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Setting a Public Hearing on a Proposed Lease Agreement with the Dubuque Arboretum Association, Inc._InitiateCity of Dubuque City Council Meeting Copyrighted November 6, 2023 Items to be set for Public Hearing # 03. ITEM TITLE: Resolution Setting a Public Hearing on a Proposed Lease Agreement by and Between the City of Dubuque, Iowa and the Dubuque Arboretum Association, I nc. SUMMARY: City Manager recommending City Council adopt the attached resolution setting a public hearing for November 20th, 2023, on a proposed lease agreement between the City of Dubuque, Iowa and the Dubuque Arboretum Association, Inc. RESOLUTION Fixing the date for a public hearing of the City Council of the City of Dubuque, Iowa on a Lease Agreement by and between the City of Dubuque, Iowa, and Dubuque Arboretum Association, I nc. relating thereto and providing for the publication of notice thereof SUGGESTED Receive and File; Adopt Resolution(s), Set Public Hearing for November DISPOSITION: 20, 2023Suggested Disposition: ATTACHMENTS: Description Type MVM Memo City Manager Memo Staff Memo Staff Memo Resolution Resolutions Public Notice Supporting Documentation Arboretum Lease Proposed Supporting Documentation Arboretum Lease Current Supporting Documentation THE C Dubuque DUjIBQTE WAWca 914 Masterpiece on the Mississippi YP pp aoo�•o 13 zai7*20*�oi9 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Resolution Setting a Public Hearing on a Proposed Lease Agreement by and Between the City of Dubuque, Iowa and the Dubuque Arboretum Association, Inc. DATE: October 31, 2023 Leisure Services Director Marie Ware is recommending City Council adopt the attached resolution setting a public hearing for November 20t", 2023, on a proposed lease agreement between the City of Dubuque, Iowa and the Dubuque Arboretum Association, Inc. I concur with the recommendation and respectfully request Mayor and City Council approval. Mic ael C. Van Milligen MCVM:sv Attachment CC' Crenna Brumwell, City Attorney Cori Burbach, Assistant City Manager Marie Ware, Leisure Services Director Steve Fehsal, Parks Division Manager THE CITY OF Dubuque DUi L R E AII•Amedu City rn n nx usua: �II�I®r Masterpiece on the Mississippi 2017*2019 TO: Michael C. Van Milligen, City Manager FROM: Marie L. Ware, Leisure Services Director SUBJECT: Resolution Setting a Public Hearing on a Proposed Lease Agreement by and Between the City of Dubuque, Iowa and the Dubuque Arboretum Association, Inc. DATE: October 30, 2023 INTRODUCTION The purpose of this memo is to request the City Council to adopt the attached resolution setting a public hearing for November 20t", 2023 on a proposed lease agreement between the City of Dubuque, Iowa and the Dubuque Arboretum Association, Inc. BACKGROUND The City's 25-year lease with the Dubuque Arboretum Association, Inc. termed in June of 2017 and auto -renewed for another 25 years. DISCUSSION Steve Fehsal, Park Division Manager and myself have been working with the Dubuque Arboretum Association, Inc. staff and board to create a new comprehensive 25-year lease that creates more clarity of the roles and responsibilities of each party and maps to aid in this management. The lease has been reviewed and approved by Senior Counsel Barry Lindahl. The proposed lease has also been reviewed, approved, and signed by the Dubuque Arboretum Association, Inc. ACTION REQUESTED I respectfully request the City Council adopt the attached resolution setting a public hearing for November 20t", 2023 on a proposed lease agreement between the City of Dubuque, Iowa and the Dubuque Arboretum Association, Inc. Memo prepared by: Steve Fehsal, Parks Division Manager Prepared by Marie Ware, Leisure Services, 2200 Bunker Hill Rd., Dubuque IA 52001, (563) 589-4262 Return to Adrienne N. Breitfelder, City Clerk, 50 W. 131' St., Dubuque, iA 52001, (563) 589-4100 RESOLUTION NO. 368-23 FIXING THE DATE FOR A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA ON A LEASE AGREEMENT BY AND BETWEEN THE CITY OF DUBUQUE, IOWA, AND DUBUQUE ARBORETUM ASSOCIATION, INC. RELATING THERETO AND PROVIDING FOR THE PUBLICATION OF NOTICE THEREOF WHEREAS, City is the owner of a public facility known as Marshall Park (the Park); and WHEREAS, Arboretum desires to lease and continue to operate the Park as an arboretum and botanical garden; and WHEREAS, it is deemed to be in the best interest of both parties to this Lease Agreement and to the public in general that the Arboretum lease and operate the Park as the Dubuque Arboretum and Botanical Garden. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the City of Dubuque, Iowa, proposes to approve the Lease Agreement of the above described real estate to Dubuque Arboretum Association, Inc. Section 2. That the City Council shall conduct a public hearing on the proposed Lease Agreement in the City Council Chambers at the Historic Federal Building, 350 W. 6th Street, Dubuque, Iowa on the 20th day of November 2023, beginning at 6:30 PM. Section 2, That the City Clerk be and is hereby authorized and directed to publish notice of the public hearing in the form attached hereto, according to law. Passed, approved, and adopted this 6th day of November, 2023. =�WMMW .• M. Cam6a• • Attest: Adrienne N. Breitfelder, City Clerk CITY OF DUBUQUE, IOWA OFFICIAL NOTICE PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque, Iowa, will hold a public hearing on the 20th day of November, 2023 at 6:30 p.m. in the Historic Federal Building, 350 West 6th Street, second floor, Dubuque, Iowa, at which meeting the City Council proposes to approve a Lease Agreement between the City of Dubuque, Iowa and the Dubuque Arboretum Association, Inc. At the meeting, the City Council will receive oral and written comments from any resident or property owner of said City to the above action. Written comments regarding the above public hearing may be submitted to the City Clerk's Office, City Hall, 50 W. 13t" Street, on or before said time of public hearing. Copies of supporting documents for the public hearings are on file in the City Clerk's Office and may be viewed during normal working hours. Individuals with limited English proficiency, vision, hearing or speech impairments requiring special assistance should contact the City Clerk's Office at (563) 589-4100, ctyclerk@cityofdubuque.org as soon as feasible. Deaf or hard -of -hearing individuals can use Relay Iowa by dialing 711 or (800) 735-2942. Published by order of the City Council given on the 61" day of November 2023. Adrienne N. Breitfelder City Clerk LEASE AGREEMENT BY AND BETWEEN THE CITY OF DUBUQUE, IOWA AND DUBUQUE ARBORETUM ASSOCIATION, INC. This Lease Agreement, dated for reference purposes the 1st day of 2023, is made and entered into by and between the City of Dubuque, Iowa (City), whose address for the purpose of this Lease Agreement is 2200 Bunker Hill Road, Dubuque, Iowa, and Dubuque Arboretum Association Inc. (Arboretum), an Iowa nonprofit corporation, with its principal office in Dubuque, Iowa, whose address for the purpose of this Lease Agreement is 3800 Arboretum Drive, Dubuque, Iowa. WHEREAS, City is the owner of a public facility known as Marshall Park (the Park); and WHEREAS, Arboretum desires to lease and continue to operate the Park as an arboretum and botanical garden; and WHEREAS, it is deemed to be in the best interest of both parties to this Lease Agreement and to the public in general that the Arboretum lease and operate the Park as the Dubuque Arboretum and Botanical Garden. NOW, THEREFORE, the parties hereto agree as follows: SECTION 1. LEASED PREMISES. City hereby leases to Arboretum the Park (the Leased Premises) shown on Exhibit A upon the terms and conditions set forth herein. SECTION 2. IDENTIFICATION OF THE PARK. The Leased Premises will be known as Marshall Park. SECTION 3. TERM OF LEASE AGREEMENT. This Lease Agreement is for a term of twenty-five (25) years commencing , 2023, and terminating at midnight on March 31, 2048, (the Term). SECTION 4. RENT. The annual rental of one dollar ($1.00) must be paid to City by Arboretum on or before the 1st day of , 2023, and on the 15t day of June of each year during the Term. SECTION 5. USE OF THE LEASED PREMISES. Arboretum agrees that during the Term of the Lease Agreement, the Leased Premises will be used exclusively as an arboretum and botanical garden. 082023bal SECTION 6. TITLE TO IMPROVEMENTS AND TRADE FIXTURES. 6.1 Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" means all of Arboretum's personal property located on the Leased Premises used in Arboretum's business. Title to Arboretum's trade fixtures (the Trade Fixtures) is and will be the sole and exclusive property of Arboretum during the term of this Lease Agreement and will remain the sole and exclusive property of Arboretum after the expiration or termination of this Lease, for whatever reason. City acknowledges and understands that it has no right, title or interest in or to Arboretum's Trade Fixtures either during the term of this Lease, or thereafter (except as hereinafter provided). City acknowledges and agrees that Arboretum has the right to encumber, sell, or hypothecate Arboretum's Trade Fixtures, to remove them from the Leased Premises, or to otherwise deal with all or any portion of such Arboretum's Trade Fixtures, at Arboretum's sole discretion. Upon ten (10) days' prior written notice to City, City will execute and deliver to Arboretum a certificate in recordable form prepared by Arboretum stating that City has no interest or right in or to Arboretum's Trade Fixtures, as well as any other or further document which Arboretum may reasonably request from City. 6.2 Improvements. Improvements on the Leased Premises as of the commencement of the Term are owned by City and are as follows (the improvements) shown on Exhibit B, Map 1: Lion's Playground Restrooms Legacy Tree Trail Restrooms Heinemann Visitor Center Caretakers Home and Garage McAleece Building and connecting Greenhouse Rose Garden Gazebo Arboretum Sign on 32111 Street Arboretum Sign and Gated Entry Packard Pavilion Amphitheater Long Building Cleary Building Garden Shed Gas Shed Greenhouse 2 Greenhouse 3 Hosta Shade Structure (1 and 2) Lion's Playground Lion's Pavilions (2) Japanese Garden Pagodas (2) Garden of Eatin' Trellis (1) Arboretum may not construct any Improvements on the Leased Premises without the prior written consent of City, in City's sole discretion. Any new Improvements constructed by Arboretum during the Term are the property of City. 2 (2) No further deed or other instrument will be necessary to confirm City's title to any Improvements. City reserves the right to require Arboretum to remove some or all of the Improvements, which Arboretum must accomplish within thirty (30) days of the expiration of this Lease Agreement. SECTION 7. ENCUMBRANCE OF ARBORETUMS LEASEHOLD INTEREST. Arboretum may not encumber by mortgage, deed of trust or other instrument, the Leased Premises. SECTION 8. TAXES. 8.1 No taxes are imposed upon or assessed against the Leased Premises. Arboretum shall not be responsible for the payment of any taxes for the Leased Premises because there are none. 9.1 Arboretum must at all times during the term of this Lease Agreement, at Arboretum's own costs and expense, keep the Leased Premises and the Improvements thereon, and all appurtenances to the Leased Premises, in good order, condition and repair, and in a safe, clean and neat condition, casualties and ordinary wear and tear excepted. Arboretum must keep the Leased Premises in such condition as may be required by law and by the terms of the insurance policies furnished pursuant to this Lease Agreement, whether or not such repair is interior or exterior, and whether or not such repair is of a structural nature. Upon reasonable notice to Arboretum, City may, at its discretion and at its cost, conduct an annual inspection of the Leased Premises to determine Arboretum's compliance with this Section 9. 9.2 City has the right to require Arboretum upon written notice to repair or remove any structure on the Leased Premises which City determines does not comply with the requirements of this Section 9, and Arboretum must repair or remove, as the notice may require, any such structure within thirty days after receipt of such notice or within such additional time as City may agree in its sole discretion. 9.3 Except as provided in Section 13, City has no obligation to Arboretum for any maintenance expense of any kind on the Leased Premises or elsewhere, including but not limited to public streets, private roads, or railroad tracks. SECTION 10. ALTERATIONS. Arboretum may not, without City's prior written consent, which consent may not be unreasonably withheld, make any alteration, addition, removal or modification to any Improvement on the Leased Premises that exceeds Fifty Thousand Dollars ($50,000.00) in cost. Any alteration, addition, or modification of less than Fifty Thousand Dollars ($50,000.00) does not require City's consent. SECTION 11. COMPLIANCE WITH LAW. During the term of this Lease Agreement, Arboretum must comply with all local, state and federal laws applicable to Arboretum's use 3 of the Leased Premises, including but not limited to the Americans with Disabilities Act and the Smokefree Air Act, Iowa Code Section 142D.3. Arboretum must not commit waste on the Leased Premises except as necessary for its business purposes including the removal or construction of any buildings and Improvements on the Leased Premises and will be liable for any damages to or destruction of any buildings or Improvements on the Leased Premises resulting from waste and must repair or rebuild such buildings or Improvements. SECTION 12. USE OF LEASED PREMISES. Arboretum may not knowingly use or allow the Leased 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. Arboretum may not suffer any act to be done or any condition to exist within the Leased Premises or in any Improvement thereon, or permit any article to be brought therein, which is dangerous, unless safeguarded as required by law, or which, in law, constitute a nuisance, public or private, or which may make void or voidable any insurance in force with respect thereto. SECTION 13. GROUNDS AND BUILDING MAINTENANCE. 13.1 City is responsible for Lion's Playground maintenance and repair, Lion's Playground and Legacy Tree Trail restroom cleaning, maintenance and repair, flag and flagpole maintenance and repair on the Leased Premises, Marshall Park Sign maintenance and repair, and drinking fountain maintenance and repair during the terra of this Lease Agreement. City is responsible for replacement of Lion's Playground at its end -of -life cycle. 13.2 City is responsible for roadway maintenance and repairs including parking lot areas, curbs, striping and related roadway signage as shown in Exhibit B, Map 2. 13.3 City is responsible for snow and ice control of the loofa roadway, Visitors' Center parking lot, private road to garden steed, and sidewalks on comer of 32nd Street and Arboretum Dave as shown in Exhibit B, Map 3. 13.4 City is responsible for maintenance and repair of All Veterans Memorial and Operation Desert Storm Memorial. 13.5 City will provide trash pickup at Packard Pavilion Amphitheatre, Lion's Restroom and Playground area, and Legacy Tree Trail Restrooms on a schedule to be determined entirely at City's discretion. City will provide trash and/or recycling receptacles at those locations. 13,6 City is responsible for payment of utilities related to electric meters 500100894 and 546561742, 13.7 City is responsible for the maintenance or replacement of well no. 1 as shown on Exhibit B, Map 4. 13.8 City is responsible for City owned domestic water and sanitary sewer lines as shown 4 on Exhibit 13, Map 5 13.9 City Park Rangers will make periodic patrols through the Leased Premises as time is available during the months of May through October as long as City employs Park Rangers. 13.10 Arboretum is responsible for all grounds maintenance and repairs, including but not limited to grass cutting, sidewalks, landscaped beds, trails, fencing, ponds, bridges, trellises, benches, arbors, and Arboretum wayfinding signage. 13.11 Arboretum is responsible for ail tree maintenance. City will assist with tree/stump removals in City's discretion based on availability of crews and access to trees. 13.12 Arboretum is responsible for maintenance, repair and replacement of all Improvements listed in Section 6.2 with the exception of the Lion's Playground, Lion's Playground Restroom and Legacy Tree Trail Restrooms. 13.13 Arboretum is responsible for all building maintenance and improvements including but not limited to interior and exterior building repair and painting, heating system maintenance, plumbing repair and maintenance, electric repair and maintenance, roof repair and pest control at the Leased Premises. 13.14 Arboretum is responsible for all outdoor lighting with the exception of flagpole lighting. 13.15 Arboretum is responsible for all other utility costs of the Leased Premises other than utilities in Section 13.6. Arboretum is responsible for payment of utilities related to electric meters #500123585, #500120306, #500503334, #500355623 and #500531315, Arboretum is responsible for the maintenance and replacement of the natural gas line on the Leased Premises. 13.16 Arboretum is responsible for the maintenance or replacement of well no. 2 and well no. 3, as shown on Exhibit B, Map 4. 13.17 All improvements made by Arboretum must be built, erected, and maintained in strict conformity with all applicable federal, state or municipal statutes and ordinances, and policies of the City of Dubuque Park and Recreation Commission. 13.18 Any improvements made by Arboretum will remain on the Leased Premises upon termination of this Lease Agreement and will then become the property of City. Any proposed material improvements or modifications to the Leased Premises must be submitted in writing to the City Manager or designee for approval by the City, which approval may not be unreasonably withheld, and which proposed improvements or modifications will be considered in the context of the use stated in Section 5. Examples of material improvements or modifications would include building construction, pavilion ! shelter construction, playground expansion, roadway relocation, grading, excavation, new garden construction and other similar projects. 13.19 If it becomes necessary, for reasons of economic necessity or for effective overall development of the Park, the Arboretum may request, in writing, permission from City to remove any of the Improvements in Section 6.2 and such permission may not be unreasonably withheld by City. SECTION 14. MANAGEMENT AND CONTROL. Arboretum shall have the sole management authority and control of the Leased Premises. SECTION 15, STAFFING. Arboretum must provide competent and qualified staff and volunteers under appropriate supervision to plan and implement its activities and to care for the Leased Premises. SECTION 16. MONIES AND CONTRii3UTIONS. Arboretum agrees that all monies and contributions derived from the Leased Premises will be used to operate, maintain, and improve the Leased Premises. SECTION 17. NAMING RIGHTS. No agreement between Arboretum and any third parry, including any agreement entered prior to the commencement of the Term, for any naming rights is binding on City without the prior written consent of City. SECTION 18. SPECIAL EVENTS. Arboretum may not hold any events on the Leased Premises which require a Special Events Permit without applying for and being granted such Permit by City, SECTION 19. INSURANCE. 19.1 Arboretum must maintain during the term of this Lease Agreement insurance as set forth in the City's Standard Insurance Schedule for Lessees of City Property, as such uniform, standardized schedule may from time to time be amended. City must provide written notice of any amendment to the Insurance Schedule not less than sixty days prior to the effective date of such amendment. 19.2 Arboretum must maintain, or cause to be maintained, at its cost and expense (and from time to time at the request of City must furnish proof of the payment of premiums thereon), for its Trade Fixtures and the contents of all buildings fire and extended coverage insurance as it determines appropriate, and Arboretum acknowledges that City has no obligation for such insurance coverage. 19.3 City will provide and maintain, at its expense, for all Improvements in Section 6.2, fire and extended coverage insurance, including wind damage, vandalism and theft. 19.4 City may at its option and its sole discretion complete the repair, reconstruction and restoration of any damages to Improvements. 19.5 Arboretum must provide City annually evidence of dram insurance coverage with not less than One Million Dollars ($1,000,000) coverage for any events at which alcoholic beverages or beer will be provided. 19.6 City acknowledges that Arboretum may have additional insurance coverage in place beyond what Arboretum is required to provide the City hereunder. SECTION 20. CITY'S WARRANTIES AND REPRESENTATIONS. 20.1 Cit 's Representation of Good Title. City covenants and warrants that City is lawfuily seized in possession of the Leased Premises, and that it has full right and authority to enter into this Lease Agreement for the full term hereof, and covenants and agrees that upon paying the rent provided for herein, and upon Arboretum's performing the covenants and agreements of this Lease Agreement required to be performed by said Arboretum, that it will have, hold and enjoy quiet possession of the Leased Premises. City warrants to Arboretum that the Leased Premises are properly zoned for the conduct of the operation of Arboretum's business. 20.2 City makes no representations or warranties as to the condition, including environmental condition, of the Leased Premises and Arboretum accepts the Leased Premises as is. SECTION 21. ARBORETUM'S WARRANTIES AND REPRESENTATION. 22.1 Arboretum Compliance With Law. Arboretum must comply with all applicable local, state and federal laws, rules, regulations and permits with regard to the Leased Premises and its use, occupancy and control of the Leased Premises. 21.2 Environmental Matters- (1) Arboretum covenants and agrees that City has no responsibility for or liability arising from any release of a Hazardous Substance which is caused by or results from Arboretum, Arboretum's use, occupancy or control of the Leased Premises, except for City Hazardous Substances (any Hazardous Substance which leaches or migrates upon the Leased Premises from any property owned by City). Notwithstanding any other provision of this Lease Agreement, Arboretum has no responsibility for any Hazardous Substance which leaches or migrates upon the Leased Premises from any adjacent property or any release of a Hazardous Substances which is caused by City or which pre-exists the date of this Lease, except as follows: (a) Arboretum is responsible for pre-existing releases for which Arboretum fails to take due care and adequate precaution and/or for which Arboretum's actions or inactions initially caused a release cause a worsening of the release, and (b) Arboretum must provide full cooperation, assistance, and access to City or other parties investigating and/or responding to a threatened or actual release. (2) Arboretum covenants and agrees to promptly notify City of any release of 7 Hazardous Substance in, on or about the Leased Premises of which Arboretum suspects or has actual knowledge. (3) Arboretum covenants and agrees to promptly take any and all necessary and appropriate response to fully address any release of Hazardous Substance for which Arboretum is responsible under this Section 12.2(1) following advance notice to City. Such response includes, without limitation, notification to appropriate governmental authorities, as may be required by law. Arboretum must seek and obtain the concurrence of City as to any such response. Arboretum must respond to such release to the full extent required by law in no event may Arboretum allow limitations or restrictions to be placed on the Leased Premises without the written consent of the City. (4) Arboretum covenants and agrees to not manufacture, treat or dispose of Hazardous Substances at the Leased Premises or allow the manufacture, treatment, or disposal of Hazardous Substances on the Leased Premises. Arboretum must use and store on the Leased Premises only those Hazardous Substances as are associated with its regular business activities, and then only as allowed by law. (5) For the purposes of this Lease; "Hazardous Substance" or "Hazardous Substances" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local government, the State of Iowa or the United States Government. It includes, without limitation, any material or substance that is (i) defined as a "hazardous substance" or "hazardous waste" under Chapter 455B, Iowa Code, (ii) petroleum and petroleum products, (iii) asbestos containing materials in any form or condition, (iv) designated as a "hazardous substance" pursuant to 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1321), (v) defined as a "hazardous waste" pursuant to § 1004of the Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi) defined as a "hazardous substance" pursuant to § 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.0 § 9601 et seq., or (vii) defined as a regulated substance" pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. § 6991 et seq.] The term "Hazardous Substance" does not include any air emissions discharged into the atmosphere as allowed by a duly issued permit from the applicable governmental agency. (6) Arboretum agrees to defend, indemnify and hold City harmless from and against all claims, causes of action, damages, loss, costs, expense, penalties, fines, lawsuit, liabilities, attorney fees, engineering and consulting fees, arising out of or in any manner connected with hazardous