTILITIES COMMISSION MEETING DATE: April 17, 2000 AGENDA ITEM: Revised AT & T Tower Lease Agreement AGENDA SECTION: Old Business PREPARED BY: Mark Fremder, Senior ;Engineering Technician AGEND �+ ATTACHMENTS: Revised Lease Agreement, Letter from City PPROV D BY. Attorney, E -mail from Julie Townsend to Charlie LeFevere Staff, as directed by the Commission, had Chalie LeFevere review Lease Agreements provided by the Commission. His letter addresses lease terms, number of antennas, and amount of rent. He has also reviewed other possible lease provisions which have been approved by AT &T and incorporated in the revised lease agreement. Provisions added to the lease are. under Section 6.14 paragraphs F — I. The attached revised Lease Agreement is for your consideration. Staff recommends that the City Council approve the revised AT &T Tower Lease Agreement and authorize the necessary signatures. RECOMMENDED ACTION: MOTION TO RECOMMEND TO CITY COUNCIL TO APPROVE THE REVISED AT &T TOWER LEASE AGREEMENT AND AUTHORIZE THE NECESSARY SIGNATURES. TOWER LEASE AGREEMENT This Lease Agreement ( "Agreement ") is made and entered into as of , 2000, by and between CITY OF ROSEMOUNT, 2875 145th Street West, Rosemount,' Minnesota, 55068 -4997 ( "Lessor") and AT &T WIRELESS SERVICES OF MINNESOTA, INC. (AT &T) ( "Lessee "), a Nevada corporation, its successor and assigns, for the leasing of certain property interest at the Chippendale Water Tower site (Tower No. 1), at 14950 Chippendale Avenue, 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 an antenna system and ground space (approximately 336 square feet) for an equipment compound (the "Premises "), as well as right of ways 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 Tower located at 14950 Chippendale Avenue 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 -4997 D) Lessor's Rent Payee: City of Rosemount 2875 145th Street West Rosemount, Minnesota 55068 -4997 E) Lessee: AT &T Wireless Services a Nevada corporation F) Lessee's Address: AT &T Wireless Services Attn: Real Estate Manager G) 2515 24' Avenue South Minneapolis, MN 55406 With a copy to: AT &T Wireless Services Attn: Legal Department 2729 Prospect Park Drive, Suite 200 Sacramento, CA 96570 Commencement Date: The initial term of this Agreement shall begin on the "Commencement Date" (as hereafter defined) and subject to the terms of Paragraph 3.07 following, shall end on December 31, 2005 (the Expiration Date). The Commencement Date shall be the date on which all conditions precedent detailed in Exhibit "C" have been met, but in no event later than June 1, 2000. H) Rent: Twelve Thousand and no /100 Dollars ($12,000) annually in the first year and as a minimum, further described in Section 3.02. AT &T shall pay the Owner rent annually in advance beginning ten (10) days after the Commencement Date for the first year and thereafter on the First (1st) day of January. Any initial partial year will be prorated. 1} Extension Periods: Two (2) automatic renewal periods of five (5) years, beginning at midnight on the Expiration Date of the initial term. J) The antenna system will include mounting of up to twelve 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, at Lessee's cost, 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 ". 2 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, 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, Connemara Trail, 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 (plus a partial first year), commencing on the Commencement Date, at an annual rental of Twelve Thousand Dollars (512,000), increased annually by an amount equal to the percent change in CPI or four percent (4 %) whichever is greater, as set forth herein. All rent shall be paid on or before the first day of each year immediately following the Commencement Date of the initial term and any Renewal Terms of this Agreement, except that for the initial term, Lessee shall pay one (1) years rent, in advance, (partial year will be prorated) on the Commencement Date and resume payment of the rent on the second year of the initial term which will start on January 1 st following the Commencement Date. The rent shall be increased on January 1 st of each subsequent year, by an amount equal to the increase in the Consumer Price Index ( "CPI ") or four percent whichever is greater, as provided herein. The first year of the increase will be 2001. 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, 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. . 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 each additional five (5) year term unless Lessee provides written notice 60 days prior to the end of the current term. 3.04 RENEWAL RENTAL. The annual rental for each year of the five 3 (5) year extension term 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 communications facility and uses incidental thereto (the "Facility "), consisting of a tower mounted antenna system and ground space for an equipment pad not to exceed 336 square feet (12' x 28'), a number of six antennas not to exceed twelve, and all necessary connecting wave guide and appurtenances attached to Lessor's existing water tank. The antennas or their supports, shall be mounted as described on Exhibit "A" and the site drawings, unless prior approval from the Lessor is obtained. 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 notice to Lessee of the erection of such facility, together with facility specifications for Lessee's approval, which approval shall not be unreasonable withheld, 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. 3.06 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 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 4 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, 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 Premise, 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 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. 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 or seek injunctive relief enjoining such interfering use generated by any other subsequent occupant of the Property. 3.07 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 under the Lessee's design or engineering specifications for its Facility or for the communications systems to which the Facility belongs. 5 Nj lamed BUTA!enn yons off. a6ewep jo ssol Aue jo} Alied j0410 4ons }o sJoj!s!A ssau!snq jo saajjnuj 'siewolsn3 'slueBe 'sooAoldwo 'sainjuGA julof 'sioulied 'sjapl04GJeys 'sjopoilp 'sjao.}o ayi isu!eBe jo 'ja410 941 Isu!e6e janooaj 01 s14B!j 116 pue Aue anjem Wes aassaq pue jossa-1 'NouvoOS8f1S JO )13AIVM • (00'000'000' L $) sjelIoa OOl /ou pue uolll!W 81.10 ue4l ssal jou jnq 'josse-I Aq poulwia}ap Algeuoseei sJunowe uj aouejnsuj lLijj!ge!1 IejauaB lejojawwo AJjeo osle lle4s jossaq •slsoo juawaoeldaj 11% J1041 ueyi ssal 1ou s unowe ui s6u14s!wnl eaje uowwoo pue juawdjnbe sil 'jannol 041 Buljanoo souejnsui 96ejano3 papuaIxa pue an} u!ejwew pue Aim I!!nn jossaq ' uawaajBbr sjyl jo wjai aye 6u!jnp saw. 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Aq paouap!Aa se aossaq 941 ,Aq eo.ou 4ons jo 1d!aoaj uodn an.oa}}a aq Ile4s pue 'pelsonbei Id!am ujnjaj 'I!ew poi .jao Aq Buij!.inn ul jossaq off. uaA!6 aq ile4s aleulwal off.14B!j s�! to as!o�axa s,aassaq a4� �o ao!�oN •paldaoxe ssol A41enseo pue jeal pue jeGm . elgeuoseaj 'ales 9A.oa}13 9141 uo uoapuoo jja4i of saslwajd 941 ajoIsaJ pue sajnixg pue jadojd leuosied s�.! anowaj II!nn aassaq 'as!nnjay'o jo wja�. a4" 10 uoj ej!dxa A Aq 'iuewoejBV s!41 }o uolleulwa�. aye. ja�}e sAep (09) A�x!s ue4 Mel el oN arising form 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 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. 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. 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. ARTICLE 5 5.01 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 Lawns, Lessee shall have no liability for any costs therefor, whether as a pass- through of operating expenses or otherwise. 5.02 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 solely as a result of Lessee's use or occupancy of the Premises. 5.03 ENVIRONMENTAL MATTERS. a) Lessee will be solely responsible for and will defend, indemnify, and hold Lessor, its agents, and employees harmless from 7 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 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 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. Lessee shall state the nature of hazardous materials at the facility including, asbestos, batteries and fuel supply. The obligations of this section shall survive the expiration or other termination of this Agreement. ARTICLE 6 6.01 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 arising 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. 6.02 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 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 learns of any pending or threatened or contemplated actions, litigation, claims, condemnations of 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. 6.03 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. 6.04 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. 6.05 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. 6.06 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 or by a recognized overnight courier) 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. 6.07 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. 6.08 DUTIES. Any claim, controversy or dispute arising out of this Agreement shall be settled by arbitration in accordance with the applicable rules of the American Arbitration Association and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration's shall be conducted in the county where the Property is located. 6.09 RECORDING. Lessor shall execute and Lessee shall be permitted to 9 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. 6.10 ADDITIONAL MAINTENANCE EXPENSES. All additional expenses of maintaining the Property, including painting or other maintenance of the water 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. 6.11 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. 6.12 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 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. 6.13 CONDEMNATION. If a condemning authority takes any portion of the Owner's Property and such taking adversely affects Lessee's use of the Owner'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 will not be entitled to any part of the payment for any condemnation award, provided that Lessee may file a claim against the condemning authority for any loss of Lessee's property, moving expenses, or damages for cessation or interruption of Lessee's business, provided such claim will not diminish Lessor's recovery. 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. 6.14 MISCELLANEOUS. 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. Q Lessee represents that it has not been represented by a real estate broker or other listing agent in this transaction for purposes of commission, fee or other 10 payment to such broker or any other leasing agent claiming to have represented Lessee. If Owner is represented by broker or listing agent, Owner 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 lessee Sprint Spectrum LP, under that certain Tower Lease Agreement by and between the City of Rosemount and Sprint Spectrum LP, dated February 1, 1997 and to the rights of lessee U.S. West Communication Wireless Group, Inc. under that certain Tower Lease Agreement by and between the City of Rosemount and U.S. West Communications Wireless Group, Inca dated November 4, 1997. Lessee acknowledges receipt of a copy of each 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 water tower. H) All landscaping and turf which is damaged by Lessee shall be restored to a condition reasonably acceptable to Lessor. 1) Lessee shall not use any process or method in the installation, maintenance or removal of any improvement on the water tower by means of welding, cutting tool, or other device, which could damage the water 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. 11 EXHIBIT "A" SKETCH AND DESCRIPTION OF PROPERTY: See attached Exhibit (site drawings) LEGAL DESCRIPTION OF OWNER S PROPERTY: Address: 14950 Chippendale Avenue Rosemount, Minnesota 55068 Legal: That part of Lot Twelve (12), Auditor's Subdivision No. 27 contained within the following description: the Southerly 200 feet of the Easterly 217 feet of the Westerly 250 feet of the Southwest Quarter of the Southwest Quarter of said Section 29, Township 115, Range 19, Rosemount, according to the plat thereof now on file of and of record in the Office of the Register of Deeds in and for said County and State. It is agreed by Owner and Lessee that the precise legal description for the Owners Property will be corrected, if necessary, and that the correct legal description may be placed on this Exhibit "A" by Lessee. 12 EXHIBIT 'B' TO SITE AGREEMENT MEMORANDUM OF AGREEMENT THIS MEMORANDUM evidences that a Site Agreement was made and is hereby entered into by written Site Agreement effective the day of 2000, between the City of Rosemount ( "Owner ") whose address is as set forth below and AT &T Wireless Services, a Nevada corporation, whose address is Attn: Real Estate Manager, 2515 24' Avenue South, Minneapolis, MN 55406, the terms and conditions of which are incorporated herein by reference. Such Site Agreement provides, in part, that Owner, for valuable consideration, leases to AT &T a part of that certain property owned by Owner which is described in Exhibit "A" attached .hereto and incorporated herein for a term of five (5 +) yearn commencing on , 2000, which term is subject to two (2) additional five (5) year extension terms. 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. 14 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: Cathy Busho, Mayor By: Linda Jentink, City Clerk LESSEE: AT &T WIRELESS SERVICES OF MINNESOTA, INC. A Nevada Corporation By: Its: Date 15 STATE OF MINNESOTA ) SS COUNTY OF DAKOTA } The foregoing instrument was acknowledged before me this day of , 199_, by Cathy Busho, as Mayor, and Linda Jentink, 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 CORPORATE ACKNOWLEDGMENT STATE OF 1 ) SS COUNTY OF } The foregoing instrument was acknowledged before me this day of 2000, by as of AT &T Wireless Services of Minnesota, Inc., a Nevada 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 16 J 470 Pillsbury Center enne 200 South Sixth Street Minneapolis MN 55402 (612) 337 -9300 telephone (612) 337 -9310 fax C H A R T 'E -R E D http: / /www.kennedy-gravin.com CHARLES L. LEFEVERE Attorney at Law Direct Dial (612) 337 -9215 email: clefevere@kennedy- graven.com March 28, 2000 Mr. Tom Burt City Administrator City of Rosemount 2875 145" St. W. Rosemount, MN 55068 RE: AT &T Water Tower Lease Dear Tom: - I understand that at the last Public Utilities 'Commission meeting, several questions were raised about the proposed lease between the City and AT &T for the lease of space on the City's water tower. - - - You have provided me with copies of a number of water tower lease agreements from other cities which were provided by one of the commissioners. At your request, I have reviewed those agreements to determine whether it would be advantageous to incorporate some of the lease terms from those agreements into Rosemount's agreement. 'fh ret. of the primary issues raised were lease term, number of antennas, and amount of rent. AT &T will be providing further information about the need for a long term lease agreement. It has been my understanding in dealing with water tower leases in Rosemount and in other cities that it is not practicable for telecommunications providers to enter into short term lease agreements. The proposed lease with AT &T is consistent with the lease terms of other contracts with which I have been familiar in the past. In fact, the lease term in this agreement is relatively short by some standards. The proposed lease provides for an initial term of five years with an option to renew for an additional two five -year terms for .a. total of 15 years.. The lease agreements -which were .. provided ; by'-the commissioner provide for .total lease , terms, . with extensions, of 25 years for the Edina/US West lease, 20 years for the Edina/APT lease, and'25 years for the DeForrest/PRUvIECO lease. RECFiv-® 0 2000 CITY OF ROSEMOUNT CLL- 178179v1 RS220-81 Mr. Tom Burt March 28, 2000 Page 2 of 3 The second issue raised was the number of antennas. In the past, I have not seen leases which vary significantly in lease terms as a result of the number of antennas. Frequently, a tenant is given the right to construct a certain number of antennas with a right to increase the number of antennas to a certain number in the future, to accommodate growth in their systems. I understand that AT &T will be providing additional information on the effect of increase in the number of antennas. It seems to me that the important question is not the number of antennas, since that could vary simply on the basis of the technology being used, but the amount of space that is occupied on the water tower and therefore made unavailable for use by other tenants. I believe that ,it is often possible to add antennas without effectively eliminating space that could have been available o -other -tenants.- - The-lease agreements pro -vided by-the commissioner allow a maximum of 12 antennas in the case of the APT lease, and specify no limits on the number of antennas in the case of the leases of US West and PRRVIECO. In the matter of the amount of rent charged, the leases provided by the commissioner, together with the increases provided for in those leases, are all for lower rental payments than the payments which staff has negotiated for the AT &T tower lease. In my experience in other cities, I believe that the general rental rate for such leases is approximately $10,000 to $12,000 per year, although higher rents have been secured in a few cases. I do not know whether it would be possible to rent the space for a higher amount than the $12,000 specified in the proposed lease, but the $12,000 figure is certainly within the average or normal range for such rental agreements at this time. I have also reviewed the leases which you provided to me to evaluate other possible lease provisions. For the most part, I believe that the- proposed City of Rosemount lease is more advantageous to the City than the leases from Edina or DeForrest. There are a few instances, however, where the Rosemount lease form could be improved. The lease between Edina and US West requires the tenant to have certain insurance coverage which the Rosemount lease does not require. Specifically, the Rosemount form requires commercial: general.- liability as. does the, Edina lease- However, the Edina lease also specifies independent contractor's protection, premises - operations, products/completed operations and contractual liability. If AT &T would agree, we could simply add the requirement to the lease that these coverages be maintained by the tenant. If there is any question on the part of AT&T whether such coverages should be provided, we should consult with the City's risk management consultant. By copy of this letter to Ms. Julie Townsend, the local representative for AT &T, I am requesting that she advise me whether this, and other changes noted below, would be satisfactory to AT &T. There are certain provisions in the PRI MECO lease which could be added to the Rosemount lease. These include the following: 1. Add a new paragraph under Section 6.14 which provides "Lessee, shall place no advertising on the site or on any structure on the site." cci.- 178179v1 RS220 -81 Mr. Tom Burt March 28, 2000 Page 3 of 3 2. Add an additional paragraph to Section 6.14 as follows: "All antenna panels will be painted to match the water tower." 3. Add an additional paragraph to Section 6.14 which provides "All landscaping and turf which is damaged by Lessee shall be restored to a condition reasonably acceptable to Lessor." 4. Add an additional paragraph to Section 6.14 as follows: "Lessee shall not use any -procevs -or-method in-the installation , -maintenance-or-remo` aI -of airy -improvement on the water tower by means of welding, cutting tool, or other device, which could damage the water 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." Finally, the DeForrest/PRIMECO lease has a detailed procedure to be followed in the event the water tower is painted. It provides for two possible approaches. One is for the tenant to remove antennas and place them on a crane parked near the site while painting occurs. The other is to secure a bid for painting in which the contractor provides quotes. for painting the tower with antennas and painting the tow_ er without antennas, with the tenant to pay the difference. Either of these approaches could be appropriate in some cases. However, on a tower with multiple tenants, I am not sure whether either is reasonable or practical. Therefore, I am reluctant to suggest that the City obligate itself to following one of these two courses. The proposed lease, at Section 6.10, provides that all additional expenses of maintaining the property, including painting or other maintenance of the water tower, which result from Lessee's occupancy, shall be paid promptly to Lessor by Lessee upon notice of such additional costs. I would recommend that the language be left as is, and at the time the City decides to paint the water tower, we evaluate the best means of working with the various tenants. Please let me know if you have any further questions on this matter. Very truly yours, Charles L. LeFevere CLL:lh cc: Ms. Julie Townsend CLL- 178179vi RS220 -81 Burt,Tom From: Sent: To: Cc: Subject: Importance: Good Morning Charlie Julie Townsend oulietownsend @email.msn.com] Wednesday, March 29, 2000 9:36 AM LeFevere, Charlie L.; Julie Townsend (E -mail) Tom Burt (E -mail) RE: Rosemount .High In reply to the issues brought up by one of the Commissioners — Lease rate and number of antennas: Our antennas are generally installed at three different sectors and spaced such that the future antennas would fit in- between the existing ones. For example, two antennas are installed at one particular sector and are spaced horizontally 6 feet apart. In the future when additional antennas will be added, they will go in- between the existing antennas spaced two feet apart. Due to potential interference, no carrier would allow another carrier to place their antennas in- between that 6 foot separation anyway; therefore the space is dead space. (You can refer to our plans to show this more clearly). There is a lot of room on this water tower for additional carvers. Many carriers require different heights and azimuths for their antennas; usually no two carriers want the same area. As for the issue of the terms and length of the agreement. The lease that was given to AT &T Wireless for review is the standard City of Rosemount Tower Lease Agreement. It is my understanding this standard lease was put together by the City and approved by the City Council. AT&T Wireless did not directly request the length of the agreement and the number of terms. The common Rosemount lease calls for 5 years with two 5 -year renewals. AT &T Wireless would like the terms to be at lease consistent with the other carrier's leases with the city. in fact most carriers wish to have terms that are greater than 15 years due to several factors. One being the integration of a site into a network — once a site is selected (Rosemount WT) and "tumed -on" the rest of the system is integrated into that site. New sites are selected and constructed because of the Rosemount site. Once the 15 years is up, carriers may have to literally redesign that area of town and replace many sites simply due to one site no longer being available. Also, the cost of installation of a site and shelter is large. AT &T as with any business would try to limit the amount and number of times it must relocate and reconstruct. You mentioned a couple of additional concerns and stated it was possible the City would request some additional language be inserted; if so, please forward to me the additional language so AT &T Wireless can review. Most likely, it won't be an issue with AT &T and a reply can be given to you quickly. I will be available for the April 10"' PUC meeting to answer any questions that may arise. Please contact me prior if you have any questions or comments. Thank you for you time and attention to this email. Julie Townsend 612- 851 -7877 ----- Original Message ----- From: LeFevere, Charlie L. [maiito:ciefevere @Kennedy- Graven.com] Sent: Friday, March 24, 200011:04 AM To Julie Townsend (E -mail) Cc: Tom Burt (E- mail) Subject: Rosemount Julie, Two issues were raised at the Public Utilities Commission meeting about which we would like to have your comments. One of the commissioners apparently objected to the length of the lease term and to the fact that we are not charging higher rental payments for more antennas. I believe that there may be technical comments that are relevant to these concerns, but 1 am not qualified to make them. Therefore, it would be helpful if you could provide comments to me so that they can be passed along to the PUC. 1 will be out of the office the week of April 3-8, so if your comments are not to me by March 31, you should probably send them directly to Tom Burt, the City Administrator. The PUC meets monthly. Its next meeting is April 10th and written materials are needed by April 5th to be included in the agenda materials. it may be advisable for you to attend the meeting as well. if questions come up that the City Administrator cannot answer, the matter could be delayed for another month. The Commissioner who raised the above concerns also provided copies of leases from other cities which he felt were better than Rosemount's form of lease. I have not yet had a chance to review them, but 1 will let you know if I think there 1 TOWER LEASE AGREEMENT This Lease Agreement ( "Agreement ") is made and entered into as of , 2000, by and between CITY OF ROSEMOUNT, 2875 145th Street West, Rosemount, Minnesota, 55068 -4997 ( "Lessor ") and AT &T WIRELESS SERVICES OF MINNESOTA, 'INC. (AT &T) ( "Lessee "), a Nevada corporation, its successor and assigns, for the leasing of certain property interest at the Chippendale Water Tower site (Tower No. 1), at 14950 Chippendale Avenue, 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 an antenna system and ground space (approximately 336 square feet) for an equipment compound (the "Premises"), as well as right of ways 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: B) Lessor: C) M Lessor's Address: Lessor's Rent Payee: E) Lessee: F) Lessee's Address: The Tower located at 14950 Chippendale Avenue on which a portion of the Premises are located. City of Rosemount 2875 145th Street West Rosemount, Minnesota 55068 -4997 City of Rosemount 2875 145th Street West Rosemount, Minnesota 55068 -4997 AT &T Wireless Services a Nevada corporation AT &T Wireless Services Attn: Real Estate Manager 2515 24tn Avenue South Minneapolis, MN 55406 With a copy to: AT &T Wireless Services Attn: Legal Department 2729 Prospect Park Drive, Suite 200 Sacramento, CA 96570 G) Commencement Date: The initial term of this Agreement shall begin on the "Commencement Date" (as hereafter defined) and subject to the terms of Paragraph 3.07 following, shall end on December 31, 2005 (the Expiration Date). The Commencement Date shall be the date on which all conditions precedent detailed in Exhibit "C" have been met, but in no event later than June 1, 2000. H) Rent: Twelve Thousand and no /100 Dollars ($12,000) annually in the first year and as a minimum, further described in Section 3.02. AT &T shall pay the Owner rent annually in advance beginning ten (10) days after the Commencement Date for the first year and thereafter on the First (1 st) day of January. Any initial partial year will be prorated. I) Extension Periods: Two (2) automatic renewal periods of five (5) years, beginning at midnight on the Expiration Date of the initial term. 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, at Lessee's cost, 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 ". 2 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, 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, Connemara Trail, 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 (plus a partial first year), commencing on the Commencement Date, at an annual rental of Twelve Thousand Dollars ($12,000), increased annually by an amount equal to the percent change in CPI or four percent (4 %) whichever is greater, as set forth herein. All rent shall be paid on or before the first day of each year immediately following the Commencement Date of the initial term and any Renewal Terms of this Agreement, except that for the initial term, Lessee shall pay one (1) years rent, in advance, (partial year will be prorated) on the Commencement Date and resume payment of the rent on the second year of the initial term which will start on January 1 st following the Commencement Date. The rent shall be increased on January 1st of each subsequent year, by an amount equal to the increase in the Consumer Price Index ("CPI ") or four percent whichever is greater, as provided herein. The first year of the increase will be 2001. The CPI shall mean the "Consumer Price Index for all Urban Consumers, all Cities, all Items 0 967 = 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. Lessor shall be responsible for communicating all rental increases to the Lessee. 