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Lamar Companies Lease AgreementTHE CITY OF Dui Masterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Lamar Lease Agreement DATE: July 31, 2014 Dubuque band AI -America City r 2007 • 2012 • 2013 In 2008 the City of Dubuque purchased the parking lot to the west of the Bricktown restaurant. Located on the property is a Lamar owned sign. A lease is required to allow the sign to remain on City property. Economic Development Director Maurice Jones recommends City Council approval of a Renewal Lease Agreement with the Lamar Companies for a term commencing July 1, 2014, and terminating June 30, 2015. I concur with the recommendation and respectfully request Mayor and City Council approval. bat44 ., Mic ael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Maurice Jones, Economic Development Director Masterpiece on the Mississippi Dubuque klitil All -America City 1111 111' 2007 • 2012 • 2013 Economic Development Department 50 West 13th Street Dubuque, Iowa 52001-4864 Office (563) 589-4393 Fax (563) 589-1733 TTY (563) 690-6678 http://www.cityofdubuque.org TO: Michael Van Miliigen, City Manager FROM: Maurice Jones, Economic Development Director SUBJECT: Lamar Lease Agreement DATE: 7/30/14 INTRODUCTION This memorandum presents for City Council approval of a Renewal Lease Agreement with the Lamar Companies. BACKGROUND In 2008 the City of Dubuque purchased the parking lot to the west of the Bricktown Restaurant. Located on the property is a Lamar owned sign. A lease is required to allow the sign to remain on city property. DISCUSSION The lease agreement with the Lamar Companies will allow one side-by-side, 12' x 25' 2 - pole structure along the south property line of the parking lot. In return for this allowance, Lamar agrees to the following conditions: • The billboards will be limited to advertising for entities located within the City of Dubuque. • Lamar will pay an annual rent of the greater of $2,400 or 20% of the annual gross revenue from the billboards. • Payment will occur on July 1, 2014 for the year. • Lamar will pay for all utilities associated with the sign. • Lamar will pay any real estate taxes attributable to their use of the property. RECOMMENDATION/ ACTION STEP I recommend that the City Council approve the attached Lease Agreement with Lamar Companies. LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE AND THE LAMAR COMPANIES This Lease Agreement (the "Lease"), dated for reference purposes the 3 day of —0, 2014, is made and entered into by and between the City of Dubuque, Iowa, a municipal corporation ("Lessor") and The Lamar Companies ("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 as follows: One (1) side-by-side, 12' x 25' 2 -pole structure located on the south property line of the parking lot at 280 South Locust Street, Dubuque, Iowa (the "Demised Premises"), to have and to hold for a term commencing on July 1, 2014, and terminating at 11:59 p.m. on June 30, 2015, 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 Lessee's current billboards. The advertising on such billboards shall be limited to advertising for entities located within the city of Dubuque, Iowa. 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. 2.1 Lessee shall pay Lessor annual rent for the Demised Premises of the greater of two thousand four hundred dollars ($2,400.00) or twenty percent (20%) of Lessee's annual gross revenue (the "Rent") from the billboards. Lessee shall pay two thousand four hundred dollars ($2,400.00) to Lessor on or before July 1, 2014, at City Hall, c/o Finance Director. On or before June 30, 2015, Lessee shall pay to Lessor the difference, if any, between two thousand four hundred dollars ($2,400.00) or twenty percent (20%) of Lessee's annual gross revenue from the billboards. 2.2 Lessee shall also pay the costs for all utilities serving the Demised Premises. 2.3 Lessee shall also pay any real estate taxes attributable to the Demised Premises or the Improvements. 06092014ASandMAQ SECTION 3. IMPROVEMENTS. Lessee shall not construct on the Demised Premises any improvements, nor alter or enlarge the improvements presently on the Demised Premises (the "Improvements") except as may be agreed upon in writing by Lessor and Lessee. 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 within thirty (30) days thereafter 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. 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. 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. 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. Lessee shall not use or allow the Demised Premises to be used or occupied for any unlawful purpose or in violation of any certificate of occupancy. Lessee shall not suffer any act to be done or any condition to exist within the Demised Premises or in any Improvement thereon, 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. SECTION 8. INSURANCE. Lessee shall at all times during the term of this Lease maintain insurance as set forth in the attached Insurance Schedule. SECTION 9. INDEMNIFICATION. Lessee shall 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 3 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 i 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 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 4 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 or upon any termination of this Lease hereof, 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 Street Dubuque, IA 52001 James P. Schumacher c/o Lamar Advertising 1690 Elm St (Dubuque, IA, 52001) 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 Time of the Essence. Time is of the essence of this Lease and all of its provisions. 17.2 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. 17.3 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. 17.4 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 writing signed by each party or an authorized representative of each party. 5 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 Statutory—State of Iowa Coverage B 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. 6 17.5 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. SECTION 18. FORCE MAJEURE. 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 of construction materials, unavailability or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, explosions, hazardous conditions, fire, flood, 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 (collectively Force Majeure), 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. LESSOR: LESSEE: CITY OF DUBUQUE, IOWA THE LAMAR COMPANIES By: __ By: Michael C. Van Milligen es P. Schumacher City Manager Vice President/General Manager 6 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. CI E'N 7