Signed Contract_Dubuque Jaycees Lease for Veterans Memorial Park Copyrighted
April 3, 2017
City of Dubuque Consent Items # 21.
ITEM TITLE: Signed Contracts
SUMMARY: Dubuque Jaycees Lease for Veterans' Memorial Park
Community Garden; Dubuque Water Sports Club Lease for
a section of Chaplain Schmitt Island
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File
ATTACHMENTS:
Description Type
Dubuque Jaycees Lease Supporting Documentation
Dubuque Water Sports Club Lease Supporting Documentation
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THE CITY OF Dubuque
*AmeftCitYDUBUQUE /
Masterpiece on the Mississippi 2007.2012+2013
TO: Michael C. Van Milligen, City Manager ,,1
FROM: Marie L. Ware, Leisure Services Manager �J
SUBJECT: Dubuque Jaycees Lease for Veterans' Memorial Park Community Garden
DATE: March 15, 2017
INTRODUCTION
The purpose of this memo is to request your signature on the attached one season
lease with the Dubuque Jaycees to operate a community garden at Veterans Memorial
Park.
DISCUSSION
Six years ago, the Dubuque Jaycees approached Cori Burbach and myself about the
possibility of starting a community garden at Veterans' Memorial Park. The Jaycees
project has been very successful and they wish to continue.
The Jaycees created a series of both in-ground and raised beds that are available for a
small rental fee to the public. The rental fee charged by the Jaycees to gardeners
includes an annual fee to cover the costs of maintenance of the space as well as a
deposit that is charged to the renter but returned at the end of the growing season if the
individual cleans their space and returns it to its original status.
The City is responsible for providing the land to the Jaycees, providing water access to
the gardens and providing waste removal. Waste removal occurs on the schedule City
staff currently provide to the park. Jaycees and garden tenants are responsible for
getting trash into containers provided. City sustainability staff assist Jaycees members
in marketing the availability of the garden. Leisure Services agrees to tractor till garden
spaces.
I consulted with Miracle League and their timing allows Jaycees use of the space for the
2017 season.
The lease agreement has been reviewed and approved by City Attorney Barry Lindahl.
Barry said the lease does not need City Council approval since the term is only one
season. The Park and Recreation Commission approved recommending the Lease at
their March meeting.
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RECOMMENDATION
I respectfully recommend you sign the attached lease agreement with the Dubuque
Jaycees to operate a community garden in Veterans' Memorial Park and then give to
City Clerk Kevin Firnstahl so it may be placed on the April 3rd Council agenda as a
signed agreement.
MLW:et
attachment: Lease
cc: Stephen Fehsal, Park Division Manager
Kevin Firnstahl, City Clerk
Kevin Koch, President, Jaycees
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LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
THE DUBUQUE JAYCEES
This Lease Agreement (the Lease), dated for reference purposes the day
of , 2017, is made and entered into by and between the City of Dubuque,
Iowa, a municipal corporation (Lessor) and the Dubuque Jaycees (Lessee).
SECTION 1. DEMISE AND TERM.
1.1. 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 and to hold for a term
commencing on the 1 st day of April, 2017 and terminating at 11:59 p.m. on the 15th day
of November 2017 (the Term), subject to all of the terms, covenants, conditions and
agreements contained herein.
1.2. Lessee's use of the Demised Premises must be exclusively.for the operation of a
community garden.
1.3. 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.
SECTION 2. RENT. Lessee must pay Lessor rent for the Demised Premises of $1
upon execution of this Lease.
SECTION 3. IMPROVEMENTS.
3.1. On delivery of possession of the Demised Premises to Lessee, Lessee is be
entitled to construct on the Demised Premises all improvements as agreed upon in
writing by Lessor and Lessee (the Improvements). Lessor, through its City Manager,
has the right to approve the design, appearance and quality of any such Improvements.
