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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. 2 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 «Y, DUB IC Fiber Optic Hub -- Exhibit A 2 Fink' -ion ` A G IS.. FINLEY HOSPITAL, THE F';DIJBUQUE FINLEY HOSPITAL, YK 1 inch = 50 feet 3, 517 25 6 50 FEe[ Stet ncuv H,Engn aSe en `d 1I8IHX3