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 each additional five (5) year term unless Lessee provides written notice 60 days prior to the end of the current term. 3.04 RENEWAL RENTAL. The annual rental for each year of the five 3 (5) year extension term 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 communications facility and uses incidental thereto (the "Facility "), consisting of a tower mounted antenna system and ground space for an equipment pad not to exceed 336 square feet (12' x 28'), a number of antennas, not to exceed nine, and all necessary connecting wave guide and appurtenances attached to Lessor's existing water tank. The antennas or their supports, shall be mounted as described on Exhibit "A" and the site drawings, unless prior approval from the Lessor is obtained. 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 notice to Lessee of the erection of such facility, together with facility specifications for Lessee's approval, which approval shall not be unreasonable withheld, 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. 3.06 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 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 4 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, 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 Premise, 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 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. 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 or seek injunctive relief enjoining such interfering use generated by any other subsequent occupant of the Property. 3.07 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 under the Lessee's design or engineering specifications for its Facility or for the communications systems to which the Facility belongs. 5 9 palijea aq of peiinbaa aoueinsu! 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Jossal 01 uaA!6 aq Ileys aleu!wal of Iy6!a sl! jo asmaxe s,easse-i ayl 10 9311ON •poldeoxe ssol Allenseo pue lead pue jeans aigeuoseei 'a }ea aAijoajI3 ay1 uo uo!l!puoo J1941 ol saslwaad ay1 aaolsai pue sa.mixg pue Aliedoid leuosiad sl! anotuaa illm aassal 'asinnjayjO ao u.wial 941 }o uoijej!dxe Aq 'luaweaa6y sly . 10 uoileulwjal ay1 jade sAep (09) Alx!s ueyl joiel ON 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 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. 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. 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. ARTICLE 5 5.01 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, whether as a pass- through of operating expenses or otherwise. 5.02 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 solely as a result of Lessee's use or occupancy of the Premises. 5.03 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 7 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 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 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. Lessee shall state the nature of hazardous materials at the facility including, asbestos, batteries and fuel supply. The obligations of this section shall survive the expiration or other termination of this Agreement. ARTICLE 6 6.01 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 arising 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. 6.02 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 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 8 the Property, or if Lessor learns of any pending or threatened or contemplated actions, litigation, claims, condemnations of 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. 6.03 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. 6.04 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. 6.05 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. 6.06 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 or by a recognized overnight courier) 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. 6.07 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. 6.08 DUTIES. Any claim, controversy or dispute arising out of this Agreement shall be settled by arbitration in accordance with the applicable rules of the American Arbitration Association and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration's shall be conducted in the county where the Property is located. 6.09 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. 9 6.10 ADDITIONAL MAINTENANCE EXPENSES. All additional expenses of maintaining the Property, including painting or other maintenance of the water 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. 6.11 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. 6.12 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 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. 6.13 CONDEMNATION. If a condemning authority takes any portion of the Owner's Property and such taking adversely affects Lessee's use of the Owner'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 will not be entitled to any part of the payment for any condemnation award, provided that Lessee may file a claim against the condemning authority for any loss of Lessee's property, moving expenses, or damages for cessation or interruption of Lessee's business, provided such claim will not diminish Lessor's recovery. 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. 6.14 MISCELLANEOUS. 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 it has 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 Owner is represented by broker or listing agent, Owner is responsible for all commission, fee or other payment to such agent. 10 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 lessee Sprint Spectrum LP, under that certain Tower Lease Agreement by and between the City of Rosemount and Sprint Spectrum LP, dated February 1, 1997 and to the rights of lessee U.S. West Communication Wireless Group, Inc. under that certain Tower Lease Agreement by and between the City of Rosemount and U.S. West Communications Wireless Group, Inca dated November 4, 1997. Lessee acknowledges receipt of a copy of each 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 water 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 water tower by means of welding, cutting tool, or other device, which could damage the water 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 and anything of a dangerous, noxious or offensive nature or which would create a hazard, undue vibration, heat, noise, etc. K) Lessee shall remove its Antenna Facilities at Lessee's cost, upon reasonable notice to allow maintenance, repair, repainting, restoration or other activity as reasonably required by Lessor. There may be scheduled interruptions in use of the Antenna Facilities. 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 Antenna Facilities 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 Antenna Facilities 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. 11 EXHIBIT "A" SKETCH AND DESCRIPTION OF PROPERTY: See attached Exhibit (site drawings) LEGAL DESCRIPTION OF OWNER S PROPERTY: Address: 14950 Chippendale Avenue Rosemount, Minnesota 55068 Legal: That part of Lot Twelve (12), Auditor's Subdivision No. 27 contained within the following description: the Southerly 200 feet of the Easterly 217 feet of the Westerly 250 feet of the Southwest Quarter of the Southwest Quarter of said Section 29, Township 115, Range 19, Rosemount, according to the plat thereof now on file of and of record in the Office of the Register of Deeds in and for said County and State. It is agreed by Owner and Lessee that the precise legal description for the Owners Property will be corrected, if necessary, and that the correct legal description may be placed on this Exhibit "A" by Lessee. 12 EXHIBIT "B" TO SITE AGREEMENT MEMORANDUM OF AGREEMENT THIS MEMORANDUM evidences that a Site Agreement was made and is hereby entered into by written Site Agreement effective the day of , 2000, between the City of Rosemount ( "Owner ") whose address is as set forth below and AT &T Wireless Services, a Nevada corporation, whose address is Attn: Real Estate Manager, 2515 24t' Avenue South, Minneapolis, MN 55406, the terms and conditions of which are incorporated herein by reference. Such Site Agreement provides, in part, that Owner, for valuable consideration, leases to AT &T a part of that certain property owned by Owner which is described in Exhibit "A" attached hereto and incorporated herein for a term of five (5 +) years commencing on 2000, which term is subject to two (2) additional five (5) year extension terms. 13 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. 14 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: Cathy Busho, Mayor By: Linda Jentink, City Clerk LESSEE: AT &T WIRELESS SERVICES OF MINNESOTA, INC. A Nevada Corporation By: Its: Date 15 MUNICIPAL CORPORATE ACKNOWLEDGMENT STATE OF MINNESOTA) ) SS COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this day of , 199_, by Cathy Busho, as Mayor, and Linda Jentink, 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 CORPORATE ACKNOWLEDGMENT STATE OF ) ) SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2000, by ' as of AT &T Wireless Services of Minnesota, Inc., a Nevada 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 16