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Signed Contracts_CP and DM&E Railroad Crossing Agreement for Bee Branch Creek Project Copyright 2014 City of Dubuque Consent Items # 24. ITEM TITLE: Signed Contracts SUMMARY: Bee Branch Creek Railroad Crossing, Amendment to Service Agreement with Canadian Pacific; Full Circle Organics, LLC Renewal of Agreement. SUGGESTED DISPOSITION: Suggested Disposition: Receive and File ATTACHMENTS: Description Type ❑ Bee Branch Creek Railroad Crossing,Amendment to Service Agreement Supporting Documentation with Canadian Pacific 0 Full Circle Organics LLC Renewal of Agreement Supporting Documentation 4 s ' THE CITY OF Dubuque � All-America CifV DUB E �m 4 Masterpiece on the Mississippi 2007.2012.2013 G. y � TO: Michael C. Van Milligen, City Manage ' y FROM: Gus Psihoyos, City Engineer f DATE: March 13, 2015 i SUBJECT: Bee Branch Creek Railroad Crossing, Amendment to Service Agreement with I Canadian Pacific INTRODUCTION I The purpose of this memorandum is to amend the Service Agreement between the City of Dubuque and Canadian Pacific BACKGROUND j On September 7, 2012 the City entered into a non-binding Memorandum of Understanding (MOU)with Dakota, Minnesota, & Eastern Railroad Corporation, doing business as Canadian Pacific, "the Railroad". The MOU outlined that the City of r Dubuque would "reimburse the Railroad for all reasonable and necessary actual costs and expenses incurred by the Railroad that are in any way related to the planning, design, and/or construction of the (City's Project through the Railroad's property) including, without limitation, any costs or expenses related to engineering, surveying, a drawing, negotiation, review, track work, ,monitoring well abandonment, flagman protection costs, design of new train control signals, equipment, supplies, insurance, personnel, and incidental services associated with the items hereinabove specified." On September 17, 2012 the City Council adopted Resolution 262-12 authorizing the City Manager to enter into the attached Service Agreement and any necessary amendments thereto with the Railroad for the purpose of advancing the design of the City's drainage improvements through Railroad property. DISCUSSION s' On December 17, 2014, the Canadian Pacific (the Railroad) notified the City that it had reached the "Reimbursable Expenses" threshold of$100,000 outlined in the Service Agreement. The Railroad requested that the Reimbursable Expense threshold be increased by $50,000 to cover the Railroad's continued expenses related to the review of the City's project through its property. Based on the changes associated with the City's project (i.e. bridge design review to culvert design review) and because the number of iterations involved were more than anticipated when the original Reimbursable Expense threshold estimate of$100,000 was established, increasing the upper limit on the Railroad's Reimbursable Expense limit is appropriate. Increasing the upper limit will maintain the current momentum and 9 r �i he serve as a catalyst towards obtaining the Railroad's acceptance oft City's y's p roject i design and allow the City to proceed with constructing the improvements through the Railroad's property. The proposed First Amendment to Service Agreement (Amendment) between the City of Dubuque and the Railroad is attached. It was prepared by City Attorney Barry Lindahl and subsequently signed by the Railroad. s The proposed Amendment establishes that the Railroad's reimbursable expenses included in the invoice from the Railroad dated December 30, 2014 includes all l Reimbursable Expenses for the Railroad prior to the date of the invoice. It also establishes an upper limit of$50,000 for all additional Reimbursable Expenses after the date of the invoice. As outlined in the Service Agreement and the Amendment, Reimbursable Expenses will be on the basis of actual costs. I The Service Agreement states that it will expire on February 28, 2013, unless extended by mutual agreement. Therefore, the proposed Amendment also extends the term of the Service Agreement so that it will expire on December 31, 2015. RECOMMENDATION 1 recommend that the City amend the Service Agreement with Canadian Pacific to reflect establish an upper limit of$50,000 for its Reimbursable Expenses incurred after December 30, 2014 and establishing December 31, 2015 as the expiration date of the Service Agreement. BUDGET IMPACT The property acquisition budget for the Bee Branch Creek Restoration Project j (#3401654) includes funding to cover the additional Reimbursable Expenses up to the additional $50,000. REQUESTED ACTION I respectfully request execution of the attached First Amendment to the Service Agreement with Dakota, Minnesota, & Eastern Railroad Corporation, doing business as Canadian Pacific. Attach. Prepared by Deron Muehring Cc: Barry Lindahl, City Attorney Deron Muehring, Civil Engineer i 2 ii FIRST AMENDMENT TO E SERVICE AGREEMENT BETWEEN y THE CITY OF DUBUQUE, IOWA AND DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION , DBA CANADIAN PACIFIC This First Amendment to Service Agreement, dated for reference purposes the day of , 2015, is made and entered into by and between the City of Dubuque, Iowa (City) and Dakota, Minnesota & Eastern Railroad Corporation, dba G Canadian Pacific (CP). Whereas, City and CP entered into a Service Agreement for the Bee Branch Creek Project; and Whereas, the parties desire to amend the Service Agreement as set forth herein. c I, NOW THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES THAT THE SERVICE AGREEMENT IS AMENDED AS FOLLOWS: j 1. In Section 1, the second full paragraph on page 2 related to Reimbursable Expenses is amended to read as follows: I 1 CP submitted to City an invoice dated December 30, 2014 in the amount of $100,499.56, which invoice includes all Reimbursable Expenses for CP Services set forth above incurred by CP as of the date of the invoice. City and CP agree that any additional Reimbursable Expenses for the CP Services set forth above incurred after December 30, t 2014 shall not exceed $50,000 unless this Agreement is otherwise amended. Reimbursement for the Services and Reimbursable Expenses will be on the basis of actual cost of the Services and Reimbursable Expenses to CP. E 2. Section 4 (XI) is amended to read as follows: (XI) TERM. This Agreement automatically will expire on December 31, 2015, unless extended by mutual agreement of the parties or terminated earlier under the terms of this Agreement. 1 I 012215bal CITY OF DUBUQUE, IOWA DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION I dba Canadian Pacific By: _ By: _ Michael C, Van Milligen Curt Whelan `3�,,, 2-/Z-0i City Manager ATTEST: ATTEST: Y V h{ Karin Firrsetahi ( itv Trish L. Gleason , Assistant City erk AW i FAUSERSItsteck1eWndah118EE BRANCH\Bee Branch Ra i[roaffi rstAmendmentToCa nad is nPaeitics erviceAg reement_012215.doex j i i N; Ii ii G 'I II I. I 2 SERVICE AGREEMENT This AGREEMENT made and entered into by and between the City of Dubuque,Iowa ("City"), and Dakota,Minnesota&Eastern Railroad Corporation,doing business as Canadian Pacific("CP"). WITNESSETH: WHEREAS, City is involved in activities to modify storm water drainage by day lighting the Bee Branch Creek("Bee Branch Project')from 15th Street and Sycamore Street to 20 Street and Washington Street all within the city, WHEREAS, City is conducting design engineering of the Bee Branch Project(the "Design Engineering"); WHEREAS,the freight railroad operating property and freight rail operations of CP will be impacted by the Bee Branch Project; WHEREAS,City needs access to CP property and records, and input from CP for design engineering and ultimately requires CP's written approval of the Design Engineering plans; WHEREAS,CP is willing to cooperate with-City's Design Engineering work)provided that CP is fully reimbursed for such services and City is agreeable to proceeding on that basis, WHEREAS, City and CP have signed a Memorandum of Understanding dated September 7, 2012 concerning their mutual roles and objectives for the Bee Branch Project; NOW,THEREFORE, in consideration of the premises and of the mutual covenants and agreements hereinafter contained,the parties hereto agree as follows- SECTION 1. The Parties shall perform the following services. The term"Services" means all services the Parties are required to provide under this Agreement for Design Engineering. The Services specifically excludes the transfer of real property rights, construction, operation and maintenance in connection with implementation of the Bee Branch Project, (1) SERVICES BY CITY. City shall furnish or cause to be furnished,at its sole expense,all the Services required to perform and complete: a. All required design engineering and signal design for the Bee Branch Project, other than that described in paragraph(II)below; and b. Incidental Services necessary to complete the items hereinabove specified. (II) SERVICES BY CP. CP shall furnish or cause to be furnished,at the request and expense of City,the following Services required for City to perform and complete the design engineering plans: a. Physical access to CP property through the issuance of a Release or Right