Dubuque Community Ice and Recreation_Lease Agreement First AmendmentMasterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Lease Agreement Between the City of Dubuque, Iowa and Dubuque
Community Ice & Recreation Center, Inc.
DATE: August 9, 2010
Dubuque
AEAaxfa
11111!
2007
City Attorney Barry Lindahl recommends City Council approval of the First Amendment
to Lease Agreement between the City of Dubuque, Iowa and Dubuque Community Ice
& Recreation Center, Inc. to correct a typographical error in Section 1.1 of the lease
which incorrectly stated that the lease terminates on October 29, 2024 and to revised
the insurance requirements. The correct date should be October 29, 2034.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Marie Ware, Leisure Services Manager
fi\kkekS (1,u MS26-4))
Michael C. Van Milligen
THE CITY OF
DUB UE MEMORANDUM
Masterpiece on the Mississippi
BARRY LINDAHL
CITY ATTORNEY
To: Michael C. Van Milligen
City Manager
DATE: August 13, 2010
RE: First Amendment To Lease Agreement Between the City of Dubuque,
Iowa and Dubuque Community Ice & Recreation Center, Inc.
The Lease Agreement between the City of Dubuque and Dubuque Community Ice &
Recreation Center, Inc. provides for a term of 25 years commencing on October 30,
2009.
There is a typographical error in Section 1.1 of the Lease which states that the lease
terminates on October 29, 2024. The correct date should be October 29, 2034.
Attached is the First Amendment to the Lease Agreement which corrects the
typographical error.
The First Amendment also revises the insurance requirements at the City's request.
I would recommend that the First Amendment be submitted to the City Council for
consideration and approval.
BAL:tls
Attachment
cc: Marie Ware, Leisure Services Manager
F: \USERS \Laserfiche Legal \Dubuque Community Ice & Recreation Center\ MVM_ FirstAmendmentToLeaseAgreement _081310.doc
Preparer: Barry A. Lindahl, Esq. Suite 330, Harbor View Place, 300 Main Street, Dubuque, IA 52001 (563) 583 -4113
RESOLUTION NO. 326 -10
APPROVING THE FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN THE
CITY OF DUBUQUE, IOWA AND DUBUQUE COMMUNITY ICE & RECREATION
CENTER, INC.
WHEREAS, on October 30, 2009, the City of Dubuque, Iowa, a municipal
corporation (Lessor) and Dubuque Community Ice & Recreation Center, Inc., an Iowa
corporation (Lessee) entered into a Lease Agreement for certain real property
described therein; and
WHEREAS, the Lease Agreement provides for a term of 25 years commencing
on October 30, 2009; and
WHEREAS, the Lease Agreement incorrectly states that the Lease terminates
on October 29, 2024; and
WHEREAS, the correct termination date is October 29, 2034; and
WHEREAS, Lessor and Lessee now desire to clarify the term of the Lease
Agreement with this First Amendment; and
WHEREAS, the City Council deems it in the public interest to amend the Lease
Agreement as set forth in the First Amendment to Lease Agreement attached hereto.
NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS
FOLLOWS:
Section 1. The First Amendment to Lease Agreement, a copy of which is
attached hereto, is hereby approved.
Section 2. The Mayor is hereby authorized and directed to sign the First
Amendment on behalf of the City of Dubuque, Iowa.
Passed, approved and adopted this 16 day of August /' 010.
test: Jeanne F. Schneider, City Clerk
Roy D. B ,j: , Mayor
F: \USERS \Laserfiche Legal \Dubuque Community Ice & Recreation Center\ ResolutionApprovingFirstAmendmentToLeaseAgreement _080310.docx
FIRST AMENDMENT
TO
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DUBUQUE COMMUNITY ICE & RECREATION CENTER, INC.
This First Amendment to Lease Agreement between the City of Dubuque, Iowa
and Dubuque Com uXV & Recreation Center, Inc., dated for reference purposes
the of , 2010, is made and entered into by and between the
City of Dubuque, lo , a municipal corporation (Lessor) and Dubuque Community Ice &
Recreation Center, Inc., an Iowa corporation (Lessee).
WHEREAS, on October 30, 2009, Lessor and Lessee entered into a tease
Agreement for certain real property described therein; and
WHEREAS, the Lease Agreement provides for a term of '25 years commencing
on October 30, 2009; and
WHEREAS, the Lease Agreement incorrectly states that the Lease terminates
on October 29, 2024; and
WHEREAS, the correct termination date is October 29, 2034; and
WHEREAS, Lessor and Lessee now desire to clarify the term of the Lease
Agreement with this First Amendment.
NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS
FOLLOWS:
1. Section 1.1 of the Lease Agreement is amended to read as follows:
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 shown on Exhibit A, attached
hereto, together with any and all buildings, structures, and other
improvements located thereon, easements and appurtenances thereto
and subject to any easements and restrictions of record (the "Demised
Premises "), to have and to hold for a term of twenty -five (25) years
commencing on October 30, 2009, and terminating at 11:59 p.m. on
October 29, 2034 (the "Lease Expiration Date "), subject to all of the terms,
covenants, conditions and agreements contained herein.
2. Section 11 of the Lease Agreement is amended to read as follows:
A81310bal
SECTION 11. INSURANCE
11.1. Lessor shall insure the Minimum Improvements under its general
property insurance coverage for all other City of Dubuque property.
Lessee shall reimburse Lessor annually for the additional cost of including
the Minimum Improvements in City's property coverage within thirty days
of receipt of a statement from City.
11.2. Lessee shall at all times during the term of this Lease maintain
insurance at the Demised Premises of the following character:
(1) Insurance against loss or damage by fire and other risks and
perils from time to time included under standard extended coverage
endorsements in an amount equal to not less than ninety percent (90 %) of
the replacement value of the Lessee's Trade Fixtures and personal
property.
(2) Insurance as set forth in the Lessor's standard Insurance
Schedule for Lessees of City Property, as such uniform, standardized
schedule may from time to time be amended. The current Insurance
Schedule is attached to this Lease Agreement as Insurance Schedule A.
Such insurance, shall also name, in addition to the additional insured
required by the Insurance Schedule, Battlefield Dubuque, LLC and its
respective officers, directors, employees and agents as additional
insureds. The insurance afforded to the additional insureds must be
primary insurance over any other valid or collectible insurance which the
additional insureds may have with respect to loss under the listed policy
as described herein. Such insurance policy naming Battlefield Dubuque,
LLC as an additional insured shall be endorsed to include a waiver of
subrogation against the additional insureds with respect to all claims
arising from the use or operation of the Demised Premises or of the
operation of Battlefield Dubuque, LLC while in the Demised Premises on
behalf of the additional insureds. Lessor shall not be required to prosecute
any claim against any insurer or to contest any settlement proposed by
any insurer, provided that Lessee or any additional insured may, at its
cost and expense, prosecute any such claim or contest any such
settlement, and in such event Lessee may bring any such prosecution or
contest in the name of Lessor, Lessee, or both, or in the name of either,
and /or an additional insured, and Lessor shall cooperate with Lessee, or
any additional insured, and will join therein at Lessee's, or such additional
insured's, written request upon receipt by Lessor of an indemnity from
Lessee against all costs, liabilities, and expenses in connection with such
cooperation, prosecution, or contest.
11.3. Lessee shall deliver to Lessor and the additional insureds promptly
after the execution and delivery of this Lease the original or duplicate
-2-
policies or certificates of insurers satisfactory to Lessor evidencing all the
insurance which is then required to be maintained by Lessee hereunder,
and Lessee shall, within 30 days prior to the expiration of any such
insurance, deliver other original or duplicate policies or other certificates of
the insurers evidencing the renewal of such insurance. Should Lessee fail
to effect, maintain, or renew any insurance provided for herein, or to pay
the premium therefor, or to deliver to Lessor any of such policies or
certificates, Lessor or the additional insureds, at their option, but without
obligation so to do, may procure such insurance, and any sums expended
by it to procure such insurance shall be additional rent hereunder and
shall be repaid by Lessee within 30 days following the date on which
demand therefor shall be made by Lessor or shall be a reimbursable
expense to the additional insureds to be repaid within 30 days following
the date on which demand therefor shall be made by the additional
insureds. Such insurance policy(ies) shall contain a provision that such
policy(ies) shall not be canceled or reduced in scope without thirty (30)
days prior written notice to Lessor.
11.4. Each party shall look first to any insurance in its favor before
making any claim against the other party for recovery for Toss or damage
resulting from fire or other casualty, and to the extent that such insurance
is in force and collectible and to the extent permitted by law, Lessor,
Lessee and the additional insureds each hereby releases and waives all
right of recovery against the other or anyone claiming through or under
each of them by way of subrogation or otherwise. The foregoing release
and waiver shall be in force only if all releasors' insurance policies contain
a clause providing that such a release or waiver shall not invalidate the
insurance, and also provided that such policies can be obtained without
additional premiums. Lessee acknowledges that Lessor will not carry
insurance on Lessee's furniture and /or furnishings or any trade fixtures or
equipment, improvements, or appurtenances removable by Lessee or
Lessee's leasehold improvements and agrees that Lessor will not be
obligated to repair any damage thereto or replace the same.
11.5 Lessee shall notify City immediately in the case of damage to or
destruction of the Minimum Improvements or any portion thereof resulting
from fire or other casualty. Net proceeds of Lessor's insurance shall be
paid directly to Lessor, and Lessor shall forthwith repair, reconstruct and
restore the Minimum Improvements to substantially the same or an
improved condition or value as they existed prior to the event causing
such damage and, to the extent necessary to accomplish such repair,
reconstruction and restoration. In the event that the costs of the repair,
reconstruction and restoration of the Minimum Improvements exceed the
net proceeds, however, Lessor shall have no obligation to make such
repair, reconstruction and restoration unless if Lessee agrees, within thirty
days after notice from City, to pay the entire amount by which such repair,
-3-
LESSOR:
3. All other terms and provisions
force and effect.
CITY OF DUBUQUE, IOWA
By:
Roy D. B f I, Mayor
At -s t•
eanne F. Schneider
City Clerk
reconstruction and restoration
Lessee elects not to pay such
exceeds the net proceeds, and in the event
amount, City may terminate this Lease.
of the Lease Agreement shall remain in full
LESSEE:
DUBUQUE COMMUNITY ICE &
RECREATION CENTER, INC.
By:
F. Robert Woodward, III, President
Attest: