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HomeMy WebLinkAboutJanet Kendall-Post-2/4/2013LEASE AGREEMENT for CITY -OWNED PROPERTY Please return this copy to: City Clerk & Finance Department 715 Mulberry Street Waterloo, IA 50703 This Lease Agreement (the "Agreement") is made and entered into this day of 2013, by and between the City of Waterloo, Iowa (hereinafter referred to as "City"), and Jan Kendall -Post (hereinafter referred to as "Lessee"). 1. The City agrees to allow the Lessee to use and occupy City property (the "Property") located on Riverside Drive just west of 903 Riverside Drive ("Lessee's Property"). The Property is known as assessor parcel nos. 891315451006, 891315451007, and part of 891315451009 and legally described in Exhibit "A" attached hereto and made a part hereof by this reference. Lessee shall use the Property only for activities incidental and customarily accessory to the use of their abutting residential property and as further allowed per the description in paragraph 4 below, and shall not use the Property for any other purpose whatsoever. 2. The City agrees to allow Lessee to use and occupy the Property for a term commencing on the 1St day of January, 2013, and terminating on the 31st day of December, 2013. The City agrees to lease the Property to the Lessee for the sum of $1.00 per year, payable in advance upon commencement of the lease term. 3. The City may terminate this Agreement, as to any part or all of the Property, upon thirty (30) days' written notice for any reason. Lessee may terminate this Agreement, in whole but not in part, upon thirty (30) days' written notice to the Waterloo Community Planning and Development Department (the "Department"). Upon termination of this Agreement for any reason, any improvements made to or upon the Property shall, unless removed by Lessee before the termination date, become the sole property of City, to be used, sold, destroyed or otherwise handled by City at its sole discretion. 4. Lessee agrees to maintain the Property, including but not limited to all required mowing and snow removal on the public sidewalk adjoining the Property along Riverside Drive. This will include reseeding and fertilizing when necessary. Lessee agrees to maintain the Property as a grass area only with any reseeding to be done with bluegrass grass seed only, or other seed approved in advance by the Department. Lessee may establish and maintain a garden on the Property in accordance with plans approved in advance by the Department, and may use the Property for private (non-commercial) recreational purposes, including but not limited to activities such as private recreational fires that meet the requirements of city ordinances, picnics, camping, etc. 5. The Property was acquired by the City through a Hazard Mitigation Grant Program (HMGP) with the Federal Emergency Management Agency (FEMA) and Iowa Homeland Security & Emergency Management Division (IHSEMD). As required by the HMGP, deed restrictions limit the use and maintenance of the Property. A copy of said deed restrictions are attached as Exhibit "B" hereto and made a part hereof by this reference. 1 Lessee shall not use the Property in any manner that is contrary to said deed restrictions. The Lessee shall not construct, place, or allow to be placed any buildings or structures except any incidental park -type structures that are individually and specifically approved in writing, in advance, by the Department. 6. In consideration of the rights and privileges granted to Lessee under this Agreement, Lessee hereby agrees to indemnify and hold the City harmless for any and all liability, claims, demands, actions, causes of action, and/or damages whatsoever, including but not limited to reasonable attorneys' fees, to any person or property which may arise out of or are in any way connected, whether directly or indirectly, with use of the Property by Lessee, its employees, agents or invitees, in any manner, and shall further indemnify the City for any damage to the Property caused by Lessee, its employees, agents or invitees. 7. Lessee shall, at its own expense, procure and maintain insurance in the minimum amount of $500,000 per occurrence, covering liability arising from the acts or omissions of Lessee, its employees, agents and invitees, and shall protect the City against such claims, damages, costs or expenses, including but not limited to reasonable attorneys' fees, on account of injury to any person or persons, or to the property of same, by reason of such casualty, accident or other occurrence on or about the Property during the term of this Agreement. Proof of insurance shall be delivered to City no later April 1, 2012, and for every year that the Agreement is renewed Lessee shall provide proof of continuing coverage before expiration of the policy. The City shall provide no insurance for the specific benefit of the property or activities of the Lessee, its agents, employees or invitees. 8. In the event any other person acquires a right of ingress and egress across the Property with prior written consent of the City, Lessee agrees to be responsible for any additional maintenance which may be necessary, at no cost to the City. 9. Lessee shall comply with all applicable environmental laws concerning application, storage and handling of chemicals (including, without limitation, herbicides and insecticides) and fertilizers. Lessee shall apply any chemicals used for weed or insect control at levels not to exceed the manufacturer's recommendation for the soil types involved. Chemicals may not be stored on the Property. Chemicals used on the Property shall be stored in clearly marked, tightly closed containers. No chemicals or chemical containers will be disposed of on the Property. Application of chemicals for lawn or garden purposes per manufacturer's recommendation shall not be construed to constitute disposal. Lessee shall immediately notify City of any chemical discharge, leak, or spill which occurs on the Property. Lessee shall employ all means appropriate to insure that contamination does not occur, and shall be responsible to follow all applicator's licensing requirements. Lessee shall properly post all fields (when posting is required) whenever chemicals are applied. Lessee shall not dispose of any substances, including but not limited to waste oil, tires, batteries, paint, other chemicals or containers, anywhere on the Property. Solid waste may 2 not be disposed of on the Property. No underground storage tanks shall be placed or maintained on the Property. After termination, Lessee shall remain liable for violations which occurred during the term of this Agreement. 10. The City may enter the Property at any reasonable time for the purpose of consulting with Lessee, viewing the Property, making improvements, or for other reasonable purposes that do not interfere with Lessee's ability to use the Property as provided herein. 11. Lessee shall not lease or sublet any part of the Property nor assign this Agreement to any other person without the prior written permission of the City. This Agreement is personal to Lessee, shall automatically terminate upon any voluntary or involuntary transfer of title to the Lessee's Property, and shall not transfer to any subsequent transferee of Lessee's Property, provided that a transferee shall have a right of first refusal to lease the Property from City, should City desire to lease the Property. 12. Lessee agrees that on termination of the Agreement, Lessee will yield possession of the Property to City without further demand or notice, in as good order and condition as at the beginning of the term of this Agreement. Loss or damage by forces beyond Lessee's control and ordinary wear and tear are excepted. 13. Nothing in this Agreement shall, or shall be deemed or construed to, create or constitute any joint venture, partnership, agency, employment, or any other relationship between City and Lessee nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 14. If Lessee fails to observe any term or condition of this Agreement, it shall be in default of this Agreement, and City may then exercise any and all legal remedies available under applicable law. In the event of default Lessee shall be liable for any and all damage or loss suffered or incurred by City, including but not limited to reasonable attorneys' fees and expenses incurred in connection with the exercise of any right or remedy by City. 15. Any notice under this Agreement shall be in writing and shall be delivered in person or by United States certified mail, postage prepaid, and addressed to the other party at its last known address. Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, or (ii) three (3) business days following the date of deposit if mailed by United States certified mail, postage prepaid. 16. This Agreement contains the entire Agreement between the parties. None of the covenants, provisions, terms of conditions of this Agreement will be in any manner modified, waived, or abandoned, except by written instrument duly signed by both parties. This Agreement is binding upon and shall inure to the benefit of the parties and their respective heirs, personal representatives, successors and assigns. 3 IN WITNESS WHEREOF, the parties have executed this Lease Agreement by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO By: Attest- �izy SchAres, City. Clerk .• ACT<I OWI.PDGMENT: ' 'ST4TE OF IOWA, BLACK HAWK COUNTY, SS: On this day of P,9 -rt) , 2013, before me, the undersigned, a LESSEE By: Janet Kendall -Post Notary Public in and for said County, in sal. d1' State, personally appeared Ernest G. Clark and Suzy Schares to me personally known, who, before by me duly sworn, did say that they are the MAYOR and CITY CLERK, respectively, of said City executing the within and foregoing instrument to which this is attached, that the seal affixed thereto is the seal of said City; that said instrument was signed and sealed on behalf of said City by authority of its City Council; and that the said MAYOR and CITY CLERK, acknowledged the execution of said instrument to be the voluntary act and deed of said City, by it and by them voluntarily executed. LESSEE'S ACKNOWLEDGMENT STATE OF IOWA, BLACK HAWK COUNTY, SS: Acknowledged before me on , 2013, by Janet Kendall -Post. 4 Notary Public EXHIBIT "A" LEGAL DESCRIPTION Lots Nos. 1 and 2 in Block No. 7 in Division "A", Cedar River Park, Waterloo, Iowa; And A part of Division "C" in Cedar River Park in Waterloo, Iowa, described as follows, to -wit: Commencing at the Northeast corner of Lot No. 1 in Block No. 7 in Division "A" in Cedar River Park, Waterloo, Iowa, thence running North along an extension of the East line of said Lot No. 1 to its intersection with a Westerly extension of the North line of Lot No. 4 in Block 36 in Auditor Rainbows Cedar River Park Plat No. 2; thence running Westerly along the extension of the North line of Lot No. 4 in said Block 36 approximately 80 feet to its intersection with a Northerly extension of the West line of Lot No. 2 in said Block No. 7; thence Southerly along said extension of the West line of said Lot No. 2 to the Northwest corner of said Lot No. 2; thence Easterly along the Northerly lines of Lots Nos. 2 and 1 in said Block No. 7 to place of beginning. EXHIBIT "Bee Deed Restriction Addendum Hazard Mitigation Assistance (HMA) Program In reference to the property or properties ("Property") conveyed by the Deed between the property owners indicated below who are participating in the federally -assisted acquisition project ("the Grantor") and the City of Waterloo, Iowa ("the Grantee"), its successors and assigns: WHEREAS, The Robert T. Stafford Disaster Relief and Emergency Assistance Act, ("The Stafford Act"), 42 U.S.C. § 5121 et seq., identifies the use of disaster relief funds under § 5170c, Hazard Mitigation Grant Program ("HMGP"), including the acquisition and relocation of structures in the floodplain; and WHEREAS, the mitigation grant program provides a process for a local government, through the State, to apply for federal funds for mitigation assistance to acquire interests in property, including the purchase of structures in the floodplain, to demolish and/or remove the structures, and to maintain the use of the Property as open space in perpetuity; and 4 WHEREAS, the :tate of Iowa has applied for and been awarded such funding from the Department of Homeland Security, Federal Emergency Management Agency ("FEMA") and has entered into a mitigation grant program Grant Agreement dated June 6, 2008, with FEMA and herein incorporated by reference; malting it a mitigation grant program grantee; and WHEREAS, the Property is located in the City of Waterloo, Iowa, and the City of Waterloo, Iowa, participates in the National Flood Insurance Program ("NFIP") and is in good standing with NFIP as of the date of the Deed; and WHEREAS, the pity of Waterloo, Iowa, has applied for and been awarded federal funds pursuant to an agreement with the State of Iowa dated August 11, 2009 ("State -Local Agreement"), and herein incorporated by reference, making it a mitigation grant program subgrantee; and WHEREAS, the terms of the mitigation grant program statutory authorities, Federal program requirements consistent with 44 C.F.R. Part 80, the Grant Agreement, and the State -local Agreement requii"e that the Grantee agree to conditions that restrict the use of the land to open space in perpetuity in order to protect and preserve natural floodplain values; NOW, THEREFORE, the grant is made subject to the following terms and conditions: 1. Terms. Purs4nt to the terms of the HMG program statutory authorities, Federal program requirements consistent with 44 C.F.R. Part 80, the Grant Agreement, and the State -local Agreement, the following conditions and restrictions shall apply in perpetuity to the Property described in the attached deed and acquired by the Grantee pursuant to FEMA program requirements concerning the acquisition of property for open space: a. Compatible uses. The Property shall be dedicated and maintained in perpetuity as open space for the conservation of natural floodplain functions. Such uses may include: parks for outdoor recreational activities; wetlands management; nature reserves; cultivation; grazing; camping (except where adequate warning time is not available to allow evacuation); unimproved, unpaved parking lots; buffer zones; and other uses consistent with FEMA guidance for open space acquisition, Hazard Mitigation Assistance, Requirements for Property Acquisition and Relocation for Open Space. b. Structures. No new structures or improvements shall be erected on the Property other than: r i. A publip facility that is open on all sides and functionally related to a designated open space or recreational use; ii. A public rest room; or iii. A structure that is compatible with open space and conserves the natural function of the floodplain, including the uses described in Paragraph. 1 .a., above, and approved by the FEMA Administrator in writing before construction of the structure begins. Any improvements on the Property shall be in accordance with proper floodplain management policies and practices. Structures built on the Property according to paragraph b. of this section shall be floodproofed or elevated to at least the base flood level plus 1 foot of freeboard, or greater, if required by FEMA, or if required by any State, Tribal, or local ordinance, and in accordance with criteria established by the FEMA Administrator. c. Disaster Assistance and Flood Insurance. No Federal entity or source may provide disaster assistance for any purpose with respect to the Property, nor may any application for such assistance be made to any Federal entity or source. The Property is not eligible for coverage under the NFIP for damage to structures on the property occurring after the date of the property settlement, except for pre-existing structures being relocated off the property as a result of the project. d. Transfer. FThe Grantee, including successors in interest, shall convey any interest in the Property only if the FEMA Regional Administrator, through the State, gives prior written approval of the transferee in accordance with this paragraph. i. The request by the Grantee, through the State, to the FEMA Regional Administrator must include a signed statement from the proposed transferee that it acknowledges and agrees to be bound by the Perms of this section, and documentation of its status as a qualified conservation organization if applicable. ii. The Grantee may convey a property interest only to a public entity or to a qualified conservation organization. However, the Grantee may convey an easement or lease to a private individual or entity for purposes compatible with the uses described in paragraph (a), of this section, with the prior approval of the FEMA Regional Administrator, and so long as the conveyance does,.not include authority to control and enforce the terms and conditions of this section. 2 iii. If titlerto the Property is transferred to a public entity other than one with a conservation mission, it must be conveyed subject to a conservation easement that shall be recorded with the deed and shall incorporate all terms and conditions set forth in this section, including the easement holder's responsibility to enforce the easement. This shall be accomplished by .one of the following means: a) Thi Grantee shall convey, in accordance with this paragraph, a conservation easement to an ditty other than the title holder, which shall be recorded with the deed, or b) At the time of title transfer, the Grantee shall retain such conservation easement, and record it with the deed. ' iv. Conveyance of any property interest must reference and incorporate the orig'nal deed restrictions providing notice of the conditions in this section and must incorporate a provision for the property interest to revert to the State, Tribe, or local government in the event that the transferee ceases'to exist or loses its eligible status under this section. 2. Inspection. NEMA, its representatives and assigns including the State or Tribe shall have the right to enter upcin the Property, at reasonable times and with reasonable notice, for the purpose of inspecting the!roperty to ensure compliance with the terms of this part, the Property conveyance and bf the grant award. 3. Monitoring and Reporting. Every three years after the date this deed is recorded, the Grantee (mitigation grantprogram subgrantee), in coordination with any current successor in interest, shall submit through the State to the FEMA Regional Administrator a report certifying that the Grantee has insp4cted the Property within the month preceding the report, and that the Property continues to be maintained consistent with the provisions of 44 C.F.R. Part 80, the property conveyance, and the grant award. 4. Enforcement.i The Grantee (mitigation grant program subgrantee), the State, FEMA, and their respective repres§ntatives, successors and assigns, are responsible for taking measures to bring the Property back into compliance if the Property is not maintained according to the terms of 44 C.F.R. Part 80, the property conveyance, and the grant award. The relative rights and responsibilities of FEMA, the State, the Grantee, and subsequent holders of the property interest at the time of enforcement, shall include the following: a. The Statefwill notify the Grantee and any current holder of the property interest in writing and advise them that they have 60 days to correct the violation. i. If the Grantee or any current holder of the property interest fails to demonstrate a good faith effort to come into compliance with the terms of the grant within the 60 -day period, the State shall enforce the terms of the grant by taking any measures it deems appropriate, including but not limited tos bringing an action at law or in equity in a court of competent jurisdiction. . ii. FEMA; its representatives, and assignees may enforce the terms of the grant by taking any measures it deems appropriate, including but not limited to 1 or more of the following: a) Withholding FEMA mitigation awards or assistance from the State or Tribe, and Grantee; and current holder of the property interest. b) Requiring transfer of title. The Grantee or the current holder of the property interest shall bear the costs of bringing the Property back into compliance with the terms of the grant; or c) Bringing an action at law or in equity in a court of competent jurisdiction against any or all of the following parties: the State, the Tribe, the local community, and their respective successors. 5. Amendment. This agreement may be amended upon signatures of FEMA, the State, and the Grantee only to tiie extent that such amendment does not affect the fundamental and statutory purposes underlying the agreement. 6. Severability. Should any provision of this grant or the application thereof to any person or circumstance be found to be invalid or unenforceable, the rest and remainder of the provisions of this grant and their application shall not be affected and shall remain valid and enforceable. GRANTORS ' Sandra A. Schipbjrer Paul H. Schipper 4 GRANTEE City of Waterloo, Iowa By: Title: