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Westbrook Park Development_Callahan ConstructionTHE CITY OF Dubuque ~j TB ,~, manmedcac~y lJ t r Masterpiece on the Mississippi 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Westbrook Park Development DATE: December 15, 2009 Leisure Services Manager Gil Spence is recommending City Council approval of a lease agreement with Callahan Construction for development of a temporary Westbrook Park. The land for the permanent site will be donated by the developer, Joe Callahan, when Phase I is filled and Phase II is platted. The playground equipment can easily be moved to the permanent site once it is ready for development. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Gil D. Spence, Leisure Services Manager THE CITY OF Dubuque 1~B ,~ AN-Amelcal~tY j,,,./ ~ ~ Masterpiece on the Mississippi 2007 TO: Michael C. Van Milligen, City Manager ~~ /' FROM: Gil D. Spence, Leisure Services Manag j ~ ,~~ SUBJECT: Westbrook Park Development DATE: December 14, 2009 INTRODUCTION The purpose of this memorandum is to request City Council approval of a lease agreement with Callahan Construction for development of a temporary Westbrook Park. DISCUSSION Joe Callahan is the developer of the Westbrook Subdivision off of Seippel Road. When platted, Phase II of the subdivision includes land he will donate to the City for park purposes. Mr. Callahan does not plan to plat Phase II until Phase I is filled. Mr. Callahan is receiving requests from residents of Phase I for park space so he would like to lease the City two lots for development of a park. This development would include two swings, a 13' slide, climber, and a whirl at a cost of around $10,000. All of this equipment can easily be moved to the permanent site once it is ready for development. Mr. Callahan will donate the excavation work needed to install the equipment so we will have grass seed and safety surface to purchase in addition to the equipment. We have $79,200 in the current C.I.P. budget for Phase I of the Westbrook Park development so funding is available. ACTION STEP The action requested is that the City Council approve the lease agreement with Callahan Construction. GDS:et attachment LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND CALLAHAN CONSTRUCTION, INC. THIS LEASE (the Lease) dated for reference purposes the day of 2009, is made and entered into between the City of Dubuque, Iowa, a municipal corporation (City) and Callahan Construction, Inc. (Owner). SECTION 1. LEASED PREMISES AND TERM. 1.1. In consideration of the fee hereinafter reserved and the terms, covenants, conditions and agreements set forth in this Lease, Owner hereby leases to City the following described property: Lots 38 and 39 in Block 1 of Westbrook Subdivision as shown on Exhibit A attached hereto together with any and all easements and appurtenances thereto and subject to any easements and restrictions of record (the "Leased Premises"), for a term of three (3) years commencing on 2010 and terminating at 11:59 p.m. on , 2013 subject to all of the terms, covenants, conditions and agreements contained herein. 1.2. Termination. Either party may terminate this Lease for any reason with or without cause upon thirty (30 days written notice to the other party. Upon termination, Owner shall have the right to enter the Leased Premises and to assume exclusive use and control of the Leased Premises. Upon termination of this Lease, City agrees to surrender possession of the Leased Premises in its condition as when first permitted use, or to restore the Leased Premises to substantially the same condition, ordinary wear and tear excepted. 1.3. Condition of Prooertv. Owner shall deliver and City accepts the Leased Premises in its "as is" condition. SECTION 2. FEE; UTILITIES AND OTHER COSTS. City shall not be required to pay Owner a fee for the use of the Leased Premises but shall pay all costs of supplies, utilities, fuel and any other costs and expenses associated with its use of the Leased Premises. SECTION 3. IMPROVEMENTS. 3.1 Citv Improvements. City shall not construct any improvements on the Leased Premises without the prior written approval of Owner. Owner at its option and upon written notice may require City to remove any improvements constructed by City from 120809ba1 the Leased Premises at City's sole expense and City shall have ninety (90) days after such notice or the termination of this Lease to complete such removal. If City fails to remove the improvements within such ninety day period, Owner may cause the improvements to be removed and City shall pay the costs of such removal within thirty (30) days of receipt of a statement therefore from Owner. Any improvement requested by City shall be at City's sole expense. 3.2. Sianaae. City shall not place any signage on the Leased Premises without the prior written approval of Owner which approval shall be in the Owner's sole discretion. signage shall ony be displayed during times when City is using the Leased Premises. SECTION 4. UTILITIES. City shall pay all utilities for the use of the Leased Premises. SECTION 5. REPAIRS /MAINTENANCE. City shall at all times during the term of this Lease, at City's own costs and expense, keep the Leased Premises free of litter, in good order, condition and repair, and shall repair any damage done as a result of City's use of the Leased Premises. SECTION 6. COMPLIANCE WITH LAW. During the term of this Lease, City shall comply with all applicable laws applicable to City's use of the Leased Premises, the breach of which might result in any penalty on Owner or forfeiture of Owner's title to the Leased Premises. SECTION 7. USE OF LICENSED LEASED PREMISES. 7.1. City agrees that during the term of this Lease, the use of the Leased Premises shall be exclusively for temporary park development, until a permanent site is donated to the City. SECTION 8. INDEMNIFICATION. 8.1. Indemnification of Owner. Except as otherwise provided herein, City shall protect, indemnify, and save harmless Owner, its officers, and employees (the "Indemnified Parties"), 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 the Indemnified Parties 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 and resulting from any act or omission of City or anyone claiming by, through, or under City during the term of the Lease; and (b) any failure on the part of City to perform or comply with any of the terms of this Lease. In case any action, suit, or proceeding is brought against the Indemnified Parties by reason of such occurrence, City will, at City's expense, resist and defend such action, suit, or proceeding. -2- 8.2. Indemnification of City. Except as otherwise provided herein, Owner shall protect, 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 and resulting from any act or omission of Owner or anyone claiming by, through, or under Owner during the term of the Lease; and (b) any failure on the part of Owner to perform or comply with any of the terms of this Lease. In case any action, suit, or proceeding is brought against City by reason of such occurrence, Owner will, at Owner's expense, resist and defend such action, suit, or proceeding. SECTION 9. ASSIGNMENT AND SUBLETTING. City shall not assign or transfer this Lease without the prior written consent of Owner. SECTION 10. NOTICES. 10.1. All notices, demands, or other writings in this Lease provided to be given or made or sent, or which may be given or made or sent, by either party to the other, shall be deemed to have been fully given or made or sent when made in writing and deposited in the United States mail, registered and postage prepaid, and addressed as follows: TO CITY: City Manager City of Dubuque, Iowa 50 West 13th Street Dubuque, Iowa 52001 TO OWNER: Callahan Construction, Inc. 7629 Commerce Park Dubuque, IA 52001 10.2. 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. CITY OF DUBUQUE, IOWA CALLAHAN CONSTRUCTION, INC. By: By: Roy D. Buol, Mayor Attest: Jeanne F. Schneider, City Clerk -3- EXHIBIT A Westbrook Estates CALLAHAN CONSTRUCTION, INC. DUBUQUE CITY LOTS PHONE 588-4273 OR 213-1015 LOTS SOLD 50' X 100' AND UP LOT SIZES WALK-OUTS HALF-WALK OUTS FLAT LOTS CITY OF DUBUQUE WATER CITY OF DUBUQUE SEWER CITY OF DUBUQUE STREETS INSURANCE SCHEDULE INSURANCE SCHEDULE A INSURANCE. REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS} TO THE CITY OF DUBUQUE 1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A or better in the current A,M. Best Rating Guide. 2. All Certificates of Insurance required hereunder shall provide a thirty {30} day notice of cancellation to the City of Dubuque, except for a ten {10) day notice far non- payment, if cancellation is prior to the expiration date. 3. shall furnish a s~ned Certificate of insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 6 below. Such certificates shall include caaies of the following policy endorsements a} Commercial General Liability policy is primary and non-contributing. b} Commercial General Liability additional insured endorsement. c) Governmental Immunity Endorsements. 4. Each certificate shall be submitted to the contracting department of the City of Dubuque. 5. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shat) be considered a material breach of this agreement. 6. shall be required to carry the following minimum coverage/limits or greater if required by law or other legal agreement: a) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products-Completed Operations Aggregate Unit $1,000,000 Personal and Advertising Injury limit X1,000,000 Each Occurrence limit $1,000,000 Fire Damage Limit (any one occurrence) $ 50,000 Medical Payments ~ 5,000 This coverage shall be written on an occurrence, not a claims made form. Form CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shah be included. All deviations or exclusions from the standard ISO commercial general liability form CG 0001, or Business Owners form BP 0002, shall be Dearly identified. 1 of 2 January 2008 -5- INSURANCE SCHEDULE A (Continued} INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE Governmental Immunity Endorsement identical ar equivalent to form attached Additional Insured Requirement: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees ark volunteers shall be named as an additional insured on General Liability Policies using ISO endorsement CG 20 26 0704 "Additional Insured -Designated Person or Organization," or it's equivalent. - See Specimen b} WORKERS' COMPENSATION 8 EMPLOYERS LIABILITY Statutory for Coverage A Employers Liability: Each Accident $100,000 Each Employee -Disease $140,000 Policy Limit -Disease $500,000 c) UMBRELLA EXCESS LIABILITY LIQUOR OR DRAM SHOP LIABILITY Coverage to be determined on a case by case basis by Finance Director. Completion Checklist Q Certificate of Liability Insuranoe (2 pages). Q Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages} ^ Additional Insured 20 26 0~ t}4 [~ Governmental immunities Endorsement 2of2 January 2008 -6- ACORD,~ CER"TIFICA ~ t OF LIABILITY INSURANCE ~"~`"~'°'~"'~ • ~ 12f7f2007 PRODUCER {5$3)123-4567 PA7I (5fi3) 987-6543 TH18 CERTIFICATE IS IBSUED A8 A MATTER OF ~DRMA7TON Insuranoa Agency OLDER.NTHISOCERTIFICATERDp 8 Nt)TOAMEIIQ, EXTEND R Stre~at Addroma ALTER 7HE COVERAC~ AFFORDED BY T'HE ROLICIES BELOW. City ST Zip Cade INSURERS AFFORDING COVERAGE ~ MAIC N s~uRCn +NSwER A Inffinranes Cos~anv Can~any ' dysuaeR a street I ~ISUrIERc l WSOREBa City $t Zip Cads E WSIiRERE COVERAGES THE PC%.IGES pf INSURANCE LISTED BELOW HAVE BEEN 1SSUE0 TO 174E INSURED NAKED ABOVE FOR THE PpLICY PERTpO INOICJITEO NOTYNTHSTANDiNG ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT MNTH RE5PECT TO 1Afi~H THIS CERTIFICATE MAY 8E ISSUED OR MAT PERTAIN, THE INSURANCE AFFORDED BY THE POLIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. E%CLUSIOIVS ANO CO-mlTiOttS OF SUCH P011C,IE5 AG^.REOATE LIMITS SHOYN~1 MAY HAVE BEEN REDUCED BY PAfO CLAIMS POLICY l~FECTIVE POLICY EIIPIRATION ~~ ;~~+ TYPE OF INSURANCE POI.+CY NUM9ER 1 DAT! IMMlDDA'YI I DATE ice) LsuTS OENtRALLIAWLI7Y EACNOCCWRENCE S 1,000,000 pp,/~,~A~~pE TO RENTED 3a, 000 x COMAIERGW. tfNERI1:l I+ABatrY ~ PREMtAES dF.a axunwirw+ S A x ~ CtAaA186MOE D OCCUR ~ MED E.%P fAnr oneoersa+! S $ r OOC PERSONat a AOV IMJUnY s 1, 000, 000 ~ GENERAL kGGREGATE s 2 , 060 , 000 OENL AGGREGATEpptppMippf. APPt1E5 PER ~ PRODUCTS ~ COaAptOP AGG S 1 r OOO r OOO POLICY ~/=T ~ lOC •s AI i .. JE LiABI1.ITY x ANYAU~O A ..._ Alt (SNNED AUTOS SCHEDULED AUTOS HIRED AUT05 - 7.._- NON-ONMEO AUTOS O:ARAOE LIABILITY ANY Auro w..u. LM00.1 r OCCUR ~ CLAMS fsADIE OEOVCTEftE RETENTION ~ {) A WWRKERSCOMPENSATgNANO EMPL.~ ~~_...~ LIAp1uTY AMY PfiOPR+ETOR/PARTNEReE7[ECUTNE OFFICERMdEiaBER ExCLUDED'~ 1! yw. aa.a9r. under aPECwt PROVISIONS eebw OTHER SP~'~ ~.~~' COIieaNED SihGtE tullT IEr , w..: 2 = ; , 000.000 SODaY MI.81dRY S CPt I}/r417r1r IyDD4Y WAJRY S ~ acaer*d PRQPERTY CAIdAGE S (P~r scutlereJ AUTO CN~Y - EA ACCFDENT S _... OTHER THAR EA ACC S AUTO ONLY: AGG S EACH OCCUF~2ENCE T AGCattEGATE S I s f S ~~ X ~ T~LAatllS I 'ORR ......... E t EACH ACCIIIENt ~ 100 , 000 E L. DISEASE -Ew Eli'LOYEE • 100 , 000 E L DISEASE - POtaCY tMtt s 300 , 0 QO OEE ~ . I OP oPE:~tATIONSrLOCATaMa+vEMrcLwlGlcLUIIOMS ADOPA sY s ~...:.,;.EM1:NTraPecuu, PRDYIawMe City o! DuLuyuo is listed a an additional insured on general liability poliaiea using iS0 endorsement farm CG 2026 070# 'J-dditional insured-Designated Fersan or Organi:anon" or its equivalent. Geapral Liability polissy is primary i non-ountributinq. farm CG 2S0# 0347 'Designated Locati~s" gsnerral liability aggregate lia+it is included. Govasnmantal issnmities aa+da .. , :, ....t is inaiuded. CrnIIrwATE HOLDER CANCELLATION sllDUtD AMY Os THE AMOYE DESCRPMED POLICIES sE GMICELLlD ~RiOTeE T-/E City of DL717UCjtilO EltPY1ATI0MI QATE ~ :.c„ •, TIIE ISSUING 1NEURHt WILL ENOEAVOlI TO MAIL SO TPps t 13th Stxaet 3O DAYS i ~ : N IrpTICE TO THE ...:....,,.ATE rIDL.Deit NAMED TD T-R LIFT, aI1T Dubuqua4, IA 52001 iAR,URE TO DO i6 tTIIALL IIfP(}SE Np Od1.IGATTON DR LNdIUTY OP AMY KMiO UPOM TIE wsuRE1L ITS AOEMTS OR IKPRESB(TAINEi AI~._. ~~... .. ~,~. ~.~~,.~..LTIVf -.._. _ _. ACORD 25 (2004!08) _ . d9 ACORD CORPORATN3N 59116 INS02316+08).os AMS VMP 8du++or+L. Ine t800132T-A5+5 Pam 1 at3 _/_ IMPORTANT It the certificate holder is art ADDITIONAL INSURED, the paNcy(ies) must be endorsed. A statement on dtis Certificate does not comer rights tc th0 certdicate holder in lieu Of such enc,~ .s u, -, : t(s}. If SUBROGATION lS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endcn>iement. A statement an this certltiCate does nd ,,...;6~,r rights to the t~rtifk:ate holder in keu cf such endorsements}. DISCLAIMER The Certificate of Insurance cn the reverse side of this form does not canstituie a contract between the issuing iuer{s). aidhorrred ~-: ,~ :"~~entative or producer, and the certificate holder, nor does d affirmatively or negatnrely amend, ,..1e..d ax aher the Coverage afforded by the po~c~es Iieted thereon. SP~~~,~ ~l~a~- AtXfRD 2ti tZ00110Ej INS025 to*oe} tx AMS P~ x d t -g- POLICY NUMBER. CQMMERClAt GENERAL LIABfLITY CG 25040397 THIS END©RSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED LOCATI+DN{S) GENERAL AGGREGATE LIMIT This endorsement modifies insurance provided under the fclbwing: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE deslpnstad location{s}: of no entry appears above, information required to complete this endorsement will tae shown in the Declarations as appligble to this endorsement.) A. For all sums which the insured becomes legally the Declarations nor shalt they reduce any obligated to pay as damages caused by "occur" other Designated Location General Aggre- rences" under COVERAGE A (SECTION I), and gate Limit #or any other designated "location' Cor all medico[ expenses caused by accidents shown in the Schedule above. under COVERAGE C (SECTION i}, which can be q, `me limits shown in the Declarations #or Each attributed only to operations at a single desig- Occurrence, Fire Damage and Medical Ex- nated "location" shown in the Schedule above: pence continue to apply. However, instead of 7, A separate ~signated Location General being subject to the Ger~ral Aggregate Limit Aggregate Limit applies to each designated shown in the Declarations, such limits wilt tae 'location", and that limit is squat to the subject to the applicable Designated Location amount of the General Aggregate limit General Aggregate Limit. st3own in the Declarations. B. For all sums which the insured becomes legally 2. The Designated Location General Aggregate obligated to pay as damages caused by 'occur- Limit is the most we vvitl pay for the sum of all rences" under COVERAGE A (SECfiION 1), and damages under COVERAGE A, except dam- for all medical expenses caused by accidenks ages because of "bodily injury" or "property under COVERAGE C (SECTION 1), which can- damage' included in the 'products-completed not be attributed only to operations at a single operations hazard", and for medical expenses designated "location" shown in the Schedule under COVERAGE C regardless of the Hum- above: ber o#: 1. Any payments made under COVERAGE A for a. Insureds; damages or under COVERAGE C for medical b, Claims made or "suits" brought; or expenses she{I reduce the amount available under the General Aggregate Limit or the c. Persons or organizations making claims or Products•Comp~;ted Operations Aggregate bringing "suits". Limit, whichever is applicable; and 3. Any payments made under COVERAGE A for 2. Such payments shall not reduce any Desig- damages or under COVERAGE C for medical Hated Location General Aggregate Limit. expenses shall reduce the Designated Loca- tion Genera{ Aggregate Limit for that desig- nated "location". Such payments shall not re- duce the General Aggregate Limit shown in ct; 25 as as 9t PagR 9 of 2 -9- CG 2S t>4 t?3 87 C. tNhen coverage fear liability arising out of the "products-completed aperat#ons hazard" is pr©- vided, any payments for damages because of "bodily injury" ar "property damage" included in the 'products-completed operations hazard' will reduce the Products-Completed Operations Ag- gregate limit, and not reduce the General Ag• gregate limit nor the Designated Location Gen- eral Aggregate Limit. Q- For the purposes of this eru~arsemeni, the befi- nitigr~s Section is amended by the addition of the following definition; "location' means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway, waterway orright-af--way of a railroad. E. The provisions of limits Of Insurance (SECTION !Il) not otherwise modified by this endorsement shall continue to apply as stipulated. Copyright, Insurance Services Office, Inc.. 1986 Rage 2 of 2 CG 25 t14 Q3 ~7 -10- POLICY NUMBER: CQMMEt2C1AL GENERAL LIAE3tLtTY CG 20280704 THIS EIVQ4RSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFUhi.Y. ADDITEt)NAL ENSURED -- DESIGNATED PERSC)N t3R CIRGANtZAT14N This endorsement modifies insurance provided under the followsng: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEt}ULE Name Of Additional Insured Personi;al Qr 4rttanizationtsa The City of Dubtaque, including all its elected and appointed officials, all its employees and volunteers, ali its boards, commissions andlor authorities and tfieir board members, employees and volunteers. information required to complete this schedule, if not shown above, will be shown in the t)eclarations. section it - VYho Is An Insured is amended to in- clude as an additional insured the person(s) or or- ganization(s) shown in the Schedule, 6u! only with respect to liability for "bodily injury", "property dam- age" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions ar the acts or omissions of those acting on your behalf: A. in the performance of your ongoing operations; or 8. In connection with your premises owned by or rented to you. All terms and conditions of this policy apply unless modified by this endorsement. CG 20 Z8 47 O+t lne~udes copyrighted material of Insurance Services fltfice, Inc with permission. Page 1 of 1 ~ I5fl Properties, Inc., 2004 -11- CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmental Immunity. The insurance carrier 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 Coveraae: The insurance carrier further agrees that this policy of insurance shall cover only those claims nv# subject to the defense of governmental immunity under the Cade of Iowa Section 670.4 as it now exists and as it may be 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 shalt do so upon the timely written request of the insurance carrier. 4. Non-Denial of Coveraae. The insurance carrier shall not deny coverage under this policy and the insurance carrier shag not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this 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 Chance in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. sr~;civi~;v of 1 January 2008 -12-