Gavilon Grain, LLC Lease Agreement - Purina DriveCopyrighted
March 25, 2020
City of Dubuque Items to be set for Public Hearing # 2.
ITEM TITLE: Gavilon Grain, LLC Lease Agreement - Purina Drive
Property
SUMMARY: City Manager recommending that the City Council set a
public hearing for April 6, 2020, on the Lease Agreement
between the City of Dubuque and Gavilon Grain, LLC for
property on Purina Drive.
SUGGESTED DISPOSITION:
ATTACHMENTS:
Description
RESOLUTION Intent to dispose of an interest in City -
owned real property by Lease Agreement between the City
of Dubuque, Iowa and Gavilon Grain, LLC - Purina Drive
Lease
Suggested Disposition: Receive and File; Adopt
Resolution(s), Set Public Hearing for April 6, 2020
Type
Gavilon Lease Agreement - Purina Drive - MVM Memo City Manager Memo
Staff Memo Staff Memo
Resolution of Intent - Purina Drive Resolutions
Gavilon - Purina Drive Lease (Partially Executed) Supporting Documentation
Masterpiece on the Mississippi
Dubuque
bitil
All-A.aia City
111111
2007.2012.2013
2017*2019
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Lease Agreement Between the City of Dubuque and Gavilon Grain, LLC
Purina Drive
DATE: March 24, 2020
Senior Counsel Barry Lindahl requests the City Council set a public hearing for April 6,
2020, on the Lease Agreement between the City of Dubuque and Gavilon Grain, LLC
for property on Purina Drive.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Crenna Brumwell, City Attorney
Teri Goodmann, Assistant City Manager
Cori Burbach, Assistant City Manager
Barry A. Lindahl, Senior Counsel
Masterpiece on the Mississippi
BARRY A. LINDAHL, ESQ.
SENIOR COUNSEL
MEMO
To: Michael C. Van Milligen
City Manager
DATE: March 24, 2020
Dubuque
tard
AII•Ameriea City
'1111'
2007.2012.2013
2017*2019
RE: Lease Agreement Between the City of Dubuque and Gavilon Grain, LLC
Purina Drive Lease
In 2002, the City of Dubuque and Gavilon Grain, LLC entered into a Lease Agreement for
property on Purina Drive.
The City and Gavilon have negotiated a new Lease Agreement for the Purina Drive
property.
I recommend that the attached resolution setting a public hearing on April 6, 2020 on the
new Lease Agreement be submitted to the City Council for consideration and approval.
BAL:tls
Attachment
cc: Crenna M. Brumwell, City Attorney
Gus Psihoyos, City Engineer
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAX (563) 583-1040 / EMAIL balesq@cityofdubuque.org
RESOLUTION NO. 99-20
INTENT TO DISPOSE OF AN INTEREST IN CITY OWNED REAL PROPERTY BY
LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND GAVILON
GRAIN, LLC - PURINA DRIVE LEASE
WHEREAS, the City of Dubuque, Iowa (City) owns the real property shown on Exhibit
A attached hereto:
(the Property);
and
WHEREAS, City and Gavilon Grain, LLC previously entered into the 2002 Lease
Agreement for the Property; and
WHEREAS, City and Gavilon Grain, LLC have negotiated a new Lease Agreement
for the Property, attached hereto; and
WHEREAS, the City Council has tentatively determined that it would be in the best
interests of the City to approve the Lease Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City of Dubuque intends to dispose of its interest in the foregoing -
described real property by Lease Agreement with Gavilon Grain, LLC.
Section 2. The City Clerk is hereby authorized and directed to cause this Resolution
and a notice to be published as prescribed by Iowa Code Section 364.7 of a public hearing
on the City's intent to dispose of an interest in the foregoing -described real property, to be
held on the 6th day of April, 2020, at 6:30 o'clock p.m. at the Historic Federal Building, 350
W. 6th Street, Dubuque, Iowa.
032420ba1
Passed, approved and adopted this 25th day of March, 2020.
Roy D. Buol/)(/layor
Attest:
Kevin$. Firnstahl, City Clerk
EXHIBIT A
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Gavilon Grain - Purina Drive
Demised Premises
USACE PeTnrttec kea
Exhibit A
'Subject to Survey Verification
created by TWK 2012-01-2f
upcated by: TWK 2020-02-12
3
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
GAVILON GRAIN, LLC
PURINA DRIVE LEASE
This Lease Agreement ("Lease") is dated July 1, 2020, between the City of
Dubuque, Iowa, an Iowa municipal corporation ("Lessor" or "City"), and Gavilon Grain,
LLC, a Delaware limited liability company ("Lessee").
SECTION 1. DEMISE AND TERM.
1.1 In consideration of the rents hereinafter reserved and the terms, covenants,
conditions and agreements set forth in this Lease, Lessor hereby leases to Lessee the
real property shown on Exhibit A (the "Demised Premises") containing 4.86 acres, to have
and to hold for an initial term commencing as of July 1, 2020, (the "Commencement
Date"), and ending at midnight on June 30, 2048, (the "Term"), subject to all of the terms,
covenants, conditions and agreements contained herein.
1.2 Lessee agrees to cooperate with Lessor in surveying and platting the Demised
Premises and amending this Lease to include the final legal description; provided,
however, that Lessee shall not be required to pay for the cost of any such surveying and
platting.
1.3 The Demised Premises is subject to a Lease Agreement between the Lessor and
ConAgra Foods, Inc. dated September 25, 2002, as subsequently amended and assigned
to Lessee (the "2002 Lease Agreement"). Upon commencement of the Term of this
Lease, the 2002 Lease Agreement shall terminate.
1.4 Use of Premises. Lessee acknowledges that the Demised Premises is currently
zoned HI Heavy Industrial. Notwithstanding such zoning, Lessee agrees that the Demised
Premises shall not be used for any of the following uses:
Slaughterhouses or stockyards;
Manufacture or processing of the following materials: ammonia or chlorine;
Manufacture of acid, lime or lime products, and detergent;
Sanitary landfills;
Sewage treatment plants;
Crematoriums; reduction plants; foundries, forges or smelters; and
Junk yards, salvage yards.
1.5 Lessee further agrees that the Demised Premises shall be used only for the
handling of bulk commodities (grain, solid or liquid fertilizer, salt, whole cotton seed,
oilseeds) and or other bulk commodities, steel rebar, and dried distillers grains with
solubles (DDGS), and no other purposes without the prior written consent of Lessor,
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which consent shall not be unreasonably withheld or delayed.
1.6 Docking Privilege. City grants unto Lessee the exclusive right to dock its vessels
and/or barges, according to the terms and provisions herein, along the shoreline of the
Demised Premises and in the channel adjacent thereto during the Term of the Lease.
(1) Docking Fee; Exclusive Use; Maintenance.
(a) Lessee agrees to pay to City an annual fee (the "Docking Fee") of
$17,094.00 payable in twelve equal monthly payments of $1,424.50, due in
advance on the first day of each month during the Term. The Docking Fee
shall be adjusted on an annual basis as provided in Section 2.2.
(b) Lessee shall have the exclusive right to use the mooring dolphins in
the channel adjacent to the Demised Premises.
(c) Lessee takes said premises in their present condition except for any
environmental hazard or condition existing on the channel adjacent to the
Demised Premises.
(d) City's Duty Of Care And Maintenance. City shall have no duty of
care or maintenance, including no duty to dredge; provided, however, that
the City will cooperate with Lessee and obtain any permits required for such
dredging work to be performed by Lessee or its contractor, and shall
coordinate joint contribution from all harbor tenants in the event the harbor
required dredging.
(e) Lessee's Duty Of Care And Maintenance. Lessee shall at all times
during the term of this Lease, at Lessee's own costs and expense, keep
and maintain the mooring dolphins adjacent to the Demised Premises and
Lessee's owned barges and vessels in good condition and repair. City may,
at its discretion, upon reasonable notice to Lessee, conduct an inspection
during Lessee's normal business hours and while accompanied by Lessee
to determine Lessee's compliance with this Section 1.6. Lessee on a
reasonable basis shall remove all dead wood, weeds, trash and debris
along the shoreline of the Demised Premises; provided, however, that
Lessee shall not be required to perform the same if, in Lessee's reasonable
judgment, such maintenance cannot be performed in a safe and reasonable
manner.
(f) Lessee will make no unlawful use of said premises and agrees to
comply with all city ordinances, and the laws of the State of Iowa and the
United States.
(g) On delivery of possession of the Demised Premises to Lessee,
Lessee shall not construct any improvements within the channel adjacent
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to the Demised Premises except as agreed upon in advance, in writing, by
City. City shall have the right in its sole discretion to approve the design,
appearance and quality of any such improvements, which approval shall not
be unreasonably withheld or delayed.
(h) Lessee shall not encumber by mortgage, deed of trust, or other
instrument, its interest granted in this Section 1.6 without the prior written
consent of Lessor which consent shall not be unreasonably withheld.
SECTION 2. RENT, AND OTHER PAYMENTS.
2.1 Rent. Lessee shall pay Lessor, in addition to taxes, fees (including but not limited
to storm water fees), rates, charges, levies, assessments, and all other charges required
to be paid under this Lease by Lessee, annual rent ("Rent") in the amount of $210,337.93
($43,279.41 per acre) payable in twelve equal monthly payments of $17,528.16, due in
advance on the first day of each month during the Term.
