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MYLA Company, LLC LeaseTHE CITY OF ~ Dubuque AN-Amfii~ . C~ DUB E 1 ~ Masterpiece on the Mississippi 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: MYLA Company, LLC Lease DATE: October 12, 2009 City Engineer Gus Psihoyos recommends City Council approval of a ten-year lease with MYLA Company, LLC for public right-of-way abutting 3338 Center Grove Drive for placement of a sign for the businesses in the building. I concur with the recommendation and respectfully request Mayor and City Council approval. Mic el C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Gus Psihoyos, City Engineer TH E CITY tJF ~~~ ~ Masterpiece on the 1Vltss~sszppi TO: Michael C. Van Milligen, City Manager FROM: Gus Psihoyos, City Engineer ~ , DATE: October 12, 2009 SUBJECT: MYLA Company, LLC Lease INTRODUCTION Dubuque AI I ' I 200 The purpose of this memo is to request City Council approval of a new lease between the City of Dubuque and MYLA Company, LLC. DISCUSSION A new lease is proposed between the City of Dubuque and MYLA Company, LLC for its new building at 3338 Center Grove Drive. The purpose of the lease is to allow for the placement of a sign for the businesses in the new building. The terms of the lease are as follows: • Ten-year lease beginning November 1, 2009 through October 31, 2019. • Annual lease rate of $120. • Standard insurance and indemnity language. In addition, MYLA Company, LLC has agreed to install sidewalk along the developed frontage at 3338 Center Grove Drive. RECOMMENDATION I would recommend that a public hearing be held on the proposed lease between MYLA Company, LLC for the placement of a sign for the businesses in the new building at 3338 Center Grove Drive. ACTION TO BE TAKEN The attached resolution should be submitted to the City Council for consideration and approval of disposing of the City interest in the public right-of-way abutting 3338 Center Grove Drive for the placement of a sign by MYLA Company, LLC. cc: Barry Lindahl, City Attorney Ken TeKippe, Finance Director Guy Hemenway, Assistant Planner Steve Sampson Brown, Project Manager Ron Turner, PLS Prepared by: Ronald J. Turner, City of Dubuque, 50 W. 13th Street, Dubuque, IA 52001 (563) 589-4270 RESOLUTION NO. 420-09 RESOLUTION DISPOSING OF CITY INTEREST IN PUBLIC RIGHT-OF-WAY ABUTTING 3338 CENTER GROVE DRIVE IN THE CITY OF DUBUQUE, DUBUQUE COUNTY, IOWA BY LEASE WITH MYLA COMPANY, LLC Whereas, pursuant to resolution and published notice of time and place of hearing, published in the Telegraph Herald, a newspaper of general circulation published in the City of Dubuque, Iowa on this 9th day of october , 2009, the City Council of the City of Dubuque, Iowa met on the 19th day of october , 2009, at 6:30 p.m. in the Historic Federal Building Council Chambers (second floor), 350 West 6t" Street, Dubuque, Dubuque County, Iowa to consider the proposal for the lease of public right-of-way abutting 3333 Center Grove Drive legally described as: Lot 2 of part of Lot 1 of Lot 20, Lot 2 of part of Lot 1 of Lot 21, and Lots 22, 23, 24, 25, and 26 in Center Grove in the City of Dubuque, Dubuque County, Iowa to MYLA and Company, LLC, pursuant to a Lease Agreement attached hereto; and Whereas, the City Council of the City of Dubuque, Iowa, overruled any and all objections, oral or written to the proposal to lease such real estate. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the lease of City of Dubuque right-of-way abutting 3338 Center Grove Drive , to MYLA and Company, LLC, be and the same is hereby approved for the sum of $120.00 per year, in accordance with the Lease Agreement dated September 21, 2009 attached hereto. Section 2. The City of Dubuque reserves unto itself a perpetual easement including the right of ingress and egress thereto, for the purpose of erecting, installing, constructing, reconstructing, repairing, owning, operating, and maintaining water, sewer, drainage, gas, telephone, television cable, fiber optics, and electric lines as may be authorized by the City of Dubuque, Iowa, over the enfire leased area. Section 3. The Mayor is authorized and directed to execute the Lease Agreement, and the City Clerk is hereby authorized and directed to deliver a copy of said lease to MYLA and Company, LLC upon receipt of the lease payment for the year. Section 4. The City Clerk is hereby authorized and directed to record a certified copy of this resolution in the offices of the City Assessor, Dubuque County Recorder and Dubuque County Auditor. Passed, approved and adopted this 19th day of octob r , 2009. ~~ /./// -~t` ~ .