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HomeMy WebLinkAbout20100503 - VI-05MEMO To: Honorable Mayor and City Council From: Tom Montgomery Date: April 28, 2010 Re: Approve TTM Antennae Lease Agreement Enclosed for Council approval is a lease agreement with TTM to install two microwave antennae on the 4th St water tower. TTM is a company that provides a broadband backbone service to wireless carriers. The two microwave antennae will provide a connection to TTM's nearest fiber optic cable access point. The lease agreement will run for 15 years at an annual cost of $6,00o per year with an annual 5% inflation adjustment. The lease terms are comparable to what other area communities are receiving for similar installations. The lease agreement does make TTM responsible for any property tax payable as a result of this installation and agreement. COUNCIL ACTION REQUESTED Council is requested to approve the enclosed lease agreement with TTM. SITE LEASE AGREEMENT THIS SITE LEASE AGREEMENT, ( "Lease "), made this day of 2010, between City of Hastings, a Minnesota Municipal Corporation ( "Landlord" or "City "), and TTM Operating Corporation, Inc., a Nevada Corporation ( "Tenant "). For good and valuable consideration, the parties agree as follows: 1. Leased Premises Subject to the terms and conditions of this Lease, Landlord hereby leases to Tenant and Tenant leases from Landlord a portion of Landlord's property and Landlord's water tower (sometimes referred to herein as the "Structure "), located on the property described on Exhibit "A" ( "Lease Premises"), in the City of Hastings, Dakota County, Minnesota, including ground space measuring 5' x 5' in area (25 square feet) subject to any and all existing easements and leases, together with a non - exclusive right for ingress and egress and utilities to the nearest public right -of- way, for the use by Tenant to install certain communication facilities which are described in Exhibit B hereto, the exact location of each to be reasonably approved by Landlord's Director of Public Works. 2. Rent. (a) Amount, Adjustments The first year's rent shall be $6,000.00 which shall be prorated from the Commencement Date, as hereinafter defined, through December 31, 2010. The first year's rent shall be due on the Commencement Date prior to Tenant initiating any construction work on the Leased Premises. Thereafter, Tenant shall pay Landlord an annual rent which shall be increased from the initial annual rent of $6,000.00 each year on January 1, beginning January 1, 2011, by the greater of: (a) five percent (5 %) of the previous year's annualized rental, or (b) by an amount equal to the increase in the Consumer Price Index ( "CPI "). The CPI shall mean the "Consumer Price Index - for All Urban Consumers, All Cities, All Items (1984 = 100)" as published by the United States Department of Labor Statistics, or if such index shall be discontinued, the successor index, or if there shall be no successor index, such comparable index as mutually agreed upon by the parties. To determine the annual rental increase to be paid by Tenant under a CPI adjuster, the annualized rental for the previous year shall be multiplied by a percentage figure, computed from a fraction, the numerator of which shall be the CPI for the third quarter of the preceding year and the denominator of which shall be the CPI for the corresponding quarter of one year earlier. Such fraction shall be converted to a percentage equivalent. The resulting percentage figure shall be multiplied by the previous year's rent. (b) Time of Payment, Taxes Landlord shall communicate all rental increases to the Tenant by the preceding December 1 of each year. The annual rental shall be paid before January 1 of each year. In addition to the annual rental, Tenant agrees to timely pay its pro rata share of any taxes or payment in lieu of taxes of whatever nature levied on the equipment or the ownership or use thereof by Tenant, and Tenant shall pay any taxes or other charges imposed upon the Leased Premises by any governmental agency as a result of this Lease or other payments required herein, which are directly attributable to the improvements constructed by Tenant. City shall provide to Tenant a copy of any notice, assessment or billing related to real estate taxes for which Tenant is responsible under this Lease within ten (10) days of receipt of the same by City. Tenant shall have no obligation to make payment of any real estate taxes until Tenant has received the notice, assessment or billing relating to such payment as set forth in the proceeding sentence. Tenant shall have the right, at its sole option and at its sole cost and expense, to appeal, challenge or seek modification of any real estate or personal property tax assessment or billing for which Tenant is responsible under this Lease. Landlord shall reasonably cooperate with Tenant in filing, prosecuting and perfecting any appeal or challenge to real estate or personal property taxes as set forth in the preceding sentence, including but not limited to, executing any consent to appeal or other similar document. (c) Additional Fees At the time of execution of this Lease, Tenant agrees to pay Landlord an administrative fee of $2,000.00 and an application fee of $250.00. 3. Term and Renewals The "initial term" of this Lease (the "Initial Term ") shall commence on earlier of: (i) the Tenant construction start date; or (ii) May 1, 2010 (the "Commencement Date "), and shall continue until December 31, 2012, unless written Notice of Termination is given by Tenant to Landlord, at least six months before the end of the Initial Term. If no written Notice of Termination is given, the Lease shall automatically renew for four (4) successive periods of three (3) years each commencing January 1, 2013 (the "Renewal Terms ") so that all Renewal Terms shall commence on January 1 and terminate three (3) years later on December 31 unless this Lease is terminated as provided herein. Unless otherwise agreed in writing, all terms of this agreement will remain in effect during each Renewal Term. If this Lease is extended as provided herein, the annual rents for the additional terms shall be as provided by this Lease. If, at the end of the fourth successive Renewal Term, this Lease has not been terminated by either party by giving a written Notice of Termination to the other party, at least six months prior to the end of the fourth Renewal Term, then this Lease shall continue in force with the same covenants, terms and conditions, for a further term of one year and for annual terms thereafter, until terminated by either party by giving a written Termination Notice to the other parry at least six months prior to the end of that term. 4. 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: 1. Landlord; 2. Public safety agencies, including law enforcement, fire and ambulance services, that are not part of the City; 3. Other governmental agencies where use is not related to public safety; and 4. Tenant and other government- related entities who offer a service to the general public for a fee, in a manner similar to a public utility, such as long distance and cellular telephone, including any other party using radio equipment; provided the priority among entities described in this subpart (4) 2 shall be on the basis of the entity's first date of operation at the leased premises. (b) Purposes Tenant shall use the Leased Premises only for the purpose of installing, removing, replacing, modifying, maintaining and operating a communications antenna facility, equipment, cabinets and an accessory building, and uses incidental thereto, for providing radio and wireless telecommunication services which Tenant is legally authorized to provide to the public. Tenant shall submit all plans and specifications to Landlord for approval, which shall not be unreasonably withheld. If notice of objection or approval is not received by Tenant within 30 days after submission of said plans and specifications, said plans and specifications will be deemed to have been approved. This use shall be non - exclusive, and Landlord specifically reserves the right to allow the Leased Premises to be used by other parties and to make additions, deletions, or modifications to its own facilities on the Leased Premises. Tenant's communications antenna facility shall consist of antennas at a Landlord- approved location, along with cables and appurtenances connected to an accessory building or cabinet located on the Leased Premises ( "Antenna Facilities "). Tenant shall comply with all applicable ordinances, statutes and regulations of local, state and federal government agencies. Tenant shall not construct or place any accessory structure on the leased premises without first obtaining Landlord approval. Any accessory structure used by Tenant shall be properly maintained by Tenant during the term of this Lease. (c) Construction Tenant may erect and operate an antenna array in accordance with its submitted site drawings attached as Exhibit "B." If Tenant seeks to increase the number of antennas beyond those contemplated in the site drawings, Tenant must first pay for an evaluation carried out by a qualified professional, retained by Landlord, demonstrating that: (i) each additional antenna will not interfere with existing antennas or with proposed antennas with a higher priority; and (ii) that the Structure can structurally support the additional antennas. The cost of each evaluation must be paid by the Tenant within 30 days after receiving written notice of the cost. Landlord must first consent to the installation of any additional antennas before any additional antennas can be installed, such consent not to be unreasonably withheld. If Landlord consents to the installation of additional antennas, Landlord and Tenant will negotiate the amount of additional rental for the additional antennas. (d) Operation Tenant shall have the right, at its sole cost and expense, to operate and maintain the Antenna Facilities on the Leased Premises in accordance with good engineering practices, and with all applicable FCC rules and regulations. Tenant's installation of all Antenna Facilities shall be done according to plans approved by Landlord, which approval shall not be unreasonably withheld. Any damage done to the Leased Premises or other Landlord property including the Structure during installation or during operations, shall be repaired at Tenant's expense within 30 days after notification of damage. If the damage done to the Leased Premises or other Landlord property cannot be cured within the 30 -day period, Tenant must commence action to repair the damage within the 30 -day period and must proceed with due diligence to fully repair such damage. The Antenna Facilities shall remain the exclusive property of the Tenant, unless otherwise provided in this Lease. (e) Maintenance, Improvement Expenses All modifications to the Leased Premises and all improvements made for Tenant's benefit shall be at the Tenant's expense and such improvements, 3 including antenna, facilities and equipment, 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, and secured by Tenant. 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. (f) Replacements Before the Tenant may make significant changes to the external portions of this equipment placed on the Leased Premises, Tenant must notify and provide a detailed proposal to Landlord. Tenant shall submit to Landlord a detailed proposal for any such replacement facilities and any other information reasonably requested by Landlord including, but not limited to, a technical study carried out at Tenant's expense. Landlord may not unreasonably withhold approval. Notwithstanding the foregoing, Tenant may make all necessary repairs, modifications, improvements or alterations to the internal portions of equipment, without submission of plans or proposals, provided such alterations, modifications or improvements do not significantly change the exterior appearance of the Antenna Facilities or Tenant's other equipment. Nothing in this paragraph, however, will allow Tenant to change, alter, or modify the location of any coaxial cables or other equipment in the chaseway on the water tower, without the prior written approval of Landlord, which will not be unreasonably withheld. (g) Drawings Unless duplicative of previous specifications and drawings submitted to Landlord, Tenant shall provide Landlord with as -built drawings of the equipment and improvements installed on the Leased Premises, which show the actual location of all Antenna Facilities. Said drawings shall be accompanied by a complete and detailed inventory of all equipment, personal property, and Antenna Facilities actually placed on the Leased Premises. (h) No Interference 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 or other tenants. 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 thereon or to be placed thereon by Landlord. (i) Access Landlord hereby grants Tenant the nonexclusive right of ingress and egress over a 20 -foot wide easement extending from the nearest public right -of -way or adjoining City owned property to the Leased Premises. Tenant shall not have unrestricted access to Landlord's water tower structure. On those days the Hastings City Hall is open, tenant may have access to the water tower during the hours of 7:00 a.m. to 3 :00 p.m. by getting prior permission from Landlord's Public Works Director. On days when Hastings City Hall is not open or at hours different than those in the preceding sentence, Tenant may have access to the tower only if prior notice is given to the City and Tenant further agrees to reimburse the City for all overtime costs incurred by the City for having its employee(s) open the tower structure for Tenant which shall be billed by City to Tenant at the rates set by ordinance by the City of Hastings. In the event of an emergency when Tenant needs immediate access to the Leased Premises, Tenant may call the Hastings Public Works standby duty pager number which will be given to Tenant. In this event, Tenant shall reimburse Landlord for all overtime costs incurred by the City for having its employee(s) open the tower structure to Tenant at the rates set forth by ordinance of the City of Hastings. 4 (j) Payment of Utilities Tenant shall separately meter charges for the consumption of electricity and other utilities associated with its use of the Leased Premises and shall promptly pay all costs associated therewith. (k) Quiet Enjoyment So long as Tenant performs all of its obligations under this Agreement, Tenant shall have the peaceful and quiet use of the Leased Premises for the permitted use set forth herein, without hindrance on the part of Landlord. 5. Emergency Facilities In the event of a natural or man -made 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 assure continuation of service. Such temporary operation shall not exceed 90 days unless Tenant obtains written approval from the Landlord. 6, Additional Maintenance Expenses Upon notice from Landlord, Tenant shall promptly pay to Landlord all additional Landlord expenses incurred in maintaining the Leased Premises, including painting or other maintenance of the Structure, that are caused by Tenant's occupancy of the Leased Premises. 7. Governmental Approval Contingency Tenant's right to use the Leased Premises is expressly made contingent upon its obtaining all the certificates, permits, zoning and other approvals that may be required by any federal, state or local authority. Landlord shall cooperate with Tenant in its efforts to obtain and retain such approvals and shall take no action which would adversely affect the status of the Leased Premises with respect to the Tenant's proposed use thereof. In the event that any such applications should be finally rejected or any certificate, permit, license or approval issued to Tenant is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority so that Tenant, in its sole discretion, will be unable to use the Leased Premises for its intended purposes, Tenant shall have the right to terminate this Lease and be reimbursed, pro rata, for the rental payment for that year. Notice of Tenant's exercise of its right to terminate shall be given to Landlord in writing by certified mail, return receipt requested, and shall be effective upon receipt of such notice of Landlord as evidenced by the return receipt. Except as may be otherwise provided in this Lease, upon such termination, this Lease shall become null and void and all the parties shall have no further obligations to each other. 8. Additional Buildings Tenant acknowledges that Landlord may permit additional buildings to be constructed on the subject property. At such time as this may occur, Tenant will permit said buildings to be placed immediately adjacent to Tenant's building and will allow "attachments" to its building so as to give the appearance that all buildings are a connected facility. Said attachments will be made at no cost to Tenant and will not compromise the structural integrity of Tenant's building. 9. Interference and Structural Investigation Before obtaining a building permit, Tenant must provide written evidence that Tenant's intended use will not interfere with any existing communications facilities. Landlord will retain a consultant to confirm that the Structure is able to support the Tenant's Facilities without prejudice to the City's use of the Structure. If Landlord determines there is a potential for interference that cannot be reasonably remedied or potential for 5 prejudice to the Structure, Landlord may terminate this Lease immediately and refund the initial rental payment to Tenant. 10. Defense and Indemnification (a) General Tenant agrees to defend, indemnify and hold harmless Landlord and its elected officials, officers, employees, agents, and representatives, from and against any and all claims, costs, losses, expenses, demands, actions, or causes of action, including reasonable attorneys' fees and other costs and expenses of litigation, which may be asserted against or incurred by Landlord or for which Landlord may be liable in the performance of this Lease arising from the installation, operation or maintenance of Tenant's Antenna Facilities or Tenant's use of the Leased Premises, except those which arise solely from the negligence, willful misconduct, or other fault of Landlord or other users of the property. Tenant shall defend 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. Landlord agrees to defend, indemnify and hold harmless Tenant, its officers, employees, agents and representatives from any and all costs (including reasonable attorney's fees) in claims of liability or loss which arise out of Landlord's use of the Leased Premises, except those which arise from the negligence, willful misconduct or other fault of Tenant or any other Tenant using Landlord's water tower. (b) Hazardous Materials Without limiting the scope of Paragraph I0(a) above, Tenant will 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 attorney's fees and costs, arising out of or in connection with the cleanup or restoration of the Leased Premises associated with the 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 materials as defined in any federal, state, or local environmental or safety law or regulations including, but not limited to, CERCLA. Landlord represents that it has no knowledge of any hazardous substance on the Leased Premises. (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 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. The obligations of this Paragraph 10 shall survive the expiration or termination of this Lease. 