substances, which are caused or created by Arboretum during the term of this Lease Agreement including, but not limited to, injury or death to persons or damage to property, and including any diminution of the value of any Leased Premises which may result from the foregoing. This indemnity will survive the cessation, termination, abandonment or expiration of this Lease 8 Agreement for a period of five years. SECTION 22. INDEMNIFICATION, 22.1 Indemnification of Arboretum. To the extent allowed by law, City will defend, indemnify and save harmless Arboretum 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 Arboretum by reason of (a) any accident, injury to or death of persons or loss of or damage to property occurring on or about the Leased Premises and resulting from any act or omission of City, (b) any failure on the part of City to perform or comply with any of the terms of this Lease Agreement and (c) any breach on the part of City of any warranty or representation contained in Section 11. In case any action, suit or proceeding is brought against Arboretum by reason of such occurrence, City will, at City expense and discretion, either defend such action, suit or proceeding, or cause the same to be defended by counsel approved by Arboretum, which approval will not be unreasonably withheld. 22.2 Indemnification of City. Arboretum will defend, indemnify and save harmless City 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 City by reason of (a) any accident, injury to or death of persons or loss of or damage to property occurring on or about the Leased Premises during the term of this Lease Agreement and resulting from any negligence of Arboretum or anyone claiming by, through or under Arboretum during the term of the Lease Agreement and (b) any failure on the part of Arboretum to perform or comply in any material respect with any of the material terms of this Lease, and (c) any material breach on the part of Arboretum of any warranty or representation contained in Section 12. In case any action, suit or proceeding is brought against City by reason of such occurrence, Arboretum will, at Arboretum's expense and discretion, either defend such action, suit or proceeding, or cause the same to be defended by counsel approved by City, which approval will not be unreasonably withheld. 22.3 Survival. The obligations and liabilities under this Section will survive and continue in full force and effect and are not terminated, discharged or released, in whole or in part, irrespective of the termination or expiration of this Lease Agreement. SECTION 23. CONDEMNATION. 23.1 Entire Condemnation. If at any time during the term of this Lease Agreement all or substantially all of the Leased Premises or the Improvements thereon are taken in the exercise of the power of eminent domain by any sovereign, municipality or other public or private authority, then this Lease Agreement will not terminate on the date of vesting of title in such taking and any prepaid rent will be apportioned as of said date. Substantially all of the Leased Premises and the Improvements thereon will be deemed to have been taken if the remaining portion of the Leased Premises is not of sufficient size to permit Arboretum, in Arboretum's sole discretion, to operate its business thereon in a manner similar to that 9 prior to such taking- 23.2 Allocation of Award. Any award for such taking of all or substantially all of the Leased Premises will be paid to the parties hereto in accordance with the following: (1) To City, the amount of the award attributable to the Leased Premises, determined as if this Lease Agreement was not in effect at the time of such award, excluding therefrom the amount of the award attributable to new Improvements constructed by Arboretum but not Improvements existing at the commencement of the Term of this Lease Agreement, and all other sums not directly attributable to the value of the Land constituting the Leased Premises; (2) To Arboretum, the entire award except that portion allocated to City above. 23.3 Partial Condemnation. (1) If less than all or substantially all of the Leased Premises or the Improvements thereon is taken in the exercise of the power of eminent domain by any sovereign, municipality or other public or private authority, then Arboretum, at its option, may elect to continue this Lease Agreement in full force and effect or terminate this Lease. if Arboretum elects to maintain this Lease Agreement in full force and effect, the award for such partial condemnation will be allocated as provided in Section 14.2, and Arboretum must proceed with reasonable diligence to carry out any necessary repair and restoration so that the remaining Improvements and appurtenances constitute a complete structural unit or units which can be operated on an economically feasible basis under the provisions of this Lease Agreement. In the event Arboretum elects to continue this Lease Agreement in full force and effect after a partial condemnation, the Rent will be reduced in proportion to the area of the Leased Premises taken. (2) Should Arboretum elect to terminate this Lease Agreement upon a partial condemnation, Arboretum must provide City with written notice of such election within thirty (30) days after the date of vesting of title for such taking. Arboretum must specify in such written notice the date on which this Lease Agreement will terminate, which date may be not less than sixty (60) days nor more than three hundred sixty (360) days after delivery of such notice to City (the Termination Date). In the event Arboretum terminates this Lease Agreement, as provided for in this Section, Arboretum is entitled to the entire award for such partial taking. 23-4 Temporary_ Taking. If the temporary use of the whole or any part of the Leased Premises or the Improvements thereon or the appurtenances thereto is taken at any time during the term of this Lease Agreement in the exercise of the power of eminent domain by any sovereign, municipality, or other authority, the term of this Lease Agreementwill not be reduced or affected in any way, and Arboretum must 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 Arboretum, and the entire award for such temporary taking must be paid to 10 Arboretum. Arboretum must repair and restore any and all damage to the Leased Premises and the Improvements as soon as reasonably practicable after such temporary taking. SECTION 24. ASSIGNMENT AND SUBLETTING. This Lease Agreement may not be assigned by Arboretum. SECTION 25. DEFAULT AND TERMINATION. 25.1 City's Rights in the Event of Arboretum's Default. If Arboretum fails or neglects to observe, keep or perform any of the covenants, terms or conditions contained in this Lease Agreement on its part to be observed, kept or performed, and the default continues for a period of ninety (90) days after written notice from City setting forth the nature of Arboretum's default(unless such period is otherwise extended as mutually agreed upon by the parties), then and in any such event, City has the right at its option, on written notice to Arboretum, to terminate this Lease Agreement. City thereafter has the right to enter and take possession of the Leased Premises with process of law and to remove all personal property from the Leased Premises and all persons occupying the Leased Premises and to use all necessary force therefor and in all respects to take the actual, full and exclusive possession of the Leased Premises and every part of the Leased Premises as of City's original estate, without incurring any liability to Arboretum or to any persons occupying or using the Leased Premises for any damage caused or sustained by reason of such entry on the Leased Premises or the removal of persons or property from the Leased Premises. 25.2 Arboretum's Rights in the Event of City's Default. If City fails or neglects to observe, keep or perform any of the covenants, terms or conditions contained in this Lease Agreement on its part to be observed, kept or performed, and the default continues for a period of ninety (90) days after written notice from Arboretum setting forth the nature of City's default (unless such period is otherwise extended as mutually agreed upon by the parties), then and in any such event, Arboretum has the right at its option, on written notice to City, to terminate this Lease Agreement, and further Arboretum has all rights available to it provided by law or equity. SECTION 26. RIGHT TO CURE OTHER'S DEFAULTS. Whenever and as often as a party fails or neglects to comply with and perform any term, covenant, condition or agreement to be complied with or performed by such party hereunder, then, following ninety (90) days' prior written notice to such defaulting party (unless such period otherwise extended as mutually agreed upon by the parties), 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 Leased 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 must 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 agreement. 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 will not be deemed to obligate such other party to complete the curing of any term, covenant, condition or agreement which is in default. SECTION 27. QUIET ENJOYMENT. City covenants that at all times during the term of this Lease Agreement, so long as Arboretum is not in default hereunder, Arboretum's quiet enjoyment of the Leased Premises or any part thereof will not be disturbed by any act of City, or of anyone acting by, through or under City. Notwithstanding the foregoing, City has have the right upon reasonably notice to Arboretum to enter the Demised Premised at any time to determine whether Arboretum is in compliance with the requirement of this Lease. SECTION 28. ESTOPPEL CERTIFICATES. Each party hereto agrees that at any time and from time to time during the term of this Lease, within ten (10) days after request by the other party hereto or by any lender having an interest in Arboretum's leasehold estate, it will execute, acknowledge and deliver to the ether party or to such lender or any prospective purchaser, assignee or any mortgagee designated by such other party, a certificate stating (a) that this Lease Agreement is unmodified and in force and effect (or if there have been modifications, that this Lease Agreement is in force and effect as modified, and identifying the modification agreements), (b) the date to which rent has been paid, (c) whether or not there is any existing default by Arboretum in the payment of any rent or other sum of money hereunder, and whether or not there is any other existing default by either party hereto with respect to which a notice of default has been served, and, if there is any such default, specifying the nature and extent thereof; and (d) whether or not there are any setoffs, defenses or counterclaims against enforcement of the obligations to be performed hereunder existing in favor of the party executing such certificate. SECTION 29. WAIVER. No waiver by either party hereto of any breach by the other of any term, covenant, condition or agreement herein and no failure by any party to exercise any right or remedy in respect of any breach hereunder, will constitute a waiver or relinquishment for the future of any such term, covenant, condition or agreement or of any subsequent breach of any such term, covenant, condition or agreement, nor bar any right or remedy of the other party in respect of any such subsequent breach, nor does the receipt of any rent, or any portion thereof, by City, operate as a waiver of the rights of City to enforce the payment of any other rent then or thereafter in default, or to terminate this Lease, or to recover the Leased Premises, or to invoke any other appropriate remedy which City may select as herein or by law provided. SECTION 30. INSPECTIONS. City reserves the right to conduct periodic inspections of the Leased Premises for the purpose of determining whether the terms and conditions of this Lease Agreement are being promptly and faithfully performed by Arboretum. SECTION 31. ANNUAL MEETING. Arboretum's Director and Chair must meet annually with the City Manager or the City Manager's designee to discuss upcoming projects, repairs and/or improvements for the next year as well as discuss any other issues or concerns. 12 SECTION 32. GRANT APPLICATIONS. Arboretum may not apply for any grants having to do with additions or structures, new garden areas or other physical improvements from any source without City's prior written approval. SECTION 33. ASCAP LICENSE. Arboretum must provide to City annually a copy of its ASCAP license. SECTION 34. NONDISCRIMINATION. In carrying out this Lease Agreement, Arboretum shall not discriminate against any employee or applicant for employment because of age, color, familial status, gender identity, marital status, mental/physical disability, national origin, race, religion/creed, sex, or sexual orientation. SECTION 35. SURRENDER. Arboretum must, on the last day of the Term of this Lease Agreement or upon any termination of this Lease Agreement, surrender and deliver up the Leased Premises, 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 Agreement 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 Leased Premises at the time of the surrender, or for the contents thereof or appurtenances thereto. Arboretum's Trade Fixtures, personal property, equipment, materials and other belongings of Arboretum or other occupant of space in the Leased Premises will be and remain the property of Arboretum, and Arboretum will have a reasonable time after the expiration of the term of this Lease Agreement (not to exceed thirty (30) days) to remove the same. If Arboretum fails to remove any Arboretum's Trade Fixtures, personal property, equipment, materials or other belongings from the Leased Premises within thirty (30) days of the expiration date of this Lease Agreement, they will immediately become property of City. Arboretum must reimburse City for any costs incurred by City having to remove, relocate, handle, store, sell or dispose of Arboretum's items described in this Section. SECTION 36. MEMORANDUM OF LEASE. City will record a memorandum of this Lease Agreement. SECTION 37. NOTICES. 38.1 All notices, demands or other writings in this Lease Agreement provided to be given or made or sent, or which may be given or made or seat, by either party to the other, will 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, addressed as follows: TO CITY: City of Dubuque, Iowa City Manager City Hall 50 West 131" Street 13 Dubuque IA 52001 WITH COPY TO; City Attorney City Hall 50 Vilest 131h Street Dubuque IA 52001 TO ARBORETUM: Chair Dubuque Arboretum and Botanical Gardens 3800 Arboretum Drive Dubuque IA 52001 38.2 The address to which any notice, demand or other writing maybe given or made or sent to any party as above provided may be changed by written notice given by the party as above provided. SECTION 38. MISCELLANEOUS. 39.1 Time of the Essence. Time is of the essence of this Lease Agreement and all of its provisions. 39.2 _Governing Law. It is agreed that this Lease Agreement is governed by, construed and enforced in accordance with the laws of the State of Iowa. 39.3 Paragraph Headings. The titles to the paragraphs of this Lease Agreement are solely for the convenience of the parties and may not be used to explain, modify, simplify or aid in the interpretation of the provisions of this Lease. 39.4 Modification of Agreement. Any modification of this Lease Agreement or additional obligation assumed by either party in connection with this Lease Agreement is binding only if evidenced in a writing signed by each party or an authorized representative of each party. 39.5 Parties Bound. This Lease Agreement binds and inures to the benefit of and will apply to the respective successors and assigns of City and Arboretum. All references in this Lease Agreement to "City" or "Arboretum" will be deemed to refer to and include successors and assigns of City or Arboretum without specific mention of such successors or assigns. 39.6 Force Maieure. A party shall be excused from its obligations under this Agreement if and to the extent and during such time as the party is prevented, impeded, or hindered, unable to perform its obligations or is delayed in doing so due to events or conditions outside of the party's reasonable control and after the party has taken reasonable steps to avoid or mitigate such event or its consequences (each a "Force Majeure Event") including, without limitation in any way, as the result of any acts of God, war, fire, or other casualty, riot, civil unrest, extreme weather conditions, terrorism, strikes and/or labor disputes, 14 pandemic, epidemic, quarantines, government stay-at-home orders, municipal and other government orders, failure of Internet, or other matter beyond the control of such party. Upon the occurrence of a Force Majeure Event, the party incurring such Force Majeure Event will promptly give notice to the other party identifying the Force Majeure Event, explaining how it impacts performance and the estimated duration; identifying the relief requested, agreeing to limit damages to the other party and to immediately resume performance upon termination of the Force Majeure Event, and agreeing to supplement the notice as more information becomes available; and thereafter the parties shall meet and confer in good faith in order to identify a cure of the condition affecting its performance as expeditiously as possible. No obligation to make a payment required by this Agreement is excused by a Force Majeure Event. The nonperforming party shall not be entitled to any damages or additional payments of any kind for any such delay. CITY OF DUBUQUE, IOWA By: Michael C. Van Milligen City Manager ATTEST: No Adrienne N. Breitfelder, City Clerk 15 DUBUQUE ARBORETUM ASSOCIATION \ I Hla' 1 .t l -4' Steven Ulstad Chair 16 18 b E . „- ..r,T.s�i. =ate'*;.., n : ' 'g Orr �`�_ �` � .•. -�� . EXHIBIT C INSURANCE SCHEDULE A City of E)ubjjque lnsuramcs RequireMents #or Lessees of City Property and Right Of MY Llcc-nsees or Permitteum INSURANCE SCHEDULE A o! DibLqUer IOWU �Mr 1't� I,, prior iB tits lea.yeJiC, 0- Lornmem-Mert. AsSE! es L" City ;�-Opvty iiit, rigH 01 Way lluorsetlz; or the curer.l A' OP r tU 1 411P"U;a l j tt a urge ;j: t�Tne LI. E? err.:rays t,,alSrL i�-801 i-'L! 'J aL4 :sa , _Ej, j A ,jt8 js,�,je�reen:y- jersj, 01. - , 2 .j�jq- �w !�,. a. --I jr, �Lrer ziuLhorjzC�i� '0 Cv Ou reCulf F!Irj ail i--:,s -jn,,E st<.'J; r8tir r. of A -dr baser ; I,, Ratin 7 G,-11 e. it, 3h8,i ne 4 Th.9 iusiscc, iteer>sea, or oerrnjtt€e 5fjajl :)e rP-d Lu curly aiu r0rimuni ar 1. FljlLtr~ to Drnodo thu 1�qjl:9d -10k L4-3 aware; ui b-cl-I rc-cuiel by 1,110 ,onsAerec� 'A n-kt-'Jal brP-aJ: 01, Ulu -A. v� perm A[' Yeqj!<821 er,.J1jSc-TT1s0s stza l t s cll,ae-7NGoMOK 7. sp&wIjc W lu'rV .. IS refuenr8d Lec�enadbor' 01, the lor-it M jS1 bC -sic J' A - ar, equval3nL lorrrl 1w apprcNvkJ cr `q tl-u n-N3c--Or of ar-,c BjOr-:u!. 4�;enLue, ry,,us;[ iduriVv and !-�A ITI, wrihrg t.,b dufldrS afj(j lrtni Me tSO Aiabr�flly are fughO, thar', [,je tequiIt�� mmsm.,irr. firms3. o! pen S [Ni Hn 1-- �:h8l! L Les ea, 10-:i- - PWMAGu sl­-jil rm;Ute all e3jj ai;A -Inalr..Lml CiLli-.1c the of wolk Isjrorlco 1`desczibej M 8chedu'e AAL: iir.j 'I �jL,Subcor,traufti,s. LH;Sue, or ;tar ljllee agrees f.fia7 il s,)all bi li b'e ft� Ije [UJLN� �A - I( �!al-1 211d may W10 Sly -SLb, J��tor 1 E� ut, cop-i Such curl t 5 ItL;-n the of N pe.,rrfflel,�s �v-,ait be LL IcT p.�jymor.[ ull all :Jolll; :A.-'Lfj AhEa thi" 1-1Giril-ic� pndc;�i rrL,._! !1�, Ljjk age r-j�� -vid Lmaf Al 7 'Ta t.Jv etier"t,-,rta.1.jkl b require COr,"P: z;c�pja:- ol A rGqLJ-vd Svledu'u -Lmerl.s. inI;111'[' 15, to (mdAy lzlese red -A',: (Wrist of -.e ugr��L sea "0 u, tar q:�i ris.-� or othe: sp'�ILWI PAqe 1, .i! 4 Schecd= A Le,.sees Cf Cf 71.70Der-y RcM YVs23 OF peniNteE= Api"I 2-C21 24 City Of Dub uque Insurance Raquirm 10 property And Right of way erq-6 1 r LS�Fsee& ul Cjt.V Licensees or Nmrrhates a INSURANCE SCHEDULE A (Continued) EMBIT 1 A;i COMMERCIAL GENERAL LIARUTY $2 j j c;, s L, r3 OdUU s-00rn;Aa-:ec Age r 1 00 0. "o0 0 Perscl.---] "ZX ,cire Danago Lirrit I , arry It 50.. C, ru (I l!:;J-.Vjjjer-[,j $5' COO AF"dk-'ll 01'a" 0" uT' TIFi claims rr'-jd,2. V a-4 liabil sl'eil be -,vr Lar r-, c wilwl I IS- for fit c� or buy in� s iiabil L-Y friviri C-3 f1C-qL1, OT CMMC-TS lbt�l BF 00 02. �l—adl La elej.* ht dde 1SC, gruul-sem�'It f-nl� CQ 25 CL4 4: 1-10ude Pteser--DM 'JTl,'7'lurliL4s Flndor$x-w.,], a xach. e T3. j, IlUude it!& '11C-CtQd Lild r;ippolnled cork; Jr , il:l its parr:{ Ives `rrd',Ful+Jr'LdrS, Vof autiw rWs �IM: ��j its boa.rj err p:,Lvul; arj vow1wU-:'.. Use S� ronn C-6:C. 20 l0n goiro or 1L Q B) WORKERS' COMPENSATION & EMPLOY5RS LIABILITY r by at icgri,, iova Code 85, �C,L8'pd- OV e 7 a EaLJ€S 10 0 C, !110 Policy S50c... OCO e, 7isqjiQd Lq tku OR 1! by 1OW:J SaCk)tl 86.11'-1_ V-.0 A;,a` ae- J jS rlg', raElLil"d to QLT;:Aljs�. trL, ,w 'Aurker-z' Cur" Pc4r sa lion or Lmvz--y-H-s y le:q,jl,p-j b!Ciujtl set-•tiar, �7 22.+rrr`.:rrriu,2 atja 4 Schenle !=. Lessees cj Rivni cr or pe.-,-njj�ez �.;P2 ,�j � - 25 City of Dubuqje Irsurance Raquiri?memls for LeESEieaa of City Ptoperty and Right Of WAY Lit enseeg or flormittees INSURANCE SCHEDULE A (Continued) Cy POLLUTiON LIABUTY reqj-Jred, — Y� s — PJw PaMon MKO CWHOge Inall 3if Mqwjed I OTle lessr--Y, OurAf8cJ'lL-: ?IL S iM"y .):tdj,,or exPoS_Irp !.Cr err` err`u tf LA ,tazardous .- ndLij ng L'Ll" ml .trrlwd pmdul. Me mmm, tj son 86ASWv or Pf G, Ixvuled. COMMIT H',Udq addi'. uw; vlsuri `tJ-1 C Ly 13;! 0 Ll 3)Lq',Je.. irLCjjjtf jr 4 aits j6le:-IeCj and appal Aed afk- j S. 0 IS err#-mayv-�s LL11A vol-lr.tuors, aii Rs co7mirr,jss!fy,..� andr)r ju ihulr bbal,,J.rllleffl,-)efaf!d 80 ff)-al equrvaler-L am: CG2037i OMPIE19d ClP�, asuawn". IdVa PnnmA(jr 4) kowde OvAerce of 'Overage Wr Oa,dead jft�r L;om,�jlohor- 0F prOjOc.- PROPEW N5URANCE REQUIRED BY LEASE. LICENSE, OR PERN!a V.- NO p&we H, 01 as Lug; PaYaWK R!G HT -OF-WAY WORK ONLY: UIASRELLIEXCESS — 'y'L-, s _ N c "m Germ" hwwKly. �1c5- r� } a:jjjjty lmsj bu - �ti,-V.6fj Vittl a Corr 5IiAjor!. primaTy arl umlj!-lLxces-a ,AHR, Mswams R so umpow w POIICy does L,m cal We Arilwy PM11% A KAH mcs" "Sari'.,. Jr req-jE2io" the ljvwe�., at 6=90w AND PrMafy and N04"COrU 051Y kl "OK of to C4. F� 1::LCOO INSURANCE — yes — No 11 Rai; Lmi d Covera��;A , ,,, Q, 0,,, Ry, & IV, lenwes cT pounilm ApM 2GAI 26 City �f Dubuque Insurance Requjrerqertfor Lessees 04 Cifs Praperty arld Right of way Licensees or Perrnotee5 a!l i.1€ iij jjundd L-:g it:; by ie v jr if r! r� -,j * t i 0- L. !3�c c '0 4. 7 I � � -arr.Lc r PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT f E �JggwS �'Id st2lhTi T-JIFL;I"ij�v, Of of L:il lid be 1; it j. . . Iric , C i . n� �FnEnuudl lrorr. L Tile Ij 1,1`11= CovE r�j ci2. T- Ee irsL rr !L r'-IE T ej4r- ': I . I pEW­� jur jG '�i 4 "s t Jy De � TDC:Ii011 5&j1l b8 Cuve-edl L.'j fl,rg -old 1r-2-Lr8r�iN of D-ibLiqji�, -1g.ji j Jr -iu lira L;vo-j jf:' imul-if"Ay No Ol'IE- C-hL•Tl, A>« tr r o - T"itz _jLrL,--_-�- ;;,tE,sovLuoil :11W tile covil8Lni, mivcii u:JIe Liidq-r Ie p"11 SPECIMEN PF5PARTMEN7MANAGER: FILL IN A.LL BLAWKS AND CHECK SOXES�, Dper-�,. R- hed -1 L-_ssees cLj' C: �i -;� ic kr,,ay 7,t� c­_ _z or pe:,Ilrlec_ z !p,j 27 LEASE AGREEMENT THIS LEASE is made and executed between the CITY OF DUBUQUE, IOWA (Lessor), a municipal corporation, and the DUBUQUE ARBORETUM ASSOCIATION (Lessee), an Iowa nonprofit corporation, with its principal office in Dubuque, Iowa. WHEREAS, Lessor is the owner of a tract of land known as Marshall Park (the Park), legally described on Exhibit "A," and shown on Exhibit "C," attached hereto and incorporated herein by the reference, and WHEREAS, Lessor and Lessee desire to enter into an agreement whereby Lessor leases to Lessee the Park, upon the terms and conditions hereinafter stated, NOW, THEREFORE, in consideration of the mutual covenants and agreements of Lessor and Lessee, each to the other, it is agreed as follows: SECTION 1. LEASED PREMISES. Lessor hereby leases to Lessee the Park, except for the 1.76 acres leased to the Tri-state Veterans' Memorial Association, Inc., shown on Exhibit "B," attached hereto and incorporated herein by the reference, and approximately 1.25 acres for the Playground and Picnic Area, all as shown on Exhibit It C , n SECTION 2. TERM OF LEASE. The term of this Lease shall be twenty- five (25) years, beginning on the 1st day of June, 1992, and ending on the 31st day of May, 2017. The parties may agree in writing to an extension of the term of this lease for an additional twenty- five (25) year period. SECTION 3. RENTAL. The annual rental of one dollar ($1.00) shall be paid to Lessor on or before the 1st day of July, 1992, and on the 1st day of July of each year thereafter for the term of this Lease. SECTION 4. IDENTIFICATION OF THE PARK. Lessee agrees that during the term of the Lease, the Park shall be known as Marshall Park. SECTION 5. USE OF THE PROPERTY. Lessee agrees that during the term of the Lease, the Park shall be used exclusively for public park purposes. However, Lessor and Lessee acknowledge and agree that within the contemplated public park usage, Lessee shall develop and maintain an arboretum and botanical garden, restore and maintain the original three buildings, which include the house, the barn (now the Visitors' Center), and the rest -room building, preserve and maintain the natural, scenic and historical attributes of the property, ensure general public access, at no charge, to the Park, and construct buildings necessary for the uses as described in this Lease. 2 - SECTION 6. GROUNDS AND BUILDING MAINTENANCE. (a) Lessor shall be responsible for the following maintenance items until January 1, 1999, at which time Lessee shall assume such responsibilities. (1) grass cutting on the 37.25 acres not included in the original Lease between Lessor and Lessee dated May 5, 19821 (2) snow removal for the outer roadway, and parking areas adjacent to the Visitors' Center. (b) Lessor shall be responsible for roadway maintenance (except snow removal), well repair and maintenance, Playground and Picnic Area development and maintenance, and trash pickup during the term of this Lease. Park Rangers shall continue to make periodic visits to the Park. (c) Lessee shall be responsible for all grounds maintenance, except as described in (a), and improvements, including but not Limited to grass cutting, sidewalk maintenance, tree maintenance, flower -bed maintenance, and trail maintenance. (d) Lessee shall be responsible for all building maintenance and improvements including but not limited to interior and exterior building repair and painting, heating system maintenance, plumbing repair and maintenance, electric repair and maintenance, roof repair, pest control, and sewer system. (e) Any improvements made by Lessee shall remain on the leased premises upon termination of this Lease, and shall then become the property of Lessor. Any proposed material improvements or modifications to the leased premises shall be submitted in writing to the Leisure Services Manager for approval by the Lessor, which approval shall not be unreasonably withheld, and which proposed improvements or modifications shall be considered in the context of the use stated in Section 5. Examples of material improvements or modifications would include building construction, roadway relocation, excavation, and other similar projects. (f) If it becomes necessary, for reasons of economic necessity or for effective overall development of the Park, the Lessee may request, in writing, permission from Lessor to remove any of three original buildings described in Section 5, and such permission shall not be unreasonably withheld by Lessor. SECTION 7. MANAGEMENT AND CONTROL OF THE PARK. (a) It is agreed and understood that sole management authority and control of the Park, for and within the use stated in Section 5, shall be in Lessee. (b) Lessee agrees that all monies and contributions derived from the Park, except monies derived from the harvesting of trees, shall be used for the improvement of the Park. 3 - SECTION 8. INSURANCE. (a) Lessor shall provide and maintain for buildings, fire and extended coverage insurance, including wind damage, vandalism and theft. Lessee shall provide and maintain for the contents of all buildings, fire and extended coverage insurance as it determines appropriate, and Lessee acknowledges that Lessor has no obligation for such insurance coverage. (b) Lessee agrees to procure and maintain during the term of the Lease a policy of general public liability insurance, insuring Lessee and Lessor against any claims arising out of the leasing of the Park, or any activity or operations conducted therein. Said liability policy shall be written with minimum limits of not less than than one million dollars ($1,000,000) for each occurrence of bodily injury and property damage. Lessee shall, within thirty (30) days after the execution of this Lease, provide Lessor with a true copy of said liability policy written by a company authorized to do business in the state of Iowa. Said policy shall contain a provision that it shall not be canceled or materially altered without first having given thirty (30) days' prior written notice to Lessor, and shall name Lessor as an additional insured. (c) Not less than ninety (90) days prior to every tenth anniversary of the beginning of this Lease, beginning in 2002, Lessor and Lessee shall meet and review the minimum limits of liability stated in this paragraph to determine whether such minimum limits are sufficient to adequately protect the interests of Lessor and Lessee. In the absence of an agreement regarding the minimum limits to be maintained, Lessor and Lessee agree that on every tenth anniversary, the minimum limits to be maintained during the succeeding ten (10 ) year period shall be adjusted up or down in proportion to the net change in the Consumer Price Index, "Urban, All -Items," since the last previous tenth anniversary; provided, further, that in no event shall the minimum limits to be maintained be reduced below the original limits fixed by this paragraph. If, during the term of this Lease, publication of the Consumer Price Index is terminated, the adjustment contemplated by this paragraph shall be calculated through use of the federally published statistical data of index most closely approximating in function the Consumer Price Index, "Urban, All -Items," as it exists at the time of the commencement of this Lease. SECTION 9. INDEMNITY. Lessee agrees to save, defend, indemnify and hold harmless Lessor, its officers, agents and employees, against any and all loss, damage, claims, causes of action, judgments, costs and expenses that Lessor may hereafter suffer, incur, be put to, pay or lay out by reason of performance by the Lessee and\or its agents and employees of the conditions of this Lease. L 4 - SECTION 10. ASSIGNABILITY. Lessee shall not assign or transfer any interest in this Lease without the prior written approval of Lessor. Such prohibition shall include contracts or agreements with third parties for the custody, management or operation of the Park. SECTION 11. TERMINATION. (a) In the event Lessee shall fail to keep, perform and observe in a timely and proper manner any of its covenants or obligations under this Lease, and any such violation shall not be cured or remedied within thirty (30) days after the date Lessee receives notice from Lessor of such failure or violation, then in such event, Lessor may, at its option, terminate this Lease by written notice to Lessee, specifying the effective date of such termination. Upon termination, Lessor shall have the right to enter the Park and to assume exclusive control and management of the Park. b) Upon termination of this Lease for any cause whatsoever, Lessee, at the option of Lessor, agrees to surrender possession of the leased premises as it is at the time of termination, in the condition as when first leased, or to restore the leased premises to substantially the same condition, ordinary wear and tear excepted. SECTION 12. INSPECTION. Lessor reserves the right to conduct periodic the Park for the purpose of determining whether conditions of this Lease are being promptly performed by Lessee. Signed in two copies by the parties hereto. Dated this ATTESTED: Mary/�,. Davis, City Clerk day of .g • -� inspections of the terms and and faithfully 1992. CITY OF DUBUQUE, IOWA: by : 7 t ames E. Brady�yor DUBUQUE ARBORETUM ASSOCIATION LG FIRST AMENDMENT TO LEASE AGREEMENT This First Amendment to Lease Agreement is entered into on the 19th day of October, 1998, by and between the City of Dubuque, Iowa, herein referred to as the City, and Dubuque Arboretum Association, herein referred to as the Association. WHEREAS, the City is the Lessor and the Association is the Lessee under the terms of a Lease Agreement entered into on July 28, 1 992; and WHEREAS, the Association desires to amend Section 6. (a); and WHEREAS, it is deemed to be in the best interest of boti� parties to the Lease Agreement that this First Amendment to Lease Agreement be approved, NOW THEREFORE, the parties have mutually agreed as follows: Paragraph 1 . The Lease Agreement dated July 28, 1992, is hereby amended by replacing paragraph one, SECTION 6, GROUNDS AND BUILDING MAINTENANCE. (a) with the following: Lessor shall be responsible for the following maintenance items until January 1 , 2002, at which time Lessee shall assume such responsibilities: (1) grass cutting on the 37.25 acres , iot included in the original Lease between Lessor and Lessee dated May 5, 1 982; (2) snow removal for the outer roadway, and parking areas adjacent to the Visitor's Center. ATTESTED: c ary �,! Davis, City Clerk by: by: CITY OF D'uBUQUE, IOWA Tefrance M. Duggan, Ma IATION, INC. you E:XiiIF3IT A Legal description of Leased Premises. Northwest one -quarter of the southeast one -quarter of the southwest one -quarter of Section 10, Township 89 north, Range 2 east of the fifth principal meridian according to the United States government survey thereof, and the southwest quarter of the southwest quarter of Section 10, Township 89 North, Range 2 East east of the fifth principal meridian according to the United States government survey thereof, also right-of-way over the westerly 20 feet of Lot 1 of the subdivision of Lot 1 of 1 of 1 of Mineral lot 390, Lot 2 of 1 of Mineral Lot 386 and Lot 2 of Mineral Lot 380, according to the recorded plats thereof; all in the City of Dubuque, Iowa. �:/ +. q �1 • doHn� I I I l�- l� S ZIgIHX� I �, • �bdd oo•o o' ai � n: � •��' '_ �- �� N ,i r _ p �. •b z J � a � v a ,� a • 1'd I �1'� �, � z z � = N W �•O NNm � • ■ � • e • U �f O / � �--•� • O '. O' V: O Q �U o � _. 