HomeMy WebLinkAboutVIII-05 Authorize Signature - Water Tower Antenna Lease Agreement for Renewal of Terms - T-Mobile 4th Street West Water Tower
City Council Memorandum
To: Mayor Fasbender & City Councilmembers
From: Kori Land, City Attorney
Date: December 2, 2024
Item: Water Tower Antenna Site Lease Agreement for Renewal of Terms –
T-Mobile West 4th Street Water Tower
Council Action Requested:
Approve the Antenna Site Lease Agreement with T-Mobile at the West 4th Street Water
Tower
Background Information:
The City and T-Mobile entered into a Water Tower Site Agreement dated May 20, 2002,
which was amended on May 1, 2011, and again in December of 2021. The Site Agreement
expires in May 2027 but T-Mobile requested early renewal of its lease. We therefore
prepared a new lease agreement with updated terms and conditions.
• It begins Jan. 1 and it is a 5-year term with 4 renewals (final expiration December
31, 2049)
• Rent is $48,000/year with a 4% annual escalator
• Amendments or modifications to the lease or equipment require reimbursement of
up to $15,000 for city’s expenses
• Inspections require reimbursement up to $5,000
• Termination without cause by tenant requires tenant to pay an additional 150% of
annual rent as a penalty.
• City can terminate without cause with 1-year notice if we need to redevelop the site
or decommission the water tower
Financial Impact:
$48,000 starting in 2025 + 4% annual escalator
Attachments:
Site Lease Agreement with T-Mobile
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ANTENNA SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT (“Lease”), is made effective as of the _____ day of ___________, 2024 (the “Approval Date”), between the City of Hastings, a Minnesota municipal corporation (“Landlord”), and T-Mobile Central LLC, a Delaware limited liability company (“Tenant”). Landlord and Tenant are at times collectively referred to hereinafter as the
“Parties” or individually as the “Party.”
WHEREAS, the Parties, or their predecessors in interest, are parties to a Site Agreement dated May 20, 2002, as amended by that certain First Amendment to Site Agreement dated May 1, 2011 and Second Amendment to Antenna Site Lease Agreement approved November 1, 2021, and
dated December 2021 (collectively, the “Prior Lease Agreement”), whereby Landlord leased a portion
of Landlord’s property to Tenant for the purpose of constructing, maintaining and operating a communications facility and uses incidental thereto; and
WHEREAS, the Prior Lease Agreement expires in May 2027 and the parties wish to enter
into a new lease agreement which supersedes and replaces the Prior Lease Agreement such that all
terms of this Lease shall control over the Prior Lease Agreement; and
WHEREAS, the Parties desire to enter into this Lease to govern the rights of the Parties and this Lease shall be effective as of the Approval Date; and
NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the Parties agree as follows:
1.LEASED PREMISES. For purposes of operating wireless communications services, and
subject to the terms and conditions of this Lease, Landlord hereby leases to Tenant and Tenant leases
from Landlord the following premises:
(a)A portion of Landlord’s Property, located at 1900 4th Street West, in Hastings, DakotaCounty, Minnesota, which is legally described on Exhibit A attached hereto and incorporated herein
(“Landlord’s Property”), upon, in, under or over which Tenant’s Antenna Facilities (as defined below)
are attached, connected, enclosed or contained; and
(b)A portion of the Landlord’s water tower (“Structure”), on which directional antennasand receivers, connecting cables and appurtenances are currently attached and located; and
(c)A portion of Landlord’s Property on which Tenant’s equipment shelter (“EquipmentShelter”) is currently located; and
(d)Non-exclusive easements required to run utility lines and cables to the Equipment
Shelter; and
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(e) A non-exclusive easement across Landlord’s Property for ingress and egress from the right-of-way to the Equipment Shelter and the Structure so that Tenant has access to its Antenna
Facilities.
All of the aforementioned items (a) – (e) are depicted on Exhibit B, attached hereto and incorporated herein, and shall be collectively known as the “Leased Premises.”
Tenant’s existing Antenna Facilities are defined as Tenant’s directional antennas, receivers,
connecting cables, utility lines, generator, and Equipment Shelter and are more specifically depicted on Exhibit B. 2. RENT.
(a) Initial Rent Amount, Adjustments. As consideration for this Lease, Tenant shall pay Landlord annual rent in the amount of Forty-Eight Thousand and 00/100 ($48,000.00) (“Rent”) beginning January 1, 2025, and Rent shall be increased automatically and without notice annually on January 1, each year thereafter, by four percent (4.0%) of the previous year’s annualized rent. Any
Rent required pursuant to the Prior Lease Agreement that is unpaid, must be paid prior to January 1,
2025. (b) Time of Payment, Taxes. Tenant shall make quarterly Rent payments to the Landlord and said quarterly Rent shall be paid before the first business day of each calendar quarter (i.e. January
1, April 1, July 1 and October 1). The Parties agree that Tenant may pay Rent by electronic funds
transfer and Landlord agrees to provide to Tenant bank routing information for such purpose upon execution of this Lease. In addition to annual Rent, Tenant agrees to timely pay its pro-rata share of any taxes or payments in lieu of taxes directly attributable to the installation of Tenant’s Antenna Facilities upon the Leased Premises.
(c) Sublease. Tenant shall not be allowed to sublease space on the Leased Premises to additional telecommunication providers or to sublease the use of its conduit or coaxial access to other telecommunication providers as to allow such other telecommunication providers to use Tenant’s existing Antenna Facilities. Separate lease agreements for additional ground and antenna space shall
be with Landlord, not Tenant.
