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Dubuque by Carriage Sixth Amendment AgreementTHE CITY OF DUB E ~~~ MEMORANDUM January 30, 2007 TO: FROM: SUBJECT: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager Sixth Amendment to Lease Agreement with Dubuque By Carriage Economic Development Director David Heiar is recommending City Council approval of the Sixth Amendment to Lease Agreement with Colleen B. Lindstrom d/b/a Dubuque By Carriage to extend the original lease of the former Dock Board building for an additional two years. 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 David Heiar, Economic Development Director CITY OF DUBUQUE, IOWA MEMORANDUM January 29, 2006 TO: Michael Van Milligen, City Manager FROM: David Heiar, Economic Development Directo SUBJECT: Sixth Amendment to Lease Agreement with Dubuque By Carriage INTRODUCTION This memorandum presents for City Council review and approval a Sixth Amendment to the Lease Agreement with Colleen B. Lindstrom d/b/a Dubuque By Carriage to extend the original lease of the former Dock Board building located at the terminus of Commercial Street for two additional years. DISCUSSION On April 27, 2001, the City Council entered into aone-year Lease Agreement with Colleen Lindstrom to operate a carriage business (formerly Rustic Hills Carriage Tours) from the former Dock Board building. The business was relocated to the City-owned building due to the purchase and demolition of Fischer Companies property along the riverfront in the Port of Dubuque to accommodate the new Grand Harbor Resort and Waterpark. The City has continued to lease the building to the business on a year-to-year basis. The proposed lease amendment extends the lease for atwo-year period, from May 1, 2007 to April 30, 2009. At each renewal, the City evaluates the need to amend the terms and conditions of the lease. The City's plans to complete Shot Tower Drive around the north side of the Star Brewery to the underpass have been delayed and will continue to impact access to the leased premises through this season for the tenant. Therefore, no increase in the rental rate has been proposed. RECOMMENDATION I recommend the City Council approve the Sixth Amendment to the Lease Agreement between the City of Dubuque and Colleen B. Lindstrom d/b/a Dubuque By Carriage for the former Dock Board building in support of a unique tourism-related business operating in the Port of Dubuque and downtown. ACTION STEP The action step for the City Council is to authorize the City Manager to sign the lease amendment. Attachment F:\USERS\DHeiar\Dubuque By Carriage\20070129 6th amend memo.doc LESSOR: CITY OF DUBUQUE, IOWA By Michael C. Van Milligen, City Manager Date LESSEE: DUBUQUE B A IAGE .~ ~ By een B. Li dstrom Date ~~_~o rJ F:IUSERS1DHeiarlDubuque By Carriage\Lease 6th Amendment.doc 'a , - . AGREEMENT THIS LEASE AGREEMENT (the "Lease") made as of the ~~~~ day of ~!.~ ,' _, 2001, between the CITY OF DUBUQUE, IOWA, a municipal corporation (Lessor) and COLLEEN BRADLEY d/b/a RUSTIC HILLS CARRIAGE TOURS (Lessee). ARTICLE I DEMISE AND TERM 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 of one year commencing on the 151 day of May, 2001 and terminating at 11:59 p.m. on the 30th day of April, 2002, subject to all of the terms, covenants, conditions and agreements contained herein. Lessee's use of the Demised Premises shall be exclusively for the operation of Lessee's carriage tour business. 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. ARTICLE II RENT Lessee shall pay Lessor rent for the Demised Premises of $ 300.00 per month payable on the 1St day of May, 2001, and on the 151 day of each month thereafter, at City Hall, c/o Finance Director. Lessee shall also pay the costs for all utilities serving the Demised Premises. ARTICLE III TITLE TO IMPROVEMENTS On delivery of possession of the Demised Premises to Lessee, Lessee shall be entitled to construct on the Demised Premises all improvements as agreed upon by the Lessor and Lessee (the "Improvements"). Lessor, through its City Manager, shall have the right, in its reasonable discretion, to approve the design, appearance and quality of any such Improvements, which approval shall not be unreasonably withheld or delayed. All improvements presently on the Demised Premises and all Improvements hereafter constructed on the Demised Premises are and shall be the property of Lessee during the continuance of the term of this Lease and no longer. Upon any termination of this Lease, by reason of any cause whatsoever, if the Improvements or any part thereof shall then be on the Demised Premises, all of Lessee's right, title, and interest therein shall cease and terminate, and title to the Improvements shall vest in Lessor, and the Improvements or the part thereof then within the Demised Premises shall be surrendered by Lessee to Lessor. No further deed or other instrument shall be necessary to confirm the vesting in Lessor of title to the Improvements. However, upon any termination of this Lease, Lessee, upon request of Lessor, shall execute, acknowledge, and deliver to Lessor a deed confirming that all of Lessee's right, title, and interest in or to the Improvements has expired, and that title to the Improvements has vested in Lessor. ARTICLE IV ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST No ri ht to encumber leasehold interest. Lessee shall 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. ARTICLE V REPAIRS AND MAINTENANCE 5.1 Lessee shall 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 good order, condition, and repair, casualties and ordinary wear and tear excepted. Lessee shall keep and maintain the Demised Premises and all improvements in superior condition. Lessee shall 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 Article VI. 5.2 Lessee's responsibility under this Article shall include cutting of all grass on the Demised Premises. 5.3 Lessee shall be responsible for weekly trash removal from the Demised Premises. 5.4 Animal waste shall be properly stored and removed from the Demised Premises not less than weekly, unless Lessor determines that weekly removal is not adequate, in which event Lessee shall remove such waste as Lessor shall direct. 5.5 ?here shall be no outdoor storage of equipment, vehicles, construction materials or any other property on the Demised Premises except one horse trailer. ARTICLE VI COMPLIANCE WITH LAW 2 During the term of this Lease, Lessee shall comply with all applicable laws applicable to Lessee's use of the Demised Premises, the breach of which might result in any penalty on Lessor or forfeiture of Lessor's title to the Demised Premises. ARTICLE VII ALTERATIONS Lessee shall have the right, at Lessee's expense, from time to time during the term of this Lease to make such alteration, addition, or modification to the Demised Premises or the improvements thereon as shall be agreed upon in writing by Lessor. Lessor hereby consents to the construction of horse stalls inside the building. ARTICLE VIII USE OF DEMISED PREMISES Lessee will 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 will not suffer any act to be done or any condition to exist within the Demised Premises or in any Improvement thereon, or permit any article 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. ARTICLE IX INSURANCE 9.1 Lessee will at all times during the term of this Lease maintain public liability insurance, against claims for personal injury, death, or property damage occumng in, upon, or about the Demised Premises. The limits of liability of such insurance policy shall be a combined single limit of $1,000,000.00. 9.2 Such insurance shall be written by companies legally qualified to issue such insurance in the State of Iowa and such insurance shall name as the insured parties thereunder, Lessor, or its assigns, and Lessee, as their interests may appear. Lessor shall not be required to prosecute any claim against any insurer or to contest any settlement proposed by any insurer, provided that Lessee 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, and Lessor shall cooperate with Lessee and will join therein at Lessee'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. -, 9.3 Lessee shall deliver to Lessor promptly after the execution and delivery of this Lease the original or duplicate 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, at its 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. 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. 9.4 Each party shall look first to any insurance in its favor before making any claim against the other party for recovery for loss 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 and Lessee 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 both 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. 9.5 Any insurance for Lessee's property kept on the Demised Premises shall be at Lessee's expense and Lessee agrees to hold Lessor harmless for any loss or damage to such property by fire or natural causes. ARTICLE X INDEMNIFICATION Indemnification of Lessor. Lessee will protect, 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 will, 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. 4 ARTICLE XI CONDEMNATION If at any time during the term of this Lease all or substantially all of the Demised Premises or the improvements thereon shall be taken in the exercise of the power of eminent domain by the State of Iowa or the United States, then this Lease shall terminate on the date of vesting of title in such taking and any prepaid rent shall be apportioned as of said date. ARTICLE XII ASSIGNMENT AND SUBLETTING Lessee shall not assign or transfer this Lease or sublease the whole or any part of the Demised Premises. ARTICLE XIII DEFAULT Lessor's Rights in the Event of Lessee's 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 performed, and the default shall continue for a period of thirty (30) days after written notice from Lessor setting forth the nature of Lessee's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessee has to cure the same shall be extended for such period as maybe necessary to complete the same with all due diligence), then and in any such event, Lessor shall have the right at its option, on written notice to Lessee, to terminate this Lease and all rights of Lessee under this Lease shall then cease. Lessor, without further notice to Lessee, shall have the right immediately to enter and take 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 therefor 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. ARTICLE. XIV RIGHT TO CURE OTHER'S DEFAULTS Whenever and as often as a party shall fail or neglect to comply with and perforr, any term, covenant, condition, or agreement to be complied with or performed tw such party J hereunder, then, upon thirty (30) days' prior written notice to such defaulting party, the other party, at such other party's option, in addition to all other remedies available to such other party, may perform, or cause to be performed, such work, labor, services, acts, or things, and take such other steps, including entry onto the Demised Premises and the Improvements thereon, as such other party may deem advisable, to comply with and perform any such term, covenant, condition, or agreement which is in default, in which event such defaulting party shall reimburse such other party upon demand, and from time to time, for all costs and expenses suffered or incurred by such other party in so complying with or performing such term, covenant, condition, or agree- ment. The commencement of any work or the taking of any other steps or performance of any other act by such other party pursuant to the immediately preceding sentence shall not be deemed to obligate such other party to complete the curing of any term, covenant, condition, or agreement which is in default. ARTICLE XV 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 shall not be disturbed by any act of Lessor, or of anyone acting by, through, or under Lessor. ARTICLE XVI 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, shall 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 shall 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. ARTICLE XVII SURRENDER Lessee shall, on the last day of the term of this Lease or upon any termination of this Lease hereof, surrender and deliver up the Demised Premises, with the improvements then located thereon into the possession and use of Lessor, without fraud or delay and in good order, condition, and repair, free and clear of all lettings and occupancies, free and clear of all liens and encumbrances other than those existing on the date of this Lease and those, if any, created by Lessor, without (except as otherwise provided herein) any payment or allowance whatever by 6 Lessor on account of or for any buildings and improvements erected or maintained on the Demised Premises at the time of the surrender, or for the contents thereof or appurtenances thereto. At Lessor's option, Lessee shall remove at Lessee's cost any or all of the Improvements located on the Demised Premises. ARTICLE XVIII NOTICES 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 LESSOR: City of Dubuque, Iowa C/o City Manager City Hall 13`h and Central Ave. Dubuque, Iowa 52001 TO LESSEE: Rustic Hills Carnage Tours 5076 Bennettville Road Zwingle, Iowa 52079 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. ARTICLE XIX MISCELLANEOUS 19.1. Time of the Essence. Time is of the essence of this Lease and all of its provisions. 19.2. Governing Law. It is agreed that this Lease shall be governed by, construed, and enforced in accordance with the laws of the State of Iowa. 19.3. Paragraph Headings. The titles to the paragraphs of this Lease are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this Lease. 7 19.4. Modification of Agreement. Any modification of this Lease or additional obligation assumed by either party in connection with this Lease shall be binding only if evidenced in a writing signed by each party or an authorized representative of each party. 19.5. Parties Bound. This Lease shall be binding on and shall inure to the benefit of and shall apply to the respective successors and assigns of Lessor and Lessee. All references in this Lease to "Lessor" or "Lessee" shall be deemed to refer to and include successors and assigns of Lessor or Lessee without specific mention of such successors or assigns. 19.6. Force Maieure. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, unavailability or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, chemical explosions, hazardous conditions, fire, weather or acts of God, or by reason of any other cause beyond the exclusive and reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed as of the day and year first above written. LESSOR: Attest: Attest: ~.1., ~. ~/ -~_~~.--- CITY OF DUBUQUE, IOWA V By: ichael C. Van Milligen, City Manager LESSEE: RUSTIC HILLS CARRIAGE TOURS By: Colleen Bradley s w 500 E. 4th Street - __ ~~r~_ _ - - ~: __ ,: ~ w ~ 4 ~___. ~_ _ ~ ~, .,+° } _ :~ ~` s .~~ ~.~~ v f ~~*-; ,~+. yzi vy~N..~-:- _ ,~- .a 7 ~~->., ~ .~_ ~' _ - . ,35." . - .... . .. ~ :. ~ ~` ~. l ;_. Jt_~,d '_Y. rr~>, } ~ 9 ?~ .. 0 ~ .Feet ~~.. ~~- i :,:~e; ~ .._ , x ~-r. .~ v:~.~w .1;~- -- ~: EXHIBIT A _~, ~.: