Signed Contract_First Amendment to Lease Agreement with Hendricks Feed & Seed Co., Inc.City of Dubuque
City Council Meeting
Consent Items # 015.
Copyrighted
September 6, 2022
ITEM TITLE: Signed Contract(s)
SUMMARY: Task Order 1 with MSA Professional Services, Inc., for the Briarwood
Subdivision Water Connection; First Amendment to Lease Agreement
with Hendricks Feed & Seed Co., INC.; HD Engineering, INC., for the
City of Dubuque Waste Diversion Project; James Orr Coating
Inspection, LLC for multiple water tank inspections; Origin Design Co.
for the Ice Harbor Flood Gate Fender Replacement; Amendment No. 1
with Strand Associates for the Water Treatment Plan and Water
Distribution System Supervisory Control and Data Acquisition System
Upgrade.
SUGGESTED Suggested Disposition: Receive and File
DISPOSITION:
ATTACHMENTS:
Description
Type
Task Order 1 for the Briarwood Subdivision Water Supporting Documentation
Connection
First Amendment to Lease Agreement with Hendricks Supporting Documentation
Feed & Seed Co., INC.
City of Dubuque Waster Diversion Project Supporting Documentation
James Orr Coating Inspection, LLC Supporting Documentation
Origin Design Co. for the Ice Harbor Flood Gate Supporting Documentation
Fender Replacement
Amendment No. 1 to Water Treatment Plan and Water
Distribution System Supervisory Control and Data Supporting Documentation
Acquisition System Upgrade
FIRST AMENDMENT
TO
LEASE AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE
AND
HENDRICKS FEED & SEED CO., INC
This First Agreement (the Amendment), dated for reference purposes the 1st day
of August, 2022, is made and entered into by and between the City of Dubuque, Iowa
(City) and Hendricks Feed & Seed Co., Inc. (Hendricks).
WHEREAS, City and Hendricks are parties to a Lease Agreement dated
September 24, 2021 (the Lease), and
WHEREAS, the Parties desire to amend certain provisions of the Lease as set
forth herein.
NOW THEREFORE, in consideration of the mutual agreements, covenants and
conditions herein contained, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby amend the Lease as
follows, all of which amended terms are effective on October 1, 2022 (the
Commencement Date):
1. Section 1.1 is hereby deleted and the following substituted in lieu thereof:
1.1 The Initial Term of this Lease shall commence on October 1, 2022 and terminate at
midnight on the 31st day of March 2023. Notwithstanding the foregoing, in the event that
certain Stock Purchase Agreement by and between each of William H. Hendricks, Jr. and
Janet M. Hendricks (each a "Seller" and collectively the "Sellers") and Rodney Schroeder
('Buyer") with respect to the sale of all of the shares of Hendricks does not close on or
before September 30, 2022, then Tenant may terminate this Lease at any time by
providing at least thirty (30) days' written notice to Landlord, provided such notice is sent
no later than October 31, 2022.
2. Section 1.2 is deleted in its entirety and the following substituted in lieu thereof:
1.2 Notwithstanding any provision herein to the contrary, Hendricks may request a month -
to -month extension of the Term on the same terms and conditions as provided herein.
Hendricks shall deliver written notice of the request to City no less than five months (5)
prior to the end of the Initial Term. City will have fifteen (15) days to approve or reject the
request in its sole discretion.
3. Section 2 is deleted and the following substituted in lieu thereof:
SECTION 2. RENT, AND OTHER PAYMENTS.
08162022bal Page 1 of 6
2.1 Rent. Hendricks shall pay City, in addition to taxes, fees (including but not limited
to storm water fees), rates, charges, levies, assessments, and all other charges required
to be paid under this Lease by Hendricks, monthly rent ("Rent") as follows: $5000 on
October 1, 2022. For each month thereafter, the Rent shall be increased by 1.0% of the
previous month. E.g., November 2022 $5050.00, December 2022 $5100.50, January
2023 $5151.50, and so on Rent shall be due on the first day of each month.
2.2 Payments to City. All Rent payments required by this Lease shall be made payable
to "The City of Dubuque, Iowa" and delivered to the City of Dubuque Finance Department,
City Hall. Any payments due not paid in full by the due date shall be subject to the lesser
of the maximum interest provided by law or the following rates.-
0 1 % per month
4. Section 3 is deleted and the following inserted in lieu thereof:
SECTION 3. ENCUMBRANCE OF HENDRICKS'S LEASEHOLD INTEREST.
Hendricks may not encumber by mortgage, deed of trust or other financial instrument, the
Real Estate without the prior written consent of City which consent shall not be
unreasonably withheld.
