Telecommunication Antenna Facility on West Third Street Water Tower
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RESOLUTION NO. 52 -99
A RESOLUTION OF THE CITY OF DUBUQUE APPROVING OF A LEASE
BETWEEN THE CITY OF DUBUQUE, IOWA, AND DUBUQUE CELLULAR
TELEPHONE, L.P. FOR THE INSTALLATION AND OPERATION OF A
WIRELESS TELECOMMUNICATION ANTENNA FACILITY.
WHEREAS, the City Council of the City of Dubuque, Iowa encourages the
expansion of wireless 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
WHEREAS, Dubuque Cellular Telephone, L.P. (d/b/a United States Cellular
Wireless Communications) is the holder of a current Federal Communications
Commission license to provide certain telecommunication services for sale in and
around the City of Dubuque, and
WHEREAS, Dubuque Cellular Telephone desires to upgrade and enhance the
qual ity of its services and the capacity of its technical infrastructure by
installing and operating a wireless telecommunication antenna facility on or near
a water tower owned by the City of Dubuque, identified as site W-2, and located
at 1575 West Third Street in Dubuque, and
WHEREAS, the City of Dubuque desires to lease to Dubuque Cellular Telephone
certain space on the water tower site W-2 catwalk, along with adjacent ground
space, for the purpose of installation and operation of a wireless
telecommunication facility, and
WHEREAS, representatives of Dubuque Cellular Telephone 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,
Iowa.
Passed, approved and adopted this
Duggan
Mayor
Attest: /J ~ ~
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Mary . Davis ~
City erk
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03/\\3838
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CITY OF DUBUQUE, IOWA
MEMORANDUM
January 28, 1999
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Proposed Lease of Space for Telecommunications Antenna Facility on West
Third Street Water Tower
Cable Franchise Administrator Merrill Crawford is recommending approval of a lease of space
on the West Third Street Water Tower, and adjacent groundspace, to Dubuque Cellular
Telephone, L.P., to support a wireless telecommunication antenna facility.
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Dubuque Cellular Telephone would be permitted to attach up to twelve panel-type antennas
on the circumference catwalk around the water tank, and extend transmission cable down a
support leg of the tower to the ground. They would also construct and maintain a twelve
foot by twenty foot building on the ground to house transmission equipment. They would
pay all utility costs associated with the operation.
Term of the lease would be twenty years, with two optional five year extensions.
Payments by Dubuque Cellular Telephone to the City would include an initial nonrefundable
payment of $10,000, then an annual rent beginning at $12,000 and escalated annually by
the greater of three percent or the percentage increase of the CPI.
Antennas would be painted to match the water tower, and any future changes would be
subject to City approval. Water Department Manager Bob Green has examined the provisions
which protect the water tower and his operations and recommends approval of the proposed
lease.
I concur with the recommendation and respectfully request Mayor and City Council approval.
Inu h./ kn ;J1~
Michael C. Van Milligen
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MCVM/j
Attachment
cc: Barry Lindahl, Corporation Counsel
Tim Moerman, Assistant City Manager
Merrill Crawford, Cable Franchise Administrator
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03/\\3838
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CITY OF DUBUQUE, IOWA
MEMORANDUM
January 25, 1999
MEMO TO: Michael C. Van Milligen, City Manager
FROM: Merrill Crawford, Cable Franchise Administrator ~
SUBJECT: Proposed Lease of Space for Telecommunication Antenna Facility
On West Third Street Water Tower
INTRODUCTION: The purpose of this memorandum is to recommend approval of a
proposed lease of space on the West 3rd St. Water tower, and adjacent ground space,
to Dubuque Cellular Telephone, L.P. to support a wireless telecommunication antenna
facility.
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BACKGROUND: Recent changes in technology and telecommunication law have
rapidly accelerated the development of new wireless telecommunication services which
are in heavy demand by business, industry, government, education, and individual
consumers. Many of these services require networks of transmitting and receiving
antennas communicating from specific locations at varying heights above the ground,
mounted on towers, rooftops, tall structures or natural high ground. These antenna
arrays are usually accompanied by small buildings or other enclosures housing
electronic equipment and served by power and other utilities.
Dubuque Cellular Telephone, L.P. (d.b.a. United States Cellular Wireless
Communications) and Alltel are the two established cellular telephone service
providers holding FCC licenses to serve the Dubuque area. To increase signal quality
and capacity to carry telecommunications traffic, and to meet anticipated competition
from a variety of new service providers, both companies are upgrading technology and
installing additional wireless transmission facilities in and near Dubuque.
The City of Dubuque is also preparing for the coming of new wireless telecommuni-
cations service providers and both the positive and negative elements of tower and
antenna site needs within the City limits.
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On January 4, 1999, the City Council enacted Ordinance No. 3-99 adding Section 4-9
to the Zoning Ordinance to establish regulations for the placement of towers and
antennas within the City. The new ordinance encourages location of antennas on
existing towers and structures, accommodates towers in industrial zones, and promotes
antenna siting solutions which do not result in new towers in residential and other more
sensitive zones.
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Along with reasonable land-use regulation, the City has implemented non-regulatory
strategies to encourage new wireless telecommunication services and service
providers while minimizing the negative impact of new towers and mono-poles. For
example, with the assistance of various City staff and with outside advice, I have also
surveyed existing City-owned properties and structures and have cataloged those
which may be suitable for mounting of wireless telecommunication antenna facilities
through lease agreements. Such sites may include water towers, communication
towers, light poles, City building rooftops, and land parcels.
In late October, 1998, representatives of Land Acquisition, Inc. contacted the City on
behalf of their client, Dubuque Cellular Telephone, L.P. (U.S. Cellular), looking for a
site to install antennas and support equipment for digital cellular telephone service. It
was determined that the City's water tower at 1575 W. 3rd Street (Site W-2) would be
an ideal location for this purpose. Over a period of months, Water Department
Manager Bob Green, Assistant City Attorney Tim O'Brien and I negotiated with
representatives of LAI and U.S. Cellular, and have reached terms for a proposed lease
agreement that we believe will be mutually-beneficial. That proposal lease agreement,
and an associated resolution are attached.
Highlights of the Proposed Lease
Dubuque Cellular Telephone would be permitted to attach up to 12 panel-type
antennas (each panel approximately 6 ft. tall by no more than 12 inches wide) on the
circumference catwalk around the water tank, and extend transmission cables down a
support leg of the tower to the ground. They would also construct and maintain a 12 ft.
by 20 ft. building on the ground to house transmission equipment. They would pay all
utility costs associated with the operation.
Term of the lease would be 20 years, with two optional 5-year extensions.
Payments by Dubuque Cellular Telephone to the City would include an initial
nonrefundable payment of $10,000, then an annual rent beginning at $12,000 and
escalated annually by the greater of 3 percent or the percentage increase of the CPl.
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.
Also, any cellular telephone services the City chose to purchase from United States
Cellular would be at the most favorable rate given any of the company's customers.
Antennas would be painted to match the water tower, and any future changes would be
subject to City approval. Water Division Manager Bob Green has examined the
provisions which protect the water tower and his operations and recommends approval
of the proposed lease.
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CONCLUSION: The proposed lease contributes to the enhancement of wireless
telecommunication service to Dubuque commercial, institutional, and residential
customers, avoids the need to locate and erect a separate communication tower or
monopole to support the antennas, and generates a reasonable flow of revenue to
offset related costs to the City. It also demonstrates the wiUingness of the City to work
with telecommunications service providers to meet their needs and those of potential
customers without sacrificing important safety and esthetic values which contribute to
the quality of life in Dubuque.
RECOMMENDED ACTION: The Recommended Action is that the City Council adopt
the proposed resolution and authorize the City Manager to execute and administer the
lease.
A TO FINLEY HOSPITAL
BUILDING
\ RADIO
TOWER
CITY RADIO
BUILDING
LOT 25
4-50'—►
20'
10'
DUBUQUE
CUL
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COUN)y
BUILDI1p
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TANK VENT
EXISTING 0 Atc–l'-
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Li'
WATER TOWER
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LOT 24
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LOT 23
EXHIBIT A
City water tower site W-2 on Lots 23 and 24 of
the Finley Home Addition
(not drawn to scale)
33N33 )INTI NNH3
ALLEY
LOT 22 LOT 21
50' 4 50' —♦ f 50' — ► 4— 50' —►
WEST THIRD STREET
133211S 39311O3
120'
City of Dubuque
January 25, 1999
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WATER TANK & GROUND SPACE LEASE
This Water Tank and GrOlUld Space Lease (the "Lease") is made and entered into
the _ day of , 1999, 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 DUBUQUE CELLULAR TELEPHONE, L.P.,
a Delaware Limited Partnership, doing business as United States Cellular Wireless
Communications, Attention: Real Estate, 8410 West Bryn Mawr Avenue, Suite 700,
Chicago, Illinois 60631, 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 1575 West Third Street, Dubuque, IA 52001.
B. Lessee desires to lease space on the catwalk of the Tower (the "Catwalk") and
ground space below, or adjacent to, the Tower (the "Ground Space") for the installation and
operation of a cellular radio-telephone communications antennae facility, which shall include
directional antennae, an equipment building, connecting cables and appurtenances
(collectively, "Wireless Telecommunication Antennae Facility") for use in connection with
its communication business.
C. Accordingly, the parties are entering into this Lease on the terms and
conditions set forth below.
Agreement
In consideration of their mutual covenants, the parties agree as follows:
1. Leased Premises. Lessor leases to Lessee and Lessee leases from Lessor a
portion of the Owned Premises, consisting of (i) space on the Catwalk, (ii) sufficient
Ground Space below, or adjacent to, the Tower to place its equipment building, and
(iii) easements for ingress/egress and utilities as shown on the Site Plan/Legal
Description attached as Exhibit B (collectively, the "Premises"). Lessee intends to
locate its antennae on the Catwalk as more fully described on the att::lr.hpn Exhibit C.
Lessee may not add additional eqnipment and/~ d' h.., _ ...1- . . )n Exhibit
.c. without the prior written approval of the Lt h: /J~~ V
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Lessor reserves the right to require Lessee to relocate its antennae and
equipment to other locations on the Catwalk. 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 18
herein.
This Lease is not a franchise pursuant to state, local, or federal law, nor is it
a permit to use the rights-of-way. Any such franchise or permit must be obtained
separately.
2. Term. The initial term of this Lease shall commence on _ 1, 1999 (the
"Commencement Date") and end on ,2019. 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.
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3.
Rrnt.
a. Upon fulfillment of the Conditions Precedent listed in Section 15
herein and receipt of the Building Permit to construct the Wireless
Telecommunication Antennae Facility, Lessee shall pay to Lessor the
nonrefundable sum of ten thousand dollars ($10,000). In addition thereto,
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 16 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.
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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
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three percent (3%) of the previous year's Base Rent or the percentage increase
in the CPI over the CPI for the 12 months prior to the adjustment date. "CPI"
means the Conswner Price Index for All Urban Conswners, U.S. City
Average, All Items, issued by the Bureau of Labor Statistics for the United
States Department of Labor (1982-84 = 100). If the CPI is converted to a
different standard reference base or otherwise revised, the adjustment set forth
in this paragraph shall be made with the use of the conversion formula
published by the Bureau of Labor Statistics.
d. If this Lease is terminated at a time other than on the last day of the
month, Rent shall be prorated as of the date of termination.
e. To the extent that Lessor desires to purchase cellular telephone service
from Lessee, Lessee shall offer this service to Lessor at the most favorable
rate and terms that Lessee then offers to any other person.
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
twelve (12) panel-type directional antennae. Lessor may permit others to use
other portions of the Catwalk or Owned Premises.
b. Lessee shall, at its expense, comply with all present and future federal,
state, and local laws, ordinances, 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 Lessor's reasonable attorney and
administrative fees, if any), any federal licenses and permits required for, or
substantially required by, Lessee's use of the Premises.
c.
(1) The Wireless Telecommunication Antennae Facility is agreed
to be Lessee's personal property and shall never be considered fixtures
to the real estate. Upon termination of the Lease, the Lessee shall
remove the Wireless Telecommunication Antennae Facility and any
underground improvements from the Premises within ninety (90) days.
Such removal shall be done in a workmanlike and careful manner and
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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.
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5. Construction Standards. The directional antennae, equipment building,
connecting cables and appurtenances of the Wireless Telecommunication Antennae
Facility shall be installed on the Premises in a good and workmanlike manner without
the attachment of any construction liens. Lessor reserves the right to require Lessee
to paint the antennae in a manner consistent with the color of the Tower.
6. Installation of Equipment.
a. Lessee shall have the right, at its sole cost and expense, to install,
operate and maintain its Wireless Telecommwrication Antennae Facility on the
Premises, as described on Exhibit C, in accordance with good engineering
practices and with all site standards, statutes, ordinances, rules and regulations
now in effect or that may be issued thereafter by the Federal Communications
Commission or any other governing bodies.
b. Lessee's installation of such a Wireless Telecommunication Antennae
Facility shall be done according to plans approved by Lessor, whose approval
shall not be unreasonably withheld. Any damage done to the Tower, the
Catwalk and/or other structures during installation and/or operations shall be
repaired or replaced immediately at Lessee's expense and to Lessor's
reasonable satisfaction. In connection with the installation and operation of
the Wireless Telecommwrication Antennae Facility, Lessee shall not make any
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penetrations of walls or roof of the Tower without Lessor's prior written
consent.
c. Within thirty (30) days of the completion of the initial installation of
the Wireless Telecommunication Antennae Facility, Lessee shall provide
Lessor with as-built drawings of the Wireless Telecommunication Antennae
Facility and the improvements installed on the Premises, which show the
actual location of all equipment and improvements consistent with Exhibit C.
Said drawings shall be accompanied by a complete inventory of the building
and all equipment and antennae located on the Tower and Catwalk.
7. Eq.uipment 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
nwnber or size than the existing antennae and that any change in antennae locations
on the Catwalk is approved in writing by the Lessor. Lessee shall submit to Lessor a
proposal for any such replacement antennae and any supplemental materials for
Lessor's evaluation.
8.
Maintenance.
a. Lessee shall, at its own expense, maintain the Premises and any
equipment on or attached to the Premises in a safe condition, in good repair
and in a manner suitable to Lessor so as not to conflict with the use of, or other
leasing, of the Catwalk or other portions of the Tower by Lessor. Lessee shall
not interfere with the use of the Catwalk, the Tower, related facilities or other
equipment of other lessees.
b. Lessee shall have sole responsibility for the maintenance, repair, and
security of its equipment, personal property, leasehold improvements, and
directional antennae, equipment building, connecting cables, and
appurtenances of the Wireless Telecommunication Antennae Facility, and
Lessee shall keep the same in good repair and condition during the term of the
Lease, and as such Lease terms may be renewed and extended.
c. Lessee shall keep the Premises free of debris and anything of a
dangerous, noxious or offensive nature or which would create a hazard or
undue vibration, heat, noise or interference.
d. In the event the Lessor or any other lessee undertakes painting,
construction, repair or other alterations on the Catwalk or the Tower, Lessee
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shall take reasonable measures at Lessee's cost to cover Lessee's equipment,
personal property, leasehold improvements, and directional antennae,
equipment building, connecting cables, and appurtenances of the Wireless
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 Catwalk 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.
9.
Premises Access.
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a. Lessee shall have 24- hour/7 -day access to the Premises by means
reasonably designated by Lessor, subject to notice requirements to Lessor in
Section 9(b) herein, in order to install, operate and maintain its Wireless
Telecommunication Antennae Facility.
b. Lessee shall have reasonable access to the Catwalk in order to install,
operate and maintain its antennae, connecting cables, and appurtenances.
Lessee shall have access to such Catwalk only with the prior written approval
of Lessor. Lessee shall request access to the Catwalk twenty-four (24) hours
in advance, except in an emergency. Lessee shall have unrestricted access to
its equipment building without the requirement of supplying Lessor with prior
written notice.
c. Upon twenty-four (24) hours prior written notice to Lessee, and with
an escort provided by Lessee, Lessor shall be allowed and granted access to
Lessee's equipment building at reasonable times to examine and inspect the
same for safety reasons or to ensure that the Lessee's covenants are being met.
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d. Lessor shall keep the street access to the Premises reasonably clear of
snow and ice as soon as is practicable after each snowfall.
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10. Utilities. Unless the Premises is immediately adjacent to public rights-of-way
for ingress, egress, and utilities, Lessor hereby grants to Lessee the following
described Easement Parcels appurtenant to the Premises:
Use: Access. Width: 20'; Approximate length: as needed per survey
between Premises and the public road known as West Third Street over
traveled ways.
Use: Utilities. Width: 10'; Approximate length: As needed per survey
between the Premises and suitable utility company service connection points.
Lessor agrees to make such direct grants of easement as the utility companies
may reqwre.
Lessee shall, at its expense, separately meter charges for the consumption of
electricity and other utilities associated with its use of the Premises and shall timely
pay all costs associated therewith.
11.
RF Interference
a. Non-interference by Lessee. The Wireless Telecommunication
Antennae Facility shall be installed and operated in a manner which does not
cause radio-frequency interference ("RF interference") to the operations of any
Protected User. "Protected User" shall mean any existing user or lessee of the
Premises listed on Exhibit D attached hereto, which Lessor hereby warrants
to Lessee is an accurate listing of the frequencies, orientation, placement,
height, location, and description of all existing antennae, transmitters,
receivers, or other radio or electronic transmitting or receiving equipment
located on the Premises. Lessee agrees to immediately cure any such RF
interference caused to a Protected User by Lessee's equipment or, if such RF
interference cannot immediately be cured, to temporarily reduce power or
cease the offending operations, if so demanded by Lessor on the ground of RF
interference, until a cure at full power is achieved.
b. Non-interference by Lessor. Lessor covenants to use Lessor's best
efforts to protect Lessee from RF interference caused or potentially caused by
subsequent users or lessees of the Premises or changes in its use. Except for
the Protected Users, Lessor, and its successors and assigns, shall not use, allow
or permit the Premises to be used in any manner which will materially impair
the use of the Wireless Telecommunication Antennae Facility hereafter erected
or located upon the Premises by Lessee or allow any use in any way as shall
cause any destructive or conflicting interference with the radio, telephone, or
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communications signals to and from the facilities or equipment of Lessee. If
any harmful RF interference shall result from any such transmitters,
equipment, antennae, or dishes permitted on the Premises by Lessor, other
than the Protected Users, to the facilities or equipment of Lessee installed on
the Premises, then Lessor shall immediately cause such transmitter, equipment,
antennae or dish to be discontinued from operation until such interference is
eliminated. If Lessor cannot eliminate such RF interference, Lessee may
terminate this Lease in accordance with Section 18 herein.
12. Monetmy Default by Lessee. Lessee shall be in default of this Lease if Lessee
fails to make payment of rent, or any other sums, when due and such failure continues
for ten (10) days after Lessor notifies Lessee in writing of such failure.
13. Non-monetary Default by Lessee. If Lessee fails to comply with any non-
monetaIy provision of this Lease which Lessor claims to be a default hereof, Lessor
shall serve written notice of such default upon Lessee, whereupon a grace period of
30 days shall commence to run during which Lessee shall undertake and diligently
pursue a cure of the default. Such grace period shall automatically be extended for
an additional 30 days, provided Lessee makes a good faith showing that efforts
toward a cure are continuing.
14. Cure or Termination by Lessor. In the event of any default of this Lease by
Lessee, the Lessor may at any time, after giving notice, cure the default for, and at the
expense of the Lessee. If Lessor is compelled to pay, or elects to pay, any sum of
money or incurs any expense, the sums or expenses so paid by Lessor, with all
interest, costs, and damages, shall be deemed Additional Rent due from the Lessee
to Lessor on the fITst 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
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amount of fifty percent (50%) of the annual rent for the year in which such
termination occurs. Re-entIy 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.
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 necessaty local, state, and federal governmental
approvals relating to Lessee's intended use of the Premises; Lessor agrees to
cooperate with Lessee in obtaining all such approvals;
b. Lessee's technical reports must establish to Lessee's exclusive
satisfaction that the Premises are capable of being suitably engineered to
accomplish Lessee's intended use of the Premises; and
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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 fmancing.
16. 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.
17. 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 the amount of 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.
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18. Alteration. Damage or Destruction. If the Catwalk or any portion thereof is
altered, damaged or destroyed, through no fault or negligence of Lessee, so as to
materially hinder effective use of the Wireless Telecommunication Antennae Facility,
9
.
Lessee may elect to terminate this Lease, without paying Additional Rent to Lessor,
upon thirty (30) days written notice to Lessor. In such event, Lessee shall remove the
Wireless Telecommunication Antennae Facility from the Premises in accordance with
Section 4( c), less any alteration, damage or destruction hindering effective use of the
Catwalk. This Lease and Lessee's obligations hereunder shall terminate upon Lessee's
fulfillment of Section 4( c), at which time Lessee shall be entitled to reimbursement
of any prepaid rent.
.
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 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.
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 harmless, indemnify it, and, at
Lessor's option, defend it from and against all liability, damages, losses, costs,
causes of action, charges and expenses, including reasonable attorney fees,
which Lessor may sustain, incur or be liable for arising out of or related to
Lessee's use or occupancy of the Premises and its facilities, or any repairs or
alterations which Lessee may make upon said premises or elsewhere.
.
b. Lessor's Indemnification. Unless resulting from negligent actions or
omissions of, or willful misconduct of, Lessee, its employees, agents or
contractors, Lessor agrees to hold Lessee harmless and indemnify it, and, at
Lessee's option, defend it from and against all liability, damages, losses, costs,
causes of action, charges and expenses, including reasonable attorney fees,
which Lessee may sustain, incur or be liable for arising out of or related to
10
.
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.
21. Insurance: Lessee shall provide such insurance as is required by the Insurance
Schedule attached hereto.
f'
22. Environmental Warranty. Lessor hereby represents and warrants to Lessee that
Lessor has never generated, stored, handled, or disposed of any hazardous waste or
hazardous substance upon the Owned Premises, and that Lessor has no knowledge of
such uses historically having been made of the Owned Premises or such substances
historically having been introduced thereon.
Lessee hereby represents and warrants that its use of the Premises herein will
not generate or dispose of any hazardous substance on the Premises, and, with the
exception of batteries, it will not store on or transport to, or over, the Premises any
hazardous substance. Lessee further agrees to hold Lessor harmless from, and
indemnify Lessor against, any release of any such hazardous substance and any
damage, loss, expense or liability resulting from such release including all attorneys'
fees, costs and penalties incurred as a result thereof, except any release caused by the
negligence of Lessor, its employees or agents. "Hazardous substance" shall be
interpreted broadly to mean any substance or material defmed or designated as
hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or
radioactive substance, or other similar term by any federal, state or local
environmental law, regulation or rule presently in effect or promulgated in the future,
as such laws, regulations or rules may be amended from time to time; and it shall be
interpreted to include, but not be limited to, any substance which after release into the
environment will or may reasonably be anticipated to cause sickness, death or disease.
.
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
two (2) times the rents herein specified (prorated on a monthly basis) and shall
11
.
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 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.
25. 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.
"
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
City of Dubuque
50 W. 13th Street
Dubuque, L\ 52001-4845
Lessee:
United States Cellular Corporation
Attn: Real Estate
841 0 West Bryn Mawr Avenue
Suite 700
Chicago, Illinois 6063 1
cc: United States Cellular Corporation
Attn: Real Estate
5975 Rockwell Drive N .E.
Cedar Rapids, Iowa 52402
.
28. Assignment of Lease by Lessee. This Lease and the Premises hereunder are
assignable by the Lessee to the following: (i) any person or business entity which is
12
.
a parent, subsidiary or affiliate of Lessee; (ii) any person or business entity which
controls or is controlled by or under a common control with Lessee; (iii) any person
or business entity which is merged or consolidated with Lessee; or (iv) any person or
business entity which purchases a majority or controlling interest in the ownership or
assets of Lessee. Any assignment of this Lease and the Premises hereunder by the
Lessee shall not occur without the Lessor's consent, which consent shall not be
unreasonably withheld. Lessee's right to effect an outright transfer of the Premises,
and the right of any collateral assignee to seize the Premises as defaulted security, is
subject only to the limitation that the Premises shall be used for the purposes
permitted herein. Lessee shall notify Lessor in writing of the name and address of
any assignee or collateral assignee.
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. Modlfications. This Lease may not be modified, except in writing signed by
the party against whom such modification is sought to be enforced.
32. 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.
33. 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.
34.
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
13
fI'
attributable to the land underlying the Premises. However, Lessee shall pay,
as Additional Rent, any increase in real property taxes levied against the
Premises which is directly attributable to Lessee's use of the Premises, and
Lessor agrees to furnish proof of such increase to Lessee.
b. Lessor's requests to Lessee for contribution or reimbursement of
property taxes should be addressed to USCell, P.O. Box 31369, Chicago, IL
60631-0369. All requests must be accompanied by a copy of Lessor's tax bill.
Lessee shall comply with requests for contribution by issuing a check for
Lessee's proportionate share made payable to the tax collector. Lessee shall
comply with requests for reimbursement by issuing a check to Lessor,
provided that a paid tax receipt accompanies such request.
c. Lessee shall have the right, but not the obligation, to pay Lessor's real
estate taxes on the underlying land if the same become delinquent, to ensure
that Lessee's leasehold interest does not become extinguished. Lessee shall be
entitled to take a credit against rent for the portion of Lessor's taxes which it
was not Lessee's obligation to pay, as such amount shall reasonably be
substantiated.
,
35. 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.
36: 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 fOlUld to be void or invalid, such invalidity
shall not affect the remaining terms of this Lease, which shall continue in full
force and effect.
END OF AGREEMENT
(Signature Page Follows Next)
.
14
--
Signature Page
IN WITNESS WHEREOF, the parties hereto bind themselves to this Ground
Lease as of the day and year ftrst above written.
Lessor:
The City of Dubuque, Iowa
ATTEST:
By:
Michael C. Van Milligen
City Manager
By:
Mary A. Davis
City Clerk
Lessee:
.
Dubuque Cellular Telephone, L.P.
a Delaware Limited Partnership
By:
Carroll D. Blake
Director of Network Operations
Midwest Region
United States Cellular
Wireless Communications
.
15
.
.
lit
ACKNOWLEDGEMENTS
STATE OF IOWA
)
)ss:
)
COUNTY OF DUBUQUE
On this day of , 1999, 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
COWlcil 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 volWltarily executed.
Notary Public
My commission expires:
STATE OF IOWA
)
)ss:
)
COUNTY OF LINN
I, the Wldersigned, a notary public in and for the State and COWlty aforesaid, do
hereby certify that Carroll D. Blake, a Director of Network Operations for United States
Cellular Wireless Communications, known to me to be the same person whose name is
subscribed to the foregoing GroWld Lease, appeared before me this day in person and
acknowledged that, pursuant to his authority, he signed the said Lease as his free and
volWltary act on behalf of DUBUQUE CELLULAR TELEPHONE, L.P., a Deleware
Limited Partnership, for the uses and purposes therein stated.
Given Wlder my hand and seal this _ day of
, 1999.
Notary Public
My commission expires:
.
EXHIBIT A
Legal Description of the Owned Premises
.
--
17
.
EXHIBIT B
Site PlanlLegal Description of The Premises
.
--
18
.
EXHIBIT C
Equipment to be Placed on The Premises
.
.
19
~
.
EXHIBIT 0
Protected Users of The Premises
"
.
20
.
.
.
p
~ .
INSURANCESCHEDVLE
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 fimrish copies of the following policies to the City, with limits not less than
the following, or greater if required by law, and shall also furnish certificates of insurance
from a all independent contractors or subcontractors hired by Lessee or any independent
contractor or subcontractor, which certificates shall provide evidence of coverage for the
following with limits not less than the following, or greater if required by law:
COMMERCIAL GENERAL LIABILITY:
General Aggregate Limit
Products - Completed Operation Aggregate Limit
Personal and Advertising Injury Limit
Each Occurrence Limit
Fire Damage Limit (anyone 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.
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