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HomeMy WebLinkAbout6.t. Irish Dome LLC Lease AgreementCITY OF ROSEMOUNT EXECUTIVE SUMMARY FOR ACTION CITY COUNCIL MEETING: December 16,'2003 AGENDA ITEM: Irish Dome LLC Lease Agreement AGENDA SECTION: CONSENT AGENDA PREPARED BY: Dan Schultz, Parks and Recreation Director AGENM #611 ATTACHMENTS: Proposed Lease Agreement for Sports Dome APPROVED BY Attached is the proposed Sports Dome lease between Irish Sports Dome LLC, Independent School District 196, and the City of Rosemount. The Department of Natural Resources has stated that because the original LAWCON grant was awarded as a joint project, the City needed to be included in the lease. City Attorney LeFevere has discussed this issue with the attorney form ISD 196 and they have come to an agreement on language that does not in any way tie the City to the activities taking place on the School District's property. This approval of this lease agreement would be conditional based on the Irish Dome LLC receiving approval of a Conditional Use Permit from the Rosemount City Council and a building permit for the dome. ISD 196 has included this item on their School Board meeting agenda for Monday, December 15, 2003. RECOMMENDED ACTION: Motion to approve the lease agreement between Irish Dome LLC, Independent School District 196 and the City of Rosemount based on Irish Dome LLC receiving approval of a Conditional Use Permit by the Rosemount City Council and receiving a building permit for the dome. COUNCIL ACTION: 1 LEASE This Lease is made as of ,2003, between ISD #196, as "Landlord ", and Irish Dome, LLC, as 'Tenant" and the City of Rosemount "City." FIRST: TERM AND RENT 1.01 Leased Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, subject to and with the benefit of the terms and provisions of the Lease, land at Rosemount High School of approximately 110,500 square feet hereinafter referred to as the "Leased Premises ". The Leased Premises is more fully identified in the Attached Exhibit A. 1.02 Term and Termination. The term of the Lease shall be for twenty (20) years commencing on 2003 and terminating, unless extended pursuant to the terms of this Lease, on the last day of the last month of the twenty year term. Notwithstanding the commencement date identified above, the Lease is contingent upon the approval of the Irish Dome project by the Minnesota Department of Natural Resources and the National Park Service. The Lease shall not become effective until that approval is obtained by the City and the Landlord. 1.03 Rent. In lieu of cash rent, Tenant shall permit Landlord to use the Irish Dome to be constructed on the Leased Premises between the hours of 5:30 a.m. to 7:00 a.m. and 2:00 p.m. to 5:30 p.m. Monday through Friday, on any days when school is in session pursuant to the official school calendar of Rosemount High School. In addition to the above referenced permitted use, the Landlord will also have use of the Irish Dome during the month of August at the beginning of the fall athletic activities practice season based on the Minnesota State High School League start date from 5 :30 a.m. to 5:30 p.m. Monday through Friday. Tenant shall open the Irish Dome during those times when it is designated for use by Landlord. Tenant further agrees that it shall not rent out or otherwise allow the Irish Dome to be used on the day annually designated by Rosemount High School as graduation day. The parties shall meet at least annually to discuss Landlord's usage, and determine whether any mutually agreed adjustments in Landlord's usage times are warranted. SECOND: USE OF PREMISES 2.01 Use of Leased Premises. The Leased Premises shall be used and occupied by Tenant for construction and operation of a multi- purpose domed recreational facility and for all other purposes reasonably incidental thereto. The facility to be constructed is more fully described in Exhibit B. The facility shall be constructed on public property and shall be operated for public recreation purposes to enhance the outdoor recreational opportunities available on the Leased Premises in compliance with the provisions of the Land and Water Conservation Fund Act (L &WCF), implementing guidelines and L &WCF grant agreements applicable to the Leased Premises. The multi - purpose domed recreational facility shall be named the Irish Dome. Tenant shall not rename the Irish Dome without the written approval of Landlord. 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AI!Ipej 9qj leul einsse llegs lu eual 1 t _ 3.02 Utility Charges. Tenant agrees to pay for all charges for water, sewer, fuel, gas, electricity, telephone, security and any other utility or service which are either contracted directly by Tenant or separately metered to the Leased Premises and /or the Irish Dome including all charges attributable to Landlord's use of the Irish Dome. 3.03 Disruption of Existing Work Tenant acknowledges that construction of the facility may disrupt underground irrigation or other systems currently'in place. Tenant shall be responsible for assuring that no disruption occurs to school activities. Tenant shall restore all impacted systems, to assure their continued operation. Tenant is responsible for rework of the in -place irrigation system in the area proposed for construction to assure it continues to operate in a fashion that serves other Landlord needs. 3.04 Taxes, Bonds, Other Governmental Charges and Other Charges Except as described hereunder, Landlord shall pay, as the same respectively become due, all taxes, special assessments, and governmental charges of any kind whatsoever that may at any time be lawfully assessed or levied against or with respect to the Leased Premises. During the term of this Lease, taxes and assessments, if any, due on the Leased Premises due to the construction of the Irish Dome, or any furnishings, equipment or other property installed or brought by Tenant therein or thereon, and all claims for rent, labor, materials, supplies, utilities and other charges incurred in the operation, maintenance, use occupancy and upkeep of the Leased Premises, if any, shall be paid by Tenant. Prior to commencing construction of the Irish Dome, Tenant shall obtain performance and payment bonds guaranteeing faithful performance of the work and payment of materials and labor suppliers on the Project. The bonds shall be in the amount of the estimated costs of the Project, and the costs of said bonds shall be paid by the Tenant. Additionally, Tenant shall make no payments to material or labor suppliers without obtaining release of mechanics liens and payment bond rights. FOURTH: INSURANCE AND LIABILITY 4.01 Insurance. During the term of this Lease, Tenant shall at its expense maintain general public liability insurance for injuries to persons and for damage to property with respect to the Leased Premises and the business operated by Tenant covering Tenant's business activities on the Leased Premises. Landlord shall be named as an additional insured. The limits of public liability for such policy shall be acceptable to Landlord. All insurance policies required to be obtained by Tenant shall be in the form and with companies approved by Landlord, shall provide that such insurance shall not be subject to cancellation or change except after ten days' written notice to Landlord. Landlord shall endeavor to add the Irish Dome to its Property Insurance Coverage, and, if necessary, will procure a separate policy insuring the facility against loss. Tenant shall be responsible for the costs of said insurance, and shall remit the costs to Landlord as additional rent. Tenant shall be responsible for procuring insurance on the contents of the Irish Dome. Landlord shall name Tenant as an additional insured on its Liability insurance policy for purposes of claims brought against Tenant for injuries to persons and for damage to property arising out of the Landlord's use of the Irish Dome, subject to any exclusions in the School District's insurance coverage. 4.02 Waiver of Subrogation. To the extent insurance coverage is not compromised, Landlord and Tenant hereby waive any and all claims of action and rights or recovery against each other, including the other's agents, contractors, employees, servants, tenants and concessionaires, for any loss or damage caused by fire or perils insured by extended coverage, to the extent that any such loss or damage is covered by insurance maintained by the party sustaining the loss. Landlord and Tenant shall use reasonable efforts to obtain appropriate clauses in, or endorsements on, their respective policies of fire insurance whereby the insurance companies waive subrogation consent to a waiver of the right of recovery. 4.03 Liability. Tenant and Landlord shall each be responsible for the acts and omissions of their own employees, officers and agents and neither party shall be responsible for the acts and omissions of the other party's employees, officers and agents. FIFTH: DAMAGE AND CONDEMNATION 5.01 Damage. If the Leased Premises and /or the Irish Dome are either partially or totally destroyed by fire or other casualty, Tenant shall promptly repair and restore the Leased Premises and /or the Irish Dome. Tenant's obligation to provide Landlord with use of the Irish Dome as described in Section 1.03 shall abate during the time that Tenant is repairing and restoring the Premises. 5.02 Condemnation of All the Leased Premises. If the whole of the Leased Premises shall be acquired or condemned by eminent domain for any public or quasi- public use or purpose or conveyed in anticipation or in lieu of such condemnation, or if a partial taking occurs which makes continued operation of the Irish Dome impractical, then the term of this Lease shall cease and terminate as of the date of title vesting in such proceeding and all rentals shall be paid up to that date and Tenant shall have no claim against Landlord nor the condemning authority for the value of any unexpired term of this Lease and rent shall be adjusted to the date of such termination. In the event of a partial taking or condemnation which is not extensive enough to render the Leased Premises unsuitable for the reasonable operation of the Irish Dome, then this Lease shall continue in full force and effect without any reduction or abatement of rent. 5.03 Award in Eminent Domain. Except as herein provided, Tenant shall not be entitled to any portion of the award paid for the condemnation of the Leased Premises and Landlord is to receive the full amount of such award, Tenant hereby expressly waiving any right or claim to any portion thereof. Although all damages, whether awarded as compensation for diminution in value of the lease hold or to the fee of the Leased Premises shall belong to Landlord, Tenant shall have the right to claim and recover from the condemning authority, but not from Landlord such compensation as may be separately awarded or recoverable by Tenant on account of any and all damage to Tenant's business by reason of the taking and for or on account of any cost or loss to which Tenant might be put in removing its merchandise, furniture, fixtures, leasehold improvements and equipment. SIXTH: DEFAULTS 6.01 Events of Default. The following shall be "Events of Default" under this Lease and the term "Events -of Default" shall mean, whenever used in this Lease, any one or more of the following events: a) If Tenant fails to provide the Landlord use of the property pursuant to Section 1.03 hereof, or to make payment of any insurance premium to be paid on or prior to the dates on which payments are required to be made; or b) If Tenant shall default in the due and punctual performance of any other covenants, conditions, agreements and provisions contained in the Lease or in any instrument supplemental hereto on the part of Tenant to be performed and such default shall continued for a period of 30 days after written notice, specifying such default and requiring the same to be remedied, shall have been given to Tenant; or C) If Tenant allows any Liens to attach to the Leased Premises as a result of construction, improvement, or maintenance of the Leased Premises; or d) If Tenant files a petition in bankruptcy, or makes an assignment for the benefit of creditors, or consents in writing to the appointment of a trustee or receiver for itself; or e) If a court of competent jurisdiction shall enter an order, judgment or decree declaring the Tenant an insolvent, or adjudging it bankrupt, or appointing a trustee or receiver of Tenant, or approving a petition filed- against Tenant, or approving a petition filed against Tenant seeking reorganization of the Tenant under any applicable law or statute of the United States of America or any state thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within 60 days from the date of the entry thereof; or f) If, under the provisions of any other law for the relief or aid of debtors, any court or competent jurisdiction shall assume custody or control of Tenant, and such custody or control shall not be terminated within 90 days from the date of assumption of such custody or control. g) If Tenant fails to comply with the applicable terms and provisions of the grant agreement between Landlord, City and the State of Minnesota, including standards of maintenance, public use and accessibility requirements. Said failure shall only become an event of default provided the failure is continued for a period of 30 days after written notice, specifying the specific failure and requiring the same to be remedied, shall have been given to Tenant following a periodic review by Landlord of Tenant's compliance with the terms and provisions of the grant. 6.02 Remedies on Default. - Whenever any Event of Default referred to in Section 6.01 hereof shall have happened and be subsisting, then: a) Landlord may terminate the Lease Term, exclude Tenant from possession of the Leased Premises, require Tenant to seasonably remove the dome and any personal property therein, and require Tenant (at its option) to either return the Leased Premises to the condition it existed in at the beginning of this Lease or leave the artificial turf surface in place for the permanent use and possession of the Landlord. b) Landlord may take whatever action at law or in equity may appear necessary or desirable to enforce performance and observance of any obligation, agreement or covenant under this Lease. C) Landlord may pursue any other legal or equitable rights not described herein, including but not limited to an action for damages. SEVENTH: MISCELLANEOUS 7.01 Title and Possession. Tenant shall be responsible for assuring the condition of title to the Leased Premises is acceptable to Tenant. Landlord covenants and warrants that the School Board has authorized the School District to enter into this a Lease for the full term herein granted. 7.02 Waiver. The failure of Landlord to enforce any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenantor condition herein. No covenant, term or condition of this Lease shall be deemed to have been waived by Landlord, unless such waiver is in writing and signed by Landlord. 7.03 Assignment and Subleasing. This Lease may not be assigned in whole or in part, and the Leased Premises may not be subleased as a whole or in part, by Tenant without Landlord's prior written approval. This section shall not prohibit the Tenant from renting the facility to individuals and groups for short-term usage. 7.04 Captions. The captions in the Lease are a matter of convenience and in no way define, limit, construe or describe the scope or intent of such sections of this Lease. 7.05 Surrender of the Leased Premises. On the last day of the term or the sooner termination thereof, Tenant shall peaceably surrender the Leased Premises and the Irish Dome in good order, condition and repair, reasonable wear and tear only excepted. 7.06 Relationship of Landlord and Tenant. By this Lease, Landlord does not acquire any right, title or interest in or to any property of Tenant except such rights as are specifically stated in this Lease. Landlord shall not be liable to any creditor of Tenant or to any claimant against the estate or property of Tenant for any debt, loss, contract, or other obligation of Tenant. The relationship between Landlord and Tenant is solely that of Landlord and Tenant and is not that of partners or joint ventures. 7.07 Entire Agreement. This Lease constitutes the entire agreement between the parties and no earlier statements or -prior written matter shall have any force or effect. Tenant is not relying on any representations or agreements other than those contained in this Lease. This Lease shall not be modified or canceled except by written instrument subscribed by both parties. 7.08 Successors. The terms, conditions and agreements of this Lease and all rights and obligations herein given to or imposed upon the parties hereto shall bind and inure to the benefit of the respective heirs, executors, administrators, successors and assigns of the parties hereto. EIGHTH: ACQUISITION AT END OF LEASE TERM 8.01 Landlord's Acquisition. At the end of the lease term, Landlord shall acquire ownership of all improvements constructed on the Leased Property including the Irish Dome and all related personal property therein, at no cost to Landlord. Such acquisition shall serve as additional consideration for Landlord under this Lease. r` NINTH: NOTICES 9.01 Notices. All notices required under this Lease must be in writing and provided to the designated contact person for the other party. The parties shall keep each other informed in writing of any change in the designated contact person. At the time of the execution of this Lease, the following persons are the designated contacts: Landlord Contact Tenant Contact John Currie Jody Otto Name Name Superintendent President Irish Dome, I.L.C. Title Title 14445 Diamond Path West 5886 Blackshire Path Rosemount Minnesota 55068 Inver Grove Heights, Minnesota 55076 Address Address (651) 423 -7749 (651) 731 -3100 Phone Phone TENTH: CONSENT OF CITY 10.01. Consent of City. The Leased Premises is a part of property that has been improved using grant funds. The granting agencies and the Landlord have requested that the City execute this lease. However, the City does not assume or accept any rights or responsibilities under this Lease and has executed this lease solely for the purpose of indicating its consent thereto. The undersigned hereby acknowledge that they have read, understand and agree to be bound by the terms of this Lease and are authorized to enter into this Lease on behalf of the respective parties. TENANT: LANDLORD: By - By Its Its Chair By Its Clerk CITY: By Its