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Iowa Wireless Proposed Lease_Madison ParkDubuque THE CITY OF DUB E ~'"'~~~~ Masterpiece on the Mississippi ', ~` ~.~ ~~ 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Public Hearing Item #6 Iowa Wireless Services, LLC DATE: March 3, 2008 Planning Services Manager Laura Carstens has informed me that the Zoning Board of Adjustment (ZBA) has tabled the I-Wireless request for a conditional use permit to locate a cell tower in Madison Park. The next ZBA meeting is scheduled for March 27, 2008. I spoke with City Attorney Barry Lindahl and he advises that the City Council should conduct the public hearing on the lease request. Should you decide to approve the lease, it should be conditional on I-Wireless receiving ZBA approval for the conditional use permit. I would further suggest that you put a deadline on receiving ZBA approval, possibly December 31, 2008. ~~~ ~~,~ Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Jeanne Schneider, City Clerk Cindy Steinhauser, Assistant City Manager Laura Carstens, Planning Services Manager Gil Spence, Leisure Services Manager Dubuque THE CTTY OF ^i. u L~~.TB E A~.~~~~ :~ ~; ~ ,, Masterpiece vn tl~te 1Vlissassipp~= ~ ~~ ~~ ~~, 2007 TO: Laura Carstens, Planning Services Manager FROM: Guy Hemenway, Assistant Planner SUBJECT: Conditional Use Permit for Communication Tower in Madison Park DATE: February 29, 2008 At the February 28, 2008 Zoning Board of Adjustment meeting I-Wireless and the City of Dubuque presented an application for a conditional use permit requesting to locate a cell tower in Madison Park. The cell tower was to appear as a flag pole with the antennae array hidden in the interior of the pole structure. The proposal also indicated a flag and large ball at the top of the pole. The flag pole was to be 50 feet high with no light on top, but with external illumination emanating from the base of the pole. All wiring was to be located underground and there was to be a small equipment shed located on the south side of Madison Park along the fence line. Andy Anderson, representative from I-Wireless, presented the request to the Board. Several neighbors spoke at the meeting. Neighbors and Board members expressed concerns with the width of the flag pole (4.5 feet at the base and 3.5 feet at the top) and with the location of the equipment shed. One neighbor felt that construction activity for the equipment shed may destabilize the bluff above her house. Board members felt that the pole would appear more like a large column than a flag pole. The Board also wanted assurance that the flag atop the pole would be properly proportioned. Board members felt that the renderings submitted by I-Wireless did not accurately reflect the width of the flag pole. The Board decided to table the request and asked Mr. Anderson to submit additional renderings from several locations in the park accurately depicting the height and width of the flag pole. The Board also requested that staff measure a tree and adjacent concrete monument for reference and provide the information at the next Board meeting. This memo is provided for your information. K F:IUSERS\Kmunson\WP\Boards-Commissions\ZBA\Misc\I-Wireless request memo to LC.doc THE CITY OF Dubuque -~.,,. ~~ L E Au-a~riacrl,- Masterpiece are the Mississippi 2Q07 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Lease Agreement with Iowa Wireless Services, LLC, for a Telecommunication Antenna Facility in Madison Park DATE: February 21, 2008 Leisure Services Manager Gil Spence is recommending City Council approval of a lease agreement for a section of Madison Park to Iowa Wireless Services, LLC, for installation of a 50-foot high flagpole to support a wireless telecommunication antenna facility. The main points of the lease include: • Term of Lease: 5 years with options for 5 additional 5-year renewals; • $1,300 per month; $15,600 per year; • Rent would increase 15% each renewal year (5 years); • Flagpole would be 50-feet high with a decorative fence around the pole; • Equipment would be located on the southwest property line of the park; • The flagpole would be lighted; • City would be responsible for proper display and purchase of the flag; and • Construction would be done in the spring. I concur with the recommendation and respectfully request Mayor and City Council approval. ~';~~~ Mic ael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Gil D. Spence, Leisure Services Manager THE CITY OF Dubuque DUB E _ ~ Masterpiece on the Mississippi 2007 TO: Michael C. Van Milligen, City Manager FROM: Gil D. Spence, Leisure Services Manager SUBJECT: Lease Agreement with Iowa Wireless Services, LLC, for a Telecommunication Antenna Facility in Madison Park DATE: February 20, 2008 INTRODUCTION The purpose of this memorandum is to recommend that the City Council approve the lease agreement for a section of Madison Park to Iowa Wireless Services, LLC, for installation of a 50-foot high flag pole to support a wireless telecommunication antenna 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 communi- cating 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. (continued) public hearing for proposed lease of space to Iowa Wireless Services, LLC, page two Representatives of Iowa Wireless Services, LLC, a wireless business telecommuni- cations service provider have proposed leasing space in Madison Park, North Main Street and adjacent ground space to support the communication antenna. DISCUSSION Iowa Wireless proposes to construct a 50-foot high flag pole in Madison Park to place a wireless telecommunication antenna on top of. A support building will be constructed along the southwest property line of the park. The main points of the lease include: • Term of Lease: 5 years with options for 5 additional 5-year renewals.. • $1,300 per month; $15,600 per year. • Rent would increase 15% each renewal year (5 years). • Flag pole would be 50-feet high with a decorative fence around the pole. • Equipment would be located on the southwest property line of the park. • The flag pole would be lighted. • City would be responsible for proper display and purchase of the flag. • Construction would be done in the spring. Attached is a copy of the lease agreement and map of the park showing the location of the flag pole and support building. City Attorney Barry Lindahl has worked with Iowa Wireless to develop this lease. ACTION STEP The action requested is that the City Council adopt the attached resolution approving the lease for a section of Madison Park to Iowa Wireless, LLC. GDS:et attachments Preparers Gil D. Spence Address: 2200 Bunker Hill Rd Phone: (563) 589-4263 RESOLUTION NO. A RESOLUTION OF THE CITY OF DUBUQUE APPROVING A 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 in Madison Park owned by the City of Dubuque and located at 1824 North Main Street in Dubuque, Iowa; and WHEREAS, the City of Dubuque desires to lease to Iowa Wireless Services, LLC certain space in Madison Park 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 of the City of Dubuque have negotiated terms for such a Lease Agreement which the City Council finds beneficial to the community; and WHEREAS, on March 3, 2008, the City Council pursuant to notice published as required by law held a public hearing on its intent to dispose of the foregoing interest in real property and overruled all objections thereto; and • WHEREAS, The City Council believes it is in the best interests of the City of Dubuque to approve the Lease Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the Lease Agreement between the City of Dubuque and Iowa Wireless Services, LLC is hereby approved and the City Manager is authorized to sign and administer the Lease Agreement on behalf of the City of Dubuque. Passed, approved and adopted this day of , 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, City Clerk PK Site ID City: W5 (wireless-IA-0280 MADISON PARK GROUND SPACE LEASE This 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 52004845, hereinafter referred to as "Lessor", and Iowa Wireless Services, LLC d/b/a:i-wireless, 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 attachedExhibit A (the "Owned Premises"). The street address of the Owned Premises is 1824 North Main Street, Dubuque, IA 52001. B. Lessee desires to lease ground space for the installation of a 50' flag pole on which to operate a cellular radio-telephone communication flag pole facility, AN area for an equipment building, and connecting cables and appurtenances (collectively, "the Cell Tower Flag) 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 they 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 for the flag pole, (ii) sufficient ground space close to the flag pole on which to place its equipment shelter, and (iii) easements for ingress/egress and utilities as shown on attached Exhibit A, Legal Description of the Owned Premises, Exhibit B, Survey, and Exhibit C, Site Plan (collectively, the "Leased Premises"). Lessee ma,~ not add additional equipment and/or flag pole(s) from that shown on Exhibit C without the prior written approval of Lessor. 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 fifth Anniversary of the 021208ba1 Commencement Date. Lessee shall have the opton to renew this Lease for up to five (5) 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 expirationof 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 for the Initial Term the sum of fifteen thousand six hundred dollars ($15,600) (the "Base Rent"). Lessee shall pay Lessor Base Rent for the first year on the Commencement Date, and for each year thereafter on the Anniversary of the Commencement Date during the Initial Term. After the Initial Term, rent shall be increased 15% with each fiveyear renewal term as shown on the attached Rent Schedule, Exhibit F. 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 oftwo percent (2%) per month or the highest rate permitted by law. c. 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 similarlysituated customers. 4. Use of Premises. a. Lessee shall use the Leased Premises for the installation, operation, and maintenance of its Cell Tower Facility for the transmission, reception and operation of a communications system and uses incidental thereto and for no other uses. 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 errissions, radiation and safety) in connection with the use, operation, maintenance, construction and/or installation of the Cell Tower Facility on the Leased Premises. Lessor agrees to reasonably cooperate with Lessee in obtaining, at Lessee's expense (incUding 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 flag pole and equipment are 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 flag pole and equipment and any underground improvements from the Leased Premises within ninety (90) days. Such renoval 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, 021208ba1 2 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 Cell Tower 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 witbut recourse to legal proceedings. 6. Construction Standards. The flag pole and equipment of the Cell Tower Facility shall be installed on the Leased Premises in a good and workmanlike manner without the attachment of any construction liens. 7. Lnstallation of Equipment. a. Lessee shall have the right, at its sole cost and expense, to install, operate and maintain its Cell Tower Facility on the Leased Premises, as described onExhibits A, B and C, in accordance with good engineering practices and with al 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 flag pole and equipment shall be done a;cording to plans approved by Lessor, whose approval shall not be unreasonably withheld. c. Within thirty (30) days of the completion of the initial installation of the Cell Tower Facility, Lessee shall provide Lessor with a~built drawings of the Cell Taver 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 andflag pole located on the Tower. 021208ba1 3 d. Lessee shall construct a decorative fence around the flag pole. Prior to construction of the fence, Lessee shall submit plans therefore to Lessor for Lessor's approval. e. Lessee shall provide at its expense for the Ighting of the flag pole. f. Lessor shall be responsible for the proper display of any flags on the flag pole, including replacement flags and replacement light bulbs for lighting and the actual display of the flag according to established flag etiquette. 8. Equipment Upgrade. Lessee may update or replace the flag pole from time to time with the prior written approval of Lessor, whose approval shall not be unreasonably withheld, provided that the replacement flag pole are not greater in number or size tbn the existing flag pole and that any change in flag pole location is approved in writing by the Lessor. Lessee shall submit to Lessor a proposal for any such replacement flag pole 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. b. Lessee shall have sole responsibility for the maintenance, repair, and security of its equipment, personal property, and flag pole of the Cell Tower 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. 10. Premises Access. a. Lessee shall have 24hour/7-day access to the Leased Premises in order to install, operate and maintain its Cell Tower Facility. b. Lessor shall keep the street access to the Leased Premises reasonably clear of snow and ice as soon as is practicable after each snowfall. 11. Utilities. Unless the Leased Premises is immediately adjacent to public righ~of- ways for ingress, egress, and utilities, Lessor hereby grants to Lessee following Easement Parcels appurtenant to the Leased Premises shown on Exhibit C. 021208ba1 4 Lessee shall, at its expense, separately m~er 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 Cell Tower 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 flag pole(s), transmitters, receivers, or other radio or electronic transmitting or receiving eo~ipment 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 causedby 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 impairthe use of the Cell Tower 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 fa;ilities or equipment of Lessee. If any harmful RF interference shall result from any such transmitters, equipment, flag pole(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, flag pole or dish to be discontinued from operation until such interference is eliminated. If Lessor cannot eliminate such RF interference, Lessee may termnate 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 ratifies 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 go~i faith showing that efforts toward a cure are continuing. 021208ba1 5 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, nor}renewal, expiration, or cancellation, Lessor shall have the right, at its option, n addition to and not exclusive of any other remedy Lessor may have by operation of law, without any further demand or notice, to reenter 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 Cell Tower 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) ~d 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 021208ba1 g 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 estateas 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 timepending 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 Cell Tower Facility in accordance with Section 4(c} herein. 20. Alteration, Damage or Destruction. If the property 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 Cell Tower 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 Cell Tower Facility from the Leased Premises in accordance with Section 4(c), less any alteration, damage or destruction hindering effective use of the property. 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 rightto 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 eking 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 Lesseds business and any costs or expenses incurred by Lessee in moving/removing its equipment building, personal property, flag pole, connecting cables, appurtenances, and other leasehold improvements. 22. Mutual Indemnification. a. Lessee's Indemnification. Lessee agrees to hold Lessor, its 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, 021208ba1 7 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 property 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 tie Leased 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 as Exhibit D. 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. IESSOr 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 withh 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 lawor 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 theOwned 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 tl-e 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 021208ba1 g (2) times the rents herein specified (prorated on a morthly 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 a nor}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 condign 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) sofar 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 nice 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 021208ba1 9 whom Lessee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or s!inilar 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 shy 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 writtei 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 psformance 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 f~ 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 Cell Tower 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 Manaa,~r, 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. 021208ba1 10 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, toensure 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 formmaterial 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) 021208ba1 11 SIGNATURE PAGE IN WITNESS WHEREOF, the parties hereto bind themselvesto 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 Lessee: Iowa Wireless Services, LLC By: Name: Michael S. Haskins Title: CEO/COO ATTEST: By: Jeanne Schneider City Clerk 021208ba1 12 EXHIBIT A LEGAL DESCRIPTION OF THE OWNED PREMISES Lots 32, 33, and 34 of the Subdivision of Lots 676 and 677 in L.H. Langwortfiy Addition; Lot 5 of the Subdivision of Lot 674 in L.H. Langworthy Addition; Lot 1 of Lot 2 of the Subdivision of Lots 676 and 677 in L.H. Langworthy Addition; Lot 3 of Lot 3 of the Subdivision of Lots 676 and 677 in L.H. Langworthy Addition; and two (2)unnumbered Lots lying between Lots 677 and 678 in L.H. Langworthy Addition, all in the City of Dubuque, Iowa. 021208ba1 13 EXHIBIT B SURVEY 021208ba1 14 ~11 r!• „x r ~ ~ ~ ~~ e yp~X 4P~Y~. p E :J : r ~ ~ ~ ~hhh • ~ ~ ~ 1 i ~ kx-°w gx' ~ 0 ~ w t, p 3 S ~, »~ ~"` _~.: fi ~~ era ~R ~ ~~~, ~4J0 ~~S~ xo~3~7i u~ I ~ I, I~ I i I~ I~ ~~ I J l ul l .IRIY,~ n~ol Ili. ~,. j ~t sT•~~ ,~~"e ~ Yf3 ~SC,taR~ ~ x~Y i y ~ •^ azs Z yS i ~ ~~at;r i ~ ttT :~rT- ~~" ~sW h~• ~` t "~LW~`SS ~~ ::,j~ ia~ ^ '+ u ~ ~` ~~,r}'`~n~g fit. ~s~~b~~~~ .s ~~~,~+~~ :; ~~,~ ~~~~ ~~~~~ : ~; I ~, • r in>'~~ :i~ yet-, ~~~ ~ ~% 41 '*` ~, ~~ t" ~ vsx , ~• .I "' 1 ~. i ~ to : , tt ~ •` ~ ~ ~ s ~3 ~ •~" r n i.~'~,"r Y~ Y'F~~y ~,y `~~.~ ~ Ytx `,{t: ~~ y!r t ~~y'~~ ~~~~ J i I t~ ~` t~,Fs t 'St ~'~ ~^ titi~ 7~, ~! x Rk~ ~ n 7f~s r,~"~- ~ 1 t•~e ~. ;; ~:~,.. k. P rt,. R2 'S ~. ~•~ •1 i~~ 1 i r 1"'~Yi n r.-~~~ psi ~ .7 e~ a;~~~sr~~~~ h3~~ixg,~`V ~ ~ is ~,'.F~~~".y"~ `"3.e ~ ~;; 16~ jl~ ~., ~~ u'.SsA~~~~~ ~ +~`~x ~~ ~ ~y t ~~ ~¢~Yw"~S~ ~~~I's *`'+ ~~z~ yc'~~~i p ~ ~~ E~ ~ fr, nv'~ ~t ~` ~~Y~{`L~ G~3 ~' ~ d~~{" py~"~ 1;'~hRR ~~~~ i ~ p~zr ~i~J ~~ ., t}~ yt -ti Y~ ~i A ~~~° z SYI t ~~ ~~s~~ ykt g~r~ ~ *ti~'j.l P~a~ ~a~~'~$ s (~~i~t+ x ~~'~~~a~S~ t g'~~~Y~•y~~~+~ly~ tiq.~.i=:: ~~,~7 I ~ tYi; a Mt }Y^ ~ ~ - aka {yrW~. r') F-~' !~ L +E- }e; ~ J ~ i ~ .. dry 4J "~ y.. i .~ ~ " ~} 2 M ~ FS ~ w{19..'.~p Y~~r574 q~~~~•f~f y~tC:i F 4~~~~~~~Li'6 :J~ 4~~~~. ".•flf,a r~.~ F:: ~4:X "~ '1 _~~~ r. (~ .~ O N N O EXHIBIT C SITE PLAN 021208ba1 16 ~~ jj ~ ~ ~ x s ~-j_ r G- (~ ~ V ~ ~ 4t Yi O K i i < i.. ~ ff ~ ut~# r„ ~ ~ 't F 4 :, {iWy, ~ = !$ i 5.! '!. +! GA i lS x r l ~t ~`~ ~~. ICI --C~.wO~) ...,r ~~ Nt `# ., ~ ~ ~a?~ej d ~~~ ~~~ ~-::~ ~~„ r, :;, ~~ t~ ~`~ ~~^i .F .9 ^°S s ~~~'i r N ~~ t) Y'~ ~ ~" ~..w ! r ~ V,,. ~•• S Y ~ L'1 '" Y ~,~~ ~} '.k * 7) ~ - Z ~~ ! ,,, ~ ,.r r .d ~~ ~ ~ ~J n '^' ~ y :a v .~ y, h ~ . "` ,l i 1 tt 1,1 +f H.., t v1 ~~ N N O EXHIBIT D INSURANCE SCHEDULE 021208ba1 18 INSURANCE SCHEDULE A INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS 4SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE ' A'i poliCtGS of rrt5ur8nCe regUire{~ h~reunber shall be with an insurer autt~;trrz~:ti lcr co business rn Iowa All insurers shall have a rating ~,~ A or better :n fire current A i~1 Best Ratrng Guide 2 All Certif{Dates of Insurance required hereunder shall provide a tn~rty {3:~x dar notce of cancellation to cite City of Dut;uque, except fora '.e^~ i'i ~, day n~ttr;,e for rtor. payment, if cancellation i5 prior to the exprratran date. 3 .............. ~......__M. ...._.~._~.. shall furnish a signed a,erta`i~,ate o` InsJrar,,:,k to tote Irrty o` Oubu{aue Iowa tai the :.overage reyurec in Paragraph ~ Qelow Such certrf~; ates steal' include co _ies of the'ollow~ne polrcy en3orsernerts: a,~ Commerc~l general L~atti{ity policy ss pr~rAFa~~ and non-CCrttributing b,i Commercial Genfi~ral Liability addatao*~l insured e~orsernent ~i Govemrtental lrnmunaty Endorsements ~_ Ea:.h ~-trs~ate shall be sub.rnittsd to the contracting department of the City of Dubuque. ~. ~a~'ure to pra.~ide m:rtimurr: cove:dr~e shall riot be deemed a waiver of these requ~rerne*its :~y the City of ©ubuque Failure to obtain or maintain the required insurance shall be cons~dere~d a material breach of this agreemen#. 6. __ shall be required to carry the following minimum coueragellimrts or greater if required by law or other legal agreement; a) COMMERC{AL GENERAL L{ABILITY General Aggregate Limit S2,Ofllr.l300 Products-Completed Operations Aggregate Lirrtit ~l,rJ(?£~.0~.".+3 Pe-sonal and Advertising Irt}uty Lima ~'I.0#3J.#300 Each Occurrence Umii S ; .0;)0.~.300 Fire Damage Lamm tarty cr+e occurrence} ~ 30 0~}0 fJledical Payrrtents S ~,0'JO phis coverage shall be vrritten on an occurrence. no# a c=aa~ns made farm. Form CG 25 Ga 0? 97 `Designated Lo.ation s~ Genera` Aggregate Lint:;" steal! be included. Au c~viations or exrius~o'>s tram ;rte stanzfard 1S0 cammercaal general Irabiltty form CG OG(3# pr Business Ovrne*s form SP 0002, shall be clearly ide-ttifi~ed 7 or 2 January 2008 021208ba1 19 INSURANCE SCHEDULE A (Continued) INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES t3E CITY PROPERTY OR VENDCIRS {SUPPLIERS, SERVICE PROVIDERS} TO THE CITY OE DUBUQUE Governmt;ntaj Immunity Endorsement =dentical or equiuaien! tU forr~~ attached ~ddittonal Insured Requirement: The Csty of Dubuque. including aI1 its e3ected and appointed t~fticidts. aI! its employees and voiunteers, all its boards, carnrnissions andlor authorit;es and their board members. employees and v©lunteers shall be named as an addri~onal Insured vn General Liability Pvl~cies using 1S0 endorsement 1/G 20 20 177.}4 `Addtbona3 Insured - 1Jes~gnated Person or flrgar~zaUon,° or st s eau~valent. - See St~ectmen b, WC?RKERS' COMPENSATION 8 ENIPL{7YERS LIABILITY Stat~tory'crr Coverage A Emptoyers L.iabiltty~ Eavh Accident 5~4rJ.;700 [~a:.h E.mptayee -Disease S1t3y.v~g Policy Lima - Disease S~i7.L00 t:? UM6R£LLA EXCESS LIABILITY UQUtJR OR t?RAIVI SHOP LIABILITY Coverage to be determined on a case by case basis b}~ I- anance D;rector. Completion Checklist Certifi; ate of Liabili',y tnsurance {~ pages; Designated LocationEs} Genera( Aggregate Ltmr CG 25 04 t73 9~ i2 pages; _^ iydditional Insured 2~ 2~ 0," 04 Gcuernr;~ental Imrr~unrties Endorsement 2 of 2 .January 2008 021208ba1 2p ACORIJ CERTIFICATE OF LlABILtTY It~~UR~kNCE ' °""""`'°°"Y"'' I -2%~`3DG~ oaa9+.xrw {563) 123-b5S? cox tS53) 9H?-G5i3 7Hi5 CERTTFTr.ATE t5 tSSVED A$ • th/,TT£3t Of NifOAYATipN ON.Y ANO Cp1:FE7t5 N'J RtGrtTi UvOh THE ^ERTIFIGATE Snssnranos Agency »OLDER T»!S CERTR~tCATf U9£5 NtJ? AiRLNO GXTEttD t')Ft Stroat Adrlroae ALTER THE COvERAG£ AtFORt>E'C Br :t# vOtt£IFS BE.OMV 7 s q ~ a r": S:' ZiF Coda INSURERS ArFOROiNG GOVEtiAGE HAtCi,"___~ i~a~axo ar.:==arws. 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Sa itla:l urtrd Gnvi•i'YNr/:: i~s'a aattsaa:s.as~ w:.aasowas+:t ;r anrlu+i.n __~• of L.l~.acso SC Taaxt :'s`Z: Spree:, ~haque, iA 52UL~i ACORD ?5 (2001108) tNS023;etci+ee AtNS s~:t.o wNr +y txE neoTn atacaiaru x+n=tcN~u ac taNCttTa9 scs~la< rv>< E7tPataT10H ORTE TNEt1EtX, /Nt ISS:SINf. iN3VRPN YAL3. Fk9EgYGA TO YAI: 3~ ~ SYT: YRt'tTEh hpTlGt Ta i»p ~Ya•i+TC+tTf N6lDER WiIk.'= TO THE lEfi, AST i+~ uttt TG ao ao s.t+l:~ trt>oaE >.:t OAI HtAern. ittt ~wmur oc ~sr •ua9 ua9N TaE f:it+rp~gEL >>S{ KSATN[, b ACOFA CORPORATI{Nd 1988 nom. v et ~ 021208ba1 21 1 '- IMPi3RTANT 3 1 tt ;ne t;Crtr;,ait' trs~=' r5 an ;,~~=alJr~kl. tN;iJ12E~. ittr g~Rc~;rc~x: rr>4~: t~+ rniori~~ F si:stti?r»c`li ~r :txS C.trr3rfr„~te Goes r~7 canter 6Ct415 to :?te ter~S,:.ade tfD#tlei m NFU at ;;;ch rirJW sr*rffi»;ttbs. St SU~~{~C~'i:ON IS irJAISJEiJ. Strhje~ io atp ie'm5. a~ r.~tlt2~3~It R' She iiUbct. tartar, ~3o1laeS may r@{toir~ ac nntlorsrment A statement an tars ce»tlHcate eyes not torsie• rr~tlts !: ltrc> ~7.f;catt holae• m rr~~ o` su;.i: en;Jtrrserrwntts! DISCLAIMER TF,e Cetl+f~cetE of InsurAn;,e On ine reverse s~3e ~t incr. lcfrr». dar»:; rtol ton!;tdtrie a cantrat,t between the issuing i msu:vris) auihor+zetl repre~rtlative or nrotluter, end tix: tX!rtifiG€ttr. holde' nnr ,lees ti effirmat,uely pr negAfroety AntiEnd exlenC Oz alte•` the wve:age alfurtlrci ~~ ttnt uala:ie>7, bstr!d tt~vrnon t i 5 i f A WRU L~ iLW 1+V01 tN~~ 1~•CF:~ r14 ~t~ ~.~f . ^J 021208ba1 22 ~~~t~~ r~u~ a~~. ClJJtriMERCiAt_ Gf~tERAt. t.tA@tLITY CG 2544C39T TtiaS ENDORSEMENT CHANGES 7FiE POLICY. PLEASE READ 13 CAREFULLY. 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Pale 't of 2 021208ba1 23 CG 25 pd 03 97 v-Ck- ;d^~ti ~3j"T'icf;r• ~: Ls3Y1•:'~8z:~ is;:<iu'sC ~. `GJ3s:y t^ju?y'" G' `Fs,'7si4_"t'ly PJS.'1',SgE" rriCti:YiE'?: irl the 'vrduCis-t;Gr""rGjNlz.~t5 ct;s!+r~bans t~trz~rci' vri~i rL"t3UCt i'tC PrCCVCl:>•GO'n,~t9te~ C}rt~r;ilsn^~ r",;;- crr*!tNt+' :"n :. ?tit! rtr5'. r~d~~P. 1t;~ ~t•rifi'a r;'• G"~y~ttC Lr'n;: t?yr ts;t• i.3Cc.~^~i~ ...~-.e~, 'vas D. FGS L^r ~-:;-as=:s G` this:; ~^~;~tscrrrer:: tr7e Oefi- niUonx Se';iDn r5 arnen~ed by -h~~ ~.itti'.+hri ::fi ir,~ lttEiri;vsn~ ";e.':'~~Iayn ":i° ti:i lt.':: ::i: ;y ~ S:Te'~"?f't ,:i:l £;W1.., :YCZ'iPTd.'i:.r E 't i,. ;ucvisi~ r.s: of Lj;m"~ ~` t~~;;urtt~r;s ,`~~~;;Ttr;ra jjt: r;: _ljse~xa.,,~;t. +ti~~srr^_ :,, '^' ar,'!r•:•~~r<~r71 Ce .•rt;r,t it sr,;ta'=~e 5etv~ ~~~; Uti;~r•. "sn. , •zr~~;; 021208ba1 24 COMMEKCIAL GENERAL LIABfLiTY CG242bB7fl4 TH15 ENDORSEMENT CHANGES THE I'OL1CY. PLEASE READ IT CAREFULLY.. ADDtT10NAt` 1NSURtrt:3 -- Dt`SIGNATt=D PERSt?tU C}R ~3RGA~t2ATtC3id :r rr.CO'=8~nr; ns~~ii+ca~; ~~~t~r;~nce YraviJz~a unde'tna foiEUw:ri,^, CUt~.'ii~t~RCIAI.. G~'+il=R;eL Lff~~!',~3TY :;;,"d~RA;,~ ~Afi' SCfEDt3LE Aiame C?t Atltfttionel irtsurrd FersonlsE Or ©rganixationts) `--1 Ttfe C+ty of Dubuque, including all its elected and appotrited otfic~als, all its employees and volunteers, all its boards, ~ommrssions andlor authorities and their tavard members, employees and volunteers ~l:-ai::rra:r5 ,: e?:7 'ham.;: ~'_ ~ +.. ',". iE :'± t'°;t5 ~°y"vF^„rti_ r~ rv• S~._~i %". c"tii ~+. c: .'i tl:.',s. _~._';f:fl +r~ !:'?r» ~jaCl~°2".:,~f S 1 5~-cttan 0 _ VMho fs An tnsurod is a~~dst!~~! fts ir- ;:i;~~c ,aS 7r+ add:taanar tr;~ure~i th= p~ersaritill cr Q!- CSniz~+i~nrtfs;+ shaven ir: tt+a Sah~dui~. but orfiy with te5pec; tt~ itabiiit~• far "bt+d,ly rqurt;". " rtr~azrty ~r=•`- s:~e" Csd ',.~tr~at^rat ate" i<5dvt~::sirtQ rr,u~" cauC r^ V.'!t:sl~ tr' +^~ pa^, fns y:~uz a~~ ~> v~ Grda.55a:,,~ ,;, ..~ ~c1s ;.d 4,^, ki?i9r;,^~".:r ="%` i TDSe aC'.+~14; *~C y vU' ;~^.BIs. . A. £": fi,"v#: JL'~4a"r'S~"`: C ^v~ f:sU' S "7~,9€^~ :.";jLti!i3;1:3d1'ti, "„t` ~. !"1 Y(7 "Inr,Gtt.'f '.Y<wf~ y;3 €:r .~7`~i1TlSec O:Y-'t '4".' ~'1j.' zr *~ntc?d t^ yflu. All terms and candit;ans of thrs ppficy spay unless madif~sd by ibis ~ ntlarsement CG 20 ?5 flT 04 fNr:iuae-:,~~rjrigr+tC:J rn ;i.:r::+; ~' I^!su•ar::~ Sure= ~u„ (3!t+:-e. 1-,- vntr ,c,•,r,,....,;... Pagb 1 of 1 ':;:+ I`:;i P: o~,t!; ais, lit:. 1:<)~ 021208ba1 25 CITY OF DUBUQUE. IDWA GOVERNMENTAL IMMUNITIES ENDURSEMENT Nanwaiver of Governmental Immunity, The insurance carrier expressly agrees and slates that the purchase of this .policy and the including of the Ci#y of Dubuque, lvwa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of lo~va Section 6%C.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 sub}ect to tt-e defense of governmental immunity under the Cade of Iowa Section 67.4 as it now exists and as ~t may be amended from time to time. Those claims not subject to Code of Iowa Section 6~g 4 shall be cavered by the terms and conditions of this insurance policy s. 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 shat) do so upon the timely written request of the insurance carrier. ~. Non-Denial of Coverage. The insurance carrier shall nit deny coverage under ,his pot~cy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this paliCy for reasons of governmental irrmrnuni#y 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 titter the coverage available under the policy. SPECIMEN 021208ba1 26 EXHIBIT E MEMORANDUM OF LEASE 021208ba1 27 Prepared by: Barry A. Lindahl, Esq. 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113 Return Document to: Barry A. Lindahl, Esq. 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113 MEMORANDUM OF LEASE 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 1 ~' Street, Dubuque, Iowa 52001-4845, (hereinafter referred to as "Lessor") and Iowa Wreless Services, LLC, an Iowa Corporation with an office at 4135 NW Urbandale Drive, Urbandale, Iowa 50322 (hereinafter referred to as "Lessee"). 1. Lessor and Lessee entered intothe Madison Park 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 forfive (5) years commencing on 2008, ("Commencement Date"), and terminating on the fifth (5th) Anniversary of the Commencement Date with five (5) 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 Exhibits A and B annexed hereto. 021208ba1 28 ACKNOWLEDGMENTS STATE OF IOWA ) )ss: COUNTY OF DUBUQUE ) On this day of , 20~, 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 , 20(8. 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 aF 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: 021208ba1 29 EXHIBIT F RENT SCHEDULE 021208ba1 30 QESCiUPT1~3t~: 35 'YEAR ESCALATiN~ LEASE'CALCU~.A~t'~R Inttiat Leitse J4rnourrt: 5i ,300.00 EscSiaLttT 9 5.00/a L.ra~ l.anath 30 YEAR :'MONTHLY ANNUAL. '- TER1M TTt3 1 $ 1.300.00 S 15,oU0.0i; 2 $ '• .300 00 1 $ 15.600.0^ 3 $ 1.304 DO $ ' S 800 DO 4 ~ 1.3~'C~.00 $ 1:~.fp0.fln 5 . $ '1,3{)O.OD S 15.60{t_U0 ~ - T$aftWalO ~' 78.000~lfI °. 6 $ ' ,495.40 ; S 17,94D.OG 7 $ ' ,495.00 5 '~ 7,940.00 8 $ 1,495 AO? $ ' 7.940.00 9 ~ 5 1,495.00 $ ~ 7.940.00 ~D ~ _ ~.495.Ci0 S "L7,94C3.00 ~ '' ~~ ,.5 'tb7,TQl~.p4. t 1 ~ $ 1,719,25 , $ 24.631.00 12 $ 1,719.25 ! $ 20,G31.40 13 ~ ~ 1, 719.25 - 5 20.631.00 1~ ~ w 1.719.2 $ 24,631.00 ~~ $ 17't9-.~~ ~ . . _ 2Q.631.t)0 ~ 9t33,'t~5A0 :$ 270,8S~~3tD: ? 6 $ 1.977.? 4 $ 23 725 55 7 S 1.977.14 5 23.725 65 18 $ '..977.14 5 23,725.65 ~'! 9 S 1.977.1 < ~ $ 23.725.65 7A ~ 1,977.14 ' ~ 23.'725.~i6 i6 ~'l~t3~28?5 ~ 389.x$3;25 ;. 21 $ 2,273,71 $ 27.2HA.50 22. $ 2,273.71 j $ 27,284.50 23 $ 2,273.71 $ 27.28A.50 2d $ 2,273.71. $ 27,284.50 ?.5 ~ 2,27'3.71 5 27 ~ 3~36„4~2~t 3 525;905:74: 2$ $ 2,614.76 $ 31.377.17 27 $ 2.6iG.76 5 31,377 1 i 28 $ 2.61.78 5 31.377.' 7 29 5 2.614.16 S 31,377,,7 30 $ 2.6't4.76 ~ ~ ` 39,377.17 ~ 1GS6r$t3S:86 ~ ~'Z,7"816ii ` 021208ba1 31