5. Section 7.1 is deleted and the following inserted in lien thereof. -
SECTION 7. INSURANCE.
7.1 Hendricks shall maintain during the Term of this Lease insurance as set forth in
the attached Insurance Schedule such schedule may from time to time be reasonably
amended.
7.2 Hendricks shall maintain, or cause to be maintained, at its cost and expense (and
from time to time at the reasonable request of City shall furnish proof of such insurance),
property insurance against loss: and/or damage to improvements under an insurance
policy written on the Special Perils Form in an amount not less than the full insurable
replacement value of the Improvements. The term "replacement value" shall mean the
actual replacement cost of the Improvements (excluding foundation and excavation costs
and costs of underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be determined from time to time at the reasonable request of City,
but not more frequently than once every three years, and paid for by Hendricks.
7.3 Hendricks agrees to promptly notify City in the case of damage exceeding Five
Thousand Dollars ($5,000) in amount to, or destruction of, Improvements or any portion
thereof resulting from fire or other casualty. Net proceeds of any such insurance ("Net
Proceeds"), shall be paid directly to City, and City, in its sole discretion, may remove or
repair, reconstruct, restore, or replace the Improvements to substantially the same or an
improved condition or value as they existed prior to the event causing such damage
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subject to the requirements of the City of Dubuque Code of Ordinances and, to the extent
necessary to accomplish such repair, reconstruction and restoration, City may apply the
Net Proceeds of any insurance relating to such damage received by Hendricks to the
payment or reimbursement of the costs thereof. City may also choose to terminate the
lease agreement and make no repairs.
7.4. Hendricks shall be responsible for insuring its personal property and contents.
6. Section 9 is deleted and the following substituted in lieu thereof:
SECTION 9. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned by
Hendricks without the prior written consent of City, which consent shall not be
unreasonably withheld or delayed, except to a third party acquiring all or substantially all
of Hendrick's assets related to this Lease.
7. Section 12 is deleted and the following inserted in lieu thereof:
SECTION 12. SURRENDER. Hendricks shall, on the last day of the Term of this Lease
or upon any termination of this Lease, surrender and deliver the Real Estate, with the
improvements then located thereon into the possession and use of City, without fraud or
delay and in good order, condition and repair, reasonable wear and tear excepted, 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 City,
without (except as otherwise provided herein) any payment or allowance whatsoever by
City on account of or for any buildings and improvements erected or maintained on the
Real Estate at the time of the surrender. Hendrick's Trade Fixtures, personal property,
equipment, materials and other belongings of Hendricks or of any sublessee or other
occupant of space in the Real Estate shall be and remain the property of Hendricks, and
Hendricks shall have a reasonable time after the expiration of the term of this Lease (not
to exceed thirty (30) days) to remove the same. If Hendricks fails to remove any
Hendrick's Trade Fixtures, personal property, equipment, materials or other belongings
from the Real Estate within thirty (30) days of the expiration date of this lease, they will
immediately become property of the City. Any costs incurred by City having to remove,
relocate, handle, store, sell or dispose of Hendrick's items described in this Section shall
be paid for by Hendricks.
8. Section 14 is amended by adding the following:
14.6. Holdover. Should Hendricks remain in possession of the Real Estate
after the expiration of the Term, or any renewal thereof, without the execution of a
new Lease, such holding over in the absence of a written agreement with City to the
contrary, shall be deemed, if City so elects, to have re-created and be construed to be a
tenancy from month to month, terminable upon thirty (30) days' written notice by City.
Rent shall be prorated on a monthly basis until a new Lease is executed. The prorated
rent is subject to a retroactive rent increase as agreed to by City and Hendricks as part
of executing a new Lease after the Term of this Lease expires.
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9. Add the following new Section:
SECTION 15. TAXES.
15.1 Hendricks agrees to pay to City as additional rent an amount equal to real estate
taxes upon the real estate of the Real Estate that accrue during the Term of this Lease
(including taxes accrued during the Term but not due and payable until after the Term),
upon receipt of a statement from City, accompanied with all statements from any other
taxing authority verifying the amount of such accrued taxes.
15.2 During the Term of this Lease, Hendricks further agrees to pay all other taxes,
fees, rates, charges, levies, general assessments and special assessments for which City
is entitled to impose under statute or ordinance due to the actions or inactions of
Hendricks, of every name, nature and kind, whether now known to the law or hereafter
created which may be taxed, charged, assessed, levied or imposed upon the real estate
of the Real Estate and which become payable during the term hereof and which would
become delinquent if not so paid during the term hereof, any buildings or improvements
thereon which may be taxed, charged, assessed, levied or imposed upon the leasehold
estate hereby created and upon the real estate of the Real Estate during the Term hereof
and which become payable during the term hereof and which would become delinquent
if not so paid during the Term hereof, and all such taxes, fees, rates, charges, levies and
assessments shall be paid by Hendricks as they become due and before they become
delinquent during the Term hereof.
15.3 Hendricks agrees to timely pay all taxes, fees, assessments or other public
charges levied or assessed by lawful authority (but reasonably preserving Hendricks's
rights of appeal) against its personal property on the Real Estate, during the Term of this
Lease.
15.4 Nothing herein shall require Hendricks to pay any of City's income taxes, surtaxes,
excess profit taxes or any taxes on the rents or other amounts reserved or paid to City
hereunder.
15.5 Hendricks shall at all times have the right to challenge or contest in good faith, in
any proper proceedings, in the name of City if necessary, the amount, valuation, payment
or satisfaction of any such taxes, fees, assessments, rates, charges or levies so agreed
to be paid by Hendricks if the amount, valuation or validity thereof, or the right to assess
or levy the same against or collect the same from said Real Estate or Hendricks's
improvements, shall be disputed, and City shall provide reasonable cooperation in
support of any such challenge or contest by Hendricks unless City is the entity imposing
such taxes, fees, assessments, rates, charges or levies. Upon the conclusion of any such
suit or proceedings Hendricks shall promptly pay and satisfy such disputed tax, fee,
assessment or other charge as finally determined, together with all expenses, costs and
attorneys' fees whatsoever incurred in connection therewith.
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10. Add the following new Section:
SECTION 16. TITLE TO IMPROVEMENTS AND TRADE FIXTURES.
16.1 Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean all of
Hendricks's personal property located on the Real Estate used in Hendricks's business.
Title to Hendricks's trade fixtures (the Trade Fixtures) is and shall be the sole and
exclusive property of Hendricks during the term of this Lease and shall remain the sole
and exclusive property of Hendricks after the expiration or termination of this Lease, for
whatever reason. City acknowledges and understands that it shall have no right, title or
interest in or to Hendricks's Trade Fixtures either during the term of this Lease, or
thereafter (except as hereinafter provided). City acknowledges and agrees that Hendricks
shall have the right to encumber, sell, or hypothecate Hendricks's Trade Fixtures, to
remove them from the Real Estate, or to otherwise deal with all or any portion of such
Hendricks's Trade Fixtures, at Hendricks's sole discretion. Upon ten (10) days' prior
written notice to City, City shall execute and deliver to Hendricks a certificate in recordable
form prepared by Hendricks stating that City has no interest or right in or to Hendricks's
Trade Fixtures, as well as any other or further document which Hendricks may reasonably
request from City.
16.2 Improvements. Hendricks shall not construct any improvements on the Real
Estate without the prior written consent of City, in City's sole discretion. Upon any
termination of this Lease, by reason of any cause whatsoever, if any new Improvements
or Improvements existing at the time of the execution of this Lease or any part thereof
shall then be on the Real Estate, all of Hendricks's right, title, and interest therein shall
cease and terminate, and title to the Improvements shall vest in City, and the
Improvements or the part thereof then within the Real Estate shall be surrendered by
Hendricks to City. No further deed or other instrument shall be necessary to confirm the
vesting in City of title to the Improvements. However, upon any termination of this Lease,
Hendricks, upon request of City, shall execute, acknowledge and deliver to City a
quitclaim deed confirming that all of Hendricks's right, title and interest in or to the
Improvements has expired, and that title to the Improvements has vested in City. City
reserves the right to require Hendricks to remove some or all of the Improvements which
Hendricks shall accomplish within thirty (30) days of the expiration of this Lease
Agreement.
11.Add the following new Section:
SECTION 17. UTILITIES AND SERVICES. Hendricks, during the Term of this
Lease, shall pay, before delinquency, all charges for all utilities and services,
including garbage disposal and trash disposal. Hendricks shall be responsible for all
operating and repair and maintenance costs related in any way whatsoever to the utilities
serving the Real Estate,
12. Add the following new Section:
SECTION 18. AMERICANS WITH DISABILITIES ACT. Hendricks shall be solely
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responsible for, and agrees to indemnify and hold City harmless from, any and all repairs,
additions, claims, fines, penalties, fees or any other costs or obligation in any way
imposed by or required by or related to the Americans with Disabilities Act in connection
with the Real Estate during the Term of this Lease.
CITY OF DUBUQUE, IOWA HENDRICKS FEED & SEED CO., INC.
By-
Michael•� l� B ? G'/`✓
Y
C Van Milligen William H. Hendrick ,
City Manager President
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