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5.3 ERMUSR 06-03-2025______________________________________________________________________________ Page 1 of 1 UTILITIES COMMISSION MEETING TO: ERMU Commission FROM: Mark Hanson – General Manager MEETING DATE: June 3, 2025 AGENDA ITEM NUMBER: 5.3 SUBJECT: AT&T Water Tower Attachment Lease Agreement ACTION REQUESTED: Approve the AT&T Water Tower Attachment Lease Agreement BACKGROUND/DISCUSSION: AT&T has requested to attach their cellular antennas to our Freeport Street water tower. The attachments will be similar to what has been attached to our other water towers by other companies. This will be AT&T’s first water tower lease agreement with ERMU. On top of the tower there will be nine antennas, nine radios, and two junction boxes. The site will include a fenced-in area with electrical equipment housed in a shelter and a back-up generator. This agreement rate was originally negotiated at $41,300 for the first year, with a 4% increase every year after that. The initial term is five years with an option to renew the lease four more times, with each renewal term being an additional five years. Prior to negotiations of the agreement terms, staff discovered a mistake in the first-year rate calculation. The first-year rate should have been $51,400, which aligns with the only other agreement contemplating nine (9) antennas, the others have six (6) antennas. Staff offered a slightly discounted rate of $48,500 due to the original error. AT&T has not yet accepted the $48,500 rate, but staff has requested their acceptance prior to the commission meeting. Staff recommends the Commission proceed with one of the following two options: 1) Approve the agreement with a first-year rate of $48,500 2) Direct staff to continue negotiations with AT&T ATTACHMENTS: • AT&T Water Tower Attachment Lease Agreement 174 235433v5 Tower Attachment Lease Agreement This Tower Attachment Lease Agreement (“Lease”) is executed this ____ day of __________, 20___, by and between Elk River Municipal Utilities, a Minnesota municipal utility having a mailing address of 13069 Orono Parkway, P.O. Box 430, Elk River, MN 555330 (“Lessor”) and New Cingular Wireless PCS, LLC a Delaware limited liability company having a mailing address of 1025 Lenox Park Blvd NE, Atlanta, GA 30319 (“Lessee”). WHEREAS, Lessor owns an elevated water tank (the “Water Tower”) located at 19119 Freeport Street, Elk River, Minnesota, on the property legally described on Exhibit A attached hereto (the “Property”) and designated by the Lessee as Power By Nature; and WHEREAS, Lessor has adopted a Policy Statement Regarding the use of Lessor’s Property for Communication Antennas and Towers (the “Policy Statement”), which Policy Statement provides, among other things, that priority in the location of communication facilities on Lessor’s Property shall be given to Lessor, to public safety agencies, to other governmental agencies, and to private entities, in that order; and WHEREAS, Lessee desires to lease from Lessor certain designated space on the Water Tower, to install, operate and maintain certain of Lessee’s communications fixtures, cables, accessories, improvements and related equipment, which may include a suitable support structure, antennas, equipment shelters or cabinets, fencing other equipment and related devices (collectively, the “Equipment”); and WHEREAS, Lessor desires to lease certain designated space for Lessee’s Equipment on the Water Tower, provided Lessee’s Equipment does not interfere with Lessor’s daily operations and maintenance of the Water Tower, and provided further that Lessee will defend, indemnify and hold Lessor harmless from and against any and all damages caused by the installation, operation and maintenance of the Equipment. NOW, THEREFORE, for and in consideration of the terms and mutual promises herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee agree as follows. 1. Grant of Lease (a) Lessor hereby grants to Lessee a lease of a portion of the Property consisting of: (i) approximately 550 square feet (25’ x 22’) of ground space up to a height of ____ feet (___’) as described on attached Exhibit 1, for the placement of Lessee’s Equipment (the “Equipment Space”); (ii) that certain space on the Water Tower, as generally depicted on Exhibit C, where Lessee shall have the right to install its antennas and other equipment (collectively, the “Antenna Space”); and 175 2 235433v5 (iii)certain easements (the “Easements”) over the Property for ingress, egress and utilities, during the Initial Term and any Renewal Terms, as those terms are hereinafter defined. The Easements shall be as shown on Exhibit B attached hereto. The Equipment Space, Antenna Space, and Connection Space, are hereinafter collectively referred to as the “Premises.” (b)Neither the location nor the extent of the Easements or the Equipment installed on the Water Tower shall be changed without the prior written consent of Lessor, which shall not be unreasonably withheld, conditioned or delayed. 2.Use Lessee may use the Premises for the installation, construction, maintenance, operation, repair, replacement and upgrade of the Equipment. Lessee shall be permitted to install the Equipment on the Premises and to install or improve utilities on the Property over the Easements. The Equipment, including the number, location and mounting height of all antennas, and the size and location of all other Equipment, shall be as described on Exhibit C and shall be installed only as depicted and shown on Exhibit C. In the event Lessee desires to modify the Equipment installed on the Water Tower, Lessee will supply Lessor with plans and specifications (“Plans”) to be reviewed and approved by Lessor prior to commencement of construction. Lessor’s approval will not be unreasonably withheld, conditioned or delayed (and in no event delayed beyond thirty (30) days. After approval or deemed approval, the Plans will be considered incorporated in this Lease as Exhibit C. If Lessor disapproves the Plans then the Lessee will provide Lessor with revised Plans, such revisions to be within Lessee’s reasonable discretion. In the event Lessor disapproves of the revised Plans, Lessee may either i) make further revisions to the Plans and submit them to Lessor for review or ii) terminate this Lease by providing written notice to Lessor in accordance with the requirements of Section 9(b). Lessor will not knowingly permit or suffer any person to copy or utilize the Plans for any purpose other than as provided in this Lease and will return the Plans to Lessee promptly upon request. Notwithstanding the foregoing, Lessee may make non-material modifications to Lessee’s Equipment installed on the Tower without consent, including but not limited to maintenance, repairs, like-kind or similar replacements of Equipment, provided none of the modified or replaced Equipment is larger than the Equipment approved by Lessor. Subject to the notice and access requirements contained below, Lessee maintains the right to perform routine maintenance, repairs, replacements and upgrades without Lessor consent to the Equipment located within the equipment shelter on the Equipment Space. If installation of the Equipment requires relocation of existing communication equipment (to include coax cable, antennae, brackets, hardware, etc.) owned by other communication carriers, Lessee shall be responsible for obtaining the consent of such carriers and all costs and labor associated with these modifications shall be the responsibility of the Lessee and shall be considered to be an integral part of this Lease. Any agreements among various communication carriers associated with these modifications shall be the responsibility of the Lessee. Lessee shall defend, indemnify and hold Lessor harmless from any claim made by such other carriers as a result of Lessee’s acts or omissions. 176 3 235433v5 Any personal property owned by Lessee, whether fixed or attached to the Property or the Water Tower, shall remain the exclusive property of Lessee, and the risk of loss to same will be solely Lessee’s. No Equipment shall be permanently attached or welded to the Water Tower without Lessor’s prior written approval. If welded attachments are approved, Lessee shall be responsible for the cost of replacing interior or exterior tank coatings that are damaged by welding. All replacement of coatings shall meet the exact specifications of the existing tank coating, be performed by contractor’s approved in advance by Lessor, and be completed within thirty (30) days of the time that welding on the tank occurs. All costs associated with the new coatings, to include operational costs (i.e., draining elevated tank), shall be paid on demand by Lessee. Upon prior written notice and subject to the limitations contained herein, Lessor grants Lessee twenty-four (24) hour per day, seven (7) day per week access to the Water Tower and the Property for the purpose of installing, operating and maintaining the Equipment. Access shall be consistent with Lessee’s need to install, operate and maintain the Equipment and Lessor’s need to operate and maintain the Water Tower. Lessee may access the equipment shelter within the Equipment Space at any time upon written notice to Lessor and acknowledgement of Lessor’s receipt of notice. Lessor shall have the right to have its personnel on site at any time Lessee requires access to the Water Tower, and Lessee shall reimburse Lessor for Lessor’s costs to have its personnel on site, at such employee’s normal rate of pay, including Lessor’s on-call or overtime costs if Lessor’s personnel are required to be on the site at times other than normal business hours. Lessee shall give Lessor 24 hours’ notice in a non-emergency situation, or 3 hour notice in an emergency situation, of its need to enter the Water Tower or access any Equipment on the Water Tower and Lessor may arrange to have its personnel present. Under no circumstances shall Lessee or its employees or agents enter the Water Tower unless an employee of Lessor is present. Lessee shall, prior to the installation of any Equipment on the Property, obtain all required land use approvals, building permits, and other governmental approvals required for installation and operation of the Equipment. Lessee shall also comply with all applicable governmental laws and regulations regarding the installation and operation of telecommunications equipment, including, without limitation, the requirements of the FCC, FAA, OSHA, and all other regulatory agencies with jurisdiction over the Equipment (collectively, the “Regulatory Requirements”). Failure of Lessee to comply with the Regulatory Requirements shall be a default, entitling Lessor to exercise the remedies hereinafter set forth including, but not limited to, termination of this Lease. Lessor agrees to cooperate with Lessee at no cost to Lessor with respect to obtaining any required zoning or other governmental approvals for the Site, the Facilities and contemplated use thereof. Furthermore, Lessee shall not allow its Equipment to interfere with the facilities of a user with a higher priority pursuant to Lessor’s Policy Statement, or a user whose use of the Water Tower predates the Commencement Date of this Lease (such users being “Priority Users”), provided any such Priority Users operating radio frequency transmissions equipment are operating within their respective frequencies and in accordance with all applicable Regulatory Requirements. 177 4 235433v5 3. Initial Term The Lease is effective upon full execution hereof. The initial term of this Lease (“Initial Term”) shall be for a period of five (5) years commencing on the first day of the month following Lessee construction start (the “Commencement Date”). Lessee may terminate the Lease for any reason or no reason prior to the Commencement Date, but agrees to reimburse Lessor pursuant to paragraph 5(c) hereof for all of Lessor’s costs incurred in preparing the Premises and reviewing Lessee’s Plans prior to such termination date. 4. Renewal Terms Lessee shall have the right to extend this Lease four (4) times, for a period of five (5) years each (the “Renewal Terms”). The Renewal Terms shall be on the same terms and conditions as set forth in this Lease, except that the Lease Payment shall be increased as provided in paragraph 5(b). This Lease shall automatically be renewed for the Renewal Terms unless Lessee notifies Lessor of Lessee’s intention not to renew the Lease at least forty-five (45) days prior to the expiration of the Initial Term or the Renewal Term which is then in effect. 