New Cingular Wireless PCS, LLC -Amended and Restated Lease Agreement_HearingCopyrighted
April 20, 2020
City of Dubuque Public Hearings # 1.
ITEM TITLE: New Cingular Wireless PCS, LLC -Amended and
Restated Lease Agreement
SUMMARY: Proof of publication on notice of public hearing to consider
approval of an Amended and Restated Lease Agreement
between the City of Dubuque and Cingular Wireless PCS,
LLC (AT&T Mobility) for space on the ground and water
tower at the City's College Street Water Tower adjacent to
Finley Hospital, and the City Manager recommending
approval.
SUGGESTED DISPOSITION:
RESOLUTION Disposing of an interest in real property
owned by the City of Dubuque by lease between the City of
Dubuque, Iowa and New Cingular Wireless PCS, LLC
Suggested Disposition: Receive and File; Adopt
Resolution(s)
ATTACHMENTS:
Description Type
New Cingular Lease Agreement-MVM City Manager Memo
Staff Memo Staff Memo
Resolution Resolutions
Amended and Restated Lease Agreement (Added Supporting Documentation
4/20/20)
Masterpiece on the Mississippi
Dubuque
bitil
All-A.aia City
111111
2007.2012.2013
2017*2019
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: New Cingular Wireless PCS, LLC - Amended and Restated Lease
Agreement Public Hearing
DATE: April 16, 2020
Project Manager Steve Sampson Brown requests the City Council approve an
Amended and Restated Lease Agreement between the City of Dubuque and Cingular
Wireless PCS, LLC (AT&T Mobility) for space on the ground and water tower at the
City's College Street Water Tower adjacent to Finley Hospital.
The proposed lease agreement is for an initial term of five years with three additional
five-year extensions available (for a total of 20 years). AT&T Mobility will pay $20,000
dollars in lease payments per year during the first 5-year period. If AT&T exercises a
5-year extension, the rent will increase by 12.5% on the first day of the new term and
remain constant through the 5-year extension period. The 12.5% rent increase will
apply to each enacted 5-year extension period.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
7'-
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Crenna Brumwell, City Attorney
Teri Goodmann, Assistant City Manager
Cori Burbach, Assistant City Manager
Steve Sampson Brown, Project Manager
Gus Psihoyos, City Engineer
Masterpiece on the Mississippi
Dubuque
AIFAmerica City
SAP NAL. nk ii
111111
2007+2012*2013
2017*2019
TO: Michael Van Milligen, City Manager
FROM: Steve Sampson Brown, Project Manager aa- gfer"--- fer-r-"N--
SUBJECT: New Cingular Wireless PCS, LLC - Amended and Restated Lease
Agreement
Public Hearing
DATE: April 17, 2020
INTRODUCTION
This memo is in reference to the public hearing for the approval of an amended and
restated lease agreement between the City of Dubuque and Cingular Wireless PCS, LLC
(AT&T Mobility)
BACKGROUND
AT&T Mobility currently leases space on the ground and water tower at the City's College
Street Water Tower adjacent to Finely Hospital. AT&T Mobility is one of several mobile
carriers operating out of this location and has had an existing agreement with the City of
Dubuque since May 2001. The existing agreement is for a total term of 25 years and is
set to expire in May of 2026. For the current lease year (May 21, 2019 - May 20, 2020)
AT&T Mobility is paying $22,583 in annual rent. Per the terms of the current agreement,
the rent increases each year by the greater of 3% or the Consumer Price Index. AT&T
Mobility is in the 19th year of this lease. Thus there are 6 years remaining on the existing
agreement to which the annual rent will increase a minimum of 3% per year. If the rent
increases 3% for each of the remaining years, the rent for the final year (2025-2026) will
be $26,965.
DISCUSSION
In the spring of 2018 AT&T Mobility reached out to city staff to inform us that a review
was being conducted of all their sites to determine which ones would kept and extended
and which ones would be abandoned. The City's broadband collaboration team whose
members include Information Services Manager Chris Kohlmann, Senior Counsel Barry
Lindahl, Civil Engineer Dave Ness, Sustainable Innovation Consultant Dave Lyons of
GDDC, and Project Manager Steve Sampson Brown worked with AT&T Mobility to draft
the attached lease agreement for consideration. Based on current market conditions, the
broadband collaboration team feels the current lease agreement offer being proposed is
reasonable.
Page 1 of 2
The agreement provides for an initial 5-year term commencing on June 14, 2020 and
provides for 3, 5-year automatic extensions unless AT&T Mobility provides cancellation
notice to the City not less than 90 days prior to the end of the current term. The annual
rent for the first 5-year term is set at $20,000 per year. The annual rent will increase
12.5% at the beginning of each 5-year extension. AT&T Mobility will pay for all taxes and
utilities during the term of this agreement. Other parts of this lease follow the City of
Dubuque standard terms and conditions.
RECOMMENDATION
It is recommended that the proposed Amended and Restated Lease Agreement between
the City of Dubuque and New Cingular Wireless PCS, LLC be approved through adoption
of the enclosed resolution.
BUDGET IMPACT
The proposed lease agreement is for an initial term of five years with three additional five-
year extensions available (for a total of 20 years). AT&T Mobility will pay $20,000 dollars
in lease payments per year during the first 5-year period. If AT&T exercises a 5-year
extension the rent will increase by 12.5% on the first day of the new term and remain
constant through the 5-year extension period. The 12.5% rent increase will apply to each
enacted 5-year extension period.
ACTION STEP
It is respectfully requested the proposed Amended and Restated Lease Agreement
between the City of Dubuque and New Cingular Wireless PCS, LLC be approved through
adoption of the enclosed resolution.
Attachment(s)
SSB\ssb
cc: Gus Psihoyos — City Engineer
Denise Ihrig — Water Department Manager
Page 2 of 2
RESOLUTION NO. 127-20
DISPOSING OF AN INTEREST IN REAL PROPERTY OWNED BY THE CITY OF DUBUQUE
BY LEASE BETWEEN THE CITY OF DUBUQUE, IOWA AND NEW CINGULAR WIRELESS
PCS, LLC
WHEREAS, the City of Dubuque, Iowa (City) owns the real property legally described as
follows:
Lots 21, 22 and 23, Finley Home Addition to the City of Dubuque, Dubuque County,
Iowa. and Lot 2 in Finley Home Addition No. 2, in the City of Dubuque, Dubuque
County, Iowa, locally known as 1575 West Third Street, Dubuque, Iowa (the
Property); and
WHEREAS, City and New Cingular are parties to a certain Water Tank 8, Ground Space
Lease dated May 21, 2001 (the Existing Lease); and
WHEREAS, City and New Cingular have negotiated an Amended and Restated Lease
Agreement for the Property, attached hereto for the installation and operation of a cellular radio-
telephone communication antenna facility which will replace the Existing Lease; and
WHEREAS, the City Council, by Resolution No. 104-20, dated April 6, 2020, declared its
intent to dispose of City interest in the Property pursuant to the Amended and Restated Lease
Agreement; and
WHEREAS, pursuant to published notice, a public hearing was held on the proposed
disposition on April 20, 2020 at 6:30 p.m. in the Historic Federal Building, 350 W. 6th Street,
Dubuque, Iowa; and
WHEREAS, the City Council has determined that it would be in the best interests of City to
enter into the Amended and Restated Lease Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. The City of Dubuque approves Amended and Restated Lease Agreement between
City and New Cingular Wireless PCS, LLC.
Section 2. The Mayor is authorized and directed to sign the Amended and Restated Lease
Agreement between City and New Cingular Wireless PCS, LLC.
Passed, approved, and adopted this 20th day April 2020.
Roy`D. Buol, Mayor
Attest:
Key ' ` . Firnstahl, City Clerk
AMENDED AND RESTATED LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
NEW CINGULAR WIRELESS PCS, LLC
THIS AMENDED AND RESTATED LEASE AGREEMENT (the "Lease"), dated for
reference purposes the 'day of j—, 20 Is made and entered into by and between
THE CITY OF DUBUQUE, IOWA, t"Lessor") whose address for the purpose of this Lease
is 50 West 13th Street, Dubuque, IA 52001 and NEW CINGULAR WIRELESS PCS, LLC,
a Delaware limited liability company, having a mailing address of 1025 Lenox Park Blvd.
NE, 3rd Floor, Atlanta, GA 30319 ("Lessee").
WHEREAS, Lessor is the owner in fee simple of a parcel of land located in the City
of Dubuque, Dubuque County,State of Iowa, legally described on the attached Exhibit A
(the "Property"), on which a water tower owned by Lessor (the "Tower") is located. The
street address is 1575 West Third Street, Dubuque, IA 52001; and
WHEREAS, Lessor and Lessee are parties to a certain Water Tank & Ground
Space Lease dated May 21, 2001 (the "Existing Lease"), a memorandum of which is
recorded in Instrument No. 14888-01 of the Dubuque County real estate records, and
pursuant to which Lessee leases the Lease Area, including space on the Tower and
ground space below for the installation and operation of a cellular radio -telephone
communications antennae facility, which shall include directional antennae, and
equipment building, connecting cables and appurtenances (collectively, the "Wireless
Telecommunication Antennae Facility") for use in connection with its communication
business; and
WHEREAS, Lessor and Lessee desire to amend and restate the Existing Lease in
its entirety with this Lease.
Now, therefore, in consideration of their mutual covenants, the parties agree to
amend and restate the Existing Lease in its entirety as follows:
SECTION 1. DEMISE AND TERM.
1.1 Lessor leases to Lessee and Lessee leases from Lessor a portion of the Property
which consists of (i) space on the lower tower catwalk where Lessee shall have the right
to install its antennas and other equipment (collectively, the "Antenna Space"); (ii) ground
space below for its equipment building ("Equipment Space"); (iii) those certain areas
where Lessee's conduits, wires, cables, cable trays and other necessary connections are
located between the Equipment Space and the Antenna Space, and between the
Equipment Space and the electric power, telephone, and fuel sources for the Property
(the "Connection Space"); and (iv) easements for ingress/egress and utilities, all as shown
on the attached Site Plan/Legal Description, Exhibit B. (The Antenna Space, Equipment
Space and Connection Space are hereinafter collectively referred to as the "Lease Area").
011719ba1
At all times throughout the Term of this Lease, and at no additional charge to Lessee,
Lessee and its employees, agents, and subcontractors, will have twenty-four (24) hour
per day, seven (7) day per week pedestrian and vehicular access ("Access") to and over
the Property, from an open and improved public road to the Lease Area, for the
installation, maintenance and operation of the Wireless Telecommunication Antennae
Facility and any utilities serving the Lease Area.
1.2 Lessor agrees that it will not interfere with Lessee's efforts in obtaining, at Lessee's
expense, all licenses and permits or authorizations required for Lessee's use of the Lease
Area from all applicable government and/or regulatory entities (including, without
limitation, zoning and land use authorities, and the Federal Communication Commission
("FCC") ("Governmental Approvals"), including all land use and zoning permit
applications, and Lessor agrees that it will not interfere with Lessee's efforts, at no cost
to Lessor, to obtain a title report, zoning approvals and variances, land -use permits.
Notwithstanding, the above in no way shall be construed to waive any right of the Lessor
to enforce its Code of Ordinances, including but not limited to Title 11, Chapter 1,
Nonfranchised Communications Systems in the Public Right -of -Way, nor shall Lessor
limit the authority of Lessor to review and hold public hearings on any approvals required
by the Code of Ordinances necessary for the installation of Lessee's equipment.
1.3 This Lease is not a franchise pursuant to state, local, or federal law, nor is it a
permit to use the right-of-way. Any such franchise or right-of-way permit must be obtained
separately.
1.4 The Term of this Lease shall commence on the 14th day of June, 2021, (the
"Commencement Date") and end at midnight on the 13th day of June, 2026 (the "Term"),
subject to all of the terms, covenants, conditions and agreements contained herein.
1.5 The Term of this Lease shall automatically be extended for three (3) additional five
(5) year period unless Lessee delivers written notice to Lessor not less than 90 days prior
to the end of the initial Term that Lessee does not intend to renew the Lease.
SECTION 2. RENT AND OTHER PAYMENTS.
2.1 Rent:
(1) Lessee shall pay Lessor, in addition to all other charges required to be paid
under this Lease by Lessee, $20,000.00 annual rent ("Rent") in advance
commencing on the 14th day of June, 2021.
(2) Rent shall be increased twelve and one-half percent (12.5%) on June 14,
2026, June 14, 2031, June 14, 2036 and June 14, 2041.
(3) All payments required by this Lease shall be made payable to "The City of
Dubuque, Iowa" and delivered to the Lessor of Dubuque Finance Department, City
Hall. Any payments not paid in full within thirty (30) days after written notice of such
Page 2 of 26
payment failure on the due date shall be subject to penalty in the amount of five
percent (5%) of the late payment. If Lessee fails to make payment within forty-five
(45) days after notice, the late payment penalty shall increase to seven and one-
half percent (7.5%) of the amount of the late payment. If Lessee fails to make
payment within sixty (60) days after notice, the late payment penalty shall increase
to ten percent (10%) of the amount of the late payment.
2.2 Penalty for Operations Outside Limits of the Lease Area. Lessee shall not use any
Lessor -owned land outside the Lease Area, other than public streets or the access and
utility easements as shown on Exhibit A, for storing equipment or materials, parking.
Lessor shall photo document each violation and upon receipt of written notice from
Lessor, Lessee agrees to pay the following penalty for each violation during each
calendar year:
• 1st Lease violation offense — written warning
• 2nd Lease violation offense - $50.00 per day
• 3rd Lease violation offence - $100.00 per day
• 4th and all subsequent Lease violation offences - $250.00 per day
Lessor shall separately invoice Lessee for payment of each violation and the penalty shall
be paid within 60 days of the date of invoicing. Furthermore, no Lease extensions or
amendments shall be permitted by Lessor unless all outstanding penalties have been
paid in full. This penalty applies to Lessee or operations of its subsidiaries. The foregoing
penalties are in addition to other applicable City ordinances and penalties.
SECTION 3. TITLE TO IMPROVEMENTS AND TRADE FIXTURES.
3.1 Trade Fixtures. Lessor waives any and all lien rights it may have, statutory or
otherwise, concerning the Wireless Telecommunication Antennae Facility or any portion
thereof. Title to Lessee's Wireless Telecommunication Antennae Facility is and shall be
the sole and exclusive property of Lessee during the Term of this Lease and shall remain
the sole and exclusive property of Lessee after the expiration or termination of this Lease,
for whatever reason. Lessor acknowledges and understands that it shall have no right,
title or interest in or to Lessee's Wireless Telecommunication Antennae Facility either
during the Term of this Lease, or thereafter (except as hereinafter provided). Lessor
acknowledges and agrees that Lessee shall have the right to encumber, sell, or
hypothecate Lessee's Wireless Telecommunication Antennae Facility, to remove them
from the Lease Area, or to otherwise deal with all or any portion of such Lessee's Wireless
Telecommunication Antennae Facility, at Lessee's sole discretion. Upon ten (10) days
prior written notice to Lessor, Lessor shall execute and deliver to Lessee a certificate in
recordable form prepared by Lessee stating that Lessor has no interest or right in or to
Lessee's Wireless Telecommunication Antennae Facility, as well as any other or further
document which Lessee may reasonably request from Lessor.
3.2 All portions of the Wireless Telecommunication Antennae Facility brought onto the
Property by Lessee will be and remain Lessee's personal property and, at Lessee's
Page 3 of 26
option, may be removed by Lessee at any time during or after the Term. Lessee will
repair any damage to the Property resulting from Lessee's removal activities. Any
portions of the Wireless Telecommunication Antennae Facility that Lessee does not
remove within one hundred twenty (120) days after the later of the end of the Term and
cessation of Lessee's operations at the Lease Area ("Improvements") shall be deemed
abandoned, and title to the Improvements shall vest in Lessor, and the Improvements or
the part thereof then within the Lease Area shall be surrendered by Lessee to Lessor. No
further deed or other instrument shall be necessary to confirm the vesting in Lessor of
title to the Improvements. However, upon any termination of this Lease, Lessee, upon
request of Lessor, shall execute, acknowledge and deliver to Lessor a bill of sale
confirming that all of Lessee's right, title and interest in or to the Improvements has
expired, and that title to the Improvements has vested in Lessor. Lessor reserves the right
to require Lessee upon notice prior to the termination of this Lease, to remove some or
all of the Wireless Telecommunication Antennae Facility, which Lessee shall accomplish
within 120 days of the expiration of this Lease Agreement.
SECTION 4. TAXES.
4.1 Lessor shall be responsible for timely payment of all taxes and assessments levied
upon the lands, improvements and other property of Lessor, including any such taxes that
may be calculated by the taxing authority using any method, including the income method.
4.2 Lessee shall be responsible for (a) any taxes and assessments attributable to and
levied upon Lessee's leasehold improvements on the Lease Area if and as set forth in
this Section 4 and (b) 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 an assignment of this Lease or
sublease by Lessee.
4.3 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 Lease Area,
Lessor shall provide Lessee with copies of each such notice immediately upon receipt.
Lessee agrees to timely pay all taxes, fees, assessments or other public charges levied
or assessed by lawful authority (but reasonably preserving Lessee's rights of appeal)
against its personal property on the Lease Area, during the Term of this Lease.
4.4 Nothing herein shall require Lessee to pay any of Lessor's income taxes, surtaxes,
excess profit taxes or any taxes on the rents reserved to Lessor hereunder.
4.5 Lessee shall at all times have the right to contest in good faith, in any proper
proceedings, in the name of Lessor if necessary, the payment or satisfaction of any such
taxes, fees, assessments, rates, charges or levies so agreed to be paid by Lessee, if the
validity thereof, or the right to assess or levy the same against or collect the same from
said Lease Area or Improvements, shall be disputed, and may defer payment of such
obligations, pay same under protest, or take such other steps as Lessee may deem
appropriate. This right shall include the ability to institute any legal, regulatory or informal
Page 4of26
action in the name of Lessee, with respect to the valuation of the Lease Area. Upon
request and where deemed appropriate by Lessee, Lessor shall assign to Lessee all of
Lessor's right, title and interest in and to any protest right or refund claim for taxes for
which Lessee is responsible under this Section 4. Upon the conclusion of any such suit
or proceedings, or not less than three (3) months prior to the date when the right to
redeem therefrom expires, whichever will be the earlier, Lessee shall promptly pay and
satisfy such disputed tax, fee, assessment or other charge as finally determined, together
with all expenses, costs and attorneys' fees whatsoever incurred in connection therewith
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 or borne by Lessee.
SECTION 5. UTILITIES AND SERVICES. Lessee, during the Term of this Lease,
shall pay, before delinquency, all charges for all utilities and services, including garbage
disposal and trash disposal. Lessee shall be responsible for all operating and repair and
maintenance costs related in any way whatsoever to the utilities serving the Lease Area.
Lessee will have the right to install utilities, upon prior written approval of Lessor as to the
location of such utilities, which approval will not be unreasonably withheld conditioned or
delayed, at Lessee's expense, and to improve present utilities on the Property and the
Lease Area. Lessor shall grant to any service company providing utility or similar
services, including electric power and telecommunications, to Lessee an easement over
the Property, from an open and improved public road to the Lease Area, and upon the
Lease Area, for the purpose of constructing, operating and maintaining such lines, wires,
circuits, and conduits, associated equipment cabinets and such appurtenances thereto.
Upon Lessee's or service company's request, Lessor will execute a separate recordable
easement evidencing this grant, at no cost to Lessee or the service company.
SECTION 6. INTERFERENCE.
6.1 Lessee warrants that its use of the Lease Area will not interfere with the existing
radio frequency uses on the Property, as long as the existing radio frequency user(s)
operate and continue to operate within their respective frequencies and in accordance
with all applicable laws and regulations.
6.2 Lessor will not grant a lease, license or any other right to any third party, if the
exercise of such grant may in any way adversely affect or interfere with the Wireless
Telecommunication Antennae Facility, the operations of Lessee or the rights of Lessee
under this Lease. Lessor will notify Lessee in writing prior to granting any third party the
right to install and operate communications equipment on the Property.
6.3 Lessor will not, nor will Lessor permit its employees, tenants, licensees, invitees,
agents or independent contractors to interfere in any way with the Wireless
Telecommunication Antennae Facility, the operations of Lessee or the rights of Lessee
under this Lease. Lessor will cause such interference to cease within twenty-four (24)
hours after receipt of notice of interference from Lessee. In the event any such
interference does not cease within the aforementioned cure period, Lessor shall cease
all operations which are suspected of causing interference (except for intermittent testing
Page 5 of 26
to determine the cause of such interference) until the interference has been corrected.
6.4 For the purposes of this Lease, "interference" may include, but is not limited to,
any use on the Property that causes electronic or physical obstruction with, or degradation
of, the communications signals from the Wireless Telecommunication Antennae Facility.
SECTION 7. REPAIRS.
7.1 Lessee shall at all times during the Term of this Lease, at Lessee's own costs and
expense, keep the Lease Area and the Wireless Telecommunication Antennae Facility in
good order, condition and repair, and in a safe, clean and neat condition, casualties and
ordinary wear and tear excepted. Lessee shall keep the Lease Area in such condition as
may be required by law and by the terms of the insurance policies furnished pursuant to
this Lease, whether or not such repair shall be interior or exterior. Upon reasonable notice
to Lessee, Lessor may, at its discretion and at its cost, conduct an annual inspection of
the Lease Area to determine Lessee's compliance with this Section.
7.2 Lessor will maintain and repair the Property and access thereto, the Tower, and
all areas of the Lease Area where Lessee does not have exclusive control, in good and
tenantable condition, subject to reasonable wear and tear and damage from the elements.
SECTION 8. ALTERATIONS OR EXPANSIONS. Lessee has the right, upon prior
written approval of Lessor, which approval shall not be unreasonably withheld,
conditioned or delayed, and at no additional cost, to install, modify, supplement, replace,
upgrade, expand the Wireless Telecommunication Antennae Facility (including, for
example, increasing the number of antennas or adding microwave dishes) within the
Lease Area at any time during the Term, provided however, in no circumstance may
Lessee make any alteration, addition or modification which could exceed the structural
capacity of the tower.
SECTION 9. MECHANIC'S LIENS. Neither Lessee nor anyone claiming by, through
or under Lessee, shall have the right to file or place any mechanic's lien or other lien of
any kind or character whatsoever, upon said Lease Area or upon any building or
improvement thereon, or upon the interest of Lessee therein, and notice is hereby given
that no contractor, sub -contractor, or anyone else who may furnish any material, service
or labor for any building, improvements, alteration, repairs or any part thereof, shall at any
time be or become entitled to any lien thereon, and for the further security of the City,
Lessee covenants and agrees to give actual notice thereof in advance, to any and all
contractors and sub -contractors who may furnish or agree to furnish any such material,
service, or labor.
SECTION 10. COMPLIANCE WITH LAW. During the Term of this Lease, Lessee shall
comply with all local, state and federal laws, orders, rules and regulations ("Laws")
applicable to Lessee's use of the Lease Area, including but not limited to the Americans
with Disabilities Act and the Smokefree Air Act, Iowa Code Section 142D.3. Lessor agrees
to comply with all Laws relating to Lessor's ownership and use of the Property and any
Page 6 of 26
improvements on the Property. Lessee shall not commit waste on the Lease Area except
as necessary for its business purposes including the removal or construction of any
buildings and Improvements on the Lease Area and shall be liable for any damages to or
destruction of any buildings or Wireless Telecommunication Antennae Facility on the
Lease Area resulting from waste and shall be required to repair or rebuild such buildings.
SECTION 11. USE OF LEASE AREA. Lessee shall not knowingly use or allow the
Lease Area or any buildings or improvements thereon or any appurtenances thereto, to
be used or occupied for any unlawful purpose or in violation of any certificate of
occupancy. Lessee shall not suffer any act to be done or any condition to exist within the
Lease Area or in any improvement thereon, or permit any article to be brought therein,
which is dangerous, unless safeguarded as required by law, or which, in law, constitute
a nuisance, public or private, or which may make void or voidable any insurance in force
with respect thereto. The Lease Area shall be used by Lessee for the transmission and
reception of communications signals and the installation, construction, maintenance,
operation, repair, replacement and upgrade of communications fixtures and related
equipment, cables, accessories and improvements.
SECTION 12. SIGNS. Lessee shall have no right or privilege of attaching, affixing,
painting or exhibiting signs on the Lease Area, except for warning signs to make
individuals aware of risks, as reasonably required by Lessee's safety procedures or
applicable law.
SECTION 13. PARKING.
13.1 Lessor agrees that Lessee's employees may have the privilege during the Term of
this Lease to park on any city street designated to allow public parking, including College
Street and W. 3rd Street, or on the Lease Area or access easement. Lessor shall have
the right in its sole discretion to terminate such parking privileges on any public streets at
any time for any purpose.
13.2 Lessee shall use its best efforts to prohibit its employees from parking on Lessor
or Unity Point Health —Finley Hospital owned land not part of the Lease Area.
SECTION 14. INSURANCE.
14.1 Lessee shall during the Term of this Lease maintain insurance as set forth in the
City's Standard Insurance Schedule Lessees of City Property and Right of Way Licensees
or Permittees, as such schedule may from time to time be amended by City. The current
Insurance Schedule is attached to this Lease as Insurance Schedule A (Exhibit C). Lessor
shall provide written notice of any amendment to the Insurance Schedule not less than
sixty days prior to the effective date of such amendment.
SECTION 15. FIRE AND CASUALTY; PARTIAL DESTRUCTION OF PREMISES.
15.1 In the event of a partial destruction of or damage to the Tower or Lease Area,
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which prevents Lessee from operating the Wireless Telecommunication Antennae Facility
or otherwise using the Lease Area for the purposes identified above and which damage
is reasonably repairable within sixty (60) days after its occurrence, this Lease shall not
terminate but the Rent for the Lease Area shall abate during the time of such business
interference or be refunded if previously paid. If Lessor determines not to rebuild or
restore the Tower or Lease Area, Lessor will notify Lessee of such determination within
thirty (30) days after the casualty or other harm. Termination in such event shall be
affected by written notice of Lessee delivered to Lessor within thirty (30) days after Lessor
provides notice of its intention not to restore the Tower or Lease Area. Lessee shall
surrender possession within one hundred twenty (120) days after delivery of such notice,
and each party shall be released from all future obligations hereunder. Upon such
termination, Lessee will be entitled to collect all insurance proceeds payable to Lessee
on account thereof and to be reimbursed for any prepaid Rent on a pro rata basis. If space
is available, 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 Rent. If Lessor does not notify Lessee of its intent not to restore the
Tower and Lease Area, and Lessee decides not to terminate under this Section 15.1,
then Lessor will promptly rebuild or restore any portion of the Property interfering with or
required for Lessee's permitted use of the Lease Area to substantially the same condition
as existed before the casualty or other harm. If Lessor or Lessee undertakes to rebuild or
restore the Lease Area and/or the Wireless Telecommunication Antennae Facility, as
applicable, Lessor agrees to permit Lessee to place temporary transmission and
reception facilities on the Property at no additional Rent until the reconstruction of the
Lease Area and/or the Wireless Telecommunication Antennae Facility is completed.
15.2 Zoning. Should the zoning ordinance, regulatory permit, or any other action of the
Lessor or another governmental entity make it impossible for Lessee, using diligent and
timely effort to obtain necessary permits and to repair and/or rebuild so that Lessee is not
able to conduct its business on the Lease Area, then such partial destruction shall be
treated as a total destruction as in the next paragraph provided.
15.3 Total Destruction of Business Use. In the event of a destruction or damage of the
Tower or Lease Area so that Lessee is not able to conduct normal business operations,
specifically including the purposes identified above on the Lease Area or the then current
legal use for which the Lease Area is being used and which damages cannot be repaired
within sixty (60) days, this Lease may be terminated at the option of Lessee. If Lessor
determines not to rebuild or restore the Tower or Lease Area, Lessor will notify Lessee of
such determination within thirty (30) days after the casualty or other harm. Termination
in such event shall be affected by written notice of Lessee delivered to Lessor within thirty
(30) days after Lessor provides notice of its intention not to restore the Tower or Lease
Area. Lessee shall surrender possession within one hundred twenty (120) days after
delivery of such notice, and each party shall be released from all future obligations
hereunder. Upon such termination, Lessee will be entitled to collect all insurance
proceeds payable to Lessee on account thereof and to be reimbursed for any prepaid
Page 8 of 26
Rent on a pro rata basis. If space is available, 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 Rent. If Lessor does not notify
Lessee of its intent not to restore the Tower and Lease Area, and Lessee decides not to
terminate under this Section 15.3, then Lessor will promptly rebuild or restore any portion
of the Property interfering with or required for Lessee's permitted use of the Lease Area
to substantially the same condition as existed before the casualty or other harm. If Lessor
or Lessee undertakes to rebuild or restore the Lease Area and/or the Wireless
Telecommunication Antennae Facility, as applicable, Lessor agrees to permit Lessee to
place temporary transmission and reception facilities on the Property at no additional Rent
until the reconstruction of the Lease Area and/or the Wireless Telecommunication
Antennae Facility is completed.
SECTION 16. LESSOR'S WARRANTIES AND REPRESENTATIONS.
16.1 Lessor's Representation of Good Title. Lessor covenants and warrants that Lessor
is lawfully seized in possession of the Property, and that it has full right and authority to
enter into this Lease for the full Term hereof, and covenants and agrees that upon paying
the Rent provided for herein, and upon Lessee's performing the covenants and
agreements of this Lease required to be performed by said Lessee, that it will have, hold
and enjoy quiet possession of the Lease Area. Lessor represents and warrants to Lessee
that (i) the Lease Area are properly zoned for the conduct of the operation of Lessee's
business; (ii) 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 Lease Area under this Lease; (iii) 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 (iv) if the Property is or becomes encumbered
by a deed to secure a debt, mortgage or other security interest, then Lessor will endeavor
in good faith to provide promptly to Lessee a mutually agreeable subordination, non -
disturbance and attornment agreement executed by Lessor and the holder of such
security interest.
SECTION 17. ENVIRONMENTAL MATTERS.
17.1 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 Hazardous Substances, 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.
17.2 Lessee and Lessor covenant and agree to promptly notify the other of any release
of Hazardous Substance in, on or about the Lease Area or Property of which either party
suspects or has actual knowledge.
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17.3 Lessee covenants and agrees to promptly take any and all necessary and
appropriate response to fully address any release of Hazardous Substance for which
Lessee is responsible under this Section 17.3 following advance notice to Lessor. Such
response shall include, without limitation, notification to appropriate governmental
authorities, as may be required by law. Lessee shall seek and obtain the concurrence of
Lessor as to any such response. Lessee shall respond to such release to the full extent
required by law. In no event shall Lessee allow limitations or restrictions to be placed on
the Lease Area without the written consent of the Lessor.
17.4 Lessee covenants and agrees to not manufacture, treat or dispose of Hazardous
Substances at the Lease Area or allow the manufacture, treatment, or disposal of
Hazardous Substances on the Lease Area. Lessee shall use and store on the Lease Area
only those Hazardous Substances as are associated with its regular business activities,
and then only as allowed by law.
17.5 For the purposes of this Lease, "Hazardous Substance" or "Hazardous
Substances" means any hazardous or toxic substance, material or waste which is or
becomes regulated by any local government, the State of Iowa, or the United States
Government. It includes, without limitation, any material or substance that is (i) defined
as a "hazardous substance" or "hazardous waste" under Chapter 455B, Iowa Code, (ii)
petroleum and petroleum products, (iii) asbestos containing materials in any form or
condition, (iv) designated as a "hazardous substance" pursuant to 311 of the Federal
Water Pollution Control Act (33 U.S.C. § 1321), (v) defined as a "hazardous waste"
pursuant to § 1004of the Federal Resource Conservation and Recovery Act, 42 U.S.C.
§6901 et seq., (vi) defined as a "hazardous substance" pursuant to § 101 of the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.0
§ 9601 et seq., or (vii) defined as a "regulated substance" pursuant to Subchapter IX,
Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. § 6991
et seq. The term "Hazardous Substance" shall not include any air emissions discharged
into the atmosphere as allowed by a duly issued permit from the applicable governmental
agency.
17.6 Lessor agrees to hold harmless and indemnify Lessee from, and to assume all
duties, responsibilities and liabilities at the sole cost and expense of Lessor 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 subsurface or other contamination of the Property
with Hazardous Substances prior to the Term or from such contamination caused by the
acts or omissions of Lessor during the Term. Lessee agrees to hold harmless and
indemnify Lessor from, and to assume all duties, responsibilities and liabilities at the sole
cost and expense of Lessee 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 contamination
of the Property with Hazardous Substances caused by the acts or omissions of Lessee
during the Term. The foregoing indemnities shall survive the cessation, termination,
Page 10 of 26
abandonment or expiration of this Lease for a period of five years.
17.7 In the event Lessee becomes aware of any Hazardous Substances 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 Lease Area or
Property unsuitable for Lessee's use, or if Lessee believes that the leasing or continued
leasing of the Lease Area 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.
SECTION 18. INDEMNIFICATION.
18.1 Indemnification of Lessee. Except to the extent attributable to the negligent or
intentional act or omission of Lessee, its employees, agents or independent contractors,
and only to the extent allowed by law, Lessor will indemnify and save harmless Lessee
from and against all liabilities, obligations, claims, damages, penalties, causes of action,
costs and expenses (including, without limitation, reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted against Lessee by reason of (a) any
accident, injury to or death of persons or loss of or damage to property occurring on or
about the Lease Area resulting from any negligent act or omission of City, (b) any failure
on the part of Lessor to perform or comply with any of the terms of this Lease and (c) any
breach on the part of Lessor of any warranty or representation contained in Section 16,
or Section 17.
18.2 Indemnification of City. Except to the extent attributable to the negligent or
intentional act or omission of Lessor, its employees, invitees, agents or independent
contractors, Lessee will defend, indemnify and save harmless Lessor from and against
all liabilities, obligations, claims, damages, penalties, causes of action, costs and
expenses (including, without limitation, reasonable attorneys' fees and expenses)
imposed upon or incurred by or asserted against Lessor by reason of (a) any accident,
injury to or death of persons or loss of or damage to property occurring on or about the
Lease Area during the Term of this Lease and resulting from any negligence of Lessee
or anyone claiming by, through or under Lessee during the Term of this Lease; (b) any
failure on the part of Lessee to perform or comply in any material respect with any of the
material terms of this Lease; and (c) any material breach on the part of Lessee of any
warranty or representation contained in Section 17. In case any action, suit or proceeding
is brought against Lessor by reason of such occurrence, Lessee will, at Lessee's expense
and discretion, either defend such action, suit or proceeding, or cause the same to be
defended by counsel approved by City, which approval will not be unreasonably withheld.
18.3 Survival. The obligations and liabilities under this Section shall survive and
continue in full force and effect and shall not be terminated, discharged or released, in
whole or in part, irrespective of the termination or expiration of the Term of this Lease.
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SECTION 19. CONDEMNATION.
19.1 Entire Condemnation. If at any time during the Term of this Lease all or
substantially all of the Lease Area shall be taken in the exercise of the power of eminent
domain by any sovereign, municipality or other public or private authority, then this Lease
shall terminate on the date of vesting of title in such taking and any prepaid rent shall be
apportioned as of said date. Substantially all of the Lease Area thereon shall be deemed
to have been taken if the remaining portion of the Lease Area shall not be of sufficient
size to permit Lessee, in Lessee's sole discretion, to operate its business thereon in a
manner similar to that prior to such taking. The parties will each be entitled to pursue their
own separate awards in the condemnation proceeds.
19.2 Allocation of Award. Any award for such taking of all or substantially all of the
Lease Area shall be paid to the parties hereto in accordance with the following:
(1) To Lessor, the amount of the award attributable to the Lease Area,
determined as if this Lease was not in effect at the time of such award, excluding
therefrom the amount of the award attributable to new improvements constructed
by Lessee but not improvements existing at the commencement of the term of the
Existing Lease, and all other sums not directly attributable to the value of the land
constituting the Lease Area.
(2) To Lessee, the entire award except that portion allocated to Lessor above
including, where applicable, the value of its Wireless Telecommunication
Antennae Facility, moving expenses, prepaid Rent, and business dislocation
expenses. Lessee will be entitled to reimbursement for any prepaid Rent on a pro
rata basis.
19.3 Partial Condemnation.
(1) If less than all or substantially all of the Lease Area or the improvements
thereon shall be taken in the exercise of the power of eminent domain by any
sovereign, municipality or other public or private authority, then Lessee, at its
option, may elect to continue this Lease in full force and effect or terminate this
Lease. If Lessee shall elect to maintain this Lease in full force and effect, the
award for such partial condemnation shall be allocated as provided in Section 19.2,
and Lessee or Lessor, as applicable, shall proceed with reasonable diligence to
carry out any necessary repair and restoration so that the remaining improvements
and appurtenances shall constitute a complete structural unit or units which can
be operated on an economically feasible basis under the provisions of this Lease.
In the event Lessee elects to continue this Lease in full force and effect after a
partial condemnation, the Rent shall be reduced in proportion to the area of the
Lease Area taken.
(2) Should Lessee elect to terminate this Lease upon a partial condemnation,
Lessee shall provide Lessor with written notice of such election within thirty (30)
Page 12 of 26
days after the date of vesting of title for such taking. Lessee shall specify in such
written notice the date on which this Lease shall terminate, which date shall be not
less than 60 days nor more than 360 days after delivery of such notice to Lessor
(the Termination Date). In the event Lessee terminates this Lease, as provided
for in this Section 19.3(2) Lessee shall be entitled to the entire award for such
partial taking.
19.4 Temporary Taking. If the temporary use of the whole or any part of Lease Area or
the improvements thereon or the appurtenances thereto shall be taken at any time during
the Term of this Lease in the exercise of the power of eminent domain by any sovereign,
municipality, or other authority, the Term of this Lease shall not be reduced or affected in
any way, and Lessee shall continue to pay in full the Rent, additional rent and other sum
or sums of money and charges herein reserved and provided to be paid by Lessee, and
the entire award for such temporary taking shall be paid to Lessee. Lessee or Lessor, as
applicable, shall repair and restore any and all damage to the Lease Area and the
improvements as soon as reasonably practicable after such temporary taking.
SECTION 20. ASSIGNMENT AND SUBLETTING. Lessee may not encumber by
mortgage, deed of trust, or other instrument, the Lease Area. The Lease Area may not
be sublet. Lessee will have the right to assign, sell or transfer its interest under this Lease,
in whole or part, without Lessor's consent, to: Lessee's Affiliate, or any entity that acquires
all or substantially all of the Lessee's assets in the market as defined by the Federal
Communications Commission in which the Property is located. Upon notification to
Lessor of such assignment, transfer or sale, and upon assumption of all of Lessee's
responsibilities and obligations by such assignee, transferee or purchaser, as determined
by Lessor in its sole discretion, Lessee will be relieved of all future performance, liabilities
and obligations under this Lease. Lessee may not otherwise assign this Lease without
Lessor's consent, Lessor's consent not to be unreasonably withheld, conditioned or
delayed.
SECTION 21. DEFAULT.
21.1 Lessor's Rights in the Event of Lessee's Default. If Lessee shall fail or neglect to
observe, keep or perform any of the covenants, terms or conditions contained in this
Lease on its part to be observed, kept or performed, and the default shall continue for a
period of thirty (30) days after written notice from Lessor setting forth the nature of
Lessee's default (it being intended that in connection with a default not susceptible of
being cured with diligence within thirty (30) days, the time within which Lessee has to cure
the same shall be extended for such period as may be necessary to complete the same
with all due diligence, but in no event longer than ninety (90) days), then and in any such
event, Lessor shall have the right at its option, on written notice to Lessee, to terminate
this Lease. Lessor shall thereafter have the right to enter and take possession of the
Lease Area with process of law and to remove all personal property and Trade Fixtures
from the Lease Area and all persons occupying the Lease Area and to use all necessary
force therefor and in all respects to take the actual, full and exclusive possession of the
Lease Area and every part of the Lease Area as of Lessor's original estate, without
Page 13 of 26
incurring any liability to Lessee or to any persons occupying or using the Lease Area for
any damage caused or sustained by reason of such entry on the Lease Area or the
removal of persons or property from the Lease Area.
21.2 Lessee's Rights in the Event of Lessor's Default. The following will be deemed a
default by Lessor and a breach of this Lease: (i) Lessor's failure to provide access to the
Lease Area as required by Section 1.1 within twenty-four (24) hours after written notice
of such failure; (ii) Lessor's failure to cure an interference problem as required by Section
6 within twenty-four (24) hours after written notice of such failure; or (iii) if Lessor shall fail
or neglect to observe, keep or perform any of the other covenants, terms or conditions
contained in this Lease on its part to be observed, kept or performed, and the default shall
continue for a period of thirty (30) days after written notice from Lessee setting forth the
nature of Lessor's default (it being intended that in connection with a default, other than
as described in subsections (i) and (ii) above, not susceptible of being cured with diligence
within thirty (30) days, the time within which Lessor has to cure the same shall be
extended for such period as may be necessary to complete the same with all due
diligence, but in no event longer than ninety (90) days), then and in any such event,
Lessee shall have all rights available to it provided by law or equity.
SECTION 22. RIGHT TO CURE OTHER'S DEFAULTS. Whenever and as often as a
party shall fail or neglect to comply with and perform any term, covenant, condition or
agreement to be complied with or performed by such party hereunder, then, following
thirty (30) days' prior written notice to such defaulting party (or such additional time to
cure as may be accorded Lessee pursuant to this Section 22, but in no event longer than
ninety (90) days), the other party, at such other party's option, in addition to all other
remedies available to such other party, may perform or cause to be performed such work,
labor, services, acts or things, and take such other steps, including entry onto the Lease
Area and the improvements thereon, as such other party may deem advisable, to comply
with and perform any such term, covenant, condition or agreement which is in default, in
which event such defaulting party shall reimburse such other party upon demand, and
from time to time, for all costs and expenses suffered or incurred by such other party in
so complying with or performing such term, covenant, condition or agreement. The
commencement of any work or the taking of any other steps or performance of any other
act by such other party pursuant to the immediately preceding sentence shall not be
deemed to obligate such other party to complete the curing of any term, covenant,
condition or agreement which is in default.
SECTION 23. QUIET ENJOYMENT. Lessor covenants that at all times during the
Term of this Lease, so long as Lessee is not in default hereunder, Lessee's quiet
enjoyment of the Lease Area or any part thereof shall not be disturbed by any act of
Lessor, or of anyone acting by, through or under Lessor. Notwithstanding the foregoing,
Lessor shall have the right upon reasonably notice to Lessee to enter the Lease Area at
any time to determine whether Lessee is in compliance with the requirement of this Lease.
SECTION 24. ESTOPPEL CERTIFICATES. Each party hereto agrees that at any time
and from time to time during the Term of this Lease, within thirty (30) days after request
Page 14 of 26
by the other party hereto or by any lender having an interest in Lessee's leasehold estate,
it will execute, acknowledge and deliver to the other party or to such lender or any
prospective purchaser, assignee or any mortgagee designated by such other party, a
certificate stating (a) that this Lease is unmodified and in force and effect (or if there have
been modifications, that this Lease is in force and effect as modified, and identifying the
modification agreements), (b) the date to which Rent has been paid, (c) whether or not
there is any existing default by Lessee in the payment of any Rent or other sum of money
hereunder, and whether or not there is any other existing default by either party hereto
with respect to which a notice of default has been served, and, if there is any such default,
specifying the nature and extent thereof; and (d) whether or not there are any setoffs,
defenses or counterclaims against enforcement of the obligations to be performed
hereunder existing in favor of the party executing such certificate.
SECTION 25. WAIVER. No waiver by either party hereto of any breach by the other
of any term, covenant, condition or agreement herein and no failure by any party to
exercise any right or remedy in respect of any breach hereunder, shall constitute a waiver
or relinquishment for the future of any such term, covenant, condition or agreement or of
any subsequent breach of any such term, covenant, condition or agreement, nor bar any
right or remedy of the other party in respect of any such subsequent breach, nor shall the
receipt of any Rent, or any portion thereof, by Lessor, operate as a waiver of the rights of
Lessor to enforce the payment of any other Rent then or thereafter in default, or to
terminate this Lease, or to recover the Lease Area, or to invoke any other appropriate
remedy which Lessor may select as herein or by law provided.
SECTION 26. SURRENDER OF PREMISES; REMOVAL OF FIXTURES AND
IMPROVEMENTS.
26.1 Improvements. Lessee shall, within one hundred twenty (120) days after the last
day of the Term of this Lease or upon any termination of this Lease, surrender and deliver
up the Lease Area, with the improvements then located thereon into the possession and
use of City, without fraud or delay and in good order, condition and repair, reasonable
wear and tear excepted, free and clear of all lettings and occupancies, free and clear of
all liens and encumbrances other than those existing on the date of this Lease and those,
if any, created by City, without (except as otherwise provided herein) any payment or
allowance whatsoever by Lessor on account of or for any buildings and improvements
erected or maintained on the Lease Area at the time of the surrender, or for the contents
thereof or appurtenances thereto. Lessee is to restore the Lease Area to the condition it
was in immediately prior to the commencement of this Lease. And at the direction of
Lessor remove any and all improvements created by Lessee located on the Lease Area.
Failure by Lessee to surrender and deliver up the Lease Area within one hundred twenty
(120) days after the last day of the Term of this Lease shall cause a penalty payment
equal to one and a half times the prorata Rent to be applied on a daily basis as additional
rent until the Lease Area is fully vacated. If Lessor requires the improvements to be
removed, Lessor shall notify Lessee no less than ninety (90) days prior to the termination
of this Lease of such. Lessee shall have six months starting on the last day of the Term
of this Lease to fully complete the removal of the improvements to the extent directed by
Page 15 of 26
the City, in accordance with the ordinances and rules of the Lessor governing building
demolition. If Lessee fails to remove the improvements by the six-month deadline, Lessor
shall have the option to take over control of the building demolition and complete the work.
Any costs incurred by the Lessor through the actions described in this Section shall be
solely paid for by Lessee. Notwithstanding the foregoing, Lessee will not be responsible
for the replacement of any trees, shrubs or other vegetation, nor will Lessee be required
to remove from the Lease Area or the Property any structural steel or any foundations or
underground utilities.
26.2 Removal of Wireless Telecommunication Antennae Facility. Lessee's Wireless
Telecommunication Antennae Facility, personal property, equipment, materials and other
belongings of Lessee or of any sublessee or other occupant of space on the Lease Area
shall be and remain the property of Lessee, and Lessee shall have a reasonable time
after the expiration of the Term of this Lease (not to exceed one hundred twenty (120)
days) to remove the same. If Lessee fails to remove any Lessee's Trade Fixtures,
personal property, equipment, materials, or other belongings from the Lease Area within
120 days of the expiration date of this Lease, they will immediately become property of
the City. Any costs incurred by Lessor having to remove, relocate, handle, store, sell or
dispose of Lessee's Trade Fixtures described in this Section 26.2 shall be solely paid for
by Lessee.
26.3 Holding Over. Continued possession, beyond the expiration date of the Term of
this Lease, by Lessee, coupled with the acceptance of the specified Rent by the Lessor
and a written consent by Lessor for an extension of this Lease, shall constitute a month
to month extension of this Lease.
SECTION 27. MEMORANDUM OF LEASE. Each of the parties hereto will, promptly
upon request of the other, execute a memorandum of this Lease in a form suitable for
recording setting forth the names of the parties hereto and the Term of this Lease,
identifying the Lease Area, and also including such other clauses therein as either party
may desire, except the amounts of Rent payable hereunder.
SECTION 28. RIGHTS CUMULATIVE. The various rights, powers, options, elections
and remedies of either party, provided in this Lease, shall be construed as cumulative
and no one of them as exclusive of the others, or exclusive of any rights, remedies or
priorities allowed either party by law, and shall in no way affect or impair the right of either
party to pursue any other equitable or legal remedy to which either party may be entitled
as long as any default remains in any way unremedied, unsatisfied or undischarged.
SECTION 29. PROVISIONS TO BIND AND BENEFIT SUCCESSORS, ASSIGNS,
ETC. Each and every covenant and agreement herein contained shall extend to and be
binding upon the respective successors and assigns of the parties hereto.
SECTION 30. CONSTRUCTION. Words and phrases herein, including
acknowledgment hereof, shall be construed as in the singular or plural number, and as
masculine, feminine or neuter gender according to the context.
Page 16 of 26
SECTION 31. SEVERABILITY. If any term or provision of this Lease shall be held
invalid or unenforceable, the remainder of this Lease shall not be affected.
SECTION 32. NOTICES.
32.1 All notices, demands or other writings in this Lease provided to be given or made
or sent, or which may be given or made or sent, by either party to the other, shall be
deemed to have been fully given or made or sent when made in writing and deposited in
the United States mail, registered or by a nationally recognized overnight courier and
postage prepaid, addressed as follows:
TO LESSOR:
TO LESSEE:
City of Dubuque, Iowa
City Hall
50 West 13th Street
Dubuque IA 52001
Fax 319 589-4149
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site #: IAL03284
Cell Site Name: Dubuque Water Tank (IA)
Fixed Asset No.: 10082567
1025 Lenox Park Blvd. NE
3rd Floor
Atlanta, GA 30319
With a required copy of the notice sent to the address above to AT&T Legal
at:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Department
Re: Cell Site #: IAL03284
Cell Site Name: Dubuque Water Tank (IA)
Fixed Asset No: 10082567
208 S. Akard Street
Dallas, Texas, 75202-4206
A copy sent to the Legal Department is an administrative step which alone
does not constitute legal notice.
32.2 The address to which any notice, demand or other writing may be given or made
or sent to any party as above provided may be changed by written notice given by the
party as above provided.
Page 17 of 26
SECTION 33. MISCELLANEOUS.
33.1 Time of the Essence. Time is of the essence of this Lease and all its provisions.
33.2 Governing Law. It is agreed that this Lease shall be governed by, construed and
enforced in accordance with the laws of the State of Iowa.
33.3 Paragraph Headings. The titles to the paragraphs of this Lease are solely for the
convenience of the parties and shall not be used to explain, modify, simplify or aid in the
interpretation of the provisions of this Lease.
33.4 Modification of Lease. Any modification of this Lease or additional obligation
assumed by either party in connection with this Lease shall be binding only if evidenced
in a writing signed by each party or an authorized representative of each party.
33.5 Parties Bound. This Lease shall be binding on and shall inure to the benefit of and
shall apply to the respective successors and assigns of Lessor and Lessee. All
references in this Lease to Lessor or Lessee shall be deemed to refer to and include
successors and assigns of Lessor or Lessee without specific mention of such successors
or assigns.
33.6 Force Majeure. In the event that either party hereto shall be delayed or hindered
in or prevented from the performance of any act required hereunder by reason of strikes,
lockouts, labor troubles, unavailability of construction materials, unavailability or
excessive price of fuel, power failure, riots, insurrection, war, terrorist activities,
explosions, hazardous conditions, fire, flood, weather or acts of God, or by reason of any
other cause beyond the exclusive and reasonable control of the party delayed in
performing work or doing acts required under the terms of this Lease (collectively "Force
Majeure"), then performance of such act shall be excused for the period of the delay and
the period for the performance of any such act shall be extended for a period equivalent
to the period of such delay.
SECTION 34. RENTAL STREAM OFFER. If at any time after the term of this
Agreement, Lessor receives a bona fide written offer from a third party seeking an
assignment or transfer of the Rent payments associated with this Agreement ("Rental
Stream Offer"), Lessor shall immediately furnish Lessee with a copy of the Rental Stream
Offer. Lessee shall have the right within ninety (90) 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. If Lessee chooses not to exercise this right or fails to provide written
notice to Lessor within the ninety (90) day period, Lessor may assign the right to receive
Rent payments pursuant to the Rental Stream Offer, subject to the terms of this
Agreement. If Lessor attempts to assign or transfer rent payments without complying with
this Section, the assignment or transfer shall be void, Lessee shall not be responsible for
any failure to make payments under the Agreement and reserves the right to hold
payments due under the Agreement until Lessor complies with this Section.
Page 18 of 26
SECTION 35.TOWER DECOMMISSIONING AND REMOVAL. In the event Lessor shall
decommission or remove the Tower from the Property, Lessor shall give Lessee twelve
(12) months prior written notice and (a) provide Lessee, at Lessee's cost of relocation,
with an alternative location of similar size and height on a separate tower located at the
Property which must be fully compatible for Lessee's use, in Lessee's reasonable
determination, and the parties shall amend this Lease to document the alternative
location, which amendment shall not include an increase in Rent; or (b) permit Lessee to
install, own and operate, at its sole cost and expense, a new communications tower at
the Property and the parties shall amend this Lease to document the installation of the
new Lessee tower, which amendment shall reduce Rent by 50% so long as the installation
of the Lessee tower does not restrict or conflict with Lessor's installation of its own
communication tower on the site. Lessee shall be permitted to install a temporary
communications tower at the Property until such time as the new Lessee tower is installed
and the Lessee equipment is operational on the new Lessee tower. Lessee shall comply
with all applicable standards, statutes, ordinances in effect and Lessee shall
communicate and coordinate with the Lessor all construction activities. In the event
Lessee installs a new communications tower at the Property pursuant to Section 35(b)
above and Lessee subleases the use of the new communications tower and ground
space to a subtenant, then any such subtenant shall be required to pay directly to Lessor
a sublease fee of $3,000 per year ("Sublease Fee") during the term of such sublease,
which shall be increased annually by 3%. The Sublease Fee shall commence on the first
day of the month following the effective date of the sublease. Failure by any subtenant to
pay the Sublease Fee to Lessor shall not be considered a default by Lessee under this
Lease.
END OF AGREEMENT
Page 19 of 26
LESSOR:
CITY OF DUBUQUE, IOWA
By:
Roy D,uol, Mayor
Attest:
evin Firns a1hl, City Clerk
LESSEE:
NEW CINGULAR WIRELESS PCS, LLC
a Delaware limited liability company
By: AT&T MOBILITY CORPORATION
Its: Manager
By:
Print Name: 14cFj 1*{'
Title: tot 03410§
Date: kj+
Page 20 of 26
EXHIBIT A
LEGAL DESCRIPTION
Lots 23 & 24 of the Finley Home Addition in Dubuque, Iowa.
Page 21 of 26
EXHIBIT B
SITE PLAN
1511
County Emergency Management
Page 22 of 26
EXHIBIT C
CITY OF DUBUQUE INSURANCE
1. New Cingular Wireless PCS, LLC shall furnish a signed certificate of insurance to
the City of Dubuque, Iowa for the coverage required in Exhibit C prior to the
lease, license, or permit commencement. All lessees of City property and right of
way licensees or permittees shall submit an updated certificate annually. Each
certificate shall be prepared on the most current ACORD form approved by the
Iowa Insurance Division.
2. All policies of insurance required hereunder shall be with an insurer eligible to do
business in Iowa and all insurers shall have a rating of A minus or better in the
current AM Best's Rating Guide.
3. Each certificate shall be furnished to the Finance Department of the City of
Dubuque.
4. The lessee, licensee, or permittee shall be required to carry the coverage/limits
stated, or greater if required by law or other legal agreement, in Exhibit I. Failure
to provide the required coverage shall not be deemed a waiver of such
requirements by the City of Dubuque.
5. Failure to obtain or maintain the required insurance shall be considered a
material breach of the lease, license, or permit.
6. All required endorsements shall be attached to certificate.
7. Whenever a specific ISO form is referenced the current edition of the form must
be used unless an equivalent form is approved by the Finance Director.
8. Lessee, licensee or permittee shall endeavor to require all subcontractors and
sub -subcontractors to obtain and maintain during the performance of work
insurance for the coverages described in this Insurance Schedule and shall
obtain certificates of Insurance from all such subcontractors and sub -
subcontractors. Lessee, licensee, or permittee agrees that it shall be liable for the
failure of a subcontractor and sub -subcontractor to obtain and maintain such
coverage. The City may request a copy of such certificates from the lessee,
licensee or permittee.
9. Lessee, licensee or permittee shall be responsible for deductibles and self -
insured retention.
Page 23 of 26
Exhibit C (Continued)
A) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $20,000,000
Products -Completed Operations Aggregate limit $20,000,000
Personal and Advertising Injury Limit $10,000,000
Each Occurrence $10,000,000
Fire Damage Unlit (any one occurrence) $50,000
1) Required Coverage shall be written on an occurrence, not clams made,
form. The general liability coverage shall be written in accord with ISO
form CG0001 or business owners form BP0002.
2) Include endorsement indicating that coverage is primary and non-
contributory
3) Include Preservation of Governmental Immunities Endorsement (Sample
attached)
4) Include additional insured evidence for The City of Dubuque, including all
its elected and appointed officials, all its employees and volunteers, all its
boards, commissions and/or authorities and their board members,
employees and volunteers Use ISO form CG 20 10 (Ongoing operations)
or its equivalent
5) Policy shall include Waiver of Right to Recover from Others endorsement.
B) WORKERS' COMPENSATION & EMPLOYER'S LIABILITY
Statutory benefits covering all employees inured on tore tot by accident or
disease as prescribed by Iowa Code Chapter 85 as amended.
Coverage A Statutory —State of Iowa
Coverage B Employers Liability
Each Accident $100,000
Each Employee -Disease $100,000
Policy Limit -Disease $500,000
Policy shall include Waiver of Right to Recover from Others endorsement
Nonelection of Workers' Compensation or Employers' Liability Coverage under
Iowa Code sec 87.22
Page 24 of 26
Exhibit C (Continued)
C) ENVIRONMENTAL IMPAIRMENT LIABILITY OR POLLUTION LIABILITY
Coverage required: yes X no
Pollution liability coverage shall be required if the lessee, contracting party, or
permittee has any pollution exposure for abatement of hazardous or
contaminated materials including, but not limited to, petroleum products, the
removal of lead, asbestos, or PCBs.
Pollution product and completed operations coverage shall also be covered.
Each occurrence $2,000,000
Policy Aggregate $4,000,000
1) Policy to include job site and transportation coverage.
2) Include additional insured for:
The City of Dubuque, including all its elected and appointed officials,
all its employees and volunteers, all its boards, commissions and/or
authorities and their board members, employees and volunteers. Use
ISO form CG 2010.
(Ongoing operations) as stated in A(6) above or its equivalent.
3) Include Preservation of Governmental Immunities Endorsement.
4) Provide evidence of coverage for 5 years after completion of project.
D) PROPERTY INSURANCE OR SELF-INSURANCE REQUIRED BY LEASE,
LICENSE, OR PERMIT
X yes no
Evidence of property coverage provided: yes
Included the City of Dubuque as Lender Loss Payable.
E) UMBRELLA/EXCESS $,000,000
_yes X no
Umbrella/excess liability coverage must be at least following form with the underlying
policies included herein.
Page 25 of 26
Exhibit C (Continued)
PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmental immunity. The insurer expressly agrees and states
that the required commercial general liability insurance and the including of the City of
Dubuque Iowa as an Additional Insured does not waive any of the defenses of
governmental immunity available to the City of Dubuque, Iowa under Code of Iowa
Section 670 4 as it is now exists and as it may be amended from time to time.
2. Claims Coverage. The insurer further agrees that this policy of insurance shall
cover only those claims not subject to the defense of governmental immunity under the
Code of Iowa Section 670.4 as it now exists and as it may be amended from time to
time. Those claims not subject to Code of Iowa Section 670 4 snail be covered by the
terms and conditions of this insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be
responsible for asserting any defense of governmental immunity, and may do so at any
time and shall do so upon the timely written request of the insurer.
4. Non -Denial of Coverage. The insurer shall not deny coverage under this policy
and the insurer shall not deny any of the rights and benefits accruing to the City of
Dubuque, Iowa under this policy for reasons of governmental immunity unless and until
a court of competent jurisdiction has ruled in favor of the defenses) of governmental
immunity asserted by the City of Dubuque Iowa.
No Other Chance in Policy The above preservation of governmental immunities shall
not otherwise change or alter the coverage available under the policy.
Page 26 of 26
STATE OF IOWA SS:
DUBUQUE COUNTY
CERTIFICATE OF PUBLICATION
I, Kathy Goetzinger, a Billing Clerk for Woodward
Communications, Inc., an Iowa corporation, publisher
of the Telegraph Herald, a newspaper of general
circulation published in the City of Dubuque, County
of Dubuque and State of Iowa; hereby certify that the
attached notice was published in said newspaper on the
following dates:
04/10/2020
and for which the charge is 60.14
Subscribed to before nt/, a Notary Public in and for
Dubuque County, Iowa,
this l0th day of April, 2020
Notary PuiSlic{ in and for Dubuque County, Iowa.
JANE'T K. PAPE
Commission Number 198e69
My Comm„ Exp. DEC 11, 2fl22
Ad text :
CITY OF DUBUQUE, IOWA
OFFICIAL NOTICE
PUBLIC NOTICE is hereby given that the City Council of the
City of Dubuque, Iowa, will hold a public hearing on the 20th
day of April 2020 at 6:30 p.m. in the Historic Federal
Building, (and/or by virtual means), 350 West 6th Street,
second floor, Dubuque, Iowa, at which meeting the City Council
proposes to dispose of an interest in the following described
real property by amended and restated lease agreement to New
Cingular Wireless, LLC (d/b/a Verizon Wireless):
Lots 21, 22 and 23, Finley Home Addition to the City of
Dubuque, Dubuque County, Iowa. and Lot 2 in Finley Home
Addition No. 2, in the City of Dubuque, Dubuque County, Iowa
(the Property), locally known as 1575 West Third Street,
Dubuque, Iowa; and
For the meeting, the City Council will receive written
comments from any resident or property owner of said City to
the above action. Written comments regarding the above public
hearing may be submitted to the City Clerk's Office, City
Hall, 50 W. 13th Street, on or before said time of public
hearing or at ctyclerk@cityofdubuque.org.
Copies of supporting documents for the public hearings are
on file in the City Clerk's Office and may be viewed during
normal working hours or online at
https://www.cityofdubuque.org/agendas.
Individuals with limited English proficiency, vision,
hearing or speech impairments requiring special assistance
should contact the City Clerk's Office at (563) 589-4100, TDD
(563) 690-6678, ctyclerk@cityofdubuque.org as soon as
feasible. Deaf or hard -of -hearing individuals can use Relay
Iowa by dialing 711 or (800) 735-2942.
In the event that a meeting at the Historic Federal Building
location is not possible as a result of the COVID-19 pandemic,
instructions for a virtual meeting and public input will be
posted on the meeting agenda on Friday, April 17, 2020 at
https://www.cityofdubuque.org/agendas.
Dated this loth day of April 2020.
Kevin S. Firnstahl, CMC
City Clerk
RESOLUTION
NO. 104-20
INTENT TO DISPOSE OF AN INTEREST IN REAL PROPERTY OWNED BY
THE CITY OF DUBUQUE BY LEASE BETWEEN THE CITY OF DUBUQUE, IOWA
AND NEW CINGULAR WIRELESS PCS, LLC
WHEREAS, the City of Dubuque, Iowa (City) owns the real
property legally described as follows:
Lots 21, 22 and 23, Finley Home Addition to the City of
Dubuque, Dubuque County, Iowa. and Lot 2 in Finley Home
Addition No. 2, in the City of Dubuque, Dubuque County, Iowa
(the Property), locally known as 1575 West Third Street,
Dubuque, Iowa; and
WHEREAS, City and New Cingular are parties to a certain
Water Tank & Ground Space Lease dated May 21, 2001 (the
"Existing Lease"); and
WHEREAS, City and New Cingular have negotiated an Amended
and Restated Lease Agreement for the Property, a copy of which
Amended and Restated Lease Agreement is on file at the office
of the City Clerk, City Hall, 13th and Central Avenue,
Dubuque, Iowa, for the installation and operation of a
cellular radio -telephone communication antenna facility; and
WHEREAS, the City Council believes it is in the best
interests of the City of Dubuque to approve the proposed
Amended and Restated Lease Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF DUBUQUE, IOWA THAT:
Section 1. The City of Dubuque intends to dispose of its
interest in the Property by Amended and Restated Lease
Agreement between City and New Cingular Wireless PCS, LLC.
Section 2. The City Clerk is hereby authorized and directed
to cause this Resolution and a notice to be published as
prescribed by Iowa Code Section 364.7 of a public hearing on
the City's intent to dispose of the Property, to be held on
the 20th day of April, 2020, at 6:30 p.m. at the Historic
Federal Building, Council Chambers, 350 W. 6th Street,
Dubu-que, Iowa.
Passed, approved and adopted this 6th day April 2020.
Roy D. Buol, Mayor
Attest: Kevin S. Firnstahl, City Clerk
It 4/10
January 30, 2020
The City of Dubuque, Iowa
Attn: Kevin S. Firnstahl
50 West 13th Street
Dubuque, IA 52001
Re: FA Number: 10082567
Ce11 Site Name: Dubuque Water Tank
1575 West Third Street, Dubuque, IA 52001
Dear Mr. Firnstahl,
Dr
?0J N31 'f 12:.4C�
City Clerk's Office
Dubuque, IA,
The enclosed documents are being provided to you in connection with the proposed AT&T Lease
Amendment. Please call me at 858.291.1822 when you receive this package and I will guide you through
the process of signing the following:
1. Amended and Restated Lease Agreement (three originals):
' complete the signature block with signatures and dates; and
Only authorized signatories may sign on behalf of an entity.
2. Certificate of Authority — Municipality (one original): 6,(1f4 '/
/77)—' 0 Complete the enclosed form per the instructions;
;�,s 0 Attach a copy of the Municipal By -Laws for The City of Dubuque, Iowa; and
0 Please include any and all amendments to any of the foregoing documents.
A return -addressed, pre -paid Federal Express envelope is included for your convenience (to locate the
nearest drop-off, call 800.463.3339 or visit www.fedex.com/dropoff). Although we will be sending you a
complete set of documents at the end of this transaction, you are free to make your own copies at this time
if you wish. However, it is important that you return all of the original documents enclosed in this package.
Please make sure that all of these documents are signed and returned to Md7 within the next three days.
Once all documents relating to this transaction have been fully -executed, AT&T will provide you with a
complete set of final transaction documents.
If you have any questions regarding the enclosed documents, please contact me at (858) 291-1822 or by
email at jremen a,md7.com.
Sincerely,
Jennifer Remen
Enclosures
at&t
RECEIVED
11 OCT 17 PM 12: 34
City Office
DubuqL:e, IA
Via Certified Mail
Tracking Number 7009 0080 0000 4013 661 1
September 23, 2011
CITY OF DUBUQUE
50 West 13th Street
Dubuque IA 52001
AT&T Mobility
5405 Windward Parkway
Alpharetta. GA 30004
FA#: 10082567
SITE NAME: DBQ284A
MARKET: ND/SD/NE/MN/IA
AGREEMENT ID: 72247
Subject: Notice of Intent to Extend Lease Term for Site DBQ284A
Dear Lessor:
Please accept this letter as written notification that New Cingular Wireless PCS, LLC
d/b/a AT&T Mobility successor to TELECORP REALTY, LLC is extending the term of this
Lease for an additional 5 year term from June 14, 2011 through June 13, 2016.
Should you have any questions regarding the above, please contact me on our toll -free number,
877-231-5447. To expedite processing of your request, please reference the site name as found
on the subject line of this letter on all communications.
Sincerely,
William Armstrong
Real Estate Specialist
cc: Cingular Wireless Project Manager
File
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Copyrighted
March 18, 2019
City of Dubuque Consent Items # 11.
ITEM TITLE: AT&T Comments on Small Cell Guidelines
SUM MARY: Senior Counsel submitting correspondence from AT&T
regarding the City of Dubuque's Small Cell Guidelines
adopted at the January 7, 2019 City Council meeting.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File
ATTACHMENTS:
Description Type
Staff Memo Staff Memo
Gentry Letter - AT&T Comments Supporting Documentation
Masterpiece on the Mississippi
BARRY A. LINDAHL, Es
SENIOR COUNSEL
To:
DATE: March 6, 2019
RE:
Mayor Roy D. Buo d
Members of the Citj Council
City of Dubuque Small Cell Guidelines
Dubuque
2007.2012
2013.2017
At the January 7, 2019 City Council meeting, the City Council adopted the Small Cell
Design Guidelines for the City of Dubuque.
Attached for your information is a letter from AT&T with AT&T's initial comments on the
Guidelines. AT&T indicates that it will provide additional comments at a later date.
We will be happy to meet with AT&T to discuss any specific issues the company may
have on applications for small cells.
BAL:tls
Attachment
cc: Michael C. Van Milligen, City Manager
Crenna M. Brumwell, City Attorney
Craig Nowack, Cable Administrator
Chris Kohlmann, Information Services Manager
FAUsers tsteckle\ LindataMemos MayorCouncil_City0fDubuqueSmallCellGuidelines_030619.docx
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAX (563) 583-1040 / EMAIL balesq@cityofdubuque.org
Caroline H, Gentry
cgentry@porterwright.com
Porter Wright
Morns & Arthur LLP
One South rwtain Street
Suite 1600
Dayton, Ohio 45402
Direct: 937.449-6748
Fax: 937.449.6820
Main: 937-449-6810
fight. ,cm
wright
CINCINNATI
CLEVELAND
COLUMBUS
DAYTON
NAPLES
PITTSBURGH
WASHINGTON, DC
January 14, 2019
VIA E-MAIL — rdbuol aAcitvofdubuque.orq; rlones an-cityofdubuque.orq;
dresnickAcityofdubuque.org; bshaw(ar7cityofdubuque.orq;
Ideltoro a(�,cityofdubuque.orq; kmlarsont-a'�-cityofdubuque.orq;
jrios n.cityofdubuque.orq; ctvmora,cityofdubuque.orq
City of Dubuque City Council
50 W.13th St.
Dubuque, IA 52001
RE; AT&T's Initial Comments to (1) City of Dubuque
Small Cell Design Guidelines, and (2) Ordinance
Establishing Small Cell Aesthetic Guidelines
Program
Dear Mayor Buol, Council Members Jones, Resnick, Shaw, Del Toro, Larson
and Rios, and City Manager Van Milligen:
I write on behalf of New Cingular Wireless PCS, LLC d/bia AT&T
Mobility (AT&T) to provide AT&T's initial commentsonthe City's proposed
ordinance to establish a Small Cell Aesthetic Guidelines Program ("Proposed
Ordinance'`) and to adopt draft Small CeII Design Guidelines ("Draft
Guidelines"). We note that the agenda and materials for tonight's meeting
indicate that the City Council plans to take the extraordinary step of adopting
the Proposed Ordinance and Draft Guidelines on initial reading. Given the
importance and complexity of this legislation, AT&T respectfully requests and
recommends that the Council pause its deliberations briefly in order to be able
toconsider input from the wireless services industry.
AT&T appreciates the City's effort to update its laws based on recent
advancements in wireless technologies and the Federal Communications
Commission's Infrastructure Order. AT&T also appreciates the City's intention
to "[e]nhance the ability of wireless communications carriers to deploy small
cell wireless technology in the City quickly, effectively and efficiently so that
residents, businesses and visitors benefit from ubiquitous and robust wireless
service availability," as well as the City's recognition of its obligation to
"[c]om?ly with, and not conflict with or preempt, all applicable state and federal
laws."
The following are initial comments AT&T has regarding the Proposed
Ordinance and Draft Guidelines. AT&T reserves its right to provide addition&
comments at a later date when it has had the opportunity to review and
consider these documents in greater detail.
' See In the Matter of Accelerating Wireless Broadband Deployment by
Removing Barriers to Infrastructure Investment (WT Docket No. 17-79),
Declaratory Ruling and Third Report and Order, FCC 18-133 (September 27,
2018) ("Infrastructure Order") (effective date Jan. 14, 2019).
2 Draft Guidelines, Section I.
City of Dubuque City Council
January 14, 2019
Page 2
Restrictions On The Siting Of Small Wireless Facilities. Numerous provisions in the Draft
Guidelines wrongly suggest that the City is authorized to control a wireless service provider's choice
of locations for its small wireless facilities. These provisions include, but are not limited to, Section V
titled "Consideration of Alternate Locations," a Section VI provision titled "Location of Equipment -
General," a Section IX provision that only permits consideration of new wireless support structures if
existing utility poles are not available for collocation, provisions that require small wireless facilities to
be installed at least eight (8) feet above ground level, and provisions that only permit installation on
signage poles that are taller than fifteen (15) feet. State law unambiguously provides that, with limited
exceptions, the City "shall not prohibit or restrict the siting of a small wireless facility The term
"siting" refers to "the mounting, installation, maintenance; modification, operation, or replacement of a
small wireless facility on or adjacent to" existing or new utility; poles (a broadly defined term in the
Iowa Cell Siting Act ), wireless support structures, or other existing structures In addition, State law
provides that the City shall not "[e]valuate an application based on the availability of other potential
locations for the placement or construction of a tower or transmission equipment" 6 or "regulate the
installation, location, or use of transmission equipment on a utility pole." Further; State law only
allows the City to deny applications for small wireless facilities under limited circumstances that do
not include the City's preference for another location.° AT&T requests that the City delete all
provisions in its Draft Guidelines that are either inconsistent with or in direct conflict with, State law.
2. Minimum Spacing Requirements; AT&T objects to the minimum spacing requirements in the Draft
Guidelines, i.e., the "Collocation Preference" provision in Section IV. and the"New Wireless Support
Structures: Spacing" provision in Section VI. The FCC cautions that minimum spacing requirements
are unlawful unless they are (1) reasonable, (2) no more burdensome than those applied to other
types of infrastructure deployments, and (3) objective and published in advance.° Minimum spacing
requirements that, "in effect, prevent a provider from replacing its preexisting facilities or collocating
new equipment on a structure already in use" are almost certainly unlawful. ° Further, placing limits
on a wireless service provider's ability to densify its wireless network may materially inhibit the
provision of wireless services and thereby constitute an unlawful effective prohibition."
3. Undergroundinq Requirement, AT&T objects to the provision titled "Undergrounded Equipment
Vaults" in Section VI of the Draft Guidelines, which states that "[e]quipment in an .environmentally
controlled underground vault may be required in some areas where technologically feasible and
appropriate for the location." To comply with federal law, undergrounding requirements must be "(1)
reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments,
and (3) objective and published in advance."12 To be reasonable, such requirements must be
technically feasible.13 A limitation on above ground wireless facilities may not be technically feasible
3 Iowa Code Sec. 8C.7A(1)(a) (emphasis added).
4 Iowa Code Sec. 8C.2(14) ("Utility pole" means a pole or similar structure owned or utilized in whole or in
part by a public utility, municipality, wireless service provider, or electric utility that is designed specifically
for and used to carry lines, cable, transmission equipment, or wires for telephone, wireless service, cable
television, or electricity service, or for lighting, the vertical portion of support structures for traffic control
signals or devices, signage, information kiosks, or other similar functions.").
S Iowa Code Sec. 8C.7A(1)(b).
8 Iowa Code Sec. 8C.3(2)(a)..
Iowa Code Sec. 8C.7.
8 Iowa Code Sec. 8C.7A(3)(c)(3).
° Infrastructure Order at ¶ 86-87.
1QId. at¶91.
11 Id, at ¶ 37.
12 Id. at ¶¶ 86, 90.
13 Id. at ¶ 87.
City of Dubuque City Council
January 14, 2019
Page 3
or reasonable, particularly in light of the FCC's finding that "a requirement that all wireless facilities be
deployed underground would amount to an effective prohibition given the propagation characteristics
of wireless signals."14 Wireless facilities cannot operate with all of their equipment underground. For
example, radio units must be placed above ground in order to be near enough to the antennas to
function properly. The objected -to provision also may effectively prohibit wireless services in violation
of the Telecommunications Act of 1996. It should be modified to be consistent with federal law or
deleted.
4. Overall Height Limitations. AT&T objects to the overall height limitations in the Draft Guidelines to
the extent that they conflict with State or federal law. For example, the "Height Above Ground"
provision in Section VI limits the height of wireless support structures or utility poles to thirty (30) feet
in certain circumstances, but State law permits those structures to reach up to forty (40) feet above
ground levelt5 and federal law permits them to reach up to fifty (50) feet in height.1 These provisions
of the Draft Guidelines should be modified to be consistent with State and federal law.
5. Antenna Height Limitations, The "Height Above Ground" provision in Section VI of the Draft
Guidelines further provides that "the antenna and any associated shroud or concealment material ..,
shall not increase the height of the existing wireless support structure by more than five (5) feet." This
restriction conflicts with 47 CFR 1.6002(I)(1), which allows small wireless facilities to be mounted
either "on structures 50 feet or less in height including their antennas" or "on structures no more than
10 percent taller than other adjacent structures," or to be installed if they "do not extend existing
structures on which they are located to a height of more than 50 feet or by more than 10 percent,
whichever is greater." AT&T requests that this provision of the Draft Guidelines be revised to be
consistent with federal taw.
6. Aesthetics and Feasibility: Federal Law, The. Draft Guidelines contain many design requirements
and limitations for small wireless facilities. As just one example, Section Vill requires each applicant
to submit a proposal to camouflage any new wireless support structure and, further, to provide
landscaping of sufficient quantity and size "such that 100% screening is achieved within two years of
installation." The FCC concluded that aesthetic requirements are not preempted under federal law if
they are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure
deployments, and (3) objective and published in advance.'' The FCC explained that aesthetic
requirements are reasonable if "they are technically feasible and reasonably directed to avoiding or
remedying the intangible public harm of unsightly or out -of -character deployrents." 15The FCC also
noted that "aesthetic requirements that are more burdensome than those the state or locality applies
to similar infrastructure deployments are not permissible, because such discriminatory application
evidences that the requirements are not, in fact, reasonable and directed at remedying the impact of
the wireless infrastructure deployment."19 Thus, AT&T asks that the City verify that each of the
proposed design requirements and limitations set forth in the Draft Guidelines satisfies each of these
standards. namely, that each requirement or limitation is technically feasible, reasonably directed to
preventing unsightly or out -of -character deployments, and no more burdensome than those applied to
other types of infrastructure deployments in rights -of -way.
14 Id. at ¶ 90.
15 Iowa Code Sec. 8C.7C(1).
16 47 C.F.R. 1.6002(1).
17 Infrastructure Order at ¶ 86.
18 Id. at IT 87.
19 Id.
City of Dubuque. City Council
January 14, 2019
Page 4
7. Aesthetics and Feasibility: State. Law. State law permits the City to "[r]equire that a small wireless
facility reasonably match the aesthetics of an existing utility pole or wireless support structure that
incorporates decorative elements."20 AT&T objects to the Draft Guidelines to the extent that they
exceed the City's authority to impose aesthetic requirements under State law. See, e.g., Section VI:
Guidelines on Placement (requiring small cell facilities and wireless support structures to "match the
materials and finish of the adjacent utility poles" without regard to reasonableness or the existence of
decorative elements).
8. Requirement To Pay For Public Improvements. A provision in Section VI of the Draft Guidelines
titled "Lighting, Planters, Flags. Banners" allows the City to "require the applicant to install functional
streetlights and/or brackets to hold hanging flower planters, flags and/or banners when technically
feasible and the City determines that such additions will enhance the overall appearance and
usefulness of the proposed facility." AT&T objects to any provision that may require it to make and
pay for public improvements that solely benefit the City and the public, and therefore should be paid
for by the City. Because this requirement is neither reasonable nor equally burdensome for other
types of infrastructure deployments, it is not permitted by federal Iaw21 and should be deleted.
9. Other Permits and Approvals. The Draft Guidelines require certain additional permits or approvals
as conditions of completeness of an application. For example, a provision in Section VI of the Draft
Guidelines titled "City -Owned Wireless Support Structures" requires applicants to submit an industry
standard pole load analysis that is completed, sealed and signed by a Professional Engineer licensed
and registered by the State of lowa. Under the Infrastructure Order, multiple authorizations and
permits may be required as part of a small wireless facility installation. However, AT&T highlights to
the City that all associated permits, approvals and conditions of completeness are subject to, and will
not delay the start of,22 the applicable shot docks under State law.23
10. Definitions Inconsistent With State Law. The definitions of several terms in Section 2 of the Draft
Guidelines -namely, collocation, small wireless facility, utility pole and wireless support structure
are substantively different from the definitions of these terms in the Iowa Cell Siting Act.24 Conflicting
definitions may cause confusion when determining each party's rights and obligations under State
and local law. For example, although State and local law both impose a limitation of twenty-eight (28)
cubic feet for all wireless equipment associated with a small cell facility exclusive of the antenna,
State law exempts more types of equipment from the volume calculation than do the Draft
Guidelines.Z5 Because AT&T is not aware of any reason for the City to define these terms differently
than State law, it requests that the definitions in the Draft Guidelines be modified to be consistent with
State law.
1. Other Conflicts With State Or Federal Law. AT&T objects to each and every provision of the Draft
Guidelines to the extent that it conflicts with State or federal law.
20 Iowa Code Sec 8C.7(A)(b)(3) (emphasis added).
21 Infrastructure Order at ¶¶ 86-87.
22 Id. at 11145 ("We also find that mandatory pre -application procedures and requirements do not toll the
shot clocks.... [I]f an applicant proffers an application, but a state or locality refuses to accept it until a pre -
application review has been completed, the shot clock begins to run when the application is proffered. In
other words, the request is "duly filed" at that time, notwithstanding the locality's refusal to accept it.")
(quoting 47 U.S.C. Sec. 332(c)(7)(B)(ii)).
3 E.g., Iowa Code Sec. 8C.5. Cf. 47 C.F.R. 1.6003.
24 Iowa Code Sec. 8C.2(5), (10A), (14) & (15).
25 Compare Iowa Code Sec. 8C.2(10A)(2)(b)) with Draft Guidelines Sec, II.
City ofDubuque City Council
January 14.2019
Page
Conclusion
By submitting these initial comments, AT&T does not waive any of its legal rights under federal or
State law. Rather, AT&T submits these comments to assist the City with its Proposed Ordin@nce and
Draft Guidelines, Given the yehouanaon and complexity of these inyueo. AT&T respectfully asks that the
City not vote on this Agenda item tonight and instead allow time to collaborate on the issues identified
above.
Very truly yours,
Caroline H. Gentry
cc: Crenna M. Brumwell, City Attorney
CITY OF DUBUQUE, IOWA
MEMORANDUM
March 27, 2001
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Proposed Lease of Space to Telecorp Realty, LLC, for a Telecommunication
Antenna Facility on the City's Elevated Water Tank at 1525 West Third Street
Cable Franchise Administrator Merrill Crawford is recommending execution of a lease with
Telecorp Realty, LLC, for a telecommunications antenna facility on the City's elevated water
tank at 1525 West Third Street. The lease would be for a period often years, with three optional
five-year extensions. The annual rent would be $13,200, which would be escalated annually by
the greater of three percent, or the percentage increase of the CPI.
I concur with the recommendation and respectfully request Mayor and City Council approval.
44,7
ichael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Merrill Crawford, Cable Franchise Administrator
czs
(NI
THE CITY OF
DUB
Cable Television Division
City Hall Annex, 1300 Main Street
Dubuque, Iowa 52001
(319)589-4181
March 20, 2001
MEMO TO: Michael C. Van Milligen, City Manager
FROM: Merrill Crawford, Cable Franchise Administrator
SUBJECT: Proposed Lease of Space to Telecorp Realty, LLC, for a Telecommunication
Antenna Facility On The City's Elevated Water Tank at 1525 West Third Street
INTRODUCTION: The purpose of this memorandum is to recommend that the City lease space
on its water tank site W-2, located at 1525 West Third Street, and adjacent ground space, to
Telecorp Realty, LLC, an Arlington, VA company, to support a wireless telecommunication
antennae facility.
BACKGROUND:
A representatives of Telecorp Realty, LLC, a wireless telecommunications service provider, has
proposed leasing space on the lower catwalk the City's elevated water tank at 1525 West Third
St., (Site W-2) and adjacent ground space, to support communication antennae, cable, and a set
of equipment cabinets as a part of a wireless network they are extending into the Dubuque area.
Three other wireless telecommunications service providers, US Cellular, Nextel, and Iowa
Wireless, currently operate similar facilities on the property in accordance with leases
comparable to that proposed for Telecorp.
Highlights of the Proposed Lease
Telecorp would be permitted to attach a set of antennas to the existing lower catwalk which
extends around the circumference of the tank, and to route transmission cables down a
supporting leg to the ground. Telecorp would also install and maintain a set of three equipment
cabinets (with permitted future addition of another 3) on a concrete slab on the ground to house
transmission equipment, and would pay all utility costs associated with the operation. Antennas
would be painted to match the water tower, and the placement and color of the equipment
cabinets would be coordinated with the water tank and existing buildings. Additional arbor vitae
would be planted along the inside of the security fence which separates the facility from the
adjacent Cancer Survivors Park. Any future changes would be subject to City approval.
Term of the lease would be 10 years, with three optional 5-year extensions.
Service People Integrity Responsibility Innovation Teamwork
Telecorp would pay to the City an annual rent beginning at $13,200 and escalated annually by the
greater of 3 percent or the percentage increase, of the CPI. In the unlikely event of an early
termination of the lease, the Lessee would .pay an additional amount equal to 50 percent of the
rent due for the year in which early termination occurred. In addition, the company would
provide a performance bond in the amount of $10,000 during the full term of the lease in case
costs were incurred by the City in removing abandoned antennas or equipment. Also, any
wireless communication services the City of Dubuque chose to purchase from Telecorp would be
at the most favorable rate given any of the company's similarly -situated customers.
With the exception of the ten-year initial term, specific description of the premises and details of
facility placement and attachment, the terms of this proposed lease are comparable to those of the
other tenants operating wireless telecommunication facilities on the property.
Attached are a copy of the proposed lease and a resolution of approval. As with the other
tenants, granting of a building permit would be conditioned upon approval of specific mounting
hardware and procedures by IIW Engineers.
RECOMMENDED ACTION; The Recommended Action is that the proposed resolution be
adopted, approving and authorizing the City Manager to sign the lease.
Cc: Bob Green, Water Department Manager
Barry Lindahl, Corporation Counsel
Tim O'Brien, Assistant City Attorney
RESOLUTION NO. 124 -01.
A RESOLUTION OF THE CITY OF DUBUQUE APPROVING OF A
LEASE BETWEEN THE CITY OF DUBUQUE, IOWA, AND TELECORP
REALTY, LLC, FOR THE INSTALLATION AND OPERATION OF A
WIRELESS TELECOMMUNICATION ANTENNAE FACILITY.
WHEREAS, the City Council of the City of Dubuque, Iowa encourages the expansion of wireless
telecommunication services to its citizens, businesses, and institutions, while at the same time
minimizing safety and aesthetic concerns posed by the construction of new towers and monopoles in
residential areas, and
WHEREAS, Telecorp Realty, LLC is the holder of a current Federal Communications Commission
license to provide certain wireless telecommunication services for sale in and around the City of
Dubuque, and
WHEREAS, Telecorp Realty, LLC desires to expand its signal coverage area and enhance the quality
and capacity of its technical infrastructure by installing and operating a wireless telecommunication
antennae facility on and near a water tower owned by the City of Dubuque, identified as site W-2, and
located at 1525 West Third Street in Dubuque, and
WHEREAS, the City of Dubuque desires to lease to Telecorp Realty, LLC certain space on the water
tower site W-2 lower catwalk, along with adjacent ground space, for the purpose of installation and
operation of a wireless telecommunication antennae facility, and
WHEREAS, representatives of Telecorp Realty, LLC and of the City of Dubuque have negotiated
terms for such a lease, a copy of which is attached hereto, which the City Council finds beneficial to the
community.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the attached lease is hereby approved and the City Manager is authorized to sign
and administer this lease on behalf of the City of Dubuque.
Passed, approved and adopted this 2nd day of April, 2001.
Terrance M. Duggan
Mayor
Attest: }
.42/"-Z6/7--r-*-1<c7--7-e"---a"
eanne F. Schneider
City Clerk
Site I.D.
City: W-2
Telecorp: DBQ284
WATER TANK & GROUND SPACE LEASE
This Water Tank and Ground Space Lease (the "Lease") is made. and entered into
the day of , 2001, by and between THE CITY OF DUBUQUE, IOWA,
acting by and through its City Manager , whose address is 50 W. 13th Street, Dubuque,
IA 52001 -4845, hereinafter referred to as "Lessor", and hereinafter
referred to as "Lessee".
Background
A. Lessor is the owner in fee simple of a parcel of land located in the City of
Dubuque, Dubuque County, State of Iowa, legally described on the attached Exhibit A
(the "Owned Premises), on which a water tower (the "Tower") is located. The street
address of the Owned Premises is 1525 West Third Street, Dubuque, IA 52001.
B. Lessee desires to lease space on the lower catwalk of the Tower (the
"Catwalk") and ground space below, or adjacent to, the Tower (the "Ground Space") for
the installation and operation of a cellular radio -telephone communications antennae
facility, which shall include directional antennae, an equipment building, connecting cables
and appurtenances (collectively, "Wireless Telecommunication Antennae Facility) for use
in connection with its communication business.
C. Accordingly, the parties are entering into this Lease on the terms and
conditions set forth below.
Agreement
In consideration of their mutual covenants, the parties agree as follows:
1. Leased Premises. Lessor leases to Lessee and Lessee leases from Lessor a
portion of the Owned Premises, consisting of (i) space on the lower Catwalk, (ii)
sufficient Ground Space below, or adjacent to, the Tower to place its equipment
building, and (iii) easements for ingress/egress and utilities as shown on the Site
Plan/Legal Description attached as Exhibit B (collectively, the "Premises"). Lessee
intends to locate its antennae on the Catwalk as more fully described on the attached
Exhibit C. Lessee may not add additional equipment and/or antennae from that
shown on Exhibit C without the prior written approval of the Lessor.
Lessor reserves the right to require Lessee to relocate its antennae and
equipment to other locations on the Catwalk if required in connection with the
Lessor's actual use and maintenance of the towerr or if the initial placement
interferes with users which pre -date this lease. Lessee shall complete the relocation
of its antennae, connecting cables and appurtenances within sixty (60) days after
receiving written notice from Lessor. The relocation shall be at the Lessor's
expense, and such expense shall be approved by Lessor prior to Lessee's relocation,
If such relocation does not meet Lessee' s RF requirements or interferes with
Lessee's transmission, reception and operation of its communications system and
uses incidental thereto, Lessee may terminate this Lease in accordance with Section
18 herein.
This Lease is not a franchise pursuant to state, local, or federal law, nor is it
a permit to use the rights -of -way. Any such franchise or permit must be obtained
separately.
2. Tenn. The initial term of this Lease shall commence upon the award of the
Building Permit by the City of Dubuque to Lessee for the Wireless Communication
Antennae Facility (the Commencement Date) and end ten (10) years from the
Commencement Date. Lessee shall have the option to renew this Lease for up to
three (3) additional terms of five (5) years each, upon a continuation of all the same
provisions hereof, by giving written notice to Lessor of Lessee's exercise of this
option at least sixty (60) days before the expiration of the term then present at the
time of such notice.
3. Rent.
a. Upon fulfillment of the Conditions Precedent listed in Section 16
herein and receipt of the Building Permit to construct the Wireless
Telecommunications Antenna Facility, Lessee shall provide to the Lessor a
Performance Bond in the amount of ten thousand dollars ($10,000). .In
addition to herein, Lessee shall pay to Lessor as annual rent for the Premises
the sum of thirteen thousand two hundred dollars ($13,200) (the "Base
Rent"). Lessee shall pay Lessor Base Rent for the first year on. the
Commencement Date, and for each year thereafter on the Anniversary of the
Commencement Date, unless the Base Rent is abated pursuant to Section 17
herein. Base Rent shall be increased annually as described in Section (3)(c)
herein.
b. Lessee shall pay Lessor a late payment charge equal to five percent
(5 %) of the late payment for any payment not paid when due. Any amounts
not paid when due shall bear interest until paid at the lesser of the rate of two
percent (2%) per month or the highest rate permitted by law.
c. The Base Rent shall be increased annually effective as of each
anniversary of the Commencement Date by three percent (3 %) of the
previous year's Base Rent or the percentage increase in the CPI over the CPI
for the 12 months prior to the adjustment date. "CPI means the Consumer
Price Index for All Urban Consumers, U.S. City Average, All Items, issued
by the Bureau of Labor Statistics for the United States Department of Labor
(1982-84 = 100). If the CPI is converted to a different standard reference
base or otherwise revised, the adjustment set forth in this paragraph' shall be
made with the use of the conversion formula published by the Bureau of
Labor Statistics.
d. If this Lease is terminated at a time other than on the last day of the
month, Rent shall be prorated as of the date of termination.
e. To the extent that Lessor desires to purchase cellular telephone service
from Lessee, Lessee shall offer this service to Lessor at the most favorable
rate and terms that Lessee then offers to any other person.
4. Use of Premises.
a. Lessee shall use the Premises for the installation, operation, and
maintenance of its Wireless Telecommunication Antennae Facility for the
transmission, reception and operation of a communications system and uses
incidental thereto and for no other uses. Lessee may erect and operate
twelve (12) panel -type directional antennae. Lessor may permit others to use
other portions of the Catwalk or Owned Premises.
b. Lessee shall, at its expense, comply with all present and future
federal, state, and local laws, ordinances, rules and regulations (including
laws and ordinances relating to health, radio frequency emissions, radiation
and safety) in connection with the use, operation, maintenance, construction
and/or installation of the Wireless Telecommunication Antennae Facility on
the Premises. Lessor agrees to reasonably cooperate with Lessee in
obtaining, at Lessee's expense (including reimbursement of Lessor's
reasonable attorney and administrative fees, if any), any federal licenses and
permits required for, or substantially required by, Lessee's use of the
Premises.
c. (1) The Wireless Telecommunication Antennae Facility is agreed to
be Lessee's.personal property and shall never be considered fixtures to
the real estate. Upon termination of the Lease, the Lessee shall remove
the Wireless Telecommunication Antennae Facility and any
underground improvements from the Premises within ninety (90) days.
Such removal shall be done in a workmanlike and careful manner and
without interference or damage to any other equipment, structures or
operations on the Premises, including use of the Premises by Lessor or
any of Lessor's assignees or lessees. If, however, Lessee requests
permission to not remove all or a portion of the improvements, and
Lessor consents to such non -removal, title to the affected improvements
shall thereupon transfer to Lessor and the same thereafter shall be the
sole and entire property of Lessor, and Lessee shall be relieved of its
duty to otherwise remove same.
(2) Upon removal of the improvements (or portions thereof) as
provided in Section 4(c)(1) herein, Lessee shall restore the affected
areas of the Premises to the conditions which existed prior to this
Lease, reasonable wear and tear excepted.
(3) All costs and expenses for the removal and restoration to be
performed by Lessee pursuant to Section 4(c)(1), (2) herein shall be
borne by Lessee, and Lessee shall hold Lessor harmless from any
portion thereof.
5. Construction Standards. The directional antennae, equipment building,
connecting cables and appurtenances of the Wireless Telecommunication Antennae
Facility shall be installed on the Premises in a good and workmanlike manner
without the attachment of any construction liens. Lessor reserves the right to
require Lessee to paint the antennae in a manner consistent with the color of the
Tower.
6. Installation of Equipment.
a. Lessee shall have the right, at its sole cost and expense, to install,
operate and maintain its Wireless Telecommunication Antennae Facility on
the Premises, as described on Exhibit •C, in accordance with good
engineering practices and with all site standards, statutes, ordinances, rules
and regulations now in effect or that may be issued thereafter by the Federal
Communications Commission or any other governing bodies.
b. Lessee's installation of such a Wireless Telecommunication Antennae
Facility .shall be done according to plans approved by Lessor, whose
approval shall not be unreasonably withheld, delayed or conditioned. Any
damage done to the Tower, the Catwalk and/or other structures during
installation and/or operations shall be repaired or replaced immediately at
Lessee's expense and to Lessor's reasonable satisfaction. In connection with
the installation and operation of the Wireless Telecommunication Antennae
Facility, Lessee shall not make any penetrations of walls or roof of the
Tower without Lessor's prior written consent.
c. Within thirty (30) days of the completion of the initial installation of
the Wireless Telecommunication Antennae Facility, Lessee shall provide
Lessor with as -built drawings of the Wireless Telecommunication Antennae
Facility and the improvements installed on the Premises, which show the
actual location of all equipment and improvements consistent with Exhibit C.
Said drawings shall be accompanied by a complete inventory of the
building and all equipment and antennae located on the Tower and Catwalk.
7. Equipment Upgrade. Lessee may update or replace the antennae from time
to time with the prior written approval of Lessor, whose approval shall not be
unreasonably withheld, conditioned or delayed, provided that the replacement
antennae are not greater in number or size than the existing antennae and that any
change in antennae locations on the Catwalk is approved in writing by the Lessor.
Lessee shall submit to Lessor a proposal for any such replacement _antennae and any
supplemental materials for Lessor's evaluation.
8. Maintenance.
a. Lessee shall, at its own expense, maintain the Premises and any
equipment on or attached to the Premises in a safe condition, in good repair
and in a manner suitable to Lessor so as not to conflict with the use of, or
other leasing, of the Catwalk or other portions of the Tower by Lessor.
Lessee shall not interfere with the use of the Catwalk, the Tower, related
facilities or other equipment of other lessees.
b. Lessee shall have sole responsibility for the maintenance, repair, and
security of its equipment, personal property, leasehold improvements, and
directional antennae, equipment building, connecting cables, and.
appurtenances of the Wireless Telecommunication Antennae Facility, and
Lessee shall keep the same in good repair and condition during the teini of
the Lease, and as such Lease terms may be renewed and extended.
c. Lessee shall keep the Premises free of debris and anything of a
dangerous, noxious or offensive nature or which would create a hazard or
undue vibration, heat, noise or interference.
d. In the event the Lessor or any other lessee undertakes painting,
construction, repair or other alterations on the Catwalk or the Tower,
Lessee shall take reasonable measures at Lessee's cost to cover Lessee's
equipment, personal property, leasehold improvements, and directional
antennae, equipment building, connecting cables, and appurtenances of the
Wireless Telecommunication Antennae Facility and protect such from paint
and debris fallout which may occur during the painting, construction or
alteration process. Lessee shall notify Lessor at least thirty-five (35) days
prior to any construction, painting, repair or alterations begun by Lessee to
the Wireless Telecommunication Antennae Facility, the Catwalk or the
Tower, unless such construction, painting, repair or alterations must be
made on an emergency basis, in which case Lessee shall notify Lessor as
soon as practicable. Lessor shall notify Lessee at least thirty (30) days prior
to any construction, painting, repair or other alterations begun by Lessor or
any other lessee, unless said construction, painting, repair or alterations must
be made on an emergency basis, in which case Lessor shall notify Lessee as
soon as practicable. Unless resulting from negligent actions or omissions of,
or willful misconduct of, Lessor, its employees, agents or contractors,
Lessor shall not be liable for any damage .incurred by Lessee from such
painting, construction, repair or alterations.
9. Premises Access.
a. Lessee shall have 24- hourl7-day access to the Premises by means
reasonably designated by Lessor, subject to notice requirements to Lessor in
Section 9(b) herein, in order to install, operate and maintain its Wireless
Telecommunication Antennae Facility.
b. Lessee shall have reasonable access to the Catwalk in order to install,
operate and maintain its antennae, connecting cables, and appurtenances.
Lessee shall have access to such Catwalk only with the prior written
approval of Lessor. Lessee shall request access to the Catwalk twenty-four
(24) hours in advance, except hi an. emergency. Lessee shall have
unrestricted access to its equipment building without the requirement of
supplying Lessor with prior written notice.
c. Upon twenty-four (24) hours prior written notice to Lessee, and with
an escort provided by Lessee, Lessor shall be allowed and granted access to
Lessee's, equipment building at reasonable times to examine and inspect the
same for safety reasons or to ensure that the Lessee's covenants are being
met.
d. Lessor shall keep the street access to the Premises reasonably clear of
snow and ice as soon as is practicable after each snowfall.
10. Utilities. Unless the Premises is immediately adjacent to public rights -of -
way for ingress, egress, and utilities, Lessor hereby grants to Lessee the following
described Easement Parcels appurtenant to the Premises:
Use: Access. Width: 20'; Approximate length: as needed per survey
between Premises and the public road known as West Third Street over
traveled ways.
Use: Utilities. Width: 10'; Approximate length: As needed per survey
between the Premises and suitable utility company service connection points.
Lessor agrees to make such direct grants of easement as the utility companies
may require.
Lessee shall, at its expense, separately meter charges for the consumption of
electricity and other utilities associated with its use of the Premises and shall timely
pay all costs associated therewith.
11. RF Interference
a. Non-interference by Lessee. The Wireless Telecommunication
Antennae Facility shall be installed and operated in a manner which does not
cause radio -frequency interference ("RF interference") to the operations of
any Protected User. "Protected User" shall mean any existing user or lessee
of the Premises listed on Exhibit D attached hereto, which Lessor hereby
warrants to Lessee is an accurate listing of the frequencies, orientation,
placement, height, location, and description of all existing antennae,
transmitters, receivers, or other radio or electronic transmitting or receiving
equipment located on the Premises. Lessee agrees to immediately cure any
such RF interference caused to a Protected User by Lessee's equipment or, if
such RF interference cannot immediately be cured, to temporarily reduce
power or cease the offending operations, if so demanded by Lessor on the
ground .of RF interference, until a cure at full power is achieved.
b. Non-interference by Lessor. Lessor covenants to use Lessor's best
efforts to protect Lessee from RF interference caused or potentially caused.
by subsequent users or lessees of the Premises or changes in its use. Except
for the Protected Users, Lessor, and its successors and assigns, shall not use,
allow or permit the Premises to be used in any manner which will materially
impair the use of the Wireless Telecommunication Antennae Facility
hereafter erected or located upon the Premises by Lessee or allow any use in
any way as shall cause any destructive or conflicting interference with the
radio, telephone, or communications signals to and from the facilities or
equipment of Lessee. If any harmful RF interference shall result from any
such transmitters, equipment,. antennae, or dishes permitted on the Premises
by Lessor, other than the Protected Users, to the facilities or equipment of
Lessee installed on the Premises, then Lessor shall immediately cause such
transmitter, equipment, antennae or dish to be discontinued from operation
until such interference is eliminated. If Lessor cannot eliminate such RF
interference, Lessee may tetuiinate this Lease in accordance with Section 18
herein.
12. Monetary Default by Lessee. Lessee shall be in default of this Lease if
Lessee fails to make payment of rent, or any other sums, when due and such failure
continues for ten (10) days after Lessor notifies Lessee in writing of such failure.
13. Non -monetary Default by Lessee. If Lessee fails to comply with any non -
monetary provision of this Lease which Lessor claims to be a default hereof; Lessor
shall serve written notice of such default upon Lessee, whereupon a grace period of
30 days shall commence to run during which Lessee shall undertake and diligently
pursue a cure of the default. Such grace period shall automatically be extended for
an additional 30 days, provided Lessee makes a good faith showing that efforts
toward a cure are continuing.
14 . Cure or Termination by Lessor. In the event of any default of this Lease by
Lessee, the Lessor may at any time, after giving notice, cure the default for, and at
the expense of the Lessee. If Lessor is compelled to pay, or elects to pay, any sum
of money or incurs any expense, the sums or expenses so paid by Lessor, with all
interest, costs, and damages, shall be deemed Additional Rent :due from the Lessee
to Lessor on the first day of the month following their payment by Lessor.
In the event of default of this Lease by Lessee,; of if Lessee loses its FCC
license for any reason, including, but not limited to, non -renewal, expiration, or
cancellation, Lessor shall have the right, at its option, in addition to and not
exclusive of any other remedy Lessor may have by operation of law, without .any
further demand or notice, to re-enter the Premises and eject all persons therefrom,
and terminate this Lease. Lessor shall give Lessee ninety (90) days notice of its
exercise of its right of termination of this Lease. Such notice of terminationshall
be given Lessee in writing by certified mail, return receipt requested, and shall be
effective upon receipt of such notice. All prepaid rent payments received by Lessor
from Lessee shall be retained by Lessor. Upon such termination, this Lease shall
become null and void and the parties shall have no further obligations to each other.
In the event of termination, Lessee shall remove the Wireless Telecommunication
Antennae Facility in accordance with Section 4(c) hereof. Re-entry and taking of
possession of the Premises by Lessor shall be construed as an election on Lessor's
part to terminate this Lease. If termination occurs for any reason during the tenth
year of the term; or during either of the three optional five-year extensions of the
term, the amount of the Additional Rent due upon termination shall be zero.
15. . Performance Bond. To secure the timely perfoiuiance by Lessee of all
terms, covenants and conditions of this lease, Lessee shall provide Lessor with a
performance bond in an amount not less than ten thousand dollars ($1O,0OO) in a
form mutually satisfactory to the parties, and shall maintain said bond in effect
during the term of this lease including any renewals.
16. Lessee's Conditions Precedent. This Lease and Lessee's obligations
hereunder, including the obligations to pay rent, are expressly conditioned upon and
subject to the following:
a. Lessee must receive all necessary local, state, and federal
governmental approvals relating to Lessee's intended use of the Premises;
Lessor agrees to cooperate with Lessee in obtaining all such approvals;
b. Lessee's technical reports must establish to Lessee's exclusive
satisfaction that the Premises are capable of being suitably engineered to
accomplish Lessee's intended use of the Premises; and
c. Lessee's title insurer must determine that Lessor owns good and clear
marketable title to the land underlying the Premises, and that such title is
free from encumbrances and restrictions which would interfere With Lessee's
intended use of the Premises or would impair Lessee's ability to pledge the
leasehold :estate as collateral to secure debt financing.
17. Abatement of Rent Pending Conditions. Lessee shall have no obligation to
pay rent until all the Conditions Precedent have been satisfied or waived, and rent
which would otherwise be due for the intervening time pending satisfaction of the
Conditions Precedent is hereby excused and forgiven.
18. Option to Teiuiinate. Lessee shall have the unilateral right to terminate this
Lease at any time by giving written notice to Lessor of Lessee's exercise of this
option. Upon such termination, Lessee shall remove the Wireless
Telecommunication Antennae Facility in accordance with Section 4(c) herein..
19. Alteration, Damage or Destruction . If the Catwalk or any portion thereof is
altered, damaged or destroyed, through no fault or negligence of Lessee, so as to
materially hinder effective use of the Wireless Telecommunication Antennae
Facility, Lessee may elect to terminate this Lease, without paying Additional Rent
to Lessor, upon thirty (30) days written notice to Lessor. In such event, Lessee
shall remove the Wireless Telecommunication Antennae Facility from the Premises
in accordance with Section 4(c), less any alteration, damage or destruction
hindering effective use of the Catwalk. This Lease and Lessee's obligations
hereunder shall teiininate upon Lessee's fulfillment of Section 4(c), at which time
Lessee shall be entitled to reimbursement of any prepaid rent.
20. Condemnation. In the event the Owned Premises are taken by eminent
domain, this Lease shall terminate as of the date title to the Owned Premises vests
in the condemning authority. In the event a portion of the 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, Lessee shall not be
entitled to any portion of the reward paid for the taking and the Lessor shall receive
full amount of such award. Lessee shall hereby expressly waive any right or claim
to any portion thereof although all damages, whether awarded as compensation for
diminution in value of the leasehold or to the fee of the Premises, shall belong to
Lessor. Lessee shall have the right to claim and recover from the condemning
authority, but not from Lessor, such compensation as may be separately awarded or
recoverable by Lessee on accountof any and all damage to Lessee's business and
any costs or expenses incurred by Lessee in moving/removing .its equipment
building, personal property, antennae, connecting cables, appurtenances, and other
leasehold improvements.
21. Mutual Indemnification
a. Lessee's Indemnification. Unless resulting from negligent actions or
omissions of, or willful misconduct of, Lessor, its employees, agents or
contractors, Lessee agrees to hold Lessor harmless,indemnify it, and, at
Lessor's option, defend it from and against all liability, damages, losses,
costs, causes of action, charges and expenses, including reasonable attorney
fees, which Lessor may sustain, incur or be liable for arising out of or
related to Lessee's use or occupancy of the Premises and its facilities.
b. Lessor's Indemnification. Unless resulting from negligent actions or
omissions of, or willful misconduct of, Lessee, its employees, agents or
contractors, Lessor agrees to hold Lessee haintless and indemnify it, and, at
Lessee's option, defend it from and against all liability, damages, losses,
costs, causes of action, charges and expenses, including reasonable attorney
fees, which Lessee may sustain, incur or be liable for arising out of or
related to Lessor's use or occupancy of the property and buildings of which
the Premises and the easement parcels are a part.
Lessee and Lessor acknowledge, however, that each party may sustain
substantial consequential damages if damage to the tower or the equipment
on the premises or the access easement parcel occurs or its use is
interrupted. Because of these substantial, potential damages, Lessee and
Lessor covenant with each other that in no event and/or under no
circumstances shall each party, or their officers, directors, members, or
employees, be liable to each other or any other person or entity for
consequential damages relating to or arising out of each other's use and/or
occupancy of the premises or the access easement parcel, regardless of
whether those consequential damages arise out of, relate to, or are caused by
the other party's negligent actions or omissions.
22. Insurance: Lessee shall provide such insurance as is required by the
Insurance Schedule attached hereto.
23. Environmental Warranty. Lessor hereby represents and warrants to Lessee
that Lessor has never generated, stored, handled, or disposed of any hazardous
waste or hazardous substance upon the Owned Premises, and that Lessor has no
knowledge of such uses historically having been made of the Owned Premises or
such substances historically having been introduced thereon.
Lessee hereby represents and warrants that its use of the Premises herein will
not generate or dispose of any hazardous substance on the Premises, and, with the
exception of batteries, it will not store on or transport to, or over, the Premises any
hazardous substance. Lessee further agrees to hold Lessor harmless from, and
indemnify Lessor against, any release of any such hazardous substance and any
damage, loss, expense or liability resulting from such release including all
attorneys' fees, costs and penalties incurred as a result thereof, except any release
caused by the negligence of Lessor, its employees or agents. "Hazardous
substance" shall be interpreted broadly to mean any substance or material defined or
designated as hazardous or toxic waste, hazardous or toxic material, hazardous or
toxic or radioactive substance, or other similar term by any federal, state or local
environmental law, regulation or rule presently in effect or promulgated in the
future, as such laws, regulations or rules may be amended from time to time; and it
shall be interpreted to include, but not be limited to, any substance which after
release into the environment will or may reasonably be anticipated to cause
sickness, death or disease.
Lessor, its heirs, grantees, successors, and assigns shall indemnify, defend,
reimburse and bold harmless Lessee from and against any and all environmental
damages arising from the presence of Hazardous Materials upon, about or beneath
the Leased Premises or migrating to or from the Leased Premises or arising in any
manner whatsoever out of the violation of any Environmental Laws pertaining to the
Leased Premised and any activities thereon, which conditions exist or existed prior
to or at the time of the execution of this Lease or which may occur at any time in
the future through no fault of Lessee. Lessor's indemnification obligations
hereunder shall survive the termination of this Lease.
24. Holding Over. Any holding over after the expiration of the term hereof,
with the consent of the Lessor, shall be construed to be a tenancy from month to
month at two (2) times the rents herein specified (prorated on a monthly basis) and
shall otherwise be on the conditions herein specified, so far as applicable.
25. Subordination. Lessee agrees to subordinate this Lease to any mortgage or
trust deed which may hereafter be placed on the Premises, provided such mortgagee
or trustee thereunder shall ensure to Lessee the right to possession of the Premises
and other rights granted to Lessee herein so long as Lessee is not in default beyond
any applicable grace or cure period, such assurance to be in form reasonably
satisfactory to Lessee. If requested by Lessee, Lessor agrees to use Lessor's best
efforts to assist Lessee in obtaining from any holder of a security interest in the land
underlying the Premises a non -disturbance agreement in form reasonably
satisfactory to Lessee.
26. Acceptance of Premises. By taking possession of the Premises, Lessee
accepts the Premises in the condition existing as of the Commencement Date.
Lessor makes no representation or warranty with respect to the condition of the
Premises and Lessor shall not be liable for any latent or patent defect in the
Premises.
27. Estoppel Certificate. Upon at least ten (10) days prior written notice from
Lessor, Lessee shall deliver to Lessor a written statement certifying that (i) the
Lease is unmodified and in full force, or if the Lease has been modified, that the
Lease is in full force as modified and the modifications are then identified; (ii) the
dates to which rent and other charges have been paid; (iii) so far as the certifying
party knows, Lessor is not in default under any provisions of the Lease; and (iv)
such other matters as Lessor may reasonably request.
28. Notices. All notices and correspondence shall be sent to the following:
Lessor: City Manager
City of Dubuque
50 W. 13th Street
Dubuque, IA 52001- 4845
Lessee:.
General Counsel
TeleCorp Realty, LLC
1010 North Glebe Rd, Suite 800
Arlington, VA 22201.
29. Assignment of Lease by Lessee. This Lease and the Premises hereunder are
assignable by the Lessee to the following: (i) any person or business entity which is
a parent, subsidiary or affiliate of Lessee; (ii) any person or business entity which
controls or is controlled by or under a common control with Lessee; (iii) any person
or business entity which is merged or consolidated with Lessee; or (iv) any person
or business entity which purchases a majority or controlling interest in the
ownership or assets of Lessee. Any assignment of this Lease and the Premises
hereunder by the Lessee shall not occur without the Lessor's consent, which consent
shall not be unreasonably withheld, conditioned or delayed. Lessee's right to effect
an outright transfer of the Premises, and the right of any collateral assignee to seize
the Premises as defaulted security, is subject only to the limitation that the Premises
shall be used for the purposes permitted herein. Lessee shall notify Lessor in
writing of the name and address of any assignee or collateral assignee.
30. Binding Effect. All of the covenants, conditions, and provisions of this
Lease shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns.
31. Entire Agreement. This Lease constitutes the entire agreement between the
parties and supersedes any prior understandings or oral or written agreements
between the parties respecting the within subject matter.
32. Modifications. This Lease may not be modified, except in writing signed by.
the party against whom such modification is sought to be enforced.
33. Attorney's fees. In any action on this Lease at law or in equity, the
prevailing party shall be entitled to recover the reasonable costs of its successful
case, including reasonable attorney's fees and costs of appeal.
34. Non -Waiver. Failure of Lessor or Lessee to insist on strict performance of
any of the conditions, covenants, terms or provisions of this Lease or to exercise •
any of its rights hereunder shall not waive such rights, but each party shall have the
rights to enforce such rights at any time and take such action as might be lawful or
authorized hereunder, either in law or equity. The receipt of any sum paid by one
party to the other after a breach of this Lease shall not be deemed a waiver of such
breach unless expressly set forth in writing.
35. Property Taxes.
a. Lessee shall pay any personal property taxes assessed on, or any
portion of such taxes attributable to, the Wireless Telecommunication
Antennae Facility. Lessor shall pay when due, or claim an appropriate
exemption from, all real property taxes and all other fees and assessments
attributable to the land underlying the Premises. However, Lessee .shall pay,
as Additional Rent, any increase in real property taxes levied against the
Premises which is directly attributable to Lessee's use of the Premises, and
Lessor agrees to furnish proof of such increase to Lessee.
b. Lessor's requests to Lessee for contribution or reimbursement of
property taxes should be addressed to USCe11, P.O. Box 31369, Chicago, IL
60631-0369. All requests must be accompanied by a copy of Lessor's tax
bill. Lessee shall comply with requests for contribution by issuing a check
for Lessee's proportionate share made payable to the tax collector. Lessee
shall comply with requests for reimbursement by issuing a check to Lessor,
provided that a paid tax receipt accompanies such request.
c. Lessee shall have the right, but not the obligation, to pay Lessor's real
estate .taxes on the underlying land if the same become delinquent, to ensure
that Lessee's leasehold interest does not become extinguished. Lessee shall
be entitled to take a credit against rent for the portion of Lessor's taxes
which it was not Lessee's obligation to pay, as such amount shall reasonably
be substantiated.
36. Headings. The headings of this Lease are for convenience only and shall not
be considered as part of the Lease for purposes of construction of the terms and
conditions hereof.
37. Miscellaneous.
a. Lessor and Lessee represent that each, respectively, has full right,
power, and authority to execute this Lease.
b. This Lease shall be construed in accordance with the laws of the State
of Iowa.
c. 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.
38. Quiet Enjoyment.
Lessor warrants that Lessee is entitled access to the Property at all times and
to the quiet possession of the Leases Premises throughout the Initial term and
each Renewal term so long as Lessee is not in default of any terra of this
Lease beyond expiration of the cure period set forth in paragraph 12 above.
END OF AGREEMENT
(Signature Page Follows Next)
Signature Page
IN WITNESS WHEREOF, the parties hereto bind themselves to this Ground
Lease as of the day and year first above written.
Lessor:
The City of Dubuque, Iowa
ATTEST:
By: By:
Michael C. Van Milligen Jeanne F. Schneider
City Manager City Clerk
Lessee:
TeleCorp Realty, LLC
By: TeleCorp Conununcations, Inc.
its: Managing Member
By:
Print Na m e:
Title:
Date:
ACKNOWLEDGEMENTS
STATE OF IOWA
)ss:
COUNTY OF DUBUQUE
On this day of , 2001, before me a Notary Public in and for the
State of Iowa, personally appeared Michael C. Van Milligen and Jeanne F. Schneider, to
me personally known, who being duly sworn, did say that they are the City Manager and
City Clerk, respectively, of the City of Dubuque, Iowa, a Municipal corporation, created
and existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said Municipal corporation by authority and resolution of its City
coma, and said City Manager and City Clerk acknowledged said instrument to be the
free act and deed of said Municipal corporation by it and by them voluntarily executed.
Notary Public
My commission expires:
EXHIBIT A
Legal Description of the Owned Premises
Lots 23 & 24 of the Finley Home Addition in Dubuque, Iowa
EXHIBIT B
Site Plan/Legal Description of The Premises
19
EXHIBIT C
Equipment to be Placed ou. The Premises
The following Equipment together with any associated wires, cables, pipes, related ancillary equipment and conduit
attached thereto and supporting structures associated therewith shall be located on the Leased Premises.
• Twelve (12) panel antennas measuring approximately 60" height x 6" width x 2.75" depth.
• Nine (9) cables measuring 1 5/8".
• Equipment cabinets on a support frame contained within Leased Premises.
20
MMEIT D
Protected Users of The Premises
1. The City of Dubuque, Iowa
2. Dubuque County, Iowa
3. Dubuque Cellular Telephone, L.P. .
4. Nextel Partners,
5. Iowa Wireless Conummications
INSURANCE SCHEDULE
1.. Any policy of insurance or certificate of insurance required hereunder shall be with a
carrier authorized to do business in Iowa and a carrier that has received a rating of A or better
in the current Best's Rating Guide.
2. Any policy of insurance required hereunder shall provide for a thirty -day notice to the City
of any material change or cancellation of the policy prior to its expiration date.
3. Lessee shall have its insurance agent or company certify in writing that any policy of
insurance required herein with an aggregate limit of liability has not been reduced by paid or
reserved claims at the time of issuance of policy or certificate.
4. Lessee shall furnish copies of the following policies to the City, with limits not less than
the following, or greater if required by law, and shall also furnish certificates of insurance
from a all independent contractors or subcontractors hired by Lessee or any independent
contractor or subcontractor, which certificates shall provide evidence of coverage for the
following with limits not less than the following, or greater if required by law:
COMMERCIAL GENERAL LIABILITY:
General Aggregate Limit $2,000,000
Products - Completed Operation Aggregate Limit $1,000.000
Personal and Advertising Injury Limit $1,000,000 '.
Each Occurrence Limit $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
OR
Combined Single Limit
Medical Payments
$2,000,000
$ 5,000
Coverage is to include: occurrence fouii, premises/operations/products/completed operations
coverage, independent contractors' coverage, contractual liability, broad form property
damage, personal injury, City of Dubuque named as an additional insured with 30 days'
written notice of change or cancellation.
RESOLUTION NO. 117 -01
A RESOLUTION OF THE CITY'S INTENT TO DISPOSE OF INTEREST IN
PROPERTY DESCRIBED IN A LEASE BETWEEN THE CITY OF DUBUQUE,
IOWA AND TELECORP REALTY, LLC FOR THE INSTALLATION AND
OPERATION OF A WIRELESS TELECOMMUNICATION FACILITY.
WHEREAS, the City Council of the City of Dubuque, Iowa encourages the expansion of wireless
telecommunication services to its citizens, businesses, and institutions, while at the same time
minimizing safety and aesthetic concerns posed by the construction of new towers and monopoles in
residential areas, and
WHEREAS, Telecorp Realty, LLC is the holder of a current Federal Communications Commission
license to provide certain wireless telecommunication services for sale in and around the City of
Dubuque, and
WHEREAS, Telecorp Realty, LLC desires to expand its signal coverage area and enhance the quality
and capacity of its technical infrastructure by installing and operating a wireless telecommunication
antennae facility on and near a water tower owned by the City of Dubuque, identified as site W-2, and.
located at 1525 West Third Street in Dubuque, and
WHEREAS, the City of Dubuque desires to lease to Telecorp Realty, LLC certain space on the water
tower site W-2 lower catwalk, along with adjacent ground space, for the purpose of installation and
operation of a wireless telecommunication antenna facility, and
WHEREAS, representatives of Telecorp Realty, LLC and of the City of Dubuque have negotiated
terms for such a lease, a copy of which is attached hereto, which the City Council finds beneficial to the
community.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the City of Dubuque , Iowa intends to dispose of an interest in the property
described in the proposed lease agreement with Telecorp Realty, LLC, under the conditions stipulated in
the lease agreement.
Section 2. That the City Clerk is hereby authorized and directed to cause a notice to be
published of the proposed lease agreement in the manner prescribed by law.
PASSED, APPROVED, and ADOP i'E,D this 19 day of March,.2001.
ATTEST:
fizee'
anne Schneider, City Clerk
SIG
Terrance i;;,;Dugg, /f' ayor.
CITY OF DUBUQUE, IOWA
MEMORANDUM
March 15, 2001
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Proposed Lease of Space to Telecorp Realty, LLC, for a Telecommunication
Antenna Facility On the City's Elevated Water Tank at 1525 West Third Street
Cable Franchise Administrator Merrill Crawford is recommending that a public hearing be set
for April 2, 2001, to consider a lease of space to Telecorp Realty, LLC, for a telecommunications
antenna facility on the City's elevated water tank at 1525 West Third Street.
I concur with the recommendation and respectfully request Mayor and City Council approval.
MCVMJ jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Merrill Crawford, Cable Franchise Administrator
CITY OF DUBUQUE, IOWA
MEMORANDUM
March 9, 2001
MEMO TO: Michael C. Van Milligen, City Manager
FROM: Merrill Crawford, Cable Franchise Administrator��...--ter
SUBJECT: Proposed Lease of Space to Telecorp Realty, LLC, for a Telecommunication
Antenna Facility On The City's Elevated Water Tank at 1525 West Third Street
INTRODUCTION: The purpose of this memorandum is to recommend that the City lease space
On. its water tank site W-2, located at 1525 West Third Street, and adjacent ground space, to
Telecorp Realty, LLC, an Arlington, VA company, to support a wireless telecorn nunication
antennae facility.
BACKGROUND: Recent changes in technology and telecommunication law have rapidly
accelerated the development of new wireless telecommunication services which are in heavy
demand by business, industry, government, education, and individual consumers. Many of these
services require networks of transmitting and receiving antennas communicating from specific
locations at varying heights above the ground, mounted on towers, rooftops, ts111 structures, or
natural high ground. These antenna arrays are usually accompanied by small buildings or other
enclosures housing electronic equipment and served by power and other utilities.
On January 4, 1999, the City Council enacted Ordinance No. 3-99 adding Section 4-9 to the
Zoning Ordinance to establish regulations for the placement of towers and antennas within the
City. The new ordinance encourages location of antennas on existing towers and structures,
accommodates towers in industrial zones, and promotes antenna siting solutions which do not
result in new towers in residential and other more sensitive zones. In addition to reasonable
land -use regulation, the City has implemented additional strategies for encouraging the
introduction of new wireless telecommunication services and service providers while minimizing
the negative impact of new towers and monopoles.
A representatives of Telecorp Realty, LLC, a wireless telecommunications service provider, has
proposed leasing space on the lower catwalk the City's elevated water tank at 1525 West Third
St., (Site W-2) and adjacent ground space, to support communication antennae, cable, and an
equipment cabinet as a part of a wireless network they are extending into the Dubuque area.
Three other wireless telecommunications service providers, US Cellular, Nextel, and Iowa
Wireless, currently operate similar facilities on the property in accordance with leases
comparable to that proposed for Telecorp.
Highlights of the Proposed Lease
Telecorp would be permitted to attach a set of antennas to the existing lower catwalk which
extends around the circumference of the tank, and to route transmission cables down a
supporting leg to the ground. Telecorp would also install and maintain an equipment shelter on
the ground to house transmission equipment, and would pay all utility costs associated with the
operation. Antennas would be painted to match the water tower, and the placement and color of
the equipment cabinet would be coordinated with the water tank and existing buildings.
Additional arbor vitae would be planted along the inside of the security fence which separates .the
facility from the adjacent Cancer Survivors Park. Any future changes would be subject to City
approval.
Termof the lease would be 10 years, with three optional 5-year extensions.
Telecorp would pay to the City an annual rent beginning at $13,200 and escalated annually by the
greater of 3 percent or the percentage increase of the CPI. In the unlikely event of an early
termination of the lease, the Lessee would pay an additional amount equal to 50 percent of the
rent due for the year in which early termination occurred. In addition, the company would
provide a performance bond in the amount of $10,000 during the full term of the lease in case
costs were incurred by the City in removing abandoned antennas or equipment Also, any
wireless communication services the City of Dubuque chose to purchase from Telecorp would be
at the most favorable rate given any of the company's similarly -situated customers.
With the exception of the ten-year initial term, specific description of the premises and details of
facility placement and attachment, the terms of this proposed lease are comparable to those of the
other similarly -situated tenants on the property.
Attached are a copy of the proposed lease and a resolution of intent to dispose of interest in the
property.
RECOMMENDED ACTION: The Recommended Action is that the proposed resolution and
lease be placed on the agenda of the March 19, 2001 City Council meeting, to be set for a public
hearing and final action on April 2, 2001.
Cc: Bob Green, Water Department Manager
Barry Lindahl, Corporation Counsel
Tim O'Brien, Assistant City Attorney
Site T.D.
City: W-2
Telecorp: DBQ284
WATER TANK & GROUND SPACE LEASE
This Water Tank and Ground Space Lease (the "Lease") is made and entered into
the day of , 2001, by and between THE CITY OF DUBUQUE, IOWA,
acting by and through its City Manager , whose address is 50 W. 13th Street, Dubuque,
IA 52001 -4845, hereinafter referred to as "Lessor", and hereinafter
referred to as "Lessee".
Background
A. Lessor is the owner in fee simple of a parcel of land located in the City of
Dubuque, Dubuque County, State of Iowa, legally described on the attached Exhibit A
(the "Owned Premises), on which a water tower (the "Tower") is located. The street
address of the Owned Premises is 1525 West Third Street, Dubuque, IA 52001.
B. Lessee desires to lease space on the lower catwalk of the: Tower (the
"Catwalk") and ground space below, or adjacent to, the Tower (the "Ground Space") for
the . installation and operation of a cellular radio -telephone communications antennae
facility, which shall include directional antennse, an equipment building, connecting cables
and .appurtenances (collectively, "Wireless Telecommunication Antennae Facility) for use
in connection with its communication business.
C. Accordingly, the parties are entering into this Lease on the terms and
conditions set forth below.
Agreement
In consideration of their mutual covenants, the parties agree as follows:
1. Leased Premises. Lessor leases to Lessee and Lessee leases from Lessor a
portion of the Owned Premises, consisting of (i) space on the lower Catwalk, (ii)
sufficient Ground Space below, or adjacent to, the Tower to place its equipment
building, and (iii) easements for ingress/egress and utilities as shown on the Site
Plan/Legal Description attached as Exhibit B (collectively, the "Premises"). Lessee
intends to locate its antennae on the Catwalk as more fully described on the attached
Exhibit C. Lessee may not add additional equipment and/or antennae from that
shown on Exhibit C without the prior written approval of the Lessor.
Lessor reserves the right to require Lessee to relocate its antennae and
equipment to other locations on the Catwalk if required in connection with the
Lessor's actual use and maintenance of the tower or if the initial placement
interferes with users which pre -date this lease. Lessee shall complete the relocation
of its antennae, connecting cables and appurtenances within sixty (60) days after
receiving written notice from Lessor. The relocation shall be at the Lessor's
expense, and such expense shall be approved by Lessor prior to Lessee's relocation.
If such relocation does not meet Lessee's RF requirements or interferes with
Lessee's transmission, reception and operation of its communications system and
uses incidental thereto, Lessee may terminate this Lease in accordance with Section
18 herein.
This Lease is not a franchise pursuant to state, local, or federal law, nor is it
a permit to use the rights -of -way. Any such franchise or permit must be obtained
separately.
2. Term. The initial term of this Lease shall commence upon the award of the
Building Permit by the City of Dubuque to Lessee for the Wireless Communication
Antennae Facility (the Commencement Date) and end ten (10) years from the
Commencement Date. Lessee shall have the option to renew this Lease for up to
three (3) additional terms of five (5) years each, upon a continuation of all the same
provisions hereof, by giving written notice to Lessor of Lessee's exercise of this
option at least sixty (60) days before the expiration of the term then present at the
time of such notice.
Rent.
a.Upon fulfillment of the Conditions Precedent listed in Section 16
herein and receipt of the Building Permit to construct the Wireless
TeIecommzunications Antenna Facility, Lessee shall provide to the Lessor a
Performance Bond in the amount of ten thousand dollars ($10,000). In
addition to herein, Lessee shall pay to Lessor as annual rent for the Premises
the sum of thirteen thousand two hundred dollars ($13,200) (the "Base
Rent"). Lessee shall pay Lessor Base Rent for the first year on the
Commencement Date, and for each year thereafter on the Anniversary of the
Commencement Date, unless the Base Rent is abated pursuant to Section 17
herein. Base Rent shall be increased annually as described in Section (3)(c)
herein.
b. Lessee shall pay Lessor a late payment charge equal to five percent
(5 %) of the late payment for any payment not paid when due. Any amounts
not paid when due shall bear interest until paid at the lesser of the rate of two
percent (2 %) per month or the highest rate permitted by law.
c. The Base Rent shall be increased annually effective as of . each
anniversary of the Commencement Date by three percent (3 %) of the
previous year's Base Rent or the percentage increase in the CPI over the CPI
for the 12 months prior to the adjustment date. "CPI means the Consumer
Price Index for All Urban Consumers, U.S. City Average, All Items, issued
by the Bureau of Labor Statistics for the United States Department of Labor
(1982-84 = 100). If the CPI is converted to a different standard reference
base or otherwise revised, the adjustment set forth in this paragraph shall be
made with the use of the conversion formula published by the Bureau of
Labor Statistics.
d. If this Lease is terminated at a time other than on the last day of the
month, Rent shall be prorated as of the date of termination.
e. To the extent that Lessor desires to purchase cellular telephone service
from Lessee, Lessee shall offer this service to Lessor at the most favorable
rate and terms that Lessee then offers to any other person..
Use of Premises.
a. Lessee shall use the Premises for the installation,' operation, and
maintenance of its Wireless Telecommunication Antennae Facility forthe
transmission, reception and operation of a communications system and uses
incidental thereto and for no other uses. Lessee may erect and operate
twelve (12) panel -type directional antennae. Lessor may permit others to use
other portions of the Catwalk or Owned Premises.
b. Lessee shall, at its expense, comply with all present andfuture
federal, state, and local Iaws, ordinances, rules and regulations (including
laws and ordinances relating to health, radio frequency emissions, radiation
and safety) in connection with the use, operation, maintenance, construction
and/or installation of the Wireless Telecommunication Antennae Facility on
the Premises. Lessor agrees to reasonably cooperate with Lessee in
obtaining, at Lessee's expense (including reimbursement of Lessor's
reasonable attorney and administrative fees, if any), any federal licenses and
permits required for, or substantially required by, Lessee's use of the
Premises.
c. (1) The Wireless Telecommunication Antennae Facility is agreed to
be Lessee's personal property and shall never be considered fixtures to
the real estate. Upon termination of the Lease, the Lessee shall remove
the Wireless Telecommunication Antennae Facility and any.
underground improvements from the Premises within ninety (90) days.
Such removal shall be done in a workmanlike and careful manner and
without interference or damage to any other equipment, structures or
operations on the Premises, including use of the Premises by Lessor or
any of Lessor's assignees or lessees. If, however, Lessee requests
permission to not remove all or a portion of the improvements, and
Lessor consents to such non -removal, title to the affected improvements
shall thereupon transfer to Lessor and the same thereafter shall be the
sole and entire property of Lessor, and Lessee shall be relieved of its
duty to otherwise remove same.
(2) Upon removal of the improvements (or portions thereof) as
provided in Section 4(c)(1) herein, Lessee shall restore the affected
areas of the Premises to the conditions which existed prior to this
Lease, reasonable wear and tear excepted.
(3) All costs and expenses for the removal and restoration to be
performed by Lessee pursuant to Section 4(c)(1), (2) herein shall be
borne by Lessee, and Lessee shall hold Lessor haiuiless from any
portion thereof.
5. Construction Standards. The directional antennae, equipment building,
connecting cables and appurtenances of the Wireless Telecommunication Antennae
Facility .shall be installed on the Premises in a good and workmanlike manner
without the .attachment of any •construction liens. Lessor reserves . the right to
require Lessee to paint the antennae in a manner consistent with the color of the
Tower.
6. Installation of Equipment.
a. Lessee shall have the right, at its sole cost and expense, to install,
operate and maintain its Wireless Telecommunication Antennae Facility on
the Premises, as described on Exhibit C, in accordance with good
engineering practices and with all site standards, statutes, ordinances, rules
and regulations now in effect or that may be issued thereafter by the Federal
Communications Commission or any other governing bodies.
b. Lessee's installation of such a Wireless Telecommunication Antennae
Facility shall be done according to plans approved by Lessor, whose
approval shall not be unreasonably withheld, delayed or conditioned. Any
damage done to the Tower, the Catwalk and/or other structures during
installation andfor operations shall be repaired or replaced immediately at
Lessee's expense and to Lessor's reasonable satisfaction. In connection with
the installation and operation of the Wireless Telecommunication Antennae
Facility, Lessee shall not make any penetrations of walls or roof of the
Tower without Lessor's prior written consent.
c. Within thirty (30) days of the completion of the initial installation of
the Wireless Telecommunication Antennae Facility, Lessee shall provide
Lessor with as -built drawings of the Wireless Telecommunication Antennae.
Facility and the improvements installed on the Premises, which show the
actual location of all equipment and improvements consistent with Exhibit C.
Said drawings shall be accompanied by a complete inventory of the
building and all equipment and antennae located on the Tower and Catwalk.
7. Equipment Upgrade. Lessee may update or replace the antennae from time
to time with the prior written approval of Lessor, whose approval shall not be
unreasonably withheld, conditioned or delayed, provided that the replacement
antennae are not greater in number or size than the existing antennae and that any
change in antennae locations on the Catwalk is approved in writing by the Lessor.
Lessee shall submit to Lessor a proposal for any such replacement antennae and any
supplemental materials for Lessor's evaluation.
8. Maintenance.
a. Lessee shall, at its own expense, maintain the Premises and any
equipment on or attached to the Premises in a safe condition, in. good repair
and in a manner suitable to Lessor so as not to conflict with the use of, or
other leasing, of the Catwalk or other portions of the Tower by Lessor.
Lessee shall not interfere with the use of the Catwalk, the Tower, related
facilities or other equipment of other lessees.
b. Lessee shall have sole responsibility for the maintenance, repair, and
security of its equipment, personal property, leasehold improvements, and
directional antennae, equipment building, connecting cables, and
appurtenances of the Wireless Telecommunication Antennae Facility, and
Lessee shall keep the same in good repair and condition during the termi of
the Lease, and as such Lease terms may be renewed and extended.
c. Lessee shall keep the Premises free of debris and anything of a
dangerous, noxious or offensive nature or which would create a hazard or
undue vibration, heat, noise or interference.
d. In the event the Lessor or any other lessee undertakes painting,
construction, repair or other alterations on the Catwalk or the Tower,
Lessee shall take reasonable measures at Lessee's cost to cover Lessee's
equipment, personal property, leasehold improvements, and directional
antennae, equipment building, connecting cables, and appurtenances of the
Wireless Telecommunication Antennae Facility and protect such from paint
and debris fallout which may occur during the painting, construction or
alteration process. Lessee shall notify Lessor at least thirty-five (35) days
prior to any construction, painting, repair or alterations begun by Lessee to
the Wireless Telecommunication Antennae Facility, the Catwalk or. the
Tower, unless such construction, painting, repair or alterations must be
made on an emergency basis, in which case Lessee shall notify Lessor as
soon as practicable. Lessor shall notify Lessee at least thirty (30) days prior
to any construction, painting, repair or other alterations begun by Lessor or
any other lessee, unless said construction, painting, repair or alterations must
be made on an emergency basis, in which case Lessor shall notify Lessee as
soon as practicable. Unless resulting from negligent actions or omissions of,
or wilful misconduct of, Lessor, its employees, agents or contractors,
Lessor shall not be liable for any damage incurred by Lessee from such
painting, construction, repair or alterations.
9. Premises Access.
a. Lessee shall have 24- houri7-day access to the Premises by means
reasonably designated by Lessor, subject to notice requirements to Lessor in
Section 9(b) herein, in order to install, operate and maintain its Wireless
Telecommunication Antennae Facility.
b. Lessee shall have reasonable access to the Catwalk in order to install,
operate and maintain its antennae, connecting cables, and appurtenances.
Lessee shall have access to such Catwalk only with the prior written
approval of Lessor. Lessee .shall request access to the Catwalk twenty-four
(24) hours in advance, except in an emergency. Lessee shall have
unrestricted access to its equipment building without the requirement of
supplying Lessor with prior written notice.
c. Upon twenty-four (24) hours prior written notice to Lessee, and with
an escort provided by Lessee, Lessor shall be allowed and granted access to
Lessee's equipment building at reasonable times to examine and inspect the
same for safety reasons or to ensure' that the Lessee's covenants are being
met.
d. Lessor shall keep the street access to the Premises reasonably clear of
snow and ice as soon as is practicable after each snowfall.
10. Utilities. Unless the Premises is immediately adjacent to public rights -of -
way for ingress, egress, and utilities, Lessor hereby grants to Lessee the following
described Easement Parcels appurtenant to the Premises:
Use: Access. Width: 20'; Approximate length: as needed per survey
between Premises and the public road known as West Third Street over
traveled ways.
Use: Utilities. Width: 10'; Approximate length: As needed per survey
between the Premises and suitable utility company service connection points.
Lessor agrees to make such direct grants of easement as the utility companies
may require.
Lessee shall, at its expense, separately meter charges for the consumption of
electricity and other utilities associated with its use of the Premises and shall timely
pay all costs associated therewith.
11. RF Interference
a. Non-interference by Lessee. The Wireless Telecommunication
Antennae Facility shall be installed and operated in a manner which does not
cause radio -frequency interference ("RF interference") to the operations of
any Protected User. "Protected User" shall mean any existing user or lessee
of the Premises listed on Exhibit D attached hereto, which Lessor hereby
warrants to Lessee is an accurate listing of the frequencies, orientation,
placement, .height, location, and description of all existing antennae,
transmitters, receivers, or other radio or electronic transmitting or'receiving
equipment located on the Premises. Lessee agrees to immediately cure any
such RF interference caused to a Protected User by Lessee's equipment or, if
such RF interference cannot immediately be cured, to temporarily reduce
power or cease the offending operations, if so demanded by Lessor on the
ground of RF interference, until a cure at full power is achieved.
b. Non-interference by Lessor. Lessor covenants to use Lessor's best
efforts to protect Lessee from RF interference caused or potentially caused
by subsequent users or lessees of the Premises or changes in its use. Except
for the Protected Users, Lessor, and its successors and assigns, shall not use,.
allow or permit the Premises to be used in any manner which will materially
impair the use of the Wireless Telecommunication Antennae Facility
hereafter erected or located upon the Premises by Lessee or allow any use in
any way as shall cause any destructive or conflicting interference with the
radio, telephone, or communications signals to and from the facilities or
equipment of Lessee. If any harmful RF interference shall result from any
such transmitters, equipment; antennae, or dishes permitted on the Premises
by Lessor, other than the Protected Users, to the facilities or equipment of
Lessee installed on the Premises, then Lessor shall immediately cause such
transmitter, equipment, antennae or dish to be discontinued from operation
until such interference is eliminated. If Lessor cannot eliminate such RF
interference, Lessee may tetuninnate this Lease in accordance with Section 18
herein.
12. Monetary Default by Lessee. Lessee shall be in default of this Lease if
Lessee fails to make payment of rent, or any other sums, when due and such failure
continues for ten (10) days after Lessor notifies Lessee in writing of such failure.
13. Non -monetary Default by Lessee. If Lessee fails to comply with any non -
monetary provision of this Lease which Lessor claims to be a default hereof, Lessor
shall serve written notice of such default upon Lessee, whereupon a grace period of
30 days shall commence to run during which Lessee shall undertake .and diligently
pursue a cure of the default. Such grace period shall automatically be extended for
an additional .30 days, provided Lessee makes a good faith showing that efforts
toward a cure are continuing.
14 . Cure or Te iuination by Lessor. In the event of any default of this Lease by
Lessee, the Lessor may at any time, after giving notice, cure the default for, and at
the expense of the Lessee. If Lessor is compelled to pay, or elects to pay, any sum
of money or incurs any expense, the sums or expenses so paid by Lessor, with all
interest, costs, and damages, shall be deemed Additional Rent due from the Lessee
to Lessor on the first day of the month following their payment by Lessor.
In the event of default of this Lease by Lessee, of if Lessee loses its FCC
license for any reason, including, but not limited to, non -renewal, expiration, or
cancellation, Lessor shall have the right, at its option, in addition to and not
exclusive of any other remedy Lessor may have by operation of law, without any
further demand or notice, to re-enter the Premises and eject all persons therefrom,
and terminate this Lease. Lessor shall give Lessee ninety (90) days notice of its
exercise of its right of termination of this Lease. Such notice of teiuiination shall
be given Lessee in writing by certified mail, return receipt requested, and shall be
effective upon receipt of such notice. All prepaid rent payments received by Lessor
from Lessee shall be retained by Lessor. Upon such termination, this Lease shall
become null and void and the parties shall have no further obligations to each other.
In the event of termination, Lessee shall remove the Wireless Telecommunication
Antennae Facility in accordance with Section 4(c) hereof. Re-entry and taking of
possession of the Premises by Lessor shall be construed as an election on Lessor's
part to terminate this Lease. If termination occurs for any reason during the tenth
year of the term, or during either of the three optional five-year extensions of the
term, the amount of the Additional Rent due upon termination shall be zero.
15. Perfoiiiiance Bond. To secure the timely performance by Lessee of all
terms, covenants and conditions of this lease, Lessee shall provide Lessor with a
performance bond in an amount not less than ten thousand dollars ($10,000) in a
form mutually satisfactory to the parties, and shall maintain said bond in effect
during the term of this lease including any renewals.
16. Lessee's Conditions Precedent. This Lease and Lessee's obligations
hereunder, including the obligations to pay rent, are expressly conditioned upon and
subject to the following:
a. Lessee must receive all necessary local, state, and federal
governmental approvals relating to Lessee's intended use of the Premises;
Lessor agrees to cooperate with Lessee in obtaining all such approvals;
b. Lessee's technical reports must establish to Lessee's exclusive
satisfaction that the Premises are capable of being suitably engineered to
accomplish Lessee's intended use of the Premises; and
c. Lessee's title insurer must determine that Lessor owns good and clear
marketable title to the land underlying the Premises, and that such title is
free from encumbrances and restrictions which would interfere with Lessee's
intended use of the Premises or would impair Lessee's ability to pledge the
leasehold estate as collateral to secure debt financing.
17. Abatement of Rent Pending Conditions. Lessee shall have no obligation to
pay rent until all the Conditions Precedent have been satisfied or waived, and rent
which would otherwise be due for the intervening time pending satisfaction of the
Conditions Precedent is hereby excused and forgiven.
18. Option to Terminate. Lessee shall have the unilateral right to terminate this
Lease at any time by giving written notice to Lessor of Lessee's exercise of this
option. Upon such . termination, Lessee shall remove the Wireless
Telecommunication Antennae Facility in accordance with Section 4(c) herein.
19. Alteration, Damage or Destruction . If the Catwalk or any portion thereof is
altered, damaged or destroyed, through no fault or negligence of Lessee, so as to
materially hinder effective use of the Wireless Telecommunication Antennae
Facility, Lessee may elect to terminate this Lease, without paying Additional Rent
to Lessor, upon thirty (30) days written notice to Lessor. In such event, Lessee
shall remove the Wireless Telecommunication Antennae Facility from the Premises
in accordance with Section 4(c), less any alteration, damage or destruction
hindering effective use of the Catwalk. This Lease and Lessee's obligations
hereunder shall terminate upon Lessee's fulfillment of Section 4(c), at which time
Lessee shall be entitled to reimbursement of any prepaid rent.
20. Condemnation. In the event the Owned Premises are taken by eminent
domain, this Lease shall terminate as of the date title to the Owned Premises vests
in the condemning authority. In the event a portion of the Premises is taken by
eminent domain, either party shall have the right to terminate this Leaseas 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, Lessee shall not be
entitled to any portion of the reward paid for the taking and the Lessor shall receive
full amount of such award. Lessee shall hereby expressly waive any right or claim
to any portion thereof although all damages, whether awarded as compensation for
diminution in value of the leasehold or to the fee of the Premises, shall belong to
Lessor. Lessee shall have the right to claim and recover from the. condemning
authority, but not from Lessor, such compensation as may be separately awarded or
recoverable by Lessee on account of any and all damage to Lessee's business and
any costs or expenses incurred by Lessee in moving/removing its equipment
building, personal property, antennae, connecting cables, appurtenances, and other
leasehold improvements.
21. Mutual Indemnification.
a. Lessee's Indemnification. Unless resulting from negligent actions or
omissions of, or willful misconduct of, Lessor, its employees, agents or
contractors, Lessee agrees to hold Lessor harmless, indemnify it, and, at
Lessor's option, defend it from and against all liability; damages,, losses,
costs, causes of action, charges and expenses, including reasonable attorney
fees, which Lessor may sustain, incur or be liable for arising out of or
related to Lessee's use or occupancy of the Premises and its facilities.
b. Lessor's Indemnification. Unless resulting from negligent actions or
omissions of, or willful misconduct of, Lessee, its employees, agents or
contractors, Lessor agrees to hold Lessee harmless and indemnify it, and, at
Lessee's option, defend it from and against all liability, damages, losses,
costs, causes of action, charges and expenses, including reasonable attorney
fees, which Lessee may sustain, incur or be liable for arising out of or
related to Lessor's use or occupancy of the property and buildings of which
the Premises and the easement parcels are a part.
Lessee and Lessor acknowledge, however, that each party may sustain
substantial consequential damages if damage to the tower or the equipment
on the premises or the access easement parcel occurs or its use is
interrupted. Because of these substantial, potential damages, Lessee and
Lessor covenant with each other that in no event and/or under no
circumstances shall each party, or their officers, directors, members, or
employees, be liable to each other or any other person or entity for
consequential damages relating to or arising out of each other's use and/or
occupancy of the premises or the access easement parcel, regardless of
whether those consequential damages arise out of, relate to, or are caused by
the other party's negligent actions or omissions.
22. Insurance: Lessee shall provide such insurance as is required by the
Insurance Schedule attached hereto.
23. Environmental Warranty. Lessor hereby represents and warrants to Lessee.
that Lessor has never generated, stored, handled, or disposed of any hazardous
waste or hazardous substance upon the Owned Premises, and that Lessor has no
knowledge of such uses historically having been made of the Owned Premises or
such substances historically having been introduced thereon.
Lessee hereby represents and warrants that its use of the Premises herein will
not generate or dispose of any hazardous substance on the Premises, and, with the
exception of batteries, it will not store on or transport to, or over, the Premises any
hazardous substance. Lessee further agrees to hold Lessor harmless from, and
indemnify Lessor against, any release of any such hazardous substance and any
damage, loss, expense or liability resulting from such release including all
attorneys' fees,. costs and penalties incurred as a result thereof, except any release
caused by the negligence of Lessor, its employees or agents. "Hazardous
substance" shall be interpreted broadly to mean any substance orr material defined or
designated as hazardous or toxic waste, hazardous or toxic material, hazardous or
toxic or radioactive substance, or other similar term by any federal, state or local
environmental law, regulation or rule presently in effect or promulgated in the
future, as such laws, regulations or rules may be amended from time to time; and it
shall be interpreted to include, but not be limited to, any substance which after
release into the environment will or may reasonably be anticipated to cause
sickness, death or disease.
Lessor, its heirs, grantees, successors, and assigns shall indemnify, defend,
reimburse and hold harmless Lessee from and against any and all environmental
damages arising from the presence of Hazardous Materials upon, about or beneath
the Leased Premises or migrating to or from the Leased Premises or arising in any
manner whatsoever out of the violation of any Environmental Laws pertaining to the
Leased Premised and any activities thereon, which conditions exist or existed prior
to or at the time of the execution of this Lease or which may occur at any time in
the future through no fault of Lessee. Lessor's indemnification obligations
hereunder shall survive the termination of this Lease.
24. Holding Over. Any holding over after the expiration of the term hereof,
with the consent of the Lessor, shall be construed to be a tenancy from .month to
month at two (2) times the rents herein specified (prorated on a monthly basis) and
shall otherwise be on the conditions herein specified, so far as applicable.
25. Subordination. Lessee agrees to subordinate this Lease to any mortgage or
trust deed which may hereafter be placed on the Premises, provided such mortgagee
or trustee thereunder shall ensure to Lessee the right to possession of the Premises
and other rights granted to Lessee herein so long as Lessee is not in default beyond
any applicable grace or cure period, such assurance to be in form reasonably
satisfactory to Lessee. If requested by Lessee, Lessor agrees to use Lessor's best
efforts to assist Lessee in obtaining from any holder of a security interest in the land
underlying the Premises a non -disturbance agreement in form reasonably
satisfactory to Lessee.
26. Acceptance • of Premises. By taking possession of the Premises, Lessee
accepts the Premises in the condition existing as of the Commencement Date.
Lessor Makes no representation or warranty with respect to the condition of the
Premises and .Lessor shall not be liable for any latent or patent defect in the
Premises. .
27. Estoppel Certificate. Upon at least ten (10) days prior written notice from
Lessor, Lessee shall deliver to Lessor a written statement certifying that (i) the
Lease is unmodified and in full force, or if the Lease has been modified, that the
Lease is in fell force as modified and the modifications are then identified; (ii) the
dates to which rent and other charges have been paid; (iii) so far as the certifying
party knows, Lessor is not in default under any provisions of the Lease; and (iv)
such other matters as Lessor may reasonably request.
28. Notices. All notices and correspondence shall be sent to the following:
Lessor: City Manager
City of Dubuque
50 W. 13th Street
Dubuque, IA 52001- 4845
Lessee:
General Counsel
TeleCorp Realty, LLC
1010 North Glebe Rd, Suite 800
Arlington, VA 22201
29. Assignment of Lease by Lessee. This Lease and the Premises hereunder are
assignable by the Lessee to the following: (i) any person or business entity which is
a parent, subsidiary or affiliate of Lessee; (ii) any person or business entity which
controls or is controlled by or under a common control with Lessee; (iii) any person
or business entity which is merged or consolidated with Lessee; or (iv) any person
or business entity which purchases a majority or controlling interest in the
ownership or assets of Lessee. Any assignment of this Lease and the Premises
hereunder by the Lessee shall not occur without the Lessor's consent, which consent
shall not be unreasonably withheld, conditioned or delayed. Lessee's right to effect
an outright transfer of the Premises, and the right of any collateral assignee to seize
the Premises as defaulted security, is subject only to the limitation that the Premises
shall be used for the purposes permitted herein. Lessee shall notify Lessor in
writing of the name and address of any assignee or collateral assignee.
30. Binding Effect. All of the covenants, conditions, and provisions of this
Lease shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns.
31. Entire Agreement. This Lease .constitutes the entire agreement between the
parties and supersedes any prior understandings or oral or written agreements
between the parties respecting the within subject matter.
32. Modifications. This Lease may not be modified, except in writing signed by
the party against whom such modification is sought to be enforced.
33. Attorney's fees. In any action on this Lease at law or in equity, the
prevailing party shall be entitled to recover the reasonable costs of its successful
case, including reasonable attorney's fees and costs of appeal.
34. Non -Waiver. Failure of Lessor or Lessee to insist on strict performance of
any of the conditions, covenants, terms or provisions of. this Lease or to exercise
any of its rights hereunder shall not waive such rights, but each party shall have the
rights to enforce such rights at any time and take such action as might be lawful or
authorized hereunder, either in law or equity. The receipt of any sum paid by one
party to the other after a breach of this Lease shall not be deemed a waiver of such
breach runless expressly set forth in writing.
35. Property Taxes.
a. Lessee shall pay any personalproperty taxes assessed on, or any
portion of such taxes attributable to, the Wireless Telecommunication
Antennae Facility. Lessor shall pay when due, or claim an appropriate
exemption from, all real property taxes and all other fees and assessments
attributable to the land underlying the Premises . However, Lessee shall pay,
as Additional Rent, any increase in real property taxes levied against the
Premises which is directly attributable to Lessee's use of the Premises, and
Lessor agrees to furnish proof of such increase to Lessee.
b. Lessor's requests to Lessee for contribution or reimbursement of
property taxes should be addressed to USCe1I, P.O. Box 31369, Chicago, IL
60631-0369. All requests must be accompanied by a copy of Lessor's tax
bill. Lessee shall comply with requests for contribution by issuing a check
for Lessee's proportionate share made payable to the tax collector. Lessee
shall comply with requests for reimbursement by issuing a check to Lessor,
provided that a paid tax receipt accompanies such request.
c. Lessee shall have the right, but not the obligation, to pay Lessor's real
estate taxes on the underlying land if the same become delinquent, to ensure
that Lessee's leasehold interest does not become extinguished. Lessee shall
be entitled to take a credit against rent for the portion of Lessor's taxes
which it was not Lessee's obligation to pay, as such amount shall reasonably
be substantiated.
36. Headings. The headings of this Lease are for convenience only and shall not
be considered as part of the Lease for purposes of construction of the terms and
conditions hereof.
37. Miscellaneous.
a. Lessor and Lessee represent that each, respectively, has full right,
power, and authority to execute this Lease.
b. This Lease shall be construed in accordance with the laws of the State
of Iowa.
c. 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.
38. Quiet Enjoyment.
Lessor warrants that Lessee is entitled access to the Property at all times and
to the quiet possession of the Leases Premises throughout the Initial term and
each Renewal term so long as Lessee is not in default of any than of this
Lease beyond expiration of the cure period set forth in paragraph 12 above.
END OF AGREEMENT
(Signature Page Follows Next)
Signature Page
IN WITNESS WHEREOF, the parties hereto bind themselves to this Ground
Lease as of the day and year first above written.
Lessor:
The City of Dubuque, Iowa
ATTEST:
By: By:
Michael C. Van Milligen Jeanne F. Schneider
City Manager City Clerk
Lessee:
TeleCorp Realty, LLC
By: TeleCorp Communcations, Inc.
its: Managing Member
By:
Print Name:
Title:
Date:
ACKNOWLEDGEMENTS
STATE OF IOWA
)ss:
COUNTY OF DUBUQUE
On this day of , 2001, before me a Notary Public in and for the
State of Iowa, personally appeared Michael C. Van Milligen and Jeanne F. Schneider, to
me personally known, who being duly sworn, did say that they are the City Manager and
City Clerk, respectively, of the City of Dubuque, Iowa, a Municipal corporation, created
and existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said Municipal corporation by authority and resolution of its City
Council and said City Manager and City Clerk acknowledged said instrument to be the
free act and deed of said Municipal corporation by it and by them voluntarily executed.
Notary Public
My commission expires:
EXHIBIT A
Legal Description of the Owned Premises
Lots 23 & 24 of the Finley Home Addition in Dubuque, Iowa
EBTT B
Site Plan/Legal Description of The Premises
19
EXHIBIT C
Equipment to be Placed on The Premises
The following Equipment together with any associated wires, cables, pipes, related ancillary equipment and conduit
attached thereto and supporting structures associated therewith shall be located on the Leased Premises.
• Twelve (12) panel antennas measuring approximately 60" height x 6" width x 2.75" depth.
• Nine (9) cables measuring l 5/8".
• Equipment cabinets on a support frame contained within Leased Premises.
20
EXHIBIT D
Protected Users of The Premises
1. The City of Dubuque, Iowa
2. Dubuque County, Iowa
3. Dubuque Cellular Telephone, L.P.
4. Nextel Partners,
5. Iowa Wireless Communications
INSURANCE SCHEDULE
1. Any policy of insurance or certificate of insurance required hereunder shall be with a
carrier authorized to do business in Iowa and a carrier that has received a rating ofA or better
in the current Best's Rating Guide.
2. Any policy of insurance required hereunder shall provide for a thirty -day notice to the City
of any material change or cancellation of the policy prior to its expiration date.
3. Lessee shall have its insurance agent or company certify in writing that any policy of
insurance required herein with an aggregate limit of liability has not been reduced by paid or
reserved claims at the time of issuance of policy or certificate.
4. Lessee shall furnish copies of the following policies to the City, with limits not less than
the following, or greater if required by law, and shall also furnish certificates of insurance
from a all independent contractors or subcontractors hired by Lessee or any independent
contractor or subcontractor, which certificates shall provide evidence of coverage for the
following with limits not less than the following, or greater if required by law:
COMMERCIAL GENERAL LIABILITY:
General Aggregate Limit $2,000,000
Products - Completed Operation Aggregate Limit $1,000.000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence Limit $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
OR
Combined Single Limit
Medical Payments
$2,000,000
$ 5,000
Coverage is to include: occurrence form, premises/operations/products/completed operations
coverage, independent contractors' coverage, contractual liability, broad form property
damage, personal injury, City of Dubuque named as an additional insured with 30 days'
written notice of change or cancellation.