Signed Contract_Dubuque Jaycess Lease_Veterans Memorial Park Garden THE CITY OF
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TO: Michael C. Van Milligen, City Manager
FROM: Marie L. Ware, Leisure Services Manager
SUBJECT: Dubuque Jaycees Lease for Veterans' Memorial Park Community Garden
DATE: March 9, 2016
INTRODUCTION 1
The purpose of this memo is to request your signature on the attached one season
lease with the Dubuque Jaycees to operate a community garden at Veterans Memorial
Park.
BACKGROUND
Five years ago, the Dubuque Jaycees approached Cori Burbach and myself about the
possibility of starting a community garden at Veterans' Memorial Park. The Jaycees
project has been very successful and they wish to continue.
The Jaycees created a series of both in-ground and raised beds that are available for a
small rental fee to the public. The rental fee charged by the Jaycees to gardeners
includes an annual fee to cover the costs of maintenance of the space as well as a
deposit that is charged to the renter but returned at the end of the growing season if the
individual cleans their space and returns it to its original status.
DISCUSSION
Attached please find a complete lease agreement defining the responsibilities of the
City and Jaycees. Highlights of the agreement are as follows:
• 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.
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• Jaycees members designate key contacts that would be available at all times to g
answer City or public questions or concerns about the garden. The Jaycees are R
the day-to-day managers of the garden.
The Jaycees must meet all of the City's insurance and permit requirements.
The lease agreement has been reviewed and approved by City Attorney Barry Lindahl.
Barry said the lease does not need City Council approval since the term is only one
season. The Park and Recreation Commission approved recommending the Lease at
their March meeting.
RECOMMENDATION
I respectfully recommend you sign the attached lease agreement with the Dubuque
Jaycees to operate a community garden in Veterans' Memorial Park and then give to
City Clerk Kevin Firnstahl so it may be placed on the Council agenda as a signed
agreement.
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MLW:et
attachment: Lease
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cc: Stephen Fehsal, Park Division Manager
Kevin Firnstahl, City Clerk h
Jenny Fuller, President, Jaycees
Val Vorwald, Jaycees
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LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
THE DUBUQUE JAYCEES
This Lease Agreement (the Lease), dated for reference purposes the day
of , 2016, 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 j
real property described in Exhibit A attached to and made a part of this Lease, together j
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, 2016 and terminating at 11:59 p.m. on the 15th day
of November 2016 (the Term), subject to all of the terms, covenants, conditions and
agreements contained herein.
1.2. Lessee's use of the Demised Premises must be exclusively for the operation of a
community garden.
1.3. Lessor makes no representations or warranties of any kind as to the condition, I
including the environmental condition, of the Demised Premises and Lessee accepts
the Demised Premises as is.
SECTION 2. RENT. Lessee must 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 is 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,
has 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 will 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 must 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.
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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
may 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 must 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 must
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
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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.
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SECTION 6. COMPLIANCE WITH LAW. During the term of this Lease, Lessee must
comply with all laws applicable to Lessee's use of the Demised Premises.
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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 an Section to be brought therein which may be
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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 must 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. 7
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
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defend, indemnify, and save harmless Lessor from and against all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses (including without j
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 9
action, suit, or proceeding is brought against Lessor by reason of such occurrence,
Lessee must, 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 are taken in the
exercise of the power of eminent domain by the State of Iowa or the United States, then
this Lease will terminate on the date of vesting of title in such taking and any prepaid
rent will be apportioned as of said date.
SECTION 11. ASSIGNMENT AND SUBLETTING. Lessee may 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 continues 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 will have the right at its option, on written notice to Lessee, to
terminate this Lease, and all rights of Lessee under this Lease will then cease. Lessor,
without further notice to Lessee, will have the right immediately to enter and take
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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 will 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, will 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 will the receipt of any I
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.
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SECTION 15. SURRENDER. Lessee must, 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.
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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, will 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
50 W. 13th St.
Dubuque, IA 52001
TO LESSEE: The Dubuque Jaycees Inc.
c/o Jenny Fuller
c/o Val Vorwald
P.O. Box 63
Dubuque, IA 52004-0063
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The address to which an notice demand or other writing may be given or made or
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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 will 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 may 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 will be binding only if evidenced
in writing signed by each party or an authorized representative of each party.
