Tower Lease Agreement - Radio Dubuque, Dubuque County 911 THE CITY OF 411WA Dubuque*****
DUBB E All erica City
Masterpiece on the Mississippi
2012
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Tower Lease Agreement between the City of Dubuque, the Dubuque
County Joint E911 Board and Radio Dubuque, Inc.
DATE: July 31, 2012
Emergency Communications Manager Mark Murphy is recommending City Council
approval of a Tower Lease Agreement between the City of Dubuque, the Dubuque
County Joint E911 Board and Radio Dubuque, Inc. to locate Emergency
Communications radio and Police MCT radio equipment on the Radio Dubuque, Inc.
tower.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Michael C. Van Milligen
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Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Mark Murphy, Emergency Communications Manager
Masterpiece on the Mississippi
Dubuque
had
NI- America City
'I 1 1 I'
2007
TO Michael C Van Milligen, City Manager
FROM Mark Murphy, Emergency Communications Manager
DATE July 27, 2012
SUBJECT Tower Lease Agreement between the City of Dubuque , the Dubuque County Joint E311 Board and
Radio Dubuque, Inc
INTRODUCTION
This memo will discuss the Tower Lease Agreement between the City of Dubuque, the Dubuque County E311 Board and
Radio Dubuque, Inc
BACKGROUND
The City of Dubuque and Dubuque County E911 Service Board currently rent tower space from Second Generation of Iowa
for Emergency Communications radio and Police MCT radio equipment Several years ago this company approached the
City and County and offered us the opportunity to purchase the tower
DISCUSSION
In doing the background for the purchase possibility, we found that the Second Generation Tower was reaching the end of as
life expectancy and was also not rated for ice, which is a requirement for emergency communications equipment
Radio Dubuque Inc shortly before this time built a new tower which is less then a mile away from the Second Generation
Tower This tower is less then ten years old and is ice rated The owners approached us and were willing to allow us to rent
space on this tower They will also charge us less rent then we pay with the current contract
The FY13 Emergency Communications Budget includes funds to pay for the movement of the 911 and Police Equipment
from the Second Generation Tower to the Radio Dubuque Tower The amount of this Capital Improvement Package is
$242,628
The Radio Dubuque Inc tower is newer and ice rated Since the Radio Dubuque Tower is newer and is rated appropriately
for emergency communications equipment it is a much better option for the City of Dubuque and Dubuque County 911 to
have its emergency communications equipment installed there
RECOMMENDATION
City Manager review and approval of attached lease agreement and authorization of approval to sign contact
PROJECT COST - BUDGET IMPACT
Currently the Dubuque Police Department pays $1,228 08 per month for tower rent to Second Generation of Iowa The
contract with Radio Dubuque Inc , will decrease the monthly charge to the Dubuque Police Department by $135 28 per
month The Dubuque Police will pay $1,092 80 per month The Joint E911 Board will also see a reduction in monthly rent
ACTION TO BE TAKEN
City Manager review and approval and recommendation to City Council to accept the lease agreement with Radio Dubuque
Inc
TOWER LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA,
THE DUBUQUE COUNTY JOINT E911 BOARD
AND
RADIO DUBUQUE, INC.
This Tower Lease Agreement ( "the Agreement ") made and entered into as of the
7th day of August, 2012, by and between Radio Dubuque, Inc. ( "Lessor ") whose
address for the purpose of this Agreement is 346 West 8th Street, Dubuque, Iowa
52001, and the City of Dubuque, Iowa ( "City "), whose address for the purpose of this
Agreement is 50 West 13th Street, Dubuque, Iowa 52001, and the Dubuque County
Joint E911 Board ( "E911 Board "), whose address for the purpose of this Agreement is
720 Central Ave, Dubuque, Iowa 52001, Dubuque, Iowa (collectively, "Lessees ").
Lessor is the owner of a broadcast tower ( "the Tower ") located on real property
owned by Radio Dubuque at 647 Flamingo Lane, off Highways 151/61 in Jamestown
Township, Grant County Wisconsin, near Kieler, Wisconsin (the "Radio Dubuque
Premises "). Lessees desire to utilize a portion of the Tower and a thirty foot by thirty
foot (30'x30') fenced area of the Radio Dubuque Premises on which to place a building,
generator and LP tank (the "Fenced Area ") on the terms and conditions set forth herein.
The Tower and the Fenced Area are collectively defined as the "Leased Premises" and
are shown on Exhibit A attached hereto.
Therefore, for and in consideration of the mutual promises herein contained, the
rental set forth in Section 5 below and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, Lessor and Lessees agree as follows:
SECTION 1. LEASE OF TOWER AND FENCED AREA. Lessor leases unto Lessees
and Lessees rent and lease from Lessor: (a) a designated space on the Tower for the
location of Lessees' equipment and (b) a thirty foot by thirty foot (30'x30') Fenced Area
on which to place a building, generator and LP tank. A map of the Tower and Fenced
Area are attached hereto as Exhibit A.
SECTION 2. GRANT OF EASEMENT. Lessor grants to Lessees, their service
subcontractors and /or service providers, easement of rights over and across the Radio
Dubuque Premises for the purpose of access to the Tower and the Fenced Area,
including the building, generator and LP tank located thereon, as required for the
installation, maintenance, and operation of their equipment. Lessees, their service
subcontractors and /or service providers will have full access to the Tower and Fenced
Area over, across, and through the Radio Dubuque Premises at all times, twenty -four
(24) hours per day during the term of this Lease.
SECTION 3. PRIOR APPROVAL. Lessees shall receive from Lessor prior approval
of any person, firm, or corporation hired by Lessees to provide services in connection
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with the installation of the equipment on the Tower and the construction of the building,
generator and LP tank on the Fenced Area and subsequent maintenance thereof.
Lessees agree that they shall not use any personnel to provide such services without
receiving prior approval from Lessor. Such approval shall not be unreasonably denied.
SECTION 4. TERM. The term of this Agreement shall be from the 6th day of August,
2012, to midnight on the 5th day of August, 2015 ( "the Initial Term "). The Agreement
shall automatically renew for consecutive three -year terms ( "the Renewal Terms ")
unless either party gives the other notice of termination in writing at least sixty (60) days
prior to the end of the Initial Term or any Renewal Term.
SECTION 5. RENT. Lessees agree to pay Lessor annual rent of $65,568.00 (Sixty
five thousand, five hundred sixty -eight dollars) in twelve equal monthly payments of
$5,464.00 beginning on the 15th day of February, 2013, and on the 15th day of each
month thereafter during the Initial Term. Payment of the rent will be shared by Lessees
and divided between Lessees as follows: City will pay 20% of the monthly rent
($1,092.80 per month) for a total of $13,113.60 annually, and County will pay 80% of
the monthly rent ($4,371.20 per month) for a total of $52,454.40 annually. The
combined monthly payments from City and County will equal a total monthly rent in the
amount of $5,464.00 and a total annual rent in the amount of $65,568.00. The annual
rent for each year after the Initial Term shall be adjusted by the percentage increase, if
any, in the Consumer Price Index for All Urban Consumers, U.S. City Average, All Items
published by the Bureau of Labor Statistics of the U.S. Department of Labor in effect on
the commencement date of each year as compared to the Consumer Price Index in
effect on the commencement date of the immediately preceding one -year period.
SECTION 6. EQUIPMENT AND MATERIALS.
6.1. Lessees' radio equipment placed on the Tower and Lessees' equipment and
materials in the building located in the Fenced Area on the Leased Premises are
Lessees' personal property and will never be considered fixtures to the Land. Upon
termination of this Agreement, Lessees' equipment will remain Lessees' personal
property and must be removed by Lessees in accordance with Section 13 of this
Agreement.
Lessees' equipment consists of the following:
1) One (1) antenna and coax located on the Tower at 900 feet;
2) One (1) antenna and coax located on the Tower at 880 feet;
3) One (1) antenna and coax located on the Tower at 860 feet;
4) One (1) microwave dish and coax located on the Tower at 280 feet; and
5) One (1) preamplifier box and coax located on the Tower at 900 feet;
6.2. The building, generator and LP tank located in the Fenced Area of the Leased
Premises are the property of the E911 Board and will be removed by the E911 Board.
The E911 Board will insure the building, generator and LP tank during the Term of this
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Agreement. City will pay for the relocation of the building, generator and LP tank from
its current location to the Leased Premises.
SECTION 7. RELOCATION.
7.1. If Lessor requires Lessees to relocate their equipment to other locations on the
Tower, Lessees shall complete the relocation of their equipment within thirty (30) days
after receipt of written notice from Lessor. The relocation of the equipment shall be at
Lessor's expense and such expense shall be approved by Lessor. If such equipment
relocation does not meet Lessees' Radio Frequency requirements or interferes with
Lessees' transmission, reception and operation of their communications system and
uses incidental thereto, Lessees may terminate this Agreement in accordance with
Section 13 herein.
7.2. If Lessor requires Lessees to relocate to or reconstruct their building, generator
or LP tank on other locations on the Radio Dubuque Premises, Lessees shall complete
the relocation or reconstruction of the building, generator or LP tank within thirty (30)
days after receipt of written notice from Lessor. The relocation or reconstruction of the
building, generator or LP tank shall be at Lessor's expense and such expense shall be
approved by Lessor. If such building, generator or LP tank relocation or reconstruction
does not meet Lessees' Radio Frequency requirements or interferes with Lessees'
transmission, reception and operation of their communications system and uses
incidental thereto, Lessees may terminate this Agreement in accordance with Section
13 herein.
SECTION 8. USE OF LEASED PREMISES.
8.1. Lessees shall use the Leased Premises for the installation, operation and
maintenance of radio communications systems and uses incidental thereto, including
but not limited to transmission and reception of radio communications.
8.2. Lessees' equipment used in connection with the installation, operation and
maintenance of radio communications systems is Lessees' personal property and shall
never be considered fixtures to the Leased Premises. Upon termination of this
Agreement, Lessees' equipment shall remain Lessees' personal property and shall be
removed by Lessees in accordance with Sections 11 and 16 of this Agreement.
8.4. Lessees' building, generator and LP tank used in connection with the installation,
operation and maintenance of radio communications systems is the E911 Board's
personal property and shall never be considered fixtures to the Leased Premises. Upon
termination of this Agreement, Lessees' building, generator and LP tank shall remain
the E911 Board's personal property and shall be removed by Lessees in accordance
with Sections 11 and 16 of this Agreement.
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SECTION 9. FCC COMPLIANCE. Lessees shall at all times comply with all the rules,
regulations, and requirements of the Federal Communications Commission (FCC). The
failure by Lessees to so comply shall constitute a default.
SECTION 10. INSTALLATION — MAINTENANCE.
10.1. Lessees, with respect to the installation, maintenance, and repair of their
equipment, agree that:
1) Lessees shall not damage the Leased Premises;
2) Lessees shall not interfere with the maintenance of Lessor's Tower or
tower lighting system or any other equipment now installed on the Leased
Premises;
3) Lessees shall not interfere with the operation of Lessor's radio broadcast
system located at the Leased Premises. In an event that there is any such
interference, if Lessees are unable to promptly remove such interference, then
their use of equipment and the Tower shall terminate immediately upon Lessor's
notice to Lessees, provided Lessees are allowed thirty (30) days from the date of
such notice to remove all of Lessees equipment from the Leased Premises and
this Agreement shall immediately terminate upon such removal;
4) Lessees will provide and maintain the necessary equipment to deliver their
information to the transmitting facility on a full -time basis; and
5) Lessees shall at all times comply with all other state, federal, and local
rules and regulations.
10.2. Lessor, with respect to the installation, maintenance, and repair of the Leased
Premises, agrees that Lessor shall notify Lessees 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 Lessees as soon as practicable.
SECTION 11. UPGRADES.
11.1. Lessees may update or replace their equipment from time to time with the prior
written approval of Lessor. Such approval shall not be unreasonably withheld. Any
change in equipment locations initiated by the Lessees on the Leased Premises shall
be approved in writing by the Lessor. Lessees shall submit to Lessor a proposal for any
such replacement equipment and any supplemental materials for Lessor's evaluation.
11.2. Lessees may update or replace their building, generator or LP tank from time to
time with the prior written approval of Lessor. Such approval shall not be unreasonably
withheld. Any change in building, generator or LP tank locations initiated by the
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Lessees on the Leased Premises shall be approved in writing by the Lessor. Lessees
shall submit to Lessor a proposal for any such replacement and any supplemental
materials for Lessor's evaluation.
SECTION 12. PREMISES ACCESS.
12.1. Lessees, their service subcontractors and /or service providers, shall have 24-
hour /7 -day access to the Leased Premises by means reasonably designated by Lessor,
in order to install, operate and maintain their radio communications systems.
12.2. Upon twenty -four (24) hours prior written notice to Lessees, and with an escort
provided by Lessees, Lessor shall be allowed access to Lessees' equipment at
reasonable times to examine and inspect the same for safety reasons or to ensure that
Lessees' covenants are being met.
SECTION 13. EARLY TERMINATION.
13.1. If, within thirty (30) days after the equipment is operational, Lessor determines
that the transmission of Lessees' information causes a deterioration of the pre- existing
quality of Lessor's transmissions or Lessees determine that Lessor's transmission
facilities provide an inadequate range or quality of signal to reliably serve Lessees'
customers, then any party may terminate this Agreement by giving the other parties
thirty (30) days written notice. Lessees shall have thirty (30) days to remove all of
Lessees' equipment from the Leased Premises and this Agreement and all terms
thereof shall terminate upon such removal.
13.2. If, at any point during the term of this Agreement, Lessees' equipment, building,
generator or LP tank becomes non - operational due to interference or damage caused
by Lessor or Lessor's transmissions, Lessees shall have the right to terminate this
Agreement by giving Lessor twenty (20) days written notice to Lessor. Lessees shall
have thirty (30) days to remove all of Lessees' equipment from the Leased Premises
and this Agreement and all terms thereof shall terminate upon such removal.
13.3. If any part of the Leased Premises or any portion thereof is altered, damaged or
destroyed, through no fault or negligence of Lessees, so as to materially hinder effective
use of either the Tower, the building, generator and LP tank located on the Fenced Area
or the Fenced Area, Lessees may elect to terminate this Agreement by giving thirty (30)
days written notice to Lessor. Lessees shall have thirty (30) days to remove all of
Lessees' equipment, the building, the generator and the LP tank from the Leased
Premises and this Agreement and all terms thereof shall terminate upon such removal.
SECTION 14. INDEMNITY AND INSURANCE.
14.1. City and E911 Board each agree to indemnify Radio Dubuque, Inc. and hold
Radio Dubuque, Inc. harmless from any claim which may arise against Radio Dubuque,
Inc. by reason of any action or occurrence by City or E911 Board respectively, their
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agents or employees attributable to the installation, operation, maintenance, or removal
of City's and E911 Board's equipment including, but not limited to, any damage to
property or the injury of any person. Accordingly, City and E911 Board hereby accept
the Leased Premises in their "as is" condition for all purposes including, but not limited
to, the installation and maintenance of equipment at the Leased Premises. This
indemnification clause shall include any liability or obligation of Radio Dubuque, Inc.
arising out of any claim by City orE911 Board or any person, firm, or corporation
providing services at the Leased Premises and the Radio Dubuque Premises on which
same is located under the authority or with the permission of Lessees.
14.2. City agrees to indemnify E911 Board and hold E911 Board harmless from any
claim which may arise against E911 Board by reason of any action or occurrence by
City, its agents or employees attributable to the installation, operation, maintenance, or
removal of City's equipment including, but not limited to, any damage to property or the
injury of any person. This indemnification clause shall include any liability or obligation
of E911 Board arising out of any claim by City or any person, firm, or corporation
providing services at the Leased Premises and the Radio Dubuque Premises on which
same is located under the authority or with the permission of City.
14.3. E911 Board agrees to indemnify City and hold City harmless from any claim
which may arise against City by reason of any action or occurrence by E911 Board , its
agents or employees attributable to the installation, operation, maintenance, or removal
of E911 Board 's equipment including, but not limited to, any damage to property or the
injury of any person. This indemnification clause shall include any liability or obligation
of City arising out of any claim by E911 Board or any person, firm, or corporation
providing services at the Leased Premises and the Radio Dubuque Premises on which
same is located under the authority or with the permission of E911 Board .
14.4. City and E911 Board shall keep in force their memberships in the Iowa
Communities Assurance Pool or maintain with an insurance company authorized to do
business in the State of Iowa a policy of comprehensive public liability insurance in
which the limits of coverage for property damage and bodily injury shall not be less than
$1,000,000 per accident, which City and E911 Board shall name Radio Dubuque, Inc.
as an additional insured. Such insurance shall provide coverage against the indemnity
provision set forth above. City and E911 Board shall deliver a certificate of insurance to
Radio Dubuque, Inc. before entering upon the Leased Premises.
14.5. Radio Dubuque, Inc. shall defend, indemnify, and hold harmless City and E911
Board , their agents and employees from and against any and all claims of any kind
arising out of or related to Radio Dubuque, Inc.'s negligence under this Agreement.
14.6. City shall defend, indemnify, and hold harmless Radio Dubuque, Inc. and E911
Board , their agents and employees from and against any and all claims of any kind
arising out of or related to City's negligence under this Agreement.
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14.7. E911 Board shall defend, indemnify, and hold harmless Radio Dubuque, Inc. and
City, their agents and employees from and against any and all claims of any kind arising
out of or related to E911 Board 's negligence under this Agreement.
SECTION 15. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned
or the Leased Premises sublet without the prior written approval of Lessor. Said written
approval shall not be unreasonably withheld.
SECTION 16. MECHANIC'S LIENS.
16.1. Neither Lessees nor anyone claiming by, through, or under Lessees shall have
the right to file or place any mechanic's lien or other lien or encumbrance of any kind or
character whatsoever upon the Leased Premises or upon any building or improvement
located thereon.
16.2. Neither Lessor nor anyone claiming by, through or under Lessor shall have the
right to file or place any mechanic's lien or other lien or encumbrance of any kind or
character whatsoever upon Lessees' equipment or upon Lessees' building, generator or
LP tank located on the Leased Premises.
SECTION 17. LIMITATION OF LIABILITY. Under no circumstances shall any party
be liable to another party for any indirect, special, or consequential damages including,
but not limited to, any claim for loss of business.
SECTION 18. TERMINATION AND DEFAULT.
18.1. Upon the default in payment of rent or upon any other material default by
Lessees, this Agreement may, at the option of Lessor, be cancelled and forfeited on
thirty (30) days written notice by Lessor to Lessees.
18.2. The rights granted herein shall be in addition to and not in limitation of any other
rights, or remedies available to the Lessor.
SECTION 19. FORCE MAJEURE. In the event that either party hereto is delayed or
hindered in or prevented from the performance of any act required hereunder by reason
of strikes, lockouts, labor troubles, unavailability or excessive price of fuel, power failure,
riots, insurrection, war, terrorist activities, chemical explosions, hazardous conditions,
fire, weather or acts of God, or by reason of any other cause beyond the exclusive and
reasonable control of the party delayed in performing work or doing acts required under
the terms of this Agreement, then performance of any such act shall be extended for a
period equivalent to the period of such delay.
SECTION 20. ENTIRE AGREEMENT. This Agreement constitutes the entire
Agreement of the parties hereto and shall supersede all prior agreements.
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SECTION 21. BINDING EFFECT. All covenants, conditions and provisions of this
Agreement shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns.
SECTION 22. MODIFICATIONS. This Agreement may not be modified, except in
writing, signed by the party or parties against whom such modification is sought to be
enforced.
SECTION 23. ATTORNEY'S FEES. In any action on this Agreement 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.
SECTION 24. NON - WAIVER. Failure of Lessor or Lessees to insist on strict
performance of any of the conditions, covenants, terms or provisions of this Agreement
or to exercise any of their rights hereunder shall not waive such rights, but each party
shall have the right to enforce such rights 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 another after a breach of this Agreement shall not be deemed a waiver of such
breach unless expressly set forth in writing.
SECTION 25. APPLICABLE LAW AND VENUE. This Agreement shall be governed
by the laws of the State of Iowa and venue for any action with respect to this Agreement
shall be in Dubuque County, Iowa.
SECTION 26. MISCELLANEOUS.
26.1. Lessor and Lessees represent that each, respectively, has full right, power and
authority to execute this Agreement.
26.2. If any term or part of this Agreement is found to be void or invalid, such invalidity
shall not affect the remaining terms of this Agreement, which shall continue in full force
and effect.
26.3. In any case where the approval or consent of one party hereto is required,
requested or otherwise to be given under this Agreement, such party shall not
unreasonably delay or otherwise withhold its approval or consent.
26.4. All Riders and Exhibits annexed hereto form material parts of this Agreement.
26.5. This Agreement may be executed in duplicate counterparts, each of which shall
be deemed an original.
26.6. All notices and correspondence related to this Agreement shall be sent to the
following:
Lessor: Radio Dubuque, Inc.
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Thomas Parsley
346 W. 8th St
Dubuque, Iowa 52001
Lessees: City of Dubuque, Iowa
Michael C. Van Milligen
City Manager
50 West 13th Street
Dubuque, IA 52001 -4845
Dubuque County Joint E911 Board
Thomas I. Berger, Chairperson
720 Central Ave
Dubuque, IA 52001
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
Lessees: Lessor:
CITY OF DUBUQUE, IOWA RADIO DUBUQUE, INC.
By: By:
Michael C. Van Mil!igen Thomas Parsley
City Manager
DUBUQUE COUNTY JOINT E911 BOARD
By:
Thomas I. Berger
Chairperson
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