All improvements presently on the Demised Premises and all Improvements hereafter
constructed on the Demised Premises are and will be the property of Lessee during the
term of this Lease and upon any termination of this Lease, by reason of any cause
whatsoever, Lessee must remove all such Improvements and restore the Demised
Premises to the condition it was in immediately prior to the commencement of the term
of this Lease and to the full satisfaction of Lessor unless Lessee agrees, with the prior
consent of Lessor, to surrender to Lessor all such Improvements.
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3.2. Lessee must fence, secure and sign the Demised Premises appropriately and as
approved by Lessor to keep access to the Demised Premises only to gardeners
authorized by Lessee to enter and use the Demised Premises.
3.3. Lessor will provide Lessee with water sources which must be locked by Lessee
at all times when not in use by gardeners and only made available to gardeners
authorized by Lessee to enter and use the Demised Premises.
SECTION 4. ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST. Lessee
may 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.
SECTION 5. REPAIRS AND MAINTENANCE.
5.1. Lessee must 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 superior order,
condition, and repair, casualties and ordinary wear and tear excepted. Lessee must
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
inspection of the Demised Premises to determine Lessee's compliance with this Section
5.1.
5.2. Lessee will be responsible for gathering all trash and placing it in bins approved
and provided by Lessor. Lessor will be responsible for removal of trash from the
Demised Premises.
5.3. Lessee will not allow any outdoor storage of equipment, vehicles, construction
materials or any other personal property on the Demised Premises except in a storage
building provided by Lessee and approved by Lessor for the storage.
5.4 Lessee will mow areas and line trim areas inside garden fence.
5.5 Lessor will initially till individual garden spaces.
SECTION 6. COMPLIANCE WITH LAW. During the term of this Lease, Lessee must
comply with all laws applicable to Lessee's use of the Demised Premises.
SECTION 7. USE OF DEMISED PREMISES.
7.1. Lessee may 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 may not suffer
any act to be done or any condition to exist within the Demised Premises or in any
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Improvement thereon, or permit any Section 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.
7.2. Lessee will use and maintain the premises only for a community garden.
7.3. Lessee understands the proximity of the Demised Premises to the ballfields will
likely result in errant balls from games, practices and/or warmups. Lessor will not be
liable for damage to the gardens related to ballfield activities. Lessee must obtain from
all gardeners authorized by Lessee to enter and use the Demised Premises a release
and waiver of all liability arising from the use of the Demised Premises, including any
risk of ballfield activities.
SECTION 8. INSURANCE. Lessee must at all times during the term of this Lease
maintain insurance as set forth in the attached Insurance Schedule A.
SECTION 9. INDEMNIFICATION. Indemnification of Lessor. Lessee agrees to
defend, 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, through, 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 must, 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.
SECTION 10. CONDEMNATION. If at any time during the term of this Lease all or
substantially all of the Demised Premises or the improvements thereon are taken in the
exercise of the power of eminent domain by the State of Iowa or the United States, then
this Lease will terminate on the date of vesting of title in such taking and any prepaid
rent will be apportioned as of said date.
SECTION 11. ASSIGNMENT AND SUBLETTING. Lessee may not assign or
transfer this Lease or sublease the whole or any part of the Demised Premises.
SECTION 12. 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 perforated, and the default continues for a period of five(5) days after
written notice from Lessor setting forth the nature of Lessee's default, then and in any
such event, Lessor will have the right at its option, on written notice to Lessee, to
terminate this Lease, and all rights of Lessee under this Lease will then cease. Lessor,
without further notice to Lessee, will have the right immediately to enter and take
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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 therefore 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 Lessor's 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.
SECTION 13. 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 will not be disturbed by any act
of Lessor, or of anyone acting by, through, or under Lessor.
SECTION 14. 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, 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 Lessor in respect of any such subsequent breach, nor will 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.
SECTION 15. SURRENDER. Lessee must, on the last day of the term of this Lease
surrender and deliver up the Demised Premises, into the possession and use of Lessor,
without fraud or delay and in good order, condition, repair, free and clear of all lettings
and occupancies, free and clear of all liens and encumbrances.
SECTION 16. NOTICES. All notices, demands, or other writings in this Lease
provided to be given or made or sent, or that may be given or made or sent, 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, and
addressed as follows:
TO LESSOR: City of Dubuque, Iowa
c/o City Manager
City Hall
50 W. 13th St.
Dubuque, IA 52001
TO LESSEE: The Dubuque Jaycees Inc.
c/o President
c/o Vice-President
P.O. Box 63
Dubuque, IA 52004-0063
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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.
SECTION 17. MISCELLANEOUS.
17.1. Governing Law. It is agreed that this Lease will be governed by, construed, and
enforced in accordance with the laws of the State of Iowa.
17.2. Paragraph Headings. The titles to the paragraphs of this Lease 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.
17.3. Modification of Agreement. Any modification of this Lease or additional obligation
assumed by either party in connection with this Lease will be binding only if evidenced
in writing signed by each party or an authorized representative of each party.
17.4. Parties Bound. This Lease is binding on and shall inure to the benefit of and will
apply to the respective successors and assigns of Lessor and Lessee. All references in
this Lease to "Lessor" or "Lessee" will be deemed to refer to and include successors
and assigns of Lessor or Lessee without specific mention of such successors or
assigns.
LESSOR: LESSEE:
CITY OF DUBUQUE, IOWA THE DUBUQUE JAYCEES, INC.
By: L__.._.� By:
Michael C. Van Milligen
City Manager
Printed Name, President
Attest: By:
Kevin S. Firnstahl
City Clerk
Printed Name, Vice-President
F:\USERS\tsteckle\Lindahl\Agreements\DubuqueJayceesLeaseAgreement_Com GardenAtVets_030816.doc
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EXHIBIT A
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City of Dubuque Insurance Requirements for Lessees of City Property and Right of Way
Licensees or Permittees
Insurance Schedule AA
1, shall furnish a signed certificate of insurance to the City of Dubuque,Iowa for the
coverage required in Exhibit I prior to the lease,license,or permit commencement.All lessees of City
property and right of way licensees or permittees shall submit an updated certificate annually.Each
certificate shall be prepared on the most current ACORD form approved by the Iowa insurance Division or
an equivalent.Each certificate shall include a statement under Description of Operations as to why the
certificate was issued.E . Project# or lease of premises at or construction of
or right of way permitted location and description
2. All policies of insurance required hereunder shall be with an insurer authorized to do business in JOW2 and
all insurers shall have a rating of A or better in the current A.M.Besfs Rating Guide.
3. Each certificate shall be furnished to the Department of the City of Dubuque.
4. The lessee,licensee,or permittee shall be required to carry the minimum coverage/limits,or greater if
required by law or other legal agreement,in Exhibit 1.Failure to provide the required minimum coverage
shall not be deemed a waiver of such requirements by the City of Dubuque.
5. Failure to obtain or maintain the required insurance shall be considered a material breach of the lease,
license,or permit.
6. All required endorsements shall be attached to certificate.
7. Whenever a specific ISO form is referenced the current edition of the form must be used unless an
equivalent form is approved by the Finance Director.The lessee,licensee,or permittee must identify and
list in writing all deviations and exclusions from the ISO form.
8, if lessee's,licensee's,or perm-ittee's limits of liability are higher than the required minimum limits then
the lessee's,licensee's,or permittee's limits shall be this agreement's required limits.
Page I of 4 Schedule AA Lessees Of City Property;Right Of Way Licensees
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City of Dubuque Insurance Requirements for Lessees of City Property and Right of Way
Licensees or Permittees,
Insurance Schedule AA (continu
Exhibit I
A) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit
Products-Completed Operations Aggregate Limit $1,0D0,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence $1,01301000
Fire Damage Limit(any one occurrence) $ 50,000
Medical Payments $ 5,000
a) Coverage shall be written on an occurrence,not claims made,form.The general liability
coverage shall be written in accord with [SO form C005 or business owners form BP0002.
All deviations from the standard ISO commercial general liability form CG 0001,or Business
owners form BP G002,shall be clearly identified.
b) Include ISO endorsement form CG 25 04"Designated Location(s)General Aggregate Limit.'
c) include endorsement Indicating that coverage is primary and non-contributory.
d) Include Preservation of Governmental immunities Endorsement(Sample attached).
e) Include an endorsement that deletes any fellow employee exclusion.
f) include additional insured endorsement for:
The City of Dubuque,including all its elected and appointed officials,all its employees
andvolunteers all its boards,commissions and./or authorities and their board members,
employees and volunteers.Use ISO form CG 2010(Ongoing operations)or its
equivalent.
g) if lessee,licensee,or permittee utilizes Trikkes or Segways in the conduct of business,
include an endorsement reflecting that these vehicles are not excluded from Commercial
General Liability coverage.
B) WORKERS'COMPENSATION&EMPLOYERS LIABILITY
Statutory benefits covering all employees injured on the job by accident or disease as prescribed by
Iowa Code Chapter 85 as amended.
coverage A Statutory—State of Iowa
Coverage B Employers Liability
Each Accident $1100,000
Each Employee-[Disease $100,000
Policy Limit-Disease $500,000
Policy shall include Waiver of Right to Recover from others endorsement.
Nonelection of Workers'Compensation or Employers'Liability Coverage under Iowa Code sec.87.22
—yes—form attached
C) Pollution Liability Coverage required: _yes no
Pollution liability coverage shall be required if the lessee,contracting party,or permittee has any
pollution exposure for abatement of hazardous or contaminated materials including,but not limited
to,petroleum products,the removal of lead,asbestos,or PCBs.Pollution product and completed
operations coverage shall also be covered.
Page 2 of 4 Schedule AA Lessees Of City Property;Right Of Way Licensees
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City of Dubuque Insurance Requirements for Lessees of City Property and Right of►quay
Licensees or Permittees
$2,000,000 each occurrence
$4,000,GOO policy aggregate
a) Policy to include premises and transportation coverage,
b) include additional insured as stated in A(f).
c) Include Preservation of Governmental Immunities Endorsement.
d) Provide evidence of coverage for 5 years after completion of project.
D) Property insurance required by lease,license,or permit_yes—no
Evidence of property coverage provided _yes
Page 3 of 4 Schedule AA Lessees Of City Property;Right Of Way Licensees
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City of Dubuque Insurance Requirements for Lessees of City Property and Right of Way
Licensees or Permittees
Preservation of Governmental Immunities Endorsement
f
1. Nonwalver of Governmental Immunity..The insurer expressly agrees and states that the purchase of
this policy and the including of the City of Dubuque,Iowa as an Additional Insured does not waive
any of the defenses of governmental immunity available to the City of Dubuque,Iowa under Code of
Iowa Section 670.4 as it is now exists and as it may be amended from time to time.
2. Claims Coverage.The insurer further agrees that this policy of insurance shall cover only those
claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4
as it now exists and as it may he amended from time to time.Those claims not subject to Code of
Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy.
3. Assertion of Government Immunity.The City of Dubuque,Iowa shall be responsible for asserting any
defense of governmental immunity,and may do so at any time and shall do so upon the timely
written request of the insurer.
4. Non-Denial of Coverage.The insurer shall not deny coverage under this policy and the insurer shall
not deny any of the rights and benefits accruing to the City of Dubuque,Iowa underthis policy for
reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in
favor of the defense(s)of governmental immunity asserted by the City of Dubuque,Iowa.
No Other Change in Policy.The above preservation of governmental immunities shall not otherwise
change or alter the coverage available under the policy.
SPECIMEN
Page 4 of 4 Schedule AA Lessees Of City Property;Right Of Way Licensees
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