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17.4. Parties Bound. This Lease is binding on and shall inure to the benefit of and will
apply to the respective successors and assigns of Lessor and Lessee. All references in
this Lease to "Lessor" or "Lessee" will be deemed to refer to and include successors
and assigns of Lessor or Lessee without specific mention of such successors or
assigns.
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LESSOR: LESSEE:
CITY OF DUBUQUE, IOWA THE DUBUQUE JAYCEES, INC.
By: Z By:
Michael C. Van Milligen 4enny FuNW
City Manager President
Attest: l By: 7
Kevin .. FirnstahI' Val Vorwald
City Clerk Vice-President
F:\USERS\tsteckle\Lindahl\Agreements\DubuqueJayceesLeaseAgreem ent_Com GardenAtVets_030816.doc
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EXHIBIT A
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City of Dubuque Insurance Requirements for Tenants and Lessees of It Property or
Vendors(Suppliers,Service Providers),or Right of Way Permit Holders
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Insurance Schedule A
1. shall furnish a signed Certificate of insurance(COQ to the City of Dubuque,Iowa for
the coverage required in Exhibit I prior to contract or lease commencement.All lessees of City property
and Right of Way Permit Holders 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 or right of way
permitted location and description
2, All policies ofinsurance 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.Rest'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 poricies shall be attached to Certificate of insurance.
6. Whenever a specific ISO form is listed,an equiva[ent form maybe 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 carrythe minimum coverage/limits,or greater if required by law or other
legal agreement,in Exhibit I.
Whenever an ISO form is referenced the current edition of the form must be used. if provider's firrins of
liability are higher than the required minimum limits then the provider's limits shall be this agreements
required limits.
Page I of 3 Schedule A Property Or Vendors March 2016
City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or
Vendors(Suppliers,Service Providers),or Right of Way Permit Holders
Insurance Schedule A (continuedl
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) $ 50,00G
Medical Payments $ 51000
a) Coverage shall be written an an occurrence,natclaims made,form.The general liability
coverage shall be written in accord with ISO form CGOD01 or business owners form.BPOG02.
All deviations from the standard ISO commercial general liability form CG OD01,or Business
owners form BP 1002,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 far;
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 150 form CG 2010(Ongoing operations)or its
equivalent.
g) if vendor utilizes Trikkes or Sagways in the conduct of business,include an endorsement
reflecting that these vehicles an-not excluded from,Commercial General liability coverage.
8) WORKERS'COMPENSATION&EMPLOYERS LABILITY
Statutory benefits covering all employees injured on the jab 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 $100,1100
Each Employee-Disease $100,000
Policy Urnit-Disease $5400,00,0
Policy shall include an endorsement providing a waiver of subrogation to the City of Dubuque.
C) Pollution Liabli Coverage required: _yes no
Pollution Liability coverage shall be required if lessee has any pollution exposures including
abatement of hazardous or contaminated materials including,but not limited to,petroleum products,
the removal of lead,asbestos,or PICB's.Pollution product and complete operations coverage shall
also be covered.
$2,000,000 each occurrence
$4,000,000 policy aggregate
a) Policy to include premises and transportation coverage.
b) Include additional insured as stated in Af above.
c) include preservation of governmental immunity as stated in Ad above.
d) Provide evidence of coverage for 5 years after completion of project.
Page 2 of 3 Schedule A Property Or Vendors March 2016
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City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or
Vendors (Suppliers,Service Providers),or Right of Way Permit Holders
Preservation of Governmental Immunities Endorsement
1. Nonviaiver of Governmental Immunity.The insurance carrier expressly agree.,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 underthe 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 ImmuniLL The City of Dubuque,Iowa shall be responsible for asserting any
defense of governmental immunity,and may do so at anytime 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 yy
Dubuque,Iowa.
No Other Change in policy,The above preservation of governmental immunities shall not otherwise
change or after the coverage available under the policy.
IMEIN
Page 3 of 3 Schedule A Property Or Vendors March 2016
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