Telecorp Realty Lease - 3rd St. TowerRESOLUTION NO. 117-01
A RESOLUTION OF ~ CITY'S INTENT TO DISPOSE OF INTEREST IN
PROPERTY DESCRIBED IN A LEASE BETWEEN THE CITY OF DUBUQUE,
IOWA AND TELECORP REALTY, LLC FOR THE INSTALLATION AND
OPERATION OF A WIRELESS TELECOMMUNICATION FACILITY.
WHEREAS, the City Council of the City of Dubuque, Iowa encourages the expansion of wireless
telecommunication services to its citizens, businesses, and institutions, while at the same time
minimizing safety and aesthetic concerns posed by the consWaction of new towers and monopoles in
residential areas, and
WHEREAS, Telecorp Realty, LLC is the holder of a current Federal Communications Commission
license to provide certain wireless telecommunication services for sale in and around the City of
Dubuque, and
WHEREAS, Telecorp Realty, LLC desires to expand its signal coverage area and enhance the quality
and capacity of its technical infrastructure by installing and operating a wireless telecommunication
antennae facility on and near a water tower owned by the City of Dubuque, identified as site W-2, and
located at 1525 West Third Sl~eet in Dubuque, and
WHEREAS, the City of Dubuque desires to lease to Telecorp Realty, LLC certain space on the water
tower site W-2 lower catwalk, along with adjacent ground space, for the purpose of installation and
operation of a wireless telecommunication antenna facility, and
WltERE~S, representatives of Telecorp Realty, LLC and of the City of Dubuque have negotiated
terms for such a lease, a copy of which is attached hereto, which the City Council finds beneficial to the
community.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the City of Dubuque, Iowa intends to dispose of an interest in the property
described in the proposed lease agreement with Telecorp Realty, LLC, under the conditions stipulated in
the lease agreement.
Section 2. That the City Clerk is hereby authorized and directed to cause a notice to be
published of the proposed lease agreement in the manner prescribed by law.
PASSED, APPROVED, and ADOPTED this 19 day of March, 2001.
Terrance M. Duggan, Mayor
ATTEST:
Jeanne F. Schneider, City Clerk
CITY OF DUBUQUE, IOWA
MEMORANDUM
March 15, 2001
TO:
FROM:
SUBJECT:
The Honorable Mayor and City Council Members
Michael C. Van Milligen, City Manager
Proposed Lease of Space to Telecorp Realty, LLC, for a Telecommunication
Antenna Facility On the City's Elevated Water Tank at 1525 West Th'sd Street
Cable Franchise Administrator Merrill Crawford is recommending that a public hearing be set
for April 2, 2001, to consider a lease of space to Telecorp Realty, LLC, for a telecommunications
antenna facility on the City's elevated water tank at 1525 West Third Street.
I concur with the recommendation and respectfully request Mayor and City Council approval.
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Merrill Crawford, Cable Franchise Administrator
CITY OF DUBUQUE, IOWA
MEMORANDUM
March 9, 2001
MEMO TO: Michael C. Van Milligen, City Manager
FROM: Merrill Crawford, Cable Franchise Administratorf~
SUBJECT: Proposed Lease of Space to Telecorp Realty, LLC, for a Telecommunication
Antenna Facility On The City's Elevated Water Tank at 1525 West Third Street
INTRODUCTION: The purpose of this memorandum is to recommend that the City lease space
on its water tank site W-2, located at 1525 West Third Street, and adjacent ground space, to
Telecorp Realty, LLC, an Arlington, VA company, to support a wireless telecommunication
antennae facility.
BACKGROUND: Recent changes in technology and telecommnnication 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.
A representatives of Telecorp Realty, LLC, a wireless telecommunications service provider, has
proposed leasing space on the lower catwalk the City's elevated water tank at 1525 West Third
St., (Site W-2) and adjacent ground space, to support communication antennae, cable, and an
equipment cabinet as a part of a wireless network they are extending into the Dubuque area.
Three other wireless teleconununications service providers, US.Cellular, Nextel, and Iowa
Wireless, currently operate similar facilities on the property in accordance with leases
comparable to that proposed for Telecorp.
Highlights of the Proposed Lease
Telecorp would be permitted to attach a set of antennas to the existing lower catwalk which
extends around the circumference of the tank, and to route transmission cables down a
supporting leg to the ground. Telecorp would also install and maintain an equipment shelter on
the ground to house transmission equipment, and would pay all utility costs associated with the
operation. Antennas would be painted to match the water tower, and the placement and color of
the equipment cabinet would be coordinated with the water tank and existing buildings.
Additional arbor vitae would be planted along the inside of the security fence which separates the
facility from the adjacent Cancer Survivors Park. Any future changes would be subject to City
approval.
Term of the lease would be 10 years, with three optional 5-year extensions.
Telecorp would pay to the City an annual rent beginning at $13,200 and escalated annually by the
greater of 3 percent or the percentage increase of the CPI. In the unlikely event of an early
termination of the lease, the Lessee would pay an additional amount equal to 50 percent of the
rent due for the year in which early termination occurred. In addition, the company would
provide a performance bond in the amount of $10,000 during the full term of the lease in case
costs were incurred by the City in removing abandoned antennas or equipment. Also, any
wireless communication services the City of Dubuque chose to purchase from Telecorp would be
at the most favorable rate given any of the company's similarly-situated customers.
With the exception of the ten-year initial term, specific description of the premises and details of
facility placement and attachment, the terms of this proposed lease are comparable to those of the
other similarly-situated tenants on the property.
Attached are a copy of the proposed lease and a resolution of intent to dispose of interest in the
property.
RECOMMENDED ACTION: The Recommended Action is that the proposed resolution and
lease be placed on the agenda of the March 19, 2001 City Council meet'mg, to be set for a public
hearing and final action on April 2, 2001.
Cc: Bob Green, Water Department Manager
Barry Lindahl, Corporation Counsel
Tim O'Brien, Assistant City Attorney
Site I.D.
City: W-2
Telecorp: DBQ284
WATER TANK & GROUND SPACE LEASE
This Water Tank and Ground Space Lease (the "Lease") is made and entered into
the __ day of ,2001, by and between THE CITY OF DUBUQUE, IOWA,
acting by and through its City Manager, whose address is 50 W. 13th Street, Dubuque,
IA 52001 -4845, hereinafter referred to as "Lessor", and hereinafter
referred to as "Lessee".
Background
A. Lessor is the owner in fee simple of a parcel of land located in the City of
Dubuque, Dubuque County, State of Iowa, legally described on the attached Exhibit A
(the "Owned Premises), on which a water tower (the "Tower") is located. The street
address of the Owned Premises is 1525 West Third Street, Dubuque, IA 52001.
B. Lessee desires to lease space on the lower catwalk of the Tower (the
"Catwalk") and ground space below, or adjacent to, the Tower (the "Ground Space") for
the installation and operation of a cellular radio-telephone communications antennae
facility, which shall include directional antennae, an equipment building, connecting cables
and appurtenances (collectively, "Wireless Telecommunication Antennae Facility) for use
in connection with its communication business.
C. Accordingly, the parties are entering into this Lease on the terms and
conditions set forth below.
Agreement
In consideration of their mutual covenants, the parties agree as follows:
1. Leased Premises. Lessor leases to Lessee and Lessee leases from Lessor a
portion of the Owned Premises, consisting of (i) space on the lower Catwalk, (ii)
sufficient Ground Space below, or adjacent to, the Tower to place its equipment
building, and (iii) easements for ingress/egress and utilities as shown on the Site
Plan/Legal Description attached as Exhibit B (collectively, the "Premises"). Lessee
intends to locate its antennae on the Catwalk as more fully described on the attached
Exhibit C. Lessee may not add additional equipment and/or antennae from that
shown on Exhibit C without the prior written approval of the Lessor.
Lessor reserves the right to require Lessee to relocate its antennae and
equipment to other locations on the Catwalk if required in connection with the
Lessor's actual use and maintenance of the tower or if the initial placement
interferes with users which pre-date this lease. Lessee shall complete the relocation
of its antennae, connecting cables and appurtenances within sixty (60) days after
receiving written notice from Lessor. The relocation shall be at the Lessor's
expense, and such expense shall be approved by Lessor prior to Lessee's relocation.
If such relocation does not meet Lessee's RF requirements or interferes with
Lessee's transmission, reception and operation of its communications system and
uses incidental thereto, Lessee may terminate this Lease in accordance with Section
18 herein.
This Lease is not a franchise pursuant to state, local, or federal law, nor is it
a permit to use the rights-of-way. Any such franchise or permit must be obtained
separately.
2. Term. The initial term of this Lease shall commence upon the award of the
Building Permit by the City of Dubuque to Lessee for the Wireless Communication
Antennae Facility (the Commencement Date) and end ten (10) years from the
Commencement Date. Lessee shall have the option to renew this Lease for up to
three (3) additional terms of five (5) years each, upon a continuation of all the same
provisions hereof, by giving written notice to Lessor of Lessee's exercise of this
option at least sixty (60) days before the expiration of the term then present at the
time of such notice.
3. Rent.
a. Upon fulfillment of the Conditions Precedent listed in Section 16
herein and receipt of the Building Permit to construct the Wireless
Telecommunications Antenna Facility, Lessee shall provide to the Lessor a
Performance Bond in the amount of ten thousand dollars ($10,000). In
addition to herein, Lessee shall pay to Lessor as annual rent for the Premises
the sum of thirteen thousand two hundred dollars ($13,200) (the "Base
Rent"). Lessee shall pay Lessor Base Rent for the first year on the
Commencement Date, and for each year thereafter on the Anniversary of the
Commencement Date, tmless the Base Rent is abated pursuant to Section 17
herein. Base Rent shall be increased annually as described in Section (3)(c)
herein.
b. Lessee shall pay Lessor a late payment charge equal to five percent
(5 %) of the late payment for any payment not paid when due. Any amounts
not paid when due shall bear interest until paid at the lesser of the rate of two
percent (2%) per month or the highest rate permitted by law.
c. The Base Rent shall be increased annually effective as of each
anniversary of the Commencement Date by three percent (3%) of the
previous year' s Base'Rent or the percentage increase in the CPI over the CPI
for the 12 months prior to the adjustment date. "CPI means the Consumer
Price Index for All Urban Consumers, U.S. City Average, All Items, issued
by the Bureau of Labor Statistics for the United States Department of Labor
(1982-84 = 100). If the CPI is converted to a different standard reference
base or otherwise revised, the adjustment set forth in this paragraph shall be
made with the use of the conversion formula published by the Bureau of
Labor Statistics.
d. If this Lease is terminated at a time other than on the last day of the
month, Rent shall be prorated as of the date of termination.
e. To the extent that Lessor desires to purchase cellular telephone service
from Lessee, Lessee shall offer this service to Lessor at the most favorable
rate and terms that Lessee then offers to any other person.
Use of Premises.
a. Lessee shall use the Premises for the installation, operation, and
maintenance of its Wireless Telecommunication Antennae Facility for the
transmission, reception and operation of a communications system and uses
incidental thereto and for no other uses. Lessee may erect and operate
twelve (12) panel-type directional antennae. Lessor may permit others to use
other portions of the Catwalk or Owned Premises.
b. Lessee shall, at its expense, comply with all present and future
federal, state, and local laws, ordinances, roles and regulations (including
laws and ordinances relating to health, radio frequency emissions, radiation
and safety) in connection with the use, operation, maintenance, construction
and/or installation of the Wireless Telecommunication Antennae Facility on
the Premises. Lessor agrees to reasonably cooperate with Lessee in
obtaining, at Lessee's expense (including reimbursement of Lessor's
reasonable attorney and administrative fees, if any), any federal licenses and
permits required for, or substantially required by, Lessee's use of the
Premises.
( 1 ) The Wireless Telecommunication Antennae Facility is agreed to
be Lessee's personal property and shall never be considered fixtures to
the real estate. Upon termination of the Lease, the Lessee shall remove
the Wireless Telecommunication Antennae Facility and any
underground improvements from the Premises within ninety (90) days.
Such removal shall be done in a workmanlike and careful manner and
without interference or damage to any other equipment, structures or
operations on the Premises, including use of the Premises by Lessor or
any of Lessor's assignees or lessees. If, however, Lessee requests
permission to not remove all or a portion of the improvements, and
Lessor consents to such non-removal, title to the affected improvements
shall thereupon transfer to Lessor and the same thereafter shall be the
sole and entire property of Lessor, and Lessee shall be relieved of its
duty to otherwise remove same.
(2) Upon removal of the improvements (or portions thereof) as
provided in Section 4(c)(1) herein, Lessee shall restore the affected
areas of the Premises to the conditions which existed prior to this
Lease, reasonable wear and tear excepted.
(3) All costs and expenses for the removal and restoration to be
performed by Lessee pursuant to Section 4(c)(1), (2) herein shall be
borne by Lessee, and Lessee shall hold Lessor harmless from any
portion thereof.
5. Construction Standards. The directional antennae, equipment building,
connecting cables and appurtenances of the Wireless Telecommunication Antennae
Facility shall be installed on the Premises in a good and workmanlike manner
without the attachment of any construction liens. Lessor reserves the right to
require Lessee to paint the antennae in a manner consistent with the color of the
Tower.
6. Installation of Equipment.
a. Lessee shall have the right, at its sole cost and expense, to install,
operate and maintain its Wireless Telecommunication Antennae Facility on
the Premises, as described on Exhibit C, in accordance with good
engineering practices and with all site standards, statutes, ordinances, rules
and regulations now in effect or that may be issued thereafter by the Federal
Communications Commission or any other governing bodies.
b. Lessee's installation of such a Wireless Telecommunication Antennae
Facility shall be done according to plans approved by Lessor, whose
approval shall not be unreasonably withheld, delayed or conditioned. Any
damage done to the Tower, the Catwalk and/or other structures during
installation and/or operations shall be repaired or replaced immediately at
Lessee' s expense and to Lessor's reasonable satisfaction. In connection with
the installation and operation of the Wireless Telecommunication Antennae
Facility, Lessee shall not make any penetrations of walls or roof of the
Tower without Lessor's prior written consent.
c. Within thirty (30) days of the completion of the initial installation of
the Wireless Telecommunication Antennae Facility, Lessee shall provide
Lessor with as-built drawings of the Wireless Telecommunication Antennae
Facility and the improvements installed on the Premises, which show the
actual location of all equipment and improvements consistent with Exhibit C.
Said drawings shall be accompanied by a complete inventory of the
building and all equipment and antennae located on the Tower and Catwalk.
7. Equipment Upgrade. Lessee may update or replace the antennae from fume
to time with the prior written approval of Lessor, whose approval shall not be
unreasonably withheld, conditioned or delayed, provided that the replacement
antennae are not greater in number or size than the existing antennae and that any
change in antennae locations on the Catwalk is approved in writing by the Lessor.
Lessee shall submit to Lessor a proposal for any such replacement antennae and any
supplemental materials for Lessor's evaluation.
8. Maintenance.
a. Lessee shall, at its own expense, maintain the Premises and any
equipment on or attached to the Premises in a safe condition, in good repair
and in a manner suitable to Lessor so as not to conflict with the use of, or
other leasing, of the Catwalk or other portions of the Tower by Lessor.
Lessee shall not interfere with the use of the Catwalk, the Tower, related
facilities or other equipment of other lessees.
b. Lessee shall have sole responsibility for the maintenance, repair, and
security of its equipment, personal property, leasehold improvements, and
directional antennae, equipment building, connecting cables, and
appurtenances of the Wireless Telecommunication Antennae Facility, and
Lessee shall keep the same in good repair and condition during the term of
the Lease, and as such Lease terms may be renewed and extended.
c. Lessee shall keep the Premises free of debris and anything of a
dangerous, noxious or offensive nature or which would create a hazard or
undue vibration, heat, noise or interference.
d. In the event the Lessor or any other lessee undertakes painting,
construction, repair or other alterations on the Catwalk or the Tower,
Lessee shall take reasonable measures at Lessee's cost to cover Lessee's
equipment, personal property, leasehold improvements, and directional
antennae, equipment building, connecting cables, and appurtenances of the
Wireless Telecommtmication Antennae Facility and protect such from paint
and debris fallout which may occur during the painting, construction or
alteration process. Lessee shall notify Lessor at least thirty-five (35) days
prior to any construction, painting, repair or alterations begun by Lessee to
the Wireless Telecommunication Antennae Facility, the Catwalk or the
Tower, unless such consUmction, 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.
Premises Access.
a. Lessee shall have 24- hour/7-day access to the Premises by means
reasonably designated by Lessor, subject to notice requirements to Lessor in
Section 9(b) herein, in order to install, operate and maintain its Wireless
Telecommunication Antennae Facility.
b. Lessee shall have reasonable access to the Catwalk in order to install,
operate and maintain its antennae, connecting cables, and appurtenances.
Lessee shall have access to such Catwalk only with the prior written
approval of Lessor. Lessee shall request access to the Catwalk twenty-four
(24) hours in advance, except in an emergency. Lessee shall have
unrestricted access to its equipment building without the requirement of
supplying Lessor with prior written notice.
c. Upon twenty-four (24) hours prior written notice to Lessee, and with
an escort provided by Lessee, Lessor shall be allowed and granted access to
Lessee's equipment building at reasonable times to examine and inspect the
same for safety reasons or to ensure that the Lessee's covenants axe being
met.
d. Lessor shall keep the street access to the Premises reasonably clear of
snow and ice as soon as is practicable after each snowfall.
10. Utilities. Unless the Premises is immediately adjacent to public rights-of-
way for ingress, egress, and utilities, Lessor hereby grants to Lessee the following
described Easement Parcels appurtenant to the Premises:
Use: Access. Width: 20'; Approximate length: as needed per survey
between Premises and the public road known as West Third Street over
traveled ways.
Use: Utilities. Width: 10'; Approximate length: As needed per survey
between the Premises and suitable utility company service connection points.
Lessor agrees to make such direct grants of easement as the utility companies
may require.
Lessee shall, at its expense, separately meter charges for the consumption of
electricity and other utilities associated with its use of the Premises and shall timely
pay all costs associated therewith.
11. RF Interference
a. Non-interference by Lessee. The Wireless Telecommunication
Antennae Facility shall be installed and operated in a manner which does not
cause radio-frequency interference ("RF interference") to the operations of
any Protected User. "Protected User" shall mean any existing user or lessee
of the Premises listed on Exhibit D attached hereto, which Lessor hereby
warrants to Lessee is an accurate listing of the frequencies, orientation,
placement, height, location, and description of all existing antennae,
transmitters, receivers, or other radio or electronic transmitting or receiving
equipment located on the Premises. Lessee agrees to immediately cure any
such RF interference caused to a Protected User by Lessee's equipment or, if
such RF interference cannot immediately be cured, to temporarily reduce
power or cease the offending operations, if so demanded by Lessor on the
ground of RF interference, until a cure at full power is achieved.
b. Non-interference by Lessor. Lessor covenants to use Lessor's best
efforts to protect Lessee from RF interference caused or potentially caused
by subsequent users or lessees of the Premises or changes in its use. Except
for the Protected Users, Lessor, and its successors and assigns, shall not use,
allow or permit the Premises to be used in any manner which will materially
impair the use of the Wireless Telecommunication Antennae Facility
hereafter erected or located upon the Premises by Lessee or allow any use in
any way as shall cause any destructive or conflicting interference with the
radio, telephone, or communications signals to and from the facilities or
equipment of Lessee. If any harmful RF interference shall result from any
such transmitters, equipment; antennae, or dishes permitted on the Premises
by Lessor, other than the Protected Users, to the facilities or equipment of
Lessee installed on the Premises, then Lessor shall immediately cause such
transmitter, equipment, antennae or dish to be discontinued from operation
until such interference is eliminated. If Lessor cannot eliminate such RF
interference, Lessee may 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 mn during which Lessee shall undertake and diligently
pursue a cure of the default. Such grace period shall automatically be extended for
an additional 30 days, provided Lessee makes a good faith showing that efforts
toward a cure are continuing.
14. Cure or Termination by Lessor. In the event of any default of this Lease by
Lessee, the Lessor may at any time, after giving notice, cure the default for, and at
the expense of the Lessee. If Lessor is compelled to pay, or elects to pay, any sum
of money or incurs any expense, the sums or expenses so paid by Lessor, with all
interest, costs, and damages, shall be deemed Additional Rent due from the Lessee
to Lessor on the first day of the month following their payment by Lessor.
In the event of default of this Lease by Lessee, of if Lessee loses its FCC
license for any reason, including, but not limited to, non-renewal, expiration, or
cancellation, Lessor shall have the right, at its option, in addition to and not
exclusive of any other remedy Lessor may have by operation of law, without any
further demand or notice, to re-enter the Premises and eject all persons therefrom,
and terminate this Lease. Lessor shall give Lessee ninety (90) days notice of its
exercise of its right of termination of this Lease. Such notice of 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
Antennae Facility in accordance with Section 4(c) hereof. Re-entry and taking of
possession of the Premises by Lessor shall be construed as an election on Lessor's
part to terminate this Lease. If termination occurs for any reason during the tenth
· year of the term, or during either of the three optional five-year extensions of the
term, the amount of the Additional Rent due upon termination shall be zero.
15. Performance Bond. To secure the timely performance by Lessee of all
terms, covenants and conditions of this lease, Lessee shall provide Lessor with a
performance bond in an amount not less than ten thousand dollars ($10,000) in a
form mutually satisfactory to the parties, and shall maintain said bond in effect
during the term of this lease including any renewals.
16. Lessee's Conditions Precedent. This Lease and Lessee's obligations
hereunder, including the obligations to pay rent, are expressly conditioned upon and
subject to the following:
a. Lessee must receive all necessary local, state, and federal
governmental approvals relating to Lessee's intended use of the Premises;
Lessor agrees to cooperate with Lessee in obtaining all such approvals;
b. Lessee's technical reports must establish to Lessee's exclusive
satisfaction that the Premises are capable of being suitably engineered to
accomplish Lessee's intended use of the Premises; and
c. Lessee's title insurer must determine that Lessor owns good and clear
marketable title to the land underlying the Premises, and that such title is
free from encumbrances and restrictions which would interfere with Lessee's
intended use of the Premises or would impair Lessee's ability to pledge the
leasehold estate as collateral to secure debt financing.
17. Abatement of Rent Pending Conditions. Lessee shall have no obligation to
pay rent until all the Conditions Precedent have been satisfied or waived, and rent
which would otherwise be due for the intervening time pending satisfaction of the
Conditions Precedent is hereby excused and forgiven.
18. Option to Terminate. Lessee shall have the unilateral right to terminate this
Lease at any time by giving written notice to Lessor of Lessee's exercise of this
option. Upon such termination, Lessee shall remove the Wireless
Telecommunication Antennae Facility in accordance with Section 4(c) herein.
19. Alteration, Damage or Destruction. If the Catwalk or any portion thereof is
altered, damaged or destroyed, through no fault or negligence of Lessee, so as to
materially hinder effective use of the Wireless Telecommunication Antennae
Facility, Lessee may elect to terminate this Lease, without paying Additional Rent
to Lessor, upon thirty (30) days written notice to Lessor. In such event, Lessee
shall remove the Wireless Telecommunication Antennae Facility from the Premises
in accordance with Section 4(c), less any alteration, damage or destruction
hindering effective use of the Catwalk. This Lease and Lessee's obligations
hereunder shall terminate upon Lessee's fulfillment of Section 4(c), at which time
Lessee shall be entitled to reimbursement of any prepaid rent.
20. Condemnation. In the event the Owned Premises are taken by eminent
domain, this Lease shall terminate as of the date title to the Owned Premises vests
in the condemning authority. In the event a portion of the Premises is taken by
eminent domain, either party shall have the right to terminate this Lease as of said
date of title transfer, by giving thirty (30) days' written notice to the other party. In
the event of any taking under the power of eminent domain, Lessee shall not be
entitled to any portion of the reward paid for the taking and the Lessor shall receive
full amount of such award. Lessee shall hereby expressly waive any right or claim
to any portion thereof although all damages, whether awarded as compensation for
diminution in value of the leasehold or to the fee of the Premises, shall belong to
Lessor. Lessee shall have the right to claim and recover from the condemning
authority, but not from Lessor, such compensation as may be separately awarded or
recoverable by Lessee on account of any and all damage to Lessee's business and
any costs or expenses incurred by Lessee in moving/removing its equipment
building, personal property, antennae, connecting cables, appurtenances, and other
leasehold improvements.
21. Mutual Indemnification
a. Lessee's Indemnification. Unless resulting from negligent actions or
omissions of, or willful misconduct of, Lessor, its employees, agents or
contractors, Lessee agrees to hold Lessor harmless, indemnify it, and, at
Lessor's option, defend it from and against all liability, damages, losses,
costs, causes of action, charges and expenses, including reasonable attorney
fees, which Lessor may sustain, incur or be liable for arising out of or
related to Lessee's use or occupancy of the Premises and its facilities.
b. Lessor's Indemnification. Unless resulting from negligent actions or
omissions of, or willful misconduct of, Lessee, its employees, agents or
contractors, Lessor agrees to hold Lessee harmless and indemnify it, and, at
Lessee's option, defend it from and against all liability, damages, losses,
costs, causes of action, charges and expenses, including reasonable attorney
fees, which Lessee may sustain, incur or be liable for arising out of or
related to Lessor's use or occupancy of the property and buildings of which
the Premises and the easement parcels are a part.
Lessee and Lessor acknowledge, however, that each party may sustain
substantial consequential damages if damage to the tower or the equipment
on the premises or the access easement parcel occurs or its use is
interrupted. Because of these substantial, potential damages, Lessee and
Lessor covenant with each other that in no event and/or under no
circumstances shall each party, or their officers, directors, members, or
employees, be liable to each other or any other person or entity for
consequential damages relating to or arising out of each other's use and/or
occupancy of the premises or the access easement parcel, regardless of
whether those consequential damages arise out of, relate to, or are caused by
the other party's negligent actions or omissions.
22. Insurance: Lessee shall provide such insurance as is required by the
Insurance Schedule attached hereto.
23. Environmental Warranty. Lessor hereby represents and warrants to Lessee
that Lessor has never generated, stored, handled, or disposed of any hazardous
waste or hazardous substance upon the Owned Premises, and that Lessor has no
knowledge of such uses historically having been made of the Owned Premises or
such substances historically having been introduced thereon.
Lessee hereby represents and warrants that its use of the Premises herein will
not generate or dispose of any hazardous substance on the Premises, and, with the
exception of batteries, it will not store on or transport to, or over, the Premises any
hazardous substance. Lessee further agrees to hold Lessor harmless from, and
indemnify Lessor against, any release of any such hazardous substance and any
damage, loss, expense or liability resulting from such release including all
attorneys' fees, costs and penalties incurred as a result thereof, except any release
caused by the negligence of Lessor, its employees or agents. "Hazardous
substance' shall be interpreted broadly to mean any substance or material defined or
designated as hazardous or toxic waste, hazardous or toxic material, hazardous or
toxic or radioactive substance, or other similar term by any federal, state or local
environmental law, regulation or rule presently in effect or promulgated in the
furore, as such laws, regulations or rules may be amended from time to time; and it
shall be interpreted to include, but not be limited to, any substance which after
release into the environment will or may reasonably be anticipated to cause
sickness, death or disease.
Lessor, its heirs, grantees, successors, and assigns shall indemnify, defend,
reimburse and hold harmless Lessee from and against any and all environmental
damages arising from the presence of Hazardous Materials upon, about or beneath
the Leased Premises or migrating to or from the Leased Premises or arising in any
manner whatsoever out of the violation of any Environmental Laws pertaining to the
Leased Premised and any activities thereon, which conditions exist or existed prior
to or at the time of the execution of this Lease or which may occur at any time in
the future through no fault of Lessee. Lessor's indemnification obligations
hereunder shall survive the termination of this Lease.
24. Holding Over. Any holding over after the expiration of the term hereof,
with the consent of the Lessor, shall be construed to be a tenancy from month to
month at two (2) times the rents herein specified (prorated on a monthly basis) and
shall otherwise be on the conditions herein specified, so far as applicable.
25. Subordination. Lessee agrees to subordinate this Lease to any mortgage or
trust deed which may hereafter be placed on the Premises, provided such mortgagee
or trustee thereunder shall ensure to Lessee the right to possession of the Premises
and other rights granted to Lessee herein so long as Lessee is not in default beyond
any applicable grace or cure period, such assurance to be in form reasonably
satisfactory to Lessee. If requested by Lessee, Lessor agrees to use Lessor's best
efforts to assist Lessee in obtaining from any holder of a security interest in the land
underlying the Premises a non-disturbance agreement in form reasonably
satisfactory to Lessee.
26. Acceptance of Premises. By taldng possession of the Premises, Lessee
accepts the Premises in the condition existing as of the Commencement Date.
Lessor makes no representation or warranty with respect to the condition of the
Premises and Lessor shall not be liable for any latent or patent defect in the
Premises.
27. Estoppel Certificate. Upon at least ten (10) days prior written notice from
Lessor, Lessee shall deliver to Lessor a written statement certifying that (i) the
Lease is unmodified and in full force, or if the Lease has been modified, that the
Lease is in full force as modified and the modifications are then identified; (ii) the
dates to which rent and other charges have been paid; (iii) so far as the certifying
party knows, Lessor is not in default under any provisions of the Lease; and (iv)
such other matters as Lessor may reasonably request.
28. Notices. All notices and correspondence shall be sent to the following:
Lessor:
City Manager Lessee:
City ofDubuque
50W. 13thS~eet
Dubuque, IA 52001- 4845
General Counsel
TeleCorp Realty, LLC
1010 North Glebe Rd, Suite 800
Arlington, VA 22201
29. Assignment of Lease by Lessee. This Lease and the Premises hereunder are
assignable by the Lessee to the following: (i) any person or business entity which is
a parent, subsidiary or affiliate of Lessee; (ii) any person or business entity which
controls or is controlled by or under a common control with Lessee; (iii) any person
or business entity which is merged or consolidated with Lessee; or (iv) any person
or business entity which purchases a majority or controlling interest in the
ownership or assets of Lessee. Any assignment of this Lease and the Premises
hereunder by the Lessee shall not occur without the Lessor's consent, which consent
shall not be unreasonably withheld, conditioned or delayed. Lessee's right to effect
an outright transfer of the Premises, and the right of any collateral assignee to seize
the Premises as defaulted security, is subject only to the limitation that the Premises
shall be used for the purposes permitted herein. Lessee shall notify Lessor in
writing of the name and address of any assignee or collateral assignee.
30. Binding Effect. All of the covenants, conditions, and provisions of this
Lease shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns.
31. Entire Agreement. This Lease constitutes the entire agreement between the
parties and supersedes any prior understandings or oral or written agreements
between the parties respecting the within subject matter.
32. Modifications. This Lease may not be modified, except in writing signed by
the party against whom such modification is sought to be enforced.
33. Attorney's fees. In any action on this Lease at law or in equity, the
prevailing party shall be entitled to recover the reasonable costs of its successful
case, including reasonable attorney's fees and costs of appeal.
34. Non-Waiver. Failure of Lessor or Lessee to insist On strict performance of
any of the conditions, covenants, terms or provisions of this Lease or to exercise
any of its rights hereunder shall not waive such rights, but each party shall have the
rights to enforce such rights at any time and take such action as might be lawful or
authorized hereunder, either in law or equity. The receipt of any sum paid by one
party to the other after a breach of this Lease shall not be deemed a waiver of such
breach unless expressly set forth in writing.
35. Property Taxes.
a. Lessee shall pay any personal property taxes assessed on, or any
portion of such taxes attributable to, the Wireless Telecommunication
Antennae Facility. Lessor shall pay when due, or claim an appropriate
exemption from, all real property taxes and all other fees and assessments
attributable to the land underlying the Premises. However, Lessee shall pay,
as Additional Rent, any increase in real property taxes levied against the
Premises which is directly attributable to Lessee's use of the Premises, and
Lessor agrees to furnish proof of such increase to Lessee.
b. Lessor's requests to Lessee for contribution or reimbursement of
property taxes should be addressed to USCell, P.O. Box 31369, Chicago, IL
60631-0369. All requests must be accompanied by a copy of Lessor's tax
bill. Lessee shall comply with requests for contribution by issuing a check
for Lessee's proportionate share made payable to the tax collector. Lessee
shall comply with requests for reimbursement by issuing a check to Lessor,
provided that a paid tax receipt accompanies such request.
c. Lessee shall have the right, but not the obligation, to pay Lessor's real
estate taxes on the underlying land if the same become delinquent, to ensure
that Lessee's leasehold interest does not become extinguished. Lessee shall
be entitled to take a credit against rent for the portion of Lessor's taxes
which it was not Lessee's obligation to pay, as such amount shall reasonably
be substantiated.
36. Headings. The headings of this Lease are for convenience only and shall not
be considered as part of the Lease for purposes of construction of the terms and
conditions hereof.
37. Miscellaneous.
a. Lessor and Lessee represent that each, respectively, has full right,
power, and authority to execute this Lease.
b. This Lease shall be construed in accordance with the laws of the State
of Iowa.
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)
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:
ACKNOWLEDGEMENTS
STATE OF IOWA )
)SS:
COUNTY OF DUBUQUE )
On this __ day of ,2001, before me a Notary Public in and for the
State of Iowa, personally appeared Michael C. Van Milligen and Jeanne F. Schneider, to
me personally known, who being duly sworn, did say that they are the City Manager and
City Clerk, respectively, of the City of Dubuque, Iowa, a Municipal corporation, created
and existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said Municipal corporation by authority and resolution of its City
Council and said City Manager and City Clerk acknowledged said instrument to be the
free act and deed of said Municipal corporation by it and by them voluntarily executed.
Notary Public
My commission expires:
EXHIBIT A
Legal Description of the Owned Premises
Lots 23 & 24 of the Finley Home Addition in DubUque, Iowa
EXHIBIT B
Site Plan/Legal Description of The Premises
19
EXI~BIT C
Equipment to be Placed on The Premises
The following Equipment together with any associated wires, cables, pipes, related ancillary equipment and conduit
attached thereto and supporting structures associated therewith shall be located on the Leased Premises.
· Twelve (12) panel antennas measuring approximately 60" height x 6" width x 2.75" depth.
· Nine (9) cables measuring 1 5/8".
· Equipment cabinets on a support flame contained within Leased Premises.
20
EXHIBIT D
Protected Users of The Premises
1. The City of Dubuque, Iowa
2. Dubuque County, Iowa
3. Dubuque Cellular Telephone, L.P.
4. Nextel Partners,
5. Iowa Wireless Communications
INSURANCE SCHEDULE
1. Any policy of insurance or certificate of insurance required hereunder shall be with a
carder authorized to do business in Iowa and a carrier that has received a rating orA or better
in the current Best's Rating Guide.
2. Any policy of insurance required hereunder shall provide for a thirty-day notice to the City
of any material change or cancellation of the policy prior to its expiration date.
3. Lessee shall have its insurance agent or company certify in writing that any policy of
insurance required herein with an aggregate limit of liability has not been reduced by paid or
reserved claims at the time of issuance of policy or certificate.
4. Lessee shall furnish copies of the following policies to the City, with limits not less than
the following, or greater if required by law, and shall also furnish certificates of insurance
from a all independent contractors or subcontractors hired by Lessee or any independent
contractor or subcontractor, which certificates shall provide evidence of coverage for the
following with limits not less than the following, or greater if required by law:
COMMERCIAL GENERAL LIABILITY:
General Aggregate Limit
Products - Completed Operation Aggregate Limit
Personal and Advertising Injury Limit
Each Occurrence Limit
Fire Damage Limit (any one occurrence)
Medical Payments
OR
$2,000,000
$1,000.000
$1,000,000
$1,000,000
$ 50,000
$ 5,000
Combined Single Limit
Medical Payments
$2,000,000
$ 5,000
Coverage is to include: occurrence form, premises/operations/products/completed operations
coverage, independent contractors' coverage, contractual liability, broad form property
damage, personal injury, City of Dubuque named as an additional insured with 30 days'
written notice of change or cancellation.
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TELECORP REALTY LLC
UNMANNED WIRELESS
COMMUNICATION SITE
DBQ284
N. W. CORNER OF COLLEGE & WEST 3Pa) STREET
DUBUQUE; IA
DUBUQUE COUNTY
CO-LOCATION ON WATER TOWER
TELECORP REALTY LLC
1010 NORTH GLEBE ROAD
SUITE 800
ARL~.~GTON, VIRGINAl 22201
MARCH, 2001
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TELECORP REALTY LLC
UNMANNED WIRELESS
COMMUNICATION SITE
DBQ284
N. W. CORNER OF COLLEGE & WEST 3P° STREET
DUBUQUE, IA
DUBUQUE COUNTY
CO-LOCATION ON WATER TOWER
Antenna Type: Panel
Antenna Configuration: 3 Sector
Radio Frequency Engineer: Ramin Badii
Leasing Manager:. Paul Brown, (515) 70%7215 or (319) 583-9141
Zoning Manager. Joseph Guyer, (515) 707-7213 or (319) 277 ~.414
Construction Manager. Clark McQueen, (515) 707-7231 or (319) 277 4414
Water Tank Address: 1575 West Third Street, Dubuque, Iowa 52001
Jurisdiction: City of Dubuque
County: Dubuque
TELECORP REALTY LLC
1010 NORTH GLEBE ROAD
SUTrE 800
ARLINGTON, VIRGINAl 22201
MARCH, 2001
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Site Photographs
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Site Photographs
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Site Photographs
LoolR~g ~,m lira $~ ~treet Wa~r Tank to the Nor lb.
COMM~WI'S: Loolting f~m t~e 3~ Street Water Tank to the F.~t.
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Site Photographs
COMM~4N~ Loo]ga~ from ~e 3~ ~ Wa~er Tower to fire So~tl~
COMMENTS: Lool~lng from 3~ Street Water Tower to the Wea~
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COMMENTS: O~her Vendor Sites ~t 3~ Street Water Ta~k
Site Photographs
(Access)
Microsoft TerraServer Image Page t'age t m 2
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