11. Insurance (a) General Liability The Tenant must maintain an occurrence form commercial general liability insurance coverage. Such coverage shall include, but not be limited to, bodily injury, property damage -- broad form, and personal injury, for the hazards of Premises /Operation, broad form contractual, independent contractors, and products /completed operations. The Tenant must maintain aforementioned commercial general liability coverage with limits of liability not less than $1,000,000 each occurrence; $1,000,000 personal and advertising injury; 0 $2,000,000 general aggregate, and $2,000,000 products and completed operations aggregate. These limits may be satisfied by the commercial general liability coverage or in combination with an umbrella or excess liability policy, provided coverage afforded by the umbrella or excess policy are no less than the underlying commercial general liability coverages. Tenant will maintain Completed Operations coverage for a minimum of two years after the construction is completed. Coverage shall be provided for Bodily Injury and Property Damage for the ownership, use, maintenance or operation of all owned, non -owned and hired automobiles. The Commercial Automobile Policy shall include at least statutory personal injury protection, uninsured motorists and under insured motorists coverages. (b) Tenant Property Insurance The Tenant must keep in force for the duration of the Lease a policy covering damages to its property at the Leased Premises. The amount of coverage shall be sufficient to replace the damaged property, cover loss of use and comply with any ordinance or law requirements. (c) Additional Insured - Certificate of Insurance The Tenant shall provide, prior to tenancy, evidence of the required insurance in the form of a Certificate of Insurance issued by a company (rated A+ or better), licensed to do business in the state of Minnesota, which includes all coverages required in this Paragraph 11. Tenant will name the Landlord as an Additional Insured on the commercial general liability policies. The Certificate(s) shall also provide the coverage may not be canceled, non - renewed, or materially changed without thirty (30) days prior written notice to the Landlord. 12. Damage or Destruction If the Leased Premises is destroyed or damaged, so as, in Tenant's judgement, to hinder its effective use of the Antenna Facilities, Tenant may elect to terminate this Lease upon 30 days written notice to Landlord. In the event Tenant elects to terminate this 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. 13. Lease Termination (a) Events of Termination Except as otherwise provided herein, this Lease may be terminated upon sixty (60) days written notice to the other party as follows: 0) by either party upon a default of any covenant or term hereof by the other party, which default is not cured within sixty (60) 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 provisions hereof) unless such default may not be cured within a 60 -day period, in which case, this Lease may not be terminated if the defaulting party commences action to cure the default within such 60 -day period and proceeds with due diligence to fully cure the default; 7 (ii) by Tenant for cause, immediately upon notice to Landlord, 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 Tenant's business; (iii) by Tenant for cause, immediately upon notice to Landlord, if the Leased Premises is or becomes unacceptable for technological reasons under the Tenant's Antenna Facilities design or engineering specifications or the communications systems to which the Antenna Facilities belong; (iv) by Landlord, upon one year prior written notice to Tenant, if its Council decides, for any reason, to redevelop the Leased Premises; (v) by Landlord, immediately after engineering studies have determined 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; (vi) by Landlord if it determines that a potential user with a higher priority under Paragraph 4(a), above, cannot find another adequate location, or the Antenna Facilities unreasonably interfere with another user with a higher priority, regardless of whether or not such an interference was predicted in the initial interference investigation that was part of the application process; or (vii) by Landlord if it determines that Tenant has failed to comply with applicable ordinances, applicable city ordinances, state or federal laws or regulations, or any conditions attached to government approvals granted thereunder, after a public hearing before the Landlord's Council. (b) Notice of Termination The parties shall give notice of termination in writing by certified mail, return receipt requested. Such notice shall be effective upon receipt as evidenced by the return receipt. If the Lease is terminated by Tenant because Landlord is in default, or the Lease is terminated for reasons given in Paragraph 13(a)(ii), (iv), (v), (vi), then Landlord shall reimburse Tenant for prepaid rent covering the period subsequent to the date of termination. If this Lease is terminated for any other reason, then all rentals paid for the Lease prior to said termination date shall be retained by Landlord. (c) Limitation of Tenant's Liability; Early Termination In the event Landlord terminates this Lease because of Tenant's breach, Tenant shall pay to Landlord as liquidated damages for said breach, an amount equal to 150% of the annual rent for the year in which the breach occurred. (d) Limitation of Landlord's Liability; Early Termination In the event Landlord wrongfully terminates or otherwise wrongfully revokes this Lease or Landlord breaches this Lease, Landlord's liability for damages to Tenant shall be limited to the actual and direct costs of equipment removal, relocation or repair 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 damages to Tenant. 8 (e) Site Restoration In the event that this Lease is terminated or not renewed, Tenant shall have 90 days from the termination or expiration date to remove its Antenna Facilities and related equipment from the Leased Premises, repair the site and restore the surface of the Structure. When notice of termination is given, Tenant shall deposit with Landlord the sum of $5,000.00, which shall be fully refunded to Tenant upon the timely removal of the Antennas Facilities and related equipment, and the repair of the site and the restoration of the Structure surface to the reasonable satisfaction of the Landlord. 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. By separate written document, Tenant agrees to notify Landlord of all entities that will have an interest in the Antenna Facilities and related equipment because of financing arrangements. If Landlord removes the Antenna Facilities and related equipment, Landlord must give written notice to the above entities at the addresses provided, informing them that Antenna Facilities and related property have been removed and will be deemed abandoned if not claimed and the storage fees and other reasonable costs paid within thirty (30) days. 14. Temporary Interruptions of Service If Landlord reasonably 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 the Landlord, its employees or agents. If the discontinuance extends for a period greater than three days, either consecutively or cumulatively, Tenant shall have the right to terminate this Lease within its sole discretion for cause and without payment of the early termination fee and without payment of damages. 15. Interference With Structure Tenant shall not interfere with Landlord's use of the Structure and agrees to cease all such actions which unreasonably and materially interfere with Landlord's use thereof no later than three business days after receipt of written notice of the 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 damages. 16. Interference with Communications (a) Higher Priority Users If Tenant's Antenna Facilities cause impermissible interference with higher priority users under Subsection 4(a) above or with preexisting tenants, Tenant shall take all measures necessary to correct and eliminate the interference. If the interference cannot be eliminated within 48 hours after receiving Landlord's written notice of the interference, Tenant shall 9 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 within 30 days after Tenant received Landlord's written notice, Landlord may at its option terminate this Lease immediately. (b) Lower Priority Users Landlord agrees that it will not grant a future lease to any party for use of the Leased Premises or Structure, who is of equal or lower priority to Tenant, if such party's use thereof is reasonably anticipated to interfere with Tenant's operation of its Antenna Facilities. Landlord agrees further that any future lease will prohibit a user of equal or lower priority from interfering with Tenant's Antenna Facilities. 17. Interference Study Upon written notice by Landlord that it has a bona fide request from any other party to lease an area including or in close proximity to the Leased Premises ( "Leased Premises Area "), Tenant agrees to provide Landlord, within sixty (60) days, the radio frequencies currently in operation or to be operated in the future of each transmitter and receiver installed and operational on the 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. 18. Interference - Subsequent Occupants Landlord agrees that it will require any subsequent occupants of the Leased Premises 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 operations of Tenant caused by such subsequent occupants. If such interference is not eliminated. Tenant shall have the right to terminate this Lease or seek injunctive relief, at Tenant's expense, enjoining such interfering use generated by any other occupant of the Leased Premises. 19. Assignment This Lease, or rights thereunder, may be sold, assigned, or transferred at any time by Tenant, without prior written notice to Landlord, to Tenant's affiliates, subsidiaries, parent or any entity that acquires substantially all of the assets of Tenant. Within thirty (30) days after any such sale, assignment or transfer by Tenant, Tenant or the new Tenant must notify Landlord, in writing, of the sale, assignment or transfer. As to other parties, this Lease may not be sold, assigned, or transferred without the written consent of the Landlord, such consent not to be unreasonably withheld. For purposes of this paragraph, an "affiliate" or "subsidiary" means an entity which controls or is controlled by or in common control with Tenant. Landlord hereby consents to the assignment by Tenant of its rights under this Lease as collateral to any entity which provides financing for the purchase of the equipment to be installed at the Leased Premises. 20. 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 said date of title transfer, by giving thirty (30) days' written notice to the other party. In the event of any taking under the power of eminent domain, Tenant shall not be entitled to any portion of the reward paid for the taking and the Landlord shall receive full amount of such award. Tenant hereby expressly waives any right or claim to any portion thereof. Although all damages, whether awarded as compensation for diminution in value of the 10 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, such compensation as may be separately awarded or recoverable by Tenant on account of any and all damage to Tenant's business and any costs or expenses incurred by Tenant in moving /removing its equipment, personal property, Antenna Facilities, and leasehold improvements. 21. Compliance With Laws Tenant agrees to comply with all applicable City ordinances, state and federal regulations and statutes, in its use of the Leased Premises. 22. Notices All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested, addressed as follows (or any other address that the party to be notified may have designated to the sender by like notice): If to Landlord, to: City Administrator City of Hastings 101 E. 4th Street Hastings, MN 55033 If the Tenant, to: Telecom Transport Management, Inc. 146 North Canal Street, Suite #210 Seattle WA 98103 Attention: Bill Buck With a copy to: Telecom Transport Management, Inc. 146 North Canal Street, Suite #210 Seattle WA 98103 Attention: Lease Administrator 23. Authority Each of the individuals executing this Lease on behalf of the Tenant or the Landlord represents to the other party that such individual is authorized to do so by requisite action of the party to this Lease. 24. Binding Effect This Lease shall run with the Leased Premises. This Lease shall extend to and bind the successors and assigns of the parties hereto. 25. Complete Lease; Amendments. This Lease constitutes the entire agreement and understanding of the parties and supersedes all offers, negotiations, and other agreement 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. 26. Governine Law. This Lease shall be construed in accordance with the laws of the State of Minnesota. 27. Severability. If any term of this Lease is found be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. II 28. Memorandum Upon request of 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 person requesting the Memorandum of Lease. 29. Rules of Construction Both parties to this lease have participated freely in the negotiations and the preparation hereof. Accordingly, this lease shall not be construed more strictly against any one of the parties as a result thereof. IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their respective seals the day and year first above written. LANDLORD: CITY OF HASTINGS, a Minnesota Municipal Corporation Paul Hicks, Mayor (SEAL) r: Melanie Mesko Lee Administrative Asst. /City Clerk 12 TENANT: STATE OF MINNESOTA ) ss COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this _ day of 2010, by Paul Hicks and Melanie Mesko Lee, the Mayor and Administrative Assistant /City Clerk respectively, of the City of Hastings, a Minnesota Municipal Corporation. NOTARY PUBLIC STATE OF MINNESOTA ) ss COUNTY OF ) The foregoing instrument was acknowledged before me this _ day of 2010, by , the of TTM Operating Corporation, Inc., a Nevada Corporation, who acknowledged that he signed the instrument on behalf of said corporation. NOTARY PUBLIC THIS INSTRUMENT DRAFTED BY: Fluegel Law Firm P.A. 1303 South Frontage Road, Suite 45 Hastings MN 55033 DAN, /ham TTM OPERATING CORPORATION, INC. a Nevada Corporation By: Print Name: Its: 13 EXHIBIT A DESCRIPTION OF LANDLORD PROPERTY Property Address: 1800 West 4" Street, Hastings MN 55033 Property Index: 19- 32200 - 020 -01 Legal Description is as follows: Lot 2, Block 1, HASTINGS HIGH SCHOOL, Dakota County, Minnesota. 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