00F u •• � '�' C Q N � L _ �� E � N Q �O •y � � ^ Q ;• � � W � � { �z � • i - w � � � G1t - / �Wv � Z � 'J Q � � (7' N _7 L1_------ —r--� __ _; S � _ r ' � � �' � _ \ � R' N a ae Q • oo; s - • � }— � wa �o ,� Q � \ � � � ~ � a't x Z ., � ! �� s � i �-•r'_'•'—y m i 210 j/ ; U Y a. � '6i. / / � f,/ ` // J i m m / W ha am � •o�n�vro <�� � b � _ � - U • � • � Y • 1 y •. .. .j O K {- -1 .._ . b� Exhibit C RESOLUTION N0. -92 RESOLUTION DECLARING CITY COUNCIL INTENT TO LEASE MARSHALL PARK TO THE DUBUQUE ARBORETUM ASSOCIATION AND AUTHORIZING PUBLIC HEARING Whereas, the City of Dubuque is the owner of a public facility known as Marshall Park; and Whereas, the City of Dubuque desires to lease Marshall Park to the Dubuque Arboretum Association; and Whereas, the lease of Marshall Park to the Dubuque Arboretum Association is determined to be in the public interest. NOW THEREFORE, 8E IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That it is the intent of the City Council of the City of Dubuque, Iowa, to lease, after a public hearing, to the Dubuque Arboretum Association, Marshall Park, located in the City of Dubuque, for the purpose of operating an arboretum and botanical garden. Section 2. That the lease, attached hereto and made a part hereof, of such property shall be in consideration of the sum of $1.00 per year, for the First twenty-five years, and shall be subject to such terms and conditions as set forth in the lease. Section 3. That the City Clerk is hereby directed to give notice in the manner required by law of a public hearing to be held on July 20, 1992, at 7:30 p.m., in the City Council Chambers, Carnegie -Stout Public Library, Dubuque, Iowa, at which time and place all interested parties will be given opportunity to be heard for or against the proposal to lease the facility herein described. Passed, approved and adopted this day of , 1992. James E. Brady Mayor Attest: Mary A. Davis City Clerk FIRST AMENDMENT TO LEASE AGREE9VIE1MT This First Amendment to Lease Agreement is entered into on the 1 9th day of October, 1998, by and between the City of Dubuque, Iowa, herein referred to as the City, and Dubuque Arboretum Association, herein referred to as the Association. WHEREAS, the City is the Lessor and the Association is the Lessee under the terms of a Lease Agreement entered into on July 28, 1 992; and WHEREAS, the Association desires to amend Section 6. (a); and WHEREAS, it is deemed to be in the best interest of both parties to the Lease Agreement that this First Amendment to Lease Agreement be approved, NOW THEREFORE, the parties have mutually agreed as follows: Paragraph 1 . The Lease Agreement dated July 28, 1992, is hereby amended by replacing paragraph one, SECTION 6, GROUNDS AND BUILDING MAINTENANCE. (a) with the following: Lessor shall be responsible for the following maintenance items until January 1, 2002, at which time Lessee shall assume such responsibilities: (1) grass cutting on the 37.25 acres got included in the original Lease between Lessor and Lessee dated May 5, 1982; (2) snow removal for the outer roadway, and parking areas adjacent to the Visitor's Center. ATTESTED: Mary A. Davis, City Clerk by: by: CITY OF DUBUQUE, IOWA Terrance M. Duggan, Mayor DUBUQUE ARBORETUM ASSOCIATION, INC. 4 RESOLUTION NO. 473 -98 RESOLUTION APPROVING AN AMENDMENT TO THE LEASE AGREEMENT WITH DUBUQUE ARBORETUM ASSOCIATION WHEREAS, published notice of date, time, and place of a public hearing, published in the Telegraph Herald, a newspaper of general circulation published in the City of Dubuque, Iowa, on the 9th day of October, 1998, the City Council of the City of Dubuque, Iowa, met on the 19th day of October, 1998, at 7:00 p.m., in the Public Library auditorium, Eleventh and Locust Streets, Dubuque, Iowa, to consider the first amendment to the Lease Agreement between' the City of Dubuque and the Dubuque Arboretum Association, a copy of which is attached hereto and incorporated herein by reference; and WHEREAS, the City Council of the City of Dubuque, Iowa, overruled any and all objections, oral or written, to the lease agreement, NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA,* Section 1 The 'amendment to the Lease Agreement between the City of Dubuque and Dubuque Arboretum Association, a copy of which is attached hereto, is hereby approved. Section 2. The Mayor is authorized and directed to execute the Lease Agreement on behalf of the City of Dubuque. Passed, approved and adopted this 19th day of October, 1998. Attest: Mary .Davis City Jerk PK J Terrance uggan Mayor CERTIFICATE OF CITY CLERK STATE OF IOWA ) COUNTY OF DUBUQUE ) I, Mary A. Davis do hereby certify that I am the duly appointed qualified and acting Clerk of the City of Dubuque, Iowa in the County aforesaid, and as such Clerk I have in my possession or have access to the records of the proceedings of the City Council. I do further state that the hereto attached Resolution No. 473- 98 is a correct copy of the original Resolution No. 473=98 approved and adopted by the City Council of the City of Dubuque, Iowa, at a session held by said Council on the 19th day of October, 1998, In Testimony Whereof, I hereunto set my hand and official seal of the City of Dubuque, Iowa. Dated at Dubuque, Iowa this 20th day of October, 1998. Marv�A. Davis CMC City Clerk for City of Dubuque, Iowa (SEAL) RE I M • ! October 14, 1998 TO: Michael C. Van MilligenI City Manager FROM: Gil D. Spence, Leisure Services Managerly SUBJECT: Amendment to the Lease with the Dubuque Arboretum Association INTRODUCTION The purpose of this memorandum is to ask the City Council to adopt the attached resolution amending the lease with the Dubuque Arboretum Association, DISCUSSION Dubuque Arboretum Association leases most of Marshall Park for development and operation of an arboretum and a botanical garden. The Association signed a twenty-five year lease in 1992 that runs through May 31, 2017. When I negotiated the lease, a clause was included that called for the City to cut the grass Cl" remove snow in the leased area until January 1, 1999. I asked for this clause, anticipating additional park land coming into the park system and the maintenance effort from Marshall Park could be transferred to the new parks. The Association is in a transition period to new leadership, with the illness of Gene Heinemann. They are experiencing some financial problems as well as a lack of volunteers and are asking the City to continue grass cutting and snow removal until they get through this transition period. I suggested a three-year extension so that we get together in a few years to review the situation. ACTION STEP The action requested is that the City Council adopt the attached resolution amending the lease with the Dubuque Arboretum Association. GDS:et attachments it THE CITY OF DU13 r IVlasterplece on the Mississippi TO: Jack Frick and Wylie Bledsoe Dubuque Arboretum Association FROM: Marie L. Ware, Leisure Services Manager SUBJECT: Proposed Arboretum Lease Second Amendment DATE: April 5, 2011 We appreciate the opportunity to meet with the two of you regarding updating the lease relative to mowing and snow removal. We drafted an extension and reviewed it with City Manager Mike Van Milligen. The amendment is a three-year extension. This will allow us in three years to discuss again and that next three year will coincide with the overall date of the lease renewal. Although not written in the lease there is the understanding as we discussed when we met that at times it will likely be difficult for us to keep the schedule we have in the past. In the event this happens Bob and/or his staff will communicate early enough so you can make the appropriate plans. Obviously extremely rainy and snowy seasons hit us the hardest and may require more coordination. Additionally, the meeting we had was a good one to touch base on a variety of topics. Obviously we talk throughout the year but I'd like to continue with aonce-a-year late winter meeting to talk about overall how things are going and what is coming up. I think this was very good for both of us. Should the second amendment to the lease be acceptable please sign both copies and get them back to me. If returned by April 12th I can put them on the April 18th Council meeting. Should you require a little more time I'd need them by April 25th for the May 2nd Council meeting. Call me if you have any concerns. Thanks for all your efforts at the Arboretum! MLW:et enclosures (2) (lease / second amendment) copy Bob Fritsch, Park Division Manager