(d) Miscellaneous. Tenant shall pay for all costs of Landlord’s review of construction plans, inspections and installation project management costs for each project. Tenant shall reimburse Landlord for all reasonable costs associated with these consulting and engineering inspection costs in
an amount not to exceed $10,000 for each project. In addition to consulting and engineering inspection
costs, Tenant shall reimburse Landlord for all reasonable costs associated with drafting and reviewing the Lease and any amendments thereto and approving Tenant’s application, including but not limited to all staff and administrative review time, third-party consultant fees and expenses and attorney’s fees, up to Ten Thousand Dollars ($10,000.00) for each project. All fees and invoices must be paid
within sixty (60) days after Landlord sends Tenant an invoice for the same.
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3. TERM AND RENEWAL. The initial term of this Lease shall begin on the Approval Date and shall end on December 31, 2029 (hereinafter referred to as the “Initial Term”). Subject to the
terms and conditions of this Lease, Tenant shall have the right to renew this Lease for four additional
five-year renewal periods (each a “Renewal Term” and collectively the “Renewal Terms”). This Lease shall be automatically renewed for each successive Renewal Term upon the same terms and conditions unless Tenant sends written notice of non-renewal to Landlord no later than one hundred eighty (180) days prior to the expiration of the Initial Term or any Renewal Term, such notice to be
provided in accordance with Section 27 of this Lease. The final Renewal Term shall expire on
December 31, 2049. 4. GOVERNMENTAL APPROVAL CONTINGENCY.
(a) Tenant Application. Tenant’s right to use the Leased Premises is expressly made
contingent on Tenant obtaining and maintaining all the certificates, permits, licenses, zoning and
other approvals that may be required by any federal, state, or local authority. This shall include the interference and engineering studies specified in Subsections 4(b) and 4(c) below on the Structure to be conducted at Tenant’s expense. Landlord shall cooperate with Tenant in its efforts to obtain and retain such approval and shall take no action that would adversely affect the status of the
Leased Premises with respect to the Tenant’s proposed use thereof. Tenant shall not consider this
Lease, or the negotiations to enter into a lease, as alleviating Tenant from any and all requirements for Tenant to obtain needed certificates, permits, licenses, zoning and other approvals including conditional use permits or other special approvals required by city, county, state or federal governments.
(b) Interference Study. Tenant shall only operate using frequencies in which it has
received licenses from the Federal Communications Commission (“FCC”). Before obtaining a building permit for any existing or future Antenna Facilities, modifications or improvements, Tenant must pay for the reasonable cost of an interference study, carried out by an independent and qualified professional selected by Tenant and approved by Landlord, which approval shall not
be unreasonably withheld, showing that Tenant’s intended use will not interfere with any other
tenant’s existing communications facilities, unless such requirement is waived by Landlord. If the study finds that there is a potential for interference that cannot be reasonably remedied, Landlord may deny the building permit.
(c) Structural Engineering Certification. Before obtaining a building permit, Tenant
must pay for the reasonable cost of an engineering study carried out by a qualified engineer
selected by Landlord, showing that the Structure is able to support the proposed Antenna Facilities, modifications or improvements without materially adversely affecting Landlord’s use of the Structure or the use of the Structure by any other tenant. If the study finds that the Structure is inadequate to support the proposed Antenna Facilities, modifications or improvements or
materially adversely effects Landlord’s use of the Structure or use of the Structure by any other
tenant, Landlord may deny the building permit.
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(d) Non-Approval. In the event that any application necessary under Subsection 4(a) above is rejected or any certificate, permit, license or approval issued to Tenant is canceled, denied,
expires, lapses or is otherwise withdrawn or terminated by government authority so that Tenant,
in its sole discretion, will be unable to use the Leased Premises for its intended purposes, or if an interference or engineering study, whether conducted pursuant to Subsections 4(b) and 4(c) above or otherwise, should indicate, in Tenant’s sole discretion, that the Leased Premises are unsatisfactory for Tenant’s intended use, Tenant shall have the right to terminate this Lease and
no further Rent shall be due following the termination date. Tenant shall provide ninety (90) days
written notice to Landlord of Tenant’s intent to exercise its right to terminate pursuant to this Subsection, and such notice shall be provided in accordance with Section 27, Notices, of this Lease. Except as otherwise stated in this Lease, upon such termination, this Lease shall become null and void and the Parties shall have no further obligation to each other.
5. TENANT’S USE.
(a) User Priority. Tenant agrees that the following priorities of use, in descending order, shall apply in the event of communication interference or other conflict while this Lease is in effect, and Tenant’s use shall be subordinate accordingly:
i. Landlord;
ii. Public safety agencies, including law enforcement, fire, and ambulance services that are not part of Landlord;
iii. Other governmental agencies where use is not related to public safety; and
iv. Tenant 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.
(b) Purposes. Tenant shall use the Leased Premises only for the purpose of installing, maintaining, and operating Antenna Facilities, equipment, cabinets and Equipment Shelter, and
uses incidental thereto for providing communications services which Tenant is legally authorized
to provide to the public. This use shall be non-exclusive, and Landlord specifically reserves the right to allow Landlord’s Property, except the Leased Premises, to be used by other parties and to make additions, deletions, or modifications to its own facilities on the Leased Premises except as set forth in Subsection 5(a) herein. Tenant’s installation, maintenance and operation of the Antenna
Facilities shall at all times comply with all applicable ordinances, statutes and regulations of local,
state and federal governmental agencies. Tenant shall have exclusive use of its Antenna Facilities.
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(c) Modifications, Replacements or Other Improvements of Antenna Facilities. Tenant agrees that it will install only antennas that Tenant knows will not interfere with existing antennas
or with antennas with higher priority. If Tenant seeks to modify, replace or improve its Antenna
Facilities, then Tenant must obtain a building permit from Landlord and comply with Subsections 4(b) and 4(c) requiring an interference study and engineering study, unless such requirement is waived by Landlord. A modification, replacement or improvement that expands the size of the Antenna Facilities or alters the location of the Antenna Facilities located on the Leased Premises
from the location of the existing Antenna Facilities depicted on Exhibit B as of the Approval Date
or as Exhibit B may be subsequently amended, shall increase the annualized Rent by a proportionate amount, as determined by Landlord and agreed to by Tenant. An amendment to this Lease may also be required.
(d) Pre-Construction Plans. Prior to the initial construction, and for any and all
modifications, replacements or improvements to the Antenna Facilities proposed after the
Approval Date, Tenant shall provide Landlord and Landlord’s engineering consultant with construction plans in an electronic file format that is compatible with Landlord’s record management system and two sets of drawings of the improvements proposed for the Leased Premises consisting of the following:
i. Line or CAD drawings showing the actual physical location of all planned
installations plus materials and construction methods;
ii. Specifications for all planned installations;
iii. Diagrams of proposed Antenna Facilities;
iv. A complete and detailed inventory of all equipment and personal property of Tenant
proposed to be placed on the Leased Premises;
v. Results of the interference study required by Subsection 4(b); and
vi. Results of the engineering study required by Subsection 4(c).
(collectively referred to as “Construction Plans”) Landlord shall have thirty (30) business days to review the Construction Plans, and Landlord’s approval of the Construction Plans shall not be
unreasonably withheld, conditioned or delayed, provided, however, Landlord may condition
acceptance on an increase in Rent related to plans that expand or alter the Antenna Facilities, as provided in Section 5(c). If Landlord fails to either approve the Construction Plans or provide written request for changes of said Construction Plans to Tenant within the thirty (30) day period, the Construction Plans will be deemed approved by Landlord.
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(e) Post-Construction As-Built Drawings. Within thirty (30) days after Tenant modifies the Antenna Facilities, Tenant shall provide Landlord with as-built drawings in electronic
file format compatible to the Landlord’s record management system to replace Exhibit B that
consist of as-built drawings of the Antenna Facilities and the improvements actually installed on Landlord’s Property and the Leased Premises, which show the actual location of all equipment and improvements. Said drawings shall be accompanied by a complete and detailed site survey of the Property, inventory of all equipment, personal property and the modified Antenna Facilities.
Landlord retains the right to survey the installed equipment.
(f) Contractor Approval. Any contractor chosen by Tenant to carry out construction, installation, maintenance or any other work on the Structure must be pre-approved by the Landlord prior to the pre-construction meeting. Contractor information to include at the minimum:
i. Name and contact information;
ii. Experience (with water storage tank installations); and
iii. OSHA violations within the previous three (3) years.
Landlord retains sole discretion and reserves the right to reject any and all contractors Tenant may choose for the installation work as determined to be in the best interests of Landlord and to waive any informalities.
(g) Inspection. Consulting engineering inspection will be provided beginning with the
pre-construction meeting and continuing through installation, construction, punch-list and verification of as-builts at project completion as determined solely by Landlord, at Tenant’s expense. Landlord will not arbitrarily require more inspections than are reasonably necessary to ensure the continued delivery of service and security of Landlord’s Property and the Structure.
Tenant shall pay for all costs of Landlord’s inspections and installation project management costs,
up to Five Thousand and 00/100 ($5,000.00) Dollars and pursuant to Subsection 2(d). Notwithstanding anything to the contrary, prior to energizing any future modifications to Tenant’s Antenna Facilities, all punch-list items related to installation must be substantially complete (the exception may be weather-related finish painting, etc., as determined by Landlord).
(h) Tenant’s Operation and On-Going Maintenance. Tenant shall have the right, at its
sole expense, to operate and maintain the Antenna Facilities on the Leased Premises, as depicted on Exhibit B, in accordance with good engineering practices and all applicable FCC rules and regulations. Tenant’s installation of all Antenna Facilities shall be done according to plans approved by Landlord. Any damage done by Tenant, its employees or agents to the Leased
Premises or any other portion of Landlord’s Property including the Structure during installation or
during operations, shall be repaired by Tenant at Tenant’s expense within thirty (30) days after notification of damage. The Antenna Facilities shall remain the exclusive property of the Tenant,
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unless otherwise provided in the Lease. Tenant’s Antenna Facilities shall be maintained in a good state of repair, at least equal to the standard of maintenance of the Landlord’s facilities on or
adjacent to the Leased Premises. If Tenant’s Antenna Facilities are mounted on the Structure they
shall, at all times, be painted, at Tenant’s expense, the same color as the Structure. Landlord reserves the right to require or waive this requirement as it pertains to feed line, jumpers, brackets, connecters and other ancillary equipment on a case-by-case basis, depending on the installation configuration.
(i) No Interference. Tenant shall, at its own expense, maintain any equipment on or
attached to the Leased Premises and owned by Tenant in a safe condition, in good repair and in a manner suitable to Landlord so as not to conflict with the use of the surrounding Landlord’s Property by Landlord. Tenant shall not unreasonably interfere with the operations of any prior tenant using the Structure and shall not interfere with the working use of the water storage facilities or anything to be
placed thereon by Landlord.
(j) Access. Tenant, at all times during this Lease, shall have exclusive access to its Antenna Facilities located on the Leased Premises in order to install, operate, repair and maintain its Antenna Facilities. Tenant shall request access to the Structure by telephone or email twenty-four (24) hours in advance, except in an emergency, and Landlord approval thereof shall not be
unreasonably withheld or delayed. Access to Antenna Facilities on the Structure shall be with prior
telephonic or email notice; Tenant’s employees or contractors must provide identification; and such access must occur in the presence of a Landlord designated employee. Both Landlord and Tenant shall maintain a written record of all site visits, including the name of all personnel. In the event it is necessary for Tenant to have access to the Structure at some time other than the normal
working hours of Landlord, Landlord may charge Tenant for whatever expense, including
employees’ wages that Landlord may incur in providing such access to Tenant.
(k) Payment of Utilities. Landlord makes no representations that utilities adequate for Tenant’s use of the Leased Premises are available. Tenant shall separately meter charges for the consumption of electricity and other utilities associated with its use of the Leased Premises and shall
be responsible to promptly pay all costs associated therewith. Landlord will cooperate with Tenant in
Tenant’s efforts to obtain utilities from any location provided by the servicing utility.
6. EMERGENCY FACILITIES. In the event of a natural or manmade disaster, in order to protect the health, welfare and safety of the community, Tenant may erect additional Antenna Facilities and install additional equipment on a temporary basis on the Leased Premises to ensure
continuation of service. Such temporary operation shall not exceed two (2) years unless Tenant
obtains written approval from the Landlord.
7. LANDLORD’S MAINTENANCE, IMPROVEMENT EXPENSES. All modifications to the Leased Premises and all improvements made at Tenant’s request or for Tenant’s benefit shall be at the Tenant’s expense. For expenses less than Five Hundred ($500) Dollars, upon notice and
invoice from Landlord, Tenant shall promptly pay to Landlord expenses incurred in maintaining
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the Leased Premises directly caused by Tenant’s occupancy of the Leased Premises. For expenses exceeding Five Hundred ($500) Dollars, prior notice of expenses and modifications must be
approved by Tenant within ninety (90) days after Landlord sends Tenant notice of expenses and
modifications.
8. ADDITIONAL BUILDINGS. Tenant acknowledges that Landlord may permit additional buildings to be constructed on Landlord’s Property. At such time as this may occur, Landlord may permit said buildings to be placed immediately adjacent to Tenant’s Equipment Shelter. Said
attachments will be made at no cost to Landlord or Tenant, will not compromise the structural
integrity of Tenant’s Equipment Shelter, and will not unreasonably interfere with the operation and maintenance of Tenant’s Antenna Facilities.
9. RELOCATING DURING RECONDITIONING, PAINTING AND REPAIRS. In the event that Landlord elects to recondition, paint or otherwise undertake maintenance of the
Structure or Landlord’s Property or the Leased Premises requiring the temporary relocation or
removal of the Antenna Facilities, Tenant shall remove its Antenna Facilities at Tenant’s cost, to allow such maintenance, repair, repainting, restoration or other activity as required by Landlord. Except in the case of an emergency, Landlord shall give Tenant at least one hundred and eighty (180) days’ notice prior to initiating such maintenance. In case of emergency, Landlord may
remove Tenant’s Antenna Facilities but shall notify Tenant 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 Landlord’s Property or the Structure. In the event the use of Tenant’s Antenna Facilities is interrupted, Tenant shall have the right to maintain mobile cellular equipment on Landlord’s Property. Tenants will have priority
based on the date of their leases (with the existing leases having highest priority) if space is limited.
If Landlord’s Property will not accommodate mobile equipment, it is Tenant’s responsibility to locate auxiliary sites at its sole cost and expense. After receiving notice, Tenant must relocate or remove Antenna Facilities at its sole cost and expense. If Tenant fails to remove Antenna Facilities within the timeframe stated in the notice, Landlord may remove Antenna Facilities and store the
Antenna Facilities accordingly. Tenant shall be required to reimburse Landlord for any reasonable
additional expenses incurred by Landlord for removing and storing the Antenna Facilities. Landlord shall provide an itemized statement of additional costs incurred by Landlord. Tenant shall be responsible for reinstalling its Antenna Facilities following completion of the work, at its sole cost and expense.
10. DEFENSES AND INDEMNIFICATION. (a) General. Landlord and Tenant each indemnify the other and hold harmless the other and their elected officials, officers, employees, agents and representatives, from and against any and
all costs (including reasonable attorneys’ fees and expenses) and claims, losses, actions,
demands, damages, obligations, liabilities and liens which arise out of (i) the breach of the Lease by the indemnifying Party; and (ii) the use and/or occupancy of the Landlord’s Property, except for any claims, losses, actions, demands, damage, obligations, liabilities and liens arising from any negligent or intentional misconduct of the indemnified Party. Tenant shall defend Landlord
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from all claims arising out of the installation, operation, use, maintenance, repair, removal or presence of Tenant’s Antenna Facilities, equipment and related facilities on the Leased Premises.
The obligations in this Subsection 10(a) shall survive termination or expiration of this Lease.
(b) Hazardous Materials. Without limiting the scope of Subsection 10(a) above, Tenant shall be solely responsible for and will defend, indemnify and hold Landlord, its agents and employees, harmless from and against any and all claims, costs and liabilities, including reasonable
attorneys’ fees and costs, arising out of or in connection with the cleanup or restoration of the Leased
Premises associated with Tenant’s use of Hazardous Materials. For purposes of this Lease, “Hazardous Materials” shall be interpreted broadly and specifically includes, without limitation, asbestos, fuel, batteries or any hazardous substance, waste or material as defined in any federal, state or local environmental or safety laws or regulations including, but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA).
(c) Tenant’s Warranty. Tenant represents and warrants that its use of the Leased Premises will not generate and Tenant will not store or dispose of on the Leased Premises, nor transport to or over the Leased Premises, any Hazardous Materials, unless Tenant specifically informs Landlord
thereof in writing twenty-four (24) hours prior to such storage, disposal or transport, or otherwise as
soon as Tenant becomes aware of the existence of Hazardous Materials on the Leased Premises; Tenant shall provide initial and annual updates of Safety Data Sheets (SDS) on all Hazardous Materials that are part of, or necessary to, the operation of the Antenna Facilities and maintenance thereof. Tenant warrants that no hazardous material supplies used in routine maintenance or repair
will be stored on the Leased Premises. Notwithstanding the foregoing, Landlord hereby
acknowledged that Tenant has installed a generator within the Leased Premises that may use fuel and/or batteries. The obligations of this Subsection 10(c) shall survive the expiration or other termination of this Lease.
11. INSURANCE.
(a) Workers’ Compensation. Tenant must maintain Workers’ Compensation insurance in compliance with all applicable statues. The policy shall also provide Employer’s Liability coverage with limits of not less than Five Hundred Thousand Dollars ($500,000) Bodily Injury each accident, Five Hundred Thousand Dollars ($500,000) bodily injury by disease, policy limit,
and not less than Five Hundred Thousand Dollars ($500,000) Bodily Injury by disease, each
employee.
(b) Commercial General Liability. Tenant must maintain an occurrence form Commercial General Liability Coverage. Such coverage shall provide for third party bodily injury and property damage arising out of the use, maintenance or operation of the Leased Premises and
Antenna Facilities. Tenant must maintain aforementioned Commercial General Liability Coverage
with limits of Liability of $1,500,000 each occurrence and; $3,000,000 general aggregate, including $3,000,000 products and completed operations aggregate and personal and advertising injury. These limits may be satisfied by the Commercial General Liability Coverage or in
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combination with an Umbrella or Excess Liability Policy, provided coverage afforded by the Umbrella or Excess Policy is no less than the underlying Commercial General Liability Coverage.
(c) Commercial Automobile Liability. Tenant must carry Commercial Automobile
Liability coverage in an amount of $1,500,000 combined single limit each accident for bodily injury and property damage covering all owned, non-owned and hired vehicles. The liability limits may be afforded under the Commercial Automobile Liability Policy, or in combination with an Umbrella or Excess Liability Policy provided coverage afforded by the Umbrella or Excess Policy
is no less than the underlying Commercial Automobile Liability Coverage.
(d) Tenant Property Insurance. Tenant must keep in force for the duration of the Lease a policy covering damages to its Antenna Facilities at the Leased Premises. The amount of coverage shall be sufficient to replace the Tenant’s damaged property, loss of use and comply with any ordinance or law.
(e) Adjustment of Insurance Coverage Limits. Notwithstanding the foregoing
insurance requirements of Tenant, Tenant agrees to periodically review and adjust insurance coverage limits in accordance with then-current market and industry standards during the Initial Term and any Renewal Term.
(f) Additional Insured - Certificate of Insurance. Tenant shall provide, prior to tenancy,
evidence of the required insurance in the form of a Certificate of Insurance issued by a company with
a minimum AM Best Rating of A- according to the latest Best edition, authorized to do business in the state of Minnesota, which evidences all coverages required in this Section 11. Tenant will include Landlord as an Additional Insured on the Commercial General Liability and Commercial Automobile Liability Policies, but only to the extent allowed in Section 10, Defense and Indemnification, of this
Lease. The Certificate(s) shall also provide the coverage may not be canceled without thirty (30) days
prior written notice to Landlord.
12. REIMBURSEMENT OF EXPENSES BY TENANT. If Tenant fails to reimburse Landlord for its expenses within sixty (60) days after receipt of an invoice from Landlord or such
other timeframe as specified in this Lease, or if Tenant fails to provide information required by
this Lease within thirty (30) days after notice from Landlord, Tenant shall be deemed to be in default under this Lease and subject to lease termination as provided in Paragraph 13(a)(i). In addition to being in default hereunder, Tenant shall pay a penalty to Landlord in the amount of one (1) month’s Rent for each month that Tenant fails to pay the invoice submitted by Landlord
and/or provide the documents required as the case may be. The terms of this Section shall survive
the termination or expiration of this Lease.
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13. LEASE TERMINATION.
(a) Events of Termination. Except as otherwise provided herein, this Lease may be
terminated by either Party upon sixty (60) days written notice to the other Party, provided in accordance with Section 27, Notices, of this Lease, as follows: i. By either Party upon a default of any covenant or term hereof by the other Party,
which default is not cured within thirty (30) days of receipt of written notice of
default to the other Party (without, however, limiting any other rights of the Parties pursuant to any other provision hereof); or ii. By Tenant for cause if it is unable to obtain or maintain any license, permit or other
governmental approval necessary for the construction and/or operation of the
Antenna Facilities; or iii. By Tenant for cause if the Leased Premises become unusable under Tenant’s design or engineering specifications for its Antenna Facilities, or the communications
system to which the Antenna Facilities belong or for technological reasons,
including, without limitation, shadowing or interference under Tenant’s Antenna Facilities; or iv. By Landlord, upon one (1) year prior written notice if its Council decides, for any
reason, to redevelop Landlord’s Property in a manner inconsistent with continued
use of the Leased Premises by Tenant, discontinue use of the Structure for water tower purposes and/or sell the Property; or v. By Landlord if it determines that the Structure is structurally unsound, including,
but not limited to, consideration of age of the Structure, damage or destruction of
all or part of the Structure on the Leased Premises from any source or factors relating to condition of the Leased Premises; or vi. By Landlord, upon nine (9) months’ written notice, if an engineering study
reasonably determines that a potential user with a higher priority under Subsection
5(a) above cannot find another adequate location, or the Antenna Facilities unreasonably interfere with another user with a higher priority, and that interference cannot be reasonably abated. If Landlord seeks to terminate this Lease pursuant to this Subparagraph 13a(vi) due to a priority user need related to public safety, then
this Lease may be terminated by Landlord without further obligation to Tenant. If
Landlord seeks to terminate this Lease pursuant to this Subparagraph 13a(vi) and the priority user’s need is not related to public safety, then before terminating this Lease pursuant to this Subparagraph 13a(vi) Landlord shall make all reasonable efforts to arrange placement of the priority user in a way which will not necessitate
the removal of Tenant or termination of this Lease. If Landlord is unable to arrange
for mutual placement of Tenant and the priority user unrelated to public safety,
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Landlord may terminate this Lease pursuant to this Subparagraph 13a(vi), and Landlord shall use its best efforts to relocate Tenant, at Landlord’s expense, to a
Landlord-owned or leased location within the municipal boundaries of Hastings,
Minnesota; or vii. By Landlord if it determines that Tenant has failed to comply with applicable ordinances or state or federal law, or any conditions attached to government
approvals granted thereunder after a thirty (30) day cure period.
(b) Notice of Termination. The Parties shall give notice of termination in writing in accordance with Section 27, Notices. Except as set forth herein, all Rent paid for the Lease prior to said termination date shall be retained by Landlord.
(c) Tenant’s Liability for Early Termination. If Tenant terminates this Lease other than for cause or of right as provided in this Lease, in addition to Rent paid under this Lease, Tenant shall also pay to Landlord as liquidated damages for early termination, 150% of the annual Rent for the year in which Tenant terminates, unless Tenant terminates during the last
year of any Term under Section 3 and Tenant has paid the annual rental for that year.
(d) Site Restoration. In the event that this Lease is terminated or not renewed, Tenant shall immediately remove its Antenna Facilities and related equipment from the Leased Premises, repair the site and restore the surface of the Structure. Should this situation occur
during the winter season, the restoration shall commence at the start of weather permissible to
the quality of workmanship required by Landlord. Such time period shall be agreeable to Landlord and Tenant. In the event that Tenant’s Antenna Facilities and related equipment are not removed to the reasonable satisfaction of the Landlord, they shall be deemed abandoned and become the property of the Landlord, and Tenant shall have no further rights thereto. In the event
that Tenant’s Antenna Facilities, and related equipment are not removed to the reasonable
satisfaction of the Landlord, Landlord shall have the option to take the following actions:
i. Fully decommission the Antenna Facilities, have the Antenna Facilities removed, and repair the site and restore the Property, and bill the Tenant for the cost of such
actions. If Landlord removes the Antenna Facilities or related equipment,
Landlord must give written notice to any mortgagee of Tenant at the addresses provided, informing them that Antenna Facilities or related property have been removed and will be deemed abandoned if not claimed and the storage fees and other reasonable costs paid within sixty (60) days; or
ii. Take full ownership of the Antenna Facilities and continue their operations at the
expense and benefit of Landlord. This terms of this provision shall survive the expiration or termination of this Lease.
14. DAMAGE OR DESTRUCTION. Tenant’s installation of any future Antenna Facilities shall
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be done according to plans approved by Landlord. Any damage done to the Leased Premises or any other portion of Landlord’s Property including the Structure during installation or operations shall be
repaired at Tenant’s expense within thirty (30) days after notification of damage and to Landlord’s
reasonable satisfaction. If the Leased Premises are destroyed or damaged, without the contributory fault of Tenant or its agents, so as, in Tenant’s judgment, to hinder its effective use of the Antenna Facilities, Tenant may elect to terminate this Lease upon sixty (60) days written notice to Landlord. In the event Tenant elects to terminate the Lease, Tenant shall be entitled to reimbursement of prepaid
Rent covering the period subsequent to the date of damage to or destruction of the Leased Premises.
15. LIMITATION OF LANDLORD’S LIABILITY. If Landlord terminates this Lease other than for cause as of right as provided in this Lease, or Landlord causes interruption of the business of Tenant, or for any other Landlord breach of this Lease, Landlord’s liability for damages to
Tenant shall be limited to the actual and direct costs of the replacement of this site in Tenant’s
network including, without limitation, equipment removal, relocation or repair, and all cost associated with the identification of a new site for Tenant’s replacement communications facility, applying for any necessary governmental approvals, and the cost of constructing a new antenna support structure, including without limitation, surveys, designs, foundation, steel, and erection of
the structure and supporting facilities, but not including the Tenant’s own communications
equipment, and shall specifically exclude any recovery for value of the business of Tenant as a going concern, future expectation of profits, loss of business or profit or related damage to Tenant. 16. TEMPORARY INTERRUPTIONS OF SERVICE. If Landlord determines that continued
operation of the Antenna Facilities would cause or contribute to an immediate threat to public
health and/or safety (except for any issues associated with human exposure to radio frequency emissions, which is regulated by the federal government), Landlord may order Tenant to discontinue its operation. Tenant shall immediately comply with such an order. Service shall be discontinued only for the period that the immediate threat exists. If Landlord does not give prior
notice to Tenant, Landlord shall notify Tenant as soon as possible after its action and give its reason
for taking the action. Landlord shall not be liable to Tenant or any other party for any interruption in Tenant’s service or interference with Tenant’s operation of its Antenna Facilities, except as may be caused by the willful misconduct of Landlord, its employees or agents. If the discontinuance extends for a period greater than three (3) consecutive days, Tenant shall have the right to terminate
this Lease within its sole discretion for cause and without payment of a termination fee. Further,
Tenant shall be entitled to reimbursement of prepaid Rent covering the period subsequent to the date of service discontinuance. 17. TENANT INTERFERENCE.
(a) With Structure. In the performance of its approved use of the Antenna Facilities,
Tenant shall at its own expense, maintain any equipment on or attached to the Leased Premises in a safe condition, in good repair and in a manner suitable to Landlord so as not to conflict with the use of the surrounding premises by Landlord. Tenant shall not interfere with Landlord’s use of the Structure and agrees to cease all such actions that unreasonably and materially interfere with
Landlord’s use thereof no later than three (3) business days after receipt of written notice of the
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interference from Landlord. In the event that Tenant’s cessation of action is material to Tenant’s use of the Leased Premises and such cessation frustrates Tenant’s use of the Leased Premises,
within Tenant’s sole discretion, Tenant shall have the immediate right to terminate this Lease for
cause and without payment of a termination fee. Further, Tenant shall be entitled to a reimbursement of prepaid Rent covering the period subsequent to the date of interference from Landlord.
(b) With Higher Priority Users. If Tenant’s Antenna Facilities cause impermissible
interference with higher priority users as set forth under Subsection 5(a) or with pre-existing
tenants, Tenant shall take all measures necessary to correct and eliminate the interference. If the interference cannot be eliminated with forty-eight (48) hours after receiving Landlord’s written notice of the interference, Tenant shall immediately cease operating its Antenna Facilities and shall not reactivate operation, except intermittent operation for the purpose of testing, until the
interference has been eliminated. If the interference cannot be eliminated with sixty (60) days after
Tenant received Landlord’s written notice, Landlord may at its option terminate this Lease immediately.
(c) Interference Study for New Occupants. Upon written notice by Landlord that it has a bona fide request from any other party to lease an area in close proximity to the Leased Premises
(“Leased Premises Area”), Tenant shall provide to Landlord within sixty (60) days the radio
frequencies currently in operation or anticipated by Tenant to be operated in the future of each transmitter and receiver installed and operational on the Leased Premises at the time of such request. Landlord may then have an independent, registered professional engineer of Landlord’s choosing perform the necessary interference studies to determine if the new applicant’s
frequencies will cause harmful radio interference to Tenant. Landlord shall require the new
applicant to pay for such interference studies.
(d) Interference by New Occupants. Landlord agrees that it will not grant a future lease in the Leased Premises Area to any party who is of equal or lower priority to Tenant, if such party’s use is reasonably anticipated to interfere with Tenant’s operation of its Antenna Facilities.
Landlord agrees further that any future lease of the Leased Premises Area will prohibit a user of
equal or lower priority from interfering with Tenant’s Antenna Facilities. Landlord agrees that it will require any subsequent tenants of equal or lower priority to Tenant to provide Tenant these same assurances against interference. Landlord shall have the obligation to eliminate any interference with the operation of Tenant cause by such subsequent occupants if such interference
is not eliminated, Tenant shall have the right to terminate this Lease or seek injunctive relief against
the interfering occupant, at Tenant’s expense.
18. NOISE. All wireless service facilities shall be constructed and operated in such a manner as to minimize the amount of noise impacts to residents of nearby homes and the users of recreational areas, such as public parks and trails. Noise attenuation measures shall be required for
all air-conditioning units. Backup generators shall only be operated during power outages and for
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testing and maintenance purposes. At any time, noise attenuation measures may be required by Landlord when deemed necessary. Testing and maintenance activities that generate audible noise
shall occur between the hours of eight o’clock (8:00) A.M. and five o’clock (5:00) P.M., weekdays
(Monday through Friday, non-holiday) excluding emergency repairs, unless allowed at other times by Landlord. Testing and maintenance activities that do not generate audible noise may occur at any time, unless otherwise restricted by Landlord.
19. INSTALLATION OF A GENERATOR. Tenant shall not install or replace any generator
on Landlord’s Property or the Leased Premises without Landlord’s prior written approval. It is
understood by both parties that there is currently a generator within the Leased Premises at the time of execution, and the generator will remain throughout the Term of the Lease. Notwithstanding the foregoing, Tenant shall be permitted to place an emergency generator within its Leased Premises for a period up to seven (7) days in the event of a power failure to the Antenna
Facilities. In the event that Landlord grants approval for the placement of a generator on Landlord’s
Property, or Tenant is permitted to place a generator within its Leased Premises due to an emergency power failure, Tenant agrees to maintain or repair any such generator within the Landlord’s Property or Leased Premises. Tenant further agrees that Landlord may limit the noise level at Landlord’s Property that may prohibit the use of the generator and that the installation of
any generator must fall within the noise level limits set by Landlord. In the event that Tenant
exceeds the noise level set forth by Landlord, Tenant shall take all such steps requested by Landlord to reduce the sound levels to the level approved by Landlord, including, but not limited to, installing additional mufflers, or any other requirements that may be requested by Landlord, including but not limited to ceasing all operations of the generator. All sound reduction measures
requested by Landlord shall be performed at Tenant’s sole cost and expense. If Tenant fails to
immediately comply with Landlord’s proposed sound reduction measures, Tenant shall be deemed in default hereunder and Landlord may take any and all measures to stop the use of the generator. Tenant shall further repair any and all damage caused by the use of the generator upon Landlord’s Property. All expenses incurred by Landlord hereunder, including attorneys’ fees, shall be paid by
Tenant to Landlord upon demand.
20. ASSIGNMENT. This Lease, or rights thereunder, may not be sold, assigned or transferred at any time by Tenant except to Tenant’s Affiliates without the written consent of Landlord, such consent not to be unreasonably withheld. For purposes of this Section, an “Affiliate” means an
entity that controls, is controlled by or under common control with Tenant. Landlord hereby
consents to the assignment by Tenant of its rights under this Lease as collateral to any entity that provides financing for the purchase of the equipment used by Tenant in connection with the provision of wireless telecommunication services.
21. CONDEMNATION. In the event the whole of the Leased Premises is taken by eminent
domain, this Lease shall terminate as of the date title to the Leased Premises vests in the condemning authority. In the event a portion of the Leased Premises is taken by eminent domain, either Party shall have the right to terminate this Lease as of the said date of title transfer, by giving sixty (60) days written notice to the other Party. In the event of taking under the power of eminent
domain, Tenant shall not be entitled to any portion of the reward paid for the taking and Landlord
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shall receive full amount of such award. Tenant hereby expressly waives any right or claim to any portion thereof. Although all damages, where awarded as compensation for diminution value in of
the leasehold or to the fee of the Leased Premises, shall belong to Landlord, Tenant shall have the
right to claim and recover from the condemning authority, but not from Landlord (unless Landlord is the condemning authority), such compensation as may be separately awarded or recoverable by Tenant on account of any and all damage Tenant’s business and any costs or expenses incurred by Tenant in moving/removing its equipment, personal property, Antenna Facilities and leasehold
improvements.
22. DISPUTES. Any claim, controversy or dispute arising out of this Lease not resolved within ten (10) days following written notice of the dispute shall be submitted first and promptly to mediation. Each Party shall bear its own cost of mediation. If mediation does not result in
settlement within forty-five (45) days after the matter was submitted to mediation, either Party
may file a claim in Washington County District Court. 23. ENFORCEMENT AND ATTORNEYS’ FEES. In the event that either Party to this Lease shall bring a claim to enforce any rights hereunder, the prevailing Party shall be entitled to recover
costs and reasonable attorneys’ fees and other reasonable enforcement costs and expenses incurred
as a result to such claim. 24. AUTHORITY. Each of the individuals executing this Lease on behalf of Tenant or Landlord represents to the other Party that such individual is authorized to do so by requisite action of the Party
to this Lease.
25. BINDING EFFECT. This Lease shall run with the Leased Premises. This Lease shall extend to and bind the heirs, personal representatives, successors and assigns of the Parties.
26. GOVERNING LAW. This Lease shall be construed in accordance with the laws of the State
of Minnesota, construed as having been delivered in the State of Minnesota and the Parties expressly agree that venue shall be in the State of Minnesota only, and in addition, Tenant hereby consents to the jurisdiction of the courts of the State of Minnesota, County of Washington.
27. NOTICES. All notices hereunder must be in writing and shall be deemed validly given
if sent by certified mail, return receipt requested, or by courier services, addressed as follows (or any other address that the Party to be notified may have designated to the sender by like notice): If to Tenant:
T-Mobile USA, Inc.
12920 SE 38th Street Bellevue, WA 98006 Attn: Lease Compliance/ A1Q0714A
If to Landlord: City of Hastings
City Administrator
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101 4th Street East Hastings, MN 55033
With a copy to: LeVander, Gillen & Miller, P.A. Attn: Hastings City Attorney 1305 Corporate Center Drive, Suite 300 Eagan, MN 55121
28. ENTIRE AGREEMENT. This Lease and the exhibits attached hereto, all being a part hereof, constitute the entire agreement of the Parties and will supersede all offers, negotiations and other agreements of any kind. There are no representations or understandings of any kind not set forth herein. Any modification of or amendment to this Lease must be in writing and executed
by both Parties. The exhibits hereto are incorporated into this Lease by reference.
29. SEVERABILITY. If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect as
though the unenforceable provision were not contained herein. 30. MEMORANDUM. Upon request by either Party, the Parties agree to promptly execute and deliver a recordable Memorandum of this Lease in a form acceptable to both Parties, which may be recorded by the Party requesting the Memorandum of Lease.
31. COUNTERPARTS. This Lease may be signed in counterpart by the Parties, each of which shall be deemed an original, but all of which when taken together, shall constitute a single instrument.
32. COOPERATION. The Parties hereby agree to cooperate with each other and their
authorized representatives regarding any reasonable request made subsequent to execution of this
Lease, to correct any clerical errors contained in this Lease and to provide any and all additional documentation deemed necessary by either Party to effectuate the transaction contemplated by this Lease. The Parties further agree that “to cooperate” as used in this Lease includes but is not limited to, the agreement by the Parties to execute or re-execute any documents that either Party reasonably
deems necessary and desirable to carry out the intent to this Lease.
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed as of the Approval Date.
LANDLORD City of Hastings a Minnesota Municipal corporation
By: Mary Fasbender Its: Mayor
By:
Kelly Murtaugh Its: City Clerk STATE OF MINNESOTA )
) ss
COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this day of , 2024, by Mary Fasbender, the Mayor of Hastings, and
Kelly Murtaugh, City Clerk, respectively on behalf of the City of Hastings, a Minnesota
municipal corporation on behalf of the municipal corporation. Notary Public
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TENANT: T-MOBILE CENTRAL LLC
By Name Its
STATE OF ________________ ) ) ss. COUNTY OF ______________ )
On this _____ day of _______________, 20____, before me a Notary Public within and for said County, personally appeared _______________________ to me personally known, who being by me duly sworn, did say that he/she is the ____________________________ of T-Mobile Central LLC the Tenant named in the attached instrument, and as such was authorized to
execute this instrument on behalf of the limited liability company.
Notary Public
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EXHIBIT A LEGAL DESCRIPTION OF PROPERTY
Real property located in Dakota County, Minnesota legally described as follows: Lot 2, Block 1, Hastings High School, Dakota County, Minnesota.
Tax parcel identification No.: 193220001020
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EXHIBIT B DEPICTION OF LEASED PREMISES
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