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Proposed Lease Agreement Between the City of Dubuque and Comelec Internet Services_HearingCity of Dubuque City Council Meeting Public Hearings # 5. Copyrighted November 15, 2021 ITEM TITLE: Proposed Lease Agreement Between the City of Dubuque and Comelec Internet Services SUMMARY: Proof of publication on notice of public hearing to consider City Council approval of a lease with Comelec Internet Services for space on the 3rd Street Water Tower, and City Manager recommending approval. SUGGESTED DISPOSITION: ATTACHMENTS: Description RESOLUTION Approving the disposal of an interest in real property owned by the City of Dubuque by Lease Supplement between the City of Dubuque, Iowa and Comelec Internet Services, LLC Suggested Disposition: Receive and File; Adopt Resolution(s) Comelec Lease Agreement-MVM Memo Comelec 3rd Street Water Tower Lease Memo to the City Manager Resolution Approving Lease and Ground Space Agreement West 3rd - Comelec Lease Agreement Comelec calculator of annual payments with inflation Type City Manager Memo Staff Memo Resolutions Supporting Documentation Supporting Documentation THE CITY OF Dubuque DUB E All -America City ` ' 11p Masterpiece on the Mississippi � pp zoo�.*o 13 2017202019 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Proposed Lease Agreement Between the City of Dubuque and Comelec Internet Services DATE: November 10, 2021 Information Services Manager Chris Kohlmann, Civil Engineer II Dave Ness and Sustainable Innovation Consultant David Lyons recommend City Council approval of a lease with Comelec Internet Services for space on the 3rd Street Water Tower. The term of the lease would be 15 years. Comelec would pay an annual lease of $8,400.00 which is increased 3% annually. Comelec will be responsible for removing the old radio tower, previously used by JULE Transit, which is no longer of value or use to the City and which needs to be removed from the property to allow for other future uses of the space. I concur with the recommendation and respectfully request Mayor and City Council approval. v Mic ael C. Van Milligen MCVM:jh Attachment cc: Crenna Brumwell City Attorney Cori Burbach, Assistant City Manager Dave Ness, Civil Engineer II Chris Kohlmann, Information Services Manager David Lyons, Sustainable Innovation Consultant THE CITY OF DUB TE Masterpiece on the Mississippi TO: Michael C. Van Milligen, City Manager FROM: Dave Ness, Civil Engineer II Chris Kohlmann, Information Services Manager David Lyons, Sustainable Innovation Consultant Dubuque IIFlmeriw Cft 2007-2012.2013 2017*2019 SUBJECT: Proposed Lease Agreement Between the City of Dubuque and Comelec Internet Services DATE: November 9, 2021 INTRODUCTION This memo is requesting consideration for a new Lease with Comelec for space on the 3rd Street Water Tower. T_T6] 20]:19111 z I ki Comelec Internet Services is a locally owned and operated telecommunication and internet services provider. It is contemplating expansion of its wireless supported services and would like to lease space on the 3rd Street Water Tower to accomplish that objective. Comelec and the City have a successful history of collaborations under their existing Master Shared Service Agreement. DISCUSSION There are multiple communication providers with equipment located on the City's 3rd Street Water Tower. Comelec has provided the City's Water Department with an engineering review and installation outline for a potential new installation and are ready to proceed. The term of the lease would be 15 years. Comelec also contemplates re- using existing infrastructure that was left behind by an earlier lessee. Comelec would pay an annual lease of $8,400.00 which is increased 3% annually. In addition, Comelec will be responsible for removing the old radio tower, previously used by JULE Transit, which is no longer of value or use to the City and which needs to be removed from the property to allow for other future uses of the space. Also, it is anticipated that Comelec will enter into a lease for space at a future date in the telecommunications but previously used for the public safety emergency radio system at that site when that building can be made ready by the City. BUDGETIMPACT Entering into this lease should have a positive budgetary impact on the City as it will generate new lease revenue and help the City avoid the cost of the old radio tower removal. ACTION REQUESTED Approval of this lease would support the City's Broadband Acceleration Initiative while generating new revenue to the City. Please review this memo and the proposed lease and let us know if you have any questions. We would respectfully request approval of the lease agreement with Comelec Internet Services through adoption of the enclosed resolution. Thank you. CC Crenna Brumwell, City Attorney Barry Lindahl, Senior Counsel Steve Brown, Project Engineer Chris Lester, Water Department Prepared by Chris Kohlmann, Information Services Manager, 1300 Main St Dubuque IA 52001 (563)-589-4280 Return to Adrienne N. Breitfelder, City Clerk, 50 W. 13'h St., Dubuque, IA 52001, (563) 589-4100 RESOLUTION NO. 405-21 APPROVING THE DISPOSAL OF AN INTEREST IN REAL PROPERTY OWNED BY THE CITY OF DUBUQUE BY LEASE SUPPLEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND COMELEC INTERNET SERVICES, LLC Whereas, the City of Dubuque, Iowa (City) is the owner of the real property described as follows: Property at 1575 West Third Street, Dubuque, IA, legally described as Lots 23 & 24 of the Finley Home Addition in Dubuque, Iowa, Dubuque County, Iowa (the Property) ; and Whereas, City and Comelec Internet Services, LLC entered into a Master Lease Agreement dated April 1, 2019 (the Agreement), which granted Comelec the right to lease certain City property for the purposes and subject to the conditions set forth in the Agreement; and Whereas, Comelec desires to lease certain space on the Water Tower on the Property as shown on Exhibit B; and Whereas, City and Comelec have tentatively agreed to the Lease Supplement, attached hereto: and Whereas, the City Council, by Resolution No. 383-21 dated November 1, 2021 declared its intent to dispose of City interest in Premises; and Whereas, the City Council believes it is in the best interest of the City of Dubuque to approve the Lease Supplement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The Water Tower & Ground Space Lease Agreement between the City and Comelec Internet Services is hereby approved, and the Mayor is authorized to execute said Water Tower & Ground Space Lease Agreement on behalf of the City of Dubuque. Passed, approved, and adopted this 15th day of November 2021. ekLI Roy D. B I, Mayor Attest: G+?tom. 4 ")Z,�4 Adrienne N. Breitfelder, City Clerk EXHIBIT B SITE PLAN City: Site Number: Site Name: WATER TOWER & GROUND SPACE LEASE This Water Tower and Ground Space Lease (the "Lease") is made and entered into this Jam" day of Umr 2021, 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 Comelec Internet Services, LLC., an Iowa limited liability company, having an address a 4190 Pennsylvania Avenue, Dubuque, Iowa 52002 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 1575 West Third Street, Dubuque, IA 52001. B. Lessee desires to lease space on the top of the Tower for the installation and operation of a microwave communication antenna facility, which shall include Antenna(s), connecting cables and appurtenances (collectively, "Wireless Telecommunication Antenna Facility") for use in connection with its communication business. C. Accordingly, the parties are entering into this Lease on the terms and conditions set forth below. Agreement In consideration of their mutual covenants, the parties agree as follows: 1 1. Leased Premises. Lessor leases to Lessee and Lessee leases from Lessor a portion of the Owned Premises, consisting of (i) space on the Tower, (ii) easements for ingress/egress and utilities as shown on the Site Plan/Legal Description attached as Exhibit A (collectively, the "Leased Premises"). Lessee intends to locate its antenna on the Water Tower as more fully described on the attached Exhibit B. Lessee may not add additional equipment and/or antenna(s) from that shown on Exhibit B 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 specified on the commencement letter by the Lessor sent from the Lessee (the "Commencement Date") and end on the fifteenth Anniversary of the Commencement Date. 3. Rent. a. Lessee shall pay to Lessor as annual rent for the Leased Premises the sum of eight thousand four hundred dollars ($8,400.00) (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 16 herein. Base Rent shall be increased annually as described in Section 3(b) herein. b. The Base Rent shall be increased annually effective as of each Anniversary of the Commencement Date by an amount of three percent (3%) of the previous year's Base Rent. 4. Use of Premises. 2 a. Lessee shall use the Leased Premises for the installation, operation, and maintenance of its Microwave Telecommunication Antenna Facility for the transmission, reception and operation of a communications system and uses incidental thereto and for no other uses. Lessor may permit others to use other portions of the Tower or Owned Premises. Lessee may NOT sublease space on the Tower or Owned Premises to any other entity. b. Lessee shall, at its expense, comply with all present and future federal, state, and local laws, ordinances, rules and regulations (including laws and ordinances relating to health, radio frequency emissions, radiation and safety) in connection with the use, operation, maintenance, construction and/or installation of the Microwave Telecommunication Antenna Facility on the Leased Premises. c. Lessee shall, at its expense, remove the existing radio tower identified in Exhibit B. . Prior to commencing removal of the tower, Lessee shall provide Lessor for review and approval a Removal Specifications Plan which shall include, but is not limited to, a detailed description of the removal process, proposed contractors, public safety procedures and certification that all local state and federal requirements are or will be met during the removal process. d. (1) The Microwave Telecommunication Antenna Facility is agreed to be Lessee's property and shall never be considered fixtures to the real estate. Upon termination of the Lease, the Lessee shall remove the Microwave Telecommunication Antenna Facility and any underground improvements from the Leased Premises within ninety (90) days. Such removal shall be done in a workmanlike and careful manner and without interference or damage to any other equipment, structures or operations on the Leased Premises, including use of the Leased Premises by Lessor or any of Lessor's assignees or Lessees. If, however, Lessee requests permission to not remove all or a portion of the improvements, and Lessor consents to such non -removal, title and liability 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(d)(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 (3) All costs and expenses for the removal and restoration to be performed by Lessee pursuant to Section 4(d)(1), (2) herein shall be borne by Lessee, and Lessee shall hold Lessor harmless from any portion thereof. e. The Lessee shall, at its cost and expense, be required to execute and file with the Lessor a bond in an amount of $25,000 to assure the faithful performance of the terms and conditions of this Lease. The full amount of the bond or security shall remain in full force and effect throughout the term of the Lease and/or until any necessary site restoration is completed to restore the site to a condition comparable to that, which existed prior to Lessee's improvements. 5. Waiver of Lessor's Lien. Lessor acknowledges that Lessee may or has entered into a financing arrangement including promissory notes and financial and security agreements for the financing of the Microwave Telecommunication Antenna Facility (the "Collateral") with a third -party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith Lessor (i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. 6. Construction Standards. The antenna(s), connecting cables and appurtenances of the Microwave Telecommunication Antenna Facility shall be installed on the Leased Premises in a good and workmanlike manner without the attachment of any construction liens. Per the Lessor approved and signed construction drawings, Lessor may require Lessee to paint, shield and/or screen, the lessee improvements including painting the antennas and painting and/or shielding the coaxial cables in a manner consistent with the color of the Tower and require additional landscape screening. 7. Installation of Equipment. 4 a. Lessee shall have the right, at its sole cost and expense, to install, operate and maintain its Microwave Telecommunication Antenna Facility on the Leased Premises, as described on Exhibit B, in accordance with good engineering practices and with all site standards, statutes, ordinances, rules and regulations now in effect or that may be issued thereafter by the Federal Communications Commission or any other governing bodies. Lessee shall communicate and coordinate with Lessor all construction activities for the initial installation. Lessor will require that Lessor personnel be on site to observe the initial installation activities. Lessee agrees to reimburse the Lessor for the personnel expense for only the initial installation activities at a rate of $85.30 per hour. Lessee shall pay the invoiced fees within thirty (30) days of receipt of said invoice. Total charges by Lessor shall not exceed Three Thousand Two Hundred dollars ($3,200.00). b. Lessee's installation of such a Microwave Telecommunication Antenna Facility shall be done according to plans approved by Lessor, whose approval shall not be unreasonably withheld, conditioned or delayed. 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 Microwave Telecommunication Antenna Facility, Lessee shall not make any penetrations of walls or roof of the Tower without Lessor's prior written consent. C. Within thirty (30) days of the completion of the initial installation of the Microwave Telecommunication Antenna Facility, Lessee shall provide Lessor with an inspection report showing the installation is in compliance with the Construction Drawings, and Exhibit B. Lessee shall also within such thirty (30) day period, at Lessee's sole expense, deliver to Lessor a certification from an Iowa certified professional engineer that the installation is in all respects in accordance with Exhibit B. If any regulatory agency requires the Lessor to provide as -built drawings for any work undertaken by Lessee on Lessee's own equipment, then Lessee shall provide Lessor with required as -built drawings within forty-five (45) days of notification by Lessor for the need of such drawings. 8. Maintenance. a. Lessee shall, at its own expense, maintain the Leased Premises and any equipment on or attached to the Leased Premises in a safe condition, in good repair and in a manner suitable to Lessor so as not to conflict with the use of, or other leasing, of the 5 Vent Cap or Railing or other portions of the Tower by Lessor. Lessee shall not interfere with the use of the Vent Cap or Railing, the Tower, related facilities or other equipment of other lessees. b. Lessee shall have sole responsibility for the maintenance, repair, and security of its equipment, personal property, leasehold improvements, and omnidirectional antenna(s), connecting cables, and appurtenances of the Microwave Telecommunication Antenna Facility, and Lessee shall keep the same in good repair and condition during the term of the Lease, and as such Lease terms may be renewed and extended. C. Lessee shall keep the Leased Premises free of debris and anything of a dangerous, noxious or offensive nature or which would create a hazard or undue vibration, heat, noise or interference. d. In the event the Lessor or any other lessee undertakes painting, construction, repair or other alterations on the Vent Cap or Railing or the Tower, Lessee shall take reasonable measures at Lessee's cost to cover Lessee's equipment, personal property, leasehold improvements, and antenna(s), connecting cables, and appurtenances of the Microwave Telecommunication Antenna Facility and protect such from paint and debris fallout which may occur during the painting, construction or alteration process. Lessor shall notify Lessee at least ninety (90) 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 or lost revenue incurred by Lessee from such painting, construction, repair or alterations. Equipment and or Antenna(s) to be temporarily relocated from tank during time of repairs be at NO expense to the Lessor. Lessor shall take reasonable actions to provide space satisfactory to Lessee in the location in order for Lessee to operate temporary microwave facilities during the course of any maintenance that cannot be completed without Lessee's relocation. Lessor shall take all reasonable steps possible to ensure that Lessee is off the Tower for the minimum length of time possible. 9. Premises Access. C a. Lessee shall have 24-hour/7-day access to the Leased Premises by means reasonably designated by Lessor, subject to notice requirements to Lessor in Section 9(b) herein, in order to install, operate and maintain its Microwave Telecommunication Antenna Facility. b. Lessee shall have reasonable access to the Tower in order to install, operate and maintain its antenna, connecting cables, and appurtenances. Lessee shall have access to such Tower only with the prior written approval of Lessor. Lessee shall request access to the Tower twenty-four (24) hours in advance, except in an emergency. 10. Utilities. Unless the Leased Premises is immediately adjacent to public right-of-ways for ingress, egress, and utilities, Lessor hereby grants to Lessee the following described Easement Parcels appurtenant to the Leased Premises: Use: Access. Width/Length: Use: Utilities. Width/Length Lessee shall, at its expense, separately meter charges for the consumption of electricity and other utilities associated with its use of the Leased Premises and shall timely pay all costs associated therewith. 11. RF Interference. a. Non-interference by Lessee. Lessee warrants that its use of the Lease Area will not interfere with the existing radio frequency uses on the Property, as long as the existing radio frequency user(s) operate and continue to operate within their respective frequencies and in accordance with all applicable laws and regulations.. Lessee agrees to immediately cure any such RF interference caused by Lessee's equipment or, if such RF interference cannot immediately be cured, to temporarily reduce power or cease the offending operations, if so demanded by Lessor on the ground of RF interference, until a cure at full power is achieved. b. Non-interference by Lessor. Lessor covenants to use Lessor's best efforts to protect Lessee from RF interference caused or potentially caused by subsequent Users or Lessees of the Leased Premises or changes in its use. 7 12. Monetary Default by Lessee. Lessee shall be in default of this Lease if Lessee fails to make payment of rent, or any other sums, when due and such failure continues for fifteen (15) days after Lessor notifies Lessee in writing of such failure. 13. Non-monetaN Default by Lessee. If one of the parties fails to comply with any non- monetary provision of this Lease which the other party claims to be a default hereof, the non -defaulting party shall serve written notice of such default upon the defaulting party, whereupon a grace period of 30 days shall commence to run during which the defaulting party shall undertake and diligently pursue a cure of the default. Such grace period shall automatically be extended for an additional thirty (30) days, provided the defaulting party makes a good faith showing that efforts toward a cure are continuing. 14. Cure or Termination by Lessor. a. 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. b. If Lessor at any time fails to perform any of its obligations under this Lease or does not make repairs that are needed to protect the health, safety, and welfare of the Lessee, Lessor or Lessor's other Lessees, Lessee shall have the right, but not the obligation, upon giving the Lessor at least two (2) days prior written notice of its election to do so (except in the event of emergency, when no prior notice shall be required) to perform such obligations on behalf of and for the account of Lessor, and to take all necessary action to perform such obligations. Lessee's costs and expenses incurred in performing such obligations of Lessor shall promptly be reimbursed by Lessor with interest at the highest rate allowable by applicable law. N. C. Subject to Paragraph 13, In the event of default of this Lease by Lessee, or if Lessee loses its FCC license for any reason, including, but not limited to, non -renewal, expiration, or cancellation, Lessor shall have the right, at its option, in addition to and not exclusive of any other remedy Lessor may have by operation of law, without any further demand or notice, to re-enter the Leased Premises and eject all persons therefrom, and terminate this Lease. Lessor shall give Lessee thirty (30) 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 termination of this Lease, Lessee shall remove the Microwave Telecommunication Antenna Facility in accordance with Section 5(c) hereof. 15. Lessee's Conditions Precedent. This Lease and Lessee's obligations hereunder, including the obligations to pay rent, are expressly conditioned upon and subject to the following: a. Lessee must receive all necessary local, state, and federal governmental approvals and permits relating to Lessee's intended use of the Leased Premises; Lessor agrees to cooperate with Lessee in obtaining all such approvals and permits; b. Lessee's technical reports must establish to Lessee's exclusive satisfaction that the Leased Premises are capable of being suitably engineered to accomplish Lessee's intended use of the Leased Premises; and C. Lessee's title insurer must determine that Lessor owns good and clear marketable title to the land underlying the Leased Premises, and that such title is free from encumbrances and restrictions which would interfere with Lessee's intended use of the Leased Premises or would impair Lessee's ability to pledge the leasehold estate as collateral to secure debt financing. 16. Abatement of Rent Pendin 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. 0 17. Option to Terminate. Lessee shall have the unilateral right to terminate this Lease at any time by giving at least three (3) months prior written notice to Lessor of Lessee's exercise of this option. Lessee shall not be entitled to any refund of the Rent upon such termination, and Lessee shall remove the Microwave Telecommunication Antenna Facility in accordance with Section 4(c) herein. Such notice of termination shall be given to Lessor in writing by certified mail, return receipt requested, and shall be effective upon receipt of such notice. 18. Alteration, Damage or Destruction. If the Vent Cap or 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 Microwave Telecommunication Antenna Facility, Lessee may elect to either operate a temporary telecommunications site on the premises until the tower is rebuilt or terminate this Lease. In such event, Lessee shall remove the Microwave Telecommunication Antenna Facility from the Leased Premises in accordance with Section 4(c), less any alteration, damage or destruction hindering effective use of the Vent Cap or 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. 19. Condemnation. In the event the Owned Premises are taken by eminent domain, this Lease shall terminate as of the date title to the Owned Premises vests in the condemning authority. In the event a portion of the Leased Premises is taken by eminent domain, either party shall have the right to terminate this Lease as of said date of title transfer, by giving thirty (30) days written notice to the other party. In the event of any taking under the power of eminent domain, Lessee shall not be entitled to any portion of the reward paid for the taking and the Lessor shall receive full amount of such award. Lessee shall hereby expressly waive any right or claim to any portion thereof although all damages, whether awarded as compensation for diminution in value of the leasehold or to the fee of the Leased Premises, shall belong to Lessor. Lessee shall have the right to claim and recover from the condemning authority, but not from Lessor, such compensation as may be separately awarded or recoverable by Lessee on account of any and all damage to Lessee's business and any costs or expenses incurred by Lessee in moving/removing its, personal property, antenna, connecting cables, appurtenances, and other leasehold 10 improvements. 20. 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, it's officers and employees, harmless and indemnify them, and, at Lessor's option, defend them from and against all liability, damages, losses, costs, causes of action, charges and expenses, including reasonable attorney fees, which they may sustain, incur or be liable for arising out of or related to Lessee's use or occupancy of the Leased Premises and its facilities. b. Lessor's Indemnification. Unless resulting from negligent actions or omissions of, or willful misconduct of, Lessee, its employees, agents or contractors, Lessor agrees to hold Lessee, it's officers and employees, 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. 21. Insurance. Lessee shall provide such insurance as is required by the Insurance Schedule attached hereto (Exhibit C). The limits of liability required to be maintained hereunder may be increased or decreased by mutual consent of the parties, which consent shall not be unreasonably withheld by either party in the event of any factors or occurrences including substantial increases in the level of jury verdicts or judgments or the passage of state or federal or other governmental regulations which would materially increase or decrease either parties' exposure to risk. 22. Environmental Warrantv. Lessee agrees that it will not use, generate, store or dispose of any Hazardous Material on, under, about or within the Owned Premises in violation of any law or regulation. Lessor represents, warrants and agrees (1) that neither Lessor nor, to Lessor's knowledge, any third party has used, generated, stored or disposed of, or permitted the use, generation, 11 storage or disposal of, any Hazardous Material on, under, about or within the Owned Premises in violation of any law or regulation, and (2) that Lessor will not, and will not permit any third party to use, generate, store or dispose of any Hazardous Material on, under, about or within the Owned Premises in violation of any law or regulation. Lessor and Lessee each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any representation, warranty or agreement contained in this paragraph. As used in this paragraph, "Hazardous Material" shall mean petroleum or any petroleum product, asbestos, any substance known by the State in which the Owned Premises is located to cause cancer and/or reproductive toxicity, and/or any substance, chemical or waste that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. This paragraph shall survive the termination of this Lease. 23. 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 one hundred and twenty-five percent (125%) times the rents herein specified (prorated on a monthly basis) and shall otherwise be on the conditions herein specified, so far as applicable. 24. Subordination. Lessee agrees to subordinate this Lease to any mortgage or trust deed which may hereafter be placed on the Leased Premises, provided such mortgagee or trustee thereunder shall ensure to Lessee the right to possession of the Leased Premises and other rights granted to Lessee herein so long as Lessee is not in default beyond any applicable grace or cure period, such assurance to be in form reasonably satisfactory to Lessee. If requested by Lessee, Lessor agrees to use Lessor's best efforts to assist Lessee in obtaining from any holder of a security interest in the land underlying the Leased Premises a non -disturbance agreement in form reasonably satisfactory to Lessee. 25. Acceptance of Premises. By taking possession of the Leased Premises, Lessee accepts the Leased Premises in 12 the condition existing as of the Commencement Date. Lessor makes no representation or warranty with respect to the condition of the Leased Premises and Lessor shall not be liable for any latent or patent defect in the Leased Premises. 26. 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. 27. Notices. All notices and correspondence shall be sent to the following: Lessor: City Manager Lessee: Comelec Internet Services, LLC City of Dubuque 4900 Pennsylvania Avenue 50 W. 13th Street Dubuque, IA 52002 Dubuque, IA 52001-4845 28. 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, said consent not be unreasonably withheld, conditioned or delayed; 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 13 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. 29. Binding Effect. All of the covenants, conditions, and provisions of this Lease shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 30. Entire Agreement. This Lease constitutes the entire Agreement between the parties and supersedes any prior understandings or oral or written agreements between the parties respecting the within subject matter. 31. Modifications. This Lease may not be modified, except in writing signed by the party against whom such modification is sought to be enforced. 32. 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. 33. Property Taxes. a. Lessee shall pay any taxes assessed on, or any portion of such taxes attributable to, the Microwave Telecommunication Antenna Facility. Lessor shall pay when due, or claim an appropriate exemption from, all real property taxes and all other fees and assessments attributable to the land underlying the Leased Premises. However, Lessee shall pay, as Additional Rent, any real property taxes or increase in real property taxes 14 levied against the Leased Premises which is directly attributable to Lessee's use of the Leased Premises or any Lessee improvements thereof, 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 submitted in writing to Lessee. All requests must be accompanied by a copy of Lessor's paid,tax receipt. 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. 34 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. 35. 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. 15 e. In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Lease, such party shall not unreasonably delay or otherwise withhold its approval or consent. f. All Riders and Exhibits annexed hereto form material parts of this Lease. g. This Lease may be executed in duplicate counterparts, each of which shall be deemed an original. END OF AGREEMENT (Signature Page Follows Next) 16 Signature Page IN WITNESS WHEREOF, the parties hereto bind themselves to this Ground Lease as of the day and year first above written. Lessor: The City of Dubuque, Iowa By: r/ Roy Buol Mayor Lessee: LESSEE: Comelec Internet Services, LLC Printed: Title: Date: AO -..�?— o9, I 17 ATTEST: By �Z� /7 64k64 Adrienne Breitfelder City Clerk EXHIBIT A LEGAL DESCRIPTION Lots 23 & 24 of the Finley Home Addition in Dubuque, Iowa. 18 EXHIBIT B SITE PLAN 19 City of Dubuque Insurance Requirements for Lessees of City Property and Right of Way Licensees or Permittees INSURANCE SCHEDULE A Lessee shall furnish a signed certificate of insurance to the City of Dubuque, Iowa for the coverage required in Exhibit I prior to the lease, license, or permit commencement. All lessees of City property and right of way licensees or permittees shall submit an updated certificate annually. Each certificate shall be prepared on the most current ACORD form approved by the Iowa Insurance Division or an equivalent. Each certificate shall include a statement under Description of Operations as to why the certificate was issued. Lease Agreement dated 2. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa and all insurers shall have a rating of A or better in the current A.M. Best's Rating Guide. 3. Each certificate shall be furnished to the Finance Department of the City of Dubuque. 4. The lessee, licensee, or permittee shall be required to carry the minimum coverage/limits, or greater if required by law or other legal agreement, in Exhibit I. Failure to provide the required minimum coverage shall not be deemed a waiver of such requirements by the City of Dubuque. 5. Failure to obtain or maintain the required insurance shall be considered a material breach of the lease, license, or permit. 6. All required endorsements shall be attached to certificate. 7. Whenever a specific ISO form is referenced the current edition of the form must be used unless an equivalent form is approved by the Director of Finance and Budget. The lessee, licensee, or permittee must identify and list in writing all deviations and exclusions from the ISO form. 8. If lessee's, licensee's, or permittee's limits of liability are higher than the required minimum limits then the lessee's, licensee's, or permittee's limits shall be this agreement's required limits. 9. Lessee, licensee, or permittee shall require all subcontractors and sub -subcontractors to obtain and maintain during the performance of work insurance for the coverages described in this Insurance Schedule and shall obtain certificates of insurance from all such subcontractors and sub -subcontractors. Lessee, licensee, or permittee agrees that it shall be liable for the failure of a subcontractor and sub -subcontractor to obtain and maintain such coverage. The City may request a copy of such certificates from the lessee, licensee, or permittee. 10. Lessee, license & permittees shall be responsible for deductibles and self -insured retention and for payment of all policy premiums and other costs associated with the insurance policies required below. 11. All certificates of insurance must include agents name, phone number and email address. 12. The City of Dubuque reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by this Schedule at any time. 13. The City of Dubuque reserves the right to modify these requirements, including limits, based on changes in the risk or other special circumstances during the term of the agreement, subject to mutual agreement of the parties. Page 1 of 4 Schedule A Lessees of City Property; Right of Way Licensees or Permittees April 2021 City of Dubuque Insurance Requirements for Lessees of City Property and Right of Way Licensees or Permittees INSURANCE SCHEDULE A (Continued) EXHIBIT I A) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products -Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence $1,000,000 Fire Damage Limit (any one occurrence) $50,000 Medical Payments $5,000 1) Coverage shall be written on an occurrence, not claims made, form. The general liability coverage shall be written in accord with ISO form CG 00 01 or business owners form BP 00 02. All deviations from the standard ISO commercial general liability form CG 0001, or Business owners form BP 00 02, shall be clearly identified. 2) Include ISO endorsement form CG 25 04 "Designated Location(s) General Aggregate Limit." 3) Include endorsement indicating that coverage is primary and non-contributory. 4) Include Preservation of Governmental Immunities Endorsement (Sample attached). 5) Include additional insured endorsement for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers. Use ISO form CG 20 10 (Ongoing operations) or its equivalent. 6) Policy shall include Waiver of Right to Recover from Others Endorsement. B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY Statutory Benefits covering all employees injured on the job by accident or disease as prescribed by Iowa Code Chapter 85. Coverage A Statutory�­State of Iowa Coverage B Employers Liability Each Accident $100,000 Each Employee -Disease $100,000 Policy Limit -Disease $500,000 Policy shall include Waiver of Right to Recover from Others endorsement. Coverage B limits shall be greater if required by the umbrella/excess insurer �P If, by Iowa Code Section 85.1A, the lessee, licensee, or permittee is not required to purchase Workers' Compensation Insurance, the lessee, licensee, or permittee shall have a copy of the State's Nonelection of Workers' Compensation or Employers' Liability Coverage form on file with the Iowa Workers' Compensation Insurance Commissioner, as required by Iowa Code Section 87.22. Completed form must be attached. Page 2 of 4 Schedule A Lessees of City Property; Right of Way Licensees or Permittees April 2021 City of Dubuque Insurance Requirements for Lessees of City Property and Right of Way Licensees or Permittees INSURANCE SCHEDULE A (Continued) C) POLLUTION LIABILITY Coverage required: —Yes —*—No Pollution liability coverage shall be required if the lessee, contracting party, or permittee has any pollution exposure for abatement of hazardous or contaminated materials including, but not limited to, petroleum products, the removal of lead, asbestos, or PCBs. Pollution product and completed operations coverage shall also be covered. Each occurrence $2,000,000 Policy Aggregate $4,000,000 1) Policy to include job site and transportation coverage. 2) Include additional insured for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers. Use ISO form CG 2010. (Ongoing operations) or its equivalent and CG2037(completed operations) or its equivalent. 3) Include Preservation of Governmental Immunities Endorsement. 4) Provide evidence of coverage for 5 years after completion of project. D) PROPERTY INSURANCE REQUIRED BY LEASE, LICENSE, OR PERMIT * Yes No Evidence of property coverage provided: _ Yes Include the City of Dubuque as Lender Loss Payable. E) RIGHT-OF-WAY WORK ONLY: UMBRELLAIEXCESS $1,000,000 * Yes No The General Liability, Automobile Liability and Workers Compensation insurance requirements may be satisfied with a combination of primary and Umbrella or Excess Liability Insurance. If the Umbrella or Excess Insurance policy does not follow the form of the primary policies, it shall include the same endorsements as required of the primary policies including Waiver of Subrogation AND Primary and Non-contributory in favor of the City. F) FLOOD INSURANCE Yes * No If Required Coverage $ Page 3 of 4 Schedule A Lessees of City Property; Right of Way Licensees or Permittees April 2021 City of Dubuque Insurance Requirements for Lessees of City Property and Right of Way Licensees or Permittees Please be aware that naming the City of Dubuque as an additional insured as is required by this Insurance Schedule may result in the waiver of the City's governmental immunities provided in Iowa Code sec. 670.4. If you would like to preserve those immunities, please use this endorsement or an equivalent form. PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmental Immunity. The insurer expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coverage. The insurer further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurer. 4. Non -Denial of Coverage. The insurer shall not deny coverage under this policy and the insurer shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Chani a in PDliGV. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN (DEPARTMENT MANAGER: FILL IN ALL BLANKS AND CHECK BOXES) Page 4 of 4 Schedule A Lessees of City Property; Right of Way Licensees or Permittees April 2021 Exhibit E Memorandum of Lease Prepared by and upon recording please return to: Barry A. Lindahl, 300 Main Street, Suite 330, Dubuque, Iowa 52001 MEMORANDUM OF WATER TOWER & GROUND SPACE LEASE This Memorandum of WATER TOWER & GROUND SPACE LEASE is made this day of 2021 between by and between THE CITY OF DUBUQUE, IOWA, 50 W. 13th Street, Dubuque, IA 52001-4845, hereinafter referred to as "Lessor", and Comelec Internet Services, LLC, 4190 Pennsylvania Avenue, Dubuque, Iowa 52002 hereinafter referred to as "Lessee". 1. LESSOR and LESSEE entered into a Water Tower & Ground Space Lease (the "Agreement") on , 2021 for an initial term of fifteen (15) years, commencing on the Commencement Date and ending on the fifteenth Anniversary of the Commencement Date. 2. Lessor owns the property as further described on Exhibit A attached hereto ("Owned Premises"). Lessor leases to Lessee and Lessee leases from Lessor a portion of the Owned Premises, consisting of (i) space on the Tower, Lessee intends to locate its antenna on the Tower as more fully described on the attached Exhibit B. 3. The Commencement Date of the Agreement, of which this is a Memorandum, is set forth in the Agreement. 4. The terms, covenants and provisions of the Agreement, the terms of which are hereby incorporated by reference into this Memorandum, shall extend to and be binding upon the respective executors, administrators, heirs, successors and assigns of LESSOR and LESSEE. IN WITNESS WHEREOF, the parties hereto bind themselves to this Ground Lease as of the day and year first above written. I CITY OF DUBUQUE, IOWA Barry A. Lindahl, Esq., Senior Counsel STATE OF IOWA : SS: DUBUQUE COUNTY On this day of , 20_, before me, a Notary Public in and for the State of Iowa, in and for said county, personally appeared Barry A. Lindahl, to me personally known, who being by me duly sworn did say that he is Senior Counsel of the City of Dubuque, a Municipal Corporation, created and existing under the laws of the State of Iowa and that said instrument was signed on behalf of said Municipal corporation by authority and resolution of its City Council and said Senior Counsel acknowledged said instrument to be the free act and deed of said Municipal Corporation by it voluntarily executed. Notary Public, State of Iowa 3 EXHIBIT A LEGAL DESCRIPTION Lots 23 & 24 of the Finley Home Addition in Dubuque, Iowa, Dubuque County, Iowa. EXHIBIT B SITE PLAN r Year Payment Date Payment 3% annual Inflator 1 12/1/2021 4,375.00 - 2 11/30/2022 4,506.25 131.25 3 11/30/2023 4,641.44 135.19 4 11/30/2024 4,780.68 139.24 5 11/30/2025 4,924.10 143.42 6 11/30/2026 5,071.82 147.72 7 11/30/2027 5,223.98 152.15 8 11/30/2028 5,380.70 156.72 9 11/30/2029 5,542.12 161.42 10 11/30/2030 5,708.38 166.26 11 11/30/2031 5,879.63 171.25 12 11/30/2032 6,056.02 176.39 13 11/30/2033 6,237.70 181.68 14 11/30/2034 6,424.83 187.13 15 11/30/2035 6,617.58 192.75 16 11/30/2036 6,816.11 198.53 17 11/30/2037 7,020.59 204.48 18 11/30/2038 7,231.21 210.62 19 11/30/2039 7,448.14 216.94 20 11/30/2040 7,671.59 223.44 117,557.89 STATE OF IOWA SS: DUBUQUE COUNTY CERTIFICATE OF PUBLICATION I, Kathy Goetzinger, a Billing Clerk for Woodward Communications, Inc., an Iowa corporation, publisher of the Telegraph Herald, a newspaper of general circulation published in the City of Dubuque, County of Dubuque and State of Iowa; hereby certify that the attached notice was published in said newspaper on the following dates: 11/05/2021 and for which the charge is 60.88 Subscribed to before me, a Notary c in and for Dubuque County, Iowa, this 5th day of November, 2021 Notary b c in and for Dubuqul County, Iowa. JANET K. PAPE ` Commission Number 199559 My Comm. Exp. DEC 11, 2022 Ad text : CITY OF DUBUQUE, IOWA OFFICIAL NOTICE PUBLIC NOTICE is hereby given that the Dubuque City Council will conduct a public hearing on the 15th day of November, 2021, at 6:30 p.m., in the Historic Federal Building, 350 W. 6th Street, 2nd floor, Dubuque, Iowa, at which meeting the City Council proposes to dispose of the Citys interest in real property pursuant to the Lease Supplement between the City and Comelec Internet Services, LLC. A copy of the Lease Supplement is on file at the Office of City Clerk, and may be viewed Monday through Friday between 8:00 a.m. and 5:00 p.m. At the meeting, the City Council will receive oral and written comments from any resident or property owner of said City to the above action. The official agenda will be posted the Friday before the meeting and will contain public input options. The City Council agenda can be accessed at https://cityofdubuque.novusagenda.com/AgendaPublic/ or by contacting the City Clerks Office at 563-589-4100, ctyclerk@cityofdubuque.org. Written comments regarding the above public hearings may be submitted to the City Clerk's Office via email at ctyclerk@cityofdubuque.org or by mail to City Clerk's Office, City Hall, 50 W. 13th St., Dubuque, IA 52001, before said time of public hearing. At said time and place of public hearings the City Council will receive any written comments. Individuals with limited English proficiency, vision, hearing, or speech impairments requiring special assistance should contact the City Clerk's Office at (563) 589-4100, TDD (563) 690-6678, ctyclerk@cityofdubuque.org as soon as feasible. Deaf or hard -of -hearing individuals can use Relay Iowa by dialing 711 or (800) 735-2942. Published by order of the City Council given on the 1st day of November, 2021. Adrienne N. Breitfelder, City Clerk RESOLUTION NO. 383-21 INTENT TO DISPOSE OF AN INTEREST IN REAL PROPERTY OWNED BY THE CITY OF DUBUQUE BY LEASE SUPPLEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND COMELEC INTERNET SERVICES, LLC Whereas, the City of Dubuque, Iowa (City) is the owner of the real property described as follows: Property at 1575 West Third Street, Dubuque, IA, legally described as Lots 23 & 24 of the Finley Home Addition in Dubuque, Iowa, Dubuque County, Iowa (the Property) ; and Whereas, City and Comelec Internet Services, LLC entered into a Master Lease Agreement dated April 1, 2019 (the Agreement), which granted Comelec the right to lease certain City property for the purposes and subject to the conditions set forth in the Agreement; and Whereas, Comelec desires to lease certain space on the Water Tower on the Property as shown on Exhibit B; and Whereas, City and Comelec have tentatively agreed to the Lease Supplement, attached hereto; and Whereas, the City Council believes it is in the best interest of the City of Dubuque to approve the Lease Supplement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The City of Dubuque intends to dispose of its interest in the Property by Lease Supplement between City and Comelec. Section 2. The City Clerk is hereby authorized and directed to cause this Resolution and a notice to be published as prescribed by Iowa Code 364.7 of a public hearing on the Citys intent to dispose of its interest in the Property by Lease Supplement, to be held on the 15th day of November, at 6:30 oclock p.m. at the Historic Federal Building, Council Chambers, 350 W. 6th Street, Dubuque, Iowa. Passed, approved and adopted this 1st day of November 2021. /&/Roy D. Buol, Mayor Attest: /s/Adrienne N. Breitfelder, City Clerk It 11/5