Dubuque Jaycees Veterans' Memorial Park Lease 2014Masterpiece on the Mississippi
Dubuque
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AI- America City
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2007 • 2012 • 2013
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Dubuque Jaycees Lease for Veterans' Memorial Park Community Garden
DATE: February 18, 2014
Leisure Services Manager Marie Ware recommends City Council approval of the lease
agreement with the Dubuque Jaycees to operate a community garden in Veterans'
Memorial Park. The lease term commences April 1, 2014 and terminates on
November 15, 2014.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Marie L. Ware, Leisure Services Manager
THE CITY OF
Dui
Masterpiece on the Mississippi
TO: Michael C. Van Milligen, City Manager
FROM: Marie L. Ware, Leisure Services Manager
DATE: February 14, 2014
SUBJECT: Dubuque Jaycees Lease for Veterans' Memorial Park Community Garden
Dubuque
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M- America City
VII V
2007 • 2012 • 2013
INTRODUCTION
The purpose of this memo is to request City Council approval of the attached lease with the Dubuque Jaycees to operate a
community garden at Veterans' Memorial Park.
BACKGROUND
With increasing national interest in growing your own food and the Sustainable Dubuque Task Force identifying Heakhy
Local Foods as one of the 11 sustainability principles, local interest has grown in recent years for community
gardens. Community gardens can exist in a variety of forms; some are open only to specific members, such as a church
group, and others have plots available to the general public for an annual rental fee. There has been an increased public
demand for the latter.
Three years ago, the Dubuque Jaycees approached Cori Burbach and myself about the possibility of starting a community
garden at Veterans' Memorial Park. The lease was approved and the Jaycees project has been very successful.
DISCUSSION
The Jaycees have created a series of both in- ground and raised beds that were available for a small rental fee to the
public. The rental fee charged by the Jaycees to gardeners included an annual fee to cover the costs of maintenance of the
space as well as a small deposit fee that was charged to the renter but returned at the end of the growing season if the
individual cleaned their space and returned it to its original status.
Attached please find a complete lease agreement defining the responsibilities of the City and Jaycees. The lease agreement
has been reviewed and approved by City Attorney Barry Lindahl. Highlights of the agreement are as follows:
• The community garden is an acceptable long -term use of this space, and so permanent improvements would be
acceptable on the site with appropriate approval.
• The City is responsible for providing the land to the Jaycees, providing water access to the gardens and providing
waste removal. Waste removal occurs on the schedule City staff currently provide to the park. Jaycees and garden
tenants are responsible for getting trash into containers provided. City sustainability staff assist Jaycees members in
marketing the availability of the garden. Leisure Services agrees to tractor till garden spaces.
• Jaycees members designate key contacts that would be available at all times to answer City or public questions or
concerns about the garden. The Jaycees are the day -to -day managers of the garden. They are responsible for the
construction of the gardens, and raising any funds needed for construction. The Jaycees are responsible for
establishing rental rates. Jaycees hold an annual meeting for garden renters and coordinate with the City and other
sponsors to provide additional educational opportunities. Members are responsible for assuring that the garden space
was cleaned and prepared for the coming season each fall. The Jaycees line trim all mowed areas in the garden.
• The Jaycees are responsible for the design and construction of the garden, including the layout of garden plots and
walkways and installation of fencing, storage, and compost areas. However, all plans have been approved in
advance by the Leisure Services Manager.
• The Jaycees must meet all of the City's insurance and permit requirements.
The Park and Recreation Commission approved recommending the Lease at their February 11th meeting.
RECOMMENDATION
I respectfully request approval from the City Council of the attached lease agreement with the Dubuque Jaycees to operate a
community garden in Veterans' Memorial Park.
Prepared by:
M LW:et
cc:
Stephen Fehsal, Park Division Manager
Alyson Tasker and Scott Breitfelder, Dubuque Jaycees
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
THE DUBUQUE JAYCEES
This Lease Agreement (the Lease), dated for reference purposes the 3rd day of March,
2014, is made and entered into by and between the City of Dubuque, Iowa, a municipal
corporation (Lessor) and the Dubuque Jaycees (Lessee).
SECTION 1. DEMISE AND TERM.
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 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
commencing on the 1st day of April, 2014 and terminating at 11:59 p.m. on the 15th day
of November 2014 (the Term) subject to all of the terms, covenants, conditions and
agreements contained herein.
1.2. Lessee's use of the Demised Premises shall be exclusively for the operation of a
community garden.
1.3. 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.
SECTION 2. RENT. Lessee shall pay Lessor rent for the Demised Premises of $1
upon execution of this Lease.
SECTION 3. IMPROVEMENTS.
3.1. 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 in
writing by Lessor and Lessee (the Improvements). Lessor, through its City Manager,
shall have the right to approve the design, appearance and quality of any such
Improvements. 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 term of this Lease and upon any termination of this
Lease, by reason of any cause whatsoever, Lessee shall remove all such
Improvements and restore the Demised Premises to the condition it was in immediately
prior to the commencement of the term of this Lease and to the full satisfaction of
Lessor unless Lessee agrees, with the prior consent of Lessor, to surrender to Lessor
all such Improvements.
3.2. Lessee must fence, secure and sign the Demised Premises appropriately and as
approved by Lessor to keep access to the Demised Premises only to gardeners
authorized by Lessee to enter and use the Demised Premises.
3.3. Lessor will provide Lessee with water sources which must be locked by Lessee
at all times when not in use by gardeners and only made available to gardeners
authorized by Lessee to enter and use the Demised Premises.
SECTION 4. ENCUMBRANCE OF LESSEE'S 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.
SECTION 5. 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 superior order,
condition, and repair, casualties and ordinary wear and tear excepted. 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 Section
5.1.
5.2. Lessee will be responsible for gathering all trash and placing it in bins approved
and provided by Lessor. Lessor will be responsible for removal of trash from the
Demised Premises.
5.3. Lessee will not allow any outdoor storage of equipment, vehicles, construction
materials or any other personal property on the Demised Premises except in a storage
building provided by Lessee and approved by Lessor for the storage.
5.4 Lessee will mow areas and line trim areas inside garden fence.
5.5 Lessor will initially till individual garden spaces.
SECTION 6. COMPLIANCE WITH LAW. During the term of this Lease, Lessee shall
comply with all laws applicable to Lessee's use of the Demised Premises.
SECTION 7. USE OF DEMISED PREMISES.
7.1. Lessee may 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 may not suffer
any act to be done or any condition to exist within the Demised Premises or in any
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Improvement thereon, or permit any Section 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.
7.2. Lessee will use and maintain the premises only for a community garden.
7.3. Lessee understands the proximity of the Demised Premises to the ballfields will
likely result in errant balls from games, practices and/or warmups. Lessor will not be
liable for damage to the gardens related to ballfield activities. Lessee shall obtain from
all gardeners authorized by Lessee to enter and use the Demised Premises a release
and waiver of all liability arising from the use of the Demised Premises, including any
risk of ballfield activities.
SECTION 8. INSURANCE. Lessee must at all times during the term of this Lease
maintain insurance as set forth in the attached Insurance Schedule A.
SECTION 9. INDEMNIFICATION. Indemnification of Lessor. Lessee agrees to
defend, 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 shall, 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.
SECTION 10. 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.
SECTION 11. ASSIGNMENT AND SUBLETTING. Lessee shall not assign or
transfer this Lease or sublease the whole or any part of the Demised Premises.
SECTION 12. 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 perforated, and the default shall continue for a period of five(5) days
after written notice from Lessor setting forth the nature of Lessee's default, 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,
3
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 therefore 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.
SECTION 13. 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.
SECTION 14. 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.
SECTION 15. SURRENDER. Lessee shall, on the last day of the term of this Lease
surrender and deliver up the Demised Premises, into the possession and use of Lessor,
without fraud or delay and in good order, condition, repair, free and clear of all lettings
and occupancies, free and clear of all liens and encumbrances.
SECTION 16. NOTICES. All notices, demands, or other writings in this Lease
provided to be given or made or sent, or that 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:
TO LESSEE:
City of Dubuque, Iowa
c/o City Manager
City Hall
50 W. 13th St.
Dubuque, IA 52001
The Dubuque Jaycees Inc.
c/o Alyson Tasker
c/o Scott Breitfelder
P.O. Box 63
Dubuque, IA 52004-0063
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.
SECTION 17. MISCELLANEOUS.
17.1. 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.
17.2. 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.
17.3. 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 writing signed by each party or an authorized representative of each party.
17.4. 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.
Attest(
Attes
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LESSOR:
CITY OF DUBUQUE, IOWA
By:
MiEhael C. Van Milligen, City Manager
LESSEE:
THE DUBUQUE JAYCEES, INC.
By:
By:
litorTGAtiz,
Alysoh Tasker
Scott Breitfelder
'Notice - These maps are compiled for assessment and lax information purposes from official county records. All map Information shown is for the forgoing purpose ani does not represent a survey of land.
City of Dubuque Insurance Requirements for Tenants and Lessees of
City Property or Vendors (Suppliers, Service Providers)
1.
Insurance Schedule A
shall furnish a signed Certificate of Insurance (COI) to the City of Dubuque, Iowa for
the coverage required in Exhibit I prior to contract or lease commencement. All lessees of City property
shall submit an updated COI annually. Each Certificate shall be prepared on the most current ACORD form
approved by the Department of Insurance or an equivalent. Each certificate shall include a statement
under Description of Operations as to why issued. Eg: Project # or Lease of premises at
or construction of
2. All policies of insurance required hereunder shall be with a carrier authorized to do business in Iowa and
all carriers shall have a rating of A or better in the current A.M. Best's Rating Guide.
3. Each Certificate shall be furnished to the contracting department of the City of Dubuque.
4. 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 shall be considered a material breach of
this agreement.
5. All required endorsements to various policies shall be attached to Certificate of insurance.
6. Whenever a specific ISO form is listed, an equivalent form may be substituted subject to the provider
identifying and listing in writing all deviations and exclusions that differ from the ISO form.
7. Provider shall be required to carry the minimum coverage /limits, or greater if required by law or other
legal agreement, in Exhibit I.
8. Whenever an ISO form is referenced the current edition of the form must be used.
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City of Dubuque Insurance Requirements for Tenants and Lessees of
City Property or Vendors (Suppliers, Service Providers)
Insurance Schedule A (continued)
Exhibit I
A) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000
Products - Completed Operations Aggregate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
a) Coverage shall be written on an occurrence, not claims made, form. All deviations from the
standard ISO commercial general liability form CG 0001, or Business owners form BP 0002,
shall be clearly identified.
b) Include ISO endorsement form CG 25 04 "Designated Location(s) General Aggregate Limit."
c) Include endorsement indicating that coverage is primary and non - contributory.
d) Include endorsement to preserve Governmental Immunity. (Sample attached).
e) Include an endorsement that deletes any fellow employee exclusion.
f) Include additional insured endorsement for:
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 and volunteers. Use ISO form CG 20 10. Ongoing operations.
g) If vendor utilizes Trikkes or Segways in the conduct of business, include an endorsement
reflecting that these vehicles are not excluded from Commercial General Liability coverage.
B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory benefits covering all employees injured on the job by accident or disease as prescribed by
Iowa Code Chapter 85 as amended.
Coverage A
Coverage B
Statutory —State of Iowa
Employers Liability
Each Accident $100,000
Each Employee- Disease $100,000
Policy Limit - Disease $500,000
Policy shall include an endorsement providing a waiver of subrogation to the City of Dubuque.
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City of Dubuque Insurance Requirements for Tenants and Lessees of
City Property or Vendors (Suppliers, Service Providers)
Preservation of 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 Coverage. The insurance carrier further agrees that this policy of insurance
shall cover only those claims not subject to the defense of governmental immunity
under the Code 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
shall do so upon the timely written request of the insurance carrier.
4. Non - Denial of Coverage. The insurance carrier shall not deny coverage under this
policy and the insurance carrier shall 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 Change in Policy. The above preservation of governmental immunities shall
not otherwise change or alter the coverage available under the policy.
SPECIMEN
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