of Entry agreement as appropriate based on the scope of City's work; 9-13-12dlm N b. Flagging protection as required for any work pursuant to this Agreement, � including without limitation in support of survey or geotechnical work; 11 c. Access to property and engineering records; II d. CP minimum engineering design requirements for freight rail infrastructure and other technical guidance; e. Review of Design Engineering plans excluding review of structure plans and calculations; �I t: f. Incidental Services, including supervisory and legal expenses,necessary to complete the items hereinabove specified. CP will make its best effort to provide the Services, as they are requested by City, in a timely manner. i E An estimate of the cost of CP's Services("Reimbursable Expenses')is attached hereto as 1 Exhibit C.The Parties agree the Reimbursable Expenses for the CP Services set forth above shall not exceed$100,000 unless this Agreement is otherwise amended.Reimbursement for the Services and Reimbursable Expenses will be on the basis of actual cost of the Services and SII Reimbursable Expenses to CP. CP may perform the Services through the use of its own forces, CP's preferred service providers, or other providers satisfactory to CP. All Services will be performed in accordance r with CP standards. CP must approve the design of all improvements on CP property. i, I The Parties acknowledge the above-stated limit for the Reimbursable Expenses is based on incomplete information as to the level of effort required of CP and subject to change,through ;i an amendment to this Agreement.Further,at City's request,this Agreement may be amended to a include CP review of structure plans and calculations and other additional services. SECTION 2. CP shall be entitled to payment for the actual reasonable and necessary costs of Services and Reimbursable Expenses, subject to the maximum of$100,000, in j accordance with the"Standard Provisions for Highway-Railroad Agreements"attached hereto as 1 Exhibit A. r SECTION 3. In the event that delays or difficulties arise which in the opinion of City K render it impracticable to proceed with the Project,then at any time City may serve formal notice of cancellation upon CP and this Agreement shall thereupon become null and void, except City shall reimburse CP for all actual reasonable and necessary costs incurred by CP prior to notice of cancellation or which are unavoidable by CP after notice of cancellation has been received. SECTION 4. GENERAL PROVISIONS. (I) FORCE MAJEURE. The obligations of City and CP under this Agreement,other than payment,shall be subject to force majeure(which shall include strikes,riots, floods, accidents,Acts of God, and other causes or circumstances beyond the reasonable control of the Party claiming such force maj eure as an excuse for non- 9-13-12d1m 2 performance),but only as long as,and to the extent that,such force majeure shall prevent performance of the obligations. E (II) ASSIGNMENT. Neither City nor CP may assign or in any manner transfer either 1 in whole or in part this Agreement or any right or privilege granted to it F hereunder,nor permit any person or persons,company or companies to share in any such rights or privileges without the prior written consent of the Parties hereto. This Agreement shall be binding upon and inure to the benefit of,and 1 shall be enforceable by,the Parties hereto and their respective successors and permitted assigns. (III) NOTICE. All notices or other communications required or permitted hereunder { shall be in writing and shall be delivered in person,by a scanned official letter and transmitted electronically or by express mail or courier,or certified or registered mail,return receipt requested,postage prepaid,to the persons specified herein as entitled to receive such notice, or to their duly authorized representative,unless l notice of a change of address is given pursuant to the provisions of this Section. Notices shall be addressed as follows: I i To CP: Dakota,Minnesota&Eastern Railroad Corporation �} __..... _ _. __ .. _._.. .. . __..... Suite 900.1 11 Canadian Pacific Plaza............. _ ... . . __ . . . i �I 120 South 6t'Street Minneapolis,MN 55402 I.I Attn: Curt Whelan To City: !i City of Dubuque Engineering Department 50 W 13'' Street Dubuque,1A 52001 Attn: Steve Brown Subject to proof of earlier delivery or receipt,any such notice,demand,request, consent or approval shall be conclusively deemed to have been given or made on the day upon which same is delivered or, if sent by prepaid registered mail,on the fifth business day following the date of mailing or, if transmitted by electronic means, on the second business day following acknowledged transmission,as the case may be. Any party may,at any time,give notice to the others of any change of address or electronic address. (III) WAIVER. No delay or omission on the part of a Party hereto in the exercise of any right or remedy hereunder shall operate as a waiver thereof,nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. 9-13-12dim 3 Y t (IV) NOT FOR THE BENEFIT OF OTHERS. This Agreement and each and every provision hereof is for the exclusive benefit of the Parties hereto and their h permitted assigns and not for the benefit of any other person. 'I (VI) GOVERNING LAW. This Agreement shall be governed by and construed in accordance with Iowa law. Iowa law shall apply for all purposes,regardless of the venue for the dispute, including without limitation,jurisdiction,venue, P conflicts of law, and choice of law. (VII) CONFIDENTIALITY. All books,manuals,drawings,computer software,other documentation and know-how provided or made available to the City or its representatives pursuant to this Agreement("Confidential Information") is confidential and proprietary,and shall remain the property of CP at all times. City is licensed to use such books,manuals, drawings,computer software and other documentation and know-how as will be supplied to City solely as necessary for the Services. City's right and its obligations hereunder shall be in II r force irrespective of whether such books,manuals,drawings,documents and computer software and know-how have been made by or are the property of CP itself or external consultants, or subcontractors. In no circumstances shall City use or permit others to use any of the books,manuals,drawings,computer software and other documentation or know-how provided pursuant to this Agreement for any purpose other than for the Services. City shall not provide any Confidential Information to third Parties other than as required by law,or make any alterations in any Confidential Information without the prior written consent i of CP. City has advised CP that it is subject to certain public disclosure j requirements pursuant to applicable public records laws. In the event that City receives a request with which it must comply pursuant to such public disclosure requirements for any Confidential Information, it shall promptly advise CP. The y provisions of this Section 4(VII)shall survive the expiration or termination of this j Agreement for any reason. Limitations. In protecting confidential and proprietary information,a Party will use the same reasonable steps that it takes to protect its own confidential and proprietary information. The obligations set forth above in this Section will not apply to information that is or comes into the public domain through no violation of this or any other agreement;that was known to the party from sources other than activities pursuant to this Agreement;that is rightfully received from any third party who is under no contractual obligation to keep such information confidential;that is developed independently by the Party receiving the information without reference to such information,provided that it is developed by persons working for the party who have not had access to such information;or that a Party is required by a court of competent jurisdiction to disclose. Exception. CP agrees that City may furnish a copy of this Agreement and any exhibits and attachments thereto to other parties, agencies or the federal government involved in financing on behalf of the Bee Branch Project,subject to the execution of a confidentiality undertaking substantially in a form as attached hereto as Exhibit B. 9-13-12d1m 4 (XI) TERM.This Agreement automatically will expire on February 28,2013,unless extended by mutual agreement of the parties or terminated earlier under the terms of this Agreement, (XII) This Agreement constitutes the entire agreement between the Parties. No waiver, consent,modification, or change of terms of this agreement shall bind either Party unless in writing and signed by both Parties. Such waiver,modification, or j change,if made, shall be effective only in the specific instance and for the specific purpose given. There are no understandings,agreements, or representations,oral or written,not specified herein regarding this Agreement. IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed in duplicate counterparts,each of which shall be considered as an original by their duly authorized officials as of the dates below indicated. Executed this rday of oc-rosem.,, 2012— DAKOTA,MINNESOTA&EASTERN RAILROAD CORPORATION dba Canadian Pacific Attest: By: Executed this day of.. CITY OF DUBUQUE,IOWA Attest- By: 9-13-12dlm i I I EXHIBIT A STANDARD PROVISIONS FOR HIGHWAY-RAILROAD AGREEMENTS (FEDERAL AID PROJECTS) For the purposes of this Exhibit A, City is referred to as"ROAD AUTHORITY"and CP is referred to as"COMPANY". 1 ;i 1. All COMPANY work shall be performed in accordance with the terms, stipulations and conditions contained in the US Department of Transportation, Federal-Aid Highway Program Manual Volume 1, Chapter 4, Section 3 and supplements to or revisions i thereafter. j I 2. Subject to Section I of this Agreement, the COMPANY, for performance of its work, may bill the ROAD AUTHORITY monthly for the ROAD AUTHORITY'S share of the actual reasonable and necessary costs and expenses incurred. These progressive invoices f may be rendered on the basis of the estimated percentage of the.work completed. The ROAD AUTHORITY after-verifying that the bill is reasonablb and necessary shall q promptly reimburse the COMPANY. j I The COMPANY,upon the completion of its work, shall send the ROAD AUTHORITY a detailed final statement of actual reasonable and necessary expenses it incurred,including allowable additives. After the ROAD AUTHORITY'S representatives have checked the final statement and have agreed that the costs are reasonable and necessary insofar as they are able to ascertain, the ROAD AUTHORITY shall reimburse the COMPANY in the amount,less previous payments, if any,equal to the amount billed. After the ROAD AUTHORITY representatives have audited the expensed incurred by the COMPANY and final inspection of the installation has been made, the COMPANY shall reimburse the ROAD AUTHORITY for any item(or items)of expense found by the ROAD AUTHORITY representatives to be ineligible for reimbursement. 3. It is understood that the project herein contemplated shall be subject to all appropriate Federal laws, rules, regulations, orders and approvals pertaining to all agreements in general. The use of said guidelines for reimbursement between the parties hereto shall not be deemed to require reimbursement of the ROAD AUTHORITY by the Federal Highway Administration as a condition precedent to the ROAD AUTHORITY'S obligation. 4. All work herein provided to be done by the ROAD AUTHORITY or its contractor or contractors on the right-of-way or upon, over, under or across the railroad tracks of the COMPANY shall be done in a manner satisfactory to the COMPANY and shall be I performed at such time and in such manner as not to interfere unnecessarily with the movement of trains or traffic upon the tracks of the COMPANY. The ROAD AUTHORITY shall require its contractors or contractors to use all care and precaution necessary to avoid accident, damage or interference to the COMPANY'S tracks or the trains or traffic using its tracks, and to notify the COMPANY a sufficient time in advance 9-13-12dlm d whenever the contractor is about to perform work adjacent to the track to enable the COMPANY to arrange for the furnishing of flagging and such other protective services as might be necessary to insure safety of railroad operations. i The COMPANY shall have the or ri ht to furnish all such flaggingprotective service as g in its judgment is necessary, and the ROAD AUTHORITY or its contractor or contractors shall reimburse the COMPANY for the cost thereof. Wherever safeguarding of trains or traffic or the COMPANY is mentioned in this agreement, it is intended to cover all users f of the COMPANY'S track having permission for such use. 5. The ROAD AUTHORITY shall require its contractor or contractors,upon completion of the work, to remove all machinery, equipment, temporary buildings, false work, debris and rubbish from COMPANY right-of-way, to provide proper drainage away from q COMPANY track, and to leave the tracks and right-of-way in a. neat condition, r� satisfactory to the COMPANY'S Chief Engineer or his representative. j 1 { 6. Any contract between the ROAD AUTHORITY and its contractor or subcontractor to i r' perform the work herein provided to be done by the ROAD AUTHORITY shall require that the contractor or sub-contractor protect SOO LINE RAILROAD COMPANY, and f any other railroad occupying or using COMPANY right-of-way or lines of railroad with t the permission of the COMPANY, against all loss and damage arising from the activities , of the contractor, its forces, or any of its subcontractors,or agents, and shall further provide that the contractor shall furnish the COMPANY a Railroad Protective Liability Insurance policy providing for protection of the COMPANY, in accordance with the Federal-Aid Policy Guide, Title 23, Part 140, Subpart 1 and any supplements to or revisions unless otherwise noted. The limits of the policy shall be not less than $2,000,000 combined single limit per occurrence for bodily injury, death, property damage and physical damage to property, with an aggregate limit of not less than $6,000,000 per policy period. The insurance policy shall be delivered to and approved by the COMPANY prior to entry upon or use of its property to commence work upon, over, under, across or adjacent to COMPANY tracks by and contractor. 7. Subsequent to the award of any contract, and before any work is started on this project, a conference shall be held between the representatives of the ROAD AUTHORITY, the COMPANY, and the interested contractor at a time and place designed by the ROAD AUTHORITY for the purpose of coordinating the work to be performed by the several parties and at such time a schedule of operation will be adopted. 8. The COMPANY will credit the ROAD AUTHORITY for the salvage value of all track, communication and signal line material used on a temporary basis during the construction 1 of the project and accepted by the COMPANY for return to its stock. I �i li The ROAD AUTHORITY shall be afforded a reasonable opportunity to inspect materials recovered by the COMPANY prior to disposal by sale of scrap. 9. When the roadway is to be closed to vehicular traffic while the railroad work is being performed, the ROAD AUTHORITY at its expense shall furnish, erect, maintain and 9-13-12d1m 7 9 w remove the traffic control devices necessary to detour highway traffic after the ! COMPANY gives two weeks advance notice to the ROAD AUTHORITY'S engineer. When the COMPANY is to perform its work while maintaining highway traffic, the i ROAD AUTHORITY shall furnish or cause to be furnished, at its expense, the signs, barricades and traffic control devices for erection by the COMPANY after two weeks advance notice is given to the ROAD AUTHORITY'S engineer. The COMPANY at the expense of the ROAD AUTHORITY shall erect,maintain,relocate and remove the signs, barricades, and other traffic control devices, including the furnishing of flagmen, as required to maintain highway traffic throughout the time the railroad work is being performed, j i ! a I I ! s i f s � l ii !! I! i i 9-13-12dlm i 1 { EXHIBIT B CONFIDENTIAL UNDERTAKING am an employee of ,for whom I am performing due diligence concerning the potential financing for the City of Dubuque, Iowa("City")for planning,additions and improvements necessary to establish the Bee Branch Project(the"Project"). I agree to be bound by the following conditions. 1. I understand and agree, as a condition precedent to my reviewing the Service Agreement ("Agreement") between the City and Dakota, Minnesota &Eastern Railroad Corporation dba Canadian Pacific ("CP"),that I will take all necessary steps to assure that said Agreement and any exhibits or attachments are kept on a confidential basis by !, me and my employer, and that under no circumstances will I permit access to, or share j said information with, directly or indirectly, any other person or entity. 2. My review of the Agreement will be done solely for due diligence purposes. I agree not to use or to permit the use of any information therein or to use or to permit the use of any methodologies or techniques disclosed or information learned as a result of receiving such data or information,for any purpose other than evaluation of the i aforementioned financing of the Project. I agree that any information I review will not be used for any competitive purpose vis-a-vis CP or any other person or entity. I s 3. 