~ r N Roy D. Buol, Mayor eanne F. Schneider, CMC, City Clerk Prepared by and return to: Ron Turner, Engineering Dept., City of Dubuque, 50 W. 13~' St. Dubuque IA 52001 563 589-4270 Tax address statement: MYLA and Company, LLC, 3338 Center Grove Dr., Dubuque, IA, 52003 (563) 543-6349 LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND MYLA AND COMPANY, LLC THIS LEASE AGREEMENT dated for reference purpose the 1St day of November, 2009, by and between City of Dubuque, Iowa (Landlord), whose address, for the purpose of this Lease Agreement, is City Hall, 50 West 13th Street, Dubuque IA 52001, and MYLA and Company, LLC (Tenant), whose address for the purpose of this Lease Agreement is 3338 Center Grove Drive, Dubuque, Iowa, 52003. The parties agree as follows: SECTION 1: PREMISES AND TERM. Landlord leases to Tenant the following real estate, situated in Dubuque County, Iowa, shown on Exhibit A (the Leased Premises), together with all improvements thereon, and all rights, easements and appurtenances thereto belonging, for a term beginning on the 1St day of November, 2009, and terminating on the 31St day of October, 2019. SECTION 2: RENT. Tenant agrees to pay Landlord as rent $120 per year for ten years, in advance on the 1St day of November, 2009 and on the 1St day of November of each year thereafter, during the term of this Lease Agreement. All sums shall be paid at the address of Landlord, or at such other place as Landlord may designate in writing. SECTION 3: POSSESSION. Tenant shall be entitled to possession on the first day of the Term, and shall yield possession to Landlord at the termination of this Lease Agreement. SECTION 4: USE. 4.1. Tenant shall use the Leased Premises only for the placement of a sign. Tenant shall prior to construction of the sign submit to Landlord for Landlord's approval a plan showing the design and location of the sign on Exhibit A. The sign shall comply with all applicable ordinances and regulations of the City of Dubuque, Iowa. After construction of the sign, Tenant shall provide Landlord with a plan showing the location of the sign as- build with reference to the Leased Premises on Exhibit A. 4.2. Tenant shall review the design of sign with the City of Dubuque prior to installation. SECTION 5: CARE AND MAINTENANCE. Tenant takes the Leased Premises as is and shall maintain the Leased Premises in a reasonable safe, serviceable, clean and presentable condition. Tenant shall make no structural changes or alterations without the prior written consent of Landlord. SECTION 6: UTILITIES AND SERVICES. Tenant shall pay for all utilities and services that may be used on the Leased Premises. Landlord shall not be liable for damages for failure to perform as herein provided, or for any stoppage for needed repairs or for improvements or arising from causes beyond the control of Landlord, provided Landlord uses reasonable diligence to resume such services. Landlord reserves unto itself a perpetual easement on the Leased Premises including the right of ingress and egress thereto, for the purpose of erecting, installing, constructing, reconstructing, repairing, owning, operating, and maintaining water, sewer, drainage, gas, telephone, television cable, fiber optics, and electric lines as may be authorized by the City of Dubuque. SECTION 7: SURRENDER. Upon the termination of this Lease Agreement, Tenant will surrender the Leased Premises to Landlord in good and clean condition, except for ordinary wear and tear or damage without fault or liability of Tenant. Tenant shall remove all improvements and materials placed on the Leased Premises and used by Tenant for the temporary concrete batch plant. Continued possession, beyond the term of this Lease Agreement and the acceptance of rent by Landlord shall constitute amonth-to-month extension of this Lease Agreement. SECTION 8: ASSIGNMENT AND SUBLETTING. No assignment or subletting, either voluntary or by operation of law, shall be effective without the prior written consent of Landlord, which consent shall not unreasonably be withheld. SECTION 9. SITE PLAN IMPROVEMENTS. Tenant agrees to construct and maintain the abutting developed area in accordance with the approved site plan for 3338 Center Grove Drive including the installation and maintenance of sidewalk along said area. SECTION 10: INSURANCE. Tenant shall provide insurance as set forth in the attached Insurance Schedule. 2 SECTION 11: LIABILITY FOR DAMAGE. Each party shall be liable to the other for all damage to the property of the other negligently, recklessly or intentionally caused by that party (or their agents, employees or invitees), except to the extent the loss is insured and subrogation is waived under the owner's policy. SECTION 12: INDEMNITY. Except for any negligence of Landlord, Tenant will protect, defend, and indemnify Landlord from and against any and all loss, costs, damage and expenses occasioned by, or arising out of, any accident or other occurrence causing or inflicting injury or damage to any person or property, happening or done in, upon or about the Leased Premises, or due directly or indirectly to the tenancy, use or occupancy thereof, or any part thereof by Tenant or any person claiming through or under Tenant. SECTION 13: DAMAGE. In the event of damage to the Leased Premises, so that Tenant is unable to conduct business on the Leased Premises, this Lease Agreement may be terminated at the option of either party. Such termination shall be effected by notice of one party to the other within twenty days after such notice; and both parties shall thereafter be released from all future obligations hereunder. SECTION 14: MECHANIC'S LIENS. Neither Tenant, nor anyone claiming by, through, or under Tenant, shall have the right to file any mechanic's lien against the Leased Premises. Tenant shall give notice in advance to all contractors and subcontractors who may furnish, or agree to furnish, any material, service or labor for any improvement on the Leased Premises. SECTION 15: DEFAULT, NOTICE OF DEFAULT AND REMEDIES. 15.1. Events of Default. Each of the following shall constitute an event of default by Tenant: (1) Failure to pay rent when due; (2) failure to observe or perForm any duties, obligations, agreements, or conditions imposed on Tenant pursuant to the terms of the Lease Agreement; (3) abandonment of the Leased Premises. "Abandonment" means the Tenant has failed to engage in its usual and customary business activities on the Leased Premises for more than fifteen (15) consecutive business days; (4) institution of voluntary bankruptcy proceedings by Tenant; institution of involuntary bankruptcy proceedings in which the Tenant thereafter is adjudged a bankruptcy; assignment for the benefit of creditors of the interest of Tenant under this Lease Agreement; appointment of a receiver for the property or affairs of Tenant, where the receivership is not vacated within ten (10) days after the appointment of the receiver. 15.2. Notice of Default. Landlord shall give Tenant a written notice specifying the default and giving the Tenant ten (10) days in which to correct the default. If there is a default (other than for nonpayment of a monetary obligation of Tenant, including rent) that cannot be remedied in ten (10) days by diligent efforts of the Tenant, Tenant shall propose an additional period of time in which to remedy the default. Consent to additional time shall not be unreasonably withheld by Landlord. 3 15.3. Remedies. In the event Tenant has not remedied a default in a timely manner following a Notice of Default, Landlord may proceed with all available remedies at law or in equity, including but not limited to the following: (1) Termination. Landlord may declare this Lease Agreement to be terminated and shall give Tenant a written notice of such termination. In the event of termination of this Lease Agreement, Landlord shall be entitled to prove claim for and obtain judgment against Tenant for the balance of the rent agreed to be paid for the term herein provided, plus all expenses of Landlord in regaining possession of the Leased Premises and the reletting thereof, including attorney's fees and court costs, crediting against such claim, however, any amount obtained by reason of such reletting; (2) Forfeiture. If a default is not remedied in a timely manner, Landlord may then declare this Lease Agreement to be forfeited and shall give Tenant a written notice of such forfeiture, and may, at the time, give Tenant the notice to quit provided for in Chapter 648 of the Code of Iowa. SECTION 16: NOTICES AND DEMANDS. All notices shall be given to the parties hereto at the addresses designated unless either party notifies the other, in writing, of a different address. Without prejudice to any other method of notifying a party in writing or making a demand or other communication, such notice shall be considered given under the terms of this Lease Agreement when it is deposited in the U.S. Mail, registered or certified, properly addressed, return receipt requested, and postage prepaid. SECTION 17: PROVISIONS BINDING. Each and every covenant and agreement herein contained shall extend to and be binding upon the respective successors, heirs, administrators, executors and assigns of the parties hereto. CITY OF DUBUQUE, IOWA s / r~ r ,' '' ~. By ~ ~ ~ ,w ~~ LP ~; Roy D,l,~uol, Mayor MYLA and Company, LLC B (. y Cheryl J. Ib Attest: ~~ ~~ Jeanne F. Schneider, City Clerk K:\RTURNERUeases\IeasesWlylar and Company, LLC (Kalb, Cheri)12009 09-15-09 Lease Agreement between City and Myla & Company, LLC.doc 4 STATE OF IOWA ) ss DUBUQUE COUNTY ) On this ~ day of , 2009, before me, the undersigned, a Notary Public in and for the State of Iowa, pers Wally appeared Roy D. Buol and Jeanne F. Schneider, to me personally known, who being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Dubuque, Iowa, a municipal corporation; that the seal affixed to the foregoing instrument is the corporate seal of said corporation; that this Deed is given by the authority of its City Council by Resolution No. of the City Council on the day of 2009; and that the said Roy D. Buol and Jeanne F. Schneider as such officers acknowledged the execution of the instrument to be their voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed. Notary Public In and For Said State ALL PURPOSE ACKNOWLEDGMENT STATE OF IOWA ) ss: DUBUQUE COUNTY ) On this o~ I day of 009, before me, the undersigned, a Notary Public in and for said State, personally ap eared Cheryl J. Kalb _ to me personally known, OR )C proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on th i tru nt the person acted, executed the instrument. Y~S~3u_ ( gnature) ,J* ~., JODY KNEPPER Commission N m er 73 aQ4 L s „w: r My Comm, Exp. tl (Print/type) Notary Publi nand for State of to a CAPACITY CLAIMED BY SIGNER _ INDIVIDUAL _X_ CORPORATE OFFICER(S)~,.f,? ~L~(Title) (CORP SEAL) _ AFFIXED X NO SEAL PROCURED _ PARTNER(S) _X_ LIMITED _ GENERAL _ ATTORNEY-IN-FACT TRUSTEE(S) GUARDIAN/CONSERVATOR _ OTHER SIGNER IS REPRESENTING: MYLA and Company, LLC 5