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
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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
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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
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500 E. 4th Street
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