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Lease Dubuque Girls IndependentCITY OF DUBUQUE, IOWA MEMORANDUM April 30, 2001 TO: FROM: SUBJECT: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager Lease with Dubuque Girls' Independent Softball League Leisure Services Manager Gil Spence is recommending that a public hearing be set for May 21, 2001, to consider the lease agreement with the Dubuque Girls' Independent Softball League. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Gil D. Spence, Leisure Services Manager CITY OF DUBUQUE, IOWA MEMORANDUM April 20, 2001 TO: Michael C. Van Milligen, City Manager FROM: Gil D. Spence, Leisure Services Manager SUBJECT: Lease With Dubuque Girls' Independent Softball League INTRODUCTION The purpose of this memorandum is to ask the City Council to adopt the attached resolution setting a public hearing on May 21, 2001, to consider approving a lease agreement with the Dubuque Girls' Independent Softball League for part of the Rip Row Valley property. DISCUSSION The Dubuque Girls' Independent Softball League is planning to construct four softball fields on 11.6 acres of the Rip Row Valley property on Julien Dubuque Drive. Corporation Counsel Barry Lindahl and the league's attorney have agreed on the attached 35-year lease. A lease agreement of this length needs to have a public hearing prior to approval so I am requesting a public hearing for May 21st. ACTION STEP The action requested is that the City Council approve the attached resolution setting a public hearing for May 21, 2001, on the lease agreement with the Dubuque Girls' Independent Softball League. GDS:et attachments Prepared by: Leisure Services Address: 2200 Bunker Hill Rd Phone: 589-4263.. RESOLUTION NO.185-01 FIXING DATE OF HEARING ON LEASE AGREEMENT WHEREAS, the City Council of the City of Dubuque, Iowa is considering entering into a Lease Agreement with the Dubuque Girls' Independent Softball League for 11.6 acres of the Rip Row Valley Property. NOW, THEREFORE, BE IT RESOLVED, BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA, that on the 21st day of May, 2001, a public hearing will be held at 6:30 p:m; inthe Public Library Auditorium; at which time interested persons may appear and be heard for or against entering into the proposed lease, and the City Clerk be and is hereby directed to cause a notice of time and place of such headng to be published in a newspaper having general circulation in the City of Dubuque, Iowa, which notice shall be not less than four days nor more than twenty days prior to the day fixed for its consideration. At the hearing, any interested person may appear and file objections to the proposed Lease Agreement. Passed, approved and adopted this 7th day of May, 2001. Terrance M. Duggan, Mayor Attest: Jeanne F. Schneider, City Clerk PK AGREEMENT THIS LEASE AGREEMENT (the "Lease") made as of the __ day of , 2001, between the CITY OF DUBUQUE, IOWA, a municipal corporation (Lessor) and DUBUQUE GIRLS INDEPENDENT SOFTBALL LEAGUE, an Iowa nonprofit corporation (Lessee). ARTICLE I DEMISE AND TERM 1. In consideration of the rents hereinafter reserved and the terms, covenants, conditions and agreements set forth in this Lease, Lessor hereby leases to Lessee the real property described in Exhibit A attached to and made a part of this Lease, together with any and all easements and appurtenances thereto and subject to any easements are restrictions of record (the "Demised Premises"), to have smd to hold for a term of thirty-five (35) years commencing on the 1st day of , 2001, and terminating at 11:59 p.m. on the 30th day of , 2036, subject to all of the terms, covenants, conditions and agreemants contained herein. Lessor reserves the right to terminate this Lease or to modify the Demised Premises upon 365 days written notice to Lessee if Lessor determines in its sole discretion that all or part of the Demised Premises are necessary for the expansion of Lessor's Wastewater Treatment Facility. Lessee's use of the Demised Premises shall be exclusively for the construction and operation of softball fields and related amenities. Lessee agrees that all monies and contributions derived from the operation of the softball fields shall be used exclusively for the operation, maintenance and improvement of the Demised Premises or the Dubuque Girls' Independent Softball League. Lessee's failure to use the Demised Premises for a softball field for any consecutive twelve-month period shall constitute an abandonment of this Lease and this Lease shall automatically terminate at the end of such period. Lessor makes no representations or warranties of any kind as to the condition, including the environmental condition, of the Demised Premises and Lessee accepts the Demised Premises as is. ARTICLE II RENT Lessee shall pay Lessor rent for the Demised Premises of One Dollar per year. Lessee shall also pay the costs for all utilities serving the Demised Premises. ARTICLE III TITLE TO IMPROVEMENTS Lessee shall construct on the Demised Premises such parking facilities as shall be required by the City of Dubuque Code of Ordinances upon the prior approval of the design and construction of such parking facilities by Lessor. On delivery of possession of the Demised Premises to Lessee, Lessee shall be entitled to construct on the Demised Premises all structures, buildings or other improvements as agreed upon by the Lessor and Lessee (the "Improvements"). Lessor, through its Leisure Services Department Manager, shall have the right, ha its reasonable discretion, to approve the design, appearance and quality of any such Improvements, which approval shall not be unreasonably withheld or delayed. All improvements presently on the Demised Premises and all Improvements hereafter constructed on the Demised Premises are and shall be the property of Lessee during the continuance of the term of this Lease and no longer. Upon any termination of this Lease, by reason of any cause whatsoever, if the Improvements or any part thereof shall then be on the Demised Premises, all of Lessee's right, title, and interest therein shall cease and terminate, and title to the Improvements shall vest ha Lessor, and the Improvements or the part thereof then within the Demised Premises shall be surrendered by Lessee to Lessor. No further deed or other instrument shall be necessary to confirm the vesting in Lessor of title to the Improvements. However, upon any termination of this Lease, Lessee, upon request of Lessor, shall execute, acknowledge, and deliver to Lessor a deed confirming that all of Lessee's right, title, and interest in or to the Improvements has expired, and that title to the Improvements has vested in Lessor. ARTICLE IV ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST No right to encumber leasehold interest. Lessee shall not encumber by mortgage, deed of trust, or other instrument, its leasehold interest and estate in the Demised Premises, or any Improvements placed by Lessee on the Demised Premises, as security for any indebtedness of Lessee. ARTICLE V REPAIRS AND MAINTENANCE 5.1 Lessee shall at all times during the term of this Lease, at Lessee's own costs and expense, keep the Demised Premises and the Improvements thereon, in good order, condition, and repair, casualties and ordinary wear and tear excepted. Lessee shall keep and maintain the Demised Premises and all improvements in superior condition. Lessee shall keep the Demised Premises in such condition as may be required by law and by the terms of the insurance policies furnished pursuant to this Lease, whether or not such repair shall be interior or exterior, and whether or not such repair shall be of a structural nature. Upon reasonable notice to Lessee, Lessor may, at its discretion, conduct an annual inspection of the Demised Premises to determine Lessee's compliance with this Article VI. 2 5.2 Lessee's responsibility under this Article shall include cutting of all grass on the Demised Premises. 5.3 Lessee shall be responsible for daily Irash removal from the Demised Premises. ARTICLE VI COMPLIANCE WITH LAW 6.1. During the term of rids Lease, Lessee shall comply with all applicable laws applicable to Lessee's use of the Demised Premises, the breach of which might result in any penalty on Lessor or forfeiture of Lessur's title to the Demised Premises. 6.2. Lessee shall not commit waste on the Demised Premises except as necessary for the removal or construction of any buildings and Improvements on the Demised Premises, but shall not be liable for any damages to or destruction of any buildings or improvements on the Demised Premises, nor be required to repair or rebuild the buildings or Improvements. ARTICLE VII ALTERATIONS Lessee shall have the right, at Lessee's expense, from time to time during the term of this Lease to make such alteration, addition, or modification to the Demised Premises or the Improvements thereon as shall be agreed upon in writing by Lessor. ARTICLE VIII USE OF DEMISED PREMISES Lessee will not use or allow the Demised Premises or any buildings or Improvements thereon or any appurtenances thereto, to be used or occupied for any unlawful purpose or in violation of any certificate of occupancy. Lessee will not suffer any act to be done or may condition to exist within the Demised Premises or in any Improvement thereon, or permit any article to be brought therein, which may be dangerous, unless safeguarded as required by law, or which may, in law, constitute a nuisance, public or private, or which may make void or voidable any insurance in force with respect thereto. ARTICLE IX INSURANCE 9.1 Lessee will at all times during the term of this Lease maintain insurance on the Demised Premises of the following character: 3 A. Insurance against loss or damage by fire and other risks and perils from time to time included under standard extended coverage endorsements in an amount equal to not less than ninety percent (90%) of the replacement value of the Demised Premises and the Improvements, (exclusive of the costs of excavation, foundations, and footings below the lowest floor). B. Public liability insurance, against claims for personal injury, death, or property damage occurring in, upon, or about the Demised Premises. The limits of liability of such insurance policy shall be a combined single limit of $2,000,000.00. 9.2 Such insurance shall be written by companies legally qualified to issue such insurance in the State of Iowa and such insurance shall name as the insured parties thereunder, Lessor, or its assigns, and Lessee, as their interests may appear. Lessor shall not be required to prosecute any claim against any insurer or to contest any settlement proposed by any insurer, provided that Lessee may, at its cost and expcnase, prosecute any such claim or contest any such settlement, and in such event Lessee may bring any such prosecution or contest in the name of Lessor, Lessee, or both, and Lessor shall cooperate with Lessee and will join therein at Lessee's written request upon receipt by Lessor of an indemnity from Lessee against all costs, liabilities, and expenses in connection with such cooperation, prosecution, or contest. 9.3 Lessee shall deliver to Lessor promptly after the execution and delivery of this Lease the original or duplicate policies or certificates of insurers satisfactory to Lessor evidencing all the insurance which is then required to be maintained by Lessee hereunder, and Lessee shall, within 30 days prior to the expiration of any such insurance, deliver other original or duplicate policies or other certificates of the insurers evidencing the renewal of such insurance. Should Lessee fail to effect, maintain, or renew any insurance provided for herein, or to pay the premium therefor, or to deliver to Lessor any of such policies or certificates, Lessor, at its option, but without obligation so to do, may procure such insurance, and any sums expended by it to procure such insurance shall be additional rent hereunder and shall be repaid by Lessee within 30 days following the date on which demand therefor shall be made by Lessor. Such insurance policy(ies) shall contain a provision that such policy(les) shall not be canceled or reduced in scope without thirty (30) days prior written notice to Lessor. 9.4 Each party shall look first to any insurance in its favor before making any claim against the other party for recovery for loss or damage resulting from fire or other casualty, and to the extent that such insurance is in force and collectible and to the extent perm/tted by law, Lessor and Lessee each hereby releases and waives all right of recovery against the other or anyone claiming through or under each of them by way of subrogation or otherwise. The foregoing release and waiver shall be in force only if both releasors' insurance policies contain a clause providing that such a release or waiver shall not invalidate the insurance, and also provided that such policies can be obtained without additional premiums. Lessee acknowledges that Lessor will not carry insurance on Lessee's furniture and/or furnishings or any trade fixtures or equipment, improvements, or appurtenances removable by Lessee or Lessee's leasehold improvements and agrees that Lessor will not be obligated to repair any damage thereto or replace the same. 4 ARTICLE X INDEMNIFICATION Indemnification of Lessor. Lessee will protect, indemnify, and save harmless Lessor from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessor by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Demised Premises during the term of this Lease and resulting from any act or omission of Lessee or anyone claiming by, tlxrough, or under Lessee during the term of the Lease; and (b) any failure on the part of Lessee to perform or comply with any of the terms of this Lease. In case any action, suit, or proceeding is brought against Lessor by reason of such occurrence, Lessee will, at Lessee's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by Lessor. Lessee shall require of all users of the Demised Premises a waiver of liability in a form acceptable to Lessor. ARTICLE XI CONDEMNATION 11.1 Entire Condemnation. If at any time during the term of this Lease all or substantially all of the Demised Premises or the improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality, or other public or private authority, then this Lease shall terminate on the date of vesting of title in such taking and any prepaid rent shall be apportioned as of said date. Substantially all of the Demised Premises and the improvements thereon shall be deemed to have been taken if the remaining portion of the Demised Premises shall not be of sufficient size to permit Lessee to operate its business thereon in a manner similar to that prior to such taking. 11.2 Allocation of Award. Any award for such taking of all or substantially all of the Demised Premises shall be paid to the parties hereto in accordance with the following: A. To Lessor, the amount of the award attributable to the Demised Premises, determined as if this Lease was not in effect at the time of such award, excluding therefrom the amount of the award attributable to the improvements, and all other sums not directly attributable to the value of the Land constituting the Demised Premises. B. To Lessee, the entire award except that portion allocated to Lessor above, including but not limited to, the value of the improvements plus any other amount assessed for Lessee. 11.3 Partial Condemnation. If less than all or substantially all of the Demised Premises or the improvements thereon shall be taken in the exercise of the power of eminent 5 domain by any sovereign, munieipaiity, or other public or private authority, then Lessee, at its option, may elect to continue this Lease in full force and effect or terminate this Lease. If Lessee shall elect to maintain this Lease in full force and effect, the entire award for such partial condemnation shall be paid over to Lessee, and Lessee shall proceed with reasonable diligence to carry out any necessary repair and restoration so that the remoinlng improvements and appurtenances shall constitute a complete structural unit or units which can be operated on an economically feasible basis under the provisions of this Lease. In the event Lessee elects to continue this Lease in full force and effect after a partial condemnation, there shail be no abatement in the Basic Rent Lessee is required to pay hereunder. Should Lessee elect to terminate this Lease upon a partial condemnation, Lessee shall provide Lessor with written notice of such election within thirty (30) days after the date of vesting of title for such taking. Lessee shall specify in such written notice the date on which this Lease shall terminate, which date shall be not less than 60 days nor more than 360 days after delivery of such notice to Lessor (the Termination Date). In the event Lessee terminates this Lease, as provided for in this Article 13.3, Lessee shall be entitled to the entire award for such partial taking. 11.4 Temporary. Taking. If the temporary use of the whole or any part of the Demised Premises or the Improvements thereon or the appurtenances thereto shall be taken at any time during the term of this Lease in the exercise of the power of eminent domain by any sovereign, municipality, or other authority, the term of this Lease shall not be reduced or affected in any way, and Lessee shall continue to pay in full the rent, additional rent, and other sum or sums of money and charges herein reserved and provided to be paid by Lessee, and the entire award for such temporary taking shall be paid to Lessee. Lessee shall repair and restore any and ail damage to the Demised Premises and the improvements as soon as reasonably practicable after such temporary taking. ARTICLE XII ASSIGNMENT AND SUBLETTING Lessee shall not assign or transfer this Lease or sublease the whole or any part of the Demised Premises. ARTICLE XIII DEFAULT Lessor's Rights in the Event of Lessee's Default. If Lessee shall fail or neglect to observe, keep, or perform any of the covenants, terms, or conditions contained in this Lease on its part to be observed, kept, or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessor setting forth the nature of Lessee's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessee has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence), then and in any such event, Lessor shall have the right at its option, on written notice to Lessee, to terminate this Lease and all rights 6 of Lessee under this Lease shall then cease. Lessor, without further notice to Lessee, shall have the right immediately to enter and take possession of the Demised Premises with or without process of law and to remove all personal property from the Demised Premises and all persons occupying the Demised Premises and to use all necessary force therefor and in all respects to take the actual, full, and exclusive possession of the Demised Premises and every part of the Demised Premises as of Lessors original estate, without incurring any liability to Lessee or to any persons occupying or using the Demised Premises for any damage caused or sustained by reason of such entry on the Demised Premises or the removal of persons or property from the Demised Premises. ARTICLE XIV RIGHT TO CURE OTHER'S DEFAULTS Whenever and as often as a party shall fail or neglect to comply with and perform any term, covenant, condition, or agreement to be complied with or performed by such party hereunder, then, upon thirty (30) days' prior written notice to such defaulting party, the other party, at such other party's option, in addition to all other remedies available to such other party, may perform, or cause to be performed, such work, labor, services, acts, or things, and take such other steps, including entry onto the Demised Premises and the Improvements thereon, as such other party may deem advisable, to comply with and perform any such term, covenant, condition, or agreement which is in default, in which event such defaulting party shall reimburse such other party upon demand, and from time to time, for all costs and expenses suffered or incurred by such other party in so complying with or performing such term, covenant, condition, or agree- ment. The commencement of any work or the taking of any other steps or performance of any other act by such other party pursuant to the immediately preceding sentence shall not be deemed to obligate such other party to complete the curing of any term, covenant, condition, or agreement which is in default. ARTICLE XV QUIET ENJOYMENT Lessor covenants that at all times during the term of this Lease, so long as Lessee is not in default hereunder, Lessee's quiet enjoyment of the Demised Premises or any part thereof shall not be disturbed by any act of Lessor, or of anyone acting by, through, or under Lessor. ARTICLE XVI WAIVER No waiver by Lessor of any breach by Lessee of any term, covenant, condition, or agreement herein and no failure by Lessor to exercise any right or remedy in respect of any breach hereunder, shall constitute a waiver or relinquishment for the future of any such term, covenant, condition, or agreement or of any subsequent breach of may such term, covenant, 7 condition, or agreement, nor bar any right or remedy of Lessor in respect of any such subsequent breach, nor shall the receipt of any rent, or any portion thereof, by Lessor, operate as a waiver of the rights of Lessor to enforce the payment of any other rent then or thereafter in default, or to terminate this Lease, or to recover the Demised Premises, or to invoke any other appropriate remedy which Lessor may select as herein or by law provided. ARTICLE XVII SURRENDER Lessee shall, on the last day of the term of this Lease or upon any termination of this Lease hereof, surrender and deliver up the Demised Premises, with the improvements then located thereon into the possession and use of Lessor, without fraud or delay and in good order, condition, and repair, free and clear of all lettings and occupancies, free and clear of all liens and encumbrances other than those existing On the date of this Lease and those, if any, created by Lessor, without (except as othenvise provided herein) any payment or allowance whatever by Lessor on account of or for any buildings and improvements erected or maintained on the Demised Premises at the time of the surrender, or for the contents thereof or appurtenances thereto. At Lessor's option, Lessor and Lessee shall agree to jointly remove any or all of the Improvements located on the Demised Premises. ARTICLE XVIII MEMORANDUM OF LEASE Each of the parties hereto will, promptly upon request of the other, execute a memorandum of this Lease in form suitable for recording setting forth the names of the parties hereto and the term of this Lease, identifying the Demised Premises, and also including such other clauses therein as either party may desire. ARTICLE XIX NOTICES Ail notices, demands, or other writings in this Lease provided to be given or made or sent, or which may be given or made or sent, by either party to the other, shall be deemed to have been fully given or made or sent when made in writing and deposited in the United States mail, registered and postage prepaid, and addressed as follows: TO LESSOR: TO LESSEE: City of Dubuque, Iowa C/o Leisure Services Department 2200 Bunker Hill Road Dubuque, Iowa 52001 Dubuque Girls' Independent Softball League C/o Marilyn Michels 17375 Gardner's Lane Dubuque, Iowa 52001 The address to which any notice, demand, or other writing may be given or made or sent to any party as above provided may be changed by written notice given by the party as above provided. ARTICLE XXI MISCELLANEOUS 21.1. Time of the Essence. Time is of the essence of this Lease and all of its provisions. 21.2. Governing Law. It is agreed that this Lease shall be governed by, construed, and enforced in accordance with the laws of the State of Iowa. 21.3. Paragraph Headings. The titles to the paragraphs of this Lease are solely for the conveniance of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this Lease. 21.4. Modification of Agreement. Any modification of this Lease or additional obligation assumed by either party in connection with this Lease shall be binding only if evidenced in a writing signed by each party or an authorized representative of each party. 21.5. Parties Bound. This Lease shall be binding on and shall inure to the benefit of and shall apply to the respective successors and assigns of Lessor and Lessee. All references in this Lease to "Lessor" or "Lessee" shall be deemed to refer to and include successors and assigns of Lessor or Lessee without specific mention of such successors or assigns. 21.6 Force Maieure. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, unavailability or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, chemical explosions, hazardous conditions, fire, weather or acts of God, or by reason of any other cause beyond the exclusive and reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. IN WITNESS WI-IEREOF, the parties hereto have caused this Lease to be executed as of the day and year first above written. LESSOR: CITY OF DUBUQUE, IOWA 9 Attest: Jeanne F. Schneider, City Clerk By: Terrance M. Duggan, Mayor LESSEE: DUBUQUE GIRLS' INDEPENDENT SOFTBALL LEAGUE Attest: By: Its 10 EXHIBIT "A" LEGAL DESCRIPTION OF DEMISED PREMISES The Demised Premises is legally described as follows and as more specifically shown on the attached map: All that part of Lot One (1) of the Subdivision of Lot One (1) of the Northwest Fractional Quarter of the Northeast Quarter and Lot One (1) of the Subdivision of Lot One (1) of Fractional Government Lot one (1) lying south of the southerly right of way line of Julien Dubuque Dr., all in Section Six (6), Township Eighty-eight (88) North, Range Three (3) East of the Fit3Ja Principal Meridian, containing 11.6 acres, more or less, subject to easements of record and not of record. 11 LEASE DESCRIPTION:, All that part of Lot 1 ,o,f the subd'n, of Lot I of the Northwest Fractional Quarter of the Northeast Quarter a.n..d Lot~l.of the subd n. of Lot I of Fractonal Gov't. Lot 1 y ng south of the souther y r ght of way line of ,~u~ien uuuuque Dr. all in Section 6, T88N, R3E, 5th P.M., Dubuque Co., IA., containing 11.6 acres, more or less, subject to easements of record and not of record. LEASE EXHIBIT