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HomeMy WebLinkAbout2009-03-10 ResolutionM-4~ . 4d 1 Prepared by: Kevin O'Malley, Finance Director, 410 E. Washington St., Iowa City, IA 52240 (319)356-5053 RESOLUTION NO. b9-67 RESOLUTION SETTING PUBLIC HEARING ON AMENDING THE FY2009 OPERATING BUDGET. BE IT RESOLVED BY THE CITY COUNCIL OF IOWA CITY, IOWA, that a public hearing will be held in Harvat Hall, City Hall, 410 East Washington Street, at 7:00 p.m., March 24, 2009, or if said meeting is cancelled, at the next meeting of the City Council thereafter as posted by the City Clerk, to permit any citizen to be heard for or against the proposed amendment to the FY2009 Operating Budget. The City Clerk is hereby directed to give notice of said public hearing and time and place thereof by publication in the Iowa City Press-Citizen, a newspaper of general circulation in Iowa City, not less than ten (10) days and not more than twenty (20) days before the time set for such hearing. Passed and approved this 10th day of March , 2009 . ATTEST: CITY LERK 9 City Attorney's Office It was moved by Champion and seconded by O'Donnell the Resolution be adopted, and upon roll call there were: AYES: x x x x x ~- x fi na dm\res\operbd g4-08. doc NAYS: ABSENT: Bailey Champion Correia Hayek O'Donnell Wilburn Wright 4d 2 Prepared by: Daniel Scott, Project Engineer, 410 E. Washington St., Iowa City, IA 52240 (319) 356-5144 RESOLUTION NO. 09-68 RESOLUTION AUTHORIZING MAILING AND PUBLICATION OF NOTICE OF INTENT TO COMMENCE PUBLIC IMPROVEMENT PROJECT TO CONSTRUCT THE 420T" STREET CORRIDOR IMPROVEMENTS -SANITARY SEWER AND ROADWAY PROJECT AND TO ACQUIRE PROPERTY FOR THE PROJECT; AND SETTING DATE OF PUBLIC HEARING ON APRIL 20, 2009. WHEREAS, under the provisions of Sections 6B.2A and 66.26 of the Iowa Code, a governmental body which proposes to acquire property under power of eminent domain fora public improvement project is required to give notice of intent to commence the project to all property owners whose properties may be acquired in whole or in part for the project; and WHEREAS, the City Council of the City of Iowa City intends to commence a project to construct the 420th Street Corridor Improvement Sanitary Sewer and Roadway Project, which includes the sanitary sewer and roadway improvements on 420th Street, which project is to be known as the 420th Street Corridor Improvement Sanitary Sewer and Roadway Project; and WHEREAS, before the City of Iowa City can proceed with said project, the City Council must: a. Hold a public hearing,. providing the opportunity for public input on the question of proceeding with the public improvement and on the acquisition or condemnation of property interests for the project; and b. Adopt a resolution declaring its intent to proceed with said project and authorizing the acquisition of property interests required for the project by negotiation or condemnation. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT: 1. Documentation showing the proposed location of the 420th Street Corridor Improvement Sanitary Sewer and Roadway Project shall be placed on file in the office of the City Clerk and made available for public viewing. 2. A public hearing on the City's intent to proceed with the 420th Street Corridor Improvement Sanitary Sewer and Roadway Project and to acquire property rights therefore is to be held on the 20`h day of April, 2009, at 7:00 p.m. in the Emma J. Harvat Hall, Civic Center, Iowa City, Iowa, or if said meeting is cancelled, at the next meeting of the City Council thereafter as posted by the City Clerk. 3. The Department of Public Works and City Clerk are hereby authorized and directed to cause notice of the City's intent to proceed with said project and authorize the acquisition of property for said project to be mailed and published as required by law with said Notice of Intent to be in substantially the attached form; said publication to be published in a newspaper published at least once weekly and having a general circulation in the City, not less than four (4) nor more than twenty (20) days before said hearing. Resolution No. 09-68 Page 2 Passed and approved this 10th day of March , 20~_• ATTEST: CITY ERK MA A proved by ~N~' ,u ~~ City Attorney's Office 3'3'~ It was moved by Champion and seconded by O'Donnell the Resolution be adopted, and upon roll call there were: AYES: NAYS: ABSENT: X ___X- x -~ X x -~ Bailey Champion Correia Hayek O'Donnell Wilburn Wright i°weng/res/420thi mprovres.doc 3109 NOTICE OF INTENT TO ACQUIRE PROPERTY RIGHTS WHICH MAY BE NEEDED FOR THE 420`h STREET CORRIDOR IMPROVEMENTS, SANITARY SEWER AND ROADWAY PROJECT TO: Charles and Florence Phillips Two Rivers Bank 4644 Hwy 6 SE 4400 Westown Prky #304 Iowa City, IA 52240 West Des Moines, IA 50266 Prybil Family Investments RAJO LLC c/o Lawrence Prybil c/o Joanne Reis 17 Cherry Ln NE 5821 Woodcreek Ln Iowa City, IA 52240 Middleton, WI 53562 James and Pauline Flannery Nall Motors, Inc. 3111 Balfour PI 11516 Nicholas St Iowa City, IA 52240 Omaha, NE 68154 E and L Prybil General Partnership Eldon Prybil 4890 Hwy 6 SE 4890 Hwy 6 SE Iowa City, IA 52240 Iowa City, IA 52240 Daniel Yeager and Ernest Stoppelmoor Russell Gerdin 2050 Keokuk St 901 Kansas Ave Iowa City, IA 52240 North Liberty, IA 52317 Max and Lavaughn Neppel Terry French 353 Grove St 4809 420th St SE Walcott, IA 52773 Iowa City, IA 52240 Gaylyn Hotz 4733 Hwy 6 SE Iowa City, IA 52240 Chapter 6B of the Iowa Code requires a governmental body which proposes to acquire .property rights under power of eminent domain for a public improvement project to give notice of the project to all agricultural property owners whose properties may be affected and to hold a public hearing. 1. DESCRIPTION OF THE PROJECT. NOTICE IS HEREBY GIVEN to the above-identified agricultural property owners that the City Council of the City of Iowa City will consider funding of the site-specific design f-or the 420`h Street Corridor Improvements, Sanitary Sewer and Roadway Project, making the final selection of the route or site location, or acquiring or condemning property rights, if necessary, required for the project. Said project involves construction of a sanitary trunk sewer from Sioux Avenue to Taft Avenue and construction of a new roadway from Highway 6 to Taft Avenue. 2. PRIVATE PROPERTY RIGHTS MAY BE ACQUIRED BY NEGOTIATION OR CONDEMNATION. 2 If the above-described project is approved by the City Council, the City may need to acquire property rights for the project improvements. Property rights may include a temporary construction easement, a permanent easement, and/or a fee simple parcel (complete ownership). Upon review of the records of the Johnson County- Auditor, it appears that properties or portions of properties owned by the above-identified persons may have to be acquired for the project by the methods described above. The City will attempt to purchase the required property by good faith negotiations. If negotiations are unsuccessful, the City will condemn those property rights which it determines are necessary for the project. The proposed location of the above-described public improvement is shown on documentation which is now on file in the office of the City Clerk and available for public viewing. 3. CITY PROCESS TO DECIDE TO PROCEED WITH THE PROJECT AND TO ACQUIRE PROPERTY RIGHTS; CITY COUNCIL ACTION REQUIRED TO FUND PROJECT. The City has provided funding in its budget for this project, as well as funding to acquire any property rights that may be needed for the project. City staff has analyzed the options for how to proceed with this project and has coordinated project planning with other appropriate agencies. The planning has reached the point where preliminary designs now indicate that certain property rights may need to be acquired. Any public comment will be considered in preparing the final designs, particularly as private property may be affected. In making the decision to fund the site-specific design for the public improvement, to make the final selection of the route or site location, or to acquire or condemn property rights, if necessary, the City Council is required to hold a public hearing, giving persons interested in the proposed project the opportunity to present their views regarding the decision to fund the site-specific designs for the project, make the final selection of the route or site location, or to acquire or condemn, if necessary, property or an interest in property for the project. The public hearing will be held on the 20th day of April, 2009 in the City Council Chambers, City Hall, 410 East Washington Street, Iowa City, Iowa, commencing at 7:00 p.m. or, if cancelled, at the next meeting of the City Council thereafter as posted by the City Clerk. In order to fund the site-specific design for the public improvement, to make the final selection of the route or site location, or to commence the acquisition or condemnation of property rights, if necessary, for the above-described project, City Council will be required to approve the project and authorize acquisition of private property rights for the project by Council resolution. The City Council is scheduled to consider adoption of a resolution authorizing acquisition of property rights for the above-described project following the public hearing. When an appraisal is required, if the project is approved by the City Council, an appraiser will determine the compensation to be paid for easements and/or property acquired in fee simple. The City will offer no less than the appraised value and will attempt to purchase only the needed property by good faith negotiations. If the City is unable to acquire properties needed for the project by negotiation, the City will acquire those property rights by condemnation. CONTACT PERSON 3 If you have any questions concerning the 420`h Street Corridor Improvements, Sanitary Sewer and Roadway Project please contact the following person: Daniel Scott City of Iowa City 410 E. Washington Street Iowa City, IA 52240 (319) 356-5144 5. THIS NOTICE IS FOR INFORMATION ONLY AND IS NOT AN OFFER TO PURCHASE PROPERTY RIGHTS. The City Council of the City of Iowa City, Iowa has not yet determined to undertake the above-described project or to acquire property rights for the project. This Notice does not constitute an offer to purchase property rights. Marian K. Karr City Clerk IVY ~~ 03-10-09 4e 1 Prepared by: Liz Osborne, CD Division, 410 E. Washington St., Iowa City, IA 52240 (319)356-5246 RESOLUTION NO. 09-69 RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO A SUBORDINATION AGREEMENT BETWEEN THE CITY OF IOWA CITY AND MIDWESTONE BANK, IOWA CITY, IOWA FOR PROPERTY LOCATED AT 832 LONGFELLOW COURT, IOWA CITY, IOWA. WHEREAS, the City of Iowa City is the owner and holder of a Mortgage in the amount of $39,800, executed by the owner of the property on June 15, 2004, and recorded on June 24, 2004, in Book 3755, Page 329 through Page 332, in the Johnson County Recorder's Office covering the following described real estate: Lot 17, Longfellow Manor, Iowa City, Iowa, according to the plat thereof recorded in Book 35, Page 274, Plat Records of Johnson County, Iowa WHEREAS, MidWestOne Bank has refinanced a mortgage in the amount of $128,000 to Lawrence Mossman of 832 Longfellow Court and is securing the loan with a mortgage on the improvements to the real estate described above; and WHEREAS, it is necessary that the Mortgage held by the City be subordinated to the loan of MidWestOne Bank, secured by the proposed mortgage in order to induce MidWestOne Bank to make such a loan; and WHEREAS, MidWestOne Bank, has requested that the City execute the attached subordination agreement thereby making the City's lien subordinate to the lien of said mortgage with MidWestOne Bank; and WHEREAS, there is sufficient value in the above-described real estate to secure the City as a second lien. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA that the Mayor is authorized to execute and the City Clerk to attest the subordination agreement between the City of Iowa City and MidWestOne Bank, Iowa City, Iowa. Passed and approved this 10th day of March , 20 09 ATTEST ~. ~ oC Tice Resolution No. 09-69 Page 2 It was moved by Champion and seconded by O'Donnell the Resolution be adopted, and upon roll call there were: AYES: NAYS: ABSENT: x Bailey x Champion x Correia x Hayek g O'Donnell ~_ Wilburn ~_ Wright SUBORDINATION AGREEMENT THIS AGREEMENT is made by and between the City of Iowa City, herein the City, and MidWestOne Bank of Iowa City, Iowa, herein the Financial Institution. WHEREAS, the City is the owner and holder of certain Mortgage which at this time is in the amount of $39,800, and was executed by Greater Iowa City Housing Fellowship, n/k/a The Housing Fellowship (herein the Owner), dated June 15, 2004, recorded June 24, 2004, in Book 3755, Page 329 through Page 332, Johnson County Recorder's Office, covering the following described real property: Lot 17, Longfellow Manor, Iowa City, Iowa, according to the plat thereof recorded in Book 35, Page 274, Plat Records of Johnson County, Iowa. WHEREAS, the Financial Institution proposes to loan the sum of $104,800 on a promissory note to be executed by the Financial Institution and Lawrence Mossman, securing a mortgage covering the real property described above; and WHEREAS, to induce the Financial Institution to make such loan, it is necessary that the Mortgage held by the City be subordinated to the lien of the mortgage proposed to be made by the Financial Institution. NOW, THEREFORE, in consideration of the mutual covenants and promises of the parties hereto, the parties agree as follows: 1. Subordination. The City hereby covenants and agrees with the Financial Institution that the above noted Mortgage held by the City is and shall continue to be subject and subordinate to the lien of the mortgage about to be made by the Financial Institution. 2. Consideration. The City acknowledges receipt from the Financial Institution of One Hundred and Fifty Dollars ($150.00) and other good and valuable consideration for its act of subordination herein. 3. Senior Mortgage. The mortgage in favor of the Financial Institution is hereby acknowledged as a lien superior to the Mortgage of the City. 4. Binding Effect. This agreement shall be binding upon and inure to the benefit of the respective heirs, legal representatives, successors, and assigns of the parties hereto. Dated this !0 ~ day of 1'~1 t~} _, 20~. CITY OF IOWA CITY By Mayor FINANCIAL INSTITUTION By ~ Attest: City Jerk CITY'S ACKNOWLEDGEMENT STATE OF IOWA ). SS: JOHNSON COUNTY ) fh On this _/O day of !1(1at~cN- , 20~, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Re~e-,-R ..b ' eu and Marian K. Karr, to me personally known, and, who, being by me duly sworn, did say at they are the Mayor and City Clerk, respectively, of the City of Iowa City, Iowa; 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 artce) (Resolution) No. off- 6q passed (the Resolution adopted) by the City Council, under Roll Call No. of the City Council on the /d ~` day of Mr9~cct_ , 20~_, and that and Marian K. Karr 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. ~a SONDRAE FORT Commission Number 1597918` ~~_ ~~ ' o My Commi~o Expl~es Notary Public in and for the State of Iowa LENDER'S ACKNOWLEDGEMENT STATE OF IOWA ) ss: JOHNSON COUNTY ) On this ~~0~`'day of , 20~, before me, the undersigned, a Notary Public in ~~ and for the State of Iowa, personally appeared ~ ~l ri ~ ~l~.J~t ~ to me personally known, who being by me duly sworn, didoo say that he/she is the ~ll 0 _ dQ,l~" of ~~(~~,1~Qr(o,}~,~,L, that said instrument was signed on behalf of said corporation by authority of its Board of Directors; and that said ~, acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it and by him/her voluntarily executed. ~`5 m~a~,~___ K LLY B~,Cn _ _ F, © -~ ~ ronk~rss on Number 742423 ` Notary Public in and for the State of Iowa ~ _+` ~ ,~ _~mmission E s r '~ /OWP" R G ~ r, "~ "~~ -~ My Commission expires: O 'vc,.c, '~ 4e 2 Prepared by: Liz Osborne, CD Division, 410 E. Washington St., Iowa City, IA 52240 (319)356-5246 RESOLUTION N0. 09-70 RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO A SUBORDINATION AGREEMENT BETWEEN THE CITY OF IOWA CITY AND MIDWESTONE BANK, IOWA CITY, IOWA FOR PROPERTY LOCATED AT 1552 DICKENSON LANE, IOWA CITY, IOWA. WHEREAS, the City of Iowa City is the owner and holder of a Mortgage in the amount of $18,000, executed by the owner of the property on December 30, 2005, and recorded on March 14, 2006, in Book 3999, Page 742 through Page 748, in the Johnson County Recorder's Office covering the following described real estate: Lot 85 South Pointe Addition, Part 5, Iowa City, Iowa, according to the plat thereof recorded in Book 33, Page 312 Plat Records of~ Johnson County, Iowa WHEREAS, MidWestOne Bank has refinanced a mortgage in the amount of $128,000 to Chad Johnson of 1552 Dickenson Lane and is securing the loan with a mortgage on the improvements to the real estate described above; and WHEREAS, it is necessary that the Mortgage held by the City be subordinated to the loan of MidWestOne Bank, secured by the proposed mortgage in order to induce MidWestOne Bank to make such a loan; and WHEREAS, MidWestOne Bank, has requested that the City execute the attached subordination agreement thereby making the City's lien subordinate to the lien of said mortgage with MidWestOne Bank; and WHEREAS, there is sufficient value in the above-described real estate to secure the City as a second lien. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA that the Mayor is authorized to execute and the City Clerk to attest the subordination agreement between the City of Iowa City and MidWestOne Bank, Iowa City, Iowa. Passed and approved this ~ nth day of march _, 20,~g_ ATTEST ~~a~~5 Tice Resolution No. Page _ 2 09-70 It was moved by Champion and seconded by O'Donnell the Resolution be adopted, and upon roll call there were: AYES: NAYS: ABSENT: ~_ Bailey x Champion x Correia x Hayek g ~ O'Donnell ~_ Wilburn g Wright SUBORDINATION AGREEMENT THIS AGREEMENT is made by and between the City of Iowa City, herein the City, and MidWestOne Bank of Iowa City, Iowa, herein the Financial~lnstitution. WHEREAS, the City is the owner and holder of certain Mortgage which at this time is in the amount of $18,000, and was executed by Greater Iowa City Housing Fellowship, n/k/a The Housing Fellowship (herein the Owner), dated December 30, 2005, recorded March 14, 2006, in Book 3999, Page 742 through Page 748, Johnson County Recorder's Office, covering the following described real property: Lot 85 South Pointe Addition, Part 5, Iowa City, Iowa, according to the plat thereof recorded in Book 33, Page 312 Plat Records of Johnson County, Iowa WHEREAS, the Financial Institution proposes to loan the sum of $128,000 on a promissory note to be executed by the Financial Institution and Chad Johnson,. securing a mortgage covering the real property described above; and WHEREAS, to induce the Financial Institution to make such loan, it is necessary that the Mortgage held by the City be subordinated to the lien of the mortgage proposed to be made by the Financial Institution. NOW, THEREFORE, in consideration of the mutual covenants and promises of the parties hereto, the parties agree as follows: 1. Subordination. The City hereby covenants and agrees with the Financial Institution that the above noted Mortgage held by the City is and shall .continue to be subject and subordinate to the lien of the mortgage about to be made by the Financial Institution. 2. Consideration. The City acknowledges receipt from the Financial Institution of One Hundred and Fifty Dollars ($150.00) and other good and valuable consideration for its act of subordination herein. 3. Senior Mortgage. The mortgage in favor of the Financial Institution is hereby acknowledged as a lien superior to the Mortgage of the City. 4. Binding Effect. This agreement shall be binding upon and inure to the benefit of the respective heirs, legal representatives, successors, and assigns of the parties hereto. -f~.. Dated this 10 day of ~RcFt- , 20~. CITY OF IOWA CITY By Mayor FINANCIAL INSTITUTION By Attest: ity erk CITY'S ACKNOWLEDGEMENT STATE OF IOWA ) SS: JOHNSON COUNTY ) On this 1~3 day of ~~,,2c-+-[- , 20~_, before me, the undersigned, a Notary Public in and for the State of Iowa, personalty appeared ,e.aen -~ e y and Marian K. Karr, to me personally known, and, who, being by me duly sworn, did say tha ey are the Mayor and City Clerk, respectively, of the City of Iowa City,. Iowa; 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 {9fdir~ee}- (Resolution) No. D9- 7~ passed (the Resolution adopted) by the City Council, under Roll Call No. '~ ----,of the City Council on the /1~ '~- day of MA2t~! , 20~, and that a r-i ~ ..D . ~ :1 a ~, and Marian K. Karr acknowledged the execution of the instrumet t to be their voluntary ct and deed and the voluntary act and deed of the corporation, by it voluntarily executed. SONDRAEFORT ~~~~ ~~ z° ~ Commission Number 159791 • My Commission Expires Notary Public in and for the State of Iowa • ow g 0 LENDER'S ACKNOWLEDGEMENT STATE OF IOWA ) ss: JOHNSON COUNTY ) On this ~~day of , 20~ before me, the undersigned, a Notary Public in and for the State of Iowa, personal appeared ~ ~ ~ ~ to me personally known, who being by me duly sworn, did say that he/she is the ~~re of 1~,~Dl~Athat said instrument was signed on behalf of said corporation by authority of its Board of Directors; and that said acknowledged the execution of said instrument to be the voluntary act and deed of sai corporation, by it and by him/her voluntarily executed. _ ___,_ K~3_LY ~l;at.ra r ® ' ~ v r Comm :>~:,~ r~~~m~e~ 7a2~2~ ~' Notary Public i nd for the State of Iowa 'f ~ ~V '~'lYT7 "pi5~l4 ; !(@S _ __~ ~x::,,. - ..~ _; My Commission expires: y ~~ ~~ 03-10-09 6c Prepared by: Sarah Walz, Associate Planner 410 E. Washington St., Iowa City, IA 52240; 319-356-5239 (SU608- 00011) ,/ RESOLUTION NO. RESOLUTON APPROVING THE PRELIMINARY PLAT OF HICKORY POINTF_,!'iOWA CITY, IOWA. ;' WHEREAS, the subdivider, Three Bulls LLC, and the owner, Plum Grove A¢r'es, Inc. filed with the City Clerk, an application for approval of the preliminary plat of Hickory,.F~ointe, Iowa City, Iowa; and WHEREAS, the Departmert•, of Planning and Community Development and the Public Works Department examined the prelrx~inary plat and recommended approval; and WHEREAS, the Planning and Zont~ Commission examined the preliminary plat and, after due deliberation, recommended acceptancb,_and approval of the plat; and WHEREAS, the preliminary plat conforms the City of Iowa City, Iowa. NOW, THEREFORE, BE IT RESOLVED BY CITY IOWA THAT CITY COUNCIL OF THE CITY OF IOWA '~•, 1. The preliminary plat of Hickory Pointe, Iowa City; Fgwa 2. The Mayor and City Clerk of the;•City of Iowa City, lov~ to certify this resolution, whicfr'shall be affixed to the law. Passed and approved this day of MAYOR ATTEST It was moved by adopted, and upon roll call there were: AYES: all of the requirements of the City Ordinances of is hereby approved. are hereby authorized and directed flat after passage and approval by 20 Ap roved by City Attorney's Office g~~ ~ and seconded by NAYS: ABSENT: the Resolution be Bailey Champion Correia Hayak O'Donnell Wilburn Wright s\pcd\hickory Pointe preliminarv plat -resolution (5).doc C Prepared by: Sarah Walz, Associate Planner 410 E. Washington St., Iowa City, IA 52240; 319-356-5239 (SU608- 00011) RESOLUTION NO. 09-71 RESOLUTION APPROVING THE PRELIMINARY PLAT OF HICKORY POINTE, IOWA CITY, IOWA. WHEREAS, the subdivider and owner, Casey Boyd LLC, filed with the City Clerk, an application for approval of the preliminary plat of Hickory Pointe, Iowa City, Iowa; and WHEREAS, the Department of Planning and Community Development and the Public Works Department examined the preliminary plat and recommended approval; and WHEREAS, the Planning and Zoning Commission examined the preliminary plat and, after due deliberation, recommended acceptance and approval of the plat; and WHEREAS, the preliminary plat conforms with all of the requirements of the City Ordinances of the City of Iowa City, Iowa. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA THAT: 1. The preliminary plat of Hickory Pointe, Iowa City, Iowa, is hereby approved. 2. The Mayor and City Clerk of the City of Iowa City, Iowa are hereby authorized and directed to certify this resolution, which shall be affixed to the plat after passage and approval by law. Passed and approved this 10th day of ch 0~• M Ap roved by ATTEST: x ~ ~%~~~ CI LERK Clty Attorney's Office 31~~~d~ It was moved by _ wiiburn and seconded by ua3,Pk the Resolution be adopted, and upon roll call there were: AYES: NAYS: ABSENT: x Bailey x Champion x Correia x Hayak x O'Donnell x Wilburn x Wright s\pcd\hickory Pointe preliminary plat -resolution (6).doc k Prepared by: Susan Dulek, Asst. City Atty., 410 E. Washington St., Iowa City, IA 319-356-5030 RESOLUTION NO. RESOLUTION AUTHORIZING THE MAYOR TO SIGN AND THE CITY CLERK TO ATTEST A GROUND LEASE WITH THE JOINT EMERGENCY COMMUNICATIONS SERVICES ASSOCIATION OF JOHNSON COUNTY FOR PLACEMENT OF A MONOPOLE TELECOMMUNICATIONS TOWER AT FIRE STATION 3. WHEREAS, the City of Iowa C' y, Johnson County, the City of Cora ille, the City of North Liberty, and the Johnson County Emerg cy Management Commission es a~blished the Joint Emergency Communications Services Associ ion of Johnson County ("JECS ") pursuant to Chapter 28E of the Iowa Code for the purpose of c ating a separate legal entit to conduct and manage all facets of joint emergency response; nd WHEREAS, JECSA needs to place co munication towers~fhroughout Johnson County and has proposed placing a monopole and accom Hying commun ation facilities at Fire Station 3 in Iowa City; and ,." WHEREAS, it is in the interest of the City of to a City o enter into along-term ground lease with JECSA for placement of telecommunications e~iip ent. NOW, THEREFORE, BE IT RESOLVED BY THE'~TY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT: i ''' ; The Mayor is hereby authorized to sign a d the City Clerk to attest one (1) original of the Communications Tower Ground Lease and ccess Agreerr~ent, a copy of which is attached. Passed and approved this yf'ay of , 2009. MAYOR ATTEST: CITY CLERK Approved by ~ a~a~ ~~~ City Attorney's Office COMMUNICATIONS TOWER GROUND LEASE AND ACCESS AGREEMENT ' THIS COMMUNICATIONS TOWER GROUND LEASE AND ACCESS AGREEMENT (this "Lease") is made and entered into this day of , 2009, between the City of Iowa City (the "Landlord"), and Joint Emergency Communications Services Association of Johnson County ("Tenant"). Leased PropertYand Premises. a. Landlord is the owner of that certain real property located at 2001 Lower Muscatine Road, Iowa City, Iowa, and legally described on Exhibit "A", attached hereto and incorporated by reference (the "Property"). Subject to the following terms and conditions, Landlord hereby leases to Tenant that portion of the Property described on Exhibit "B", attached hereto and incorporated by referenc (the "Premises"). A survey of the Premises is attached hereto as Exhibit "C" (the "Survey") a a minor site plan depicting the Premises is attached hereto as Exhibit "D" (the "Site Plan"). the event of a discrepancy between th Site Plan and the legal description on Exhibit B or the urvey, the Survey shall control. b. If access tot Premises does not currently constructed over the p lic road right of way ad Tenant's sole discretion, t grant Tenant an easem that Tenant will have legal a cess to the Premises that if such an easement is nted, Tenants 11 Tenant's expense. c. The Premises is leased for th~ telecommunications facility, including monopole tower (the "Tower") approximately 12 feet in width equipment storage facility shall st of the Tower, generator, and equ and "G" respectively. If Tenant operation of its telecommunicat additional equipment storage fac consent before placing said strucJ withheld. All of Tenant's struct~ir e ist, Landlord agrees to allow access to be cent to the Premises, and if necessary in it for ingress and egress to the Premises, so ~m Lower Muscatine Road. Landlord agrees have the right to record such easement at xpre purpose of constructing and operating thereon a ut not limited to, up to a 180 foot self-supported e tor, and an equipment storage facility measuring e 'n length and 11 feet in height. The Tower and ly co ply with the Site Plan. Representative depictions storage cility are attached hereto as Exhibit "E", "F" a gee and 20 t mes additi al structures are reasonably necessary for facilities on t Premises, including without limitation ies and fences, Ten t shall obtain Landlord's prior written es on the Premises, w ~ch consent shall not be unreasonably on the Premises shall be eferred to herein collectively as the "Telecommunications Faciliti~." d. The Tower shall h e sufficient space and structural capacity for the co-location of up to five (5) telecommunicatio facilities. ,~~ e. The Tower sha have a wind speed rating of 150 miles per hour with 0" radial ice, and 40 miles per hour with 1" radial ice. 2. Term of Lease. The initial term of this Lease shall be for a period of five (5) years commencing on the date of this Lease (the "Commencement Date"), and terminating at Midnight on the day of the fifth annual anniversary of the Commencement Date. Provided Tenant is then in full compliance with the terms of this Lease, Landlord grants Tenant the right to renew this Lease for nine (9) additional consecutive terms of five (5) years each (each a "Renewal Term"). The Lease shall renew automatically at the end of each Lease term unless Tenant provides written notice to Landlord not less than ninety (90) days prior to the expiration of the then-current Lease term. The initial term and all renewal terms are referred to herein as the "Term". 3. Permitted Use. The Premises may be used by Tenant for the transmission and reception of radio or other communication signals in any and all frequencies and for the construction, maintenance, repair or replacement of the Telecommunications Facilities as set forth in Section 1, above, and related activities (Tenant's "Intended Use"). Tenant shall obtain, at Tenant's expense, all governmental approvals including any city, county, state, federal, administrative agency (including the Federal Aviation Administration) or other governmental licenses, permits, and approvals necessary for the construction and operation of the Telecommunications Facilities (collectively, "Governmental Approvals"). Tenant may (prior to or after the Commencement Date) obtain a title report, perform environmental and other surveys, and other engineering procedures on, under and over the Premises, necessary to determine that Tenant's use of the Premises will be compatible with Tenant's engineering specifications, system, design, operations and Governmental Approvals. Landlord agrees to rea onably cooperate with Tenant (at no cost to Landlord), where reasonably required, to perform such procedures or obtain Governmental Approvals. '~ 4. Rent. a. Tenant shall pay Lan ord, as base rent, one dol ar ($1.00) per year ("Base Rent"). Base Rent shall be payable yearly in dvance beginning on t e Commencement Date and thereafter on each annual anniversary of the ommencement Date Base Rent shall be paid to Landlord at Landlord's address specified in Se ion 12 below. b. In addition to the Base Rent, Landlord a percentage of all revenues pant facilities owned by persons or entities o er ("Supplemental Rent"). The exact perce to sublease as provided in Section 15 belo monthly two months in arrears on the first (1 at Landlord's address specified in Section 12 to "month" shall be deemed to refer to a caleq the enure Term of this Lease Tenant shall also pay actual y receives from any other telecommunication than enant that are co-located on Tenant's Tower ge s all be determined when Landlord approves a S plemental Rent shall be payable to Landlord t day of each month and shall be paid to Landlord low. For the purpose of this Lease, all references Base Rent and Supplemental be r~,ferred to hereinafter collectively as "Rent". d. If this Lease is terminated at a ime other than n the last day of a month, Supplemental Rent shall be prorated as of the date o termination fora reason other than a default by Tenant, and all prepaid Rent shall be refunde to Tenant. ~ e. If Tenant elects to renew t is Lease as provided in Sec ~on 2, above, the Base Rent during any such Renewal Term shall b as provided in Subsection a ove. Supplemental Rent during each Renewal Term shall be as ovided in Subsection b above. f. If Tenant shall remai in possession of the Premises at the ex iration of this Lease or any Renewal Term without a w ~ ten agreement between Landlord and Te nt, such tenancy shall be deemed amonth-to-month nancy under the same terms and conditions f this Lease. 5. Interference. Landlord sh~l1 not change its use, nor permit its tenants, licensee, employees, invitees or agents to change any portion of the Property in any way which unreasonably interferes with the operations of Tenant on the Premises. Such interference shall be deemed a material breach by Landlord, who shall, upon written notice from Tenant, be responsible for terminating said interference. In the event any such interference does not cease promptly upon Landlord's receipt of Tenant's written notice, Landlord acknowledges that a continuing interference may cause irreparable injury and, therefore, Tenant shall have the right, in addition to any other rights that it may have at law or in equity, to bring a court action to enjoin such interference or to terminate this Lease immediately upon written notice to Landlord. If Tenant elects to terminate this Lease, Tenant shall have no further obligations to Landlord pursuant to this Lease, except those obligations imposed under Sections 11 and 14 below, and Tenant shall be entitled to the reimbursement of any Rent prepaid by Tenant. Nothing in this section shall prevent Landlord from continuing fire station operations on the Property so long as those operations do not unreasonably interfere with Tenant's Intended Use of the Premises. Where technically feasible, as determined by Landlord in its sole discretion, Landlord may place its equipment on the Tower for any use that does not unreasonably interfere with Tenant's Intended Use of the Premises and shall not pay any fee to Tenant for said use. 6. Improvements Utilities Access. a. Tenant shall have the right, at its expense, to install and maintain on the Premises the Telecommunication§ Facilities. Tenant shall have the right to replace or upgrade the Telecommunications ailities at any time during the Term of this Lease with the Landlord's prior written consent, hich consent shall not be unreason bly withheld. Tenant shall cause all construction to occur lie -free and in compliance with all pplicable laws and ordinances. The Telecommunications Facil ies shall remain the exclusive roperty of Tenant. Tenant shall have the right to remove the Tele ommunications Facilities u on termination of this Lease. Landlord grants Tenant the right to cle all trees, undergrowth, other obstructions and to trim, cut and keep trimmed all tree limbs ich may interfere w' h or fall upon the Telecommunications Facilities or the Premises. b. Tenant, at its expense, may u e any and all ppropriate means of restricting access to the Telecommunications Facilities, includi ,but not mited to, the construction and/or alteration of a fence. c. Tenant shall pay any utilities charge d e have the right to install utilities, at Tenant's pE and across the Premises, and to improve the re e but not limited to, the installation of emerge cy pc improvement does not unreasonably interfe with In the event that utilities necessary to se the T be located within the Premises, Landlord grew to to Tenant's use of the Premises. Tenant shall nse, including without limitation over, under, nt utilities, if any, on the Premises (including, generators), so long as such installation or L dlord's use of the Property as a fire station. ;lec mmunications Facilities or Tenant cannot coop ate with Tenant and to act reasonably in allowing the location of utilities on t Property or of er real property owned by Landlord without requiring additional compens ion from Tenant. L ndlord shall, upon Tenant's request, execute a separate written easement t Tenant or any utility c mpany providing utility services to the Premises, in a form which may b filed of record evidencin this right. d. Tenant shall have 24-hour,-a-day, 7-days-a-week access t~the Premises during the Term of this Lease. / e. Landlord may require~he Telecommunications Facilities to bl~ screened or camouflaged at its discretion and at Tenan s expense. \ 7. Termination. Except as o~ierwise provided herein, this Lease may be terminated, without any penalty or further liability as fo ows: ` a. By Landlord upon thirty (30) days' written notice to Tenant for failure to cure a material default for payment of amounts due under this Lease. b. Upon thirty (30) days' written notice by either party to the other party if the other party defaults and fails to cure such default within that 30-day period, or such longer period as may be required to diligently complete a cure commenced within that thirty-day period. c. Immediately upon written notice to Landlord if Tenant receives any unacceptable results, in Tenant's sole and uncontrolled discretion, of any title report, Governmental Approvals, or environmental survey prior to Tenant's installation of the Telecommunications Facilities on the Premises. d. Immediately upon written notice by Tenant, if Tenant it is unable to obtain, maintain, or otherwise forfeits or cancels any license, permit or Governmental Approval necessary to the construction and/or operation of the Telecommunications Facilities. e. Upon thirty (30) days' written notice by Tenant if the Premises are or become unacceptable, in Tenant's reasonable discretion, under Tenant's design or engineering specifications for its Telecommunications Facilities or the communications system to which the Telecommunications Facilities belong. f. Imme iately upon written notice by Tenant if e Premises or the Telecommunications Facilities are d troyed or damaged so as in Tenant's asonable judgment to substantially and adversely affect e effective use of the Telecommunic tions Facilities. In such event, all rights and obligations of e parties shall cease as of the date of the damage or destruction, and Tenant shall be entitled to th reimbursement of any Rent prep id by Tenant. If Tenant elects to continue this Lease, then all Re shall abate until the Premise and/or Telecommunications Facilities are restored to the condition fisting immediately prior to such damage or destruction. g. At the time title tot Property transfers of all or a portion of the Pro erty sufficient in unsuitable for Tenant's Intende Use. Landlord own separate awards with respect o such takin . with the power of eminent domain ~n the face of taking by condemnation. t a condemning authority, pursuant to a taking enant's determination to render the Premises nd Tenant shall each be entitled to pursue their Sale of all or part of the Property to a purchaser the exercise of said power, shall be treated as a h. Immediately upon written notic y either party in the event either party determines the existence of a violation of any environ tal law or a condition that requires remediation under any environmental laws that existed as f a d/or prior to the Commencement Date or which may be the basis for assertion of any third p rty c ims. If Tenant elects to continue this Lease, Tenant shall be responsible for taking a action necessary to investigate and remediate said contamination and shall indemnify and hold rmless Landlord from and against any and all expenses, claims, or losses arisin from or in onnection with any activities of Tenant, its officers, agents, employees, or c ntractors on the remises, including without limitation, any attorney's fees or court costs occa Toned by such clai i. Immediately upon writt n notice by Tenant in th event Tenant determines that Tenant's Intended Use of the Premises ' actually or constructively rohibited through no fault of Tenant. In such an event, Tenant shal be entitled to a refund from andlord of Rent paid in advance to Landlord which sums were p id prior to the date upon which enant gave notice to Landlord of its intent to terminate this Le se pursuant to this section. j. Immediately upon written notice by Tenant in the event Tenant determines that Tenant does not have acceptable nd legally enforceable means of ingress and egress to the Premises. 8. Taxes. Tenant shall pay any personal property taxes assessed on, or any portion of such taxes attributable to, the Telecom nications Facilities. Landlord shall pay when due all real property taxes and all other fees and asses ents attributable to the Property. In the event that Landlord fails to pay said real property taxes, then Tenant shall have the right, but not the obligation, to pay said taxes and deduct them from Rent due under this Lease. 4 9. Representations and Warranties. In order to induce Tenant to enter into this Lease, Landlord, knowing that Tenant is relying hereon, covenants, represents and warrants as follows: a. Landlord warrants that there are no other leases affecting the Property and covenants that it shall not enter any contract affecting the Premises that may interfere in any manner whatsoever with Tenant's Intended Use until this Lease expires or is terminated by Tenant. b. There is no pending or, to the Landlord's knowledge, threatened litigation, arbitration or governmental proceeding or investigation (whether or not purportedly on behalf of the Landlord) against the Landlord or affecting the Property or any part thereof, which is, or, if adversely resolved, wou~d or might (i) adversely affect the ability of the Landlord to perform its obligations hereunder, or a der any document delivered pursuant hereto, (ii) create a lien on the Premises or any part thereof, r (iii) otherwise materially or adversely affect the Premises or other use, operation, condition r occupancy thereof. c. Tenant's Intende~se is not prohibited by~any encumbrances, ordinances, covenants, restrictions, reciprocal ease ents, servitudes, subdivi ion rules, or regulations. d. The execution, delive and performance o this Lease will not conflict with, result in the breach of any provision of, or co stitute a default u der any agreement or instrument to which the Landlord is a party and which wou affect Tenan s use of the Property. 10. Insurance and Subro atg ion. a. The Tenant shall carry the folio ing types and minimum coverage of insurance: (1) Worker's Compensation insurance as requi by Chapter 85 of the Code of Iowa (if applicable); (2) Comprehensive General Liability with spect to the Tenant's use and occupancy of the Premises with a limit of not less than $5,0 0 for bodily injury liability for each occurrence; (3) Automobile Liability Insurance on 11 o ned, non-owned, hired or leased automotive equipment in conjunction with operatio in a unts of not less than $1,000,000 for bodily injury liability and $1,000,000 for prope y damage iability. Tenant shall name the City of Iowa City as additional insured on its Compr hensive Gen ral Liability insurance policy. As evidence to the above, the Tenant shall submit o the Landlor certificates of insurance upon request by Landlord. Tenant may satisfy this re uirement by obtai ing an appropriate endorsement to any master policy of liability insurance T pant may maintain. b. Each party shall be respo able for insuring its own property in relation to this Lease. Tenant recognizes that Landlord y be self-insured. \\~ 11. Mutual Indemnity. Tenant agrees indemnify, defend and hold La lord harmless from claims, liabilities, causes of action, costs or ex enses, including without limitation ttorney fees and expenses arising from the installation, use, main enance, repair or removal of the Telec munications Facilities, except for claims arising from the n gligence or intentional acts of Landlord, ~ts employees, agents, invitees, independent contractors or o er tenants. Landlord agrees to indemnify, de nd and hold Tenant harmless from claims, liabilities, cau es of action, costs or expenses, including without limitation attorney fees and expenses arising from Landlord's or Landlord's agents', tenants' and invitees' use of the Property by Landlord's other tenants, except for such claims arising from the negligence or intentional acts of Tenant, its employees, agents or independent contractors. Landlord's and Tenant's duties under this paragraph shall survive termination of this Lease. 12. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, or sent by overnight carrier to the following addresses: If to Landlord: The City of Iowa City Attn: City Clerk 410 E. Washington Street Iowa City, IA 52240 Copy to: City Attorney 410 E. Washington Street Iowa City, IA 52240 If to Tenant: Joint Emergency Communications Services Association of Johnson County Attn: Mike Sullivan Copy to: Jeffery A. Stone, Esq. Simmons Perrine Moyer Bergman PLC 115 - 3`d Street SE, Suite 1200 Cedar Rapids, IA 52401 1 The addresses for the pure es of this section may be hanged by giving notice of such change in the manner provided herein for th giving of notice. Unless nd until such written notice is received, the last address stated herein shall be de ed to continue in effect for all purposes. 13. uiet Eno ment Title and Aui1 orit Landlord ovenants and warrants to Tenant that (i) Landlord has full right, power and authority to ecute this Le se; (ii) it has good and unencumbered title to the Premises free and clear of any liens or rtgages; a~ not violate any laws, ordinances, covenant or the p binding on Landlord. Landlord covenants th t at all enjoyment of the Premises or any part thereo shall beyond any applicable grace or cure period. In th clear of any liens and encumbrances, Tenant shall or encumbrance and deduct the full amount paid b of Rent. 14. Environmental Laws. (iii) execution and performance of this Lease will visions of any mortgage, lease, or other agreement Imes during the Term of this Lease, Tenant's quiet not be disturbed as long as Tenant is not in default event Landlord fails to keep the Premises free and re the right but not the obligation to satisfy such lien 'enant on Landlord's behalf from future installments a. Landlord represents and warra is that neithe Landlord nor, to Landlord's knowledge, any third party has caused or permit ed any Hazardo s Substances (as defined below) to be located on the Property, and, to La dlord's knowledge there are no Hazardous Substances, abandoned wells, solid waste dispos sites, underground st rage tanks, or burial sites located in, on, or about the Property, includi g without limitation th~improvements thereon (except de minimis amounts of Hazardous ubstances which have b n handled and disposed of in accordance with applicable law .The term "Hazardous Sub nces" shall mean any waste, substance, constituent or materi identified as hazardous, radioac ~ve, dangerous or toxic by any office, agency, department, co mission, board, bureau or instrumentality of the United States of America, the State of Iowa or the locality in which the Property is located having or exercising jurisdiction over such avast ,substance, or material including, without limitation, (i) those substances included within he definitions of "Hazardous Substances", "Hazardous Materials", "Regulated Substances", "Toxic Substances", or "Solid Waste" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), 42 USC Sections 9601 et seq., the Resource Conservation and Recovery Act of 1976, as amended ("RCRA"), 42 USC Sections 6801 et seq., and the Hazardous Materials Transportation Act, 49 USC Sections 1801 et seq., and in the regulations promulgated pursuant to said laws; (ii) those 6 substances listed in the United States Department of Transportation Table (49 CFR 172.101, as amended) or by the Environmental Protection Agency (or any successor agency) as "Hazardous Substances" (40 CFR Part 302, as amended); (iii) those substances regulated by Iowa Code Chapter 455B or any other applicable Iowa statute or regulation (iv) any material, waste or substance which is (a) petroleum, (b) asbestos, (c) polychlorinated biphenyls, (d) designated as a "Hazardous Substance" pursuant to Section 311 of the Clean Water Act, as amended, 33 USC 1251 et seq., (33 USC 1321) or listed pursuant to Section 307 of the Clean Water Act (33 USC 1317), (e) Flammable Explosive, or (f) Radioactive materials; and (g) such other substances, materials and waste which are or become regulated under applicable local, state or federal law, or the United States of America government, or which are classified as hazardous or toxic under federal, state or local laws and regulations. Landlord warrants that the Property is not subject to any local, state, or federal judicial or administrative action, investigation or order, as the case may be, regarding wells, solid waste disposal sites, Hazardous Substances, or underground storage tanks. b. Landlord agrees t to, and not to permit an third party, to use, generate, store, or dispose of any Hazardous S bstances on, under, about, r within the Property in violation of any law or regulation. c. Tenant agrees not to, and of to permit any thir party, to use, generate, store, or dispose of any Hazardous Substances on, a er, about, or wit n the Premises in violation of any law or regulation. d. Landlord shall be responsible f ,and sha promptly conduct any investigation and remediation as required by any law or com on law of all spills or other releases of Hazardous Substances, not caused by Tenant, that have o curre or which may occur on the Property. e. Tenant agrees to defend, indemnify and 1 all claims, causes of action, demands and liabili expenses, assessments, penalties, fines, losses, j Landlord may suffer due to the existence or Premises or the migration of any Hazardous environment arising solely from Tenant's activ' i Landlord harmless from and against any and eluding, but not limited to, damages, costs, dg nts and attorney's fees and expenses that iscov of any Hazardous Substance on the bstance o other properties or release into the s on the P mises. f. In the event Tenant determines the e stence of a violat n of any environmental law or a condition that requires remediation under a environmental law that existed as of and/or prior to the Commencement Date or which ma be the basis for asserts n of any third party claims, Tenant shall provide written notice of s d violation to Landlord. xcept if Tenant elects to continue this lease as provided in Sects 7h above, Landlord agrees defend, indemnify and hold Tenant harmless from and against y and all claims, causes of actin ,demands and liability including, but not limited to, damag s, costs, expenses, assessments, p alties, fines, losses, judgments and attorney's fees and xpenses that Tenant may suffer due to the existence or discovery of any Hazardous Subs nee on the Property or the migration f any Hazardous Substance to other properties or eleased into the environment, that relate to or arise from Landlord's activities during thi Lease and from all activities on the Property prior to the commencement of this Lease. g. The indemnifications in this section specifically include without limitation costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal, or restoration work required by any governmental authority. h. The indemnifications in this Section shall survive the termination of this Lease. 7 15. Assignment and Subleasing. a. Tenant may not assign this Lease to any person or entity without the written consent of Landlord. Upon such assignment, Tenant shall be relieved of all liabilities and obligations hereunder and Landlord shall look solely to the assignee for performance under this Lease and all obligations hereunder. Tenant may not sublease the Premises without the written consent of Landlord. Tenant's assignee or sublessee shall be entitled to modify the Telecommunications Facilities and to erect additional improvements on the Premises as reasonably necessary for the operation and maintenance of the communications equipment to be installed on the Premises by such assignees or sublessees with Landlord's prior written consent, which consent shall not be unreasonably withheld. Tenant's assignees and sublessees shall be entitled to all rights of ingress and egress to the Premises and the right to install utilities on the Premises as if said assignee or sublessee were the Tenant under this Lease. b. Notwithstan ' g Section 15(a), Tenant may, with rior written consent of Landlord, mortgage or grant a s unity interest in this Lease and the elecommunications Facilities, and may assign this Lease a d the Telecommunications Facilitie to any mortgagees or holders of security interests, includin their successors or assigns, (her inafter collectively referred to as "Mortgagees"), provided suc Mortgagees agree to be bound y the terms and provisions of this Lease. In such event, Landlord shall execute such conse t to leasehold financing as may reasonably be required by M gagees. Landlord agree to notify Tenant and Tenant's Mortgagees simultaneously of any of cure any default as Tenant or to re c Premises. All such notices to Mortgag Tenant upon entering into a financing notice shall not diminish Landlord's Mortgagee to cure any default and to re Premises. by Tenant and to give Mortgagees the same right to any property of enant or Mortgagee located on the shall be sent to ortgagee at the address specified by Bement. Failure by Landlord to give Mortgagee such is against Te ant, but shall preserve all rights of ve~ny propert of Tenant or Mortgagee located on the 16. Successors and Assigns. This Lease shall run with to the benefit of the parties, their respective successors, ~ 17. Miscellaneous. a. The substantially prevailing party in any its reasonable attorneys' fees and expenses and co b. Each party agrees to furnish to the truthful estoppel information as the other may ~erty, and shall be binding upon and inure representatives, and assigns. isins? hereunder shall be entitled to t costs, in uding appeals. within thin (30) days after request, such nably request. c. This Lease constitutes the entire a reement and understa ing of the parties, and supersedes all offers, negotiations and of r agreements. There a no representations or understandings of any kind not set forth rein. Any amendments to is Lease must be in writing and executed by both parties. d. If either party is represented by real estate broker in this transaction; at party shall be fully responsible for any fee due suc roker, and shall hold the other party harmless from any claims for commission by such bro e. Each party agrees to cooperate with the other in executing any documents necessary to protect its rights in or use o~f the Premises, including, but not limited to, a memorandum of this Lease in recordable form. If such memorandum is executed, Landlord agrees that Tenant shall have the right to record such memorandum at Tenant's expense. f. This Lease shall be construed in accordance with the laws of Iowa. g. - If any term of this Lease is found to be void or invalid, such invalidity shall not. affect the reaming terms of this Lease, which shall co tinue in full force and effect. The parties intend that~,~he provisions of this Lease be enforced o the fullest extent permitted by applicable law. Accordjngly, the parties shall agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to ake them enforceable. h. Thep sons who have executed th's Lease represent and warrant that they are duly authorized to ex ute this Lease in their repr sentative capacity as indicated. i. The submissi n of this document r examination does not constitute an offer to lease or a reservation of or opts n for the Premis s and shall become effective only upon execution by both Tenant and Landlor . j. This Lease may be ea deemed an original, but all of k. Upon termination or portions of the Telecommuni the Premises to a reasonable c y number of counterpart copies, each of which shall be ier shall constitute a single instrument. of this Lease, Tenant must remove all above-ground lities and any personal property of Tenant and restore [THE REMAINDER OF THIS PAGE I,fi INTENTIONALLY LEFT BLANK. SIGNATURE PAGE TO MEDIATELY LLOW.] 9 ~8 9 Prepared by: Susan Dulek, Asst. City Atty., 410 E. Washington St., Iowa City, IA 319-356-5030 RESOLUTION NO. og-72 RESOLUTION AUTHORIZING THE MAYOR TO SIGN AND THE CITY CLERK TO ATTEST A GROUND LEASE WITH THE JOINT EMERGENCY COMMUNICATIONS SERVICES ASSOCIATION OF JOHNSON COUNTY FOR PLACEMENT OF A MONOPOLE TELECOMMUNICATIONS TOWER AT FIRE STATION 3. WHEREAS, the City of Iowa City, Johnson County, the City of Coralville, the City of North Liberty, and the Johnson County Emergency Management Commission established the Joint Emergency Communications Services Association of Johnson County ("JECSA") pursuant to Chapter 28E of the Iowa Code for the purpose of creating a separate legal entity to conduct and manage all facets of joint emergency response; and WHEREAS, JECSA needs to place communication towers throughout Johnson County and has proposed placing a monopole and accompanying communication facilities at Fire Station 3 in Iowa City; and WHEREAS, it is in the interest of the City of Iowa City to enter into along-term ground lease with JECSA for placement of telecommunications equipment. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT: The Mayor is hereby authorized to sign and the City Clerk to attest one (1) original of the Communications Tower Ground Lease and Access Agreement, a copy of which is attached. Passed and approved this 10th day of March , 2009. Approved by ~~ aya~ _oi City Attorney's Office Resolution No. Page 2 09-72 It was moved by Hayek and seconded by O ~ Donne 11 the Resolution be adopted, and upon roll call there were: AYES: ~_ x x x x x x NAYS: ABSENT: Bailey Champion Correia Hayek O'Donnell Wilburn Wright wpdata/glossary/resol uGon-ic.doc COMMUNICATIONS TOWER GROUND LEASE AND ACCESS AGREEMENT THIS COMMUNICATIONS TOWER GROUND LEASE AND ACCESS AGREEMENT (this "Lease") is made and entered into this ~'~ day of }~fd~ r - , 2009, between the City of Iowa City (the "Landlord"), and Joint Emergency Communications ervices Association of Johnson County ("Tenant"). 1. Leased Property and Premises. a. Landlord is the owner of that certain real property located at 2001 Lower Muscatine Road, Iowa City, Iowa, and legally described on Exhibit "A", attached hereto and incorporated by reference (the "Property"). Subject to the following terms and conditions, Landlord hereby leases to Tenant that portion of the Property described on Exhibit "B", attached hereto and incorporated by reference (the "Premises"). A survey of the Premises is attached hereto as Exhibit "C" (the "Survey") and a minor site plan depicting the Premises is attached hereto as Exhibit "D" (the "Site Plan"). In the event of a discrepancy between the Site Plan and the legal description on Exhibit B or the Survey, the Survey shall. control. b. If access to the Premises does not currently exist, Landlord agrees to allow access to be constructed over the public road right of way adjacent to the Premises, and if necessary in Tenant's sole discretion, to grant Tenant an easement for ingress and egress to the Premises, so that Tenant will have legal access to the Premises from Lower Muscatine Road. Landlord agrees that if such an easement is granted, Tenant shall have the right to record such easement at Tenant's expense. c. The Premises is leased for the express purpose of constructing and operating'thereon a telecommunications facility, including but not limited to, up to a 180 foot self-supported monopole tower (the "Tower"), a generator, and an equipment storage facility measuring approximately 12 feet in width and 20 feet in length and 11 feet in heighht. The Tower and equipment storage facility shall substantially comply with the Site Plan. Representative depictions of the Tower, generator, and equipment storage facility are attached hereto as Exhibits "E", "F" and "G" respectively. If Tenant determines additional structures are reasonably necessary for operation of its telecommunications facilities on the Premises, including without limitation additional equipment storage facilities and fences, Tenant shall obtain Landlord's prior written consent before placing said structures on the Premises, which consent shall not be unreasonably withheld. All of Tenant's structures on the Premises shall be referred to herein collectively as the "Telecommunications Facilities." d. The Tower shall have sufficient space and structural capacity for the co-location of up to five (5) telecommunication facilities. e. The Tower shall have a wind speed rating of 150 miles per hour with 0" radial ice, and 40 miles per hour with 1"radial ice. 2. Term of Lease. The initial term of this Lease shall be for a period of five (S) years commencing on the date of this Lease (the "Commencement Date"), and terminating at Midnight on the day of the fifth annual anniversary of the Commencement Date. Provided Tenant is then in full compliance with the terms of this Lease, Landlord grants Tenant the right to renew this Lease for nine (9) additional consecutive terms of five (5) years each (each a "Renewal Term"). The Lease shall renew automatically at the end of each Lease term unless Tenant provides written notice to Landlord not less than ninety (90) days prior to the expiration of the then-current Lease term. The initial term and all renewal terms are referred to herein as the "Term". 3. Permitted Use. The Premises may be used by Tenant for the transmission and reception of radio or other communication signals in any and all frequencies and for the construction, maintenance, repair or replacement of the Telecommunications Facilities as set forth in Section 1, above, and related activities (Tenant's "Intended Use"). Tenant shall obtain, at Tenant's expense, all governmental approvals including any city, county, state, federal, administrative agency (including the Federal Aviation Administration) or other governmental licenses, permits, and approvals necessary for the construction and operation of the Telecommunications Facilities (collectively, "Governmental Approvals"). Tenant may (prior to or after the Commencement Date) obtain a title report, perform environmental and other surveys, and other engineering procedures on, under and over the Premises, necessary to determine that Tenant's use of the Premises will be compatible with Tenant's engineering specifications, system, design, operations and Governmental Approvals. Landlord agrees to reasonably cooperate with Tenant (at no cost to Landlord), where reasonably required, to perform such procedures or obtain Governmental Approvals. 4. Rent. a. Tenant shall pay Landlord, as rent, one dollar ($1.00) per year ("Rent"). Rent shall be payable yearly in advance beginning on the Commencement Date and thereafter on each annual anniversary of the Commencement Date. Rent shall be paid to Landlord at Landlord's address specified in Section 12 below. b. If Tenant elects to renew this Lease as provided in Section 2, above, the Rent during any such Renewal Term shall be as provided in Subsection a above. c. If Tenant shall remain in possession of the Premises at the expiration of this Lease or any Renewal Term without a written agreement between Landlord and Tenant, such tenancy shall be deemed amonth-to-month tenancy under the same terms and conditions of this Lease. 5. Interference. Landlord shall not change its use, nor permit its tenants, licensees, employees, invitees or agents to change any portion of the Property in any way which unreasonably interferes with the operations of Tenant on the Premises. Such interference shall be deemed a material breach by Landlord, who shall, upon written notice from Tenant, be responsible for terminating said interference. In the event any such interference does not cease promptly upon Landlord's receipt of Tenant's written notice, Landlord acknowledges that a continuing interference may cause irreparable injury and, therefore, Tenant shall have the right, in addition to any other rights that it may have at law or in equity, to bring a court action to enjoin such interference or to terminate this Lease immediately upon written notice to Landlord. If Tenant elects to terminate this Lease, Tenant shall have no further obligations to Landlord pursuant to this Lease, except those obligations imposed under Sections 11 and 14 below. Nothing in this section shall prevent Landlord from continuing fire station operations on the Property so long as those operations do not unreasonably interfere with Tenant's Intended Use of the Premises. Where technically feasible, as determined by Landlord in its sole discretion, Landlord may place its equipment on the Tower for any use that does not unreasonably interfere with Tenant's Intended Use of the Premises and shall not pay any fee to Tenant for said use. 6. Improvements; Utilities; Access. a. Tenant shall have the right, at its expense, to install and maintain on the Premises the Telecommunications Facilities. Tenant shall have the. right to replace or upgrade the Telecommunications Facilities at any time during the Term of this Lease with the Landlord's prior written consent, which consent shall not be unreasonably withheld. Tenant shall cause all construction to occur lien-free and in compliance with all applicable laws and ordinances. The Telecommunications Facilities shall remain the exclusive property of Tenant. Tenant shall have the right to remove the Telecommunications Facilities upon termination of this Lease. Landlord grants Tenant the right to clear all trees, undergrowth, or other obstructions and to trim, cut and keep trimmed all tree limbs which may interfere with or fall upon the Telecommunications Facilities or the Premises. b. Tenant, at its expense, may use any and all appropriate means of restricting access to the Telecommunications Facilities, including, but not limited to, the construction and/or alteration of a fence. c. Tenant shall pay any utilities charges due to Tenant's use of the Premises. Tenant shall have the right to install utilities, at Tenant's expense, including without limitation over, under, and across the Premises, and to improve the present utilities, if any, on the Premises (including, but not limited to, the installation of emergency power generators), so long as such installation or improvement does not unreasonably interfere with Landlord's use of the Property as a fire station. In the event that utilities necessary to serve the Telecommunications Facilities or Tenant cannot be located within the Premises, Landlord agrees to cooperate with Tenant and to act reasonably in allowing the location of utilities on the Property or other real property owned by Landlord without requiring additional compensation from Tenant. Landlord shall, upon Tenant's request, execute a separate written easement to Tenant or any utility company providing utility services to the Premises, in a form which may be filed of record evidencing this right. d. Tenant shall have 24-hours-a-day, 7-days-a-week access to the Premises during the Term of this Lease. e. Landlord may require the Telecommunications Facilities to be screened or camouflaged at its discretion and at Tenant's expense. 7. Termination. Except as otherwise provided herein, this Lease may be terminated, without any penalty or further liability as follows: a. By Landlord upon thirty (30) days' written notice to.Tenant for failure to cure a material default for payment of amounts due under this Lease. b. Upon thirty (30) days' written notice by either party to the other party if the other party defaults and fails to cure such default within that 30-day period, or such longer period as may be required to diligently complete a cure commenced within that thirty-day period. c. Immediately upon written notice to Landlord if Tenant receives any unacceptable results, in Tenant's sole and uncontrolled discretion, of any title report, Governmental Approvals, or environmental survey prior to Tenant's installation of the Telecommunications Facilities on the Premises. d. Immediately upon written notice by Tenant, if Tenant it is unable to obtain, maintain, or otherwise forfeits or cancels any license, permit or Governmental Approval necessary to the construction and/or operation of the Telecommunications Facilities. e. Upon thirty (30) days' written notice by Tenant if the Premises are or become unacceptable, in Tenant's reasonable discretion, under Tenant's design or engineering specifications for its Telecommunications Facilities or the communications system to which the Telecommunications Facilities belong. f. Immediately upon written notice by Tenant if the Premises or the Telecommunications Facilities are destroyed or damaged so as in Tenant's reasonable judgment to substantially and adversely affect the effective use of the Telecommunications Facilities. In such event, all rights and obligations of the parties shall cease as of the date of the damage or destruction. If Tenant elects to continue this Lease, then all Rent shall abate until the Premises and/or Telecommunications Facilities are restored to the condition existing immediately prior to such damage or destruction. g. At the time title to the Property transfers to a condemning authority, pursuant to a taking of all or a portion of the Property sufficient in Tenant's determination to render the Premises unsuitable for Tenant's Intended Use. Landlord and Tenant shall each be entitled to pursue their own separate awards with respect to such taking. Sale of all or part of the Property to a purchaser with the power of eminent domain in the face of the exercise of said power, shall be treated as a taking by condemnation. h. Immediately upon written notice by either party in the event either party determines the existence of a violation of any environmental law or a condition that requires remediation under any environmental laws that existed as of and/or prior to the Commencement Date or which may be the basis for assertion of any third party claims. If Tenant elects to continue this Lease, Tenant shall be responsible for taking all actions necessary to investigate and remediate said contamination and shall indemnify and hold harmless Landlord from and against any and all expenses, claims, or losses arising from or in connection with any activities of Tenant, its officers, agents, employees, or contractors on the Premises, including without limitation, any attorney's fees or court costs occasioned by such claims. i. Immediately upon written notice by Tenant in the event Tenant determines that Tenant's Intended Use of the Premises is actually or constructively prohibited through no fault of Tenant. j. Immediately upon written notice by Tenant in the event Tenant determines that Tenant does not have acceptable and legally enforceable means of ingress and egress to the Premises. 8. Taxes. Tenant shall pay any personal property taxes assessed on, or any portion of such taxes attributable to, the Telecommunications Facilities. Landlord shall pay when due all real property taxes and all other fees and assessments attributable to the Property. In the event that Landlord fails to pay said real property taxes, then Tenant shall have the right, but not the obligation, to pay said taxes and deduct them from Rent due under this Lease. 9. Representations and Warranties. In order to induce Tenant to enter into this Lease, Landlord, knowing that Tenant is relying hereon, covenants, represents and warrants as follows: a. Landlord warrants that there are no other leases affecting the Property and covenants that it shall not enter any contract affecting the Premises that may interfere in any manner whatsoever with Tenant's Intended Use until this Lease expires or is terminated by Tenant. b. There is no pending or, to the Landlord's knowledge, threatened litigation, arbitration or governmental proceeding or investigation (whether or not purportedly on behalf of the Landlord) against the Landlord or affecting the Property or any part thereof, which is, or, if adversely resolved, would or might (i) adversely affect the ability of the Landlord to perform its obligations hereunder, or under any document delivered pursuant hereto, (ii) create a lien on the Premises or any part thereof, or (iii) otherwise materially or adversely affect the Premises or other use, operation, condition or occupancy thereof. c. Tenant's Intended Use is not prohibited by any encumbrances, ordinances, covenants, restrictions, reciprocal easements, servitudes, subdivision rules, or regulations. d. The execution, delivery and performance of this Lease will not conflict with, result in the breach of any provision of, or constitute a default under any agreement or instrument to which the Landlord is a party and which would affect Tenant's use of the Property. 10. Insurance and Subro atg ion. a. The Tenant shall carry the following types and minimum coverage of insurance: (1) Worker's Compensation insurance as required by Chapter 85 of the Code of Iowa (if applicable); (2) Comprehensive General Liability with respect to the Tenant's use and occupancy of the Premises with a limit of not less than $5,000,000 for bodily injury liability for each occurrence; (3) Automobile Liability Insurance on all owned, non-owned, hired or leased automotive equipment in conjunction with operations, in amounts of not less than $1,000,000 for bodily injury liability and $1,000,000 for property damage liability. Tenant shall name the City of Iowa City as an additional insured on its Comprehensive General Liability insurance policy. As evidence to the above, the Tenant shall submit to the Landlord certificates of insurance upon request by Landlord. Tenant may satisfy this requirement by obtaining an appropriate endorsement to any master policy of liability insurance Tenant may maintain. b. Each party shall be responsible for insuring its own property in relation to this Lease. Tenant recognizes that Landlord may be self-insured. 11. Mutual Indemnity. Tenant agrees to indemnify, defend and hold Landlord harmless from claims, liabilities, causes of action, costs or expenses, including without limitation attorney fees and expenses arising from the installation, use, maintenance, repair or removal.of the Telecommunications Facilities, except for claims arising from the negligence or intentional acts of Landlord, its employees, agents, invitees, independent contractors or other tenants. Landlord agrees to indemnify, defend and hold Tenant harmless from claims, liabilities, causes of action, costs or expenses, including without limitation attorney fees and expenses arising from Landlord's or Landlord's agents', tenants' and invitees' use of the Property by Landlord's other tenants, except for such claims arising from the negligence or intentional acts of Tenant, its employees, agents or independent contractors. Landlord's and Tenant's duties under this paragraph shall survive termination of this Lease. 12. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, or sent by overnight carrier to the following addresses: If to Landlord: The City of Iowa City Attn: City Clerk 410 E. Washington Street Iowa City, IA 52240 Copy to: City Attorney 410 E. Washington Street Iowa City, IA 52240 If to Tenant: Joint Emergency Communications Services Association of Johnson County Attn: Mike Sullivan c/o Johnson County Secondary Roads 4810 Melrose Avenue Iowa City, IA 52246 Copy to: Jeffery A. Stone, Esq. Simmons Perrine Moyer Bergman PLC 115 - 3`d Street SE, Suite 1200 Cedar Rapids, IA 52401 The addresses for the purposes of this section may be changed by giving notice of such change in the manner provided herein for the giving of notice. Unless and until such written notice is received, the last address stated herein shall be deemed to continue in effect for all purposes. 13. 4uiet Ei~oyment, Title and Authority Landlord covenants and warrants to Tenant that (i) Landlord has full right, power and authority to execute this Lease; (ii) it has good and unencumbered title to the Premises free and clear of any liens or mortgages; and (iii) execution and performance of this Lease will not violate any laws, ordinances, covenants, or the provisions of any mortgage, lease, or other agreement binding on Landlord. Landlord covenants that at all times during the Term of this Lease, Tenant's quiet enjoyment of the Premises or any part thereof shall not be disturbed as long as Tenant is not in default beyond any applicable grace or cure period. In the event Landlord fails to keep the Premises free and clear of any liens and encumbrances, Tenant shall have the right but not the obligation to satisfy such lien or encumbrance and deduct the full amount paid by Tenant on Landlord's behalf from future installments of Rent. 14. Environmental Laws. a. Landlord represents and warrants that neither Landlord nor, to Landlord's knowledge, any third party has caused or permitted any Hazardous Substances (as defined below) to be located on the Property, and, to Landlord's knowledge, there are no Hazardous Substances, abandoned wells, solid waste disposal sites, underground storage tanks, or burial sites located in, on, or about the Property, including without limitation the improvements thereon (except de minimis amounts of Hazardous Substances which have been handled and disposed of in accordance with applicable law). The term "Hazardous Substances" shall mean any waste, substance, constituent or material identified as hazardous, radioactive, dangerous or toxic by any office, agency, department, commission, board, bureau or instrumentality of the United States of America, the State of Iowa or the locality in which the Property is located having or exercising jurisdiction over such waste, substance, or material including, without limitation, (i) those substances included within the definitions of "Hazardous Substances", "Hazardous Materials", "Regulated Substances", "Toxic Substances", or "Solid Waste" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), 42 USC Sections 9601 et seq., the Resource Conservation and Recovery Act of 1976, as amended ("RCRA"), 42 USC Sections 6801 et seq., and the Hazardous Materials Transportation Act, 49 USC Sections 1801 et seq., and in the regulations promulgated pursuant to said laws; (ii) those substances listed in the United States Department of Transportation Table (49 CFR 172.101, as amended) or by the Environmental Protection Agency (or any successor agency) as "Hazardous Substances" (40 CFR Part 302, as amended); (iii) those substances regulated by Iowa Code Chapter 455B or any other applicable Iowa statute or regulation (iv) any. material, waste or substance which is (a) petroleum, (b) asbestos, (c) polychlorinated biphenyls, (d) designated as a "Hazardous Substance" pursuant to Section 311 of the Clean Water Act, as amended, 33 USC 1251 et seq., (33 USC 1321) or listed pursuant to Section 307 of the Clean Water Act (33 USC 1317), (e) Flammable Explosive, or (f) Radioactive materials; and (g) such other substances, materials and waste which are or become regulated under applicable local, state or federal law, or the United States of America government, or which are classified as hazardous or toxic under federal, state or local laws and regulations. Landlord warrants that the Property is not subject to any local, state, or federal judicial or administrative action, investigation or order, as the case may be, regarding wells, solid waste disposal sites, Hazardous Substances, or underground storage tanks. b. Landlord agrees not to, and not to permit any third party, to use, generate, store, or dispose of any Hazardous Substances on, under, about, or within the Property in violation of any law or regulation. c. Tenant agrees not to, and not to permit any third party, to use, generate, store, or dispose of any Hazardous Substances on, under, about, or within the Premises in violation of any law or regulation. d. Landlord shall be responsible for, and shall promptly conduct any investigation and remediation as required by any law or common law, of all spills or other releases of Hazardous Substances, not caused by Tenant, that have occurred or which may occur on the Property. e. Tenant agrees to defend, indemnify and hold Landlord harmless from and against any and all claims, causes of action, demands and liability including, but not limited to, damages, costs, expenses, assessments, penalties, fines, losses, judgments and attorney's fees and expenses that Landlord may suffer due to the existence or discovery of any Hazardous Substance on the Premises or the migration of any Hazardous Substance to other properties or release into the environment arising solely from Tenant's activities on the Premises. f. In the event Tenant determines the existence of a violation of any environmental law or a condition that requires remediation under any environmental laws that existed as of and/or prior to the Commencement Date or which may be the basis for assertion of any third party claims, Tenant shall provide written notice of said violation to Landlord. Except if Tenant elects to continue this lease as provided in Section 7h above, Landlord agrees to defend, indemnify and hold Tenant harmless from and against any and all claims, causes of action, demands and liability including, but not limited to, damages, costs, expenses, assessments, penalties, fines, losses, judgments and attorney's fees and expenses that Tenant. may suffer due to the existence or discovery of any Hazardous Substance on the Property or the migration of any Hazardous Substance to other properties or released into the environment, that relate to or arise from Landlord's activities during this Lease and from all activities on the Property prior to the commencement of this Lease. g. The indemnifications in this section specifically include without limitation costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal, or restoration work required by any governmental authority. h. The indemnifications in this Section shall survive the termination of this Lease. 15. Assignment and Subleasing. a. Tenant may not assign this Lease to any person or entity without the written consent of Landlord. Upon such assignment, Tenant shall be relieved of all liabilities and obligations hereunder and Landlord shall look solely to the assignee for performance under this Lease and all obligations hereunder. Tenant may not sublease the Premises without the written consent of Landlord. Tenant's assignee or sublessee shall be entitled to modify the Telecommunications Facilities and to erect additional improvements on the Premises as reasonably necessary for the operation and maintenance of the communications equipment to be installed on the Premises by such assignees or sublessees with Landlord's prior written consent, which consent shall not be unreasonably withheld. Tenant's assignees and sublessees shall be entitled to all rights of ingress and egress to the Premises and the right to install utilities on the Premises as if said assignee or sublessee were the Tenant under this Lease. b. Notwithstanding Section 15(a), Tenant may, with prior written consent of Landlord, mortgage or grant a security interest in this Lease and the Telecommunications Facilities, and may assign this Lease and the Telecommunications Facilities to any mortgagees or holders of security interests, including their successors or assigns, (hereinafter collectively referred to as "Mortgagees"), provided such Mortgagees agree to be bound by the terms and provisions of this Lease. In such event, Landlord shall execute such consent to leasehold financing as may reasonably be required by Mortgagees. Landlord agrees to notify Tenant and Tenant's Mortgagees simultaneously of any default by Tenant and to give Mortgagees the same right to cure any default as Tenant or to remove any property of Tenant or Mortgagee located on the Premises. All such notices to Mortgagees shall be sent to Mortgagee at the address specified by Tenant upon entering into a financing agreement. Failure by Landlord to give Mortgagee such notice shall not diminish Landlord's rights against Tenant, but shall preserve all rights of Mortgagee to cure any default and to remove any property of Tenant or Mortgagee located on the Premises. 16. Successors and Assi nos. This Lease shall run with the Property, and shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives, and assigns. 17. Miscellaneous. a. The substantially prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorneys' fees and expenses and court costs, including appeals. b. Each party agrees to furnish to the other, within thirty (30) days after request, such truthful estoppel information as the other may reasonably request. c. This Lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to this Lease must be in writing and executed by both parties. d. If either party is represented by a real estate broker in this transaction, that party shall be fully responsible for any fee due such broker, and shall hold the other party harmless from any claims for commission by such broker. e. Each party agrees to cooperate with the other in executing any documents necessary to protect its rights in or use of the Premises, including, but not limited to, a memorandum of this Lease in recordable form. If such memorandum is executed, Landlord agrees that Tenant shall have the right to record such memorandum at Tenant's expense. f. This Lease shall be construed in accordance with the laws of Iowa. g. If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. The parties intend that the provisions of this Lease be enforced to the fullest extent permitted by applicable law. Accordingly, the parties shall agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable. h. The persons who have executed this Lease represent and warrant that they are duly authorized to execute this Lease in their representative capacity as indicated. i. The submission of this document for examination does not constitute an offer to lease or a reservation of or option for the Premises and shall become effective only upon execution by both Tenant and Landlord. j. This Lease may be executed in any number of counterpart copies, each of which shall be deemed an original, but all of which together shall constitute a single instrument. k. Upon termination or expiration of this Lease, Tenant must remove all above-ground portions of the Telecommunications Facilities and any personal property of Tenant and restore the Premises to a reasonable condition. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. SIGNATURE PAGE TO IMMEDIATELY FOLLOW.] LANDLORD: The City of Iowa City s. < By: R .Bailey, Mayor Attest: Mari .Karr, City Clerk Approv0d gy City Attorney's ()ffit~a STATE OF IOWA ) ss: JOHNSON COUNTY ) TENANT: Joint Emergency Communications Services Association of Johnson County I ~i "3 By: ~--Y~`L~ ~1 ~ ~ ~~-• Print Name: / /~l G j~ u S ~7~ , ~a ~w~i Title: t..'/~1~~ /h ~~ .-~ r " ;~ BY~ J ~'~ ~ ~ ,~ _XJ~=t. ~~~ c.t~ SCI J Print N e: ~ ~ L of ~ a~). t Title: ~ x ~ r~ ~ ~- ~vc-~4'~ :) ~ ~~ On this JQ~ day of I~p~,µ , 2009, before me, the undersigned, a notary public in and for the State of Iowa, personally appeared Regenia D. Bailey and Marian K. Karr, to me personally known, who being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of said municipal corporation executing the within and foregoing instrument; that the seal affixed thereto is the seal of said municipal corporation; that said instrument was signed and sealed on behalf of said municipal corporation by authority of its City Council; and that the said Mayor and City Clerk as such officers acknowledged that the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. ,~ a SONDRAE FORT o ~ Commission Number 159791 Sd"1r1~Ri,R- ~~ • My Commission Expires ow 7 O Notary Public in and for the State of Iowa 10 EXHIBIT "A" The Property Lot Five (5), Block One (1); Fair Meadows Addition, First Unit to Iowa City, Johnson County, Iowa. EXHIBIT "B" The Premises A PART OF LOT 5, BLOCK 1 OF FAIR MEADOWS ADDITION, FIRST UNIT TO IOWA CITY, JOHNSON COUNTY, IOWA, MORE PARTICULARLY DESCRIBED AS FOLLOW: COMMENCING AT THE NORTHERLY MOST CORNER OF LOT 5, BLOCK 1 OF FAIR MEADOWS ADDITION, FIRST UNIT TO IOWA CITY, JOHNSON COUNTY, IOWA AS RECORDED IN BOOK 4, AT PAGE 356 IN THE RECORDS OF THE JOHNSON COUNTY RECORDER'S OFFICE; THENCE 543°03'34"E, ALONG THE NORTHEASTERY LINE OF SALD LOT 5, A DISTANCE OF 159.06 FEET TO THE POINT OF BEGINNING; THENCE CONTINUNING S43°03'34"E, ALONG SAID NORTHEASTERLY LINE 14.00 FEET; THENCE 546°56'26"W, 19.65 FEET; THENCE 543°03'34"E, 27.00 FEET; THENCE S46°56'26"W, 44.50 FEET; THENCE N43°03'34"W, 40.50 FEET; THENCE N46°56'26"E, 64.65 FEET TO THE POINT OF BEGINNING, CONTAINING 0.05 ACRE (2120 SQUARE FEET) AND IS SUBJECT TO EASEMENTS AND RESTRICTIONS OF RECORD. EXHIBIT "C" Survey [SEE FOLLOWING PAGE] f~i a'i F' ~' r~VN C UOOm ~ ~ O ~ Z p ~ N " W O c~ F _ p £ II .- ~ ~~~~~ ~Nao C ~~In m O Q UO ~ N ~~ Cr.~' ~J W 3 c10~1 W 3~ ~~ Q yy ~ Q W W~.~- ~~ii ~Om ~ NOrn ~ p ~ OO? ¢ N I~ dS ~S ~ m U a~ r~ ~ rno~,~ z O jOZ Z o ~~ o ~~~ ~a w G~ ~ gg °'a E u~] ~_ ~ ~ n ~O E n~ Q ~_ ~ ~UZ O ~ ~ ~~ P 3 LJJ a ~ w cn ~ ~ ~ 8 J Q ~ ~~~ ~ $~ 8 ~ ~s s r U aQ~~rZ+QZ~~~W~[o. µ 11~ cj p"Q JNWµz a x 5 p ODQjOF F~~~+ O .F,ry ~N Z~y+~c~tw7h~p~ ~~~~~~b~ °" J ~w F ~a mO..F W rp~ o~~m~z~'w 3 ~A F s~o~o~~„~u~ ~u aK x~ ~'~'za 1--1 ~ xx 3 ^ W Nr yyy o ^~OFa H y ay~4 r o ~Q~~~~N ~C p B~ a Fo~ oo G~ W O U w W a ~ m o €13Fz a ~o~e o~ir~ ~ ~ F ~ rFm~ ~~~ I a C c0. ~ y' [ W l-1 p (~ w ~4 w~ io 7w 0v ma zmn o ~~ ~~'awggz~~z ~j a U ~+ O ~~ o~FV^~Wy E„° gs'F~o~i a z e 3 ~o ~ v ~~~~ ~ O 61 5+ [ + OU WUow'^OP4 F ~ U w a o4 q a Z ~ Q h.FNb z C7 .. zCJ6 C7~~ .7 oz yQ wa ~E~.,w ~zz3r~ yeF~OZz ppp LO~j]Cw'vi '° °~CO UF ~ v w n: aC as t~j Q ~ j ¢ U~aG P4~U~k.d C~1 F O V ~ N '} ~] o~ o arc' a a ~~z U`F -a ~.. 7 a o~~ ~~~ 0 ~a ~ o $ IG ~0 ~ '~ ~ e~ ~i a ~E ,I o ~~~ ~ s ~~~ ~a 1 ~ a '~ a ~~~ ~ ~~~ ~ " ~~ d ~ ~'~ ~ s ~ #~~~ ~ ~ ~ 4 ,~Ydl ~' 4 ~~~ 1' ~ a 1 ~~ a ~ s ~~~ ~~ ~~ ~ ii o ~~~~~ ~M~a~~~ O ~~~~~~~~~~ ~ Z 1,11 11 1 11 Q 1~I .II I~~ ~ ~~ ~ I I z .aa.o ® ~i ~I LJ ~ i w~ I~ ; ~ `_ / ~" /' m ~ /, W ~~ ~J~ N J J5G / ~ ~ /, i Kr;~ / ~ ' 8ka~ 3 .°a ~ s,'$ ~~~~~`e~ O®~ ~~~~® f-o F~~$~ / ~~ h~~ b ~O' /~ ~~ EXHIBIT "D" Minor Site Plan [SEE FOLLOWING PAGE] / r \ ~.~ \~\ Q / ~~E~f~ ~' 6 s ~~ ~~ ~~ a Qmc f ~" .~ F i { ~~ f~ ~1. g{f~{f f~;~~ ~~~ t . ~ ~ ;IjI _. ~°" z ! \~ -~~p~ ~~~ t~i f ' ~ 1 X11 .: ~ . gym' ~' ~w'rr ~ ~ _ •~ f ~~ ~~~ ! ~ ' ~ ~~ __ Y r /, ~: a ~~ ^~ , j, o s ~ f j' ti ~ /'. .: ~< O +S.. ~ ~ W~,c'o~ I-_ti v~y~v~ '.~.:f` ~~ ~a r ;.... ~ 9~~~~ ea % ~~a ~~ ~ r ~ ~ R z ~~ ~~ i >~~~ ~ ~ o I "° ~ .~ ~~a ~ ~ i~ ~ ~j ~ ~#~~~ ~ ~ ~~ ~ ~ t~ . ? 7~ ~, mxS ~ ~~oa ~z g ~~~Z u a.IFodh.$eor.{aa rpds;ioo®~ zI ~~~ .. ~ ~' a ~ ~ ti :~ fe~8~~~~~~~~;~~! ~~# ~ ~~~~g~~~~~~~~~~~g~~ ~~ :~ ~ g ~ ~~ 4 E ~ ~~ 8^~; g~~ ~~~ ~ ;~~~ ar ~ ~ ~~ o~ F ~~ ~ ~~~ €~~ €~'~~ ~ ~ ~8 a~ EXHIBIT "E" Tower Depiction [SEE FOLLOWING PAGE] F' ~- ~ ~ ' ~~ A_ ~ ~1 ~ -.'~Z ~Ij •h~ e,M. ,,u,-..3F ~3~. 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A' r :' w 3 ~. °"~ ~ s. Y '.-~ e~ ~a ~ ~ ~ ' t ',~, a F~y~ ~ ~ c . , ,, ~ _ ~ ?-' s ~ sue- ~ r~ i ~ ~. i t~ '. y _ c ? .~' y. ~ - .. r r"` /,. - f ` ,~~ ~ - i .., 4 '~~ ~i - A 4 r 5. .~ ~1~ r' 7 k i ~~ 6 :., r y i ~ i4 ~fx= a ~ h l a1 ~ i .i^~ ~ 7 `1' ~ ~1 f'~ ,r Tiff r QT025A Liquid Cooled Gas Engine Generator Sets Standby Power Rating 25 kW 60 Hz Naturally Aspirated Gaseous Fueled QT025A STANDARD EQUIPMENT • All input connections in one single area Mainline circuit breaker • High coolant temperature shutdown Radiator drain extension • Low oil pressure shutdown Battery charge alternator • Low coolant level automatic shutdown 10 Amp static battery charger • Overspeed automatic shutdown Battery and battery cables • Crank timer Battery rack • Exercise timer Fan and belt guards • Oil drain extension Isochronous governor • Cool flow radiator Flex fuel line • Closed coolant recovery system Coolant heater • UV/Ozone resistant hoses • Watertight state of the art electrical connectors FEATURES • Innovative design and fully prototype tested • UL2200 Listed • Solid state frequency compensated voltage regulator • Dynamic and static battery charger • Sound attenuated acoustically designed enclosure • Quiet test for low noise level exercise • Acoustically designed engine cooling system • High flow low noise factory engineered exhaust system • State of the art digital control system with H100 digital control panel • Watertight electrical connectors • Rodent proof construction • High efficiency, low distortion Generac designed alternator • Vibration isolated from mounting base • Matching Generac transfer switches engineered and tested to work as a system • All components easily accessible for maintenance • Electrostatically applied powder paint GENERAC° POWER SYSTEMS. 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Y~ ''~~y !A~ Rk 't ~,_ ~ .~~ r i C ~ ye ~ ~ ~~ ~. ~ ~ ,reg. ~ *~~ ~~~~ ybf~,..fi ~~ ~ '~ ;.~ A~ ,,; 5, .~ ~~ p r ' h' f ti -, .". r- R-k ~t.~ •~ rzy~'.,~ '~ 1~,r- ~2~ ~^•`r~ F~ ~i- k ~' a;tt' .~ } ~y~ r y,., - y%~ ~ ~~ vs ~ ~ ~ ~ d~~~~(~'.~.1 r ~ r;i ~ 1 ~ v,~. / '~ x i1.-i' S ~" i_ k -i7, w. ~ ~ ~ ~ - ~ i~'~~ 5$ z~ ~~ ~~~ ~ ~~ ~ l"? re ~ ° °~ ~`'~ ~; ~ ~ bY' f~ .. Y1~ r- '•t vvi,.. i. ~r 1~..=;~ ~yrttY ~ ~i~4' S _, 41..`~ ?i~~y~c z! ~ ~:~y~ i~~r i~~z;~"~.? ~ 6c i,i. ~.5 4 ti .. ~.~,T "t ..r '~Sa_ t ~~ I'~~s k ~' ,, t~' r-. ~~ r K e ~ ~ ~ ~ 1' ~: YC~Y f. r ~~ t ~ [~ ~? .. ~ , ~4 - - - ,~ r f~ ~ ~, ~ ~ }~}~1 ~. ~.~ L ~~ ~ _ ~ ~. ~~ .r ~ ~ ~ ~ ~ - ~., ~. ? f g., - 15 Prepared by: Ron Knoche, City Engineer, 410 E. Washington St., Iowa City, IA 52240; (319) 356-5138 RESOLUTION NO. 09-73 RESOLUTION AUTHORIZING EXECUTION OF A CHAPTER 28E AGREEMENT BETWEEN THE CITY OF IOWA CITY AND THE IOWA DEPARTMENT OF TRANSPORTATION REGARDING CERTAIN OBLIGATIONS INVOLVING THE SHARING OF DIGITAL DATA WHEREAS, the City of Iowa City has developed a digital graphic and tabular database depicting land, cadastral and other geographic data; and WHEREAS, the Iowa Department of Transportation is creating a GIS Project Portal for environmental planning activities that will initially occur along Interstates 80, 280, 680 and 35 in Iowa; and WHEREAS, the Iowa Department of Transportation will incorporate data developed by the City of Iowa City and the Iowa Department of Transportation into a Data Repository accessible via the GIS Project Portal; and WHEREAS, the City of Iowa City and the Iowa Department of Transportation agree that the GIS Project Portal will benefit both entities; and WHEREAS, pursuant to Chapter 28E of the Code of Iowa, the City of Iowa City and the Department of Transportation desire to enter into a digital data agreement outlining their respective duties and responsibilities regarding said GIS Project Portal. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT: 1. The Mayor and City Clerk are hereby authorized to execute in duplicate the Chapter 28E Agreement with the Iowa Department of Transportation attached hereto and incorporated by reference herein, and said agreement is hereby approved as to form and content, and found to be in the best interests of the citizens of Iowa City, Iowa. 2. The City Clerk is hereby authorized to forward the executed Resolution and Agreement to the Iowa Department of Transportation. The Iowa Department of Transportation shall file the documents with the Iowa Secretary of State. Passed and approved this 10th day of March , 20 09 ~~~~~ U A roved by ATTEST: CIT ERK City Attorney's Office 3/3I~`1 Resolution No. 09-73 Page 2 It was moved by Wilburn and seconded by wriQht the Resolution be adopted, and upon roll call-there were: AYES: NAYS: ABSENT: x Bailey x Champion x Correia g Hayek x O'Donnell ~_ Wilburn x Wright Pwenglres/DigitalDala.doc Digital Data Agreement This Agreement is entered into this ~' day of p~42t~. , 20dg between the CITY OF IOWA CITY 410 EAST WASHINGTON STREET, IOWA CITY, IA, 52240 and IOWA DEPARTMENT OF TRANSPORTATION (hereinafter "Iowa DOT"), 800 LINCOLN WAY AMES, IA, 50010. The City of Iowa City has developed a digital graphic and tabular database (Geographic Information System, hereinafter "GIS") depicting land, cadastral, and other geospatial data. The Iowa DOT is creating a GIS Project Portal (hereinafter "Portal") for environmental planning activities that will initially occur along Interstates 80, 380, 680, and 35 in Iowa, but may be expanded to other highway corridors in the future if necessary. The Iowa DOT will incorporate GIS data developed by Iowa DOT and by the City of Iowa City into a Data Repository accessible via the Portal. The Portal provides value to Iowa DOT and the City of Iowa City since decisions made during environmental planning will be based on the most accurate and up-to-date GIS information available from Iowa DOT, the City, and other data providers. Therefore, corridor planning decisions can give full consideration to city-specific needs such as zoning, land use, environmental and historic preservation. The PURPOSE OF THIS AGREEMENT is to specify the terms and conditions under which the City of Iowa City will provide data to the Iowa DOT and vice versa and under which the both parties shall use the data, in the Portal. This Agreement constitutes the joint and cooperative actions between Iowa DOT and the City of Iowa City pursuant to the provisions of Iowa Code Chapter 28E. The Iowa DOT and the City of Iowa City agree to the following terms: GIS Products 1. The Products being provided by the City of Iowa Ciry via this Agreement will include (but is not limited to) the following available data: -Iowa City Lidar Point Files -Iowa City Planimetric And Contour Files (Autocad 2000 *.Dwg Format) Includes Buildings„ Sidewalks, Fencelines, Etc -Basemap.Dwg Contains Parcels, Right Of Way, Schools And Parks (Autocad V 2009) -Jurisdiction.Dwg Contains Color Coded Street And Highway Right Of Way Jurisdictions Overlay (Autocad V 2009) -Zoning.Dwg Contains IC Zoning Overlay (Autocad V 2009) -2-Ft Contours (2006) The Iowa DOT will provide access to the products within the portal to the City of Iowa City as detailed below with the exception of site-specific, sensitive data such as site-specific archaeological and architectural sites. This data will include (but is not limited to) the following available data within the study area: • Digital Orthophotography, including the index files • Road/Street centerlines • Land Use, future and existing • Zoning, including sensitive areas defined by County ordinance • Boundary features including but not limited to parcels, corporate limits, school districts, parks, subdivisions, lots. • FEMA floodplain • Streams, lakes, reservoirs • Topographic contours • Mainline As-Built and facility inventory Conditions • Traffic Volumes • Safety/Crash Data • Non-Site Specific Threatened & Endangered Species Data • Roadway improvement concepts and alternatives developed during the environmental process: . • Environmental Commitments arrived at as a result of the NEPA environmental process • Wetland Delineations and Determinations and any mitigation commitments arrived at during the environmental process • Known Rail, Pipeline & Utility Inventory Data • Notes by authorized users of any envirorunentally significant information within the corridor. • Bridges & Structures location & condition reports including historic bridge inventory. 2. The City of Iowa City and Iowa DOT agree to make available the GIS products/data listed in Provision 1 in a digital GIS data format, (hereinafter collectively referred to as "Products"), which have been reviewed by the provider and are suitable for exchange as determined by the provider. For any city data products not available digitally via "live-link" the City of Iowa City will provide quarterly updates of the Products via data upload to the portal. Iowa DOT will provide updates to the portal of the listed Products as received and will make such data available to authorized users via the portal. 4. The Iowa DOT and the City of Iowa City agree to follow Restrictions of Use listed below with regards to the use of the products/data in the Portal. 5. The Iowa DOT and the City of Iowa City acknowledge the Limitations of the Products listed below. 6. Neither the City of Iowa City nor Iowa DOT shall charge a fee for the provided Products. Limitations 7. The City of Iowa City and Iowa DOT shall not be responsible for any hardware or software needed to access and use the Products. 8. Both Iowa DOT and the City of Iowa City Products contain information from p~zblicly available sources. The Products have been developed for internal use by each. The Products are provided as is, with all faults, and without warranty of any kind, either expressed or implied including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. 9. Both parties understand and acknowledge that the Products and information contained therein are subject to constant change and that their accuracy cannot be guaranteed. Neither the City of Iowa City nor the Iowa DOT make warranties or guarantees, either expressed or implied, as to the completeness, accuracy, or correctness of the shared digital products, nor accepts any liability arising from any incorrect, incomplete or misleading information contained in the Portal. 10. Neither the City of Iowa City nor the Iowa DOT shall be subject to liability for human errors, defect or failure of machines, or any material used in connection with machines, including but not limited to tapes, disks, and energy. Restrictions of Use 11. This Exchange of Data does not constitute a transfer of any title or interest in the Products. 12. Unless authorized in writing to the contrary, Iowa DOT agrees to grant access to the portal only to the Iowa DOT employees, planning/engineering consultants (contracted to perform work on planning and design projects for Iowa DOT), and other City, County, or government officials (hereinafter "Authorized Users"). Each "Authorized User" will be required to agree to these same terms and conditions of use. 13. The Iowa DOT will allow the City of Iowa City to access the Portal in the form of a set of User accounts. The City of Iowa City will identify individuals which are to be allowed access to the Portal, up to a maximum of five (S) total users. The Portal users of the City of Iowa City will be provided access to extract data, upload City data, or view data layers within the Portal, but agree not to disseminate portal data to unauthorized users without prior written consent of Iowa DOT, except as otherwise required by law. 14. Iowa DOT agrees that the Products provided by the City of Iowa City will be housed on a secure Server, and will be made available only through the application services provided by the Portal to "Authorized Users" with similar restriction on use and dissemination. 15. Products provided by Iowa DOT and the City of Iowa City will be available for viewing via the Portal to all Authorized Users. 16. Authorized users may extract, by copying and downloading, selected portions of the GIS Products for purposes of analyzing and visualizing the data in multiple formats (ESRI SHP/MDB or Microstation DGN file formats). The Iowa DOT agrees that Authorized Users will not have direct access to the data files themselves, but only to data extracted and delivered to an Authorized User via the Portal interface. 17. Both parties agree that the Products or portion thereof will not be licensed, ,assigned, released, published, transferred, sold or otherwise made available to a third party without the expressed written permission except as made available via the Portal as specified in the preceding paragraphs and as otherwise required by law. 18.• Upon the occurrence of the breach of or non-compliance with any term or provision of this Agreement, Iowa DOT or the City of .Iowa City may provide written notice sent via certified US mail of the breach or non- compliance. The party in non-compliance shall have 15 working days after the receipt of said notice to remedy the issue. After I S working days, if un- remedied, either party may terminate this Agreement. Both parties shall, within 30 days after termination of this Agreement, return all GIS Products that we1•e exchanged through this Agreement and must cease using said Products. 19. This Agreement constitutes the entire agreement between the parties. This Agreement may not be changed, modified, or amended, in whole or in part, except in writing, and execution by both parties. 20. This Agreement shall be governed and construed by the laws of the State of Iowa. 21. This Agreement is effective for a period of 10 years from the date of execution except in cases of breach or noncompliance or be extended by supplement to this agreement. Iowa Depart nt of Transportation: ~- Name• j~ Title. ~r`r~ c`kJy- , ~ ~--~. DOT's Agreement Contacts: Date i " 6 For agreement or technical questions contact: Brad Hofer, Transportation Engineer Specialist, Iowa DOT -Office of Location & Environment, Phone # 515-239-1787 -o r- Derek Peck, GIS Coordinator, Iowa DOT -Office of Location & Environment, Phone # 515-239-1391 City of Io a City By: Title: or Date: March 10 , 2009 ATTEST: ~.~ 9~ ~~ City -erk Approved by: ~~~ City Attorney's Office ~~~ Date ~~ 03-10-09 16~ Prepared by: Kevin O'Malley, Finance Director, 410 E. Washington St., Iowa City, IA 52240; 319-356-5053 RESOLUTION NO. 09-74 RESOLUTION ADOPTING THE ANNUAL BUDGET FOR THE FISCAL YEAR ENDING JUNE 30, 2010. WHEREAS, a public hearing on the proposed budget for the fiscal year ending June 30, 2010 was held on February 24, 2009, at a regularly scheduled City Council meeting and public comments were received. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT: 1. The annual budget for the fiscal year ending June 30, 2010, as set forth in the Adoption of Budget and Certification of Taxes and on the Adopted Budget Summary, together with the detailed budget in support thereof showing revenue estimates, appropriation expenditures, and program allocations for said fiscal year should be -and hereby is adopted. 2. The City Clerk is hereby directed to make the filings required by law, and to set up the books in accordance with the summary and details, as adopted. Passed and approved this 10th day of March , 2009. M Approved by ATTEST: Q _ ~C/ 3 3-D`~ CIT ERK City Attorney's Office It was moved by Champion and seconded by Wright the Resolution be adopted, and upon roll call there were: AYES: ~_ x x x x x x NAYS: ABSENT: Bailey Champion Correia Hayek O'Donnell Wilburn Wright flnadm\res\annlbdgt.doc ~/[o March 5, 2009 Iowa City Council Members NORTH SIDE FIRE STATION Since the proposal of the North Side Fire Station many projects, with mixed merit, have been passed by the Iowa City Council. It is long past time for something as important to the safety and welfare to the residents and businesses of the north side of Iowa City that this project is taken off hold. We feel it is time to fund and see this project through bringing all sectors of Iowa City to an equal protection of safety. Sincerely, \~~ ~. /C ~~ Tom and Kathy Lynch 1641 Quincent St. ~i :~P~ Iowa City, IA 52245 P~!AR - 6 2009 17 Prepared by: Kevin O'Malley, Finance Director, 410 E. Washington St., Iowa City, IA 52240; 319-356-5053 RESOLUTION NO. 09-75 RESOLUTION APPROVING THE THREE YEAR FINANCIAL PLAN FOR THE CITY OF IOWA CITY, IOWA, AND THE FIVE YEAR CAPITAL IMPROVEMENTS PROGRAM EXCLUDING HUMAN SERVICES AID TO AGENCIES AND COMMUNITY EVENT AND PROGRAM FUNDING. WHEREAS, the City Council of the City of Iowa City deems it in the public interest and in the interest of good and efficient government for the City of Iowa City, Iowa, to adopt athree-year Financial Plan for operations and amulti-year Capital Improvements Program budget; and WHEREAS, the three-year Financial Plan and multi-year Capital Improvements Program are subject to annual review and revisions; and WHEREAS, a public hearing was held on February 24, 2009, at a regularly scheduled City Council meeting and public comments were received. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT: 1. The City Council of the City of Iowa City does hereby adopt the three-year Financial Plan for the Fiscal Years 2010 through 2012 and the multi-year Capital Improvements Program through Fiscal Year 2013. This excludes the expenditures for Human Services Aid to Agencies totaling $425,268, and the expenditures for Community Events totaling $85,162, which will be approved by separate resolutions. 2. This Resolution is an expression of the Council's legislative intent for planning future operation and capital improvements for the City of Iowa City, Iowa; and the anticipated means of financing said plan, subject to applicable laws. Passed and approved this 10th day of ATTEST: CITY RK finadm\res\fi n plan. doc r,NN~v ~~ vy City Attorney's Office Resolution No. 09-75 Page 2 It was moved by Champion and seconded by adopted, and upon roll call there were: AYES: NAYS: x x x X ~- x x Wilburn the Resolution be ABSENT: Bailey Champion Correia Hayek O'Donnell Wilburn Wright wpdata/glossary/resolution-ic.doc M~ 18 Prepared by: Kevin O'Malley, Finance Director, 410 E. Washington St., Iowa City, IA 52240; 319-356-5053 RESOLUTION NO. 09-76 RESOLUTION APPROVING AND ALLOCATING THE HUMAN SERVICES AID TO AGENCIES BUDGET FOR FY2010. WHEREAS, the City Council subcommittee, consisting of Council Member O'Donnell, Council Member Wright, along with UISG Liaison Tyler Gunn and JCCOG Human Services Coordinator Linda Severson have presented their recommendations to City Council. WHEREAS, a public hearing on the proposed budget for the fiscal year ending June 30, 2010 was held on February 24, 2009, at a regularly scheduled City Council meeting and public comments were received. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT: 1. The budget for the fiscal year ending June 30, 2010 for Human Services Aid to Agencies totaling $425,268 should be and hereby is adopted. 2. The recommendations from the City Council subcommittee attached are hereby adopted. 3. The City Clerk is hereby directed to make the filings required by law, and to set up the books in accordance with the summary and details, as adopted. Passed and approved this 10th day of ATTEST: ~ CI RK City Attorney's Office ~, j,~,_~ It was moved by Wilburn and seconded by Wright the Resolution be adopted, and upon roll call there were: AYES: NAYS: ABSENT: ABSTAIN: g Bailey Champion g Correia X ~_ Hayek ~_ O'Donnell ~ Wilburn ~_ Wright finadmVes~annlbdgl-human serv.doc City of Iowa City FY2010 Human Service Agency Funding Aid to Human Service Agencies is recommended at $425,288 in FY2010; with $282,268 budgeted from General Fund, $105,000 from Community Development Block Grant (CDBG), and $38,000 from Water, Sewer and Stormwater utility billing abatements. REQUESTS FOR AID TO AGENCIES Actual Actual Budget Request Budget FY2007 FY2008 FY2009 FY2010 FY2010 United Way Human Service Agencies: 4 C's 2,000 $ 2,000 $ 2,000 $ 2,000 $ - Arc of Johnson County 2,000 2,000 2,000 2,000 - Big Brothers/Big Sisters 35,436 37,000 37,000 40,000 35,000 Consortium for Youth Employment - 16,000 16,000 24,000 14,000 Crisis Center 38,575 39,730 40,730 43,988 36,500 Domestic Violence Program 50,687 51,000 52,000 57,200 52,000 Elder Services Agencyt 58,839 59,500 60,168 61,973 54,055 Free Medical Clinic 6,400 7,000 7,500 8,000 7,263 HACAP - - - 2,000 - ICARE -Iowa Center for Aids Resource 8,953 9,220 9,220 10,325 8,950 Jo Co Office of the American Red Cross 5,340 5,500 6,000 6,000 6,000 Lifeskills - - - 1,500 - Mayor's Youth Employment Program 20,600 19,570 16,000 21,000 14,000 MECCAT 28,879 29,745 29,000 32,488 27,000 Neighborhood Centers 60,000 60,000 61,000 62,000 55,000 Pathways - - - 5,000 - Rape Victim Advocacy 11,232 11,300 12,000 12,720 12,000 Shelter House 23,046 35,000 35,500 39,050 35,500 United Action for Youth (UAY)t 63,049 65,000 65,000 70,000 60,000 Subtotal: United Way Agencies $ 431,036 $ 449,585 $ 451,118 $ 501,244 $ 417,268 Other Human Service Agency Requests: Housing Trust Fund of Iowa City - - 10,000 53,000 8,000 Extend the Dream Foundation - 5,000 - - - Johnson County Juvenile Justice 2,500 Youth Development Program _ _ _ Subtotal: Other Human Services Agencies $ 2,500 $ 5,000 $ 10,000 $ 53,000 $ 8,000 Contingency Funding: - - 4,150 - - Grand Total: Aid to Human Services Agencies $ 433,538 $ 454,565 $ 465,268 $ 554,244 $ 425,268 Less direct funding from: Community Development Block Grant (CDBG) (105,000) (105,000) (105,000) (105,000) Water, Sewer and Stormwater (35,714) (37,810) (38,000) (38,000) Utility Billing Abatements General Fund /Non-Operational Admin $ 292,822 $ 311,755 $ 322,268 $ 282,268 Aid to Human Services Agencies: ~ 19 Prepared by: Kevin O'Malley, Finance Director, 410 E. Washington St., Iowa Ciry, IA 52240; 319-356-5053 RESOLUTION NO. 09-77 RESOLUTION APPROVING AND ALLOCATING COMMUNITY EVENT AND PROGRAM FUNDING FOR FY2010. WHEREAS, the City Council received comment from funding applicants on January 28-29, 2009. WHEREAS, a public hearing on the proposed budget for the fiscal year ending June 30, 2010 was held on February 24, 2009, at a regularly scheduled City Council meeting and public comments were received. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT: The budget for the fiscal year ending June 30, 2010 for Community Event and Program funding totaling $85,162 should be and hereby is adopted. 2. The allocations from City Council, as attached are hereby adopted. 3. The City Clerk is hereby directed to make the filings required by law, and to set up the books in accordance with the summary and details, as adopted. Passed and approved this 10th day of ATTEST: Cf LERK r~NNt uvCU uy City Attorneys Office It was moved by Champion and seconded by Wright the Resolution be adopted, and upon roll call there were: AYES: NAYS ABSENT: Bailey Champion Correia Hayek O'Donnell Wilburn Wright finadm~es~annlbdgt-community event.doc City of Iowa City -General Fund Community Event and Program Funding Community event and program funding was approved at $85,162. Funding requests are submitted annually and totaled $125,322 for FY2010. Funding Requests for Community Events 8r Programs Actual FY2007 Actual FY2008 Budget FY2009 Funding Requests FY2010 Budget FY2010 All-Iowa New Horizons Band Extravaganza 250 250 250 - - American Heart Association 1,000 - - - - Bike to Work Week 1,500 1,500 1,500 1,500 1,500 Corridor Free Wireless (cFree) 2,500 - Downtown Association -Taste of Iowa City - - 2,000 - Evert Conner Rights & Resource Center 972 972 972 972 972 for Independent Living - ADA Celebration Extend the Dream Foundation 1,000 1,000 1,000 1,000 1,000 Ralston Creek Fair & Flea Mrkt Johnson County Local Food Alliance 1,000 500 2,020 3,000 1,000 Field to Family Johnson County Local Food Alliance - - - 3,000 - Johnson County Local Food Summit Hancher's 35th Anniversary Gift to Iowa - 7,500 - - - Hawk-I Health Insurance for Kids 456 - - - - Habeas Corpus - - 2,020 - - lowa Dance Fest & Iowa City Dance Labs Iowa City Community String Orchestra - 300 400 600 400 Fall & Spring Concerts ICCCVB -Sports Authority 17,000 2,500 - - - Johnson Co. Historical Society 4,000 4,000 - - - Johnson Co. Historical Society - 2,228 2,468 10,000 10,000 7,790 Irving B. Weber Days Jaycees' - 4th of July Fireworks * 4,455 7,500 10,000 10,000 - Landlocked Film Festival - - - 7,000 3,500 Mission Creek Festival - - 5,000 10,000 5,000 New Life & Destiny CFI Ministries - - - 1,500 - Back to School Picnic New Life & Destiny CFI Ministries - - - 2,000 - Feed the Needy for the Holidays Boy Scouts of America - Hawkeye Area Council - - - 1,000 - District Cub Scout Day Camp Riverside Theatre -Shakespeare Festival 3,000 3,000 4,000 5,000 4,000 Summer of the Arts: 50,000 50,000 60,000 60,000 60,000 Youth Advisory Commission** - - 3,000 4,250 - Community Event /Program Funding: $ 86,881 $ 81,490 $ 100,162 $ 125,322 $ 85,182 Funding of up to $25,000 was authorized for fireworks to come from General Fund Contingency in FY2010. "Youth Advisory Commission to be funded from General Fund as part of Council operations, beginning in FY2010. Community ~ Economic Development Assistance Twenty-five percent (25%) of annual Hotel/Motel Tax revenue is allocated to the Iowa City /Coralville Convention & Visitors Bureau (ICCVB). Actual FY2007 Actual FY2008 Budget FY2009 Budget FY2010 Iowa City /Coralville Convention ~ Visitors Bureau: $ 172,909 $ 180,982 $ 181,554 $ 180,982 Total Hotel /Motel Taxes $ 691,635 $ 723,928 $ 726,216 $ 723,929 of Hotel /Motel Tax to CVB 25.0% 25.0% 25.0% 25.0% 20 Prepared by: Marcia Bollinger, 410 E. Washington St., Iowa City, IA 52240 (319) 356-5237 RESOLUTION NO. 09-78 RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF IOWA CITY AND THE ARTIST FOR THE IOWA CITY WATER WORKS PRAIRIE PARK SCULPTURE AND AUTHORIZING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST THE SAME. WHEREAS, the Iowa City Public Art Program provides for investment in public art annually; and WHEREAS, the Public Art Advisory Committee determined that artwork located at the Water Works Prairie Park would be the next focus of the Public Art Program; and WHEREAS, the Public Art Advisory Committee considered the work of a number of national and local artists and decided that they would like to commission the artwork from local artist Dale Merrill of Liberty Iron Works Inc. of Mt. Vernon at their September 4, 2008 meeting; and WHEREAS, Dale Merrill of Liberty Iron Works Inc. has worked with the Public Art Advisory Committee on designing a sculpture acceptable to the committee and can begin fabrication of the artwork soon. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT: 1. The Agreement between the City of Iowa City and the artist Dale Merrill of Liberty Iron Works Inc. for the design, fabrication, and the installation of the sculpture at the Water Works Prairie Park, a copy of which is attached hereto, is hereby approved as to form and content. 2. The Mayor is hereby authorized to sign and the City Clerk to attest said Agreement. Passed and approved this 10th day of ATTEST: March 20 09 Attorney's Office 3~~t~o°~ ppdadm/res/wwpp-merrill.doc Resolution No. 09-78 Page 2 It was moved by Champion and seconded by Wilburn the Resolution be adopted, and upon roll call there were: AYES: NAYS: .ABSENT: x Bailey x Champion x Correia _ __ X Hayek x O'Donnell x Wilburn ~_ Wright wpdata/glossary/resolution-ic.doc CITY OF IOWA CITY PUBLIC ART PROGRAM IOWA CITY WATER WORKS PRAIRIE PARK SCULPTURE AGREEMENT BY AND BETWEEN OWNER AND ARTIST '.~ THIS AGREEMENT is made on March 10 , 2009 between the City of Iowa City, hereinafter referred to as the OWNER, and Liberty Iron Works, Inc. represented by Dale Merrill, owner, hereinafter referred to as the ARTIST. The OWNER'S REPRESENTATIVE shall be the Director of the Department of Planning and Community Development or his/her designee. The COMMITTEE shall be the Public Art Advisory Committee. WHEREAS, the. OWNER, on the recommendation of the COMMITTEE, has accepted the proposal for a sculpture consisiting of three (3) polished aluminum rotating leaves to be installed at the Iowa City Water Works Prairie Park hereinafter referred to as ART WORK. A copy of said proposal as accepted is attached hereto as Exhibit "A° (hereinafter "Proposal"). NOW, THEREFORE, in consideration of the mutual promises and undertakings contained herein, the parties agree as follows: ArtiGe 1. Scope of Services 1.1 General a. The ARTIST shall perform all services and fumish all supplies, materials and equipment as necessary for the design, execution, fabrication, transportation and installation of the ART WORK at the site. b. The ARTIST shall at all stages of execution, fabrication and installation coordinate his work with the OWNER'S REPRESENTATIVE. 1.2 Execution of the Work a. The ARTIST shall fumish the OWNER'S REPRESENTATIVE a tentative schedule for completion of fabrication and installation of the ART WORK, including a schedule for the submission of progress reports, if any. The schedule must be approved by OWNER'S REPRESENTATIVE. After written approval of the schedule by the OWNER'S REPRESENTATIVE, the ARTIST shall fabricate, transport and consult with the OWNER'S REPRESENTATIVE on the installation of the ART WORK in accordance with such schedule. Such schedule may be amended by written agreement between the OWNER'S REPRESENTATIVE and the ARTIST. b. The OWNER shall have the right to review the ART WORK at reasonable times during the fabrication thereof. The ARTIST shall submit to the OWNER'S REPRESENTATIVE progress reports in accordance with the schedule provided for in Section 1.2 (a). c. The ARTIST shall complete the fabrication and ensure installation of the ART WORK in substantial conformity with the approved Proposal. d. The ARTIST shall present to the COMMITTEE in writing for further review and 2 approval any significant changes in scope, design, color, .size, material or texture of ART WORK not permitted by or not in substantial conformity with the Proposal. A significant change is any change in the scope, design, color, size, material, texture or location of the ART WORK ,any change which affects installation, scheduling, site preparation or maintenance for the ART WORK or any change to the concept of the ART WORK as represented in the Proposal. 1.3 Delivery and Installation a. The ARTIST shall notify the OWNER'S REPRESENTATIVE in writing when the fabrication of the ART WORK is completed and the ARTIST is ready for its delivery and installation at the site. b. The ARTIST agrees to notify the OWNER'S REPRESENTATIVE, no fewer than thirty (30) days prior to the ARTISTS intended time of delivery to determine the particulars of delivery time, location and agent designated by the OWNER'S REPRESENTATIVE. c. The ARTIST shall deliver and consult with the OWNER'S REPRESENTATIVE on the installation of the completed ART WORK at the site in compliance with the schedule approved pursuant to Section 1.2 (a). d. The ARTIST shall work with the OWNER'S REPRESENTATIVE in determining the location of the sculpture in the Waterworks Prairie Park. OWNER'S REPRESENTATIVE shall make the final decision on location. The ARTIST shall be responsible for all expenses, labor and equipment to prepare the site and constnact a sculpture pad designed to adequately support and secure the ART WORK and insure the timely installation of the ART WORK. ARTIST shall install the. ART WORK on the sculpture pad e. Installation of the completed sculpture shalt occur no later than August 31, 2009. 1.4 Post Installation a. Within 30 days after the installation of the ART WORK, the ARTIST shall furnish the OWNER'S REPRESENTATIVE with a minimum of twelve digital photographs on a disk which document the process and development of the ART WORK from beginning fabrication through completion. b. The OWNER shall arrange photographic documentation of the site and the installed ART WORK at the site. c. The ARTIST shall be notified of any dates and times for presentation ceremonies relating to the ART WORK. d. Upon installation of the ART WORK, the ARTIST shall provide to the OWNER'S REPRESENTATIVE written instructions for appropriate maintenance and preservation of the ART WORK. 1.5 Final Acceptance a. The ARTIST shall advise the OWNER'S REPRESENTATIVE in writing when all 3 services in Sections 1.1 through 1.4 (d) have been completed in substantial conformity with the Proposal. This date shall be no later than 6 months after the date of the first installment payment by the ARTIST as detailed in Section 2.1 (a). b. The OWNER'S REPRESENTATIVE shall notify the ARTIST in writing of OWNER'S final acceptance of the ART WORK. c. Final acceptance shall be effective on the date of the OWNER'S REPRESENTATIVE'S written notification to ARTIST of final acceptance. 1.6 Risk of Loss The risk of loss or damage to the ART WORK shall be borne by the ARTIST until final acceptance by the OWNER, and the ARTIST shall take such measures as are necessary to .protect the ART WORK from loss or damage until final acceptance. The ARTIST shall not be responsible for loss or damage due to vandalism, theft, accidents, or acts of God once installation of the ART WORK is complete. 1.7 Liability, Indemnification and tnsurance a. The ARTIST agrees to indemnify, defend and hold OWNER and its officers, employees, and agents harmless from any and all loss, cost, damage and expense (including reasonable attorney's fees and court costs) resulting from, arising out of, or incurred by reason of any claims, actions or suits based upon or alleging bodily injury, including death, or property damage arising out of or resulting from ARTIST'S operations, duties or responsibilities under this agreement, whether such be by ARTIST himself or by any subcontractor or by anyone directly or indirectly employed by the ARTIST. b. Upon final acceptance of the ART WORK, the OWNER shall, to the extent permitted by law, and without waiving any immunities available thereunder, indemnify and hold harmless the ARTIST against any and all Gaims or liabilities thereafter made in connection with the ART WORK, the site, the project or this agreement, except claims by the OWNER against the ARTIST and claims which may occur as a result of the ARTISTS breach of the warranties provided in Article 4. c. The ARTIST and all employees of the ARTIST shall each effect and maintain insurance to protect the ARTIST from claims under workers compensation acts; claims for damages because of bodily injury inGuding personal injury, sickness or disease, or death of any of the ARTIST'S employees or of any person other than the ARTISTS employees; and from claims for damages because of injury to or destruction of tangible property; including loss of use resulting therefrom; and from Gaims arising out of the ARTIST'S performance of professional services caused by errors, omissions, or negligent acts for which the ARTIST is legally liable. 1.8 Title Title of the ART WORK shall pass to the OWNER upon OWNER'S final acceptance of the completed ART WORK Article 2. Compensation and Payment Schedule 4 2.1 Fixed Fee The OWNER. shall pay the ARTIST a fee not to exceed Eighty-Thousand dollars ($80,000) which shall constitute full compensation for all fees, services, expenses, and materials to be performed and furnished by the ARTIST under this agreement. Expenses shall include all travel and lodging required for the ARTIST to fulfill his obligations under this contract. The fee shall be paid in the following installments, expressed as percentages of such fixed fee, each installment to represent full and final, non refundable payment for all services and materials provided prior to the due date thereof: a. 37.5% or $30,000, within thirty (30) days after execution of this agreement. b. 62.5% or $50,000 within thirty (30) days of the determination of OWNER'S REPRESENTATIVE that the sculpture is completed, has been properly installed and accepted by the OWNER'S REPRESENTATIVE but no earlier than July 1, 2009. 2.2 ARTIST'S Expenses The ARTIST shall be responsible for the payment of all expenses necessary for the proper performance of the services required under this agreement, including but not limited to mailing or shipping charges on submissions to the OWNER'S REPRESENTATIVE, the cost of any and all engineering evaluations as required by the OWNER, transporting the ART WORK to the site and the costs of all travel and lodging by the ARTIST and the ARTIST'S agents and employees Article 3. Time of Performance 3.1 Duration The services to be required of the ARTIST as set forth 'in Article 1 shall be completed in accordance with the schedule for completion of the ART WORK as proposed by the ARTIST and approved by the OWNER'S REPRESENTATIVE pursuant to Section 1.2, provided that such time limits may be extended or otherwise modified by written agreement between the ARTIST and the OWNER'S REPRESENTATIVE. 3.2 Construction Delays If, when the ARTIST completes fabrication or procurement of the ART WORK in accordance with the approved schedule and notifies the OWNER that the ART WORK is ready for installation, the ARTIST is delayed from installing the ART WORK within the time specified in the schedule because OWNER has not prepared the site for installation as specified in Section 1.3(d) hereof, as a result of the improvements not being completed on the site to permit installation of the ART WORK, the OWNER shall provide storage, or reimburse the ARTIST for reasonable transportation and storage costs incurred for the period between the time provided in the schedule for commencement of installation and the date upon which the site is sufficiently complete to reasonably permit installation of the ART WORK. In addition, the OWNER shall reimburse the ARTIST for any additional travel costs or for unnecessary time spent on the site due to delays caused by the OWNER. Such reimbursements shall be expenses in adddition to the Fixed Fee enumerated in Section 2.1. 5 3.3 Early Completion of ARTIST Services The ARTIST shall bear any transportation and storage costs resulting from the completion of the ARTISTS services prior to the time provided in the schedule for installation. 3.4 Time Extensions The OWNER'S REPRESENTATIVE shall grant a reasonable extension of time to the ARTIST in the event that there is a delay on the part of the ARTIST in pertorming its obligations under this Agreement due to conditions beyond the ARTISTS control or Acts of God which render timely performance of the ARTISTS services impossible or unforeseeably burdensome. Likewise the ARTIST shall grant a reasonable extension of time to the OWNER in the event that there is a delay on the part of the OWNER in pertorming its obligations under this Agreement due to conditions beyond the OWNER'S control or Acts of God which render timely pertormance of the OWNER'S services impossible or unforeseeably burdensome. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control will not be considered a breach of contract; provided that such obligations shall be suspended only for the duration of such condition. Article 4. Warranties 4.1 Warranties of Title The ARTIST represents and warrants that: {a) the ART WORK is solely the result of the artistic effort of the ARTIST; (b} except as otherwise disclosed in writing to the OWNER'S REPRESENTATIVE, the ART WORK is unique and original and does not infringe upon any copyright; (c) that the ART WORK, or a duplicate thereof, has not been accepted for sale elsewhere; and (d) the ART WORK is free and Gear of any liens from any source whatever. 4.2 Warranties of Quality and Condition The ARTIST represents and warrants that: (a) the execution and fabrication of the ART WORK will be pertormed in a workmanlike manner; (b) the ART WORK, as fabricated and installed, will be free of defects in material and workmanship, including any defects consisting of inherent qualities which cause or accelerate deterioration of the ART WORK; and (c) maintenance recommendations submitted by the ARTIST to the OWNER'S REPRESENTATIVE hereunder, if followed, will achieve their intended result. The warranties described in this /Section 4.2 shall survive for a period of five years after the final acceptance of the ART WORK. The OWNER shall give notice to the ARTIST of any observed breach with reasonable promptness. The ARTIST shall, at the request of the OWNER, and at no cost to the OWNER, cure reasonably and promptly the breach of any such warranty in a manner that is consistent with professional conservation standards (including, for example, cure by means of repair or refabricatian of the ART WORK). Article 5. Reproduction Rights 5.1 General 6 To the extent not limited by this Section 5.1, the ARTIST retains all rights under the Copyright Act of 1976, 17 U.S.C., 101 et. seq., and all other rights in and to the ART WORK except ownership and possession. In view of the intention that the ART WORK in its final dimension shall be unique, the ARTIST shall not make any additional duplicate reproductions of the final ART WORK, nor shall the ARTIST grant permission to others to do so except with the written permission of the OWNER. The ARTIST grants to the OWNER and its assigns aroyalty-free, irrevocable license to make two or three dimensional reproductions of the ART WORK for educational and/or non-commercial purposes, including but not limited to reproductions used in advertising, calendars, posters, brochures, media, publicity, catalogues, museum, educational and development projects, or other similar publications, provided that these rights are exercised in a professional manner. 5.2 Notice All reproductions by the OWNER shall contain a credit to the ARTIST and a copyright notice substantially in the following form: ~ [ARTISTS NAME], date of publication. 5.3 Credit to Owner The ARTIST shall use best efforts to give a credit reading substantially, "an original art work owned and commissioned by the City of Iowa City, Iowa" in any public showing under the ARTISTS control or reproductions of the ART WORK. 5.4 Registration The ARTIST may cause to be registered, with the United States Register of Copyrights, a copyright of the ART WORK in the ARTISTS name. Article 6. ARTISTS Rights 6.1 Identification The OWNER shall, at its expense, prepare and install at the site a plaque identifying the ARTIST, the title of the ART WORK, and the year of completion; and shall reasonably maintain such notice to the extent as may be practicable. 6.2 Maintenance The OWNER recognizes that maintenance of the ART WORK on a regular basis is essential to the integrity of the ART WORK. The OWNER shall take reasonable steps to assure that the ART WORK is properly maintained and protected, taking into account the instructions of the ARTIST provided in accordance with Section 1.4 {b). 6.3 Alteration of the Work or of the Site a. Except as provided under subsection 6.3(b), below, The OWNER agrees that it will not intentionally damage, alter, modify or change the ART WORK without the prior written approval of the ARTIST. 7 b. The OWNER reserves the right to alter the location of the ART WORK; relocate the ART WORK to another site; and remove the ART WORK from public display. The following provisions shall apply to relocation or removal: (i) While the OWNER shall attempt to remove ART WORK in such a way as to not affect the ART WORK, it is the parties' understanding that such removal may result in damage, alteration, modification, destnaction, distortion or other change of the ART WORK. The ARTIST acknowledges that this provision shall qualify under 17 U.S. C. Section 113 (d) so as to waive rights under 17 U.S.C. Section 1~A. (ii) If, at the time of removal, it is determined that the ART WORK may be removed without damage, alteration, modification, destruction, distortion or other change, OWNER shall give notice as required by 17 U.S.C. Section 113 (d) (2) and (3). On completion of the ART WORK, the ARTIST agrees to file the records, including ARTISTS identity and address, with the Register of Copyrights as provided under 17 U.S.C. Section 113 (d) (3). The ARTIST further agrees to update information with the Register of Copyrights so as to permit notification of intent to remove the ART WORK. 6.4 Permanent Record. The OWNER'S REPRESENTATIVE shall maintain on permanent file a record of this Agreement and the location and disposition of the ART WORK. ArtiGe 7. ARTIST as Independent Contractor. The ARTIST shall pertorm all work under this Agreement as an independent contractor and not as an agent or an employee of the OWNER. The ARTIST shall not be supervised by any employee or official of the OWNER, nor shall the ARTIST exercise supervision over any employee or official of the OWNER. ArtiGe 8. Assignments, Transfer, Subcontracting 8.1 Neither this Agreement nor any interest herein shall be transferred by the ARTIST. Any such transfer shall be null and void and shall be cause to annul this Agreement. 8.2 Subcontracting by ARTIST The ARTIST may subcontract portions of the services to be provided hereunder at the ARTIST'S expense provided that said subcontracting shall not negatively affect the design, appearance, or visual quality of the Proposal and shall be carried out under the personal supervision of the ARTIST. The ARTIST must obtain written approval from the OWNER'S REPRESENTATIVE prior to hiring any subcontractor. If the OWNER'S REPRESENTATIVE does not approve the hiring of any subcontractor, another subcontractor must be submitted for approval by the OWNER'S REPRESENTATIVE. Article 9. Termination If either party to this agreement shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate, any of the covenants, agreements or stipulations material to this agreement, the other party shall thereupon have the right to terminate this agreement by giving 8 written notice to the defaulting party of its intent to terminate specifying the grounds for termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the default. If it is not cured, then this agreement shall terminate. In the event of default by the OWNER, the OWNER shall promptly compensate the ARTIST for all services performed by the ARTIST prior to termination. In the event of default by the ARTIST, all finished and unfinished drawings, sketches, photographs, and other work products prepared and submitted or prepared for submission by the ARTIST under this agreement shalt at the OWNER'S option become its property, provided that no right to fabricate or execute the ART WORK shall pass to the OWNER and the OWNER shall compensate the ARTIST pursuant to Artice 2 for all services performed by the ARTIST prior to termination; or the ARTIST shall refund all amounts paid by the OWNER in exchange for all finished and unfinished related art works. Notwithstanding the previous sentence, the ARTIST shall not be relieved of liability to the OWNER for damages sustained by the OWNER by virtue of any breach of this Agreement by the ARTIST, and the OWNER may reasonably withhold payments to the ARTIST until such time as the exact amount of such damages due the OWNER from the ARTIST is determined. Article 10. Compliance The ARTIST shall be required to comply with Federal, State, and City statutes, ordinances and regulations applicable to the performance of the ARTISTS services under this agreement. Article 11. General Terms 11.1. The ARTIST shall not commit any of the following employment practices and agrees to prohibit the following practices in any subcontracts. 11.1.1 To discharge or refuse to hire any individual because of their race, color, religion, sex, national origin, disability, age, marital status, gender identity, or sexual orientation. 11.1.2 To discriminate against any individual in terms, conditions, or privileges of employment because of their race, color, religion, sex, national origin, disability, age, marital status, gender identity, or sexual orientation. 11.2 It is understood and agreed that the retention of ARTIST by OWNER for the purpose of the Project shall be as an independent contractor and shall be exclusive, but the ARTIST shall have the right to employ such assistance as may be required for the performance of the Project subject to the terms of Section 8.2 of the Agreement. 11.3 It is agreed by the OWNER that all records and files pertaining to information needed by the ARTIST for the project shall be available by said City upon reasonable request of the ARTIST. The OWNER agrees to furnish all reasonable assistance in the use of these records and files. 11.4 At the request of OWNER, the ARTIST shall attend such meetings of the City Council relative to the work set forth in this Agreement as deemed necessary by OWNER. Any requests made by the OWNER shall be given with reasonable notice to ARTIST to assure attendance and shall coincide with trips to Iowa City already planned by the ARTIST pursuant to Sections 1.2 and 1.3. 9 11.5 Should any section of this Agreement be found invalid, it is agreed that the remaining portion shall be deemed severable from the invalid portion and continue in full force and effect. 11.6 Upon signing this agreement, ARTIST acknowledges that Section 362.5 of the Iowa Code prohibits a City officer or employee from having an interest in a contract with the City, and certifies that no employee or officer of the City, which includes members of the City Council and City boards and commissions, has an interest either direct or indirect, in this agreement, that does not fall within the exceptions to said statutory provision enumerated in Section 362.5. Article 12. Entire Agreement This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. Article 13. Modification No alteration, change, or modification of the terms of the Agreement shall be valid unless made in writing and signed by both parties hereto and approved by appropriate action of the OWNER. ARTIST Iro orks, Inc. -Dale errill, Owner City Clerk Approvod BY CI't~r Attorney's Office 3 ~ t v f ~sq TEST ~~~~ Mari K. Karr DALE J. SCULPTURE ~, MERRILL N METAL Waterworks ~'rairiejcu~~ture ~'roPosa~ Artist: Dale ,J. Merrill, Liberty ~ron WorlCS, ~nc. Mt. Vernon, ~owa ~,ommissioned ~y: ~owa City Public Art Committee, City ~~ Iowa City ~nstallationjite: ~ater ~I`lorks Prairie green space. Description: Three Piece series abstract Kinetic Tree `jculptures. Large scale sculptures designed to have random wind driven movement. ~ach sculpture to have an upper "foliage" element which revolve around the "trunk" like base. Materials: `jculpture bases to be fabricated from weldedjtructuraljteel tubing. The top elements to be fabricated from both polished Aluminum and Stainiessjteel. Scale: Three sizes 40{t, 32 {t, 24 ~t ~udget: $80,000 total Notes: Artist responsible ~or complete sculpture design and build ,transportation and installation at site. ~nstailation to include the (3) individual concrete footings and electrical rough in design ~or ~uture solar lighting group.joiar lighting and installation by others. iJ ;: ~;. .: ., ;.. .; .., :, ::. f'~ •- t I, .. ,.ti. a U ~/~/ater~/~/or~CS ~'rairie ~cu~Pture ~; CITY OF IOWA CITY PUBLIC ART PROGRAM IOWA CITY WATER WORKS PRAIRIE PARK SCULPTURE AGREEMENT BY AND BETWEEN OWNER AND ARTIST THIS AGREEMENT is made on between the City of Iowa City, hereinafter referred to as the OWNER, and Liberty Iron Works Inch represented by Dale Merrill, proprietor, hereinafter referred to as the ARTIST. The OWNER'Sl REPRESENTATIVE shall be the Director of the Department of Planning and Community Development or his/her designee. The COMMITTEE shall b~the Public Art Advisory Committee. ;rr WHEREAS, the O ER, on the recommendation ofI`the COMMITTEE, has accepted the proposal for a sculpture onsisiting of three (3) polished aluminum rotating leaves to be installed at the Iowa City Wate Works Prairie Park hereinafter referred to as ART WORK. A copy of said proposal as accepte is attached hereto as Exhibit "A" (hereinafter "Proposal"). NOW, THEREFORE, in c sideration of the~~ mutual promises and undertakings contained herein, the parties agree as Ilows: r r Article 1. Scope of Services ~ 1.1 General a. The ARTIST shall perform all se ~ces and furnish all supplies, materials and equipment as necessary for the design, execu on~~abrication, transportation and installation of the ART WORK at the site. b. The ARTIST shall at all stages of execution, fabrication and installation coordinate his work with the OWNER'S REPRESENTATIVE. ti 1.2 Execution of the Work ', a. The ARTIST shall furnish the OWNER'S REPRESENTATIVE a tentative schedule for completion of fabrication and in tallation of the ART WORPC, including a schedule for the submission of progress reports, ~ any. The schedule must Abe approved by OWNER'S REPRESENTATIVE. After wr ten approval of the schedule by the OWNER'S REPRESENTATIVE, the ARTI shall fabricate, transport and co~isult with the OV'JNER'S REPRESENTATIVE on the in allation of the ART WORK in accordance with such schedule. Such schedule may be ~ amended by written agreement between the OV`JNER'S REPRESENTATIVE and the'ARTIST. b. The OWNER shall have the right to review the ART WORK at reasonable times during the fabrication thereof. The ARTIST shall submit to the OWNER'S REPRESENTATIVE progress reports in accordance with the schedule provided for in Section 1.2 (a). c. The ARTIST shall complete the fabrication and ensure installation of the ART WORK in substantial conformity with the approved Proposal. d. The ARTIST shall present to the COMMITTEE in writing for further review and approval any significant changes in scope, design, color, size, material or texture of ART 2 WORK not permitted by or not in substantial conformity with the Proposal. A significant change is any change in the scope, design, color, size, material, texture or location of the ART WORK , any change which affects installation, scheduling, site preparation or maintenance for' the ART WORK or any change to the concept of the ART WORK as represented in the Proposal. 1.3 Delivery and Installation a. The ARTIST shall notify the OWNER'S REPRESENTATIVE in writing when the fabrication of the A`~T WORK is completed and the ARTIST is ready for its delivery and installation at the site. , b. The ARTIST a tees to notify the OWNER'S REPRESENTATIVE, no fewer 1:han thirty (30) days prior to the ART T'S intended time of delivery to determine the particulars of delivery time, location and agent des Hated by the OWNER'S REPRESENTATIVE. c. The ARTIST shall de ~ver and consult with the OWNER'S REPRESENTATIVE on the installation of the completed AR WORK at the site in compliance with the schedule approved pursuant to Section 1.2 (a). d. The ARTIST shall work wi the OWNER'S REPRESENTATIVE in determining the location of the sculpture in the Wate rks Prairie Park. OWNER'S REPRESENTATIVE shall make the final decision on location. Th ARTIST shall be responsible for all expenses, labor and equipment to prepare the site and onstruct ~ sculpture pad designed to adequately support and secure the ART WORK and ~nsure tMe timely installation of the ART WORK. ARTIST shall install the ART WORK on the s Iptur~ pad e. Installation of the completed sculpture II occur no later than August 31, 2009. 1.4 Post Installation a. Within 30 days after the installatio of the ART WORK, the ARTIST shall furnish the OWNER'S REPRESENTATIVE with a mini um of twelve digital photographs on a disk which document the process and development of the ART WORK from beginning fabrication through completion. b. The OWNER shall arrange g~iotographic documentation of the site and the installed ART WORK at the site. / c. The ARTIST shall be ngfified of any dates and times for presentation ceremonies relating to the ART WORK. / d. Upon installation of,fhe ART WORK, the ARTIST shall provide to the OWNER'S REPRESENTATIVE written instructions for appropriate maintenance arid preservation of the ART WORK. 1.5 Final Acceptance '\ a. The ARTIST shall advise the OWNER'S REPRESENTATIVE in writing when all services in Sections 1.1 through 1.4 (d) have been completed in substantial conformity with the Proposal. This date shall be no later than 6 months after the date of the first installment payment by the ARTIST as detailed in Section 2.1 (a). b. The OWNER'S REPRESENTATIVE shall notify the ARTIST in writing of OWNER'S final acceptance of the ART WORK. c. Final acceptance shall be effective on the date of the OW'NER'S REPRESENTATIVE'S written notification to ARTIST of final acceptance. 1.6 Risk of Loss The risk of loss or damage to the ART WORK shall be borne by the ARTIST until final acceptance by the OWNER, and the ARTIST shall take such measures as are necessary to protect the ART WORK from loss or damage until final acceptance. The ARTIST shall not be responsible for loss or damage due to vandalism, theft, accidents, or acts of God once installation of the ART WORK is complete. 1.7 Liability, Indemnificationand Insurance a. The ARTIST agre s to indemnify, defe employees, and agents harmle from any and all to reasonable attorney's fees and co rt costs) resulting of any claims, actions or suits base upon or alleging damage arising out of or resulting fr ARTIST'S this agreement, whether such be by A TIST hims~ directly or indirectly employed by the ART T. b. Upon final acceptance of the ART X10( by law, and without waiving any immunities av< the ARTIST against any and all claims or liabili WORK, the site, the project or this agreem ARTIST and claims which may occur as a r provided in Article 4. ~ and hold OWNER and its officers, cost, damage and expense (including gym, arising out of, or incurred by reason odily injury, including death, or property rations, duties or responsibilities under or by any subcontractor or by anyone ~ K, the OWNER shall, to the extent permitted ble thereunder, indemnify and hold harmless ~~e thereafter made in connection with the ART nt, cept claims by the OWNER against the sult o the ARTIST'S breach of the warranties c. The ARTIST and all employe of the ARTIST shall each effect and maintain insurance to protect the ARTIST from aims under workers compensation acts; claims for damages because of bodily injury includi g personal injury, sickness or disease, or death of any of the ARTIST'S employees or of any erson other than the ARTIST'S employees; and from claims for damages because of injury to or destruction of tangible property; including loss of use resulting therefrom; and from claims arising out of the 'ARTIST'S performance of professional services caused by err rs, omissions, or negligent acts, for which the ARTIST is legally liable. 1.8 Title Title of the ART WORK shal pass to the OWNER upon OWNER'S final acceptance of the completed ART WORK Article 2. Compensation and Payment Schedule 2.1 Fixed Fee The OWNER shall pay the ARTIST a fee not to exceed Eighty-Thousand dollars ($80,000) which shall constitute full compensation for all fees, services, expenses, and materials to be performed and furnished by the ARTIST under this agreement. Expenses shall include all travel and lodging required for the ARTIST to fulfill his obligations under this contract. The fee shall be paid in the following installments, expressed as percentages of such fixed fee, each installment to represent full and final, non refundable payment for all services and materials provided prior to the due date thereof: a. 37.5°/Q or $30,000, within thirty (30) days after execution of this agreement. b. 62.5% \` r $50,000 within thirty (30) days,,, of the determination of OV~~NER'S REPRES NTATIVE that the sculpture is completed, has been properly installed and accepted b the OWNER'S REPRESENTATIVE but no earlier than July 1, 2009. 2.2 ARTIST'S Expenses The ARTIST shall be respo ible for the payment of II expenses necessary for the proper performance of the services re uired under this agreem nt, including but not limited to mailing or shipping charges on submissi ns to the OWNER'S PRESENTATIVE, the cost of any and all engineering evaluations as req red by the OWNER, transporting the ART WORK to the site and the costs of all travel and lodgin~by the ARTIST a d the ARTIST'S agents and employees Article 3. Time of Performance 3.1 Duration The services to be required of the ARTIST s et forth in Article 1 shall be completed in accordance with the schedule for completion o t e ART WORK as proposed by the ARTIST and approved by the OWNER'S REPRESENT IVE pursuant to Section 1.2, provided that such time limits may be extended or otherwis dified by written agreement between the ARTIST and the OWNER'S REPRESENTATIV ~. 3.2 Construction Delays / If, when the ARTIST completes fabrication r procuremenf'of the ART WORK in accordance with the approved schedule and notifies he OWNER that. the ART WORK is ready for installation, the ARTIST is delayed from in tailing the ART WORK within the time specified in the schedule because OWNER has not pr pared the site for installation as specified in Section 1.3(d) hereof, as a result of the improv ments not being completed on the site to permit installation of the ART WORK, the OWN R shall provide storage, or reimburse the ARTIST for reasonable transportation and storage sts incurred for the period between the time provided in the schedule for commencement of i stallation and the date upon which the site is sufficiently complete to reasonably permit install ion of the ART WORK. In addition, the OWNER shall reimburse the ARTIST for any additi al travel costs or for unnecessary time spent on the site due to delays caused by the OWNE Such reimbursements shall be expenses in adddition to the Fixed Fee enumerated in Secti , 2.1. 3.3 Early Completion of ARTIST,Services The ARTIST shall bear any transportation and storage costs resulting from the completion of the ARTIST'S services prior to the time provided in the schedule for installation. 5 3.4 Time Extensions The OWNER'S REPRESENTATIVE shall grant a reasonable extension of time to the ARTIST in the event that there is a delay on the part of the ARTIST in performing its obligations under this Agreement due to conditions beyond the ARTIST'S control or Acts of God which render timely performance of the ARTIST'S services impossible or unforeseeably burdensome. Likewise the ARTIST shall grant a reasonable extension of time to the OWNER in the event that there is a delay on the part of the OWNER in performing its obligations under this Agreement due to conditions beyond the OWNER'S control or Acts of God which render timely performance of the OWNER'S services impossible or unforeseeably burdensome. Failure to fulfill contractual obligations due to conditions beyond enther party's reasonable control will not be considered a breech of contract; provided that such (obligations shall be suspended only for the duration of such condition. ;~ Article 4. Warranties i 4.1 Warranties of Title ~ ~' The ARTIST represents and wa rants that: (a) th~ART WORK is solely the result of the artistic effort of the ARTIST; (b) exc pt as othery(iise disclosed in writing to the OV~INER'S REPRESENTATIVE, the ART W K is uniq~e and original and does not infringe upon any copyright; (c) that the ART WORK, or a duplicate thereof, has not been accepted for sale elsewhere; and (d) the ART WORK is ee arY'd clear of any liens from any source whatever. 4.2 Warranties of Quality and Condition The ARTIST represents and warrants t t: ( the execution and fabrication of the ART WORK will be performed in a workmanlike ma ner; (b the ART WORK, as fabricated and installed, will be free of defects in material and w rkmanshi including any defects consisting of inherent qualities which cause or accelerat deterioratio of the ART WORK; and (c) maintenance recommendations submitted by the RTIST to the WNER'S REPRESENTATIVE hereunder, if followed, will achieve their intende result. ~ The warranties described in thi /Section 4.2 shall su five for a period of five years after the final acceptance of the ART ORK. The OWNER sh II give notice to the ARTIST of any observed breach with reaso able promptness. The A TIST shall, at the request of the OWNER, and at no cost tot OWNER, cure reasonably a~,id promptly the breach of any such warranty in a manner that i consistent with professional conservation standards (including, for example, cure by means o repair or refabrication of the ART WORK). Article 5. Reproduction fights 5.1 General } To the extent nof'limited by this Section 5.1, the ARTIST retains all rights under the Copyright Act of 1976, 17 U.S.C., 101 et. seq., and all other rights in and to the ART WORK except ownership and possession. In view of the intention that the ART WORK in its final dimension shall be unique, the ARTIST shall not make any additional duplicate reproductions of the final ART WORK, nor shall the ARTIST grant permission to others to do so except with the written permission of the OWNER. The ARTIST grants to the OWNER and its assigns aroyalty-free, irrevocable license to make two or three dimensional reproductions of the ART WORK for 6 educational and/or non-commercial purposes, including but not limited to reproductions used in advertising, calendars, posters, brochures, media, publicity, catalogues, museum, educational and development projects, or other similar publications, provided that these rights are exercised in a professional manner. 5.2 Notice All reproductions by the OWNER shall contain a credit to the ARTIST and a copyright notice substantially in the following form: ~ [ARTIST'S NAME], date of publication. 5.3 Credit tP Owner The ARTIST all use best efforts to give a credit reading substantially, "an original art work owned and co issioned by the City of Iowa City, Iowa" in any public showing under the ARTIST'S control r reproductions of the ART ?UVORK. i /. 5.4 Registration The ARTIST may caus to be registered with the United States Register of Copyrights, a copyright of the ART WOR in the ARTIST S name. Article 6. ARTIST'S Rights 6.1 Identification The OWNER shall, at its expense, repare and install at the site a plaque identifying the ARTIST, the title of the ART WORK, d the year of completion; and shall reasonably maintain such notice to the extent as may be rac ~ able. 6.2 Maintenance The OWNER recognizes that m ntenance of tfi1~ ART WORK on a regular basis is essential to the integrity of the ART WOR The OWNER s`1~all take reasonable steps to assure that the ART WORK is properly main fined and protectedMaking into account the instructions of the ARTIST provided in accords e with Section 1.4 (b). ~`~, 6.3 Alteration of the Work r of the Site a. Except asp vided under subsection 6.3(b), be~w, The OWNER agrees that it will not intentionally da age, alter, modify or change the ARC. WORK without the prior written approval of the A IST. b. The OWNER reserves the right to alter the location o~the ART WORK; relocate the ART WORK to another site; and remove the ART WORK from public display. The following provisions shall apply to relocation or removal: (i) While the OWNER shall attempt to remove ART WORK in such a way as to not affect the ART WORK, it is the parties' understanding that such removal may result in damage, alteration, modification, destruction, distortion or other change of the ART WORK. The ARTIST acknowledges that this provision shall qualify under 17 U.S. C. Section 113 (d) so as to waive rights under 17 U.S.C. Section 106A. 7 (ii) If, at the time of removal, it is determined that the ART WORK may be removed without damage, alteration, modification, destruction, distortion or other change, OWNER shall give notice as required by 17 U.S.C. Section 113 (d) (2) and (3). On completion of the ART WORK, the ARTIST agrees to file the records, including ARTIST'S identity and address, with the Register of Copyrights as provided under 17 U.S.C. Section 113 (d) (3~). The ARTIST further agrees to update information with the Register of Copyrights so as to permit notification of intent to remove the ART WORK. 6.4 Permanent Record. \ ,~ The OWNER'S REI~RESENTATIVE shall maintain on permanent file a record of this Agreement and the loc' ion and disposition of the ART WORK. ~~ Article 7. ARTIST as Inde ndent Contractor. j The ARTIST shall perform all ork under this Agr ment as an independent contractor and not as an agent or an employee f the OWNER. T e ARTIST shall not be supervised by any employee or official of the O ER, nor shall the ARTIST exercise supervision over any employee or official of the OWNE Article 8. Assignments, Transfer, Sub~ontractin 8.1 Neither this Agreement nor any int res such transfer shall be null and void and sh II 'rein shall be transferred by the ARTIST. Any cause to annul this Agreement. 8.2 Subcontracting by ARTIST The ARTIST may subcontract portion of th services to be provided hereunder at the ARTIST'S expense provided that said subcontr cting shall not negatively affect the design, appearance, or visual quality of the roposal a shall be carried out under the personal supervision of the ARTIST. The A IST must ob in written approval from the OWNER'S REPRESENTATIVE prior to hiring ny subcontracto . If the OWNER'S REPRESENTATIVE does not approve the hiring of any ubcontractor, anotP~er subcontractor must be submitted for approval by the OWNER'S REPR SENTATIVE. `Z Article 9. Termination ~ If either party to this agreem nt shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violat ,any of the covenants, agreements or stipulations material to this agreement, the other party shall thereupon have the right to terminate this agreement by giving written notice to the de ulting party of its intent to terminate specifying the grounds for termination. The default g party shall have thirty (30) days after receipt of the notice to cure the default. If it is not cur, d, then this agreement shall terminate. In the event of default: by the OWNER, the OWNER shall promptly compensate the ARTIST for al+ services performed by the ARTIST prior to termination. In the event of default by the ARTIST, all finished and unfinished drawings, sketches, photographs, and other work products prepared and submitted or prepared for submission by the ARTIST under this agreement shall at the OWNER'S option become its property, provided that no right to fabricate or execute the ART WORK shall pass to the OWNER and the OWNER shall compensate the ARTIST pursuant to Article 2 for all services performed by the ARTIST prior to termination; or the ARTIST shall refund all amounts paid by 8 the OWNER in exchange for all finished and unfinished related art works. Notwithstanding the previous sentence, the ARTIST shall not be relieved of liability to the OWNER for damages sustained by the OWNER by virtue of any breach of this Agreement by the ARTIST, and the OWNER may reasonably withhold payments to the ARTIST until such time as the exact amount of such damages due the OWNER from the ARTIST is determined. Article 10. Compliance The ARTIST shall be required to comply with F regulations applicable to the performance of the ral, State, and City statutes, ordinances and TIST'S services under this agreement. Article 11. General Terms 11.1. The ARTIS'~ shall not commit any of t e following employment practices and agrees to prohibit the,following practices in any subcontracts. 11.1.1 To discharge or efuse to hire any ind~idual because of their race, color, religion, sex, national origin, dis bility, age, marital tatus, gender identity, or sexual orientation. 11.1.2 To discriminate again t any individua9 in terms, conditions, or privileges of employment because of their race, lor, religion;' sex, national origin, disability, age, marital status, gender identity, or sexua orientatiorn. 11.2 It is understood and agreed hat t e retention of ARTIST by OWNER for the purpose of the Project shall be as an ' d pendent contractor and shall be exclusive, but the ARTIST shall have the right to mploy such assistance as may be required for the performance of the Project subj to the terms of Section 8.2 of the Agreement. 11.3 It is agreed by the OWNER th tall cords and files pertaining to information needed by the ARTIST for the project hall be available by said City upon reasonable request of the ARTIST. The OWNE agrees to\rnish all reasonable assistance in the use of these records and files. 11.4 At the request of OWNER, he ARTIST sha attend such meetings of the City Council relative to the work set fo in this Agreemen as deemed necessary by OWNER. Any requests made by the O NER shall be give' with reasonable notice to ARTIST to assure attendance and hall coincide with trips to Iowa City already planned by the ARTIST pursuant to Se tions 1.2 and 1.3. 11.5 Should any section this Agreement be found invalid, it is agreed that the remaining portion shall be de med severable from the invalid `portion and continue in full force and effect. / 11.6 Upon signing this agreement, ARTIST acknowledges that Section 362.5 of the Iowa Code prohibits a City officer or employee from having an interest in a contract with the City, and certifies that no employee or officer of the City, which includes members of the City Council and City boards and commissions, has an interest either clirect or indirect, in this agreement, that does not fall within the exceptions to said statutory provision enumerated in Section 362.5. Article 12. Entire Agreement This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. Article 13. Modification No alteration, change or modification of the terms of th Agreement shall be valid unless made in writing and signed b both parties hereto and approv~d by appropriate action of the OWNER. ARTIST OWNER Liberty Iron Work -Dale Merrill, P prietor Regenia D. Bailey, Mayor ATTEST Marian K. Karr City Clerk Approvod 8y ~~~ ~~~, pity Attorney's Office PTU "~~-~ ~ -~ l ~ i'T J~ .~~ ~. ~~ f` Waterworks Prairie)jculPture ProPosa~ grtist: Dale,. Merril, ~ibert~ ~ n Wor~CS, ~nc Mt. Vernon, ~owa Commissioned ~y: ~owa City Pu61~c rt C mittee, City ~~ Iowa City ~nsta~~ation `jite: Mater Wor~CS Prairie ~r~~n space. Description: three Piece series abstra (~i etic Treejculptures. Large sca~e~ sculptures designed to have random wind driven m vement. ach scu~Pture to have an upper "~o~ia~e" element which revo~ve around the "tr nk" ~i~Ce base. Materials: `jcu~Pture bases to b fabricated from we edjtructura~jteel tu6iri~. The top elements to 6e ~a6ricated ~rom oth polished /-~Iuminum ndjtain~ess Stee~. jcale: Three sizes 40~t, ~2 {-t, 24 ~t ~ud~et: $80,000 tota~ Notes: Artist respons~~e ~or complete scu~pture design and 6uild~ransportation and installation at site. installation to include the (3) individual concrete ~lpotings and electrical rough in design ~or future solar li~htin~~roup.jolar li~htin~ and installation 6y others. F.,