5. Consideration (a) Initial Term. Lessee shall pay to Lessor as rental the sum of Forty-eight Thousand Five Hundred and 00/100 Dollars ($48,500.00) per annum (“Lease Payment”). The Lease Payment shall be increased annually commencing one (1) year from the Commencement Date of this Lease at a rate equal to four percent (4%) of the previous year’s Lease Payment. The Lease Payment shall be paid annually in advance with the first such annual payment due within forty-five days after the Commencement Date and thereafter on each anniversary of the Commencement Date, partial years to be pro-rated. If not timely paid within thirty (30) days after written notice of such failure to pay on each subsequent Commencement Date, Lessee’s Lease Payment will be subject to a 10% late fee penalty. As a condition precedent to payment, Lessor agrees to provide Lessee with a completed IRS Form W-9, or its equivalent, upon execution of this Lease and at such other times as may be reasonably requested by Lessee, including any change in Lessor’s name or address. (b) Renewal Term. In the event that Lessee elects to renew this Lease as provided in paragraph 4, the Lease Payment shall continue to be increased on each anniversary of the Commencement Date during the Renewal Terms at the rate of four percent (4%) of the previous year’s Lease Payment. (c) Reimbursement of Costs. All charges payable under this Lease shall be billed by Lessor within one (1) year from the end of the calendar year in which the charges were incurred; any charges beyond such period shall not be billed by Lessor, and shall not be payable by Lessee. The foregoing shall not apply to monthly Lease Payment which is due and payable without a requirement that it be billed by Lessor. The provisions of this subsection shall survive the termination or expiration of this Lease. In 178 5 235433v5 addition to the Lease Payments provided for in paragraphs 5(a) and (b) above, and any other costs of Lessee identified elsewhere in this Lease, Lessee shall reimburse Lessor for all of Lessor’s costs to directly implement, and administer Equipment modifications and enforce this Lease, with copy of detailed invoice submitted to Lessee from Lessor, including, without limitation: (i) Lessor’s costs to retain a structural engineer or other consultant to review Lessee’s plans for installation of the Equipment and to inspect the Equipment upon installation and annually, if determined necessary by Lessor; (ii) Lessor’s costs to retain a Radio Frequency Engineer to identify or resolve any potential or actual interference issues with Lessee’s Equipment at the commencement of service by Lessee and at such other times as deemed necessary by Lessor; and (iii) Lessor’s legal fees and other consultant costs associated with the negotiation, administration, and enforcement of this Lease. Lessor shall provide Lessee with a written estimate of expenses for Lessee’s approval prior to incurring expenses for which Lessee is liable pursuant to this paragraph. (d) Taxes. Lessee shall be responsible for any personal property or other taxes attributable to or levied against Lessee’s Equipment on the Property. Lessor shall be responsible for (i) all taxes and assessments levied upon the lands, improvements and other property of Lessor including any such taxes that may be calculated by a taxing authority using any method, including the income method, (ii) all sales, use, license, value added, documentary, stamp, gross receipts, registration, real estate transfer, conveyance, excise, recording, and other similar taxes and fees imposed in connection with this Lease. In the event Lessor receives a notice of assessment with respect to which taxes or assessments are imposed on Lessee’s leasehold improvements on the Premises, Lessor shall provide Lessee with copies of each such notice immediately upon receipt, but in no event later than thirty (30) days after the date of such notice of assessment. If Lessor does not provide such notice or notices to Lessee in a timely manner and Lessee’s rights with respect to such taxes are prejudiced by the delay, Lessor shall reimburse Lessee for any increased costs directly resulting from the delay. If Lessor provides a notice of assessment to Lessee within such time period and requests reimbursement from Lessee as set forth below, then Lessee shall reimburse Lessor for the tax or assessments identified on the notice of assessment on Lessee’s leasehold improvements, which has been paid by Lessor. If Lessor seeks reimbursement from Lessee, Lessor shall, no later than thirty (30) days after Lessor’s payment of the taxes or assessments for the assessed tax year, provide Lessee with written notice including evidence that Lessor has timely paid same, and Lessor shall provide to Lessee any other documentation reasonably requested by Lessee to allow Lessee to evaluate the payment and to reimburse Lessor. Notwithstanding anything to the contrary contained in this Section 5(d), Lessee shall have no obligation to reimburse any tax or assessment for which the Lessor is reimbursed or rebated by a third party. For any tax amount for which Lessee is responsible under this Lease, Lessee shall have the right to contest, in good faith, the validity or the amount thereof using such administrative, appellate or other proceedings as may be appropriate in the jurisdiction, and may defer payment of such obligations, pay same under protest, or take such other 179 6 235433v5 steps as permitted by law. This right shall include the ability to institute any legal, regulatory or informal action in the name of Lessor, Lessee, or both, with respect to the valuation of the Premises or Equipment. Lessor shall cooperate with respect to the commencement and prosecution of any such proceedings and will execute any documents required therefor. The expense of any such proceedings shall be borne by Lessee and any refunds or rebates secured as a result of Lessee’s action shall belong to Lessee, to the extent the amounts were originally paid by Lessee. In the event Lessee notifies Lessor by the due date for assessment of Lessee’s intent to contest the assessment, Lessor shall not pay the assessment pending conclusion of the contest, unless required by applicable law. Lessee shall have the right but not the obligation to pay any taxes due by Lessor hereunder if Lessor fails to timely do so, in addition to any other rights or remedies of Lessee. In the event that Lessee exercises its rights under this Section 5(d) due to such Lessor default, Lessee shall have the right to deduct such tax amounts paid from any monies due to Lessor from Lessee. (e) Security Deposit. To secure payment for the reimbursement of costs provided for in this Lease, Lessee shall deliver to Lessor a cash escrow, letter of credit or performance bond in the amount of $10,000.00 prior to installing any equipment or antennas on the Property. Lessor shall hold this security until all of the work contemplated by this Lease is completed and all amounts due for reimbursement of costs pursuant to this Lease have been paid by Lessee, and shall release the security to Lessee at that time. Lessor may deduct from the security any amounts due under this Lease and unpaid 30 days after written demand by Lessor. 6. Utilities Lessee, at Lessee’s expense, will arrange for separate metering for all required electrical or other utility connections to support the Equipment, and shall promptly pay all utility costs directly to the utility providers when due. 7. Water Tower Purpose Lessee recognizes that the primary function of the Water Tower is to provide water storage for Lessor and its customers. Lessor will maintain and repair the Property and access thereto, the Water Tower, and all areas of the Premises where Lessee does not have exclusive control, in good and tenantable condition, subject to reasonable wear and tear and damage from the elements. Lessee understands that it will be necessary, from time to time, for Lessor to interrupt Lessee’s use of the Property for maintenance of the Water Tower. Lessor shall provide Lessee with at least one hundred twenty (120) days prior written notice for non-emergency maintenance and, if requested by Lessor, Lessee agrees to either remove its Equipment from the Water Tower for such length of time as Lessor shall require to complete the maintenance (the “Maintenance Period”), or if feasible to secure the antennas or the Equipment generally, to protect them from damage and allow Lessee’s continued operation. If required to remove its Equipment, Lessee shall have the right to temporarily relocate its Equipment as provided below. Alternatively, Lessee may terminate this Lease upon thirty (30) days written notice to the Lessor at any time during the Maintenance Period and neither party shall have any further rights or 180 7 235433v5 obligations arising hereunder, except Lessee shall have the duty to remove its Equipment as set forth herein, repairing any damage caused in the process, and the parties shall have those rights and obligations that are to survive the termination of this Lease. Lessee, at its sole cost and expense, may temporarily relocate its Equipment during a Maintenance Period to a different location on the Water Tower provided, however: (a) that the duration of such relocation shall not exceed the Maintenance Period by more than thirty (30) days; (b) that relocation space is available on the Water Tower at a location sufficient to meet Lessee’s coverage or engineering needs and sufficient to allow the required maintenance to be performed by Lessor; (c) that the temporary location is not being used or intended to be used by Lessor; (d) that the relocation will not cause interference with any other equipment located on the Water Tower; (e) that the temporary location will not interfere with the Lessor’s maintenance or use of the Water Tower; and (f) that Lessor has approved relocation to the temporary location in writing. Alternatively, Lessee, at its sole cost and expense, may use a temporary transmission site, or Cellular on Wheels (“COW”), during the Maintenance Period, provided that the location of the COW is approved in writing in advance by Lessor, which approval shall not be unreasonably withheld, conditioned or delayed. The cost of painting and repairing the Water Tower shall be borne by Lessor, unless damage to the Water Tower is caused by Lessee, in which case Lessee shall repair such damage or, at Lessor’s option, reimburse Lessor for Lessor’s costs and expenses incurred in such repair. The cost of painting Lessee’s Equipment shall be borne by Lessee, and shall be performed routinely to maintain the appearance of the Equipment and shall be the same color as the Water Tower and must have prior written approval of Lessor. Lessor will not be responsible for damage to the Lessee’s equipment while Lessor is performing maintenance on the Property or the Water Tower, except to the extent such damage is caused by the gross negligence or willful misconduct of Lessor. 8. Representations and Warranties of Lessee; Indemnification (a) Lessee represents and warrants that its installation, operation and maintenance of the Equipment shall comply with all Regulatory Requirements. (b) Lessee shall indemnify, defend and hold Lessor harmless from any claim against Lessor related to Lessee’s installation, operation and maintenance of the Equipment, including, without limitation, any claims of contractors and subcontractors and/or any claims of any person or entity for damages or injury related to the installation, operation and maintenance of its Equipment, except to the extent attributable to the negligent or intentional act or omission of Lessor, its employees, invitees, agents or independent contractors. (c) Lessor agrees to indemnify, defend and hold Lessee harmless from and against any and all injury, loss, damage or liability, costs or expenses in connection with a third party claim (including reasonable attorneys’ fees and court costs) arising directly from the actions or failure to act of Lessor, its employees, invitees, agents or independent 181 8 235433v5 contractors, or Lessor’s breach of any provision of this Lease, except to the extent attributable to the negligent or intentional act or omission of Lessee, its employees, agents or independent contractors. (d) The indemnified party: (i) shall promptly provide the indemnifying party with written notice of any claim, demand, lawsuit, or the like for which it seeks indemnification pursuant to this Section 8 and provide the indemnifying party with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, lawsuit, or the like; (ii) shall not settle any such claim, demand, lawsuit, or the like without the prior written consent of the indemnifying party; and (iii) shall fully cooperate with the indemnifying party in the defense of the claim, demand, lawsuit, or the like. A delay in notice shall not relieve the indemnifying party of its indemnity obligation, except (1) to the extent the indemnifying party can show it was prejudiced by the delay; and (2) the indemnifying party shall not be liable for any settlement or litigation expenses incurred before the time when notice is given. 9. Default, Termination and Remedies (a) Except as otherwise provided herein, this Lease may be terminated upon written notice 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 (without, however, limiting any other rights available to the parties pursuant to other provisions hereof); ii. Upon thirty (30) days written notice by Lessee if Lessee is unable to obtain or maintain, through no fault of Lessee, any license, permit or other governmental approval necessary for the construction and operation of the Lessee’s Equipment or business, including its ability to manage a PCS network pursuant to which the space is leased and the Equipment will be installed; iii. By Lessor by giving Lessee twelve (12) months written notice that the Water Tower is going to be abandoned or relocated due to unforeseen or hidden structural flaws; iv. By Lessee giving twelve (12) months written notice that use of the Property is unacceptable for technical reasons, including the Property being unacceptable as part of Lessee’s network design as well as signal interference; or v. By Lessor by giving Lessee thirty (30) days written notice that Lessee’s Equipment is unreasonably interfering with the equipment of a Priority User provided that Lessor first gives Lessee written notice of such interference and thirty (30) days within which to resolve such interference with the Priority User. 182 9 235433v5 (b) Lessee may terminate this Lease other than as expressly provided above at any time, so long as Lessee pays to Lessor as liquidated damages for early termination, an amount equal to the then current annual Lease Payment for the year in which Lessee terminates. Such payment shall be made within thirty (30) days of Lessee’s written notice of termination. Within one hundred twenty (120) days after the termination of this Lease, the Lessee must remove all of its above-ground Equipment from the Water Tower and the Property and return the Water Tower and the Property to their original condition (as of the Commencement Date of this Lease), normal wear and tear excepted. Notwithstanding the foregoing, Lessee will not be responsible for the replacement of any trees, shrubs or other vegetation. Lessee shall provide Lessor, at the Commencement Date of this Lease, a letter of credit or performance bond or cash (“Security”) in the amount of $10,000.00 to secure Lessee’s compliance with this requirement. The Security shall be kept current at all times that this Lease is in effect, and failure to keep the Security current shall constitute a default by Lessee. (c) In addition to termination of this Lease, Lessor shall have all other rights and remedies available to it at law or in equity (including an action for money damages or injunctive relief) in the case of a Lessee default that remains uncured for a period of thirty (30) days after written notice to Lessee; provided however that if a non-monetary default cannot reasonably be cured within the 30-day period, this Lease may not be terminated if Lessee commences action to cure the default within the 30-day period and proceeds with due diligence to fully cure the default. (d) The following will be deemed a default by Lessor and a breach of this Lease: (i) Lessor’s failure to provide access to the Premises as required by Section 2 within twenty-four (24) hours after written notice of such failure; (ii) Lessor’s failure to cure an interference problem as required by Section 12 within seventy-two (72) hours after written notice of such failure; or (iii) Lessor’s failure to perform any term, condition or breach of any warranty or covenant under this Lease within thirty (30) days after written notice from Lessee specifying the failure. No such failure, however, will be deemed to exist if Lessor has commenced to cure the default within such period and provided such efforts are prosecuted to completion with reasonable diligence. Delay in curing a default will be excused if due to causes beyond the reasonable control of Lessor. If Lessor remains in default beyond any applicable cure period, Lessee will have: (i) the right to cure Lessor’s default and to deduct the costs of such cure from any monies due to Lessor from Lessee, and (ii) any and all other rights available to it under law and equity. 10. Liability Insurance (a) During the Term, Lessee will carry, at its own cost and expense, the following insurance: (i) workers’ compensation insurance as required by law; and (ii) commercial general liability (CGL) insurance with respect to its activities on the Property, such insurance to afford protection of up to One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) general aggregate, based on Insurance Services Office (ISO) Form CG 00 01 or a substitute form providing 183 10 235433v5 substantially equivalent coverage. Lessee’s CGL insurance shall contain a provision including Lessor as an additional insured. Such additional insured coverage: i. shall be limited to bodily injury, property damage or personal and advertising injury caused, in whole or in part, by Lessee, its employees, agents or independent contractors; ii. shall not extend to claims for punitive or exemplary damages arising out of the acts or omissions of Lessor, its employees, agents or independent contractors or where such coverage is prohibited by law or to claims arising out of the gross negligence of Lessor, its employees, agents or independent contractors; and iii. shall not exceed Lessee’s indemnification obligation under this Lease, if any. (b) Notwithstanding the foregoing, Lessee shall have the right to self-insure the coverages required in subsection (a). In the event Lessee elects to self-insure its obligation to include Lessor as an additional insured, the following provisions shall apply (in addition to those set forth in subsection (a)): i. Lessor shall promptly and no later than thirty (30) days after notice thereof provide Lessee with written notice of any claim, demand, lawsuit, or the like for which it seeks coverage pursuant to this Section and provide Lessee with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, lawsuit, or the like; ii. Lessor shall not settle any such claim, demand, lawsuit, or the like without the prior written consent of Lessee; and iii. Lessor shall fully cooperate with Lessee in the defense of the claim, demand, lawsuit, or the like. 11. Environmental Compliance Except for the Equipment identified herein or in any Plans approved by Lessor, and reasonable quantities of common materials ordinarily used in automobiles and telecommunications operations (e.g., cleaning solvents, electronics, petroleum based products or materials contained in back-up batteries), provided that such permitted Hazardous Materials (i) are in normal and customary quantities, and (ii) are used, transported, handled, stored, labeled, and disposed of in accordance with Regulatory Requirements, Lessee warrants, represents and covenants that it will not bring on to the property, and its use on the Property will not generate, any Hazardous Materials. This Lease may be terminated by Lessor immediately if Lessee is responsible for contamination of the Property by Hazardous Materials in violation of the foregoing representations and warranties. In such event Lessee shall be responsible for the removal of all such Hazardous Materials from the Property and shall be liable to Lessor for any costs incurred by Lessor to remove or clean up Hazardous Materials from the Property and shall 184 11 235433v5 indemnify, defend and hold harmless Lessor for any liability due to the Hazardous Materials being on the Property. Lessor and Lessee agree that each will be responsible for compliance with any and all applicable governmental laws, rules, statutes, regulations, codes, ordinances, or principles of common law regulating or imposing standards of liability or standards of conduct with regard to protection of the environment or worker health and safety, as may now or at any time hereafter be in effect, to the extent such apply to that party’s activity conducted in or on the Property. Lessor represents and warrants to Lessee that it has no knowledge, having done no investigation relating thereto, of any substance, chemical or waste on or affecting Lessor’s Property that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation (collectively “Hazardous Materials”). Lessor and Lessee agree to hold harmless and indemnify the other from, and to assume all duties, responsibilities and liabilities at the sole cost and expense of the indemnifying party for, payment of penalties, sanctions, forfeitures, losses, costs or damages, and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding to the extent arising from that party’s breach of its obligations or representations under Section 11. In the event Lessee becomes aware of any Hazardous Materials on the Property, or any environmental, health or safety condition or matter relating to the Property, that, in Lessee’s sole determination, renders the condition of the Premises or Property unsuitable for Lessee’s use, or if Lessee believes that the leasing or continued leasing of the Premises would expose Lessee to undue risks of liability to a government agency or other third party, then Lessee will have the right, in addition to any other rights it may have at law or in equity, to terminate this Lease upon written notice to Lessor. 12. Interference Lessee covenants that the Equipment will not cause interference with the operation of any Priority Users having higher priority than Lessee. Lessee shall be responsible for curing any and all interference to the operation of equipment of Priority Users having higher priority than Lessee, so long as Priority Users are lawfully operating. Subsequent to the installation of the Lessee Equipment, other than Priority Users having higher priority than Lessee, Lessor will not, and will not permit its lessees or licensees, to install new equipment on or make any alterations to the Water Tower, if such equipment or modifications cause interference with the operation of Lessee’s Equipment. In the event of interference with Lessee’s Equipment, Lessee shall be required to provide Lessor with adequate evidence relating to the cause of the interference, upon receipt of which Lessor will act in good faith to cause any such interference to cease within seventy-two (72) hours after receipt of such evidence of interference from Lessee. In the event any such interference does not cease within the aforementioned cure period, Lessor shall endeavor in good faith to cease all operations which are suspected of causing interference (except for intermittent testing to determine the cause of such interference) until the interference has been corrected. 13. Subrogation (a) In General. All insurance policies required under this Lease shall contain a waiver of subrogation provision under the terms of which the insurance carrier waives all of its rights to proceed against Lessor or Lessee, as the case may be. 185 12 235433v5 (b) Mutual Release. Lessor and Lessee each release the other and their respective representative from any claims by them or anyone claiming through or under them by way of subrogation or otherwise for damage to any person or to the Property and to the fixtures, personal property, improvements and alterations in or on the Property that are caused by or result from risks insured against under any insurance policy carried by them and/or required by this Lease. 14. Notices All notices or demands by or from Lessor to Lessee, or Lessee to Lessor, shall be in writing. Such notices or demands shall be mailed to the other party at the following address: Lessor: Elk River Municipal Utilities Attn: General Manager 13069 Orono Pkwy P.O. Box 430 Elk River, MN 55330-0430 Lessee: New Cingular Wireless PCS, LLC Attn: Tower Asset Group – Lease Administration Re: Cell Site #: MNL01428; Site Name: Powered By Nature (MN) Fixed Asset #: 16183131 1025 Lenox Park Blvd NE Atlanta, GA 30319 With a Copy to: New Cingular Wireless PCS, LLC Attn: Legal Dept – Network Operations Re: Cell Site #: MNL01428; Site Name: Powered By Nature (MN) Fixed Asset #: 16183131 208 S. Akard Street Dallas, TX 75202-4206 15. Destruction of Premises Lessor agrees to endeavor to provide notice to Lessee of any casualty or other harm affecting the Premises within a reasonable amount of time after becoming aware of the casualty or other harm. If the Property or the Water Tower are destroyed or damaged so as to hinder the effective use of Lessee’s Equipment on the Water Tower in Lessee’s reasonable judgment, Lessee may elect to terminate this Lease as of the date of the damage or destruction by so notifying the Lessor. In such event, all rights and obligations of the parties to each other Lessee to Lessor shall cease as of the date of the damage or destruction (other than those obligations intended to survive the termination of the Lease), and Lessee shall be entitled to a pro rata reimbursement of any Lease Payment prepaid by Lessee. In the case of such termination, Lessee shall promptly remove its Equipment from the Property, repairing any damage caused in the process. 186 13 235433v5 Lessor agrees to permit Lessee to place temporary transmission and reception facilities on the Property, but only until such time as Lessee is able to activate a replacement transmission facility at another location; notwithstanding the termination of this Lease, such temporary facilities will be governed by all of the terms and conditions of this Lease, including Lease Payment. If Lessor or Lessee undertakes to rebuild or restore the Premises and/or the Equipment, as applicable, Lessor agrees to permit Lessee to place temporary transmission and reception facilities on the Property until the reconstruction of the Premises and/or the Equipment is completed. Lessor agrees that the Lease Payment shall be abated until the Property and/or the Premises are rebuilt or restored, unless Lessee places temporary transmission and reception facilities on the Property. 16. Title and Quiet Enjoyment Lessor warrants that: (i) it has the full right, power and authority to execute this Lease; (ii) it has good and marketable title to the Property and solely owns the Water Tower; (iii) the Property is not and will not be encumbered by any liens, restrictions, mortgages, covenants, conditions, easements, leases, or any other agreements of record or not of record, which would adversely affect Lessee’s permitted use and enjoyment of the Premises under this Lease; (iv) Lessor grants to Lessee sole, actual, quiet and peaceful use, enjoyment and possession of the Premises in accordance with the terms of this Lease without hindrance or ejection by any persons lawfully claiming under Lessor; (v) Lessor’s execution and performance of this Lease will not violate any laws, ordinances, covenants or the provisions of any mortgage, lease or other agreement binding on Lessor; and (vi) if the Property is or becomes encumbered by a deed to secure a debt, mortgage or other security interest, then Lessor will provide promptly to Lessee a mutually agreeable subordination, non-disturbance and attornment agreement executed by Lessor and the holder of such security interest. 17. Assignment Lessee may not assign or sublet its rights under this Lease without the prior written consent of Lessor, which consent may not be unreasonably delayed, conditioned or withheld by Lessor. Notwithstanding the foregoing, Lessee may, without notice to or consent of Lessor, assign its rights under this Lease in whole or in part to any entity controlling, controlled by or under common control with Lessee, any entity acquiring substantially all of the assets of Lessee, or any successor entity in a merger or consolidation involving Lessee. 18. Successors and Assigns This Lease shall run with the Property described on Exhibit A and shall be binding upon and inure to the benefit of the parties, their respective heirs, successors, personal representatives and assigns. 19. Miscellaneous (a) Each party agrees to furnish to the other, within twenty (20) days after receipt of written request, such truthful estoppel information as the other may reasonably request. 187 14 235433v5 (b) This Lease constitutes the entire agreement and understanding of Lessor and Lessee with respect to the subject matter hereof and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to said Lease must be in writing and executed by Lessor and Lessee. (c) If either Lessor or Lessee is represented by a real estate broker in this transaction, that party shall be fully responsible for any fees due such broker and shall hold the other party harmless from any claims for commission by such broker. (d) This Lease shall be construed in accordance with the laws of the state in which the Property is situated. (e) If any term of this Lease is found to be void or invalid, such validity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. (f) Lessor shall cooperate, at no cost to Lessor, with Lessee’s efforts to evaluate the Water Tower and to comply with governmental regulations affecting Lessee’s use of the Property by providing information about the Water Tower, the Water Tower’s location and prior filings made by Lessor with governmental agencies. (g) Neither this Lease, nor a memorandum of same, shall be filed in the public records without the prior written consent of Lessor. (h) This Lease may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties, it being understood that all parties need not sign the same counterpart. (i) In the event Lessor receives notification of any condemnation proceedings affecting the Property, Lessor will provide notice of the proceeding to Lessee within a reasonable amount of time. If a condemning authority takes all of the Property, or a portion sufficient, in Lessee’s sole determination, to render the Premises unsuitable for Lessee, this Lease will terminate as of the date the title vests in the condemning authority. The parties will each be entitled to pursue their own separate awards in the condemnation proceeds, which for Lessee will include, where applicable, the value of its Equipment, moving expenses, prepaid Lease Payment, and business dislocation expenses. Lessee will be entitled to reimbursement for any prepaid Lease Payment on a pro rata basis. (j) Lessor waives any and all lien rights it may have, statutory or otherwise, concerning the Equipment or any portion thereof. The Equipment shall be deemed personal property for purposes of this Lease, regardless of whether any portion is deemed real or personal property under applicable law; Lessor consents to Lessee’s right to remove all or any portion of the Equipment from time to time in Lessee’s sole discretion and without Lessor’s consent. 188 15 235433v5 (k) If Lessor, at any time during the Term of this Lease, decides to sell, subdivide or otherwise transfer all or any part of the Property containing the Premises, to a purchaser other than Lessee, Lessor shall promptly notify Lessee in writing, and such sale, subdivision or transfer shall be subject to this Lease and Lessee’s rights hereunder. In the event of a change in ownership, transfer or sale of the Property, within ten (10) days of such transfer, Lessor or its successor shall send the following documents to Lessee: (i) Deed, bill of sale, easement, or other instrument of transfer, (ii) New IRS Form W-9; (iii) Completed and Signed Lessee Payment Direction Form, and (iv) Full contact information for new Lessor including phone number(s). Until Lessee receives all such documents, Lessee’s failure to transfer payments under this Lease to the transferee shall not be an event of default and Lessee reserves the right to hold payments due under this Lease. (l) If at any time after the date of this Lease, Lessor intends or desires to accept a bona fide written offer from a third party seeking (i) an assignment or transfer of Lease Payments associated with this Lease, or (ii) a purchase of an easement, license or any other lesser interest in the Property, the intent of which is to effect a transfer of Lease Payments without transferring the full and complete obligation or ability to assume all of Lessor’s obligations hereunder (either of the foregoing a “Rental Stream Offer”), prior to accepting such Rental Stream Offer, Lessor shall furnish Lessee with a copy of the Rental Stream Offer. Lessee shall have the right within thirty (30) days after it receives such copy to match the Rental Stream Offer and agree in writing to match the terms of the Rental Stream Offer. Such writing shall be in the form of a contract substantially similar to the Rental Stream Offer (“Lessee’s Offer”). If Lessor opts to accept an assignment or transfer of Lease Payments, Lessor shall be obligated to accept Lessee’s Offer in lieu of the Rental Stream Offer from the third party. If Lessee chooses not to exercise this right or fails to provide written notice to Lessor within the thirty (30) day period, Lessor may accept the Rental Stream Offer, subject to the terms of this Lease. If Lessor attempts to assign or transfer Lease Payments without complying with this Section, the assignment or transfer shall be void. Lessee reserves the right to hold Lease Payments due under this Lease until Lessor complies with the requirements of this Section. (m) Contemporaneously with the execution of this Lease, the parties will execute a recordable Memorandum of Lease. Either party may record this Memorandum of Lease at any time during the Term, in its absolute discretion. Thereafter during the Initial Term or Renewal Term, either party will, at any time upon fifteen (15) business days’ prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum of Lease. (n) Except for the indemnity obligations set forth in this Lease, and otherwise notwithstanding anything to the contrary in this Lease, Lessee and Lessor each waives any claims that each may have against the other with respect to consequential, incidental or special damages, however caused, based on any theory of liability. (o) Lessee agrees to comply with all federal, state and local laws, orders, rules and regulations (“Laws”) applicable to Lessee’s use of the Equipment on the Property. 189 16 235433v5 Lessor agrees to comply with all Laws relating to Lessor’s ownership and use of the Property and any improvements on the Property. IN WITNESS WHEREOF, Lessor and Lessee have executed this Non-Exclusive Tower Attachment Lease Agreement as of that date and year first above written. LESSOR: Elk River Municipal Utilities By: Print Name: Its: Date: By: Print Name: Its: Date: LESSEE: New Cingular Wireless PCS, LLC By: AT&T Mobility Corporation, its Manager By: Print Name: Its: Date: 190 A-1 235433v5 Exhibit A TOWER ATTACHMENT LEASE AGREEMENT DESCRIPTION OF THE PROPERTY: That part of the Southwest Quarter of the Southeast Quarter of Section 27, Township 33, Range 26, Sherburne County, Minnesota, described as follows: Commencing at the Southwest corner of said Southwest Quarter of the Southeast Quarter of Section 27; thence Easterly along the South line of said Southwest Quarter of the Southeast Quarter of Section 27 a distance of 507 .6 feet more or less to the Westerly right¬ of-way of U.S. Highway No. 169 and the point of beginning of the parcel to be described; thence Northerly along said Westerly right-of-way a distance of 208.0 feet; thence Westerly parallel with said South line of the Southwest Quarter of the Southeast Quarter a distance of 218.7 feet; thence Southerly parallel with said Westerly right-of-way of U.S. Highway No. 169 a distance of 208.0 feet to said South line of the Southwest Quarter of the Southeast Quarter of Section 27; thence Easterly along said South line to the point beginning. 191 B-1 235433v5 Exhibit B TOWER ATTACHMENT LEASE AGREEMENT DESCRIPTION OF EASEMENTS 20ft Non-Exclusive Access Easement and 8ft Non-Exclusive Utility Easement from __________________________to the Base of Water Tower. 192 C-1 235433v5 Exhibit C TOWER ATTACHMENT LEASE AGREEMENT DESCRIPTION AND LOCATION OF EQUIPMENT See attached ______pg drwgs 193