1 understand and agree that money damages would not be a sufficient remedy for breach of this Undertaking and that CP shall be entitled to specific performance and injunctive and/or other equitable relief as a remedy for any such breach. I further agree to waive any requirement for the securing or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive remedy for breach of this Undertaking, but shall be in addition to all remedies available at law or equity. a 8 Signed F Date r t f y F 9-13-12dlm z x EXHIBIT C COST ESTIMATE FOR REIMBURSABLE EXPENSES I Planning&Coordination with City 30 minutes/week/3 people $15,000 Access to Records 20 hours+printing costs $2,500 Access to Property Flagging 10 days @$700 per day $7,000 { Work Plan.Review 25 hours $2,500 �j Technical Input&Review* 150 hours $15,000 Engineering Plan Review** 4 plan sets;2-4 reviewers $24,000 Legal Services&Other Incidentals lump sum 7 500 G Subtotal $73,500 Contingency 30% $22,050 Total $95,550 *Including but not limited to regulatory,engineering,real estate, operations,maintenance and other related technical matters. "This estimate contemplates review of up to four plan sets.Additional submissions for plan review will trigger reassessment of this estimate and possibly a revision to the maximum j reimbursement amount in the Service Agreement. I i (� I i P E 9-13-12d1m 10 Dubuque THE C kK1&z4_ All-ftfta City DUUB�QFE Masterpiece on the Mississippi 2007.2012.2013 March 13, 2015 Max Milinkovich, President Full Circle Organics, LLC. 5029 13TH Avenue South Minneapolis, MN 55417 RE: Agreement Between Full Circle Organics, LLC and the City Of Dubuque, Iowa - Notice Of Renewal Of Agreement Dear Mr. Milinkovich: Pursuant to Section 1 of the April 15, 2013 Agreement, notice is hereby given that the City of Dubuque hereby renews the Agreement for a two-year term commencing July 1, 2015 and terminating June 30, 2017. Sincerely, Michael C. Van Milligen City Manager MCVM:tIs 1 A ' Dubuque THE CITY OF DUBUMr-, AI[-kn3e�ea Cify s Masterpiece on the Mississippi 2007.2012.2013 TO: Michael C. Van Milligen, City Manager r FROM: Don Vogt, Public Works Director SUBJECT: Extension of Agreement With Full Circle Organics LLC DATE: February 13, 2015 i INTRODUCTION lik The purposes of this memorandum are to provide information and recommend action regarding the City of Dubuque's yard debris and food residual composting agreement with Full Circle Organics LLC (FCO). ('I BACKGROUND The agreement, approved by the City Council on April 15, 2013, provides for the City of Dubuque to deliver a minimum of 800 tons of yard debris and food scraps annually to FCO's composting facility west of Epworth. The tonnage fee charged by FCO is not. only less than that charged by the Dubuque Metropolitan Area Solid Waste Agency's composting facility, but more importantly, the FCO facility is allowed by the State of Iowa to accept any and all food residuals delivered to it by City collection trucks. DISCUSSION The FCO agreement expires at midnight on June 30, 2015. However, it does allow the j City to unilaterally lengthen the agreement up to an additional eight years through four two-year extensions. The City can do so by providing "written notice of renewal not less than ninety (90) days prior to the expiration of the Term...". i 1 do recommend that the City extend the agreement, primarily because the City's food residual collection-for-composting program requires access to the FCO facility. In anticipation of your approval of the recommended course of action, the attached Notice of Renewal of Agreement letter has been prepared by City.Attorney Barry Lindahl. Also attached is a copy of the original agreement. ACTION STEP Your approval of the attached agreement renewal letter to FCO is recommended. Attachments e t' AGREEMENT BETWEEN FULL CIRCLE ORGANICS, LLC F AND THE CITY OF DUBUQUE, IOWA THIS AGREEMENT, dated for reference purposes the 15th day of April , 2013, is made and entered into by, between, Full Circle Organics, LLC (Contractor), and the City of Dubuque, Iowa (City). WHEREAS, City desires to significantly increase the diversion of compostables from the solid waste stream it delivers to the Dubuque Metropolitan Area Solid Waste Agency (DMASWA) Landfill; and WHEREAS City desires to maintain the State of Iowa mandated 25% diversion of solid waste and eventually achieve the State of Iowa 50% diversion goal; and I� WHEREAS, City desires to reduce overall costs of transportation and processing of compostables; and I j WHEREAS, City desires to enable development of a sustainable composting infrastructure in order to provide local competitive hauling and composting processing services, support green jobs and local economic development, and WHEREAS, Contractor has the only permitted Municipal Solid Waste Composting Facility in Dubuque County capable of providing comprehensive processing and marketing services that can utilize large volumes of compostable paper, bioelastics, food scraps and residual food discards (Source Separated j Organics); and WHEREAS, City and Contractor desire to reduce greenhouse gas emissions impacting global climate change and to conserve energy and natural-resources for use by future generations; and ii I WHEREAS, City proposes to contract with Contractor for receiving, and r processing Acceptable Compostable Materials subject to the terms and conditions set out below; and G WHEREAS, the City Council finds that the Agreement is in the best interests of the City of Dubuque. E 'NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS: 031313bal SECTION 1. TERM OF AGREEMENT. The term of this Agreement shall be from April 1, 2013 until midnight June 30, 2015 (the Term), unless earlier terminated pursuant to this Agreement. City may, at its option, renew this Agreement for four (4) two-year terms by giving Contractor written notice of renewal not less than ninety (90) days prior to the expiration of the Term or any renewal of the Term. SECTION 2. DEFINITIONS. For the purpose of this Agreement, the following terms shall have the following meanings: 2.1 Holidays. Holidays are those days identified on the City's Holiday Schedule. 2.2 Composting Facility. Composting Facility shall mean the Contractor's facility leased by Contractor from Midwest Organics Solutions, a copy of which lease is attached hereto as Attachment B (the Lease), maintaining a MSW Composting Permit issued by IDNR, located at 10166 Hartbecke Road, Farley, IA 52046. 2.3 Acceptable Compostable Materials. Acceptable Compostable Materials means compostable materials collected from "curbside" residential, institutional, and commercial organics diversion programs and also compostables collected from event programs which shall not interfere in any way with the composting process. These are uncontaminated materials including Food Scraps, Compostable Paper, Compostable Bioplastics, Yard Debris, Untreated Wood, all products approved by bpiworld.orq and other materials as mutually agreed upon in writing by City and Contractor. Acceptance of previously agreed upon Acceptable Compostable Materials may be terminated as mutually agreed upon in writing by City and Contractor. 2.4 Food Scraps. Food Scraps mean all food residuals, such as coffee grounds, plate scrapings, leftovers, spoiling produce and includes meat and bones. 2.5 Compostable Paper. Compostable Paper means all food soiled paper products, paper cups and plates, paper towels, paper placemats, paper napkins, paperboard milk and juice containers, paper bags, pizza boxes, other paper food containers, coffee filters, teabags, waxed cardboard and paper vacuum cleaner bags. 2.6 Compostable Bioplastics. Compostable Bioplastics means plastic products, primarily film bags, designed to biodegrade quickly, completely and safely, when composted in well-run municipal and commercial facilities. A logo on the product listing certifications of ASTM D6400 and / or ASTM D6868 provides assurance of compostability. 2.7 Yard Debris. Yard Debris means leaves, prunings, grass clippings, plants, non- noxious weeds, pine cones, pine needles, fallen fruit, garden culls, bark, sod, soil, flowers, pumpkins, gourds, corn stalks, straw, natural Christmas trees, floral trimmings, 2 ti I'll, G .fes brush and woody material up to 36 inches in diameter and 8 feet in length. i 2.8 Untreated Wood. Untreated Wood means natural wood and lumber that has not been pressure treated with chemicals or coated with paint or other materials. �I 2.9 Unacceptable Materials. Unacceptable Materials means either materials that il.. are not Acceptable Compostable Materials, or Compostable Materials with unacceptable packaging not removed or that are not free from hazardous and or toxic substances as identified in writing by Contractor. Specific Unacceptable Materials include pure liquids, pet waste, diapers, plastic containers, plastic bags and plastic C wrap. Full Circle Organics, LLC may perform testing it deems advisable at the expense of Full Circle Organics, LLC. Entire truckloads of delivered materials shall be considered as Unacceptable Materials when they contain prohibited materials or out- throws of more than 5% by volume by visual estimation. 2.10 Residual Materials. Residual Materials means materials that are not fully !� decomposed in Contractor's composting process and therefore not marketed as compost. The most current overall Residual Materials rate from Contractor shall be reported to City on a monthly report. These Residual Materials shall contain no more than 5% Acceptable Compostable Materials of the volume of residual materials that is landfilled. 2.11 Compost. Compost means organic matter feedstocks that have been decomposed and recycled. It has some nutrient value, amends soil, increases the soil water holding capacity and can help reduce soil erosion. SECTION 3. CONDITIONS PRECEDENT. The City shall not be obligated to perform under and may terminate this Agreement unless: (1} Certificates of insurance acceptable to City are provided by Contractor to City and are in effect at all times during the Term or any renewal; and (2) The performance bond in a form acceptable to City required by Section 12.1 is provided by Contractor to City and is in effect at all times during the Term or any renewal. (3) The Lease is in effect at the time of commencement of this Agreement and remains in full force and effect at all times during the Term of this Agreement. SECTION 4. GENERAL DESCRIPTION OF SERVICES. Contractor and any approved subcontractors shall receive, process and market Compost in accordance with this Agreement. 3 SECTION 5. RECEIVING COMPOSTABLE MATERIAL. 5.1 Receiving Schedule. The Compost Facility shall be open for business and capable of receiving Acceptable Compostable Materials Monday through Friday and Saturdays except Holidays. Hours for receiving shall be from 8:00 a.m. to 3:30 p.m. City reserves the right to re-designate the collection day to replace collections which occur on Holidays and to designate additional Holidays. 5.2 Planned and Unanticipated Shutdowns. Contractor shall make provisions for receiving Acceptable Compostable Materials from City during any planned or unanticipated delay in opening, shutdowns, maintenance, or renovations at the Compost Facility. Contractor shall provide written notice to City at least sixty (60) days in advance of any substantial change in the receiving schedule for receiving and processing Compostable Materials. 5.3 Reiection Procedures. If any materials are not acceptable because Contractor claims they include too great a quantity of materials (over 5%) or significant problem materials or toxic materials which are not Acceptable Compostable Materials, a second opinion shall be provided by a Contractor supervisor before rejecting the materials. Contractor shall then immediately notify City to review the alleged problem and to discuss a resolution. With City's consent, rejected whole or partial truckloads shall be reloaded onto City trucks and hauled off the Contractor premises, or set aside at Contractor's facility for not more than two working days. City shall either divert or dispose of the rejected material at its own expense or remove and dispose of a sufficient quantity of contamination in order to upgrade the materials to become Acceptable Compostable Materials for processing by Contractor 5.4 Weighing of Acceptable Recyclable Materials. City shall weigh loads at the Contractor's Facility or any other certified scale acceptable to City to establish the net weight delivered to the Compost Facility. Weight tickets shall be generated automatically.without requiring manual weight data entry. Contractor shall provide City with daily copies of all weight tickets after weighing out. Procedures for establishing empty truck weights shall be mutually agreed upon in writing by City and Contractor. Contractor shall maintain records of each load from City by date, time and net weight. Contractor shall provide City with monthly reports of the total weight delivered to the Compost Facility from all sources. Contractor shall provide City with a monthly report of all deliveries and total incoming weights. 5.5 Unloading of Acceptable Compostable Materials. City shall be responsible for unloading Acceptable Compostable Materials at the Compost Facility. Contractor shall cooperate with and assist City by providing the personnel, equipment and space necessary to unload Acceptable Compostable Materials which will enable City Sanitation Drivers to operate in a safe and timely manner. City shall be required to follow all mutually agreed upon tipping floor procedures while on Contractor's 4 . Y premises. City shall be responsible for entering and exiting Hartbecke Road to or from US Highway 20. City shall require of its drivers that upon exiting the Compost Facility, its triple axel vehicles must turn right onto westbound US Highway20. i is 5.6 Title to the Acceptable Recyclable Materials. City shall retain title to all Acceptable Compostable Materials until Contractor accepts such materials. SECTION 6. STORAGE AND PROCESSING OF ACCEPTABLE COMPOSTABLE MATERIALS. Contractor shall be responsible for any and all storage and processing of Acceptable Compostable Materials that are necessary to meet market specifications and all costs associated with storage and processing of Acceptable Compostable Materials received from City. SECTION 7. OWNERSHIP OF THE COMPOST FACILITY. Contractor shall at all times during the Term of this Agreement or any renewal be either the owner or the lessee of the Compost Facility and shall be responsible for any and all expenses incurred to operate and maintain the Compost Facility, transport Compostable Materials to an approved subcontracted y pp Compost Facility, all processing costs associated with any approved subcontracted Compost Facility, and any and all transportation costs to ship materials to end markets. SECTION 8. PROCESSING AND MARKETING COMPOST FROM ACCEPTABLE COMPOSTABLE MATERIALS. 8.1 Contractor shall be responsible for marketing Compost processed from Acceptable Compostable Materials. Contractor agrees to use its best efforts to effectively compost, or subcontract to compost, and market all Compost processed from Acceptable Compostable Materials at an optimal value. r' 8.2 City shall have the right, during the Term. of this Agreement, to have a representative enter upon the Compost Facility to monitor Contractor's compliance with this Agreement. Use of recording devices by City at the Compost Facility shall be allowed by Contractor. City's representative shall provide reasonable notice to I' Contractor, shall only be allowed on the Compost Facility during normal business hours, and shall follow all Contractor safety procedures. 8.3 City shall have the right, during the term of this Agreement, to monitor the performance of Contractor against goals and performance standards required in this Agreement. SECTION 9. UNACCEPTABLE AND RESIDUAL MATERIALS. 9.1 Reiecting Unacceptable Loads or Commodities. Contractor shall have the right to reject any Unacceptable Materials in accordance with the Rejection Procedure. 5 Contractor shall be responsible for disposing of Unacceptable Materials at Contractor's expense if such Unacceptable Materials are accepted at time of delivery by Contractor. Unacceptable Materials must be disposed of at the Dubuque Metropolitan Area Solid Waste Agency Landfill. 9.2 Limitation of Unacceptable Materials. Unacceptable Materials in any delivery by City shall not exceed 5% by volume. In the event that Unacceptable Materials content in any delivery exceeds 5% by volume, Contractor will notify City. Contractor may offer to remove the Unacceptable Materials and charge City $50 for special handling or follow the Rejection Procedures in Section 5.3. 9.3 Measuring Process Residuals. Contractor shall provide City with a written description of the means used to measure or estimate any disposal of residuals derived from processing Acceptable Compostable Materials. One acceptable method is to weigh the contents in the on-site MSW dumpster required in the IDNR permit on the FCO scale when collected for off-site disposal. Such written description shall be reviewed and approved by City and shall be updated by Contractor immediately after any significant changes in subcontractors, or in the processing facilities and equipment. Contractor shall report the quantity and rationale for any significant change in each month's residuals on a monthly report. SECTION 10. LANDFILLING ACCEPTABLE COMPOSTABLE MATERIALS. Contractor or its subcontractors shall not dispose of any non-contaminated Acceptable Compostable Materials without the written authorization of the City. Upon receipt of written authorization from City, the Acceptable Compostable Materials shall be disposed of at the Dubuque Metropolitan Area Solid Waste Agency Landfill. SECTION 11. MINIMUM VOLUME AND TERMS OF PAYMENT. 11.1 Processing Fee. The Contractor Processing Fee is $15.00 per ton for receiving and processing the first 1,300 tons of Acceptable Compostable Materials. The Contractor Processing Fee for tonnage received in excess of 1 ,300 tons in the Fiscal Year is $13.00 per ton. 11.2 Minimum Tonnage. City shall provide a minimum of 800 tons of Acceptable Compostable Materials in a City Fiscal Year commending July 1, 2013, If the minimum tonnage is not delivered, City will pay Contractor the difference in the Processing Fee between the tonnage delivered and 800 tons in the Fiscal Year at $7.50 per ton, due and payable 30 days following the end of the Fiscal Year, 11.3 Settlement. Contractor shall be responsible for maintaining adequate records to submit Processing Fee information to City by no later than the fifth (5th) day of each month. City shall pay any amount due to the Contractor on a net forty-five (45) day 6 I' basis following the previous month's deliveries of Acceptable Compostable Materials. SECTION 12. PERFORMANCE GUARANTEE. 12.1 Performance Bond. Contractor shall provide a performance bond in a form acceptable to City to insure Contractor's performance under this Agreement. The performance bond shall be renewed annually and shall be in an amount equivalent to the projected total Acceptable Compostables hauling and disposal costs for the following 12 months of operation, which City estimates will not to exceed $100,000. 12.2. Payments Withheld. Contractor agrees that, in addition to any other remedies available to City, City may withhold any and all payments due to Contractor as City deems appropriate in City's sole discretion for failure of Contractor to fulfill its obligations under this Agreement. SECTION 13. INSURANCE. Contractor shall provide insurance as set forth in the attached Insurance Schedule, Attachment A. SECTION 14. EDUCATION. Contractor shall cooperate with City to increase awareness about composting and diversion of Source Separated Organics to beneficial use in an effort to increase the amount and quality of materials collected and delivered to Contractor's facility. Contractor shall participate in City's composting education and promotion programs as well as initiate its own programs. City staff may assist with educational presentations at Contractor's Facility. Strategies to promote composting shall include offering competitive compost processing services to area haulers and generators, presentations to school and adult groups, participation in local business and other organizations such as Sustainable Dubuque and the Chamber of Commerce, and local media campaigns. SECTION 15. PERFORMANCE OF THE AGREEMENT. 15.1 Necessary Labor, Material, and Equipment. Contractor shall supply all labor, material and equipment necessary for the carrying out of Contractor's duties and responsibilities under this Agreement. 15.2 No Claims. Contractor agrees to,pay in a timely manner all persons doing work or furnishing skill, tools, machinery, or just claims for such work, material, equipment insurance, and supplies in the performance of this Agreement. 15.3 Indemnification. Contractor agrees to take all precautions to protect the public against injury, and to defend, indemnify and hold harmless the City of Dubuque, its officers and employees, from and against any and all claims that may arise by reason of the negligence, recklessness or intentional misconduct of Contractor or its agents or employees in the performance of this Agreement. 7 SECTION 16. RECORDS, REPORTS, AND PERIODIC MEETINGS. 16.1 Generally. Contractor shall establish and maintain digital and paper records which shall be open to inspection by City of all financial and operating information related to the Acceptable Compostable Materials delivered to it. The records shall include insurance and any regulatory inspection records, quantity by weight of Acceptable Compostable Materials delivered, and the records of all off-site shipments, tonnage, transfers and diversion for other processing made from or including Acceptable Compostable Materials. 16.2 Report to City. Contractor shall submit a completed monthly report to City within five (5) days after the end of each month, which shall include the tonnage delivered during the month, along with any and all tons of material (1) incoming for processing or distribution, (2) shipped off-site for compost processing, (3) marketed by compost specification or commodity, (4) sold or disposed for beneficial use other than as compost, or (5) landfilled. 16.3 Inspection of Records. City or an authorized representative of City shall have the right to inspect the records of Contractor relating to its performance under this Agreement upon reasonable notice to Contractor. 16.4 Periodic Meetings. Contractor and City shall meet as needed to discuss any issues arising under this Agreement, confer on potential efforts to improve quantities and quality, and evaluate the status of future composting activity. SECTION 17. SAFETY. Contractor shall provide and maintain all sanitary and safety accommodations and protocols for the use and protection of its employees as well as employees of City as may be necessary to provide for their health and welfare and shall comply with all federal, state and local codes and regulations. SECTION 18. NONDISCRIMINATION. Contractor agrees that, during the Term of this Agreement or any renewal, Contractor shall not discriminate against any employee or applicant for employment because of race, color, creed, gender identity, sexual orientation, national origin, age, physical or mental disability, or political affiliation, and shall include a similar provision in all subcontracts entered into in the performance of this Agreement. SECTION 19. COMPLIANCE WITH LAW. Contractor shall comply with all applicable state and local law, regulations and ordinances. SECTION 20. GOVERNING LAW. This Agreement shall be governed in all respects by the law of the State of Iowa. 8 i SECTION 21. NOTICE. All notices required by this Agreement to be served on or delivered to a party shall be in writing and delivered by hand as follows: If to Contractor: Mr. Max Milinkovich, President Full Circle Organics, LLC. 5029 13T" Avenue South Minneapolis, MN 55417 If to City: Mr. Paul Schultz, Resource Management Coordinator City of Dubuque 925 Kerper Court Dubuque, Iowa 52001 SECTION 22. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon Contractor, its successors and assigns. SECTION 23. NOWASSIGNABILITY. 23.1 Contractor. Contractor shall not assign or transfer this Agreement or any part of its interest in this Agreement nor shall Contractor assign any monies due or to become due under this Agreement without City's prior written consent. Contractor acknowledges that City has no obligation to give such consent and may withhold such consent for any reason it deems proper. 23.2 Subcontractors. Contractor shall not enter into subcontracts for any of the services provided for in this Agreement without the prior written consent of City. SECTION 24. CONFLICT OF INTEREST. Contractor agrees that no member, officer, or employee of the City of Dubuque shall have any interest, direct or indirect, in C; this Contract or the proceeds thereof. A violation of this provision shall cause this Agreement to be null and void and Contractor shall forfeit any payments to be made under this Agreement. SECTION 26. SEVERABILITY. All parts and provisions of this Agreement are severable. If any part or provision shall be held invalid, the remainder shall remain in effect. SECTION 26. TERMINATION. i% 26.1 This Agreement may be terminated by City under the following conditions: (1) In the event of fraud, misrepresentation, or breach of any of the material terms of this Agreement by Contractor or in the event that Contractor becomes insolvent, is dissolved or is named as a party in a proceeding under any 9 ��> bankruptcy or insolvency laws. Prior to such termination, City shall deliver written notice of its intent to terminate and the grounds therefore, and Contractor shall have fourteen (14) days to cure said deficiencies to the satisfaction of City; or (2) If Contractor fails to obtain or maintain any of the insurance or security required by this Agreement. 26.2 This Agreement may also be terminated upon mutual written agreement of the parties at any time provided the termination shall not take effect less than 60 days after the date of such agreement. SECTION 27. ENTIRE AGREEMENT. This Agreement, with attachments incorporated herein by reference, constitutes the entire agreement between the parties. No modifications of this Agreement shall be valid or effective unless made in writing and signed by the parties hereto. CITY OF DUBUQUE FULL CIRCLE O NILS, LLC, By: By: Michael C. Van Milligen Nlax Milinkovich City Manager President By__ ­ Keylln Firnstahl City-Clerk 10 ATTACHMENT A � INSURANCE SCHEDULE f I f I c i I` G= i h 11 �` 1 City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or Vendors (Suppliers,Service Providers) Insurance Schedule A 1. shall furnish a signed Certificate of Insurance(COI)to the City of Dubuque,Iowa for the coverage required in Exhibit I prior to contract or lease commencement.All lessees of City property 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. 2. All policies of insurance 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.Best'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 policies shall be attached to Certificate of insurance. 6. Whenever a specific ISO form is listed,an equivalent form may be substituted subject to the provider identifying and listing in writing all deviations and exclusions that differ from the ISO form. T Provider shall be required to carry the minimum coverage/limits,or greater if required by law or other legal agreement,in Exhibit I. Pagel of3 Schedule A,Property Or Vendors(Suppliers,Service Providers)December,2012 12 1, A) COMMERCIAL GENERAL LIABILITY E'> I General Aggregate Limit $2,000,000 Products-Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,OOo,0oo Each Occurrence $1.,000,000 Fire Damage Limit(any one occurrence) $ 50,000 . Medical Payments $ 5,000 a) Coverage shall be written on an occurrence,not claims made,form. All deviations from the standard ISO commercial general liability form CG O001,or Business owners form BP 0002, shall be clearly identified. b) Include ISO endorsement form CG 25 04"Designated Location(s)General Aggregate Lirnit.." c) Include endorsement indicating that coverage is primary and non-contributory. d) Include endorsement to preserve Governmental Immunity.(Sample attached). e) Include additional insured endorsement for. The City of Dubuque,including all its elected and appointed officials,all its employees and volunteers,all its boards,commissions,and/or authorities and their board members, employees and volunteers. �c using ISO form CG 2010. Ongoing operations. � i" r; j: B) WORKERS' COMPENSATION&EMPLOYERS LIABILITY Coverage A Statutory—State of Iowa Coverage B Employers Liability Each Accident $100,000 Each Employee-Disease $100,000 Policy Limit-Disease $=500,000 a) Policy shall include an endorsement providing a waiver of subrogation to the city of Dubuque. i Page 2 of 3 Schedule A, Property Or Vendors(Suppliers,Service Providers)December,2012 (i 13 City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or Vendors(Suppliers, Service Providers) Preservation of Governmental Immunities Endorsement 1. Nonwaiver of Governmental immunity.The insurance carrier expressly agrees and states thatthe purchase of this policy and the including of the City of Dubuque,Iowa as an Additional insured does notwaive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coverage.The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time.Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity,The City of Dubuque,Iowa shall be responsible for asserting any defense of governmental immunity,and may do so at any time and shall do so upon the timely written request of the insurance carrier. 4. Non-Denial of Coverage.The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque,Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s)of governmental immunity asserted by the City of Dubuque,Iowa. No Other Change in Policy.The above preservation of governmental immunities shall not otherwise change or alterthe coverage available under the policy. SPECIMEN Page 3 of 3 Schedule A,Property Or Vendors(Suppliers,Service Providers)December,2012 14 f COMMERCIAL GROSS LEASE r 1.Names. This louse is made by A, Col ,ifde fuTd Ka:Landlortl.and t11� t�" tC ! Tenant. I Premises Being Lend. Landlonl is leaving to Tenant and Tenant is leasing from Landlord the following premises: �I' --- �,.'L�-..J.Z�cf'��.�a��c;t.,tf ri.�` ,�Ld/�s .�Ya�•^'��d a ,���z,... [ j Part of Building fJnly,Spec ificatly,'lenant is leaning thi Shared FRellitles.Tenant raid'T'enant's employees and customers may Ilse file follnwieg Additional facilitles in common with other WAnts,employees,mud custoancn; L, j Parking space., [xj Rcstrooni facilities' [X] Storage areas: _ I' I 1,Fj Hallways,,twirwuys,and elevators: I kl Conference rooms: 1 Other _.. i= 3.Term of Lease. This lea a begins on 1'G�i�� e�11I-Y—_nd ends on I 4.Rant, Tenant will p,ay rcpt in advance en the day of t:ac:la month. Tenant's First rent p:tyracut will be an y is 1 a the amount of 3 t« _, Ttmnnt will pay rent nP S. f per f wjohh thereafter, is Tenant will pay this r@nlal amount for the entire term of the lease, _ I l Rent will Increase each year,un the anniversary of the starring dttto in paragraph 3.as follows- 5.Option ollows-5.Option to Extend Lrasc [ j Pirst Option.Landlord graatg Tenant the option to extend this leue tzar as additional_ __years.TA exemia this option,Tenant moot give Lmndiorti write a uuticc on or before Tenant rnuy exercise this option only if Tenant is in substantial cttrrtpliance with the terms of this least:.Tenant will lease the prerniscs on the same terms as in this lr.A:a:except aus follows: f l Second Option.It'Tenant exereiwg the option granted abuve,Tenant will then have the option to extend this lease for yutus beyond the first option porion,To exercise this option,Tenuot must give Landlord writers nolico on or before r `leaatu nary cxcrcisc this option only if Tenant is in substantial compliunuu with the terms of this lease.Tenant will lease the premises on the same terms as in this 14►tsc except as follows; b.Secority Deposit. 'tenant hat deposit0d 6 _ with(Andlord as security for Tenant's perfonmanac;of this lease.Land- lord will refund the full security deposit to Tenant within 14 duys following the end of the lease if Tcntnit returns tile,premises to I Andlurd www.nolo,t:om t;ommpn;t,tl(;roes L.cncc-Pegc 1,)(4 6 IT '��5td T0:00 £T0Z'LZ*IRW itt good condition(cxcepl for reasonable wear and tear)and Tenant has paid Landlord all sums due under this lease,Otherwise,Landlord may deduct any amounts required to place the premtsee in good condition and to pay for any money owed to Landlord under the lease, 7,lmptovemenbt by Landlord [ ) Before tho lease term begins,Lundlnrd(at Landlord's expense)will make the mpairs tend itttprnvomcoLs listed in Attachment 1 to this contract. [�(J Tenant accepts the promises in"as is"condition,landlord need not provide any repairs or lmprovements before the lease corm bcgias. 8.Improvements by Tenant, Tenant may make alterations and improvements to the premist�s utter obtaining the Landlord's written con- sont,which will not be unreasonably withheld,At any time before this lease ends,Tenant may remove any of Tenant's ahcration);and improvements,as long as Tenant repairs tiny damage caused by attaching the items to or ron,oving thein ft'om the premise,,, 9,Tertnn!'s Tlve of j-,immises, Tenatlt will use the p„ctniscs for the ibtlbwing business puritttses: dS 7�,x, Tenant may also use the premises for purposes reasonably related to the main use. 10,Landlord's Representations, Landlord roprewnty th'ar: A„ At the beginning of die lease term,the premiycs will be properly zoned ftlr nOlult'S stated use and will be in compliance with all applicable laws and regulations, B. The premises have not been used fot the storage or di,pusal of any Wxic or hazardous substance,and Landtord has received no notice ftrnn any governatenhd authority conecndng retlloval of any toxic or hnzardotis substance from the property, ll.Utilities and Serviced. Landlord will pay for the following utilities and services: [YI Water [.NJ Electricity ( ) Gas �k9 Heat [�] Air-Gonditloning Any items not checked will be the regponsibility or Tbilant. 12.Maintenance and Repairs A. Landlord will maintain and make all necessary repairs to:(l)the roof,structural components,exterior wulls.and iaterior com- mon walls of the pnnnises,and(2)the plumbing,electrical,heating,ventilating,and air-conditioning systems. B. Landlord will regularly clean and m2intain(including snow removal)the parking areas,yards,common atoms,and exterior of the building And remove all litter so that the premises will be kept in an attractive condition. C. Teruo will ulcan and maintain 11;nant's portion of the building so that it will be kept in an attractive condition. 13.lnsurance A, 1.Andlord will carry fire and extended coveroga insurance on the building. B. Tenant will carry public llubility insurance;this insurance will include Landlord as an insured party.The public liability coverage for personal injury will be in at least the following amounts: par occurrence. " 5 in any one year, C, Landlord and Tenant releaRe each other from any)lability to the nther for any property loss,prolretty damage,or personal injury to the extent covered by insurance e-arriW by the party Suffering the loss,damage,or injury. D. Tbnant wilt give Landlord a copy of all insozsnce potiCiei+that this hasp requires Tenant to obtain. 14.Taxes A. Landlord will pay all real property taxes levied and assessed against the premises, B. Tenant will pay all personal property taxes luvied and assessed against Tenant's personal properly, OMMCMIM ossa Lce:,a.Pu n 2 of a T7 /Z aDVd TO:OO ETOZ'LZ,aVW F.'r. e tl address that a party designates In wridtig,A iloliCe may he delivered: (1)in person (2)by certified mull,or (3)by overnight cuu icr. 26.Governing Law, Thls lease will be governed by and construed ikt ue:eurdance with tht laws of the sttru:of 27.Counterparts. Tho parties may sign Y Y g p Y several identical cpunittPftds of this louse.An fall Signed counterpart shall he treawd as an original, �i l i; 28.Modificatian,"Earls lease may be modified only by a writing signed by the party againCl whom such modification is sought to be enforced. 29.Waiver, If one party wuives any term or provision of this lease:at ally time,that waiver will he ct'tective only for the specific instance and Specific purpoko fur which the waiver was given.if either party tails U)cxcrursunr delays Gxrreistng any of it,,;rights or rrmcclier under this lease,tater party retains The right to enforce that term or provision at a later time. �= 30,Se'verability, If any court determines that any provision of this lease is invalid or uhenfcaecable•_any invalidity or unenfna:e ability will aflGct only drat I'Mvision and will not make any other provision of this lease invalid or unenforceable,tend shall he modified,amend. ed,or limited only to the extent necessary to rendtr it voted and onl'urecuble. Dated; p7Ole LANDLORD 1 LIVANT Name of alisineSS:. .C7 A+t Name of Business: ... at 4ree, 13 Tt Printed Name vC'. &_v/0-.5 printed N t%'� Tidc: _ Title: - t Addrec3: , �.r'. rs Address: f; C I GUARANTOR By signing this Mkt,I personally guarantee the perfennanoa of all financial obligations of__,• undar this lease, Dated: Printed Name_ Title: Address: Commercial Gross Lease-Page d of A TO:00 ET02`Li?'x1RK �` 15,Subletting and As.signment. '14nant will not assign this lease or mublet any pert of the promises without the written consent of Landlord,l.;tndlord will not unreusonably withhold such consent. 1.6,ryamugu to Frourises A. If ft prealiscs ort:dnmagmi Lhcough firt!or other cause not the(atilt of Tenant,Tomtit will owe no mot for any period during which Tananr is suhsinntinily deprived of the use Ilf the prctniscs. B. if Tcnnnt is substantially deprived of the use;of the prcmises for more than W days because of such damnge,'I enant may lermf•- nate thls lettse by delivering written notice of termination to Landlord. 117.Notice of Default. before starting a legal action to recover of tilt pr•enlisrs bttsvd un Tunlml's default,Laudlortl will notify Tenant in writing ill'dh)default,l.andlord will take legal action only if Tetuan docs not correct the default within ten days after written notice is given nr auailod to Tenant. S,Quiet Enjoyment. As long as Tonant is not in default under lite terms of this lense,'l'enant will have the right to occupy the premises pcacmlllly and without interference. 19,EAnineul llaulain. This lapse will bucunra will it';illy port of ilio Icased premises or the building In which the leased premises arc 1(s;atzd are taken by eminent tlonwin.Tenant bus bac right to receive and keep any amount of Money that the agency taking the premises by omillent dumaitr Pays fur tI14 value of Tenant's Icasc,its loss of business,and for moving and relocation expenses. 20,Holding Over. If Tenant remailm ill po\seRRioll aftel'Alis lease lwds,the.cnotinuing tenilncy will he I'rrrnrr month to nitlnth. 21,Disputes I' I Litigation.It'it disputa;arises,either party may take the matter to count, I Mediation Find Pun ible Litigation.if a dispute Itriscs,the parties will try!it good faith to settle it through mediation conducted by D(j it mediator to be mutually selected. The parties will share the costs of the tnedlator equally.Each party will a:napurute ratty and t'llidy with Wc-rnattiatur and will utterupt to roach a mutually satisfactory conlprouaise to cite dispute.If tlrc dispute is not resolved within Z0 day,after It is referred to the mediator, either party may take the matter to cnurr. I I Mediation and l'onthle Arbitration.If a disputa arises,the parties will try in gout fttith to settle it through mediation conducted by l)V a xxtudiatur to be mutually selected, The parries will shore the costs of the mediator equally.Each party will cooperate fuily and fairly with the mediator and will attempt to reach it mutually satisfactory compromise to the dispute.If the dispute is not resolved witilin 30 clays after it is reform>.d to(h4 mediau+r,it will he arbitrated by lk'] ;In arbitrator to be munudly selected. .ludgment on the urhitsat ion award may be eutcrcd in any couti that has jurisdiction over the matter.Costs of arbitration,including lawyers'fees,will he allocated by the arbitrator. Landlard need not participate in mediation or urbitrutiou of a dispute unlcsa Tenant has paid the rent called fa•by this lease or has plocud any unpaid rent in escrow with an ageaed upon mediator or arbitrator. 22,Additional Agreements. Landlord and Tenant additionally agree that: 23,Entire Agreement. This is the entire ugrc swill.btAwwn Uro parties,tt ruplacos and supersedes any and all and agreements fxnwcen the pnrtics,its well as any prior writings. 24.Successors and As9igneea. This lease hinds and henetit.s the heirs,successors,and nssignem of rho partitN. 25.Notfce9. All other's must bu in writing,A notict;may be delivered to it party at the address that follows a party's signature or to a new smognME (;iu,blrCi�:i01(roue 11rexh Pv :l dl'+l www,nal o.com zo:ao CT0Z"LZ*-1VN AcoRO CERTIFICATE OF LIABILITY INSURANCEDATE(MMIDOIYYYY) `---�� F3/4/2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Mac Gordon Ray Smith Insurance Agency Inc PHONE (763)259-0101 PAX ,(763)259-0102 6900 Wedgwood Road N E-°IL-ADDRESS.maa8raysmithins.com Suite 302 INSURERS)AFFORDING COVERAGE MAIC# Maple Grove MN 55311 INSURERAAuto-Owners Insurance Co. 18988 i INSURED INSURERS-Travelers Casualty & Surety of 19046 Full Circle Organic LLC INSURERC:Phoenix Insurance Company 5623 5029 13Th Ave S INSURERD: INSURER E: Minnea olis MN 55417-1118 INSURERF: COVERAGES CERTIFICATE NUMBER-.2012-13 w-o equip REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES,LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LLLTTRR TYPE OF IADDLSURR NSURANCE POLICY EFF POLICY pp POLICY NUMBER MNWDIYYYY MNVDDIYYYY LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000',000,000 DAMAGE TO RENTED X COMMERCIAL GENERAL LIABILITY PREMISES Fa occurrence $ 300,000 A CLAIMS-MADE ❑X OCCUR 00106028 9/5/2012 9/5/2013 MED EXP(Any one iron) $ 10,000 PERSONAL 6 ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GENL AGGREGATE LIMIT APPLIES PER: PRODUCTS•COMPIOP AGG S 2,000,000 17 POLICY X PRO LOC S AUTOMOBILE LIABILITY OOMB.INHEBnDtSINGLE LIMIT 1,000,000 B X ANY AUTO BODILY INJURY(Per patron) $ ALL OWNED SCHEDULED -7H237710-12-SEI, /9/2012 /4/2013 AUTOS AUTOS BODILY INJURY(Per accident) j NON-OWNED PROPERTY DAMAGE HIRED AUTOS AUTOS (Per accide 5 i UMBRELLA LIAR OCCUR EACH OCCURRENCE i EXCESS LIAB CLAIMS-MADE AGGREGATE S DED RETENTIONS $ C WORKERS COMPENSATION X WC STATLI OTH AND EMPLOYERS'LIABILITY ANY PROPRIETORIPARTNERIEXECUTIVE YIN E.L.EACH ACCIDENT $ 100,000 OFFICERIMEMSER EXCLUDED? El N I A (Mandatory in NH) -7834584-9-12 /4/2012 6/4/2013 E.L.DISEASE-EA EMPLOYEE $ 100,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ 500,000 i{ i DESCRIPTION OF OPERATIONS I LOCATIONS f VEHICLES(Attach ACORD 101,Additional Remarks Schedule,H more space is required) j THE CITY OF DUBUQUE IS INCLUDED AS AN ADDITIONAL INSURED UNDER THE GENERAL LIABILITY POLICY ON A PRIMARY NON-CONTRIBUTORY UNDER ENDORSEMENT 552051204. WAIVER OF GOVERNMENTAL IMMUNITY ENDORSEMENT #CG24141185 APPLIES. 30 CANCELLATION ENDORSEMENT APPLIES. i CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN The City Of Dubuque ACCORDANCE WITH THE POLICY PROVISIONS. 925 Kerper Court Dubuque, IA 52001 AUTHORIZED REPRESENTATIVE Mac Gordon/DSS ACORD 25(2010106) ©1488-2010 ACORD CORPORATION. All rights reserved. INS025 poioo5).o1 The ACORD name and logo are registered marks of ACORD COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED This endorsement modifies insurance provided underthe following: COMMERCIAL GENERAL LIABILITY COVERAGE PART. SCHEDULE Name of Pemon or OrWhation(AddItImal In WWn The City of Dubuque Iowa 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 volunteer. (If no entry appears above, Information required to complete this endorsement will be shown In the Declarations as applicable to this endorsement.) A. Under SECTION II -WHO IS AN INSURED, the fol- dation to the limits of insurance shown In the becla- lowing Is added: rations. The person or organization shown In the above C. Under SECTION IV - COMMERCIAL GENERAL Lt- Schedule Is an Additional Insured, but only with re- ABILITY CONDITIONS, 4. Other InswWft, the fol- !poet to liability arising out of "your work" for that lowing Is added: insured by or for you. B. Under SECTION III - LIMITS OF MISURANCE, the This Insurance is primary tar the person or organ- following Is added: Nation shown In the Schedule,but only with respect to liability arising out of"your work'for that person The limits of liability for the Additional Insured are or organization by or for you. Other Insurance those specified in the written contract or agreement available to the person or organization shown in the between the Insured and the owner, lessee or con- Schedule will apply as excess insurance and not tractor, not to exceed the limits provided In this contribute as primary insurance to the Insurance policy. These limits are inclusive of and not In ad- provided by this endorsement. Includes copyrighted material of Insurance Services Office,Inc., with its permission. Copyright,insurance Services office, Inc., 1984, 2M. Page 1 of 1 i; i k THIS ENDORSEMENT CHANGRS THE POLICY. PLEASE READ IT CAREFULLY. f AMENDMENT OF LOCATION AND PROJECT AGGREGATE LIMITS OF INSURANCE this endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILn Y COVERAGE PART. I. The funeral Aggregate Limit under LIMITS OF INSURANCE(Section III) applies sepaivty,to of yo ons" owned by or rented to you. "Location"n waus premises involving the sane or connecting lots,or premises whose,, s int erh�i only roadway,waterway or right-of-way of a railroad. 2 The Gasecal A Limit under LIMITS OF INSURANCE SECITObt Uewh'' �i 11 ( aPpiies eachou} ojeets away from premises owned by or rented toyou. _ \ .ti 4 V 4 ,� 5 1, -ttttyyyy \ It I �h i.% 55200(06-96) Cog right,Insurance Services Office, 984 Y Inc.,, COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVED. OF GOVERNMENTAL IMMUNITY This endorsement modifies insurance provided ander the following; COMMERCIAL GENERAL LIABIIdTY COVERAGE PART. 16 We will waive,both in the adjustment of claims and in the defense of"suits"against the ' govelq nehjal immunify the insured,unless the insured requests in writing that we not do so. Waiver of immunity as a defense will not sabjea us to liability for any portion of a claim or j� t�n cess of t�akGcabie limit of insurance. \ ` r r S 1 IN ` 1 � sti i 4 CG 24 14 11 85 Copyright;Insurance Services Office,Inc.,1984