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Signed Contract_American River Transportation Co. dba ARTCO Fleeting Service Docking License Agreement Copyrighted July 1, 2019 City of Dubuque Consent Items # 21. ITEM TITLE: Signed Contract(s) SUMMARY: Alliant Energy Interruptible Service Contract 2019-2020; American River Transportation Co. dbaARTCO Fleeting Services Docking License Agreement. SUGGESTED DISPOSITION: Suggested Disposition: Receive and File ATTACHMENTS: Description Type Alliant Energy Interruptible Service Contract 2019-200 Supporting Documentation ARTCO Fleeting Service Docking LicenseAgreement Supporting Documentation ; � � �j i � DOCKING LICENSE AGREEMENT � BETWEEN � , THE CITY OF DUBUQUE, IOWA '� AND AMERICAN RIVER TRANSPORTATION CO. dba ARTCO FLEETWG SERVICE !� i THIS AGREEMENT (the Agreement), dated for reference purposes the �`� � day of �)��.. , 2019, by and between the City of Dubuque, lowa (City), whose ' address for the purpose of this Agreement is City Hall, 50 West 13th Street, Dubuque, � lowa 52001, and American River Transportation Co. LLC dba ARTCO Fleeting Service ;� (ARTCO), whose address for the purpose of this Agreement is 12111 CR VV Cassville, '� WI 53806. ;� � 1 SECTION 1. DOCKING PRIVILEGE; TERM. Cit_y, in consideration of the � agreements and condifions herein contained, on the part of ARTCO, to be kept and � performed, grants unto ARTCO the privilege of docking ifis vessels, according to the terms and provisions herein, in the Barge Operating Area (the Licensed Premises) shown on '� Exhibit A attached hereto and by this reference made a part hereof with the improvements thereon and all rights, easements and appurtenances thereto belonging to the Licensed '� Premises for a term commencing on the 1St day of April, 2Q19, and ending at midnight ! the 31th day of March, 2021, upon the condition that ARTCO pays the Docking Fee ',; described below, and otherwise performs as this Agreement provides. City reserves the right to cancel this Agreement for any reason with or without cause upon providing I' siX (E) m�nths��!-ittPn n�tice to ART��. �1 �, SECTION 2. DOCKWG FEE. � � � 2.1. ARTCO shall have the privilege to use the Licensed Premises but only when ; ARTCO provides 48 hours advance notification to and prior written approval by the Department Manager of City's Water & Resource Recovery Center and only for the purpose of docking vessels or barges for the off-pumping of industrial waste into City's sanitary sewer collection system. ARTCO shall pay to City a Docking Fee of$350.00 per � docking. The Docking Fee shall be paid monthly but not later than the 15t" day of the � following month when the docking occurred to City's Finance Department. ARTCO shall '� submit to City with each monthly payment of the Docking Fee a report showing the � number of dockings for that month. Failure to provide City with advanced notification and � approval prior to docking vessels or barges may result in the immediate termination of �'� this lease. �, 2.2. Industrial Wastewater Discharqe Pretreatment Fee:- Jn addition to the Docking � Fee, ARTCO shall pay all fees established by City related to the discharging of wastewater to City's sanitary sewer system and the Water & Resource Recovery Center due and payable after each docking (Pretreatment Fee). Prior to any discharging of °' wastewater, ARTCO shall obtain and maintain in good standing a City of Dubuque Industrial Wastewater Discharge Permit from the Department Manager of the Dubuque Water& Resource Recovery Center. 121818ba1 ' � 1 � � � N i�%I i; 'i � 2.3. ARTCO shali erect traffic signs and barricades, in accordance with the attached traffic control plan (Exhibit) and approved by the City Engineer, to protect the traveling j public from any road hazard while pumping and while other related activities are occurring on the Terminal Street road pavement. The traffic control plan shall be deployed prior to any activity occurring on the road pavement and shall be removed immediately after all '�;� activities in the roadway have ceased. SECTION 3. TAXES. ;E ; ; 3.1. ARTCO agrees to pay to City as additional consideration at the time of the payment �I of the Docking Fee and the Pretreatment Fee an amount equal to real estate taxes upon '; the Licensed Premises that accrue during the Term of this Agreement, upon receipt of a ,I statement from City for such accrued taxes. � i� 1 3.2. ARTCO further agrees to pay all other lawful taxes, rates, charges, levies and assessments, general and special, of every name, nature and kind, whether now known ;I'� or hereafter created which may be taxed, charged, assessed, levied or imposed upon I said real estate, any buildings or improvements thereon which may be taxed, charged, � assessed, levied or imposed upon the Licensed Premises during the Term hereof, and ; all such taxes, rates, charges, levies and assessments shall be paid by ARTCO as they i become due and before they become delinquent. �;! � �.'�. ART�� ?�rPes#c timAly p�y�!I t?�es, a�sss�ments �r o±hsr�ubli� ch�rgss !e�✓ied , or assessed by lawful authority (but reasonably preserving ARTCO's rights of appeal) ;� against its personal property on the Licensed Premises during the Term of this ,� Agreement. i, !i , 3.4. Nothing herein shall require ARTCO to pay any of City's income taxes, surtaxes, �'i; excess profit taxes or any taxes on the rents reserved to City hereunder. i;� 1 3.5. ARTCO shall at all times have the right to contest in good faith, in any proper � proceedings, in the name of City if necessary, the payment or satisfaction of any such taxes, assessments, rates, charges or levies so agreed to be paid by ARTCO, if the validity thereof, or the right to assess or levy the sarne against or collect the same from said Licensed premises or improvements, shall be disputed. Upon the conclusion of any � such suit or proceedings, or not less than three (3) months prior to the date when the right II to redeem therefrom expires, whichever will be the earlier, ARTCO will promptly pay and � satisfy such disputed tax, assessment or other charge as finally determined, together with all expenses, costs and attorneys' fees whatsoever incurred in connection therewith. � SECTION 4. POSSESSION. ARTCO shall be entitled to possession on the first day of the term of this Agreement, and shall yield possession to the City at the time and date ' of the expiration of the Term, except as herein otherwise expressly provided. Page 2 of 25 � � � i � il ; SECTION 5. USE OF PREMISES. � 5.1 . ARTCO shall not knowingly use the Licensed Premises or any buildings or ',�; improvements thereon or any appurtenances thereto, for any unlawful purpose or in li violation of any certificate of occupancy. ARTCO shall not suffer any act to be done or ,�� any condition to exist within the Licensed Premises or in any Improuement thereon, or j permit any article to be brought therein, which is dangerous, unless safeguarded as 'I required by law, or which, in law, constitute a nuisance, public or private, or which may '� make void or voidable any insurance in force with respect thereto. il 5.2. ARTCO acknowledges that it has no right to use any railroad spur on City property ' or street right of way. � � �� SECTION 6. QUIET ENJOYMENT. � i � 6.1. City covenants that its estate in said Licensed Premises is fee simple and that ' ARTCO on paying the Docking Fee herein reserved and performing all the agreements I� by ARTCO to be perFormed as provided in this Agreement, shall and may peaceably 'ii have, hold and enjoy the Licensed Premises for the Term free from molestation, eviction ;i or disturbance by City. 'I , 6.2. Notwithstanding the foregoing, ARTCO shall yield any and all operations to any ; request by City, the State of lowa, or any federal agency relating in any way whatsoever 'J t� pr�?#eG#��t�, mainterance, c�ns±raction �r fl�o� f;gh#ing occurrir� a±the floodv��l! ir�s;de , or adjacent to the Licensed Premises. ;� � SECTION 7. IMPROVEMENTS AND TRADE FIXTURES. q �� jl 7.1. Trade Fixtures. For the purposes of this Agreement, "Trade Fixtures" shall mean I all of ARTCO's personal property located on the Licensed Premises used in ARTCO's !,I business. Title to ARTCO's Trade Fixtures is and shall be the sole and exclusive property �� of ARTCO during the term of this Agreement and shall remain the sole and exclusive il property of ARTCO after the expiration or termination of this Agreement, for whatever � reason. City acknowledges and understands that it shall have no right, title or interest in � or to ARTCO's Trade Fixtures either during the term of this Agreement, or thereafter, except as hereinafter provided. City acknowledges and agrees that ARTCO shall have the right to encumber, sell, or hypothecate ARTCO's Trade Fixtures, to remove them from the Licensed Premises, or to otherwise deal with all or any portion of such ARTCO's � Trade Fixtures, at ARTCO's sole discretion. Upon ten (10) days' prior written notice to City, City shall execute and deliver to ARTCO a certificate in recordable form prepared by ARTCO stating that City has no interest or right in or to ARTCO's Trade Fixtures, as well as any other or further document which ARTCO may reasonably request from City � 7.2. Improvements. ARTCO shall not construct or remove any improvements on the Licensed Premises without the priorwritten consent of City, in City's sole discretion. Upon � � Page 3 of 25 � � � � � � I� lii � I �� 1 any termination of this Agreement, by reason of any cause whatsoever, if any new ;� improvements or improvements existing at the time of the execution of this Agreement or ' any part thereof shall then be on the Licensed Premises, all of ARTCO's right, title, and '; interest therein shall cease and terminate, and title to the improvements shall vest in City, '� and the improvements or the part thereof then within the Licensed Premises shall be ' surrendered by ARTCO to City. No further deed or other instrument shall be necessary `i to confirm the vesting in City of title to the improvements. However, upon any termination � of this Agreement, ARTCO, upon request of City, shall execute, acknowledge and deliver j to City a quitclaim deed confirming that all of ARTCO's right, title and interest in or to the ;' improvements has expired, and that title to the improvements has vested in City. City ; reserves the right to require ARTCO to remove some or all of the improvements, which ' ARTCO shall accomplish within 30 days of the expiration of this Agreement. I''' 'I� SECTION 8. REPAIRS. �i; y I, 8.1. ARTCO shall at all times during active use of the Licensed Premises, at ARTCO's '�; own costs and expense, keep the Licensed Premises and the improvements thereon, and �' all sidewalks, curbs, and all appurtenances to the Licensed Premises, in good order, condition and repair, and in a safe, clean and neat condition, casualties and ordinary wear ,j and tear excepted. ARTCO shall keep the Licensed Premises in such condition as may '''i be required by law and by the terms of the insurance policies furnished pursuant to this i License, whether or not such repair shall be interior or exterior, and whether or not such ; repair shall be of a structural nature. Upon reasonable notice to ARTCO, City may, at its ��Gcr?ticn a!�d at i#s ccst, ccr��a�# �n ann�!�I irspsct�on of ths LicQnsed Prsm;sQs tc '�' determine ARTCO's compliance with this Section 8. I� !I 8.2. City shall have the right to require ARTCO upon written notice to repair or remove ,1 any structure on the Licensed Premises which City determines does not comply with the �!I requirements of this Section, and ARTCO shall repair or remove, as the notice may ,,i require, any such structure within ten days after receipt of such notice. � �'{ 8.3. ARTCO's Dutv of Gare And Maintenance. ARTCO shall at all times during the '� active use of the Licensed Premises, at ARTCO's own costs and expense, keep and i maintain the Licensed Premises and vessels while it is actively being used, using the '' � property and all improvements and vessels in a condition consistent with other similarly �� classed operations, including compliance with any applicable OSHA standards, as !j determined by the City Manager in the City Manager's sole discretion. !; ;i Y SECTION 9. ALTERATIONS. ARTCO shall not, without City's prior written consent, � make any alteration, addition, or modification to any Improvement on the Licensed ; Premises. � SECTION 10. UTILITIES AND SERVICES. ARTCO, during the term of this � Agreement, shall pay, before delinquency, all charges fior all utilities and services, � including garbage and trash disposal utilized by ARTCO. ARTCO shall be responsible for �� h � Page 4 of 25 ;' 'ti j Y y ;, �� 'I ,� ;1 i� '1 all operating and repair and maintenance costs related in any way whatsoever to the '�,;i utilities serving ARTCO. � 'I , SECTION 11. SIGNS. ARTCO shall have the right and privilege of attaching, affixing, ';i painting or exhibiting signs on ARTCO vessels on the Licensed Premises, provided (1) I that any and all signs shall comply with the ordinances of the City of Dubuque, the laws of the State of lowa, and the Ice Harbor Urban Renewal District Design Standards; (2) i, such signs shall not change the structure of any building or improvement on the Licensed � Premises; (3) such signs if and when taken down shall not damage any building or i improvement on the Licensed Premises or such damage shall be repaired; and (4) such i signs shall be subject to the prior written approval of the City, which approval shall not be � unreasonably withheld. '. � i � SECTION 12. PARKING. ; ; ; 12.1. City agrees that ARTCO employees may have the privilege during the Term to ,! park in the South Port adjacent to the Licensed Premises but only upon such terms and Ij conditions as City determines appropriate, including but not limited to the establishment a of a parking fee by users of the South Port. City shall have the right in its sole discretion ;; to terminate such parking privileges at any time. In the event City terminates such parking '! privileges in the South Port, ARTCO acknowledges that the Port of Dubuque has other ',j parking available forARTCO employees on a nonexclusive, first-come, first-served basis, ',� subject to any agreements City has to provide parking to other users. ARTCO further ij �cknov�rl�c_lges th�t �itv h�s �hP nn{in� t� �rPatP �ther ?rr?ngPmPnts f�r ARTrn � employees on a nonexclusive, first-come, first-served basis. �, 12.2. ARTCO shall use its best efforts to prohibit its employees from parking in private i parking areas owned by others. ; ; '� ,� SECTION 13. COMPLIANCE WITH LAW. During the term of this Agreement, ARTCO '{ shall comply with all local, state and federal laws applicable to ARTCO's use of the �icensed Premises, including but not limited to the Americans with Disabilities Act and �� the Smokefree Air Act, lowa Code Section 142D.3. ARTCO shall not commit waste on the Licensed Premises except as necessary for its business purposes including °; construction of any buildings and improvements on the Licensed Premises, and shall be j liable tor any damages to or destruction of any improvements on the Licensed Premises resulting from waste and shall be required to repair or rebuild such buildings or � improvements. ARTCO shall be solely responsible for, and agrees to indemnify and hold � City harmless from, any and all repairs, additions, claims, fines, penalties, fees or any ' other costs or obligation in any way imposed by or required by or related to the American's ; with Disabilities Act in connection with the Licensed Premises during the term of this Agreement. � �,i SECTION 14. ASSIGNMENT AND SUBLETTING. ARTCO may not encumber by � mortgage, deed of trust, or other instrument, the Licensed Premises. This Agreement may a � Page 5 of 25 � � r w ii • !� i� 1 d il not be assigned nor the Licensed Premises sublet by ARTCO without the prior written � consent of the City. SECTION 15. INSURANCE. 15.1. ARTCO shall during the term of this Agreement maintain insurance as set forth in the City's Standard Insurance Schedule for pocking of Commercial Vessels, as such uniform, standardized schedule may from time to time be amended by City. The current Insurance Schedule is attached to this Agreement as Insurance Schedule S (Exhibit C). City shall provide written notice of any amendment to the Insurance Schedule not less than sixty days prior to the effective date of such amendment. 15.2. ARTCO shall maintain, or cause to be maintained at its cost and ex ense and � . p � from time to time at the request of City shall furnish proof of coverage and the payment J of premiums on), property insurance against loss and/or damage to improvements under an insurance policy written on the Special Perils Form in an amount of the full insurable replacement value of Improvements, but any such policy may have a deductible amount � of not more than $50,000.00. No policy of insurance shall be so written that the proceeds thereof will produce less than the coverage required by the preceding sentence, by reason of co-insurance provisions or otherwise, without the prior consent thereto in writing '; by City. The term "replacement value" shall mean the actual replacement cost of '� Improvements (excluding foundation and excavation costs and costs of underground li flues, pipes, drains and other uninsurable items) and equipment, and shall be determined � fr�m time t� timP �t thP r?�uPst �f ��t;�, �!�t !��# mo!-e fr?�t!?!?t!y th�n o!?�e e�,ren,� three '� �; years, and paid for by ARTCO. �� ', 15.3. ARTCO agrees to notify City immediately in the case of damage exceeding li $50,000.00 in amount to, or destruction of, improvements or any portion thereof resulting '� from fire or other casualty. Net proceeds of any such insurance (Net Proceeds), shall be ''� paid directly to ARTCO, and ARTCO shall forthwith repair, reconstruct and restore the " improvements to substantially the same or an improved condition or value as they existed ',I prior to the event causing such damage and, to the extent necessary to accomplish such � repair, reconstruction and restoration, ARTCO shall apply the Net Proceeds of any I� insurance relating to such damage received by ARTCO to the payment or reimbursement �; of the costs thereof, subject, however, to the terms of any mortgage encumbering title to I� the Licensed �remises. � � 15.4. ARTCO shall complete the repair, reconstruction and restoration of improvements, � whether or not the Net Proceeds of insurance received by ARTCO for such purposes are sufficient. SECTION 16. FIRE AND CASUALTY; PARTIAL DESTRUCTION OF PREMISES. 16.1. In the event of a partial destruction of or damage to the Licensed Premises, which is a business interference, that is, which prevents the conducting of a normal business operation of ARTCO or the purposes identified above and which damage is reasonably � � '� Page 6 of 25 � � � � i1 � � � � repairable within sixty (60) days after its occurrence, this Agreement shall not terminate I'� but the Docking Fee for the Licensed Premises shall abate during the time of such I� busmess mterference or be refunded if previously paid. In the event of partial destruction, i ARTCO shall repair such damages within sixty (60) days of its occurrence unless 1 prevented from so doing by acts of God, the elements, the public enemy, strikes, riots, � i insurrection, government regulations, city ordinances, labor, material or transportation ;� shortages, or other causes beyond ARTCO's reasonable control. , ,� �; ,j 16.2. Zoninq. Should the zoning ordinance, regulatory permit, or any other action of the � City or another governmental entity make it impossible for ARTCO, using diligent and i timely effort to obtain necessary permits and to repair and/or rebuild so that ARTCO is !% not able to conduct its business on the Licensed Premises, then such partial destruction � shall be treated as a total destruction as in the next paragraph provided. � i �� , 16.3. Total Destruction Of Business Use. In the event of a destruction or damage of the ' Licensed Premises so that ARTCO is not able to conduct normal business operations, specifically including the purposes identified above on the Licensed Premises or the then '� current legal use for which the Licensed Premises are being used and which damages ''I cannot be repaired within sixty (60) days, this Agreement may be terminated at the option �;�; of ARTCO. Termination in such event shall be effected by written notice of ARTCO delivered to City within twenty (20) days after such destruction. ARTCO shall surrender ;; possession within ten (10) days after delivery of such notice, and each party shall be ;; released from all future obligations hereunder. " � SECTION 17. SURRENDER OF PREMISES; REMOVAL OF FIXTURES AND , IMPROVEMENTS. li 17.1. Improvements. ARTCO shall, on the last day of the term of this Agreement or upon ',II any termination of this Agreement, surrender and deliver up the Licensed Premises, with the improvements then located thereon into the possession and use of City, without fraud � or delay and in good order, condition and repair, reasonable wear and tear excepted, free '' and clear of all lettings and occupancies, free and clear of all liens and encumbrances ;; other than those existing on the date of this Agreement and those, if any, created by City, ' without (except as otherwise provided herein) any payment or allowance whatsoever by � City on account of Improvements erected or maintained on the Licensed Premises at the ,; iime oT ine surrenaer, or fior the contenis 'tnereof or appurienances 'thereto. HK i Lv is �o ,� restore the Licensed Premises to the condition it was in immediately prior to the ,i� commencement of this License. And at the direction of City remove any and all Improvements created by ARTCO located on the Licensed Premises. Failure by ARTCO to surrender and deliver up the Licensed Premise on the last day of the term of this ; Agreement shall cause a penalty payment equal to one and a half times the prorate rent to be applied on a daily basis as additional rent until the Licensed Premises is fully vacated. If City requires the improvements to be removed, City shall notify ARTCO no a less than ninety (90) days prior to the termination of this Agreement of such. ARTCO shall � have six months starting on the last day of the term of this Agreement to fully complete � the removal of the improvements to the extent directed by the City, in accordance with � the ordinances and rules of the City governing building demolition. If ARTCO fails to � � Page 7 of 25 '� q r �� i i u � II remove the improvements by the six-month deadline, City shall have the option to take over control of the building demolition and complete the work. Any costs incurred by the a City through the actions described in this section shall be solely paid for by ARTCO. � 17.2. Removal Of Trade Fixtures. ARTCO's Trade Fixtures, personal property, ',� equipment, materials and other belongings of ARTCO or of any sublessee or other i� occupant of space on the Licensed Premises shall be and remain the property of ARTCO, and ARTCO shall have a reasonable time after the expiration of the term of this Agreement (not to exceed thirty (30) days) to remove the same. If ARTCO fails to remove any ARTCO's Trade Fixtures, personal property, equipment, materials, or other �I belongings from the Licensed Premises within 30 days of the expiration date of this Agreement, they will immediately become property of the City. Any costs incurred by City J having to remove, relocate, handle, store, sell or dispose of ARTCO's Trade Fixtures � described in this Section 17.2 shall be solely paid for by ARTCO. '� ; .� '� 17.3. Holdinq Over. Continued possession, beyond the expiration date of the term of 'i this Agreement, by ARTCO, coupled with the acceptance of the specified Docking Fee Ir by the City and a written consent by City for an extension of this Agreement, shall constitute a month to month extension of this Agreement. � � SECTION 18. CITY'S WARRANTIES AND REPRESENTATIONS. � i 1 � 18.1. City's Representation of Good Title. City covenants and warrants that City is ; lawfully seized in possession of the Licensed Premises, and that it has full riqht and ��; authority to enter into this Agreement for the full term hereof, and covenants and agrees If that upon paying the rent provided for herein, and upon ARTCO's performing the covenants and agreements of this Agreement required to be performed by said ARTCO, � that it will have, hold and enjoy quiet possession of the Licensed Premises. ARTCO is � solely responsible for determining that the Licensed Premises is properly zoned for the '�� conducting of the operations of ARTCO's business. � I� ;�, 18.2. City makes no representations or warranties as to the condition, including !� environmental condition, of the Licensed Premises and ARTCO accepts the Licensed i� Premises as is. ' C�r/'�TI \ A 1"fTA } \ I 1"11"1 A\IT A A�� P1rP'� AP'��T TIA�1 � �CV 1 1 1 . HR I ti �J 1PV�►1'CRHIV I I�CJ HIVI.� KGI"R�G.7CIV I/�11 IVIV. 19.1. ARTCO Com�liance With Law. ARTCO shall comply with all applicable local, state q and federal laws, rules, regulations and permits with regard to the Licensed Premises and its use, occupancy and control of the Licensed Premises. 19.2. Environmental Matters. � (1) ARTCO covenants and agrees that City shall have no responsibility for or % liability arising from any release of a Hazardous Substance which is caused by or � results from ARTCO, ARTCO's use, occupancy or control of the Licensed Premises, except for City Hazardous Substances (any Hazardous Substance Page 8 of 25 � � � � � ;; � �� I i� which leaches or migrates upon the Licensed Premises from any property owned ; by City). Notwithstanding any other provision of this Lease, ARTCO shall not have ' any responsibility for any Hazardous Substance which leaches or migrates upon '� the Licensed Premises from any adjacent property or any release of a Hazardous Substances which is caused by City or which pre-exists the date of this Agreement, � except as follows: (a) ARTCO shall be responsible for pre-existing releases for ; which ARTCO fails to take due care and adequate precaution and/or for which a ARTCO's actions or inactions initially caused a release cause a worsening of the �i release, and (b) ARTCO shall provide full cooperation, assistance, and access to � City or other parties investigating and/or responding to a threatened or actual j� release. ' ;; , (2) ARTCO covenants and agrees to promptly notify City of any release of ''� Hazardous Substance in, on or about the Licensed Premises of which ARTCO ; suspects or has actual knowledge. i i (3) ARTCO covenants and agrees to promptly take any and all necessary and !� appropriate response to fully address any release of Hazardous Substance for ', which ARTCO is responsible under this Section 19.2 following advance notice to 'i City. Such response shall include, without limitation, notification to appropriate !,i governmental authorities, as may be required by law. ARTCO shall seek and '' obtain the concurrence of City as to any such response. ARTCO shall respond to such release to the full extent required by law in no event shall ARTCO allow ''i Iimit�ti�nS nr t-eGtri�#ions t� �e �I��Pd �� thP Li�st�s?� P�'em�se�V!�lth0:l±#h�!tl,�r!##en j consent of the City. � � ;� (4) ARTCO covenants and agrees to not manufacture, treat or dispose of i Hazardous Substances at the Licensed Premises or allow the manufacture, �I treatment, or disposal of Hazardous Substances on the Licensed Premises. `, ARTCO shall use and store on the Licensed Premises only those Hazardous ';j Substances as are associated with its regular business activities, and then only as � allowed by law. �� i� (5) For the purposes of this Agreement, "Hazardous Substance" or"Hazardous Substances" means any hazardous or toxic substance, material or waste which is � or becomes regulated by any local government, the State of lowa or the United i States Government. It includes, without limitation, any material or substance that is (i) defined as a "hazardous substance" or "hazardous waste" under Chapter ;� 455B, lowa Code, (ii) petroleum and petroleum products, (iii) asbestos containing I� materials in any form or condition, (iv) designated as a "hazardous substance" � pursuant to 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1321), (v) y defined as a "hazardous waste" pursuant to § 1004of the Federal Resource Ij Conservation and Recovery Act, 42 U.S.C. §6901 et �eq., (vi) defined as a ; "hazardous substance" pursuant to § 101 of the Comprehensive Environmental � Response, Compensation and Liability Act, 42 U.S.0 § 9601 et seq., or (vii) � defined as a "regulated substance" pursuant to Subchapter IX, Solid Waste � � � � Page 9 of 25 � 6 � Iqi d � a I� !� � � � i Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. § 6991 et j seq.] The term "Hazardous Substance" shall not include any air emissions �� a discharged into the atmosphere as allowed by a duly issued permit from the '; applicable governmental agency. � � (6) ARTCO agrees to defend, indemnify and hold City harmless from and I!� against all claims, causes of action, damages, loss, costs, expense, penalties, � fines, lawsuit, liabilities, reasonable attorney fees, reasonable engineering and ,� consulting fees, arising out of or in any manner connected with hazardous � substances, which are caused or created by ARTCO during the term of this 1 Agreement including, but not limited to, injury or death to persons or damage to j property, and including any diminution of the value of any Licensed Premises � which may result from the foregoing. This indemnity shall survive the cessation, � termination, abandonment or expiration of this Agreement. i � SECTION 20. INDEMNIFICATION. �� ,� , 20.1. Indemnification of ARTCO. To the extent allowed by law, City will indemnify and �' save harmless ARTCO from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable 'j attorneys' fees and expenses) imposed upon or incurred by or asserted against ARTCO ; by reason of (a) any accident, injury to or death of persons or loss of or damage to 'I property occurring on or about the Licensed Premises resulting from any negligent act or pmission �f Citv; (t�) �ny f�il�irP nn thP �?rt nf C`ity tn �g�-fOr!?1 �!' comply ��,�i#h ary of the � terms of this Agreement and (c) any breach on the part of City of any warranty or �� representation contained in Section 15. ,, � 20.2. Indemnification of City. ARTCO will defend, indemnify and save harmless City I from and against all liabilities, obligations, claims, damages, penalties, causes of action, � costs and expenses (including, without limitation, reasonable attorneys' fees and ,� expenses) imposed upon or incurred by or asserted against City by reason of (a) any ;) accident, injury to or death of persons or loss of or damage to property occurring on or '� about the Licensed Premises during the term of this Agreement and resulting from any �;� negligence of ARTCO or anyone claiming by, through or under ARTCO during the term ;� of this Agreement and (b) any failure on the part of ARTCO to perform or comply in any i materiai respect with any of the material terms of this Agreement, and (c) any material I,i breach on the part of ARTCO of any warranty or representation contained in Section 18. ,� In case any action, suit or proceeding is brought against City by reason of such � occurrence, ARTCO will, at ARTCO's expense and discretion, either defend such action, suit or proceeding, or cause the same to be defended by counsel approved by City, which approval will not be unreasonably withheld. 20.3. Survival. The obli ations and liabilities under this Section shall surviv � g e and � continue in full force and effect and shall not be terminated, discharged or released, in whole or in part, irrespective of the termination or expiration of the term of this Agreement. ,J I :, � ;� Page 10 of 25 I� � �, � �I II a � � , � i SECTION 21. GREATER DOWNTOWN URBAN RENEWAL DISTRICT DESIGN � STANDARDS. ARTCO agrees to comply in all respects with the Greater powntown ; Urban Renewal District Design Standards as they currently exist or might hereafter be � amended. � a ij 1 SECTION 22. CONDEMNATION. ;� � 22.1. Entire Condemnation. If at any time during the term of this Agreement all or ;I substantially all of the Licensed Premises or the improvements thereon shall be taken in '; the exercise of the power of eminent domain by any sovereign, municipality or other public 'i or private authority, then this Agreement shall terminate on the date of vesting of title in '� such taking and any prepaid fees shall be apportioned as of said date. Substantially all of �� the Licensed Premises and the improvements thereon shall be deemed to have been :� taken if the remaining portion of the Licensed Premises shall not be of sufficient size to '!i permit ARTCO, in ARTCO's sole discretion, to operate its business thereon in a manner i similar to that prior to such taking. 9 I 22.2. Allocation of Award. Any award for such taking of all or substantially all of the ' Licensed Premises shall be paid to the parties hereto in accordance with the following: � 'i (1) To City, the amount of the award attributable to the Licensed Premises, 'i determined as if this Agreement was not in effect at the time of such award, '! exduding therefrom the amount of the award attributable to new improvements ;I construct�d by ART�O b�t n�t imprnyem�nts ex�stin; �t thP ��mmPncpm�nt �#' ,� the Term of this Agreement, and all other sums not directly attributable to the value I of the real estate constituting the Licensed Premises; �; � (2) To ARTCO, the entire award except that portion allocated to City above. 22.3. Partial Condemnation. ��i � (1) If less than all or substantially all of the Licensed Premises or the ;� improvements thereon shall be taken in the exercise of the power of eminent � domain by any sovereign, municipality or other public or private authority, then i ARTCO, at its option, may elect to continue this Agreement in full force and effect a or terminaie tnis Hgreement. It AK 1 GO shall elect to maintain this Agreement in � full force and effect, the award for such partial condemnation shall be allocated as d provided in 20,2, and ARTCO shall proceed with reasonable diligence to carry out � any necessary repair and restoration so that the remaining improvements and a appurtenances shall constitute a complete structural unit or units which can be operated on an economically feasible basis under the provisions of this � Agreement. In the event ARTCO elects to continue this Agreement in full force and � effect after a partial condemnation, the Docking Fee shall be reduced in proportion d to the area of the Licensed Premises taken. � a � (2) Should ARTCO elect to terminate this Agreement upon a partial ' �, Page 11 of 25 � � i i h � �� ii 'ti i � 'i li condemnation, ARTCO shall provide City with written notice of such election within '� thirty(30) days after the date of vesting of title for such taking. ARTCO shall specify j in such written notice the date on which this Agreement shall terminate, which date ',a shall be not less than 60 days nor more than 360 days after delivery of such notice ',i to City (the Termination Date). In the event ARTCO terminates this Agreement, ' as provided for in this Section 22.3, ARTCO shall be entitled to the entire award for such partial taking. ; 22.4. Temporary Takinq, If the temporary use of the whole or any part of the Licensed �; Premises or the improvements thereon or the appurtenances thereto shall be taken at ' any time during the term of this Agreement in the exercise of the power of eminent domain �� by any sovereign, municipality, or other authority, the term of this Agreement shall not be I; reduced or affected in any way, and ARTCO shall continue to pay in full the Docking Fee 'I provided to be paid by ARTCO, and the entire award for such temporary taking shall be � paid to ARTCO. ARTCO shall repair and restore any and all damage to the Licensed '� Premises and the improvements as soon as reasonably practicable after such temporary � taking. 'I ,i SECTION 23. DEFAULT. '; ,d 23.1. Citv's Riqhts in the Event of ARTCO's Default. If ARTCO shall fail or neglect to I�{ observe, keep or perform any of the covenants, terms or conditions contained in this '' Agreement on its part to be observed, kept or performed, and the default shall continue for a period of thirty (301 days �fter uvritten n�tice from �ity �?t�s�g fort� thA �,a�� f ARTCO's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which ARTCO has to 'i� cure the same shall be extended for such period as may be necessary to complete the '� same with all due diligence, but in no event longer than ninety (90) days), then and in �; any such event, City shall have the right at its option, on written notice to ARTCO, to terminate this Agreement. City shall thereafter have the right to enter and take ' possession of the Licensed Premises with process of law and to remove all personal � property and Trade Fixtures from the Lic�nsed Premises and all persons occupying the � Licensed Premises and to use all necessary force therefor and in all respects to take ,i the actual, full and exclusive possession of the Licensed Premises and every part of the I� Licensed Premises as of City's original estate, without incurring any liability to ARTCO '�� or io any persons occupying or using the Licensed Premises for any damage caused or sustained by reason of such entry on the Licensed Premises or the removal of persons � or property from the Licensed Premises. � ,, 23.2. ARTCO's Riqhts in the Event of Citv's Default. If City shall fail or neglect to observe, keep or perForm any of the cavenants, terms or conditions contained in this Agreement on its part to be observed, kept or performed, and the default shall continue for a period of thirty (30) days after written notice from ARTCO �etting forth the nature of City's default (it being intended that in connection with a default not susceptible of being � cured with diligence within thirty(30) days, the time within which City has to cure the same � shall be extended for such period as may be necessary to complete the same with all due b � � � 1 Page 12 of 25 � u � � � � � , � diligence, but in no event longer than ninety (90) days), then and in any such event, ARTCO shall have all rights available to it provided by law or equity. � SECTION 24. RIGHT TO CURE OTHER'S DEFAULTS. Whenever and as often as a party shall fail or neglect to comply with and perform any term, covenant, condition or � agreement to be complied with or performed by such party hereunder, then, following j thirty (30) days' prior written notice to such defaulting party (or such additional time to ',i cure as may be accorded ARTCO pursuant to Section 23, but in no event longer than ;,'� ninety (90) days), the other party, at such other party's option, in addition to all other ,i remedies available to such other party, may perform or cause to be performed such work, labor, services, acts or things, and take such other steps, including entry onto the �� Licensed Premises and the improvements thereon, as such other party may deem I,'j advisable, to comply with and perform any such term, covenant, condition or agreement � which is in default, in which event such defaulting party shall reimburse such other party I� upon demand, and from time to time, for all costs and expenses suffered or incurred by � such other party in so complying with or performing such term, covenant, condition or ,i agreement. The commencement of any work or the taking of any other steps or ! performance of any other act by such other party pursuant to the immediately preceding � sentence shall not be deemed to obligate such other party to complete the curing of any � term, covenant, condition or agreement which is in default. Ij ; SECTION 25. MECHANIC'S LIENS. Neither ARTCO nor anyone claiming by, �I through, or under ARTCO, shall have the right to file or place any mechanic's lien or other ; lien of any kind pr ch�ra�ter vvh�tsoever, ��2�n the I ir.Pn�Qrl prPrpj�P� nr �,��, ��►� � building or Improvement thereon, or upon the interest of ARTCO therein, and notice is hereby given that no contractor, sub-contractor, or anyone else who may furnish any � material, service or labor for any building, Improvements, alteration, repairs or any part , thereof, shall at any time be or become entitled to any lien thereon, and for the further { security of the City, ARTCO covenants and agrees to give actual notice thereof in � advance, to any and all contractors and sub-contractors who may furnish or agree to furnish any such material, service or labor. � „ , SECTION 26. RIGHTS CUMULATIVE. The various rights, powers, options, elections � and remedies of either party, provided in this Agreement, shall be construed as � cumulative and no one of them as exclusive of the others, or exclusive of any rights, � remedies or priorities aiiowed either par�y by law, and shall in no way affect or impair the � right of either party to pursue any other equitable or legal remedy to which either party � may be entitled as long as any default remains in any way unremedied, unsatisfied or undischarged. SECTION 27. PROVISIONS TO BIND AND BENEFIT SUCCESSORS, ASSIGNS, � ETC. Each and every covenant and agreement herein contained shall extend to and be binding upon the respective successors, heirs, administrators, executors and assigns of � the parties hereto. Page 13 of 25 � � � i; � � �a II� SECTION 28. CONSTRUCTION. Words and phrases herein, including '� acknowledgment hereof, shall be construed as in the singular or plural number, and as ;I masculine, feminine or neuter gender according to the context. i ti SECTION 29. SEVERABILITY. If any term or provision of this Agreement shall be � held invalid or unenforceable, the remainder of this Agreement shall not be affected. 'i SECTION 30. ESTOPPEL CERTIFICATES. Each party hereto agrees that at any time � and from time to time during the term of this Agreement, within twenty (20) days after �'� request by the other party hereto or by any lender having an interest in ARTCO's License, it will execute, acknowledge and deliver to the other party or to such lender or any �;I prospective purchaser, assignee or any mortgagee designated by such other party, a ;I certificate stating (a) that this Agreement is unmodified and in force and effect (or if there ii have been modifications, that this Agreement is in force and effect as modified, and 'ii identifying the modification agreements), (b) the date to which the Docking Fee has been '�� paid, (c) whether or not there is any existing default by ARTCO in the payment of the 'i' Docking Fee or other sum of money hereunder, and whether or not there is any other �� existing default by either party hereto with respect to which a notice of default has been " served, and, if there is any such default, specifying the nature and extent thereof; and (d) ��; whether or not there are any setoffs, defenses or counterclaims against enforcement of ';; the obligations to be performed hereunder existing in favor of the party executing such ', certificate. ;; il SECTION 31, VHAIyEf�_ Nc� �ai�?r h� eithPr �ar#� h�fatn nf �I?;� �rpach �ay thP �thsr a of any term, covenant, condition or agreement herein and no failure by any party to �u exercise any right or remedy in respect of any breach hereunder, shall constitute a waiver '� or relinquishment for the future of any such term, covenant, condition or agreement or of !�, any subsequent breach of any such term, covenant, condition or agreement, nor bar any 1 right or remedy of the other party in respect of any such subsequent breach, nor shall the �; receipt of any rent, or any portion thereof, by City, operate as a waiver of the rights of City !� to enforce the payment of any other rent then or thereafter in default, or to terminate this �! Agreement, or to recover the Licensed Premises, or to invoke any other appropriate � remedy which City may select as herein or by law provided. � �SECTION 32. NOTICES. All notices, demands, or other writings in this Agreement , provided to be given or made or sent, or which may be given or made or sent, by either party to the other, shall be deemed to have been fully given or made or sent when made �� in writing and deposited in the United States mail, registered and postage prepaid, and addressed as follows: To City: City of Dubuque, lowa City Manager City Hall � 50 West 13th Street Dubuque, lowa 52001 Page 14 of 25 � � � � l i il � WITH A COPY TO: '„ � i City of Dubuque i� Project Manager— Engr. Dept. City Hall 50 West 13�n Street Dubuque, lowa 52001 � ;, To ARTCO: ARTCO Fleeting Service ! Regional Manager ;� 12111 CR W !i Cassville, WI 53806 �ll WITH A COPY TO: I'I I � Archer Daniels Midland Company ;; P.O. Box 1470 !,, Attention: General Counsel ',j Decatur, Illinois 62525 ,� The address to which any notice, demand, or other writing may be given or made or sent '; to any party as above provided may be changed by written notice given by the party as above provided. ij `, � SECTION 33. MEMORANDUM OF AGREEMENT. Each of the parties hereto will, '�� promptly upon request of the other, execute a memorandum of this Agreement in a form 'i suitable for recording setting forth the names of the parties hereto and the term of this �'I Agreement, identifying the Licensed Premises, and also including such other clauses I therein as either party may desire, except the amounts of the Docking Fee payable l hereunder. 7 I SECTION 3�4. 11111SCELLANEOUS. �� i 34.1. Time of The Essence. Time is of the essence of this Agreement and all of its � provisions. d 34.2. Governinq Law. It is agreed that this Agreement shall be governed by, construed, � and enforced in accordance with the laws of the State of lowa. j{ ,, 34.3. Paraqraph Headinqs. The titles to the paragraphs of this Agreement are solely for � the convenience of the parties and shall not be used to explain, modify, simplify, or aid in ; the interpretation of the provisions of this Agreement. � , � 34.4. Modification of Aqreement. Any modification of this Agreement or additional � obligation assumed by either party in connection with this Agreement shall be binding � i � � �� Page 15 of 25 I� Y 1 �� II I , only if evidenced in a writing signed by each party or an authorized representative of each { partY� Il � , 34.5. Parties Bound. This Agreement shall be binding on and shall inure to the benefit ; of and shall apply to the respective successors and assigns of City and ARTCO. All 'I references in this Agreement to "City"or"ARTCO" shall be deemed to refer to and include successors and assigns of City or ARTCO without specific mention of such successors or assigns. ,,� � 34.6. Force Majeure. In the event that either party hereto shall be delayed or hindered ''� in or prevented from the performance of any act required hereunder by reason of strikes, �; lockouts, labor troubles, unavailability or excessive price of fuel, power failure, riots, '� insurrection, war, terrorist activities, chemical explosions, hazardous conditions, fire, ' weather or acts of God, or by reason of any other cause beyond the exclusive and ;; reasonable control of the party delayed in performing work or doing acts required under ;I the terms of this Agreement, then performance of such act shall be excused for the period ;� of the delay and the period for the performance of any such act shall be extended for a �i period equivalent to the period of such delay. �� i �, SECTION 35. DISPUTE RESOLUTION. City and ARTCO agree that prior to the commencement of any judicial proceeding for any controversy arising out of or relating to �'' the construction or interpretation of this Agreement, the parties will engage in mediation ''� �� in accordance with the Commercial Arbitration Rules of the U.S. Arbitration & Mediation, ,; Midwest ("USA&M") or th� Am�ri��n Arhitratinn �,�gr�rjatj�n (°°,y,Ap°°�, �'n� p��r��s �hall �! divide equally all costs of inediation which shall be paid immediately upon billing by the ',i mediation service. y '� I�I ` ;i �� L 0 �i u p R � J� g � � ��{ d I i 3 N Page 16 of 25 � � � � i u ,+ ,� IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement in I duplicate the day and year first above written. i fi CITY OF DUBUQUE, IOWA AMERICAN RIVER TRANSPORTATION CO. � dba ARTCO FLEETING SERVICES i �. . ; � ; By: By: ��'��: Michael '�. Van Milligen Ronald White City Manager .�; General Manager i � By: 1� ; � Kevin . Firnstahl, City Clerk I i ;i i i !i 'I 'i '� '� � � i , i 'i i k� i Ili ';� � '� � �� i� II f u ��, �� ; �� ; � �l I� il ; r � � � ( t Page 17 of 25 !i ti ij s, � n STATE OF IOWA ) COUNTY OF DUBUQUE ) ss: On this le -day of API I , 2019, before me, a Notary Public in and for the State of Iowa, personally appeared Michael C. Van Milligen and Kevin S. Firnstahl, to me personally known, and, who, being by me duly sworn, did say that they are the City Manager and City Clerk, respectively, of the City of Dubuque, Iowa; that the seal affixed to the foregoing instrument is the corporate seal of the city, and that the instrument was signed and sealed on behalf of the city, by authorityA its City Co - ncil, a. n roved by the City Council of the City of Dubuque, Iowa, on the Kiri day oft,,, , , 2019, and that they acknowledged the execution of the instrument to be their vo untary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed. PAMELA J. McCARRON Cornmis;;ion Number 772419 BAy Comm. Exp. u—aO / STATE OF lb ) COUNTY OF iltak,i6AA.0 ) ss: On this I day of Ono rvo 1 , 2019, before m , a Notary Public in and for the State of Iowa, personally appeared r m id L ` �i , to me personally known, who being j by me duly sworn did say that he is the Oes' vvj "6 fl , that (the seal affixed hereto is the seal of said)(n6 seal has been p cured by the said) corporation and that said instrument was signed (and sealed) on behalf of said corporation by authority of its managers and the said corporation acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it voluntarily executed. 41..c KER Y JO BRADL Y o Commission Number 808090 Myr Ggrrssior xplres Ath /oWP Notary Public Page 18 of 25 0 n a for State of ii � � EXHIBIT A a _ LICENSED PREMISES � � �11 i I i '� 'I ; , �� i a I� �i 'i ; I :; �� :; � li '�i ii , �i ,I � i 'J i � ,i 1 a � ;� �� ;� � � � � � � �{ ;i s' � Y, ii Page 19 of 25 ?, � � � � ii IIM � EXHIBIT A `� i �� LICENSED PREMISES y ii �I il J � ;9 rHecrrYOF •� . • • . y-`.,m.� � ��—,�� Exhib�t A - Sar��tc�ry Sezver Discharge Point pq�iS'� ; A9fulr+piecenntheMfssissippi ��n�c��.au�..,o�.,��.�m«...w«�„��„ �I� I �� I� y i� li� " 1 � 1 c lij Il II li II� Ii I i� If i i I13 �1 , '�i ,� ;� ; �� ' ii >�' �� ' &, � L �V, �` �� I Z i �� `� � �;� � � ��. £" ' �� , � � � u�^.e�»�- Aeria eroices,ine � �� ' � N I � � d ` � Map Prepared by: ��`' � ��.a � - �� r'. City of Dubuque � �. � , nA� Licensed Premises 1 inch= 100 feet W E Engineering Division �F . �i .h n �i s � � � 50 Wes1 13Yh Street i � �ut �� fi n� � Dubuque,lowa 52001 I I n,K aw..,_. n._�33m�< r.nr�reaj�cr�� ' `� rGG� Phone:(5Fi3)5$8-4270 � � S Fax:(563)589-0205 i � �I {I � Page 20 of 25 !i �6 � � EXHIBIT B TEMPORARY TRAFFIC CONTROL PLAN � �.t.t�� x��d�� Ise an lo��-voltmze,lo�c�-spc�:�i roach�•ays(pftved c�r�ui��eci). � Nlotor velvcle ttt�tt�ic anay l�seif-re;iilating�laeri#he wo��A s�aace is short,cliiuers ean sce tl�e ro�dway beyc��ld,au�d voluz�ae i�law.Use �� c�ne or twc�tla��ars ti��3ien�nc�tc�r veliicle tr�rt�ic c�uulot eftectively 1 selt=re�t�lake.I'or m�bilc vperaticans or i.f work activrCv is lt.�s thail��n � hour,a reciuctron in the ntnnix�r nf devices n��3 b�c�ilwc:t by�he use oC d we�rk�ehicles di�playv��v�liicle waa�in�ligllt(s). ��° a. � � i i M, -.-° �.- � �� --�- � � � ta � i ;I � � ft � . . 2.,: �� B�@I":'r�JBC@ , � (tl�l(IOP181) I� . ,"""'""""^"�t^. 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