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Nextel on water towerRESOLUTION NO. 13-00 A RESOLUTION OF THE CII~' OF DUBUQUE APPROVING OF A LEASE BETWEEN THE CITY OF DUBUQUE, IOWA, AND NEXTEL WIP LEASE CORP, FOR lttE INSTALLATION AND OPERATION OF A WIRELESS TELECOMMUNICATION ANTENNA FACILITY. WHEREAS, the City Council of the City of Dubuque, Iowa encourages the expansion of wireless telecommunication services to its citizens, businesses, and institutions, while at the same time minimizing safety and aesthetic concerns posed by the construction of new towers and monopoles in residential areas, and WHEREJNS, Nextel WIP Lease Corp. 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, Nextel WIP Lease Corp. desires to expand its signal coverage area and enhance the quality and capacity of its technical infrastructure by installing and operating a wireless telecommunication antenna facility on or near a water storage tank owned by the City of Dubuque, identified as site W-5, and located at 4Z26 Pennsylvania Avenue in Dubuque, and WHEREAS, the City of Dubuque desires to lease to Nextel WIP Lease Corp. certain space on top of the site W-5 water tank, along with adjacent ground space~ for the purpose of installation and operation of a wireless telecommunication facility, and WHEREAS, representatives of Nextel WIP Lease Corp. and of the City of Dubuque have negotiated terms for such a lease, a copy of which is attached hereto, which the City Council finds beneficial to the community. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE. IOWA: Section 1. That the attached lease is hereby approved and the City Manager is authorized to sign and administer this lease on behalf of the City of Dubuque, provided that the lease is amended to include a provision permitting the City to direct Nextel to de-energize the transmitter(s) within a reasonable period of time after notice from the City to accommodate maintenance and repair of the water tank by City employees or subcontractors. Passed, approved and adopted this 17th day of January, 2000. Terrance M. Duggan, Mayor Attest: Mary A. Davis, City Clerk CITY OF DUBUQUE, IOWA MEMORANDUM December 15, 1999 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Proposed Lease of Space to Nextel WIP Lease Corp Cable Franchise Administrator Merrill Crawford is recommending that a public hearing be set for January 17, 2000 to consider leasing space on the City water tank site at 4136 Pennsylvania Avenue, to Nextel Corp, to support a wireless telecommunication antenna facility. I concur with the recommendation and respectfully request Mayor and City Council approval. ~chael C Van~lhgen MCVM/j Attachment CC.' Barry Lindahl, Corporation Counsel Tim Moerman, Assistant City Manager Merrill Crawford, Cable Franchise Administrator CITY OF DUBUQUE, IOWA MEMORANDUM December 14, 1999 MEMO TO: Michael C. Van Milligen, City Manager FROM: Merrill Crawford, Cable Franchise Administrator SUBJECT: Proposed Lease of Space to Nextel WIP Lease Corp. for a Telecommunication Antenna Facility On The Pennsylvania Avenue Water Tank. INTRODUCTION: The purpose of this memorandum is to recommend that a public heating be set for the January 17, 2000 City Council meeting to consider leasing space on the City's water tank site W-5, located at 4136 Pennsylvania Avenue, and adjacent ground space, to Nextel WIP Lease Corp., a Delaware Corporation, dPo/a/Nextel Partners, to support a wireless telecommunication antenna facility. BACKGROUND: Representatives of Nextel Partners, a wireless business telecommunications service provider, have proposed leasing space on top of the City's Water Tank at 4t36 Pennsylvania Avenue, and adjacent ground space, to support communication antennae, cable, and an equipment shelter as a part of a wireless network they are extending into the Dubuque area. Research has determined that an existing communication tower not far fxom that site is unable to safely support the facility. This water tank is identified as site W-5 in the catalog of City properties we have previously evaluated for such a purpose. Highlights of the Proposed Lease Nextel would be permitted to attach a set of antennas to an existing railing or other approved mounting brackets on top of the tank, and to extend transmission cables down the existing service ladder to the ground. Nextel would also construct and maintain an equipment shelter on the ground to house transmission equipment, and would pay ail utility costs associated with the operation. Antennas would be painted to match the water tower, and the placement and facade of the equipment shelter would be coordinated with the design of the City's new booster station planned for the site. Any future changes would be subject to City approval. Term of the lease would be 20 years, with two optional 5-year extensions. Nextel w~)uld pay to the City an annual rent beginning at $12,000 and escalated annually by the greater of 3 percent or the percentage increase of the CPI. In the unlikely event of an early termination of the lease, the Lessee would pay an additional amount equal to 50 percent of the rent due for the year in which early termination occurred. In addition, the company would provide a performance bond in the amount of $10,000 during the term of the lease in case costs were incurred by the City in removing abandoned antennas or equipment. Also, any wireless communication services the City of Dubuque chose to purchase from Nextet wotdd be at the most favorable rate given any of the company's similarly-situated customers. With the exception of the specific description of the premises and details of facility placement and attachment, the terms of this proposed lease are identical to those ora lease to Nextel which the City Council approved on September 7, 1999. Water Plant Manager Bob Green is currently reviewing Nextel's proposed site plan, antenna & support facility specifications, and other details. RECOM34[ENDED ACTION: The Recommended Action is that a public hearing regarding the proposed lease to Nextel WIP Lease Corp. be set for the agenda of the January 17, 2000 City Council meeting. cc: Bob Green, Water Plant Manager CITY Of DUBUQUE, IOWA OFFICIAL NOTICE NOTICE is hereby given that the Dubuque City Council will conduct a public hearing at a meeting to commence at 6:30 o'clock P.M. on January 17, 2000 in the Public Library Auditorium for the purpose to consider leasing space on the City's water tank site W-5, located at 4136 Pennsylvania Avenue, and adjacent ground space, to Nextel WlP Lease Corp, a Delaware Corporation, d/b/a Nextel Partners, to support a wireless telecommunication antenna facility, Term of the lease would be for 20 years with two optional 5 year extensions. (Copy of supporting documents are on file in the City Clerk's Office and may be viewed during normal working hours.) Written comments regarding above lease may be submitted to the City Clerk's Office on or before said time of public hearing. At said time and place of public hearing all interested and citizens and parties will be given an opportunity to be heard for or against said lease. Any visual or hearing impaired persons needing special assistance or persons with special accessibility needs should contact the City Clerk's Office at (319) 589`4120 or TDD (319) 589-4193 in the Human Rights Department at least 48 hours prior to the meeting. Published by order of the City Council given on the 20 day of December, 1999. ltl/7 Mary A. Davis CMC City Clerk CITY Of DUBUQUE, IOWA OFFICIAL NOTICE NOTICE is hereby given that the Dubuque City Council will conduct a public hearing at a meeting to commence at 6:30 o'clock P.M. on January 17, 2000 in the Public Library Auditorium for the purpose to consider leasing space on the City's water tank site W-5, located at 4136 Pennsylvania Avenue, and adjacent ground space, to Nextel WIP Lease Corp, a Delaware Corporation, d/b/a Nextel Partners, to support a wireless telecommunication antenna facility, Term of the lease would be for 20 years with two optional 5 year extensions. (Copy of supporting documents are on file in the City Clerk's Office and may be viewed during normal working hours.) Written comments regarding above lease may be submitted to the City Clerk's Office on or before said time of public hearing. At said time and place of public hearing all interested and citizens and parties will be given an opportunity to be heard for or against said lease. Any visual or hearing impaired persons needing special assistance or persons with special accessibility needs should contact the City Clerk's Office at (319) 589-4120 or TDD (319) 589-4193 in the Human Rights Department at least 48 hours prior to the meeting. Published by order of the City Council given on the 20 day of December, 1999. ltl/7 Mary A. Davis CMC City Clerk ,; DEO-~O-99 ~ON 03~12 P~ TELEGRfiPH HEI~LD F~ ~I0, 3195885782 ?, 07 NOTICE is hereby giv~ C~tv O~t~'s Office an~ ~i~ed d~ng n0~al hours-) - pub[ia hea~g needit~g spe- } of Office the -fDD at to the m~e,?n - I ubl ~ed by order of the Oity CoUnCil given on ~e 20 day o[ December, 1999, Mary A, D~V[s, City CleCk It 1/7 CITY OF DUBUQUE, IOWA MEMORANDUM January 12, 2000 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Proposed Lease Space to Nextel WlP Lease Corp. for a Telecommunications Antenna Facility on the Pennsylvania Avenue Water Tank Cable TV Administrator Merrill Crawford is recommending execution of a lease to Nextel WlP Lease Corporation for a Telecommunications Antenna facility on the Pennsylvania Avenue water tank. The annual lease payment would be ~ 12,000 with an escalation clause for a period of 20 years, with two optional 5-year extensions. I concur with the recommendation and respectfully request Mayor and City Council approval. M~hael C Van Mdhgen MCVM/dd Attachment cc: Barry Lindahl, Corporation Counsel Tim Moerman, Assistant City Manager TRAISER -] 0/''' ASSOCIATES, P.A. MATTHEW J. TRAISER ATTORNEYS AT LAW 14321 NICOLLET AVENUE SOUTH SUITE 400 BURNSVILLE, MINNESOTA 55306 PHONE: (952) 435-6090 FAX: (952) 435-6 ! 77 June 1, 2000 City of Dubuque Arm: City Manager 50 West 13t~ Street Dubuque, IA 52001 RE: Water Tower and Ground Space Lease between Nextel WIP Lease Corp. and the City of Dubuque. Dear City Manager, For your records, enclosed please find a photocopy of the recorded Memorandum of Lease document between Nextel WIP Lease Corp. and the City of Dubuque. Sincerely, Traiser & Associates, P.A. Matthew Traiser, Esq. ~ Site I.D. City: W-5 Nextel: IA-574P-C WATER TOWER & GROUND SPACE LEASE This Water Tower and Ground Space Lease (the "Lease") is made and entered into this day of ,2000, 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 Nextel WIP Lease Corp., a Delaware corporation, d/b/a Nextel Partners, whose address is 4500 Carillon Point, Kirkland, WA 98033, hereinafter referred to as "Lessee". Background A. Lessor is the owner in fee simple of a parcel of land located in the City of Dubuque, Dubuque County, State of Iowa, legally described on the attached Exhibit A (the "Owned Premises"), on which a water tower (the "Tower") is located. The street address of the Owned Premises is 4136 Pennsylvania Avenue, Dubuque, IA 52002. B. Lessee desires to lease space on the top of the Tower and ground space below, or adjacent to, the Tower (the "Ground Space") for the installation and operation ora cellular radio-telephone communication antennae facility, which shall include omnidirectional 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 fi.om Lessor a portion of the Owned Premises, consisting of(i) space on the Tower, (ii) sufficient Ground Space below, or adjacent to, the Tower to place its equipment 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 circular railing as more fully described on the attached Exhibit C. Lessee may not add additional equipment and/or antennae fi.om 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 railing or Tower. Lessee shall complete the relocation of its antennae, connecting cables and appurtenances within thirty (30) days after receiving written notice from Lessor. The relocation shall be at the Lessor's expense, and such expense shall be approved by Lessor.prior to Lessee's relocation. If such relocation does not meet Lessee's RF requirements or interferes with Lessee's transmission, reception and operation of its communications system and uses incidental thereto, Lessee may terminate this Lease in accordance with Section 19 herein. This Lease is not a franchise pursuant to state, local, or federal law, nor is it a permit to use the rights-of-way. Any such franchise or permit must be obtained separately. 2. Term. The initial term of this Lease shall commence on the date the building permit is approved (the "Commencement Date") and end on the twentieth anniversary of the Commencement Date. Lessee shall have the option to renew this Lease for up to two (2) additional terms of five (5) years each, upon a continuation of all the same provisions hereof, by giving written notice to Lessor of Lessee's exercise of this option at least sixty (60) days before the expiration of the term then present at the time of such notice. 3. Rent. a. Lessee shall pay to Lessor as annual rent for the Premises the sum of twelve thousand dollars ($12,000) (the "Base Rent"). Lessee shall pay Lessor Base Rent for the first year on the Commencement Date, and for each year thereafter on the Anniversary of the Commencement Date, unless the Base Rent is abated pursuant to Section 18 herein. Base Rent shall be increased annually as described in Section 3(c) herein. b. Lessee shall pay Lessor a late payment charge equal to five percent (5%) of the late payment for any payment not paid when due. Any amounts not paid when due shall bear interest until paid at the lesser of the rate of two percent (2%) per month or the highest rate permitted by law. c. The Base Rent shall be increased annually effective as of each anniversary of the Commencement Date by an amount equal to the greater of three percent (3%) of the previous year's Base Rent or the percentage increase in the CPI for the 12 months prior to the adjustment date. "CPI" means the 2 Consumer Price Index for All Urban Consumers, U.S. City Average, All Items, issued by the Bureau of Labor Statistics for the United States Department of Labor (1982-84 = 100). If the CPI is converted to a different standard reference base or otherwise revised, the adjustment set forth in this paragraph shall be made with the use of the conversion formula published by the Bureau of Labor Statistics. d. To the extent that Lessor desires to purchase cellular telephone service from Lessee, Lessee shall offer this service to Lessor at the most favorable rate and terms that Lessee then offers to any other similarly-situated customers. 4. Use of Premises.. a. Lessee shall use the 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 three (3) rod-type omnidirectional antennae. Lessor may permit others to use other portions of the Tower or Owned Premises. Lessee shall, at its expense, comply with all present and future federal, state, and local laws, ordinances, rules and regulations (including laws and ordinances relating to health, radio frequency emissions, radiation and safety) in connection with the use, operation, maintenance, construction and/or installation of the Wireless Telecommunication Antennae Facility on the Premises. Lessor agrees to reasonably cooperate with Lessee in obtaining, at Lessee's expense (including reimbursement of Lessors 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 wormlike 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. Waiver of Lessor's Lien. Lessor acknowledges that Lessee has entered into a financing arrangement including promissory notes and financial and security agreements for the financing of the Wireless Telecommunication Antennae Facility (the "Collateral") with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, Lessor (i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. 6. Construction Standards. The omnidirectional antennae, equipment building, connecting cables and appurtenances of the Wireless Telecommunication Antennae Facility shall be installed on the Prcmfises 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. 7. 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. 4 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. Any damage done to the Tower, the railing and/or other structures by Lessee or its contractors or representatives during installation and/or operations shall be repaired or replaced immediately at Lessee's expense and to Lessor's reasonable satisfaction. In connection with the installation and operation of the Wireless Telecommunication Antennae Facility, Lessee shall not make any penelrations 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. 8. Equipment Upgrade. Lessee may update or replace the antennae from time to time with the prior written approval of Lessor, whose approval shall not be unreasonably withheld, 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 railing of the Tower 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. 9. 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 railing or other portions of the Tower by Lessor. Lessee shall not interfere with the use of the railing, the Tower, related facilities or other equipment of other lessees. b. Lessee shall have sole responsibility for the maintenance, repair, and security of its equipment, personal property, leasehold improvements, and omnidirectional 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 railing or the Tower, Lessee shall take reasonable measures at Lessee's cost to cover Lessee's equipment, personal property, leasehold improvements, and omnidirectional antennae, equipment building, connecting cables, and appurtenances of the Wireless Telecommunication Antennae Facility and protect such from paint and debris fallout which may occur during the painting, construction or alteration process. Lessee shall notify Lessor at least thirty-five (35) days prior to any construction, painting, repair or alterations begun by Lessee to the Wireless Telecommunication Antennae Facility, the railing or the Tower, unless such construction, painting, repair or alterations must be made on an emergency basis, in which case Lessee shall notify Lessor as soon as practicable. Lessor shall notify Lessee at least thirty (30) days prior to any construction, painting, repair or other alterations begun by Lessor or any other lessee, unless said construction, painting, repair or alterations must be made on an emergency basis, in which case Lessor shall notify Lessee as soon as practicable. Unless resulting from negligent actions or omissions of, or willful misconduct of, Lessor, its employees, agents or contractors, Lessor shall not be liable for any damage incurred by Lessee from such painting, construction, repair or alterations. 10. Premises Access. a. Lessee shall have 24- hour/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 Tower in order to install, operate and maintain its antennae, connecting cables, and appurtenances. Lessee shall have access to such Tower only with the prior written approval of Lessor. Lessee shall request access to the Tower twenty-four (24) hours in advance, except in an emergency. Lessee shall have unrestricted access to its equipment building without the requirement of supplying Lessor with prior written notice. 6 c. Upon twenty-four (24) hours prior written notice to Lessee, and with an escort provided by Lessee, Lessor shall be allowed and granted access to Lessee's equipment building at reasonable times to examine and inspect the same for safety reasons or to ensure that the Lessee's covenants are being met. d. Lessor shall keep the street access to the Premises reasonably clear of snow and ice as soon as is practicable after each snowfall. 11. 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 Pennsylvania Avenue 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. 12. 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 irmnediately 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 fi-om 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 communication signals to and from the facilities or equipment of Lessee. If any harmful RF interference shall result fi-om 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 20 herein. 13. Monetary Default bv Lessee. Lessee shall be in default of this Lease if Lessee fails to make payment of rent, or any other sums, when due and such failure continues for ten (10) days after Lessor notifies Lessee in writing of such failure. 14. Non-monetary Default by Lessee. If Lessee fails to comply with any non- monetary provision of this Lease which Lessor claims to be a default hereof, Lessor shall serve written notice of such default upon Lessee, whereupon a grace period of 30 days shall commence to 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. 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 fi-om 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 and pay Lessor Additional Rent in the mount of fifty percent (50%) of the annual rent for the year in which such termination occurs. 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 twentieth year of the term, or during either of the two optional five-year extensions of the term, the amount of the Additional Rent due upon termination shall be zero. 16. Performance Bond. To secure the timely performance by Lessee of all terms, covenants and conditions of this lease, Lessee shall provide Lessor with a performance bond in an amount not less than ten thousand dollars ($10,000) and in a form mutually satisfactory to the parties 17. Lessee's Conditions Precedent. This Lease and Lessee's obligations hereunder, including the obligations to pay rent, are expressly conditioned upon and subject to the following: a. Lessee must receive all necessary local, state, and federal governmental approvals and permits relating to Lessee's intended use of the 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 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. 18. Abatement of Rent Pending Conditions. Lessee shall have no obligation to pay rent until all the Conditions Precedent have been satisfied or waived, and rent which would otherwise be due for the intervening time pending satisfaction of the Conditions Precedent is hereby excused and forgiven. 19. Option to Terminate. Lessee shall have the unilateral right to terminate this Lease at any time by giving written notice to Lessor of Lessee's exercise of this option and paying Lessor an amount equal to fifty percent (50%) of the annual rent for the year in which such termination occurs as Additional Rent. Upon such termination, Lessee shall remove the Wireless Telecommunication Antennae Facility in accordance with Section 4(c) herein. 20. Alteration. Damage or Destruction. If the railing or Tower or any portion thereof is altered, damaged or destroyed, through no fault or negligence of Lessee, so as to materially hinder effective use of the Wireless Telecommunication 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 railing or Tower. This Lease and Lessee's obligations hereunder shall terminate upon Lessee's fulfillment of Section 4(c), at which time Lessee shall be entitled to reimbursement of any prepaid rent. 21. Condemnation. In the event the Owned Premises are taken by eminent domain, this Lease shall terminate as of the date title to the Owned Premises vests in the condemning authority. In the event a portion of the 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. 22. 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, 10 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 fi.om 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 fi.om 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 acknowledges, however, that Lessee 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 covenants with Lessor that in no event and/or under no circumstances shall Lessor, or its officers, directors, members, or employees, be liable to Lessee or to any other person or entity for consequential damages relating to or arising out of Lessee's use and/or occupancy of the premises or the access easement parcel, regardless of whether those consequential damages arise out of, relate to, or are caused by Lessor's negligent actions or omissions. 23. Insurance. Lessee shall provide such insurance as is required by the Insurance Schedule attached hereto. 24. Environmental Warranty. Lessee agrees that it will not use, generate, store or dispose of any Hazardous Material on, under, about or within the Owned Premises in violation of any law or regulation. Lessor represents, warrants and agrees (I) that neither Lessor nor, to Lessor's knowledge, any third party has used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any Hazardous material on, under, about or within the Owned Premises in violation of any law or regulation, and (2) that Lessor will not, and will not permit any third party to use, generate, store or dispose of any Hazardous material on, under, about or within the owned Premises in violation of any law or regulation. Lessor and Lessee each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any representation, warranty or agreement contained in this paragraph. As used in this paragraph, "Hazardous Material" shall mean petroleum or any petroleum product, 11 asbestos, any substance known by the state in which the Owned Premises is located to cause cancer and/or reproductive toxicity, and/or any substance, chemical or waste that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. This paragraph shall survive the termination of this Lease. 25. Holding Over. Any holding over after the expiration of the term hereof, with the consent of the Lessor, shall be construed to be a tenancy from month to month at two (2) times the rents herein specified (prorated on a monthly basis) and shall otherwise be on the conditions herein specified, so far as applicable. 26. Subordination. Lessee agrees to subordinate this Lease to any mortgage or trust deed which may hereafter be placed on the 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. 27. Acceptance of Premises. By taking possession of the Premises, Lessee accepts the Premises in the condition existing as of the Commencement Date. Lessor makes no representation or warranty with respect to the condition of the Premises and Lessor shall not be liable for any latent or patent defect in the Premises. 28. Estoppel Certificate. Upon at least ten (10) days prior written notice from Lessor, Lessee shall deliver to Lessor a written statement certifying that (i) the Lease is unmodified and in full force, or if the Lease has been modified, that the Lease is in full force as modified and the modifications are then identified; (ii) the dates to which rent and other charges have been paid; (iii) so far as the certifying party knows, Lessor is not in default under any provisions of the Lease; and (iv) such other matters as Lessor may reasonably request. 29. Notices. All notices and correspondence shall be sent to the following: Lessor: City Manager Lessee: City o f Dubuque 50 W. 13th Street Dubuque, IA 52001- 4845 Nextel WIP Lease Corp. 4500 Carillon Point Kirkland, WA 98033 Attention: Legal Department/ Site Lease Administrator 12 30. Assi~munent of Lease by Lessee. Lessee may not assign, or otherwise transfer all or any part of its interest in this Lease or in the Premises without the prior written consent of Lessor; provided, however, that Lessee may assign its interest to its parent company, any subsidiary or affiliate of it or its parent company or to any successor-in- interest or entity acquiring fifty-one percent (51%) or more of its stock or assets, subject to any financing entity's interest, if any, in this Lease as set forth in Paragraph 5 above. Lessor may assign this Lease upon written notice to Lessee, subject to the assignee assuming all of Lessor's obligations herein, including but not limited to, those set forth in Paragraph 5 above. Notwithstanding anything to the contrary contained in this Lease, Lessee may assign, mortgage, pledge, hypothecate or otherwise transfer without consent its interest in this Lease to any financing entity to whom Lessee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. 31. Bindin~ Effect. All of the covenants, conditions, and provisions of this Lease shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 32. Entire Am'eement. This Lease constitutes the entire agreement between the parties and supersedes any prior understandings or oral or written agreements between the parties respecting the within subject matter. 33. Modifications. This Lease may not be modified, except in writing signed by the party against whom such modification is sought to be enforced. 34. Attorney's fees. In any action on this Lease at law or in equity, the prevailing party shall be entitled to recover the reasonable costs of its successful case, including reasonable attorney's fees and costs of appeal. 35. Non-Waiver. Failure of Lessor or Lessee to insist on strict performance of any of the conditions, covenants, terms or provisions of this Lease or to exercise any of its rights hereunder shall not waive such rights, but each party shall have the rights to enforce such rights at any time and take such action as might be lawful or authorized hereunder, either in law or equity. The receipt of any sum paid by one party to the other after a breach of this Lease shall not be deemed a waiver of such breach unless expressly set forth in writing. 13 36. 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 Nextel WIP Lease Corp., 4500 Carillon Point, Kirkland, WA 98033, Attention: Legal Department/Site Lease Administrator. All requests must be accompanied by a copy of Lessor's tax bill. Lessee shall comply with requests for contribution by issuing a check for Lessee's proportionate share made payable to the tax collector. Lessee shall comply with requests for reimbursement by issuing a check to Lessor, provided that a paid tax receipt accompanies such request. c. Lessee shall have the right, but not the obligation, to pay Lessor's real estate taxes on the underlying land if the same become delinquent, to ensure that Lessee's leasehold interest does not become extinguished. Lessee shall be entitled to take a credit against rent for the portion of Lessor's taxes which it was not Lessee's obligation to pay, as such amount shall reasonably be substantiated. 37. Headings. The headings of this Lease are for convenience only and shall not be considered as part of the Lease for purposes of construction of the terms and conditions hereof. 38. Miscellaneous. a. Lessor and Lessee represent that each, respectively, has full right, power, and authority to execute this Lease. b. This Lease shall be construed in accordance with the laws of the State of Iowa. 14 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 armexed 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. Ail Riders and Exhibits annexed hereto form material parts of this Lease. g. This Lease may be executed in duplicate counterparts, each of which shall be deemed an original. END OF AGREEMENT (Signature Page Follows Next) 15 Signature Page IN WITNESS WHEREOF, the parties hereto bind themselves to this Ground Lease as of the day a~,d year first above written. Lessor: The City of Dubuque, Iowa By: Michael C. Van Milligen City Manager ATTEST: By: Mary A. Davis City Clerk Lessee: Nextel WIP Lease Corp By: Name: Title: 16 ACKNOWLEDGMENTS STATE OF IOWA ) )SS: COUNTY OF DUBUQUE ) On this day of ., 2000, before me a Notary Public in and for the State of Iowa, personally appeared Michael C. Van Milligen and Mary A. Davis, 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 insmanent 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 .2000. Notary Public My commission expires: STATE OF ) )SS: COUNTY OF __ ) I, the undersigned, a notary public in and for the State and County aforesaid, do hereby certify that ., known to me as the same person whose name is subscribed to the foregoing Ground Lease, appeared before me this day in person and acknowledged that, pursuant to his authority, he signed the said Lease as his free and voluntary act on behalf of ., for the uses and purposes therein stated. Given under my hand and seal this day of .,2000. Notary Public My commission expires: EXHIBIT A Legal Description of the Owned Premises Lot 2 of 2, A.C. Pfohl Place, Dubuque, Iowa 18 EXHIBIT B Site Plan/Legal Description of The Premises FOUND iRON ROD CAP FOUND [RON ROD 3AP #4850 PENNS~ FANI,4 A VENUE EXIS~NG DRIVE 50'+ X 50,4. / / ME"~ER PHONE BOX -? WATER TANK APPROXIMATE NEXTEL PAR]'NERS -.,. ~ ~'-~.~ ~ -$890'2'5,.W 200.12 (20~00') ..... '--- " ..... MN ~ TN=TRUE NOR'~4 MN=MAGNETiC NORTH FOUND IRON ROD CAP #¢850 TELCO. PEDESTAL FOUND IRON ROD CAP #4-850 0 20 40 80 SCALE IN FEET 19 EXItIBIT C Equipment to be Placed on The Premises One (1) 9' x 16' equipment shelter Three omnidirectional rod antennae on the circular railing on top of the Water Tower Each antenna approx. 12 feet in length, 3 inches in diameter, white in color. Transmission lines from antennas to equipment (underground from water tower to equipment shelter). QTANK ROOF PI.AN 20 EXHIBIT D Protected Users of The Premises 1. City of Dubuque The City of Dubuque currently operates no antennae or transmission equipment on the W-5 water tower. 21 INSURANCE SCHEDULE 1. Any policy of insurance or certificate of insurance required hereunder shall be with a carrier authorized to do business in Iowa and a carrier that has received a rating of A or better in the current Best's Rating Guide. 2. Any policy of insurance required hereunder shall provide for a thirty-day notice to the City of any material change or cancellation of the policy prior to its expiration date. 3. Lessee shall have its insurance agent or company certify in writing that any policy of insurance required herein with an aggregate limit of liability has not been reduced by paid or reserved claims at the time of issuance of policy or certificate. 4. Lessee shall furnish copies of the following policies to the City, with limits not less than the following, or greater if required by law, and shall also furnish certificates of insurance fi.om all independent contractors or subconlractors hired by Lessee or any independent contractor or subcontractor, which certificates shah provide evidence of coverage for the following with limits not less than the following, or greater if required by law: COMMERCIAL GENERAL LIABILITY: General Aggregate Limit Products - Completed Operation Aggregate Limit Personal and Advertising Injury Limit Each Occurrence Limit Fire Damage Limit (any one occurrence) Medical Payments $2,000,000 $1,000,000 $1,000,000 $1,000,000 $ 50,000 $ 5,000 OR Combined Single Limit Medical Payments $2,000,000 $ 5,000 Coverage is to include: occurrence form, premises/operations/products/completed operations coverage, independent contractors' coverage, contractual liability, broad form property damage, personal injury, City of Dubuque named as an additional insured with 30 days' written notice of change or cancellation. EXHIBIT E Site I.D. City: W~5 Nextel: IA-574P-C MEMORANDUM OF LEASE CLERK: Please return this document to: Nextel WIP Lease Corp. 4500 Carillon Point Kirkland, WA 98033 Attention: Property Manager This Memorandum of Lease is entered into on this day of ,2000, by and between the City of Dubuque, Iowa, a Municipal corporation, created and existing under the laws of the State of Iowa, with an office at 50 West 13th Street, Dubuque, Iowa 52001-4845, (hereinafter referred to as "Lessor") and Nextel WIP Lease Corp., a Delaware corporation with an office at 4500 Carillon Point, Kirkland, WA 98033 (hereinafter referred to as "Lessee"). 1. Lessor and Lessee entered into a Water Tower & Ground Space Lease ("Lease") on the day of ,2000, for the purpose of installing, operating and maintaining a radio communications facility and other improvements. All of the foregoing are set forth in the lease. 2. The term of the Lease is for twenty (20) years commencing on February 1, 2000 ("Commencement Date"), and terminating on the twentieth Anniversary of the Commencement Date with two (2) successive five (5) year options to renew. 3. The Land which is the subject of the Lease is described in Exhibit A annexed hereto. The portion of the Land being leased to Lessee (the "Premises") is described in Exhibit B annexed hereto. 23 City of Dubuque City Administrator 50 W. 13th St. Dubuque, IA 52001 (319)589-4110 EXHIBIT E Site I.D. City: Nexteh IA-574P-C MEMORANDUM OF LEASE CLERK: Please return this document to: Nextel WlP Lease Corp. [ 4500 Carillon Point Kirkland, WA 98033 Attention: Property Manager b '~rp~;I I ,2000, by and This Memorandum of Lease is entered into on this [~'tbday of erween the Ciw of Dubuque, Iowa, a Municipal corporation, created and existing under the laws of the State of Iowa, with an office at 50 West 13th Street, Dubuque, Iowa 52001-48'J5,'(hereinafter referred to as "Lessor") and Nextel W1P Lease Corp., a Delaware corporation with an office at 4500 Carillon Point, Kirkland, WA 98033 (hereinafter referred to as "Lessee"). l,%Lesspr and Lessee entered into a Water Tower & Ground Space Lease ("Lease") on the Ic~xi'h day of . .~. ~ ~ ,2000, for the purpose of in§tailing, operating ahd maintaining a radio ' commumcafions facility and other improvements. All of the foregoing are set forth in the lease. 2. The term of the Lease is for twenty (20) years commencing on February 1, 2000 ("Commencement Date"), and terminating on the twentieth Anniversary of the Commencement Date with two (2) successive five (5) year options to renew. 3. The Land which is the subject of the Lease is described in Exhibit A annexed hereto. The portion of the Land being leased to Lessee (the "Premises") is described in Exhibit B annexed hereto. k 5336-00 ..... 21]Dt]MAY 17 PMI2:38 i(ATHY FLYRR THURLO'¢I ,_.~\ pO COUIiTY RECORDER DUBUEIUE CO., IO~¥A FEES 24 Site I.D. City: W-5 Nextel: IA~574P-C IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year above written. LESSOR: The City of Dubuglue0 Iowa Name: Michael C. Van Milliken Title: City Mana_oer ATTEST: ~55J~anne Schneider City Clerk LESSEE: Nextel WIP Lease Corp. By: O~(~ q~-~ Title: Vice President Date: STATE OF IOWA ) COUNTY OF DUBUQUE ) SS. Onthis ~'~ayof ,g~/~/g~ ,2000beforeme,~'/~,e~/~//~,~/5£9~et~//q.{B,~aNotary Public in and for the/Sti(e of Iowa, personally appeared Michael C. Van Mitligen 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 ~em voluntarily executed. TNESS and official al. · Notary Public My commission expires: /y"?-~/--O ff~ 25 Site I.D. City: W-5 Nextel: IA-574P~C STATE OF SS. Public. personally appeared' ~,[l&'~-_, ~ ,,~-"~"~·. ' , ,~o me personall~m~wn, who being by me duty affirmed did say ~[tl'~-~5~s°oiit~ktl[llflg ¥7~ ."0cox-~Jl~ o3~ of said corporation and that said insla-ument was signed on behatf of the said corporation by authority of its board of directors and the said corporation acknowledged the execution of said instrument to be the voluntary act and deed o£said corporation by it voluntarily executed. WITNESfi_~y hand and official seal... Notary Pubhc My commission expires: Ir>/t~_~ (SEAL) 26 Site I.D. City:W-5 Nextel:IA-574P-C IN WITNESSWHEREOF, the parties have executed thisMemorandumofLeaseasof the day and year above written. LESSOR: The City of Dubuque, Iowa By: Name: Michael C. Van Milliken Title: City Manager Date: ATTEST: By: Mary A. Davis City Clerk LESSEE: Nextel WIP Lease Corp. By: Name: Title: Date: STATE OF IOWA ) COUNTY OF DUBUQUE ) SS. On this day of ,2000 before me, , a Notary Public in and for the State of Iowa, personally appeared Michael C. Van Milligen and Mary A. Davis, 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. WRYNESS my hand and official seal. Notary Public (SEA ) My commission expires: 24 STATE OF ) SS. COUNTY OF ) Site I.D. City: W-2 Nextel: IA-574P-C On this day of ,2000 before me, , Notary Public, personally appeared , to me personally known, who being by me duly affrrrned did say that that person is the of said corporation and that said instrmnent was signed on behalf of the said corporation by authority of its board of directors and the said corporation acknowledged the executiOn of said instrument to be the voluntary act and deed of said corporation by it voluntarily executed. WITNESS my hand and official seal. Notary Public My commission expires: (SEAL) 25