Signed Contract_ICN Lease for 3rd Street BuildingMasterpiece on the Mississippi
TO: Michael C. Van Milligen, City Manager
FROM: Craig Nowack, Cable TV Coordinator
DATE: November 27, 2012
RE: ICN Lease
Dubuque
* * * **
All- America City
I I I 1,
2012
INTRODUCTION
The purpose of this memorandum is to request your signature on both copies of the attached
lease for the building the ICN uses beneath the 3rd Street water tower.
BACKGROUND
The ICN has been leasing a building for $300 per year beneath the 3rd Street water tower in
order to operate their fiber optic network. That lease is now up for renewal. Project Manager
Steve Brown has worked out the attached three -year lease with the ICN and City Attorney Barry
Lindahl approves.
RECOMMENDED ACTION
I respectfully request your signature on both the attached originals. I will then send them to the
ICN for their signatures and return one original to the City Clerk's office.
cc: Barry Lindahl, City Attorney
Steve Brown, Project Manager
Kevin S. Firnstahl, City Clerk
ry
Iowa Commun cations Network
baring Iowa's Infinite Possibilities„
TERRY BRANSTAD, GOVERNOR
KIM REYNOLDS, LT. GOVERNOR
IOWA TELECOMMUNICATIONS AND TECHNOLOGY COMMISSION
IOWA COMMUNICATIONS NETWORK
SHARING IOWA'S INFINITE POSSIBILITIES
I
January 29, 2013
Craig Nowack
The City of Dubuque
Cable TV Division
City Hall Annex
1300 Main Street
Dubuque, IA 52001 -4732
Craig:
Enclosed please find executed copy of Lease Agreement for the building beneath
the 3rd Street water tower in Dubuque. We had to change the name from Marla
Gibbons to Mark Johnson as Marla has retired from the State of Iowa (ICN).
If you have any questions, please contact me.
Thank you.
Sincerel
Sheri Stephens
ICN Purchasing /Contracting
Enclosure - 1
/Jr
DAVE LINGREN, EXECUTIVE DIRECTOR
Grimes State Office Building, 400 E. l4t" St, Des Moines, IA 50319 515.725.4692 phone 515.725.4727 fax www.icn.state.ia.us
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
THE IOWA COMMUNICATIONS AND TECHNOLOGY COMMISSION
T IS LEASE AGREEMENT (the Lease), dated for reference purposes the a'6-
day of i _G, , 2013, . is made and entered in to by and between the City of
Dubuque, Iowa, ' andlord), whose address for the purposes of this Lease is City Hall,
50 West 13th Street, Dubuque, Iowa, and the Iowa Telecommunications and Technology
Commission Operating the Iowa Communications Network (Lessee), whose address for
the purposes of this Lease is Grimes State Office Building, 400 E. 14th Street, Des
Moines, Iowa 50319.
The parties agree as follows:
SECTION 1. PREMISES AND TERM. Landlord leases to Lessee the following real
estate:
That part of Lot 2 of Finely Home Addition No. 2 in the City of Dubuque,
Dubuque County, Iowa, shown on Exhibit A, on which is located a 20 ft. x
20 ft. wooden -frame construction building (1515 W. 3rd Street, Dubuque,
Iowa) (the "Leased Premises ") together with all improvements thereon,
and all rights, easements and appurtenances thereto belonging, for a term
beginning on the 1st day of November, 2012 , and ending at midnight on
the 31st day of October, 2015 , on the condition that Lessee performs as
provided in this Lease (the "Term ").
SECTION 2. RENT; TAXES.
2.1. Lessee agrees to pay Landlord as rent Three Hundred Dollars ($300.00) per
year, in advance. The rent must be paid on or before the 1st day of November, 2012,
and then on the 1st day of November of each year thereafter, during the term of this
Lease at the address of Landlord, or at such other place as Landlord may designate in
writing. Delinquent payments shall draw interest in accordance with the provisions of
Iowa Code § 8A.514.
2.2. Landlord recognizes that Lessee is a tax - exempt entity. Landlord will pay all real
estate taxes on the Leased Premises during the Term.
SECTION 3. POSSESSION. Lessee will be entitled to possession on the first day of
the Term, and must yield possession to Landlord at the termination of this Lease.
SECTION 4. USE.
092512baI
4.1. Lessee may use the Leased Premises only to house and operate equipment for
its fiber optic and electronic communications system. Any use of the Leased Premises
may not conflict with the present use of adjacent property owned by Landlord. Lessee
may, with prior written consent from Landlord, install and operate additional electronic
equipment within the Leased Premises, in a manner which does not conflict or interfere
with Landlord's use of the Leased Premises, which consent may not be unreasonably
withheld.
4.2. Lessee must comply with all present and future federal, state, and local laws,
ordinances, rules, and regulations in connection with the use, operation, maintenance,
construction and installation of additional equipment
SECTION 5. COVENANT OF QUIET ENJOYMENT. So long as Lessee pays the
rents reserved by this Lease and performs and observes all the covenants and
provisions hereof, Lessee may quietly enjoy the Leased Premises and have
unobstructed access to the Leased Premises by means reasonably designated by
Landlord. Lessee must request access to the Leased Premises twenty -four (24) hours
in advance, except in an emergency, for which Lessee must notify Landlord as soon as
practicable.
SECTION 6. CARE AND MAINTENANCE.
6.1. Lessee takes the Leased Premises as is.
6.2. Lessee may make no structural changes or alterations without the prior written
consent of Landlord. Any structural changes or alterations or construction must be
made by Lessee in a legal and careful manner and without interference or damage to
any other equipment, structures or operations on the Leased Premises, including use of
the Leased Premises by Landlord or any assignees or other lessees. Lessee agrees to
remove all snow and ice and other obstructions from the sidewalk on or abutting the
Leased Premises.
6.3. Lessee must maintain the Leased Premises in a reasonable, safe, serviceable,
clean and presentable condition. Lessee has sole responsibility for the maintenance,
repair, security of its equipment, personal property, and improvements, including all
changes, alterations or additions ordered by any lawfully constituted government
authority, directly related to Lessee's use of the Leased Premises.
SECTION 7. UTILITIES AND SERVICES. Lessee must pay for all utilities and
services which may be used on the Leased Premises.
SECTION 8. SURRENDER. Upon the last day of the Term or upon any termination of
this Lease, Lessee will surrender the Leased Premises to Landlord without fraud or
delay and in good and clean condition, and repair. The Lease Premises must be in the
same condition as its condition on the date of this Lease except for ordinary wear and
tear or damage without fault or liability of Lessee.
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SECTION 9. ASSIGNMENT AND SUBLETTING. No assignment or subletting, either
voluntary or by operation of law, will be effective without the prior written consent of
Landlord.
SECTION 10. GENERATOR. Lessee may install and operate a liquid propane -
fueled generator, fuel storage tank, fuel supply lines, power supply cables, transfer
switch and related equipment and facilities, (hereafter collectively identified as "the
Generator") on the Leased Premises or elsewhere on Lot 2 of Finley Home Addition No.
2 but only without interference or damage to any other equipment, structures or
operations on the Leased Premises, including use of the 3rd Street Water Tower Site by
Landlord or any of Landlord assignees or other lessees, to supply temporary electric
power to the Leased Premises during any interruption of electric utility service, provided
that:
(a) Lessee must provide, for Landlord's inspection and approval, a written
plan detailing the proposed physical and technical specifications and proposed
specific location of the Generator and its components.
(b) Lessee must provide, for Landlord's approval, a list of parties, if other than
Lessee's employees, including the address and contact phone numbers,
authorized to enter the Leased Premises in accordance with Section 5 to
maintain, test or service the Generator.
(c) The installation and operation of the Generator must be performed by
properly licensed technicians and must be in accordance with applicable sections
of all federal, state and local laws, including but not limited to the International
Fire Code, National Electric Code, and National Electric Safety Code.
(d) The Generator must be sized and installed in such a manner as to supply
adequate emergency power to all existing circuits of the building on the Leased
Premises, including those feeding Lessee's equipment, Landlord's equipment,
building heating and air conditioning units and interior lighting. A 20 amp circuit
must be provided for Landlord's equipment.
(e) If located outside the building, the Generator must be equipped with
suitable sound - dampening accessories made available or approved by the
generator manufacturer, such as exhaust muffler, insulation -lined cabinet or
enclosure, or a substitute approved by Landlord, to reduce the level of sound
reaching nearby private residences or patient rooms of the Finley Hospital.
(f) Any future changes to the Generator size, location or configuration during
the Term must be approved by Landlord.
(g) In the event Lessee abandons or ceases to use the generator, Lessee
must, at the sole discretion of Landlord, either:
3
(1) safely disconnect and remove the Generator and restore the Leased
Premises to its condition prior to the installation; or
(2) transfer full ownership and control of the Generator to Landlord, in
exchange for which Landlord will release Lessee from all further
obligations related to ownership or operation of the Generator.
SECTION 11. LIABILITY FOR DAMAGE.
11.1. Liability By Landlord. Landlord will be liable to Lessee for damage to the
property of Lessee negligently, recklessly or intentionally caused by Landlord, or its
agents, employees or invitees, except to the extent the loss is insured and subrogation
is waived under Lessee's insurance policy.
11.2. Liability By Lessee. Lessee will be liable to Landlord for damage to the property
of the Landlord negligently, recklessly or intentionally caused by the Lessee, or its
agents, employees or invitees, except to the extent the loss is insured and subrogation
is waived under Landlord's insurance policy.
SECTION 12. INDEMNITY.
12.1. Indemnity By Landlord. Landlord agrees to indemnify Lessee and hold Lessee
harmless against any and all losses, cost, damages, expenses, claims, demands,
causes of action, judgments, and settlements arising out of Landlord's negligent acts or
omissions in the performance of this Agreement.
12.2. Indemnity By Lessee. Lessee agrees to indemnify Landlord and hold Landlord
harmless against any and all losses, cost, damages, expenses, claims, demands,
causes of action, judgments, and settlements arising out of Lessee's negligent acts or
omissions in the performance of this Agreement.
SECTION 13. DAMAGE. In the event of damage to the Leased Premises, so that
Lessee is unable to conduct business on the Leased Premises, this Lease may be
terminated at the option of either party. Such termination shall be effected by ten days
notice to the other party and the conditions if the conditions of Section 8 met, both
parties will thereafter stand released from all future obligations hereunder.
SECTION 14. MECHANICS' LIENS. Neither Lessee, nor anyone claiming by,
through, or under Lessee, has the right to file any mechanic's lien against the Premises.
Lessee must give notice of such limitation in advance to all contractors and
subcontractors who may furnish, or agree to furnish, any material, service or labor for
any improvement on the Leased Premises.
SECTION 15. DEFAULT, NOTICE OF DEFAULT AND REMEDIES.
4
15 .1. Events of Default. Each of the following constitute an event of default by
Lessee: (1) failure to pay rent when due; (2) failure to observe or perform any duties,
obligations, agreements, or conditions imposed on Lessee pursuant to the terms of this
Lease; (3) abandonment of the Leased Premises by Lessee by failing to engage in its
usual and customary business activities on the Leased Premises for more than fifteen
(15) consecutive business days.
15.2. Notice of Default. In the event of a default, Landlord and Lessee must proceed
as provided in Section 19.
SECTION 16. NOTICES AND DEMANDS. All notices must be given to the parties
hereto at the addresses designated unless either party notifies the other, in writing, of a
different address. Without prejudice to any other method of notifying a party in writing or
making a demand or other communication, such notice will be considered given under
the terms of this Lease when it is deposited in the U.S. Mail, registered or certified,
properly addressed, return receipt requested, and postage prepaid.
If to Iowa Telecommunications
and Technology Commission
If to City:
Attn: Contracting Officer
Grimes State Office Building
400 E. 14th Street
Des Moines, IA 50319
City Manager
50 West 13th Street
City Hall
Dubuque, Iowa 52001
Phone: (563) 589 -4110
SECTION 17. PROVISIONS BINDING. Each and every covenant and agreement
herein contained extends to and is binding upon the respective successors, heirs,
administrators, executors and assigns of the parties hereto.
SECTIONI8. TERMINATION OF PRIOR LEASE. The prior Lease between the
parties is hereby terminated.
SECTIONI9. TERMINATION OF LEASE:
19.1. For Cause by Lessee. In the event Landlord fails to observe and perform any
covenant, condition or obligation created by this Lease, Lessee must provide written
notice to Landlord requesting that the breach or noncompliance be immediately
remedied. In the event that the breach or noncompliance continues for thirty (30) days
after the date of the written notice, Lessee may either immediately terminate the Lease
without additional written notice, or enforce the terms and conditions of this Lease by
any legal or equitable remedies.
5
19.2. For Cause by Landlord. In the event Lessee fails to observe and perform any
covenant, condition or obligation created by this Lease, Landlord must provide written
notice to Lessee requesting that the breach or noncompliance be immediately
remedied. In the event that the breach or noncompliance continues for thirty (30) days
after the date of the written notice, Landlord may either immediately cancel or forfeit this
Lease without additional written notice, or enforce the terms and conditions of this
Lease by any legal or equitable remedies.
19.3. Termination Due to Lack of Funds or Change in Law. Notwithstanding any other
provision of this Agreement to the contrary and subject to the limitations, conditions and
procedures set forth below, Lessee may terminate this Lease without penalty by giving
sixty (60) days written notice to Landlord if there is a reduction or failure to appropriate,
at any time, the funds anticipated for the continued fulfillment of this Lease, if there is a
discontinuance or material alteration of the program for which funds were provided, or if
the ICN is sold, or the ICN's duties are substantially modified.
19.4. Remedy for Non - Appropriation Termination.
Lease due to non- appropriation, the exclusive, sole
will be to recover and possess the Leased Premises
Lease due to non - appropriation, Lessee will have no
CITY OF DUBUQUE, IOWA
By
Michael C. Van Milligen
City Manager
Attest:
Kevi irnstahl, Cit
6
In the event of termination of the
and complete remedy of Landlord
. In the event of termination of this
further liability.
IOWA COMMUNICATIONS AND
TECHNOLOGY COMMISSION
By
494arI
kJ/LAIL/
,
• �_�� _ z 11�arli Joh�f���'1
min
STATE OF IOWA
POLK COUNTY
: ss.
5oilosoh
3
On this (3,4 of arLcv , 2012; before me, a Notary Publi in and
for the State of Iowa, in and for said coun , personally appeared , to me
personally known, who acknowledged that she is the Contracting Officer of Iowa
Communications and Technology Commission, that she is authorized to execute the
foregoing document on behalf of Iowa Communications and Technology Commission,
and that the execution of this instrument is her and its voluntary act and deed on behalf
of Iowa Communications and Technology Commission.
�P S9
2 vu r
Notar
State of Iowa
STATE OF IOWA
ss.
IOWA
JODY COX
COMMISSION # 175090
MY COMMISSION EXPIRES
/S
DUBUQUE COUNTY Dec (;, On this 3 day of D e -r Qr , 2012, before me, the undersigned, a
Notary Public in and for the State of Iowa, personally appeared Michael C. Van Milligen
and Kevin S. Firnstahl, to me personally known, who, being by me duly sworn, did say
that they are the City Manager and City Clerk respectively of the City of Dubuque, Iowa, a
municipal corporation; that the seal affixed to the foregoing instrument is the corporate
seal of the corporation; and Michael C. Van Milligen and Kevin S. Firnstahl acknowledged
the execution of the instrument to be their voluntary act and deed and the voluntary act
and deed of the corporation, by it voluntarily executed.
),( -64\..
Public, State of Iowa
JUANITA HILKIN
Commission Number 10331,)
My Commlaalon Expir33 rc/9o13
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