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Iowa Wireless Services Lease Space_Pennsylvania Water TowerTHE CITY OF Dubuque :_: Masterpiece an the Mississippi 3 , ,j 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Set Public Hearing for Proposed Lease of Space to Iowa Wireless Services, LLC for a Telecommunication Antenna Facility on the Pennsylvania Avenue Water Tank DATE: January 15, 2008 Water Department Manager Bob Green recommends that a public hearing be set for February 4, 2008, to consider leasing space on the City water tank at 4136 Pennsylvania Avenue and adjacent ground space to Iowa Wireless Services, LLC to support a wireless telecommunication antenna facility. I concur with the recommendation and respectfully request Mayor and City Council approval. <~~ ~ ~- ~, `i~~- Michael C. Van Milligen`~ MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Bob Green, water Department Manager THE CTTY OF DUbUgU@ Dui ~ Masterpiece on the Mississippi ,, 2007 TO: Michael C. Van Milligen, City Manager FROM: Bob Green, Water Department Manager~~~ SUBJECT: Set Public Hearing for Proposed Lease of Space to Iowa Wireless Services, LLC for a Telecommunication Antenna Facility on the Pennsylvania Avenue Water Tank DATE: December 20, 2007 INTRODUCTION The purpose of this memorandum is to recommend that the City lease space on its water tank site W-5 located at 4136 Pennsylvania Avenue and adjacent ground space to Iowa Wireless Services, LLC an Iowa Corporation d/b/a iwireless to support a wireless telecommunication an#enna facility. BACKGROUND Previous 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, tall 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. Representatives of Iowa Wireless Services, LLC, a wireless business telecommunications service provider have proposed leasing space on top of the City's Water Tank at 4136 Pennsylvania (site W-5) and adjacent ground space to support communication antenna, cable and brick equipment shelter as to match the existing structure as a part of a wireless network they are extending into the Dubuque area. Research has determined that an existing communication tower not far from that site is unable to safely support the facility. HIGHLIGHTS OF THE PROPOSED LEASE Iowa Wireless Service, LLC would be permitted to attach three Azimuth antennas to an existing railing or other approved mounting brackets on top of the tank, and to extend transmission cables down the existing service drain pipe to the ground. Iowa Wireless Service, LLC would also construct and maintain an equipment shelter on the ground to house transmission equipment and would pay all utility costs associated with the operation. Antennas and cables would be painted #o match the water tower and the placement and brick facade of the equipment shelter would be coordinated with the design of the City's new booster station planned for the site. Any future changes would be subject to City approval. Term of the {ease would be 20 years with two optional 5-year extensions Iowa Wireless Services, LLC would pay to the Gity an annual rent beginning at $15,500 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 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 chose to purchase from Iowa Wireless Services, LLC would be at the most favorable rate given any of the company's similarly-situated customers. With the exception of the specific description of the premises and details of facility placement and attachment, the terms of this proposed lease are identical to those of a lease to Nextel Partners on the site W-5, Pennsylvania Water Tower which the City Council approved in January, 2000. Attached is a copy of the proposed lease with Insurance Schedules and a Resolution to set date of public hearing for approval and in authorizing the City Manager to sign and administer it. This Lease Agreement with Insurance Schedules and Resolution have been reviewed and approved by City Attorney Barry Lindahl. RECOMMENDED ACTION The Recommended Action is that the attached Resolution setting a public hearing on the proposed Lease Agreement be received, filed and adopted by the City Council. BG:ve Attachments cc: File RESOLUTION NO. 27-08 RESOLUTION OF INTENT TO DISPOSE OF AN INTEREST IN REAL PROPERTY OWNED BY THE CITY OF DUBUQUE BY LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND IOWA WIRELESS SERVICES, 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 communication 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, Iowa Wireless Services, LLC is the holder of a current Federal Communications Commission License to provide certain wireless communication services for sale in and around the City of Dubuque; and WHEREAS, Iowa Wireless Services, 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 antenna facility on or near a water storage tank owned by the City of Dubuque identified as site W-5 and located at 4136 Pennsylvania Avenue in Dubuque, Iowa; and WHEREAS, the City of Dubuque desires to lease to Iowa Wireless Services, LLC certain space on top of the site W-5 water tank along with adjacent ground space for the purpose of installation and operation of a wireless telecommunication facility; and WHEREAS, representatives of Iowa Wireless Services, LLC and the City of Dubuque have negotiated terms for a Lease Agreement, now on file with the City Clerk, which the City Council finds beneficial to the community; and WHEREAS, the City Council has tentatively determined that it would be in the best interest of the City to enter into the Lease Agreement. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The City Council of the City of Dubuque intends to lease space on the top of the Pennsylvania Avenue water tank and ground space below, or adjacent to the tower in support of an equipment building pursuant to the terms of the Lease Agreement. Section 2. The City Clerk is hereby authorized and directed to cause this Resolution and Notice to be published as prescribed by Iowa Code Section 364.7 of a public hearing on the City's intent to lease space on top of a city water tank and ground space at its base or adjacent to R, to be held on the 4t" day of February, 2008, at 6:30 o'clock p.m. at the City Historical Federal Building, 350 W. 6'h Street, Dubuque, Iowa. Passed, approved and adopted this 22nd day of January, Ric W. Jones, Mayor Pro-Tem Jeanne F. Schneider, City Clerk r Site ID City: W5 (wireless-IA-0280 WATER TOWER 8~ GROUND SPACE LEASE This Water Tower and Ground Space Lease (the "Lease") is made and entered into this day of , 2008, 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 Iowa Wireless Services, LLC d/b/a: iwireless, whose address is 4135 NW Urbandale Drive, Urbandale, Iowa 50322 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 4136 Pennsylvania Avenue, Dubuque, IA 52002. B. Lessee desires to lease space on the top of the Tower and Ground Space below, or adjacent to, the Tower (the "Ground Space") for the installation and operation of a cellular radio-telephone communication antenna facility, which shall include Azimuth Antenna(s), an equipment building, connecting cables and appurtenances (collectively, "Wireless Telecommunication Antenna 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 Tower, (ii) sufficient Ground Space below, or adjacent to, the Tower to place its equipment shelter, and (iii) easements for ingress/egress and utilities as shown on the Site Plan/Legal Description attached as Exhibit B (collectively, the "Leased Premises"). Lessee intends to locate its antenna on the circular railing ("the Railing") as more fully described on the attached Exhibit C. Lessee may not add additional equipment and/or antenna(s) from that shown on Exhibit C without the prior written approval of the Lessor. Lessor reserves the right to require Lessee to relocate its antenna(s) and. equipment to other locations on the Railing or Tower. Lessee shall complete the relocation of its antenna(s), connecting cables and appurtenances within thirty (30) 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 Radio Frequency (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 19 herein. 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 permit must be obtained separately. 2. Term. The initial term of this Lease shall commence on the date the building permit is approved (the "Commencement Date") and end on the twentieth Anniversary of the Commencement Date. Lessee shall have the option to renew this Lease for up to two (2) 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. Lessee shall pay to Lessor as annual rent for the Leased Premises the sum of fifteen thousand five hundred dollars ($15,500) (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 18 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 an amount equal to the greater of three percent (3%) of the previous year's Base Rent or the percentage increase in the CPI for the 12 months prior to the adjustment date. Lessor is required to provide Lessee an invoice annually for the amount of increase and the calculation of the CPI. "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. 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 similarly-situated customers. 4. Use of Premises. a. Lessee shall use the Leased Premises for the installation, operation, and maintenance of its Wireless Telecommunication Antenna 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 three (3) rod-type Azimuth Antenna(s). Lessor may permit others to use other portions of the Tower 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 Antenna 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. c. (1) The Wireless Telecommunication Antenna 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 Antenna 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 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. Waiver of Lessor's Lien. Lessor acknowledges that Lessee has entered into a financing arrangement including promissory notes and financial and security agreements for the financing of the Wireless Telecommunication Antenna Facility (the "Collateral") with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith Lessor (i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. 6. Construction Standards. The azimuth antenna(s), equipment building, connecting cables and appurtenances of the Wireless Telecommunication Antenna 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 antenna in a manner consistent with the color of the Tower. 7. Installation of Equipment. a. Lessee shall have the right, at its sole cost and expense, to install, operate and maintain its Wireless Telecommunication Antenna 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. b. Lessee's installation of such a Wireless Telecommunication Antenna Facility shall be done according to plans approved by Lessor, whose approval shall not be unreasonably withheld. Any damage done to the Tower, the Railing and/or other structures by Lessee or its contractors or representatives 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 Antenna 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 Antenna Facility, Lessee shall provide Lessor with as-built drawings of the Wireless Telecommunication Antenna Facility and the improvements installed on the Leased 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 antenna located on the Tower. 8. Equipment Up rq ade. Lessee may update or replace the antenna(s) from time to time with the prior written approval of Lessor, whose approval shall not be unreasonably withheld, provided that the replacement antenna are not greater in number or size than the existing antenna(s) and that any change in antenna locations on the Railing of the Tower is approved in writing by the Lessor. Lessee shall submit to Lessor a proposal for any such replacement antenna and any supplemental materials for Lessor's evaluation. 9. 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 Railing or other portions of the Tower by Lessor. Lessee shall not interfere with the use of the Railing, 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 omnidirectional antenna(s), equipment building, connecting cables, and appurtenances of the Wireless Telecommunication Antenna 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. d. In the event the Lessor or any other lessee undertakes painting, construction, repair or other alterations on the Railing or the Tower, Lessee shall take reasonable measures at Lessee's cost to cover Lessee's equipment, personal property, leasehold improvements, and azimuth antenna(s), equipment building, connecting cables, and appurtenances of the Wireless Telecommunication Antenna 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 Antenna Facility, the Railing 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. 10. Premises Access. a. Lessee shall have 24-hour/?-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 its Wireless Telecommunication Antenna Facility. b. Lessee shall have reasonable access to the Tower in order to install, operate and maintain its antenna, connecting cables, and appurtenances. Lessee shall have access to such Tower only with the prior written approval of Lessor. Lessee shall request access to the Tower 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 Leased Premises reasonably clear of snow and ice as soon as is practicable after each snowfall. 11. Utilities. Unless the Leased Premises is immediately adjacent to public right-of- ways 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 between Premises and the public road known as Pennsylvania 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. 12. RF Interference. a. Non-interference by Lessee. The Wireless Telecommunication Antenna 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 Leased 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 antenna(s), transmitters, receivers, or other radio or electronic transmitting or receiving equipment located on the Leased 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 Leased Premises or changes in its use. Except for the Protected Users, Lessor, and its successors and Assignee, shall not use, allow or permit the Leased Premises to be used in any manner which will materially impair the use of the Wireless Telecommunication Antenna 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 communication signals to and from the facilities or equipment of Lessee. If any harmful RF interference shall result from any such transmitters, equipment, antenna(s), or dishes permitted on the Leased Premises by Lessor, other than the Protected Users, to the facilities or equipment of Lessee installed on the Leased Premises, then Lessor shall immediately cause such transmitter, equipment, antenna 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 20 herein. 13. 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. 14. 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 thirty (30) days, provided Lessee makes a good faith showing that efforts toward a cure are continuing. 15. 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 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 to 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 Antenna Facility in accordance with Section 4(c) hereof and pay Lessor Additional Rent in the amount of fifty percent (50%) of the annual rent for the year in which such termination occurs. 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 twentieth year of the term, or during either of the two optional five-year extensions of the term, the amount of the Additional Rent due upon termination shall be zero. 16. 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 an amount not less than ten thousand dollars ($10,000) and in a form mutually satisfactory to the parties. 17. 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 and permits relating to Lessee's intended use of the Leased Premises; Lessor agrees to cooperate with Lessee in obtaining all such approvals and permits; b. Lessee's technical 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. 18. 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. 19. 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 and paying Lessor an amount equal to fifty percent (50%) of the annual rent for the year in which such termination occurs as Additional Rent. Upon such termination, Lessee shall remove the Wireless Telecommunication Antenna Facility in accordance with Section 4(c) herein. 20. Alteration, Damage or Destruction. If the Railing or Tower 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 Antenna 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 Antenna Facility from the Leased Premises in accordance with Section 4(c), less any alteration, damage or destruction hindering effective use of the Railing or Tower. 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. 21. 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 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, antenna, connecting cables, appurtenances, and other leasehold improvements. 22. Mutual Indemnification. a. Lessee's Indemnification. Lessee agrees to hold Lessor, it's officers and employees, harmless, indemnify them, and, at Lessor's option, defend them from and against all liability, damages, losses, costs, causes of action, charges and expenses, including reasonable attorney fees, which they 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. 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 Leased Premises and the easement parcels are a part. Lessee acknowledges, however, that Lessee 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 covenants with Lessor that in no event and/or under no circumstances shall Lessor; or its officers, directors, members, or employees, be liable to Lessee or to any other person or entity for consequential damages relating to or arising out of Lessee'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 Lessor's negligent actions or omissions. 23. Insurance. Lessee shall provide such insurance as is required by the Insurance Schedule attached hereto. 24. Environmental Warranty. Lessee agrees that it will not use, generate, store or dispose of any Hazardous Material on, under, about or within the Owned Premises in violation of any law or regulation. Lessor represents, warrants and agrees (1) that neither Lessor nor, to Lessor's knowledge, any third party has used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any Hazardous Material on, under, about or within the Owned Premises in violation of any law or regulation, and (2) that Lessor will not, and will not permit any third party to use, generate, store or dispose of any Hazardous Material on, under, about or within the Owned Premises in violation of any law or regulation. Lessor and Lessee each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any representation, warranty or agreement contained in this paragraph. As used in this paragraph, "Hazardous Material" shall mean petroleum or any petroleum product, asbestos, any substance known by the State in which the Owned Premises is located to cause cancer and/or reproductive toxicity, and/or any substance, chemical or waste that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. This paragraph shall survive the termination of this Lease. 25. 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. 26. 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 anon-disturbance agreement in form reasonably satisfactory to Lessee. 27. Acceptance of 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. 28. 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. 29. Notices. All notices and correspondence shall be sent to the following: Lessor: City Manager Lessee: Iowa Wireless Services City of Dubuque Attn: Jeff B. Patten 50 W. 13th Street Real Estate Manager Dubuque, IA 52001-4845 4135 Urbandale Drive Urbandale, Iowa 50322 30. Assignment of Lease by Lessee. Lessee may not assign, or otherwise transfer all or any part of its interest in this Lease or in the Leased Premises without the prior written consent of Lessor; provided, however, that Lessee may assign its interest to its parent company, any subsidiary or affiliate of it or its parent company or to any successor-in-interest or entity acquiring fifty-one percent (51 %) or more of its stock or assets, subject to any financing entity's interest, if any, in this Lease as set forth in Paragraph 5 above. Lessor may assign this Lease upon written notice to Lessee, subject to the assignee assuming all of Lessor's obligations herein, including but not limited to, those set forth in Paragraph 5 above. Notwithstanding anything to the contrary contained in this Lease, Lessee may assign, mortgage, pledge, hypothecate or otherwise transfer without consent its interest in this Lease to any financing entity to whom Lessee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. 31. 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. 32. 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. 33. Modifications. This Lease may not be modified, except in writing signed by the party against whom such modification is sought to be enforced. 34. 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. 35. 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. 36. Property Taxes. a. Lessee shall pay any personal property taxes assessed on, or any portion of such taxes attributable to, the Wireless Telecommunication Antenna 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 Iowa Wireless Services LLC 4135 Urbandale Drive, Urbandale, Iowa 50322, Attention: Real Estate Manager, Jeff B. Patten. 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. 37. 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. 38. 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. d. Lessor acknowledges that a Memorandum of Lease in the form annexed hereto as Exhibit E will be recorded by the Lessee in the official records of Dubuque County, Iowa. e. In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Lease, such party shall not unreasonably delay or otherwise withhold its approval or consent. f. All Riders and Exhibits annexed hereto form material parts of this Lease. g. This Lease may be executed in duplicate counterparts, each of which shall be deemed an original. 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 By: ATTEST: gy: Jeanne Schneider City Clerk Michael C. Van Milligen City Manager Lessee: Iowa Wireless Services, LLC By: Name: Michael S. Haskins Title: CEO/COO EXHIBIT A LEGAL DESCRIPTION OF THE OWNED PREMISES Lot 2 of 2, A.C. Pfohl Place, Dubuque, Iowa. EXHIBIT B SITE PLANltEGAL DESCRIPTION OF THE PREMISES aKa3x; ~.., < ... ~~ ~ __ ... 11•r A ~: -N1' ~ '. ... _. _.. .._. ... _. r-..-~ ~-x[;.cn aECCS'u .~ w ~ f ` ~ ~ i ~ '~ i ! :?'~'~° _.. i ~ s we~c~ i ;~ ~t 3 iNRN~TR'N?; ~? ~. t ~ i .~ e' ~~P.L-*' 0 ! t '7l J!Sf(.vi'2' '_..3",~li rl ~__.... !:3^t'5; 14 :! ~--_:._...-_l •-- w -- ~ !' /~ , 5.33. ~ I. r~ mo ' ~ / .. ~: . ~ \._.. i p o `~ - }~ 7 ~ 3 1 u~,;: 'a _. -- ., ~,r. ~,_ .~ . r . ~ ~:~ 4~~ .._._....._ _.__... ~ ~~~. ••.•~• •'.i;. P.C.G-~ SITG aU,a`'° ;~;•. w' EXHIBIT C EQUIPMENT TO BE PLACE ON THE PREMISES One (1) 10' x 12' equipment shelter, bricked to match existing buildings. Three Azimuth antennas placed on railing on top of the Water Tower. Each antenna approximately 4 to 5 feet in height, 6 to 8 inches in width, white in color. Transmission lines from antennas to equipment (underground from water tower to equipment shelter). _ _ mwr ac enr ur[J i 4 ~i ~ ' HoR. Cana MWNRD TO oKRLtOw PIPE Wj SR£L Enn~D~uG /JlD BAHD DH HANGER ' ' ,6h ~ ' 1 ~ ~ ~ ~ i i BRAIXEI EKRY 9 NICE OKRELOw P .PE W151pE GGCCINBWL LAODERrcnGIXEENiTo ANCLF AD~DlERS AND 1-BRACMTG , i aas[xm L,M-~ y mavoSfouMmwp mrxXauEF E I fmir+c xiw ,wruw.' i I rnM~~£3mcCo cpcwr a[oviaER HEiEx x.,xov/+L ':~,/, ~~ ~ / .. ' rtxr ~/ ~'~,%''t ~ uMln USE~Kx1 m .vnvLH i , ~ ~ .Nm,NAS Urc .RRROau na . / o----~------ gmNC N.,Ep ,.,N- - Woss~. a~c.sc~. ~ ~~~/ ~ ~ . i '~ ~ u~ wMOww i';i 0 ~ w j rnN...~o µre.r v%i. lip , (f~ y ssi~ Ar . ~ o 5 BOM G95~ // i~~ / ,~~ ~ i ~ iEma i i ~/ aa~~.. xnxwu~ ~,cau R. ~-AF-~ I ro po ~ F.xwaxo p rw n ~D~PEprnxcl'ww •x~[rM ~ i _ __ _ _ C u u D uw,Rn[~ELc o uw1 IRFL .a .:x Ea.ACN, s~artx. ro unm, Evsn.e . mNC .o w/ PoonNa „ irk 9¢ree, Pw~N.`wurR.cn~ sPLaHUnws waxoE^R' . ~e' Lc 7 SITE PIAh EXHIBIT D PROTECTED USERS OF THE LEASED PREMISES 1. City of Dubuque The City of Dubuque currently operates no antenna or transmission equipment on the W-5 water tower. But does currently lease space to Nextel Partners, 4500 Carillion Point, Kirkland, WA 98033 to support of three (3) Omnidirectional Antennas with equipment building at base of stand pipe. INSURANCE SCHEDULE A INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE 1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A or better in the current A.M. Best Rating Guide. 2. All policies of insurance shall be endorsed to provide a thirty (30) day advance notice of cancellation to the City of Dubuque, except for 10 day notice for non- payment, if cancellation is prior to the expiration date. This endorsement supersedes the standard cancellation statement on the Certificate of Insurance. 3. shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 6 below. Such certificates shall include copies of the following policy endorsements: a) Commercial General Liability policy is primary and non-contributing. b) Commercial General Liability additional insured endorsement. c) Governmental Immunity Endorsements. 4. Each certificate shall be submitted to the contracting department of the City of Dubuque. 5. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement. 6. shall be required to carry the following minimum coverage/limits or greater if required by law or other legal agreement: a) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products-Completed Operations 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 This coverage shall be written on an occurrence, not a claims made form. Form CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be included. All deviations or exclusions from the standard ISO commercial general liability form CG 0001, or Business Owners form BP 0002, shall be clearly identified. INSURANCE SCHEDULE A (Continued) INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE Governmental Immunity Endorsement identical or equivalent to form attached. Additional Insured Requirement: 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 shall be named as an additional insured on General Liability Policies using ISO endorsement CG 20 26 0704 "Additional Insured -Designated Person or Organization," or it's equivalent. - See Specimen b) WORKERS' COMPENSATION ~ EMPLOYERS LIABILITY Statutory for Coverage A Employers Liability: Each Accident $100,000 Each Employee -Disease $100,000 Policy Limit -Disease $500,000 c) UMBRELLA EXCESS LIABILITY LIQUOR OR DRAM SHOP LIABILITY Coverage to be determined on a case by case basis by Finance Director. 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''Y injury' Or "p~c,rt:~rtr J~.rr~af,~~" rr~ru:k~9 irr Ura "~~t}c~:t~v'~rif I ~~~,:: u3~El~lti.~,hS tt~r~rd' a ttsdt~`iB ~ft'J1t1u~ =.-~:txr~::r^1ed Urrrr~crr~ ~(d' ~re~#3 L°ril ~rlq ~~ f~UCk9 ~r&3d - ~re~~fe lsmal rat taesna~;s I.r"xr t;e:°~- erni Ata i.~it D. ~~ t t~`A tat 411' ~ Ae~'i- nitia-~ cn ~ t!.rar~te;! ery Grp a~!^Jitt~a store fat#c~rrirtg ~sinit~ss. 'Lt5G8liOtt" t'St'.e1rt$ (Ntt`135~ 311a4)tS~ t#¢ tf° $~R1S tN t:Ct'at~Cb~ i~~, tY ~°4~fi vt`3t'i$~ r.~ttvzic- ~fatt i$ NK~`itaJ4~t! ~ rvy 8 3Y~E3~?. tt5iii~t4'it} Yttd moray ar rig±-t oral of a rca~t, E, r h8 {aT~cwt~KHts tat 4 ttrctis L`i! Inrsutan:~ i~="tt~N 1#i~ rtaR t~tt€rtursrsa~ ~EO~ ~E~::s;rse •rcrrr ~n~ir coat tsa aRP as aka SPECIMEN +~t"~r t~;v f+hltdf3t"ft rxast~ac~u.r:twrW rane,1<rr~r ~~ as ©7 oa TN3~ ENDORSENT CHANGES THE P{~tiCY, Pt.~ASE R~AC- iT G~REFL1Li.Y. At~al~'IC}NJ~L. lNuUREQ -~ DESIG~dATEC~ PERSt3N QR ORGJ~t~I~-TIf.~N cx~ curt. a1=~ta~ ~~ln ~;ovl~~ac~ art scli~~u~>r w _ __ h~e ~#AtfditiansM #nr~rntd P~S)Ar Organizatioa~s~ Tt~f C-,y tali Oubuqua, fit~t«it~t~in~ ~al! !G~ efewt?ri ar~rr aa~~~~aintr°.ci ;:~'fi~tst nil ins ~itr~eaa:. gad satalurrL~f-~., .alt ~-~ i•oflat`ts, ~:wrais°xians ~rtd,~ar avi:rtor4ties acrd L~~ir aa~rr; ~~E~aa#>:~r5, ~~r~rz;,~ax rn~ ~c~lu~te~r~, ___._. _ _ ...... ..a ttOl'Sht7Vt'4$~btlN~. ~.~kJEffi`K3~Wtalttih~TlwCla~atit~r4 S4s:iinri tt -- Who is J1n inauros! iL6 efw9e affi Edti~ior~ insutad th, r'k~rc~~":~1 sx s>riay~ z,~t,>n#aj s4~ ;n the tturc, bat yip vui~ retl.+te2 ka N~~~1v fear ~i~ aa:,r•< "p++gptziy ~ns~e" tN ".,s^r:~ ~'rd ~lvBr~Si=~ r=ur~l ~~vs+~C in rated! nr ~:,- ~~, y~r ~c~ ar vrTat3sgi`3 sX the oi' O~a~- '!'~ _+', tYlJ~6 ia':::ltlt~ fi[t }jd3Uf ~N?t'~r:. A, tt1C petint~nnant~ of arwsr ~~ ~~ ar F.t. ~ crnnt®e~t ~ ttgt.*a yc+~te ~re±nisea cwxted tay ~ aptt~N~S try fur ... +~ ,, ,~, C.t: Ott ;na t17 na ia+fSt3 P Ian.. ~£~1a4 Pape t ~ 1 C:I` CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and states that the purchase of this policy 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 insurance carrier 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 shall 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 insurance carrier. 4. Non-Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier 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 defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN Site I.D. City: W-5 Tireless: IA-0280 EXHIBIT E MEMORANDUM OF LEASE CLERK: Please return this document to: Iowa Wireless Services, LLC 4135 NW Urbandale Drive Urbandale, Iowa 50322 Attn: Real Estate Manager This Memorandum of Lease is entered into this day of , 2008, by and between the City of Dubuque, Iowa, a Municipal Corporation, created and existing under the laws of the State of Iowa, with an office at 50 West 13th Street, Dubuque, Iowa 52001-4845, (hereinafter referred to as "Lessor") and Iowa Wireless Services, LLC, an Iowa Corporation with an office at 4135 NW Urbandale Drive, Urbandale, Iowa 50322 (hereinafter referred to as "Lessee"). 1. Lessor and Leasee entered into a Water Tower and Ground Space Lease ("Lease") on the day of , 2008, for the purpose of installing, operating and maintaining a radio communications facility and other improvements. All of the foregoing is set forth in the Lease. 2. The term of the Lease is for twenty (20) years commencing on 2008, ("Commencement Date"), and terminating on the twentieth (20t ) Anniversary of the Commencement Date with two (2) successive five (5) year options to renew. 3. The Land which is the subject of the Lease is described in Exhibit A annexed hereto. The portion of the Land being leased to Lessee (the "Premises") is described in Exhibit B annexed hereto. ACKNOWLEDGMENTS STATE OF IOWA ) )ss: COUNTY OF DUBUQUE ) On this day of , 2008, before me a Notary Public in and for the State of Iowa, personally appeared Michael C. Van Milligen and Jeanne 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. Given under my hand and seal this day of , 2008. Notary Public My commission expires: STATE OF ) )ss: COUNTY OF ) On this day of 2008, before me, a Notary Public personally appeared Michael S. Haskins, to me personally known, who being by me duly sworn, did say that he is the CEO/COO of Iowa Wireless Services, LLC, a Delaware limited liability company, executing the foregoing instrument, that no seal has been procured by the corporation; that the instrument was signed on behalf of the corporation as by the authority of the Corporation's Board of Directors; and that as such officer acknowledged execution of the instrument to be the voluntary act and deed of the corporation and limited partnership by it and by them voluntarily executed. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public My commission expires: