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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: