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Telecorp Lease - Murphy ParkCITY OF DUBUQUE, IOWA MEMORANDUM July 11, 2001 TO: FROM: SUBJECT: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager Proposed Murphy Park Lease to Telecorp Realty, LLC Whalen & Company, Inc. has requested that the public hearing on a lease of space for wireless communication facility in Louis Murphy Park be held on July 16, even though the final details of the lease arrangement have not been completed. I respectfully request the Mayor and City Council hold a public hearing and approve the lease, providing the City Manager the authority to work with the Corporation Counsel's office to work out the final details and execute the document. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Merrill Crawford, Cable Franchise Administrator 07/11/01 WED 11:33 FAX 3192335547 IOWA BUSINESS MACHINES ~002 Whalen & Company, Inc. 7314 Chma~ellor Dm'~e Cea~mr Falls, Io~.m (3t~J ~??-4.414 office. ,~31gj 277-42SS fax July 11, 2001 Mr. Michael Van M~tl~ge~, City Manager City of Dubuque 50 W. 13~ Street Dubuqn¢, IA 52001-4845 RE: City Council M~/-~g of July 16, 2001 - TeleCorp Realty LLC., L~as~ of space for Wkcless Comemmioat/on Facility in Louis Murphy Park Dear Mr. Van Miiligen: Whalon and Company, Inc., ("Whale") a consultant to the wireless communication industry, has been 'blind by Tele~m]~ Rp. alty, LLC ('~felccorp'), an ~ffillate of AT&T, to provide site acquisition and construction management services. We are representing our client in ol:~ainlrtg a 1~¢ for '~e me of a ,~less oom~,micafion facility at Louis Murphy Park in the City of Dubuque. 'The s'ite is owned by the City o£Dubuque and, therefore, xequire$ the appro,ral of the City Council for any properly transactions. We have been in negotiations with Merrill Crawford, Kyle Kr~,, and you regardir~g this rnatt~ and have drafted a lease for review by the City Council at their m~t/ng of July 1t5, 2001. We have been dealing with Mr. Crawford primarily on this issue and looked to him for guidance on ~ processing of this lease. Unfortunately, due to some last minute issues betwean +.he City and TeleOap, and Mr. Cmwford'~ prcvioudy scheduled engagements, we were unable re provide a final dxaft of the lease in time for tt~e July 16~ meeting. There ar~ a few minor issues that ar~ very close to being completed and the basic terms of thc lease are not in quest/on (snoh as leased premises, use, rant, m~d imgth of terms). Rather, the issues are simple clarification of the lease language itself. We d/scussed w~th Mr. Crawford the possibility of condoning the hearing on the lease unt/l August 6~, to provide both pmies time to prepare a Due m our fight consumetion and market build-out schedule we filed an application for a Conditimml Usc Permit and Variances (he/ght and setbaek) for this project. We are ~heduled to be on the July 26~ Board of Adjustment toeing for their review cf tlfis matter. Mr. Kr/tz contac/ed me on Monday, July 9a to inform me that you were not conffortablc with our obtaining land u~ permits for this project, prior to the ~ity Council's few-Jew of the leas~. Therefore, we inquired with the Cit~ Clerk about mining on the July 16t~ agenda to pros~nt our case before the City Council and were infommd that thc hearing was m~ll on ~cbedale. We intend to be ~t the July 16e* ~earing to explain to the City Council our proposal and get thc'ir approval for staff to £malize the 4ease, ~n~kto anthorize us to seek land use permits. We request tl~ City Council £ormally authorize the City Manager to sign our land use applications as property owner. Any permits issued by thc City would be ?x~ditiueed upon execution of the leas~. 07/11/01 ~ED 11:33 FA[ 3192553~47 IOWA BUSINESS !IACHINE$ ~003 We are cm'renfly working with the A~sistant City Attorney, Tim O'Brien, to make sure these last lease issu~ are resolved prior to the July 16~' hearing. We will be looking for gruff m,~pport of the lea~e a~ this heaxing with the under~t~ding that the final dra~ will not be approved until the August 6~ hearing. Should you have any questions regard/ug this letter please contaat me at (515) 707-7229. Michael R. Singer Leasing Manager, Whalen and Company Cable Television Division City Hall Annex, 1300 Main Street Dubuque, Iowa 52001 (319) 5894181 July 6, 2001 MEMO TO: Michnel C. Van Milligen, City Manager FROM: Merrill Crawford, Cable Franchise Administrato SUBJECT: Proposed Murphy Park Lease to Telecorp Realty, LLC INTRODUCTION: The purpose of this memorandum is to recommend that the Public Hearing set for July 16 to consider the proposed lease of space in Murphy Park to Telecorp Realty, LLC be postponed to the City Council meeting of August 6, 2001. BACKGROUND: As I was preparing the agenda materials for the Public Hearing set for the July 16 City Council consideration of the proposed Telecorp lease this afternoon, Mr. Russel Douglas of the Whalen Company, representing Telecorp arrived with drawings and with a series of further changes their attorneys are requesting in the wording of the lease. While these changes do not affect the core terms of the lease (rent, length of term, etc.), some of them are substantial enough to require discussion and further legal review. Of greater concern was a verbal explanation from Mr. Douglas that Telecorp is interested in selling the tower and assigning the lease to another company who is not a telecommunications service provider but soley a to;ver management firm. Presumably, this tower management company would own the tower and control the leased space, while Telecorp would continue to own the anter, nas, cables, and electronic equipment. This raises numerous questions regarding terms and requirements of the proposed lease as currently written, which even the latest proposed changes do not address. As I will be on vacation next week and Tim O'Brien needs additional time to consider these new proposed changes and their ramifications Mr. Douglas asked that the Public Hearing be postponed from the July 16th to the August 6th City Council meeting. Under the circumstances, Tim and I suggest that would be a prudent action. RECOMMENDED ACTION: The Recommended Action is that the City Council postpone the Public Hearing to consider the proposed lease of space in Murphy Park to Telecorp Realty, LLC, to the meeting of August 6, 2001. cc: Jeanne Schneider, City Clerk Barry Lindahl, Corporation Counsel Tim O'Brien, Assistant City Attorney Gil Spence, Leisure Services Manager John Hail, Parks Division Manager Service People Integrity Responsibility Innovation Teamwork CITY OF DUBUQUE, IOWA MEMORANDUM June 22, 2001 TO: FROM: SUBJECT: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager Telecorp Lease - Murphy Park Antenna Cable Franchise Administrator Merrill Crawford is recommending that a public hearing be set for July 16, 2001, to consider the lease with Telecorp to construct a cellular antenna monopole at Murphy Park. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Merrill Crawford, Cable Franchise Administrator Cable Television Division City Hall Annex, 1300 Main Street Dubuque, Iowa 52001 (319) 589-4181 June 21, 2001 MEMO TO: Michael C. Van Milligen, City Manager FROM: Merrill Crawford, Cable Franchise Administrator SUBJECT: Proposed Telecorp Lease for a Wireless Facility in Murphy Park INTRODUCTION: The purpose of this memorandum is to recommend that the City Council set a July 16 public hearing to consider leasing land in Louis Murphy Park to Telecorp Realty LLC, who would construct and operate a wireless telecommunication antenna facility mounted on a monopole tower. BACKGROUND: Telecorp Realty, LLC is an affiliate of AT&T who constructs and operates wireless telecommunication antenna facilities and networks across the United States. They serve the general public, business and industry with cellular telephone service and related wireless services. Telecorp is one of at least seven such companies currently building or considering wireless nev,vorks in and around Dubuque. On April 2, 2001, the City Council approved a lease to Telecorp of space on and adjacent to the City's water tower at 1525 West Third Street for a wireless telecommunication antenna facility. Construction is currently underway in accordance with that lease. Last winter, Telecorp representatives also began looking for a site within a search ring on high ground roughly between Mt. Carmel and Dodge Street to provide reliable wireless signals over the southern part of the City, and particularly along US Highway 61 in the Kerrigan Hill ravine running north and south from South Grandview Avenue. They considered private property for potential tower sites and for potential rooftop sites. They also approached the City regarding the possibility of erecting a monopole tower, with antennae and equipment cabinets, within and near the western border of Louis Murphy Park, north of the tennis courts. As Telecorp investigated its options, City staff also considered the relative merits of various sites, particularly potential tower sites, along the scenic and view-sensitive bluffs in the southern portion of the City. We compared the potential visual impact of the proposed Murphy Park site to other possible locations along the ridge, looked at signal coverage and the potential for co-location, and considered the degree of control the City ' could maintain over the site as landlord, versus a similar site on private property. We reached the conclusion that, if a communication tower needs to be placed somewhere within the search ring along South Grandview, the proposed Murphy Park location would clearly be the best site and a monopole would be the preferred style. Service People Integrity Responsibility Innovation Teamwork t Over a period of months, and dealing with a variety of company representatives, we negotiated the terms of a proposed lease for a wireless telecommunication antenna facility in Murphy Park. Highlights of the Proposed Lease Tenu: Ten years, with up to three optional 5-year extensions Base Rent: $9,600/year (initially), payable at the beginning of each rent year Additional Rent: $2,700/year (initially) per co-locator. Each proposed co-locator subject to City approval Annual Escalator: the greater of 3 percent or the CPI, applicable both to the Base Rent and to the Additional Rent Performance Bond: $10,000 Tower: monopole, of the maximum height permitted without requiring lights or hazard markings, but not to exceed 190 ft. Tower and antennas painted to match the nearby power pylons in the park. Support equipment: in secure weathertight cabinets mounted on the ground within security fence perimeter, with the fence and compound screened by natural shrubbery and trees approved by the City. Leased premises: 100' x 100' parcel, plus access and utility easements If the lease is approved by the City Council, the proposed project would be subject to review and approval of the Zoning Board of Adjustment. RECOMMENDED ACTION: The Recommended Action is that the City Council, at their July 2, 2001 meeting, set a Public Hearing for their July 16, 2001 for the purpose of considering and acting upon the proposed lease. cc: Barry Lindahl, Corporation Counsel Tim O'Brien, Assistant City Attorney Gil Spence, Leisure Services Manager John Hail, Park Division Manager Preparer: Merrill Crawford, Cable Franchise Administrator Address: City Hall Annex~ 1300 Main Street, Dubuque, IA 52001-4732 Telephone: (563~ 589-4181 RESOLUTION NO. -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 telecommunications 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 Co'mmission 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 tschnical infrastructure by installing and operating a wireless telecommunication antennae facility on land owned by the City of Dubuque, identified as site L-8, and located within Louis Murphy Park at 1700 South Grandview Avenue in Dubuque; and Whereas, The City of Dubuque desires to lease to Telecorp Realty, LLC certain space at site L-8 within Louis Murphy Park for the purpose of installation and operation of a wireless telecommunication antenna facility which includes a · monopole tower, conditioned upon the terms of a lease agreement, a copy of which is attached hereto, and 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; and 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 adopted this 2nd day of July, 2001. Attest: Terrance M. Duggan, Mayor Jeanne F. Schneide~ City Clerk F;\USERS[ Preparer: Merrill Crawford~ Cable Franchise Administrator Address: City Hall Annex, 1300 Main Street~ Dubuque, IA 52001-4732 Telephone: (563) 589-4181 RESOLUTION NO. 300 -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 telecommunications 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 land owned by the City of Dubuque, identified as site L-8, and located within Louis Murphy Park at 1700 South Grandview Avenue in Dubuque; and Whereas, The City of Dubuque desires to lease to Telecorp Realty, LLC certain space at site L-8 within Louis Murphy Park for the purpose of installation and operation of a wireless telecommunication antenna facility which includes a monopole tower, conditioned upon the terms of a lease agreement, a copy of which is attached hereto, and 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; and 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 adopted this 2nd day of July, 2001. Attest: ~,xe~nne F. Schneidler, City Clerk F:\USERS\ Terrance M. Duggan~or Preparer: Merrill Crawford, Cable Franchise Administrator; City Hall Armex. 1300 Main Street~ Dubuque, IA 52001-4732; (563)589-4181 RESOLUTION NO. 318-01 A RESOLUTION OF THE CITY OF DUBUQUE, IOWA, APPROVING OF A LEASE BETWEEN THE CITY OF DUBUQUE AND TELECORP REALTY. LLC, FOR THE INSTALLATION AND OPERATION OF A WIRELESS TELECOMMUNICATION ANTENNA FACILITY WHEREAS, the City Council of the City of Dubuque, Iowa encourages the expansion of wireless telecommunications 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, Teleco~p 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 including a monopole tower on land owned by the City, identified as site L-8, and located within Louis Murphy Park at 1700 South Grandview Avenue in Dubuque; and WHEREAS, the City of Dubuque desires to lease to Telecorp Realty, LLC certain space at site L-8 within Murphy Park for the purpose of installation and operation ora wireless telecommunication antennae facility, conditioned upon the terms of a lease agreement, a copy of which is attached hereto, and 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 negotiate non-material revisions to said lease and to sign and administer the lease on behalf of the City of Dubuque. Passed, approved and adopted this 16th day of July, 2001. Terrance M. Duggan, Mayor Attest: Jeanne F. Schneider, City Clerk Site I.D. City: L-8 Telecorp: DBQ290A TELECOMMUNICATIONS & GROUND SPACE LEASE This Telecommunications Tower 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 Telecorp Realty, L.L.C., 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), known as Site L-8 and located within Louis Murphy Park. The street address of the Owned Premises is 1700 South Grandview Avenue, Dubuque, IA 52003. B. Lessee desires to lease space on the Owned Premises for the installation and operation of a cellular radio-telephone communications antennae facility, which shall include a monopole tower, directional antennae, supporting equipment, connecting cables and appurtenances (collectively, "Wireless Telecommunication 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) ground space on the Owned Premises, and (ii) easements for ingress/egress and utilities as shown on the Site Plan/Legal Description attached as Exhibit B (collectively, the "Leased Premises"). 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 Telecommunication 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. Base Rent a. Upon fulfillment of the Conditions Precedent listed in Section 16 herein and receipt of the Building Permit to construct the Wireless Telecommunications 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 Leased Premises the sum of nine thousand six hundred dollars ($9,600) (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, (including the Co-location Rent), shall be increased annually effective as of each anniversary of the Commencement Date by the greater of 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. B. Co-Location and Co-Location Rent. Lessor acknowledges that the Wireless Telecommunication Facility will be used by other wireless telecommunication entities not party to this Lease, with this additional use to be known as "Co-location". All applications for co-location shall be subject to Lessor's prior written approval. Lessee shall be solely responsible in ensuring that all co-location activities conform to the terms and conditions of this Lease. Lessee warrants that the design of the monopole tower will permit at least three (3) co-locators. Lessee shall inform Lessor in writing of any application for co- location received by Lessee. Lessor shall review all applications and respond in writing within 21 days of receipt of Lessee's written notification. Lessee may accept any application for co-location, if Lessor fails to provide written response within this 21-day review period. Lessee will not unreasonably deny any such application. In the event there are competing applications for co-location, Lessor will give preference, in order of priority, to co-location applications that (1.) serve public safety needs; (2.) serve, or may serve, the greatest nmnber of persons in the City of Dubuque, and (3) place the least demand on the structural integrity and/or the effective use of the telecommunications tower. Lessee shall pay an additional rent ("Co-Location Rent") of Two Thousand Seven Hundred dollars ($2,700) per year for each approved co-location, unless waived by the Lessor. The Co-Location Rent shall be payable as Base Rent. All other rent payment conditions in Section 3 of this Leased shall apply to co-location rent payments. 4. Use of Leased Premises. 3 a. Lessee shall use the Leased Premises for the installation, operation, and maintenance of its Wireless Telecommunication 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 a monopole tower which shall be of the maximum height permitted by law or regulation without hazard painting or lighting. In no event shall the height of the tower and attachments exceed 190 feet above the ground. Lessee may attach to the tower and may operate up to twelve (12) panel-type directional antennae, along with cable, appurtenances, and ground-based support equipment in the course of providing wireless telecommunication services. b. Lessee shaH, 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 Facility on the Leased 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 Leased Premises. (1) The Wireless Telecommunication 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 Facility and any underground improvements from the Leased 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 Leased Premises, including use of the Leased 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 Leased Premises to the conditions which existed prior to 4 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. d. Lessee shall not remove any mature trees from the leased premises without, prior written permission of the City of Dubuque Leisure Services Department. 5. Construction Standards. The directional antennae, equipment building, connecting cables and appurtenances of the Wireless Telecommunication Facility shall be installed on the Leased Premises in a good and workmanlike manner without the attachment of any construction liens. Lessor reserves the right to require Lessee to paint the monopole tower, antennae and appurtenances in a manner consistent with the color of nearby electric power utility support towers. Installation of Equipment. Lessee shall have the right, at its sole cost and expense, to install, operate and maintain its Wireless Telecommunication Facility on the Leased 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. Lessee's installation of such a Wireless Telecommunication Facility shall be done according to plans approved by Lessor, whose approval shall not be unreasonably withheld, delayed or conditioned. Within thirty (30) days of the completion of the initial installation of the Wireless Telecommunication Facility, Lessee shall provide Lessor with as-built drawings of the Wireless Telecommunication Facility and the improvements installed on the Leased Premises, which show the actual location of all equipment and improvements consistent with Exhibit C. Equipment Upgrade. Lessee may update or replace the antennae from time to time with the prior written approval of Lessor, whose approval shall not 5 be unreasonably withheld, conditioned or delayed, provided that the replacement antennae or equipment are not greater in number or size than the existing antennae or equipment and that any change in equipment locations on the Leased Premises is approved in writing by the Lessor. Lessee shall submit to Lessor a proposal for any such replacement antennae, equipment, and any supplemental materials for Lessor's evaluation. Maintenance. a. Lessee shall, at its own expense, maintain the Leased Premises and any equipment on or attached to the Leased 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 Owned Premises by Lessor. Lessee shall not interfere with the use of the Owned Premises, related facilities or other equipment of other lessees. b. Lessee shall have sole responsibility for the maintenance, repair, and security of its tower, equipment, personal property, leasehold improvements, and directional antennae, equipment building, connecting cables, and appurtenances of the Wireless Telecommunication Facility, and Lessee shall keep the same in good repair and condition during the term of the Lease, and as such Lease terms may be renewed and extended. c. Lessee shall keep the Leased 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. 9. Leased Premises Access. a. Lessee shall have 24- hour/7-day access to the Leased 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 ks Wireless Telecommunication Facility. b. Lessor shall keep the street access to the Leased Premises reasonably clear of snow and ice as soon as is practicable after each snowfall. 10~ Utilities. Unless the Leased 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 Leased Premises: Use: Access. Width: 20'; Approximate length: as needed per survey 6 between Leased Premises and the public road known as Grandview Avenue over traveled ways. Use: Utilities. Width: 10'; Approximate length: As needed per survey between the Leased 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 Leased 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, U~ansmitters, 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 Owned Premises or changes in its use. Lessor, and its successors and assigns, shall not use, allow or permit the Owned Premises to be used in any manner which will materially impair the use of the Wireless Telecommunication Facility hereafter erected or located upon the Leased 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 Leased Premises by Lessor, to the facilities or equipment of Lessee installed on the Leased Premises, then Lessor shall immediately cause such transmitter, equipment, antennae 7 or dish to be discontinued from operation until such interference is eliminated. If Lessor cannot eliminate such RF interference, Lessee may terminate 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 shah 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 Leased 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 termination 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 Facility in accordance with Section 4(c) hereof. Re-entry and taking of possession of the Leased 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. 8 15. Performance 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 au 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 Leased Premises; Lessor agrees to cooperate with Lessee in obtaining all such approvals; b. Lessee's teclmical reports must establish to Lessee's exclusive satisfaction that the Leased Premises are capable of being suitably engineered to accomplish Lessee's intended use of the Leased Premises; and c. Lessee's title insurer must determine that Lessor owns good and clear marketable title to the land underlying the Leased Premises, and that such title is free from encumbrances and restrictions which would interfere with Lessee's intended use of the Leased 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 Facility in accordance with Section 4(c) herein. 19. Alteration, Damage or Destruction. If the Leased Premises 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 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 Facility from the Leased 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 Leased Premises vests in the condemning authority. In the event a portion of the Leased Premises is taken by eminent domain, either party shall have the right to terminate this Lease as of said date of title transfer, by giving thirty (30) days' written notice to the other party. In the event of any taking under the power of eminent domain, 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 Leased 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 Leased Premises and its facilities. 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 10 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 Leased 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 Leased 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 Leased 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 Leased Premises herein will not generate or dispose of any hazardous substance on the Leased Premises, and, with the exception of batteries, it will not store on or transport to, or over, the Leased 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 def'med 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. 11 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 Leased Premises, provided such mortgagee or trustee thereunder shall ensure to Lessee the right to possession of the Leased 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 Leased Premises a non-disturbance agreement in form reasonably satisfactory to Lessee. 26. Acceptance of Leased Premises. By taking possession of the Leased Premises, Lessee accepts the Leased Premises in the condition existing as of the Commencement Date. Lessor makes no representation or warranty with respect to the condition of the Leased Premises and Lessor shall not be liable for any latent or patent defect in the Leased 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. 12 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 Leased 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 Leased 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 Leased Premises, and the right of any collateral assignee to seize the Leased Premises as defaulted security, is subject only to the limitation that the Leased 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 t3 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 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 Leased Premises. However, Lessee shall pay, as Additional Rent, any increase in real property taxes levied against the Leased Premises which is directly attributable to Lessee's use of the Leased 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 Telecorp Realty, L.L.C., 1010 North Glebe Road, Suite 800, Arlington, Virginia 22201. 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 14 of Iowa. 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 term of this Lease beyond expiration of the cure period set forth in paragraph 12 above. END OF AGREEMENT (Signature Page Follows Next) 15 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 By: Michael C. Van Milligen City Manager ATTEST: By: Jeanne F. Schneider City Clerk Lessee: TeleCorp Realty, LLC By: TeleCorp Communcations, Inc. Its: Managing Member By: Print Name: Title: Date: 16 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: 17 EXHIBIT A Legal Description of the Owned Premises Lots No. eleven (11), twelve (12), and thirteen (13) in Rowan's Addition in the City of Dubuque, Iowa, according to the recorded plat thereof. 18 EXtlIRIT B Site Plan/Legal Description of The Leased Premises EXHIBIT C Equipment to be Placed on The Leased Premises The following Tower and 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. · A 190' monopole wireless telecommunications tower. · Twelve (12) panel antennas measuring approximately 60" height x 6" width x 2.75" depth (mounted at 190' on the Tower). · Twelve (12) cables measuring 1 5/8". · Equipment cabinets on a support frame contained within Leased Premises. · Two (2) microwave dishes measuring approximately two feet (2') in diameter mounted at a height to be agreed upon by Lessor and Lessee at a later date. · Two (2) cables measuring 7/8". 20 EXHIBIT D Protected Users of the Premises This is the first lease granted for a wireless telecommunication antenna facility on or near the Leased Premises. For the purpose of determining rf interference, there are no Protected Users. 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 finnish 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 Products - Completed Operation Aggregate Limit Personal and Advertising Injury Limit Each Occurrence Limit Fire Damage Limit (any one occurrence) Medical Payments $2,000,000 $1,000.000 $1,000,000 $1,000,000 $ 5O,000 $ 5,000 OR Combined Single Limit Medical Payments $2,000,000 $ 5,OOO 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.