Cancer Survivor Park_Finley Lease Agreement_HearingTHE CITY OF
DUB CTE
Masterpiece vn the Mississippi
MEMORANDUM
July 31, 2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Lease Agreement with The Finley Hospital for Cancer Survivor Park
Leisure Services Manager Gil Spence is recommending approval of a ten year lease
with The Finley Hospital for Cancer Survivor Park on 3~d Street next to The Finley
Hospital campus. The park was originally developed at the hospital's expense and has
met their goal of providing an open area for reflection on loved ones that have died from
cancer. Play equipment was provided at the City's expense.
The main points of the lease include:
1. Ten-year term;
2. Improvement costs are at Lessee's expense;
3. Rent is $1.00 per year; and
4. City approval is needed for any improvements to the property.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Michael C. Van Milligen
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Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Gil D. Spence, Leisure Services Manager
THE CITY OF
~' DUB E
Masterpiece on the Mississippi
MEMORANDUM
July 30, 2007
TO: Michael C. Van Milligen, City Manager
FROM: Gil D. Spence, Leisure Services Manage
SUBJECT: Lease Agreement with The Finley Hospital for Cancer Survivor Park
INTRODUCTION
The purpose of this memorandum is to request that the City Council approve the Lease
Agreement with The Finley Hospital for Cancer Survivor Park.
DISCUSSION
The Finley Hospital entered into a ten year lease in February, 1996, to develop Cancer
Survivor Park on Third Street next to The Finley Hospital campus. The park was
developed at the hospital's expense and has met their goal of providing an open area
for reflection on loved ones that have died from cancer. Play equipment was provided
at the City's expense.
Main points of the lease included:
• Ten year term.
• Improvement costs are at Lessee's expense.
• Rent is $1.00 per year.
• City approval is needed for any improvements to the property.
ACTION STEP
The action requested is that the City Council adopt the attached resolution approving
the lease agreement with The Finley Hospital.
GDS:et
attachment
Preparers Gil D. Spence Address: 2200 Bunker Hill Rd Phone: (563) 589-4263
RESOLUTION NO. 419-07
DISPOSING OF AN INTEREST IN REAL PROPERTY BY LEASE AGREEMENT WITH
THE FINLEY HOSPITAL
WHEREAS, the City of Dubuque, Iowa (City) is the owner of the following
described real estate (the Property):
Lots 21 and 22 -Finley Home Addition; and
WHEREAS, The Finley Hospital, an Iowa Corporation desires to lease the
Property for the construction and operation of a park as set forth in the Lease
Agreement attached hereto; and
WHEREAS, on August 6, 2007, the City Council pursuant to notice published as
required by law held a public hearing on its intent to dispose of the foregoing interest in
the Property and overruled all objections thereto; and
WHEREAS, the City Council finds that it is in the best interest of the City to approve
the disposition of such interest in the Property.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City Council of the City of Dubuque approves the disposition of the
City's interest in the foregoing-described Property by lease to The Finley Hospital.
Section 2. The Mayor is hereby authorized and directed to sign this Resolution and
the Lease Agreement.
Passed, approved and adopted this 6th day of August, 2007.
Roy D. Buol, Mayor
Jeanne F. Schneider, City Clerk
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
THE FINLEY HOSPITAL
THIS LEASE AGREEMENT (the "Lease") dated for reference purposes the
day of , 2007, between the CITY OF DUBUQUE, IOWA, a
municipal corporation (Lessor) and THE FINLEY HOSPITAL, an Iowa corporation (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 shown on
Exhibit A, attached hereto, together with any and all easements and appurtenances thereto and
subject to any easements that are restrictions of record (the "Demised Premises"), to have and to
hold for a term of ten (10) years commencing on , 2007 and terminating at 11:59
p.m. on , 2017, subject to all of the terms, covenants, conditions and agreements
contained herein.
ARTICLE II
RENT
2. Lessee shall pay Lessor (in addition to taxes, assessments, and other charges required to
be paid under this Lease by Lessee) rent for the Demised Premises of One Dollar per year.
ARTICLE III
TITLE TO IMPROVEMENTS AND TRADE FIXTURES
3.1. Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean all of
Lessee's personal property located on the Demised Premises used in Lessee's business. Title to
Lessee's trade fixtures (the "Trade Fixtures") are and shall be the sole and exclusive property of
Lessee during the term of this Lease and shall remain the sole and exclusive property of Lessee
after the expiration or termination of this Lease, for whatever reason. Lessor acknowledges and
understands that it shall have no right, title, or interest in or to Lessee's Trade Fixtures either during
the term of this Lease, or thereafter (except as hereinafter provided). Lessor acknowledges and
agrees that Lessee shall have the right to encumber, sell, or hypothecate Lessee's Trade Fixtures, to
remove them from the Demised Premises, or to otherwise deal with all or any portion of such
Lessee's Trade Fixtures, at Lessee's sole discretion. Provided, further, that upon ten (10) days' prior
written notice to Lessor, Lessor shall prepare and deliver to Lessee a certificate in recordable form
stating that Lessor has no interest or right in or to Lessee's Trade Fixtures, as well as any other or
further document which Lessee may reasonably request from Lessor.
3.2. Tenant Improvements. On delivery of possession of the Demised Premises to Lessee,
Lessee shall be entitled to construct on the Demised Premises all structures, buildings or other
improvements as agreed upon in writing by the Lessor and Lessee (the "Tenant Improvements").
Lessor covenants and agrees to keep and maintain the leased premises. Lessee covenants and agrees
to keep and maintain the leased premises in good repair and any improvements shall be made at the
Lessee's expense. Lessor 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. Lessor agrees to provide all permits, variances and approvals reasonably
required to develop and construct the proposed park on the Demised Premises, as set forth in
Article I of the Lease. 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
Tenant 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 Tenant
Improvements has expired, and that title to the Tenant Improvements has vested in Lessor.
3.3. Si~na~e. Lessee may, at Lessee's cost, install a sign or marker on the leased property
designating the property as a public park. All proposed signage must be reviewed and approved by
the City Manager prior to obtaining a sign permit.
ARTICLE IV
ASSIGNMENT AND SUBLETTING
4. Lessee's right to encumber leasehold interest. Lessee may not assign or sublet the
premises or any portion thereof without first securing the prior written consent of the City Manager
which consent will not be unreasonably withheld. Merger of the Lessee with some other
corporation, or sale of the majority of the stock of the Lessee corporation to any other corporation,
or consolidation, shall be deemed an assignment or sublease for the purposes of this section.
ARTICLE V
TAXES
5.1. Lessee agrees to pay as additional rent an amount equal to real estate taxes upon the
real estate of the Demised Premises that become payable during the term hereof. Lessee shall
further provide to Lessor official receipts of the appropriate taxing authority or other evidence
satisfactory to Lessor evidencing payment thereof.
5.2. The Lessee further agrees to pay all other taxes, rates, charges, levies and assessments,
general and special, of every name, nature and kind, whether now known to the law or hereafter
created which may be taxed, charged, assessed, levied or imposed upon said real estate, any
buildings or improvements thereon which may be taxed, charged, assessed, levied or imposed upon
the leasehold estate hereby created and upon the reversionary estate in said real estate during the
term hereof, and all such other taxes, rates, charges, levies and assessments shall be paid by Lessee
as they become due and before they become delinquent.
5.3. Lessee agrees to timely pay all taxes, assessments or other public charges levied or
assessed by lawful authority (but reasonably preserving Lessee's rights of appeal) against its
personal property on the premises, during the term of this Lease.
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5.4. Nothing herein shall require Lessee to pay any of Lessor's income taxes, surtaxes,
excess profit taxes or any taxes on the rents reserved to Lessor hereunder.
5.5. Lessee shall at all times have the right to contest in good faith, in any proper
proceedings, in the name of Lessor if necessary, the payment or satisfaction of any such taxes,
assessments, rates, charges or levies so agreed to be paid by Lessee, if the validity thereof, or the
right to assess or levy the same against or collect the same from said Demised Premises or
improvements, shall be disputed. Upon the conclusion of any such suit or proceedings, or not less
than three (3) months prior to the date when the right to redeem therefrom expires, whichever will
be the earlier, Lessee will promptly pay and satisfy such disputed tax, assessment or other charge as
finally determined, together with all expenses, costs and attorneys' fees whatsoever incurred in
connection therewith.
ARTICLE VI
REPAIRS
6. Lessee shall at all times during the term of this Lease, at Lessee's own costs and expense,
keep the Demised Premises and the Tenant Improvements thereon, and all sidewalks, curbs, and all
appurtenances to the Demised Premises, in good order, condition, and repair, casualties and
ordinary wear and tear excepted. Lessee shall keep and maintain the Demised Premises and all
Tenant Improvements in good condition, consistent with other similarly classed operations. 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. Upon reasonable notice to Lessee, Lessor
may, at its discretion, conduct an annual inspection of the Demised Premises to determine Lessee's
compliance with this Article VI.
