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HomeMy WebLinkAbout6.m. Fourth Amendment to Tower Lease Agreement City Council Meeting: December 21, 2021 EXEC U T I V E S U M M A R Y AGENDA ITEM: Fourth Amendment to Tower Lease Agreement AGENDA SECTION: Consent PREPARED BY: Nick Egger, PE – Public Works Director AGENDA NO. 6.m. ATTACHMENTS: Fourth Amendment to Tower Lease Agreement APPROVED BY: LJM RECOMMENDED ACTION: City Council Approval of Fourth Amendment to Tower Lease Agreement with T-Mobile for Cellular Equipment - Connemara Water Tower BACKGROUND Attached is the Fourth Amendment to Tower Lease Agreement that has been reviewed by T-Mobile, City staff, and the City attorney. T-Mobile desires to continue their lease on the City’s Connemara Water Tower site, with minimal modification to the terms of the lease agreement. For 2021, this lease generated $28,196.33 in revenue for the City, and with every successive year the lease amount escalates by the Consumer Price Index or 4%, whichever is higher. The Fourth Amendment includes these notable items: • Extension of Lease by up to four (4) additional 5-year renewals, for a maximum total of up to 20 years, with the ultimate ending date being as late as December 31, 2041. • Adding language to provide an advanced notification period by the City for pending planned maintenance and rehabilitation work on the water tower to give T-Mobile the ability to temporarily remove equipment and set up temporary cellular equipment on site. City staff and the City Attorney’s office have reviewed the amendment document and found it to be acceptable for recommending approval by the City Council. RECOMMENDATION Staff is recommending that the City Council approve the Fourth Amendment to Tower Lease Agreement with T-Mobile, authorizing the Mayor’s signature. G:\ANTENNAS\T-Mobile\20211221 CC Fourth Amendment - 04TMO2021M.docx A1Q0021A _NLG-44209_AMD_51481 FOURTH AMENDMENT TO TOWER LEASE AGREEMENT This Fourth Amendment to Tower Lease Agreement (the "Fourth Amendment") is effective as of the last signature below (the "Effective Date"), by and between City of Rosemount,a Minnesota municipal corporation ("Lessor"), and T-Mobile Central LLC, a Delaware limited liability company ("Lessee"), (each a "Party", or collectively, the "Parties"). Lessor and Lessee (or their predecessors-in-interest) entered into that certain Tower Lease Agreement dated March 1, 1997, including that certain First Amendment to Tower Lease Agreement dated December 29, 2011, Second Amendment to Tower Lease Agreement dated October 22, 2014 and Third Amendment to Tower Lease Agreement dated May 2, 2018 (including all amendments, collectively, the "Agreement") regarding the leased premises ("Premises") located at 13831 Connemara Trail, Rosemount, MN 55068 (the "Property"). 1. At the expiration of the current term, the term of the Agreement will automatically be extended for four (4) additional and successive five (5) year Extension Periods, provided that Lessee may elect not to renew by providing Lessor at least sixty (60) days' notice prior to the expiration of the current term or the then current Extension Period. 2. All notices, requests, demands and other communications shall be in writing and shall be deemed to have been delivered upon receipt or refusal to accept delivery, and are effective only when deposited into the U.S. certified mail, return receipt requested, or when sent via a nationally recognized courier to the addresses set forth below. Lessor or Lessee may from time to time designate any other address for this purpose by providing written notice to the other Party. If to Lessee: If to Lessor: T-Mobile USA, Inc. 12920 SE 38th Street Bellevue,WA 98006 Attn: Lease Compliance/ A1Q0021A City of Rosemount 2875 14Sth Street West Rosemount, MN 55068 3. Lessee and Lessor will reasonably cooperate with each other's requests to approve permit applications and other documents related to the Property without additional payment or consideration. 1 TMO ID: A1Q0021A TMO Lease ID: 51481 5/21/2021 A1Q0021A _NLG-44209_AMD_51481 4. Lessee acknowledges the need for periodic maintenance of the water tower, including repair of the tower’s coating or repainting. Lessee must remove its antennas, equipment, and facilities at Lessee’s cost upon reasonable notice from Lessor to allow maintenance, repair, repainting, restoration or other activity as determined by Lessor. Lessor will not be responsible for such interruptions in use of the Lessee’s facilities. Except in the case of an emergency, Lessor will provide at least one-hundred eighty (180) days’ notice of commencement of maintenance activities. In case of an emergency, Lessor may remove the facilities at Lessee’s expense, and shall notify Lessee within a reasonable time. An “emergency” shall be deemed to exist in those situations which constitute an immediate threat to the health or safety of the public or immediate danger to the Lessor’s facilities or property. In the event the use is interrupted, Lessee may provide and maintain a mobile cellular site on wheels on the Property after such temporary facilities have been approved by Lessor, with such approval not to be unreasonably withheld. 5. Except as expressly set forth in this Fourth Amendment, the Agreement otherwise is unmodified. To the extent any provision contained in this Fourth Amendment conflicts with the terms of the Agreement, the terms and provisions of this Fourth Amendment shall control. Each reference in the Agreement to itself shall be deemed also to refer to this Fourth Amendment. 6. This this Fourth Amendment may be executed in duplicate counterparts, each of which will be deemed an original. Signed electronic, scanned, or facsimile copies of this this Fourth Amendment will legally bind the Parties to the same extent as originals. 7. Each of the Parties represents and warrants that it has the right, power, legal capacity and authority to enter into and perform its respective obligations under this Fourth Amendment. Lessor represents and warrants to Lessee that the consent or approval of athird party has either been obtained or is not required with respect to the execution of Fourth Amendment. If Lessor is represented by any property manager, broker or any other leasing agent ("Agent"), then (a) Lessor is solely is responsible for all commission, fees or other payment to Agent and (b) Lessor shall not impose any fees on Lessee to compensate or reimburse Lessor for the use of Agent, including any such commissions, fees or other payments arising from negotiating or entering into this Fourth Amendment or any future amendment. A1Q0021A _NLG-44209_AMD_51481 8. This Fourth Amendment will be binding on and inure to the benefit of the Parties herein, their heirs, executors, administrators, successors-in-interest and assigns. IN WITNESS, the Parties execute this Fourth Amendment as of the Effective Date. Lessor: Lessee: City of Rosemount, a Minnesota municipal corporation T-Mobile Central LLC, a Delaware limited liability company By: By: Print Name: Print Name: Title: Title: Date: Date: 2 TMO ID: A1Q0021A TMO Lease ID: 51481 12/17/2021