Third Street Water Tower LeaseTHE CITY OF
Dins E MEMORANDUM
~~~
February 12, 2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Public Hearing for Lease at 3rd Street Water Tower
Cable TV Coordinator Craig Nowack recommends City Council set a public hearing for
March 5, 2007 to approve alive-year lease with the Iowa Communications and
Technology Commission of the State of Iowa for the building it currently leases beneath
the 3rd Street water tower. The rent is recommended at $300 per year.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
,~
M chael C. Van Milligen
MCVMljh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Craig Nowack, Cable TV Coordinator
THE CITY OF
Dus E MEMORANDUM
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TO: Michael C. Van Milligen, City Manager
FROM: Craig Nowack, Cabie N Coordinator C?P-~
DATE: February 9, 2007
RE: Public Hearing for Lease at 3rd Street Water Tower
INTRODUCTION
The purpose of this memorandum is to present you with a proposed lease for the ICN
building beneath the 3rd Street water tower and recommend that a public hearing on the
City's intent to dispose of that property be scheduled for March 5, 2007.
BACKGROUND
The Iowa Communications and Technology Commission of the State of Iowa (ICN) has
been leasing a building beneath the 3rd Street water tower. The most recent lease
expired on October 31, 2005. For more than a year the City has been involved in
negotiations to renew that lease.
Attached is a copy of a new lease that the ICN has agreed to. City Attorney Barry
Lindahl has also reviewed this document. It is for a term of five years with an annual
rent of $300. It gives the ICN the option of installing aback-up generator per a
Department of Homeland Security directive after City approval of a submitted plan for
such a device.
Also attached is a resolution drafted by the City Attorney which sets the date for the
required public hearing as March 5, 2007.
RECOMMENDED ACTION
I respectfully request that you concur with my recommendation that the City enter into
the attached lease for the ICN building beneath the 3rd Street water tower and that the
attached resolution be forwarded to the City Council to receive, file, and approve.
cc: Randy Gehl, Public Information Officer
Barry Lindahl, City Attorney
RESOLUTION NO. 89 -07
RESOLUTION OF INTENT TO DISPOSE OF AN INTEREST IN REAL PROPERTY BY
LEASE WITH THE IOWA COMMUNICATIONS AND TECHNOLOGY COMMISSION
OF THE STATE OF IOWA
WHEREAS, the City of Dubuque, Iowa (City) is the owner of Lot 24 of Finley
Addition in the City of Dubuque, Iowa (the Property);
AND WHEREAS, the Iowa Communications and Technology Commission of the
State of Iowa (the Commission) desires to lease a part of the Property to house and
operate equipment that serve as the operation of a fiber optic and electronic
communications system upon the terms set forth in a Lease now on file in the Office of
the City Clerk at City Hall, Dubuque, Iowa, which Lease provides among other things for a
term of five years;
AND WHEREAS, the City Council has tentatively determined that it would be in the
best interests of the City to enter into the Lease with the Commission.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City of Dubuque intends to dispose of its interest in the Property as
described in the Lease between City and the Commission.
Section 2. The City Clerk is hereby authorized and directed to cause this
Resolution and a notice to be published as prescribed by Iowa Code Section 364.7 of a
public hearing on the City's intent to dispose of the Property, to be held on the 5~' day of
March, 2007, at 6:30 o'clock p.m. at the public library auditorium, 11th & Locust,
Dubuque, Iowa.
Passed, approved and adopted this 20th day of February, 2007.
Roy D. Buol, Mayor
Attest: Jeanne F. Schneider, City Clerk
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
IOWA COMMUNICATIONS AND TECHNOLOGY COMMISSION
THIS LEASE AGREEMENT (the Lease), dated for reference purposes the _ day of , 2007, by
and between the City of Dubuque, Iowa, (Landlord), whose address, for the purpose 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 purpose of this Lease, is Grimes State Office
Building, 400 E. 14th Street, Des Moines, Iowa 50319.
The parties agree as follows:
1. PREMISES AND TERM. Landlord Leases to Lessee the following real estate, situated in Dubuque
County, Iowa shown on Exhibit A: that~art of Lot 24 of Finley Addition on which is located a 20 ft. x 20 ft. wooden-
frame construction building (1515 W. 3` Street, Dubuque, Iowa) (hereinafter called "the Premises") together with all
improvements thereon, and all rights, easements and appurtenances thereto belonging, for a term beginning on the
1St day of November, 2005, and ending at midnight on the 31St day of October, 2010, on the condition that Lessee
performs as provided in this Lease.
2. RENT. Lessee agrees to pay Landlord as rent Three Hundred Dollars ($300.00) per year, in advance.
The first annual payment shall be on or before the 1St day of April, 2007, the second annual payment shall be on or
before the 1 St day of November, 2007, and then on the 1St day of November of each year thereafter, during the term
of this Lease. Rent for any partial month shall be prorated as additional rent. All sums shall be paid 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.
Landlord recognizes that Lessee is atax-exempt entity. To the extent real estate taxes apply to property
owned by Landlord, Landlord shall pay all real estate taxes during the term of the Lease.
3. POSSESSION. Lessee shall be entitled to possession on the first day of the Lease term, and shall yield
possession to Landlord at the termination of this Lease.
4. USE. Lessee shall use the Premises to house and operate equipment that serve as the operation of a
fiber optic and electronic communications system. It is further understood by Lessee that any use of the Premises
shall not conflict with the present use of adjacent property owned by Landlord. Landlord shall, with prior written
consent from Lessee, be permitted to install and operate additional electronic equipment within the Premises, in a
manner which does not conflict or interfere with Lessee's use of the Premises. Such consent shall not be
unreasonably withheld.
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 shall quietly enjoy the premises and have
unobstructed access to said premises at all times.
6. CARE AND MAINTENANCE.
6.1. Lessee takes the Premises as is.
6.2. Lessee shall make no structural changes or alterations without the prior written consent of Landlord.
Lessee agrees to remove all snow and ice and other obstructions from the sidewalk on or abutting the Premises.
6.3. Landlord shall maintain the Premises in a reasonable, safe, serviceable, clean and presentable
condition, and, shall make all repairs, replacements and improvements to the Premises, including all changes,
alterations or additions ordered by any lawfully constituted government authority directly related to Lessee's use of
the Premises::.:
6. UTILITIES AND SERVICES. Lessee shall pay for all utilities and services which may be used on the
premises.
7. SURRENDER. Upon the termination of this Lease, Lessee will surrender the Premises to Landlord in
good and clean condition, except for ordinary wear and tear or damage without fault or liability of Lessee.
8. ASSIGNMENT AND SUBLETTING. No assignment or subletting, either voluntary or by operation of
law, shall be effective without the prior written consent of Landlord.
9. GENERATOR. Lessee may install and operate a liquid propane-fueled generator on or near the
Premises, along with a fuel storage tank, fuel supply lines, power supply cables, transfer switch and related
equipment and facilities, (hereafter collectively identified as "the Generator") to supply temporary electric power to
the Premises during any interruption of electric utility service, provided that:
9.1. Lessee shall 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 shall provide, for Landlord's approval, a list of parties, if other than ICN employees, including
address and contact phone numbers, authorized to enter the premises to maintain, test or service the Generator.
(c) Installation and operation of the Generator shall be performed by properly licensed technicians and shall
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 shall be sized and installed in such a manner as to supply adequate emergency power
to all existing circuits of the building (premises), including those feeding Lessee's equipment, Landlord's equipment,
building heating and air conditioning units and interior lighting. A 20 amp circuit shall be provided for Landlord's
equipment.
(e) If located outside the building, the Generator shall be equipped with whatever sound-dampening
accessories made available or approved by the generator manufacturer, such as exhaust muffler, insulation-lined
cabine! or enclosure, or substitute approved by Landlord, to reduce the perceived 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 of this Lease shall be
subject to the approval of Landlord.
(g) In the event Lessee abandons or ceases to use the generator, Lessee shall, at the sole discretion of
Landlord, either:
(1) safely disconnect and remove the Generator and restore the premises to their condition prior to
the installation, or
(2) transfer full ownership and control of the Generator to Landlord, in exchange for which Landlord
shall at such time release Lessee from all further obligations pertaining to ownership or operation of the Generator.
10. LIABILITY FOR DAMAGE.
10.1. LIABILITY BY LANDLORD. Consistent with Iowa Code Chapter 670, Landlord shall 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.
2
10.2. LIABILITY BY LESSEE. Consistent with Iowa Code Chapter 669, Lessee shall 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.
11. INDEMNITY.
11.1. INDEMNITY BY LANDLORD. Consistent with Iowa Code Chapter 670, Landlord agrees to indemnify
Lessee and hold it 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.
11.2. INDEMNITY BY LESSEE. Consistent with Article VII, Section 1 of the Iowa Constitution and Iowa
Code Chapter 669, Lessee agrees to indemnify Landlord and hold it 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.
12. DAMAGE. In the event of damage to the premises, so that Lessee is unable to conduct business on
the premises, this Lease may be terminated at the option of either party. Such termination shall be effected by
notice of one party to the other within ten days after such notice; and both parties shall thereafter be released from
all future obligations hereunder.
13. MECHANICS' LIENS. Neither Lessee, nor anyone claiming by, through, or under Lessee, shall have
the right to file'any mechanic's lien against the premises. Lessee shall give notice in advance to all contractors and
subcontractors who may furnish, or agree to furnish, any material, service or labor for any improvement on the
premises.
14. DEFAULT, NOTICE OF DEFAULT AND REMEDIES.
14.1. Events of Default. Each of the following shall 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 the Lease; (3) abandonment of the Premises. "Abandonment" means Lessee has
failed to engage in its usual and customary business activities on the Premises for more than fifteen (15)
consecutive business days.
14.2. Notice of Default. In the event of a default of a material term of this Lease, Landlord and Lessee
shall use the procedures outlined in Section 18 of this Lease.
15. NOTICES AND DEMANDS. All notices shall 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 shall 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.
City of Dubuque Iowa Communications and Technology Commission
City Hall Grimes State Office Building
50 West 13th Street 400 E. 14th Street
Dubuque IA 52001 Des Moines, IA 50319
Attn: City Manager Attn: Contracting Officer
16. PROVISIONS BINDING. Each and every covenant and agreement herein contained shall extend to
and be binding upon the respective successors, heirs, administrators, executors and assigns of the parties hereto.
17. TERMINATION OF PRIOR LEASE. The prior Lease between the parties is hereby terminated.
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18. TERMINATION OF LEASE:
18.1. For Cause by Lessee. In the event Landlord fails to observe and perform any covenant, condition or
obligation created by this Lease, Lessee shall provide written notice to Landlord requesting that the breach or
noncompliance be immediately remedied. In the event that the breach or noncompliance continues to be
evidenced thirty (30) days beyond the date of the written notice, Lessee may either immediately terminate the
Lease without additional written notice; or, enforce the terms and conditions of the Lease and seek any legal or
equitable remedies.
18.2. For Cause by Landlord. In the event Lessee fails to observe and perform any covenant, condition
or obligation created by this Lease, Landlord shall provide written notice to Lessee requesting that the breach or
noncompliance be immediately remedied. In the event that the breach or noncompliance continues to be
evidenced thirty (30) days beyond 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 the Lease and seek any legal or
equitable remedies.
18.4. 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 in the event of any of the
following contingencies: 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.
18.5. Remedy for Non-Appropriation Termination. In the event of termination of the Lease due to non-
appropriation, the exclusive, sole and complete remedy of Landlord shall be to recover and possess the Premises
subject to this Lease. In the event of termination of this Lease due to non-appropriation, Lessee shall have no
further liability.
CITY OF DUBUQUE, IOWA
IOWA COMMUNICATIONS AND TECHNOLOGY
COMMISSION
By
Roy D. Buol, Mayor
Attest:
Jeanne F. Schneider, City Clerk
By
Marla Gibbons, Contracting Officer
4
STATE OF IOWA
POLK COUNTY
ss.
On this of , 2007, before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Marla Gibbons, 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.
Notary Public, State of Iowa
STATE OF IOWA
DUBUQUE COUNTY
ss.
On this day of 2007, before me, the undersigned, a Notary Public in and for the
State of Iowa, personally appeared Roy D. Buol and Jeanne F. Schneider, to me personally known, who, being by me
duly sworn, did say that they are the Mayor 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 that the
instrument was signed and sealed on behalf of the corporation, by authority of its City Council, as contained in
Resolution No. -passed by the City Council on the day of , 2006; and Roy D. Buol and Jeanne
F. Schneider 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.
Notary Public, State of Iowa
5
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EXHIBIT A
Showing existing Finley Hospital Education Center lease (#1),
srslaa piece of properly added to the lease (#2),
Finley Hospffal property (#3), and location of
proposed concrele parking lot (shaded area)
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