ARTICLE VII
COMPLIANCE WITH LAW
7.1. 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.
7.2. Lessee shall not commit waste on the Demised Premises except as necessary for the
removal or construction of any buildings and Tenant Improvements on the Demised Premises, but
shall not be liable for any damages to or destruction of any buildings or tenant improvements on the
Demised Premises.
ARTICLE VIII
ALTERATIONS
8.1. 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 Tenant
Improvements thereon as shall be agreed upon it writing by Lessor and Lessee.
8.2. Lessee agrees to secure the prior written approval of Lessor for any landscaping,
construction, grading or tree removal on the premises.
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ARTICLE IX
USE OF DEMISED PREMISES
9.1. Lessee covenants and agrees during the term of this Lease to use and occupy the leased
premises for a public park dedicated to cancer survivors. It is further under-stood by the Lessee that
any use of the property shall not conflict with communications equipment of any kind, including
but not limited to radio, cellular or wireless equipment, or the present use of adjacent property
owned and used by the Lessor in its operations.
9.2. Lessee will not use or allow the Demised Premises or any buildings or Tenant
Improvements thereon or any appurtenances thereto, to be used or occupied for any unlawful
purpose. 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 X
INSURANCE
10.1. Lessee will at all times during the term of this Lease maintain insurance on the
Demised Premises of the following character:
A. Building insurance written on the "special perils" form at replacement value
in an amount equal to not less than ninety percent (90%) of the replacement
value of the Demised Premises and the Tenant improvements.
B. 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.
10.2. Such insurance shall be provided through commercial insurance, self-insurance or a
combination thereof 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.
10.3. Lessee shall deliver to Lessor promptly after the execution and delivery of this Lease
the original or duplicate policies or certificates of insurance reasonably 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 insurance evidencing the renewal of such insurance.
Should Lessee fail to effect, maintain, or renew any insurance provided for herein, or to pay the
premium therefore, or to deliver to Lessor any of such policies or certificates, Lessor, at its option,
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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 therefore 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.
10.4. 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.
10.5. Lessee shall notify Lessor immediately in the case of damage exceeding $10,000.00 in
amount to, or destruction of, any Tenant Improvements or any portion thereof resulting from fire or
other casualty. Net proceeds of any such insurance (Net Proceeds), shall be paid directly to Lessee
as its interests may appear, and Lessee shall forthwith repair, reconstruct and restore the Tenant
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, Lessee shall apply the Net Proceeds of any insurance costs thereof,
Lessee shall complete the repair, reconstruction and restoration of the Tenant Improvements
whether or not the Net Proceeds of insurance received by Lessee for such purposes are sufficient.
ARTICLE XI
LESSOR'S WARRANTIES AND REPRESENTATIONS
11.1. Lessor's Representation of Good Title. Lessor covenants and warrants that its is
lawfully seized in fee simple of the Demised Premises, and that it has full right and authority to
enter into this Lease for the full term hereof, and covenants and agrees that upon paying the rent
provided for herein, and upon Lessee's performing the covenants and agreements of this Lease
required to be performed by said Lessee, that it will have, hold and enjoy quiet possession of the
Demised Premises. Lessor warrants to Lessee that the Demised Premises are properly zoned for the
conduct of the operation of Lessee's business.
11.2. Lessor covenants and agrees that Lessee shall have no responsibility for or liability
arising from any Hazardous Substance which was in, on or about the Demised Premises prior to the
commencement date of this Lease ("Prior Hazardous Substances") or which leach or migrate upon
the Demised Premises from any property owned by Lessor or their affiliates ("Lessor Hazardous
Substances").
For the purposes of this Lease, "Hazardous Substance" or "Hazardous Substances" means
any hazardous or toxic substance, material or waste which is or becomes regulated by any local
government, the State of Iowa or the United States Government. It includes, without limitation, any
material or substance that is (i) defined as a "hazardous substance" or "hazardous waste" under
Chapter 455B, Iowa Code, (ii) petroleum and petroleum products, (iii) asbestos, (iv) designated as a
"hazardous substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33
U.S.C. § 1321), (v) defined as a "hazardous waste pursuant to § 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi) defined as a "hazardous substance"
pursuant to § 101 of the Comprehensive Environmental Response, Compensation and Liability Act,
U.S.C. §9601 et seq., or (vii) defined as a "regulated substance" pursuant to Subchapter IX, Solid
Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. §6991 et seq.
ARTICLE XII
INDEMNIFICATION
12. Indemnification of Lessor. Lessee shall 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.
ARTICLE XIII
CONDEMNATION
13.1. Entire 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 any sovereign, municipality, or other public or private authority, 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. Substantially all of the Demised Premises and the improvements
thereon shall be deemed to have been taken if the remaining portion of the Demised Premises shall
not be of sufficient size to permit Lessee to operate its business thereon in a manner similar to that
prior to such taking.
13.2. Allocation of Award. Any award for such taking of all or substantially all of the
Demised Premises shall be paid to the parties hereto in accordance with the following:
A. To Lessor, the amount of the award attributable to the Demised Premises,
determined as if this Lease was not in effect at the time of such award, excluding therefrom
the amount of the award attributable to the improvements, and all other sums not directly
attributable to the value of the Land constituting the Demised Premises.
B. To Lessee, the entire award except that portion allocated to Lessor above,
including but not limited to, the value of the improvements plus any other amount assessed
for Lessee.
13.3. Partial Condemnation. If less than 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 any
sovereign, municipality, or other public or private authority, then Lessee, at its option, may elect to
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continue this Lease in full force and effect or terminate this Lease. If Lessee shall elect to maintain
this Lease in full force and effect, the entire award for such partial condemnation shall be paid over
to Lessee, and Lessee shall proceed with reasonable diligence to carry out any necessary repair and
restoration so that the remaining improvements and appurtenances shall constitute a complete
structural unit or units which can be operated on an economically feasible basis under the
provisions of this Lease. In the event Lessee elects to continue this Lease in full force and effect
after a partial condemnation, there shall be no abatement in the Basic Rent Lessee is required to pay
hereunder.
Should Lessee elect to terminate this Lease upon a partial condemnation, Lessee shall
provide Lessor with written notice of such election within thirty (30) days after the date of vesting
of title for such taking. Lessee shall specify in such written notice the date on which this Lease shall
terminate, which date shall be not less than 60 days nor more than 360 days after delivery of such
notice to Lessor (the Termination Date). In the event Lessee terminates this Lease, as provided for
in this Article 13.3, Lessee shall be entitled to the entire award for such partial taking.
13.4. Temporary Taking. If the temporary use of the whole or any part of the Demised
Premises or the Tenant Improvements thereon or the appurtenances thereto shall be taken at any
time during the term of this Lease in the exercise of the power of eminent domain by any sovereign,
municipality, 'or other authority, the term of this Lease shall not be reduced or affected in any way,
and Lessee shall continue to pay in full the rent, additional rent, and other sum or sums of money
and charges herein reserved and provided to be paid by Lessee, and the entire award for such
temporary taking shall be paid to Lessee. Lessee shall repair and restore any and all damage to the
Demised Premises and the improvements as soon as reasonably practicable after such temporary
taking.
ARTICLE XIV
DEFAULT
14.1. 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 may
be 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.
14.2. Rights of Holder of Encumbrance in Event Lessee Defaults. If Lessee fails or
neglects 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, the Holder of any indebtedness secured by an
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encumbrance on the leasehold estate under this Lease shall have thirty (30) days after receipt of
written notice from Lessor setting forth the nature of Lessee's default and a reasonable time
thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature
thereof within such thirty (30) days and is diligently prosecuting such proceedings, within which to
endeavor to make good or remove the default or cause for termination of the Lease. All right of
Lessor to terminate this Lease on the failure or neglect of Lessee to observe, keep, and perform the
covenants, terms, and conditions of this Lease, is, and shall continue to be, at all times prior to
payment in full of the indebtedness to the Holder of Lessee, subject to, and conditioned on, Lessor's
having first given the Holder written notice thereof and the Holder having failed to cause the
default or cause for termination to be made good or removed within thirty (30) days after receiving
written notice of default or cause for termination or within a reasonable time thereafter if it shall
have commenced foreclosure or other appropriate proceedings in the nature of foreclosure within
such thirty (30) days and is diligently prosecuting such proceedings, In the event that the Lease is
terminated due to the Lessee's bankruptcy, insolvency or other proceedings, and in the event the
Holder has complied with the terms of this Section 15.2, then Lessor at Holder's option, shall enter
into a new lease with Holder or the successful bidder at foreclosure on the same terms as this Lease,
for the term then remaining, and specifically preserving all unexercised options.
14.3. Lessee's Rights in the Event of Lessor's Default. If Lessor shall fail or neglect to
observe, keep or perform any of the material 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 Lessee setting forth the nature of Lessor'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 Lessor has to cure the same shall be extended for such period as
may be necessary to complete the same with all due diligence, but in the event no longer than
ninety (90) days, then and in any such event, Lessee shall have all rights available to it provided by
law or equity.
ARTICLE XV
RIGHT TO CURE OTHER'S DEFAULTS
15. Whenever and as often as a party shall fail or neglect to comply with and perform any
term, covenant, condition, or agreement to be complied with or performed by such party 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 Tenant 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 parry
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 agreement. 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.
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ARTICLE XVI
QUIET ENJOYMENT
16. 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 XVII
WAIVER
17. 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 XIII
SURRENDER
18. 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
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, Lessor and Lessee shall agree to jointly remove any or all of the Tenant
Improvements located on the Demised Premises. Provided, however, that Lessee's Trade Fixtures,
personal property, and other belongings of Lessee or of any sublessee or other occupant of space in
the Demised Premises shall be and remain the property of Lessee, and Lessee shall have a
reasonable time after the expiration of the term of this Lease to remove the same.
ARTICLE XIX
MEMORANDUM OF LEASE
19. Each of the parties hereto will, promptly upon request of the other, execute a
memorandum of this Lease in form suitable for recording setting forth the names of the parties
hereto and the term of this Lease, identifying the Demised Premises, and also including such other
clauses therein as either party may desire, except the amounts of Basic Rent payable hereunder.
ARTICLE XX
NOTICES
20.1. All notices, demands, or other writings in this Lease provided to be given or made or
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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
50 West 13th Street
Dubuque, Iowa 52001
TO LESSEE:
The Finley Hospital
350 North Grandview Avenue
Dubuque, Iowa 52001
20.2. 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 XXI
MISCELLANEOUS
21.1. Time of the Essence. Time is of the essence of this Lease and all of its provisions.
21.2. 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.
21.3. Attorney Fees. In the event that any action is filed in relation to this Lease, the
unsuccessful party in the action shall pay to the successful party, in addition to all the sums that
either party may be called on to pay, a reasonable sum for the successful party's attorney fees.
21.4. 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.
21.5. 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.
21.6. 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.
21.7. 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
10
.,
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.
[SEAL]
Attest:
LESSOR:
CITY OF DUBUQUE, IOWA
Roy D. Buol, Mayor
By:
LESSEE:
[SEAL] THE FINLEY HOSPITAL
Attest: By:
John Knox, President/CEO
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EXHIBIT "A"
12
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR
VENDORS
(SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
All insurance required hereunder shall be provided through commercial insurance, self-
insurance or a combination thereof .
2. All insurance shall be endorsed to provide a thirty (30) day advance notice of cancellation to
the City of Dubuque, except for 10 day notice for non-payment, if cancellation is prior to the
expiration date. This endorsement supersedes the standard cancellation statement on the
Certificate of Insurance.
Lessee shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the
coverage required in Paragraph 6 below. Such certificates shall include copies of the following
policy endorsements:
a. Commercial General Liability policy is primary and non-contributing.
b. Commercial General Liability additional insured endorsement.
c. Governmental Immunity Endorsements.
4. Each certificate shall be submitted to the contracting department of the City of Dubuque.
5. 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.
6. Lessee shall be required to carry the following minimum coverage/limits or greater if required
by law or other legal agreement:
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 Limit $1,000,000
Fire Damage Limit (any one occurrence) $50,000
Medical Payments $5.,000
Form CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be included. All
deviations or exclusions from the standard ISO commercial general liability form CG 0001, or
Business Owners form BP 0002, shall be clearly identified.
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INSURANCE SCHEDULE A (Continued)
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS
(SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
Governmental Immunity Endorsement identical or equivalent to form
attached.
Additional Insured Requirement:
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 shall be
named as an additional insured on General Liability Policies using ISO
endorsement CG 20 26 0704 "Additional Insured -Designated Person
or Organization," or it's equivalent. -See Specimen
b. WORKERS' COMPENSATION AND EMPLOYERS LIABILITY
Statutory for Coverage A
Employer Liability:
Each Accident. $100,000
Each Employee -Disease $100,000
Policy Limit -Disease $500,000
c. UMBRELLA EXCESS LIABILITY LIQUOR OR
DRAM SHOP LIABILITY
Coverage to be determined on a case by case basis by Finance Director.
Completion Checklist
^ Certificate of Liability Insurance (2 pages)
^ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2
pages)
^ Additional Insured 20 26 07 04
^ Governmental Immunities Endorsement
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CITY OF DUBUQUE, IOWA GOVERNMENTAL
IMMUNITIES ENDORSEMENT
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 Coveraee. 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 maybe 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.
5. 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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