Lease and Proposed Amendment to I-NET Agreement with MCC Iowa LLC (Mediacom)City of Dubuque
City Council Meeting
Consent Items # 011.
Copyrighted
July 5, 2022
ITEM TITLE: Lease and proposed Amendment to I -NET agreement between the City
of
Dubuque and MCC Iowa LLC (Mediacom)
SUMMARY: City Manager recommending City Council approve the proposed lease
and I -NET extension amendment to support broadband availability and
cost savings for key community institutions.
SUGGESTED Suggested Disposition: Receive and File; Approve
DISPOSITION:
ATTACHMENTS:
Description Type
Lease and Proposed Amendment to I -NET agreement
between the City of Dubuque and MCC Iowa LLC
(Mediacom)-MVM Memo
Lease and proposed Amendment to I -NET agreement
between the City of Dubuque and MCC Iowa LLC
(Mediacom) Memo to the City Manager
Lease Agreement by and Between the City Of
Dubuque, Iowa and MCC Iowa LLC
First Amendment to Agreement Between The City Of
Dubuque, Iowa and MCC Iowa LLC for the Operation
of the I -Net
City Manager Memo
Staff Memo
Supporting Documentation
Supporting Documentation
THE CITY OF
Dubuque
DUB TEE1.
All -America City
Masterpiece on the Mississippi
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TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Lease and proposed Amendment to I -NET agreement between the City of
Dubuque and MCC Iowa LLC (Mediacom)
DATE: June 30, 2022
Civil Engineer II Dave Ness, Information Services Manager Chris Kohlmann, and David
Lyons Sustainable Innovation Consultant are recommending City Council approve the
proposed lease and I -NET extension amendment to support broadband availability and
cost savings for key community institutions.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
v
Mic ael C. Van Milligen
MCVM:sv
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Gus Psihoyos, City Engineer
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: Lease and proposed Amendment to I -NET agreement between the City of
Dubuque and MCC Iowa LLC (Mediacom)
DATE: June 29, 2022
BACKGROUND
In 2005 the City of Dubuque granted Mediacom a franchise to operate a cable system in
the City of Dubuque. Pursuant to that franchise agreement Mediacom agreed to
provide an Institutional Network of fiber (the I -NET) to the City and certain authorized
users in Dubuque. In 2008 Mediacom was granted a state certificate to operate its
cable system and in 2009 terminated its franchise with the City, although agreeing to
continue to provide I -NET service until June 30, 2020. The City and Mediacom
subsequently extended that period to June 30, 2022 with Mediacom agreeing to
continue to provide I -NET service and the City agreeing to extend the lease by
Mediacom of its faciality on City property located at "Lot 2 — Finley Home ADD #2"
adjacent to the 3rd Street Water Tower.
DISCUSSION
The City and Mediacom have met to discuss the extension and have agreed it is in both
parties' best interest to continue this arrangement. A proposed I -NET extension
amendment and Mediacom lease have been drafted and are attached. The lease
would allow Mediacom to continue to occupy its present space adjacent to the 3rd Street
Water Tower for an additional ten -years. The I -NET amendment would extend
Mediacom's responsibility to provide and maintain the I -NET system for authorized
Dubuque users for that same time period of ten years. The Agreement and Amendment
both allow City of Mediacom to terminate the relationship early with notice to the other
party.
BUDGETIMPACT
While there are no direct impacts to the City budget for the extension of these
agreements, there is a financial implication. Mediacom has estimated that its annual
costs for providing and maintaining the I -NET are approximately $30,000 a year. The
City has estimated that the rental value of the leased space for Mediacom is between
$20,000 and $30,000 a year. From a budgetary standpoint the City is not incurring
additional annual costs for operating the I -NET or creating a replacement for that
system, but neither is it collecting rent that could be charged to Mediacom for its space
adjacent to the 3rd Street Water Tower.
Eventually all City facilities will be off the I -NET system and at that time the City would
inform Mediacom and the remaining I -NET authorized users (primarily Dubuque
Community School District, colleges and Holy Family Schools) that it would be
terminating the I -Net agreement and that the remaining users and Mediacom would
need to negotiate a direct agreement. The City would then negotiate and charge
Mediacom for its lease of the space.
ACTION STEP
The proposed lease and I -NET extension amendment support broadband availability
and cost savings for key community institutions. We would respectfully request your
approval.
cc: Crenna Brumwell, City Attorney
Barry Lindahl, Senior Counsel
Steve Brown, Project Engineer
Meggan Bennett, City Engineering
LEASE AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
MCC IOWA LLC
THIS AGREEMENT ("Agreement"), dated for reference purposes the day
of , 2022, by and between the City of Dubuque, Iowa ("Lessor") and
MCC Iowa LLC, a Delaware Limited Liability Company ("Lessee").
WHEREAS, Lessee is authorized to construct and operate communications
systems throughout the United States;
WHEREAS, Lessor controls and maintains the property located in Dubuque,
Iowa, as described in Exhibit A (the "Property"); and
WHEREAS, Lessor desires to Lease a portion of the Property (the "Leased
Property"), as described in Exhibit B, to the Lessee; and
WHEREAS, for good and valuable consideration already received, including
maintenance by Lessee of an Institutional Network of fiber (the I -Net) which has already
been completed and pursuant to the Agreement Between the City of Dubuque and MCC
Iowa LLC for the Operation of the I -Net dated May 4, 2020; and
WHEREAS, Lessee desires to use the Leased Property for all legal purposes,
including the purpose of constructing, operating, maintaining, repairing, replacing,
relocating and removing equipment (the "Facilities"). Such Facilities may include, without
limitation, earth stations, towers and buildings for the housing of electronic components
and related appliances, appurtenances, and fixtures, whether above or below ground,
with any necessary housing for same, which may be deemed by Lessee to be necessary
or desirable in connection therewith. In no event may the Leased Property, or any part
thereof, be used for any unlawful purpose.
NOW THEREFORE, in consideration of the mutual covenants, terms and
conditions contained herein, Lessee and Lessor, intending to be legally bound, mutually
agree as follows:
SECTION 1. TERM. The Term of this Agreement shall be for a period of ten (10)
years beginning on July 1, 2022 ("Original Term"). After the Term, this Agreement shall
continue for successive terms of one month each until either Lessor or Lessee terminates
this Agreement by giving the other thirty (30) days written notice of an intention to
terminate or a new lease agreement is executed. Notwithstanding the foregoing, Lessee
may terminate this Agreement at any time during the Original Term or any Renewal
Term, by delivering prior written notice of at least ninety (90) days and Lessor may
terminate this Agreement at any time during the Original Term or any Renewal Term by
delivering prior written notice of at least three hundred and sixty (360) days. Should this
06292022bal
Agreement be terminated early, Lessee shall have no further obligation to pay any
additional rent, including any rent that would have otherwise been due for any portion of
the remainder of the Term.
SECTION 2. WORK PERFORMED. All work performed by Lessee shall be performed
in a proper manner in accordance with industry standards, local codes and the approved
specifications. Lessee agrees to repair and replace any damage to the Leased Property
resulting from the installation, operation or removal of the Facilities. Lessee shall observe
all sanitary laws and regulations applicable to the Leased Property.
SECTION 3. INDEMNIFICATION. Lessee agrees to indemnify and hold harmless the
Lessor from any and all claims, demands, damages, actions, costs, including attorneys'
fees, and charges which the Lessor or the Lessee may have to pay by reason of injury
to any person or property, loss of life or property resulting from the condition or use of
the Leased Property unless such injury or loss arisesdirectly from the sole negligence
of the Lessor, or any of its agencies, officers or employees, while acting within the scope
of their employment.
Notwithstanding any other provision of this Agreement, neither party hereto shall be
liable to the other of any special, indirect or consequential damages or lost profits to
anyone arising out of this agreement or the performance or non-performance of any
activity pursuant to this agreement even if such party has been informed of the possibility
of such damages.
SECTION 4. RENT. Inconsideration of the Agreement, Lessee shall pay to the Lessor
a one-time sum of Twelve Dollars ($12.00). Payment to be made under this Agreement
shall be due within thirty (30) days after the execution of this Agreement by both parties.
SECTION 5. EASEMENT. Lessor hereby grants to Lessee a non-exclusive continuing
Easement to use the Leased Property and access roads shown in Exhibit B to access
the Facilities for purposes which include installing, constructing, maintaining, operating,
replacing, upgrading, repairing, relocating and removing, equipment and the Facilities.
The Easement shall be in effect for the term of this Agreement. If an access road to the
Facilities is needed, Lessee shall construct and maintain such road at no expense to the
Lessor. Lessor shall approve any plans to construct a road on Lessor's Property.
Upon the execution of this Agreement, Lessor shall deliver to Lessee all necessary keys
and combinations to facilitate Lessee's ingress to and egress from the Leased Property.
Lessee shall be entitled to have access to the Leased Property twenty-four (24)hours a
day, seven (7) days a week. The rights of Lessee under this Section shall be limited to
authorized employees, contractors or subcontractors of Lessee, FCC inspectors or
persons under their direct supervision. Notwithstanding the foregoing, Lessor accepts
no responsibility for any acts or omissions committed by Lessee's employees,
contractors, subcontractors or invitees.
06292022bal 2
SECTION 6. INSURANCE. Lessee shall obtain and carry insurance as described in the
attached Insurance Schedule.
The insurance certificate provided under this paragraph shall provide that said certificate
will not be subject to cancellation, termination or change except after at least thirty (30)
days' prior written notice to Lessor.
SECTION 7. FORCE MAJEURE. Except as otherwise provided herein to the contrary,
the Lessee shall be excused for the performance of its obligation to pay fees because of
the non -operation of its Facilities on the Leased Property if this is due to an act of God,
fire, lock out, flood, tornado, hurricane, riot or civil commotion, earthquake, war, the failure
of Facilities not belonging to the Lessee, denial of access to Facilities or rights -of -way
essential to serving the Leased Property, government order or regulation or any other
circumstances beyond the reasonable control of the Lessee. However, any abatement
of rent shall be limited to the reasonable period required to return the Lessee's Facilities
to operation.
SECTION 8. ASSIGNMENT. This Agreement may be assigned by either party with
prior written consent to the other party.
SECTION 9. SUBLEASING. Lessee may not sublease all or part of Lessee's Facilities
that are on the Property or the Leased Property without written consent of Lessor.
SECTION 10. NOTICE. All notices to be given in writing under this Agreement shall be
deemed to be given when delivered personally to the Lessor orthe Lessee, or forty-eight
(48) hours after it is deposited in the United States mail in a sealed envelope, with
registered or certified mail postage prepaid thereon, addressed to the party to whom
notice is being given, as follows:
If to the Lessor: City of Dubuque, Iowa
50 West 13t" Street
Dubuque, IA 52001
If to the Lessee: MCC Iowa LLC
3900 26t" Ave.
Moline, IL 61265
With copies to: MCC Iowa LLC
One Mediacom Way
Mediacom Park, NY
10918 Attn: Legal
Department
SECTION 11. RECORDING. Lessee shall record a Memorandum of this Agreement in
the public records of the County.
06292022ba1 3
SECTON 12. WAIVER OF DISTRESS. The Lessor acknowledges that the Lessee is
bound by (or will be bound by) certain covenants in loan agreements with lending
institutions which have provided (or will provide) long-term debt financing to the Lessee
and that such institutions have (or will have) a security interest on the Lessee's Facilities
located on the Leased Property that will be superior to any claim of the Lessor. As part
of the consideration hereunder, the Lessor covenants and agrees with the Lessee that
none of the Lessee's personal property, Facilities or trade fixtures shall be subject to
distress for rent or liable for any lien, right or claim which the Lessor may have, either
now or hereafter; and the Lessor further covenants and agrees that in the event that such
lending institutions exercise their right to take possession of or remove said Facilities from
the Leased Property, the Lessor will not hinder or interfere therewith, and the Lessor
consents to the taking of possession and removal of such personal property.
SECTION 13. DEFAULT. If at any time during the period in which this Agreement is in
effect, either party defaults on any obligation incurred hereunder, then this Agreement shall
be subject to termination by the other party. All rights and benefits herein conferred shall
be deemed forfeited, provided, however, that before any termination shall occur under
this paragraph, the defaulting party shall be given written notice and be allowed thirty (30)
days from date of delivery of such notice in which to cure such default or noncompliance.
If said default or noncompliance is cured within the above time period, then this
Agreement shall remain in full force and effect.
SECTION 14. MODIFICATION OF AGREEMENT. This Agreement may not be
modified, altered or amended, except by an "Amendment to Lease Agreement,"
executed by all parties to this Agreement.
SECTION 15. BINDING ON HEIRS. The terms, conditions and agreements made and
entered into by the parties hereto are declared and agreed to be binding upon and inure
to the benefit of their respective heirs, executors, administrators, successors and/or
assigns.
SECTION 16. COMPLIANCE WITH LAWS AND REGULATIONS. The Lessee shall, at
its own expense, secure and maintain throughout the term of this Agreement and until all
of its Facilities and structure are removed, any and all consents and permits which may
now or hereafter be required by all persons or governmental agencies, federal, state, or
municipal, for or in connection with this Agreement, shall comply with all applicable laws,
ordinances, rules and regulations pertaining to the placement, maintenance, operation,
erection, construction, or removal of its attachments, property, apparatus and structure.
SECTION 17. LEGAL FEES. If either party brings legal action for the enforcement of
this Agreement then the prevailing party shall be entitled to recover from the losing party
its reasonable attorneys' fees, including the payment for in-house counsel's time, fees
and expenses plus applicable fees, together with costs incurred, including deposition
costs and costs for expert witnesses.
06292022ba1 4
SECTION 18. EMINENT DOMAIN. If all or a part of the Property is taken in any
proceeding by a public authority, by condemnation or otherwise, or acquired for a public
or quasi -public purpose, which shall cause the Leased Property to be inadequate or
unsuitable for use by the Lessee, in its usual business, either the Lessor or the Lessee
shall have the option to terminate this Agreement effective on the date possession of the
Property is surrendered, in which event any unearned rent paid or credited in advance
shall be refunded to the Lessee. The Lessee hereby waives any claim against the Lessor
for the remaining portion of the Agreement and agrees it will peacefully surrender
possession to the Lessor, or to the condemning authority at or before the day of
possession is required pursuant to the requirements of the condemning authority.
SECTION 19. APPLICABLE LAW. This Agreement, and any claim, controversy or
dispute arising under or related to this Agreement (whether based on contract, tort or
other legal theory or cause of action,) shall be governed by and construed in accordance
with the domestic laws of the state of Iowa.
SECTION 20. PROPERTY. The Lessor covenants that the Lessor owns the Property
referenced in Exhibit A in fee simple and has full right to make this Agreement and that the
Lessee shall have peaceable possession of the Leased Property during the term hereof.
It is mutually understood and agreed upon that the Leased Property and authority granted
herein shall be subject to any easements, rights -of -way, mineral reservations or other
rights upon, over, across or underthe Leased Property now outstanding with third persons.
The Lessor also retains to itself, its successors or assigns, the right to use the Property
for its own purposes, so long as such use does not interfere with the construction, erection,
operation, repair or maintenance of the Lessee's Facilities and operations. The Lessor
hereby covenants and agrees that it will not use nor will it permit its remaining Property
to be used in any manner that could interfere in the Lessee's intended uses of the Leased
Property. The Lessee, upon the payment of rent herein reserved and upon performance
of all material terms of this Agreement, shall at all times, during the Agreement term and
during any extension or renewal thereof, peaceably and quietly enjoy the Leased Property
without any disturbance from the Lessor or from any other person claiming through the
Lessor, except as may be set forth in this Agreement.
SECTION 21. AUTHORIZATION. The Lessor and the Lessee represent and warrant
that each has the authority to enter into this Agreement and to be bound by its terms and
all necessary action on the part of each such party has been duly taken approving the
execution, delivery and performance of this Agreement.
SECTION 22. HEADINGS. The headings in this Agreement are inserted for
convenience and identification only and shall not be considered in the interpretation of
this Agreement.
SECTION 23. BREACH OF WARRANTY. It is agreed that if the warranty made by the
Lessor in Section 20 above is breached, and it is found that the Lessor does not have
the legal right to make this Agreement, the Lessee may receive damages, including, but
06292022ba1 5
not limited to, twice the fees already paid to the Lessor, plus administrative and
constructive fees and attorneys' fees.
SECTION 24. TOTAL AGREEMENT. This Agreement supersedes all previous
agreements, whether written or oral, between the Lessor and the Lessee, for the use
and operation of the Lessee's Facilities on Owner's real Property and there are no other
provisions, terms or conditions to this Agreement except as expressed herein.
SECTION 25. UTILITIES. Beginning on the date Lessee takes possession of the
Leased Property, Lessee shall make application for, obtain, pay for and be solely
responsible for all utilities required, used or consumed in the Leased Property, including,
but not limited to, gas, water, (including water of domestic uses and for fire protection),
telephone, electricity, sewer service, garbage collection services and any similar service.
In the event that any charge for any utility supplied to the Leased Property is not paid by
Lessee to the supplier when due, the Lessor may, but shall not be required to, pay such
charge for and on behalf of Lessee, with any such amount paid by Lessor being repaid
by Lessee to Lessor as additional rent promptly upon demand. Additionally, if Lessor shall
elect to supply any utilities to the Leased Property, the Lessee shall pay to Lessor the cost
of its utility consumption and the cost of supplying separate metering devices if
necessary. Lessor agrees that the cost to Lessee of any utilities supplied by Lessor shall
not exceed the amount Lessee would have paid if it independently obtained such service
from the local utility supplier to the extent that a relationship exists.
Lessor and Lessee hereby agree that Lessor shall not be liable for any interruptions or
curtailment in utility services due to causes beyond its control or due to Lessor `s
alteration, repair or improvement of the Property.
SECTION 26. TAXES. Lessee shall be responsible for the payment of all general real
estate taxes assessed against the Leased Property for any improvements erected on the
Leased Property by Lessee or on other personal property owned by the Lessee, whether
or not such taxes, liens or other charges are levied against it or against Lessor. Lessor
shall present a copy of the paid tax bill to Lessee for reimbursement within ninety (90) days
of payment by Lessor.
SECTION 27. ADDITIONAL TAXES. If Lessor is assessed additional taxes or if its
present taxes are increased as a result of any value placed on Lessee's leasehold,
fixtures or furnishings, or goods and services, then immediately upon demand and proof
of tax increase, Lessee shall pay to Lessor the amount of said
additional tax, or the amount of the increase.
SECTION 28. FAILURE TO ENFORCE. Failure of the Lessor to enforce or insist upon
compliance with any of the terms or conditions of this Agreement shall not constitute a
waiver or relinquishment by Lessor of any of said rights or conditions and all obligations
of the Lessee and rights of the Lessor shall survive the expiration or termination of this
Agreement.
06292022bal 6
SECTION 29. EQUIPMENT. It is agreed by the parties to this Agreement that title to all
structures and improvements constructed, erected or placed upon the Leased Property by
the Lessee, including Facilities and trade fixtures, shall vest with the Lessee.
SECTION 30. REPAIRS AND MAINTENANCE. The Lessee shall, at its own expense,
make all necessary repairs and replacements to the Leased Property and to any of the
structures erected thereon by the Lessee at its expense. Such repairs and replacements,
ordinary as well as extraordinary, and other structural and non-structural maintenance.
The Lessee shall at times during the term of this Agreement and any extensions or
renewals maintain in good safe condition any of its Facilities and improvements
established on the Leased Property. Lessor shall be responsible for grass and weed
trimming.
SECTION 31. RESTORATION. Upon request of Lessor, or upon Lessee's decision,
said structures and improvements shall be removed by Lessee within ninety (90) days
after the expiration, cancellation or termination of this Agreement, or as soon as possible
if weather or frozen ground delays the work in this paragraph. The surface of the Leased
Property shall be restored, as nearly as practicable, to the same condition as it was prior
to the initial construction of structures, and any subsequent maintenance, repair and
removal of the above -described Facilities. With respect to any cement foundations that
were installed by Lessee, the Lessee agrees that it shall dig down one (1) foot below
grade, cover with topsoil and seed. Lessee shall completely remove any cement
foundations at the request of Lessor within one year of the expiration or termination of
this Agreement.
SECTION 32. LESSOR'S RIGHT TO IPROPERTY.
The employees or agents of the Lessor shall have the right to enter upon the Leased
Property at all reasonable times during the term of the Agreement for inspection of the
Leased Property, and for any other activity related to its operations within the Leased
Property.
SECTION 33. LESSOR CERTIFICATE. Lessor agrees to provide at anytime, within ten
(10) days of Lessee's written request, a statement certifying that this Agreement is
unmodified and in full force and effect or, if there has been modifications, stating such
modifications and that such modifications are in full force and effect, whether Lessee is
in default of any of its obligations hereunder, and if so, reasonable details thereof, and
such other statements as may reasonably be required by the Lessee, including that Lessor
has no ownership interest in or lien on Lessee's Facilities on the Leased Property. It is
intended that any such statement delivered pursuant to this paragraph may be relied upon
by any person receiving such certificate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement through their
authorized representatives.
06292022bal 7
CITY OF DUBUQUE, IOWA
LESSOR
By:
Print Name: Qrej M. Co.VQnQQh
Title: Mo'yor
Date: JUTI a a
MCC IOWA LLC
LESSEE
By:
Print Name:
Title:
Date:
06292022ba1
EXHIBIT A
The Property is described as the following Real Estate situated in Dubuque, County of
Dubuque, in the State of Iowa, to wit:
LOT 2 FINLEY HOME ADD #2
06292022ba1 9
EXHIBIT B
(DUBUQUE,
IA)
10
MEMORANDUM OF LEASE AGREEMENT
Preparer Information: James McKnight
Senior Director, Legal Affairs
MCC Iowa LLC
One Mediacom Way
Mediacom Park, NY 10918
845-443-2636
Taxpayer Information: MCC Iowa LLC
One Mediacom Way
Mediacom Park, NY 10918
Return Document to: MCC Iowa LLC
Attn: Legal Department
One Mediacom Way
Mediacom Park, NY 10918
Landlord: City of Dubuque, Iowa
50 West 13t" Street
Dubuque, IA 52001
Tenant:
Legal Description
MCC Iowa LLC
See Exhibit A
Document or Instrument number of previously recorded documents:
11
THIS IS A MEMORANDUM OF LEASE by and between City of Dubuque, Iowa,
("Landlord"), and MCC Iowa LLC, a Delaware limited liability company ("Tenant"). For
good and valuable consideration, Landlord has demised and let to Tenant, and Tenant
has taken and leased from Landlord, the premises herein described for the term herein
stated, for the rent and upon the terms and conditions of that certain lease by and
between Landlord and Tenant of even date herewith (as the same may hereafter be
amended, modified, supplemented or restated, the "Lease") upon the following terms:
Landlord: City of Dubuque, Iowa
50 West 13t" Street
Dubuque, IA 52001
Tenant: MCC Iowa LLC
One Mediacom Way
Mediacom Park, NY 10918
Date of Lease: Date as of
Description of Lease See Exhibit A
Premises:
Date of July 01, 2022
Commencement
of Term:
Date of Expiration July 30, 2032
of Term:
Renewal Options: None
The purpose of this Memorandum of Lease is to give record notice of the Lease and the
rights created thereby, all of which are hereby confirmed and this shall not have the
effect of, in any way, amending, modifying, supplementing or abridging the Lease or any
of its provisions as the same are now or may hereinafter be in force and effect. In the
event of any conflict between the provisions of the Lease and this Memorandum of
Lease, the provisions of the Lease shall prevail.
12
IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum of
Lease under seal as of Date: 2022
LANDLORD:
City of Dubuque Iowa
State of
County of
WITNESSES:
Print Name: Adrienne grei}fe&r
M
Print Name:
ACKNOWLEDGEMENT
On 2022 befo .me. /
perso y a eared ho pro d to me on the basis
of satisfactory evidence to be the persons) whose me(s) is re subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
Notary Public
Print Name:
M1 /
My commission expires: ec 7
13
PAMELA J. McCARRON
Commission Number 77241
My Comm. Exp. Y�, —_
TENANT:
MCC Iowa LLC
3-1
State of _
County of
WITNESSES:
By:
Print Name:
By:
Print Name:
ACKNOWLEDGEMENT
On , 2022 before me,
personally appeared ,who provided to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
Notary Public
Print Name:
My commission expires:
14
EXHIBIT A
The Property is described as the following Real Estate situated in Dubuque, County of
Dubuque, in the State of Iowa, to wit:
LOT 2 FINLEY HOME ADD #2
15
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t
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1
16
INSURANCE SCHEDULE A
1. 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.
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.
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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.
OR
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.
In
INSURANCE SCHEDULE A (Continued)
C) POLLUTION LIABILITY
Coverage required: _ Yes _X 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 X No
Evidence of property coverage provided: _ Yes
Include the City of Dubuque as Lender Loss Payable.
E) RIGHT-OF-WAY WORK ONLY:
UMBRELLA/EXCESS $1,000,000
X 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 X No
If Required Coverage $
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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 Change in Policy. The above preservation of governmental immunities shall not otherwise
change or alter the coverage available under the policy.
SPECIMEN
20
21
FIRST AMENDMENT TO AGREEMENT BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
MCC IOWA LLC FOR THE OPERATION OF THE I -NET
This First Amendment to Agreement (the "Amendment") is made this day of
by and between City of Dubuque, Iowa, ("Lessor") and MCC Iowa, LLC ("Lessee")
Reference is hereby made to the AGREEMENT, dated May 4, 2020, by and between Lessor and Lessee
(the "Agreement")
WHEREAS, Pursuant to the May 4, 2020 Agreement, Lessor and Lessee wish to continue
the operation of the I -Net beyond June 30, 2022 on the terms and conditions set forth in that
Agreement.
WHEREAS, Section 10. TERM. Shall be amended by the following:
SECTION 10. TERM. The term of this Agreement shall be for a period of 10 years beginning
July 1, 2022 through midnight June 30, 2032 or until the date the Lease Agreement between
the parties dated the day of , 20_ is terminated, whichever first occurs.
All other terms of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement through their authorized
representatives.
LESSOR City of Dubuque, Iowa
Bmd M, Cavan o,gh
Print Name
mayor
Title '
Date:-T(k)) 0? a a
LESSEE MCC Iowa, LLC
Print Name
Title
Date: