HomeMy WebLinkAbout5I 2019 06 03 - T-Mobile Cedarwood Lease Renewal - Report
Phone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com
4646 Dakota Street SE
Prior Lake, MN 55372
CITY COUNCIL AGENDA REPORT
MEETING DATE: JUNE 17, 2019
AGENDA #: 5I
PREPARED BY: NICK ZURBEY, PUBLIC WORKS TECHNICIAN
PRESENTED BY: ANDY BROTZLER, PUBLIC WORKS DIRECTOR/ CITY ENGINEER
AGENDA ITEM:
CONSIDER APPROVAL OF A RESOLUTION AUTHORIZING THE MAYOR AND
CITY MANAGER TO EXECUTE A COMMUNICATION FACILITIES LEASE
AGREEMENT WITH T-MOBILE AT THE CEDARWOOD STREET WATER
TOWER PROPERTY
GOAL AREA AND
OBJECTIVE:
High-Value City Services
6. Seek community engagement through a variety of communication methods to
reach all residents.
DISCUSSION: Introduction
The purpose of this agenda item is to consider executing a Communication
Facilities Lease Agreement with T-Mobile at the Cedarwood Street W ater Tower
property for a term of 5 years with the option for T-Mobile to renew for two
additional 5 year terms (15 years total).
History
The City and T-Mobile are parties to a Water Tower Antennae Agreement relating
to installation of communications antennas on the Cedarwood St water tower and
leasing ground space for an equipment shelter. They are also parties to similar
agreements at two other properties. The original agreement for the Cedarwood
Street location was entered into on March 1, 1999. This is the third such lease
agreement with a communications company to expire and be renewed.
Due to the changing nature of technology in the field of wireless communications,
the language and terms of the expiring agreement needed to be changed to
address today’s current technology and be open to meet potential future changes.
In the past, leases allowed a set number of antennas and leased ground space but
with changes in technology and the rise of data services, there is now a significant
amount of non-antenna equipment being mounted on the water towers. The
Communications Company will now be leased for the current configuration of
equipment mounted. Any changes need to undergo a review to determine
whether an amendment is needed and if changes are significant enough to
warrant a rent increase for any additional weight or space being occupied by the
tenant.
Current Circumstances
T-Mobile’s current lease expired on December 31, 2018 but was temporarily
extended for two months to February 28th, 2019 in order to provide time for T-
Mobile to produce the required exhibits and execute the new lease. During that
time they were charged double current rent. A second two month temporary
extension was needed and executed with the same terms as the first that extend
the lease to April 30, 2019. However, even more time was needed by T-Mobile, so
a third two month temporary extension was executed. The terms of this extension
was the same as the previous two except that T-Mobile was charged triple current
rent. This extension is set to expire on June 30th, 2019. The City Attorney and Staff
have negotiated the terms of the new lease agreement with T-Mobile. T-Mobile
has executed said agreement.
ISSUES: The City holds several lease agreements with communication companies to allow
use of the City’s water towers to mount antenna with ground equipment shelters.
The City Attorney and Staff have researched and developed a new lease
agreement form to take the place of the expiring leases. To date, two other leases
with communication companies have been executed and in the coming years
more will expire.
FINANCIAL
IMPACT:
Annual rent will be increased from $19,800 with a 15% escalator every 5 years to
an annual rent of $32,523.75 with a 3% annual escalator. Also, as a result of the
temporary extensions where T-Mobile was charged double and triple rent, it
resulted in the City collecting an additional $13,200.
ALTERNATIVES: 1. Approval of a resolution as part of the consent agenda authorizing the
Mayor and City Manager to execute the Communication Facilities Lease
Agreement with T-Mobile at the Cedarwood Street water tower.
2. Remove from the consent agenda for additional discussion.
RECOMMENDED
MOTION:
Alternative #1
4646 Dakota Street SE
Prior Lake, MN 55372
RESOLUTION 19-___
A RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO EXECUTE A
COMMUNICATION FACILITIES LEASE AGREEMENT WITH T-MOBILE AT THE
CEDARWOOD STREET WATER TOWER PROPERTY
Motion By: Second By:
WHEREAS, Various cellular companies have located their antennae equipment on City
property and water towers; and
WHEREAS, The public safety, health and welfare is served when cell phone coverage is
uniform and unbroken; and
WHEREAS, The City and T-Mobile have been parties to a Water Tower Antennae Agreement
relating to the Cedarwood Street water tower located at 5560 Cedarwood Street,
Prior Lake, MN 55372 (T-Mobile site ID A1P0401) since March 1, 1999; and
WHEREAS, T-Mobile’s current lease expired on December 31, 2018 but was temporarily
extended to allow T-Mobile time to produce the required exhibits and execute the
agreement; and
WHEREAS, T-Mobile desires to continue to lease space at the water tower property which
includes attaching antenna and other equipment on the water tower, leased ground
space for an equipment shelter and easements for access and underground
utilities; and
WHEREAS, The City Attorney and City Staff have developed and negotiated a new lease
agreement with T-Mobile; and
WHEREAS, T-Mobile has executed said agreement
NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE,
MINNESOTA as follows:
1. The recitals set forth above are incorporated herein.
2. The City Council hereby approves the attached Communication Facilities Lease Agreement
for T-Mobile at the Cedarwood Street water tower prepared by the City Attorney and City
Staff
3. The Mayor and City Manger are herby authorized to execute the Communication Facilities
Lease Agreement on behalf of the City.
http://splash/teams/am/October 4 2010/06 17 2019/5I 2019 06 03 - T-Mobile Cedarwood Lease Renewal - Resolution.docx
2
Passed and adopted by the Prior Lake City Council this 17th day of June 2019
VOTE Briggs Thompson Burkart Braid Erickson
Aye ☐ ☐ ☐ ☐ ☐
Nay ☐ ☐ ☐ ☐ ☐
Abstain ☐ ☐ ☐ ☐ ☐
Absent ☐ ☐ ☐ ☐ ☐
______________________________
Michael Plante, City Manager
CITY OF PRIOR LAKE
COMMUNICATION FACILITIES LEASE AGREEMENT
T-Mobile at Cedarwood St Water Tower
This Communication Facilities Lease Agreement (“Agreement”) is between the City of
Prior Lake, a Minnesota municipal corporation, (“City”), and T-Mobile Central LLC, a Delaware
limited liability company (“Communications Company”). City and Communications Company
may be referred to individually as “party” and collectively as “parties”.
RECITALS:
A. City is the owner of certain real property located in Scott County, State of Minnesota, and
more particularly described in Exhibit A attached hereto (“Land”) on which is situated a
water tower (“Water Tower”). The Land and Water Tower are hereinafter called the
“Property”.
B. Communications Company desires a non-exclusive lease to use portions of the Property
as described herein for the purpose of constructing, installing, operating, maintaining and
repairing a communications facility (“Facility”).
C City and Communications Company (or their predecessors in interest) previously entered
into that certain Water Tower Antennae Agreement dated March 1, 1999 and amended
December 22, 2014, (“Existing Agreement”), whereby City leased to Communications
Company certain space on the Property for the construction, installation, operation,
maintenance and repair of a communications facility. The Existing Agreement expired on
December 31, 2018.
D. City and Communications Company entered into that certain Temporar y Extension to the
Existing Agreement dated December 27, 2018 (“First Extension Agreement”), which
expired February 28, 2019.
E. City and Communications Company entered into that certain Second Temporary
Extension to the Existing Agreement dated March 7, 2019 (“Second Extension
Agreement”), which expired April 30, 2019.
F. City and Communications Company entered into that certain Third Temporary Extension
to the Existing Agreement dated April 26, 2019 (“Third Extension Agreement”), which
expires June 30, 2019.
NOW, THEREFORE, the parties agree as follows:
1. Grant of Lease. City grants to Communications Company a non-exclusive lease for the
use of the Property for the period, uses, and consideration in accordance with all of the
terms, covenants, conditions and provisions contained herein.
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2. Term. The term of the lease granted hereby shall be for a period of five years (“Term”),
commencing on January 1, 2019 (“Commencement Date”). City and Communications
Company acknowledge and agree that the Existing Agreement expires on June 30, 2019.
Beginning on the Commencement Dat e, this Agreement shall be the sole instrument
governing the lease of space by Communications Company at the Property.
3. Consideration. Communications Company shall pay or provide to City the following:
(a) Annual lease fees in the following amounts to be paid in annual installments
commencing on or before the first day on which the Term commences and on or
before the first day of each year thereafter during the Term and any Extended
Term as provided hereafter. Annual lease fees shall increase by 3% each year on
January 1st, and partial years shall be prorated.
Year 1 (2019) $_32,523.75
Year 2 (2020) $_33,499.46
Year 3 (2021) $_34,504.45
Year 4 (2022) $_35,539.58
Year 5 (2023) $_36,605.77
(b) Eighty and no/100 Dollars ($80.00) per occurrence to City to reimburse City for
its costs incurred by its personnel providing access to the Property to enable
Communications Company or its designee access to its Facility if: (i) the access
occurs outside o f Public Works regular hours (7 a.m. to 3 p.m. Monday through
Friday excluding City observed holidays) or (ii) if the notice required in Section 4
(d) below is not provided. This amount shall be increased each year commencing
after year one (1) by five percent (5%). City shall invoice Communications
Company on an annual basis at the following address: T-Mobile USA, Inc., Attn:
Lease Compliance/A1P0401A, 12920 SE 38th St., Bellevue, WA 98006, for all
such costs. Communications Company shall pay all such invoices within thirty
(30) days of receipt. If Communications Company fails to pay any such invoice
when due, interest shall begin to accrue on the amount due at a rate of 10% per
annum and shall continue to accrue until the amount due is paid in full.
(c) The terms of the Utility Easement and Access Easement provided in Section 4 (c)
and (d) below shall be co-extensive with the Term of this Agreement and the
Utility Easement and Access Easement shall automatically expire upon
termination of this Agreement.
(d) Communications Company shall pay all reasonable costs, including engineering
and attorney fees, incurred by City in processing and reviewing this Agreement
and any amendment s, reviews or applications related to this Agreement. City
shall invoice Communications Company at the following address: T-Mobile USA,
Inc., Attn: Lease Compliance/A1P0401A, 12920 SE 38th St., Bellevue, WA
98006, for all such costs. Communications Company shall pay all such invoices
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within thirty (30) days of receipt. If Communications Company fails to pay any
such invoice when due, interest shall begin to accrue on the amount due at a rate
of 10% per annum and shall continue to accrue until the amount due is paid in
full.
4. Communications Company’s Use. Communications Company may use the following
parts of the Property for the following uses, subject to all terms, covenants, conditions
and provisions of this Agreement including but not limited to Section 5, all of which are
hereafter referred to and are encompassed by the term “Facility”:
(a) Construction, installation, operation, maintenance and repair of the Facility,
located and installed only as set forth on Exhibit B attached hereto. All parts of
the Facility installed on the Water Tower shall be painted to match the Water
Tower.
(b) Construction, installation, operation, maintenance and repair of a structure on the
Property as described in Exhibit C attached hereto (“Equipment Structure”) to
house and contain Communications Company’s radio transmission, computer
equipment and emergency battery and generator equipment.
(c) Construction, installation, operation, maintenance and repair of utility wires,
cables, conduits and pipes underground within that part of the Property described
in Exhibit D attached hereto (“Utility Easement”).
(d) Ingress and egress 24 hours a day, seven (7) days a week for purposes of
construction, installation, operation, maintenance and repair of the Facility over
that part of the Property described in Exhibit E attached hereto, provided
however, City shall have the right to require Communications Company to
exercise its rights of ingress and egress on and over a d ifferent part of the
Property or other Property as may be provided by or through City (“Access
Easement”). Communications Company shall provide the City with written
notice at least 5 business days prior to accessing the Property, except in the event
of a service interruption or equipment failure. The notice shall be on the form
provided by the City. The information shall include but not be limited to the
identity of the entity and individual accessing the Property and their contact
information; the purpose for the access; the dates and hours of access; and proof
of the required insurance. In the event of a service interruption or equipment
failure, Communications Company need not provide 5 business days’ notice but
shall provide the City with as much wr itten or telephonic notice as possible based
on the circumstances. City staff must accompany Communication’s Company
and/or its designee for any work in proximity to any exposed water source, as
determined by the City.
Communications Company’s Facility shall be installed at Communications Company’s
expense and shall be maintained in a reasonable condition and secured by
Communications Company. Communications Company shall ensure that its use of the
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Property is consistent with all local, state and federal laws, rules and regulations. If there
is a conflict among the regulations they shall govern with the following priority: first
federal regulations, then state regulations, and then local regulations. A more restrictive
regulation is not a conflict unless preempted.
5. Applications. Communications Company shall obtain the City’s prior written approval,
which may be granted or denied in City’s sole discretion, for all installations (including
the initial installation), additions, replacements, relocations, maintenance, repairs, and
other work, any of which requires the revision of Exhibit B (collectively “Work”).
Notwithstanding the foregoing, maintenance, repairs, and like-kind replacements of
equipment and modifications, any of which occur within the interior of the Equipment
Shelter, shall not require the prior approval of the City. In order to request such approval,
Communications Company shall submit an application for the Work which application
shall be in the form and contain the information required by the City. In conjunction with
any application, the City may, in its sole discretion, require any or all of the following:
(a) Interference Study. The City may require that Communications Company obtain and
pay for a radio frequency interference study from an independent qualified
professional approved by the City, which approval will not be unreasonable withheld,
delayed or conditioned.
(b) Engineering Study. The City may require that Communications Company obtain and
pay for an engineering study from an independent licensed engineer approved by the
City, which approval will not be unreasonable withheld, delayed or conditioned.
(c) Construction Plans. The City may require that Communications Company provide
detailed construction plans.
(d) Escrow Agreement. The City may require that Communications Company pay an
escrow and enter into an escrow agreement with the City to secure payment of City
costs.
If City determines based on the application and all other information submitted that the
Work in the application will interfere with another user in violation of this Agreeme nt or
will not be structurally sound the City may deny the application by written notice to
Communications Company.
6. Approval of Applications. If City approves the application, all Work shall be completed
in compliance with the approved application. In addition, in conjunction with approval
of any application, the City may, in its sole discretion, require any or all of the following:
(a) As-Builts. The City may require that Communications Company provided as-built
drawings upon completion of any Work.
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(b) Inspections. The City may require consulting engineering inspections beginning at
pre-construction and continuing through installation/construction/punch-list and
verification of as-builts at project completion.
(c) Amendment. The City may require an ame ndment to this Agreement and/or an
increase in the annual lease fees.
7. Liens. Communications Company shall take all steps necessary to prevent any
mechanics’ or materialmen’s liens from being placed on the Property as a result of
Communications Company’s use of the Property.
8. Labeling. Communications Company shall ensure that the site ID and an emergency
contact number is clearly visible and legible on the Equipment Shelter.
9. Locates. Communications Company shall be responsible for all utility locates relating to
its Facility and shall be responsible for all costs and damages related to any failure to do
so. The City is not responsible to notify the Communications Company of locate
requests.
10. User Priority. Communications Company agrees that the following priorities of use, in
descending order, shall apply in the event of interference or other conflict while this
Agreement is in effect, and Communication Company's use shall be subordinate
accordingly:
(a) City;
(b) Public safety agencies, including law enforcement, fire, and a mbulance services that
are not part of the City;
(c) Other governmental agencies where use is not related to public safety; and
(d) Communications Company and other government -regulated entities whose
antenna offer a service to the general public for a fee in a manner similar to public
utility, such as long distance and cellular telephone, not including radio or
television broadcasters and pre-existing tenants.
11. Non-Exclusive Lease. Communications Company's lease to use those portions of the
Property described herein is non-exclusive and City shall have the right to use its
Property and to authorize others to do so as the City, in its sole discretion, may
determine. In the event that the use of the Property by third parties to whom City may
authorize such use constitutes an unreasonable or harmful interference with
Communications Company's use of the Facility and/or Property, Communications
Company may give notice to City of such interference. If the interference is not corrected
within thirty (30) days after the giving of such notice, Communications Company may
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terminate this Agreement upon notice to City. Communications Company shall have
exclusive use of its Facilities.
12. Utilities and Taxes. Communications Company will be responsible for installation and
payment of all utilities required by its use of the Property. Communications Company
shall pay all special assessments, and personal property and/or real estate taxes levied by
any taxing aut hority, against or upon the Facility or the Property as a result of the
installation and use of the Facility and the use of the Property by Communications
Company. City will provide to Communications Company a copy of any notice of taxes
or special assessments imposed upon the Facility or Property as a result of the Facility or
use of the Property by Communications Company, which City may receive from any
taxing authority. (Subject to any and all limitations imposed by law, Communications
Company may contest, at its own expense, any such taxes or assessments.)
13. Maintenance. Communications Company shall remove its Facility from the Water
Tower within 60 days of written notice from City that the Facility needs to be removed
for maintenance of the Water Tower. Communications Company may install a
temporary mobile communications facility on the Land during the maintenance period.
The removal and subsequent replacement shall be at Communications Company’s sole
cost. All costs for maintenance of the Property and Facility including but not limited to
painting or other maintenance of the Water Tower, that result from Communications
Company’s use of the Property, shall be paid promptly to City by Communications
Company upon City’s demand.
14. Ownership and Removal of Facility. During the Term of this Agreement and any
Extended Term, ownership of the Facility will remain in the Communications Company.
Upon termination of this Agreement for any reason, including but not limited to
expiration of the Term or an Extended Term, the Facility shall become the property of
City, except for (a) the Equipment Shelter, the transmitting, receiving, antennae
switching equip ment and the cabinets commonly associated with wireless telephone
service, and (b) those other portions of the Facility which City notifies Communications
Company of City’s desire to have removed. Communications Company shall, not more
than sixty (60) days from the termination of this Agreement or the effective date of the
City’s notice to remove, whichever is later, remove those portions of the Facility
described in subsections (a) and (b) above and shall restore the Property from which they
have been removed to its condition at the commencement of the Term, reasonable wear
and tear excepted. In order to ensure compliance with this Section, in conjunction with
the execution of this Agreement Communications Company shall provide City with a
deposit or escrow in the amount of Ten Thousand and 00/100 Dollars ($10,000.00), to
cover the cost of removing and disposing of the Facility and restoring the Property in the
event Communications Company does not comply with the removal obligations set forth
within this Section 14. Upon removal of the Facility as set forth in this Section 14, City
shall refund to Communications Company the full amount of the deposit or escrow if
Communications Company fully complied with this Section or any amount not used by
City to complete Communications Company’s obligations under this Section 14 if
Communications Company did not fully comply with this Section.
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15. Technology. Communications Company shall use the Facilit y exclusively to provide
communications services operating on frequencies licensed to it by the Federal
Communications Commission (“FCC”). Communications Company shall provide to the
City a list of all such frequencies prior to the Commencement Date and within 30 days of
any change in operating frequencies. Any change in equipment or facilities related to the
change in frequency shall be preceded by a separate or amended agreement.
16. Defense and Indemnification.
(a) General. Communications Company shall defend, indemnify, and hold City
harmless against any claim of liability or loss from personal injury, property
damage or liens resulting from or arising out of the use and occupancy of the
Property and the installation and/or removal of the Facility by the
Communications Company, its officers, employee or agents, including reasonable
attorneys' fees and costs, provided such injury to persons or damage to Property
are not due to the sole negligence, willful acts or omissions of City, its officers,
employees or agents.
(b) Hazardous Materials. Without limiting the scope of Section 16 (a) above, except
to the extent caused by others, Communications Company will be solely
responsible for and will defend, indemnify, and hold City, its agents, and
employees harmless from and against any and all claims, costs, and liabilities,
including attorney’s fees and costs, arising out of or in connection with the
cleanup or restoration of the Property resulting from Communications Company’s
use of Hazardous Materials. For purposes of this Agreement, “Hazardous
Materials” shall mean: Any toxic or hazardous substances or wastes, pollutants or
contaminants (including, without limitation, asbestos, urea formaldehyde, the group
of organic compounds known as polychlorinated biphenyls, petroleum products
including gasoline, fuel oil, crude oil and various constituents of such products, and
any hazardous substance as defined in the Comprehensive Environmental Response
Compensation and Liability Act of 1980, 42 U.S.C. §9601-9657, as amended).
(c) Communications Company’s Warranty. Communications Company
represents and warrants that its use of the Property will not generate and
Communications Company will not store or dispose of on the Property, nor
transport to or over the Property, any Hazardous Materials. City and
Communications Company acknowledge that Communications Company shall be
utilizing and maintaining on the Property sealed batteries, propane, an HVAC
system, and a halon/FM200 fire suppression system and that the use and
maintenance of such items shall not constitute a violation or breach of the
preceding sentences of this Section. In the event that Communications Company
wants to install a generator Communications Company must obtain City’s prior
written consent .
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17. Insurance.
(a) General Commercial Liability. Communications Company shall maintain an
occurrence form commercial general liability insurance coverage. Such coverage
shall include, but not be limited to, bodily injury, property damage – third party,
and personal injury, for the hazards of Premises/operation, contractual,
independent contractors, and products/completed operations. The policy shall
have coverage limits of at least $5,000,000 for any one occurrence of property
damage and $5,000,000 per person and per occurrence for personal injury or
death. Up to $2,000,000 of the coverage amounts set forth may be met b y
umbrella policies so long as in combination the limits equal or exceed those
stated.
Communications Company shall require any independent contractor hired by
Communications Company to perform work on the Facility to maintain
commercial general liability insurance coverage as required for Communications
Company, detailed above. The independent contractor shall be required to
include the Communications Company and the City as additional insureds and the
policy shall specify that the coverage will be primary and noncontributory to
Communications Company and the City.
(b) Property. Communications Company shall keep in force during the Term and any
Extended Term a policy covering damages to its Facility at the Property. The
amount of coverage shall be sufficient to provide for replacement of the damaged
Facility, damages resulting from loss of use, and shall comply with any local,
state or federal, law, rule or regulation.
(c) Workers Compensation. Communications Company shall maintain worker's
compensation insurance as required by law.
(d) Additional Requirements. The insurance policies required by this Agreement
shall be issued by a company (rated A- or better by Best Insurance Guide)
authorized to do business in the State of Minnesota, and shall include the City as
an additional insured. The policies shall specify that the coverage will be primary
and noncontributory. A copy of the Communication Company’s Certificate of
Insurance, which evidences the existence of this insurance coverage naming the
City as an additional insured must be provided to the City before Communications
Company, or any party acting on Communications Company’s behalf or at
Communications Company’s behest, enters the Property. In the event of a claim
which gives rise to a coverage question, the Communications Company will
provide an insurance declaration page, Rider and/or Endorsement relating to the
coverage question, upon City’s request . Any policy that is cancelled or non-
renewed shall be replaced with insurance meeting the requirements set forth
herein in a manner that ensures that no gap occurs in coverage. Communications
Company shall provide current certificates of insurance any time there is a change
in coverage and such certificates shall show that no gap in coverage occurred.
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(e) Subcontractors. Communications Company shall require all subcontractors
to meet the insurance requirements set forth herein. All entities or persons
accessing the Property or Water Tower shall provide to the City proof of such
insurance.
18. Temporary Interruptions of Service. When City determines that continued operation of
Communications Company’s Facility would cause or contribute to an immediate threat to
the public health and/or safety (including maintenance and operating personnel), City
may, without prior notice to Communications Company, cause discontinuance of the
operation of Communications Company’s Facility or may order Communications
Company to discontinue its operation. Discontinuance of Communications Company’s
operation shall include but shall not be limited to, shutting down the transmission of
electromagnetic waves or impulses to or from the Facility. Communications Company
shall immediately comply with such an order. Operations shall be discontinued only for
the period that the immediate threat exists. If prior notice is not given to
Communications Company, City shall notify Communications Company as soon as
possible after its action and give its reason for taking action. City shall not be liable to
Communications Company or any other party for any interruption in Communications
Company’s service or interference with Communications Company’s operation of its
Facility. If the discontinuance shall extend for a period greater than three days, either
consecutively or cumulatively, Communications Company shall have the right to
terminate this Agreement within its sole discretion without any prior notice.
Notwithstanding anything to the contrary in this Agreement, City acknowledges and
agrees that the FCC is the only party that has jurisdiction over the health effects and
permissible exposure levels of wireless communications facilities.
19. Interference with the Property. Communications Company shall not interfere with City’s
use of the Property, or use by others to whom City has granted the use of the Property,
and, except for as provided in Section 20 with respect to interference with
communications, agrees to cease all such actions which interfere with the use thereof by
City or others no later than three (3) business days after receipt of written notice of the
interference from City. If the interference cannot be eliminated within three (3) days
after Communications Company has received written notice, either City or
Communications Company may at its option terminate this Agreement immediately
provided Communications Company shall have such extended period as may be required
beyond the three (3) days if the nature of the cure is such that it reasonably requires more
than three (3) days and Communications Company commences the cure within the three
(3) day period and thereafter continuously and diligently pursues the cure to completion.
20. Interference with Communications. Communications Company’s use and operation of
its Facility shall not interfere with the use and operation of other communication facilities
now or hereafter installed on the Water Tower, whether owned by City or another. If
Communications Company’s Facility causes interference, Communications Company
shall take all measures necessary to correct and eliminate the interference. If the
interference cannot be eliminated within forty-eight (48) hours after receiving City’s
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written notice of the interference, Communications Company shall immediately cease
operating its Facility and shall not reactivate operation, except intermittent operation for
the purpose of testing, until the interference has been eliminated. If the interfe rence
cannot be eliminated within thirty (30) days after Communications Company has
received City’s written notice, City may at its option terminate this Agreement
immediately without any prior notice.
21. Additional Covenants. Communications Company shall: (a) not install, locate or use a
generator, whether natural gas, propane, gasoline or diesel fuel, on the Property without
prior written consent from the City; (b) not use any process or method in the construction,
installation, operation, maintenance, repair or removal of any Facility upon the Water
Tower by means of welding, cutting tool, or other device which could damage the
Property or City’s Water Tower, including its interior and exterior paint (if any) or any
equipment attached thereto; (c) protect the Water Tower from damage or harm in the
event of the repair or maintenance of the Water Tower or other facilities of City; (d) not,
without City’s consent, remove, cut, or trim any trees or other vegetation on the Property;
(e) replace heritage trees (as defined in Prior Lake City Code) lost or reasonably
anticipated to be lost as a result of construction of the Facility upon the Property in
accordance with the provisions of Prior Lake City Code Section 1107.2100; and (f)
operate the Facility in a manner that does not violate Prior Lake City Code Section 605
relating to public nuisances.
22. Default. The following shall constitute an event of default by Communications Company
(“Communications Company’s Default”):
(a) Communications Company’s failure to make prompt payment of fees and other
amounts due within fifteen (15) days after they become due.
(b) Communications Company’s failure to comply with Communications Company’s
obligations contained in Section 13, 18, 19 and 20 of this Agreement.
(c) Communications Company’s failure to observe or perform any other term,
covenant, condition or provision contained in this Agreement within thirty (30)
days after written notice to Communications Company specifying such failure and
requiring Communications Company to remedy the same, except that there shall
be no default if the failure cannot reasonably be cured within such thirty (30) day
period and Communications Company has commenced to cure the failure within
such thirty (30) day period and diligently pursues the cure to completion.
(d) The adjudication of Communications Company as bankrupt by a court of
competent jurisdiction, or the entry by such a court of an order approving a
petition seeking reorganization of Communications Company under the federal
bankruptcy laws or any other applicable law or statute of the United States of
America or any State t hereof, or the appointment by such a court of a trustee or
receiver or receivers of Communications Company or of all or any substantial part
of its property upon the application of any creditor in any insolvency or
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bankruptcy proceeding or other creditor’s suit in each case, the order or decree
remains unstayed and in effect for ninety (90) days.
(e) The filing by Communications Company of a petition in voluntary bankruptcy or
the making by it of a general assignment for the benefit of creditors or the
consenting by it to the appointment of a receiver or receivers of all or any
substantial part of the property of Communications Company; or the filing by
Communications Company of a petition or answer seeking reorganization under
the federal bankruptcy laws o r any other applicable law or statute of the United
States of America or any State thereof; or the filing by Communications Company
of a petition to take advantage of any debtor’s act.
(f) Communication Company’s default under any other agreement with the Cit y.
23. Remedies. Upon Communications Company’s Default, City shall be entitled to terminate
this Agreement, obtain an order for specific performance, recover damages, and/or obtain
any other remedy available at law or in equity. The exercise of one or more of such
remedies by City shall not be deemed an election or waiver of the right to exercise any
other remedy.
24. No Duty to Repair - Termination. City shall have no duty or obligation to maintain,
repair, restore, replace or modify the Water Tower, the Property, or any of City's
facilities, fixtures, personal property or improvements located thereon or therein. In
addition to City’s right to terminate this Agreement under any other Section of this
Agreement , City shall have, and reserves, the right in its sole discretion to terminate this
Agreement upon at least one hundred and eighty (180) days written notice, if, in City’s
sole judgment, City shall:
(a) convey or transfer to another the Property or Water Tower.
(b) discontinue its use of the Water Tower.
(c) determines, after consultation with a licensed structural engineer that the Water
Tower is structurally unsound for use, for any reason including but not limited to
considerations related to the age of the structure, damage to or destruction of all
or part of the Water Tower or the Property from any source, or factors relating to
the condition of the Facility or Property; provided that if such a determination is
made City may require that Communications Company remove its Facility
immediately.
25. Communications Company – Termination. Communications Company shall have the
right to terminate this Agreement upon at least one hundred eighty (180) days written
notice if Communications Company determines that the Property or Facility are
unnecessary or inappropriate for Communications Company’s operations for economic or
technological reasons.
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26. Survival. Upon termination of this Agreement pursuant to City’s or Communications
Company’s right to terminate this Agreement as provided herein or upon expiration of
the Term or any Extended Term, the parties’ obligations under this Agreement shall
cease, except Communications Company’s obligations with resp ect to Sections 7, 12, 13,
14 and 16 of this Agreement and to make payment of any amounts to which City is
entitled at such time. Termination shall not relieve Communications Company of any
liability by way of damages to which City may be entitled upon Communications
Company’s Default hereunder.
27. Extended Term. This Agreement and any lease granted hereby shall automatically renew
for two (2) additional five (5) year terms (“Extended Term”) upon the terms, covenants,
conditions and provisions herein unless the Communications Company notifies the City
in writing of its intention not to renew this Agreement at least one-hundred and eighty
(180) days prior to the expiration of the existing Term. The annual lease fees shall
increase by five percent (3%) each year on January 1. The annual lease fees for the
Extended Term to be paid in annual installments are as follows:
Year 6 (2024) $ 37,703.94
Year 7 (2025) $ 38,835.06
Year 8 (2026) $ 40,000.11
Year 9 (2027) $ 41,200.11
Year 10 (2028) $ 42,436.12
Year 11 (2029) $ 43,709.20
Year 12 (2030) $ 45,020.48
Year 13 (2031) $ 46,371.09
Year 14 (2032) $ 47,762.22
Year 15 (2033) $ 49,195.09
28. No Representation or Warranty – Conditional Grant. City makes no representation or
warranty regarding the condition of its title to the Property or its right to grant to
Communications Company use or occupation thereof under this Agreement. The lease
granted herein is “as is.” Communications Company is entering into this Agreement and
Communications Company’s use of the Property is subject to Communications
Company’s own investigation and acceptance. Communications Company’s rights
granted pursuant to this Agreement are subject and subordinate to all limitations,
restrictions, and encumbrances relating to City’s interest in the Land that may affect or
limit City’s right to grant those rights to Communications Company.
29. Entire Agreement . This Agreement contains all agreements, promises and
understandings between City and Communications Company and no verbal or oral
agreements, promises, or understandings shall or will be binding upon either City or
Communications Company in any dispute, controversy, or proceeding at law, and any
addition, variatio n, or modification to this Agreement shall be void and ineffective unless
it is in writing and signed by the parties hereto.
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30. Choice of Law. This Agreement and the performance thereof shall be governed,
interpreted, construed, and regulated by the law s of the State of Minnesota.
31. Assignment or Sublease. Without any approval or consent of the City, this Agreement
may be sold, assigned or transferred by Communications Company to (i) any entity in
which Communications Company directly or indirectly holds an equity or similar
interest; (ii) any entity which directly or indirectly holds an equity or similar interest in
Communications Company; (iii) any entity directly or indirectly under common control
with Communications Company or (iv) any entity which acquires all or substantially all
of Communications Company's assets in the market defined by the FCC in which the
Property is located by reason of a merger, acquisition or other business reorganization.
As to other parties, this Agreement may not be sublet, sold, assigned, or transferred at
any time by Communications Company without the prior written consent of City, which
consent may be withheld in the City’s sole discretion.
32. Notices. Any notice required o r permitted to be given by any party upon the other is
given in accordance with this Agreement if: (i) it is directed to City by delivering it
personally to the Manager of City; (ii) if mailed in a sealed wrapper by United States
registered or certified mail, return receipt requested, postage prepaid; or (iii) if deposited
cost paid with a nationally recognized, reputable overnight courier . If delivered under (ii)
or (iii) the notice must be properly addressed as follows:
If to City: City of Prior Lake
Attn: City Manager
4646 Dakota St SE
Prior Lake, MN 55372
With a copy to: Hoff Barry, P.A.
Attn: Sarah Schwarzhoff
775 Prairie Center Drive, Suite 160
Eden Prairie, MN 55344
If to Communications Company:
T-Mobile USA, Inc.
12920 SE 38th St.
Bellevue, WA 98006
Attention: Lease Compliance/A1P0401A
Notices shall be deemed effective on the earlier of the date of receipt or the date of
deposit as aforesaid; provided, however, that if notice is given by deposit, that the time
for response to any notice by the other party shall commence to run one business day
after such deposit. Any party may change its address for the service of notice by giving
written notice of such change to the other party, in any manner above specified, 10 days
prior to the effective date of such change.
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33. Limitation of Liability. Notwithstanding anything to the contrary in this Agreement, in
no event will either party be liable to the other party for, or indemnify the other party
against, punitive damages.
34. Condemnation. If the whole Land shall be taken by any public authority under the power
of eminent domain, or is sold to any entity having the power of eminent domain under
threat of condemnation, then Communications Company may terminate the term of this
Agreement as of the date of the granting of the petition or the date of the closing and the
lease fees shall be paid up to that day. If a portion of the P roperty is taken by eminent
domain, Communications Company shall have the right to terminate this Agreement by
giving written notice thereof to City within ninety (90) days after the date of taking. If a
portion of the Property is taken by eminent domain, and this Agreement is not thereafter
terminated, Communications Company shall continue in the possession of the remainder
of the Property under the terms, covenants, conditions and provisions herein provided,
and the annual lease fees shall remain fully due and payable as set forth herein.
Any award, compensation, or damages, shall be paid to and be the sole property of the
City, but nothing herein shall preclude Communications Company from claiming against
the condemning authority with respect to moving expenses and loss of personal property
and any other recoverable damages (but not for the loss of the leasehold/lease interest)
and receiving an award therefor.
35. Additional Facility.
(a) Communications Company acknowledges that City has sole discretion to make
additional improvements on the Property, whether or not such improvements affect
Co mmunications Company’s Facility.
(b) Communications Company acknowledges that City may permit 3rd parties to
construct additional improvements on the Property. At such time as this may occur,
Communications Company will permit said improvements to be placed immediately
adjacent to Communications Company’s Facility as long as the improvements do not
materially interfere with Communications Company’s use of the Property. Said
attachments will be made at no cost to Communications Company, and City will
require that the owner of such attachments assure both City and Communications
Company that the attachments will not compromise the structural integrity of
Communications Company’s Facilit ies.
36. Successors and Assigns. All of the terms, covenants, conditions and provisions herein
shall be binding upon and inure to the benefit of the successors in interest, heirs, and
assigns of the parties hereto.
37. Recording of Memorandum. The parties shall execute and either shall be permitted to
record at any time the Memorandum of Agreement attached hereto as Exhibit F. If this
Agreement is terminated prior to expiration of its Term, or an Extended Term,
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Communications Company shall record an appropriate instrument to clear the
memorandum from the title to the Land.
38. Waiver. No provision of this Agreement will be deemed waived by either party unless
expressly waived in writing by the waiving party. No waiver shall be implied by delay or
any other act or omission of either party. No waiver by either party of any provisions of
this Agreement shall be deemed a waiver of such provision with respect to any
subsequent matter relating to such provision.
39. Counterparts. This Agreement may be signed in counterparts by the parties hereto.
40. Severability. I f any term of the Agreement is found to be void or invalid, such finding
shall not affect the remaining terms, covenants, conditions or provisions of this
Agreement, which shall continue in full force and effect.
41. Enforcement . In the event that either party to this Agreement shall bring a claim to
enforce any rights hereunder, the prevailing party shall be entitled to recover cost and
reasonable attorneys' fees and other reasonable enforcement cost and expenses incurred
as a result to such claim
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their
respective seals the day and year written below.
CITY:
CITY OF PRIOR LAKE
Date:____________, 20___ By:__________________________
Kirt Briggs, Mayor
By:___________________________
Michael Plante, City Manager
CITY ACKNOWLEDGEMENT
STATE OF MINNESOTA )
) ss
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this ____day of ___________,
20____, by Kirt Briggs and Michael Plante, respectively the Mayor and the City Manager of the
City o f Prior Lake, a Minnesota municipal corporation, on behalf of said corporation.
___________________________________
Notary Public
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COMMUNICATIONS COMPANY:
T-MOBILE CENTRAL LLC
Date:____________, 20___ ___________________________
By:________________________
Its: ________________________
___________________________
T-Mobile Contract Attorney
as to form
COMMUNICATIONS COMPANY ACKNOWLEDGEMENT
STATE OF ____________________ )
) ss.
COUNTY OF __________________ )
I certify that I know or have satisfactory evidence that ____________________________
is the person who appeared before me, and said person acknowledged that he /she signed this
instrument, on oath stated that he was authorized to execute the instrument and acknowledged it
as the __________________________________________ of T-Mobile Central LLC, a
Delaware limited liability company, to be the free and voluntary act of such party for the uses
and purposes mentioned in the instrument.
Dated: ________________________
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
6/5/19
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Mike Taylor
VP Critical Infrastructure Procurement & Cost Management
6/7/2019
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