2.2 Rent Adjustment. The Rent for each year of the Term, beginning on the first
anniversary date of the Commencement Date and continuing on each subsequent
anniversary date thereof, shall be determined by multiplying the Rent in effect
immediately prior to the applicable anniversary of the Commencement Date by the CPI
Adjustment (as hereinafter defined) and then adding the resulting product, if positive ("CPI
Increase"), to the Rent in effect immediately prior to the applicable anniversary date;
provided, however, in no event shall the CPI Increase exceed three percent (3%) of the
then -current Rent and provided, further, that in no event shall the Rent for any year be
less than the Rent for the immediately preceding year.
The "CPI Adjustment" shall be a fraction expressed as a decimal, the numerator of which
shall be the Current CPI minus the Prior CPI and the denominator of which is the Prior
CPI, or 3% whichever amount is less. The "Current CPI" is the latest CPI published prior
to the anniversary date of the lease term. The "Prior CPI" is the CPI published in the
immediately preceding calendar year for the same month as the Current CPI.
The term "CPI" shall mean the "Consumer Price Index for All Urban Consumers (CPI-U)"
published by the Bureau of Labor Statistics of the U.S. Department of Labor, All Items
(1982-84=100), U.S. City Average, or any successor index thereto, appropriately
adjusted. If the CPI ceases to be published and there is no successor thereto, such other
government or nonpartisan index or computation shall be used which would obtain a
substantially similar result as if the CPI had not been discontinued.
2.3 Payments to City. All invoice payments required by this Lease shall be made
payable to "The City of Dubuque, Iowa" and delivered to the City of Dubuque Finance
Department, City Hall. Any payments due not paid in full by the due date shall be subject
to the lesser of the maximum interest provided by law or the following rates:
• 1 % per month
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2.4 Wharfage.
(1) Lessee shall pay Lessor for all goods, including liquids, transferred to the
Demised Premises by water, rail or motor vehicle for every ton received at the
Demised Premises as follows:
Grain/Liquid Fertilizer
All other goods
$ 0.1000/ton
$ 0.2500/ton
Lessee shall not be required to pay said fee for Lessor's inbound cargo.
(2) Wharfage Adjustment for Section 2.4(1). The wharfage for each year of the
Term, beginning on the first anniversary date of the Commencement Date and
continuing on each subsequent anniversary date thereof, shall be determined by
multiplying the wharfage in effect immediately prior to the applicable anniversary
date of the Commencement Date by the CPI Adjustment (as hereinafter defined)
and then adding the resulting product, if positive ("CPI Increase"), to the wharfage
in effect immediately prior to the applicable anniversary date; provided, however,
in no event shall any increase in the wharfage rate exceed three percent (3%) of
the then -current wharfage rate and provided, further, that in no event shall the
wharfage rate for any year be less than the wharfage rate for the immediately
preceding year.
The "CPI Adjustment" shall be a fraction expressed as a decimal, the numerator
of which shall be the Current CPI minus the Prior CPI and the denominator of which
is the Prior CPI, or 3% whichever amount is less. The "Current CPI" is the latest
CPI published prior to the anniversary date of the lease term. The "Prior CPI" is
the CPI published in the immediately preceding calendar year for the same month
as the Current CPI.
The term "CPI" shall mean the "Consumer Price Index for All Urban Consumers
(CPI-U)" published by the Bureau of Labor Statistics of the U.S. Department of
Labor, All Items (1982-84=100), U.S. City Average, or any successor index
thereto, appropriately adjusted. If the CPI ceases to be published and there is no
successor thereto, such other government or nonpartisan index or computation
shall be used which would obtain a substantially similar result as if the CPI had not
been discontinued.
(3) Tonnage reports shall be provided to Lessor by January 15 of each year for
the preceding calendar year with the payment for each year due by no later than
February 1 immediately following the end of each such year.
SECTION 3. TITLE TO IMPROVEMENTS AND TRADE FIXTURES.
3.1 Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean all of
4
Lessee's personal property located on the Demised Premises used in connection with
Lessee's business. Title to Lessee's Trade Fixtures is and shall be the sole and exclusive
property of Lessee during the Term of this Lease and shall remain the sole and exclusive
property of Lessee after the expiration or termination of this Lease, for whatever reason.
Lessor acknowledges and understands that it shall have no right, title or interest in or to
Lessee's Trade Fixtures either during the Term of this Lease, or thereafter (except as
hereinafter provided). Lessor acknowledges and agrees that Lessee shall have the right
to encumber, sell, or hypothecate Lessee's Trade Fixtures, to remove them from the
Demised Premises, or to otherwise deal with all or any portion of such Lessee's Trade
Fixtures, at Lessee's sole discretion. Upon ten (10) days' prior written notice to Lessor,
Lessor shall execute and deliver to Lessee a certificate in recordable form prepared by
Lessee stating that Lessor has no interest or right in or to Lessee's Trade Fixtures, as
well as any other or further document which Lessee may reasonably request from Lessor.
3.2 Improvements. Existing Improvements on the Demised Premises as of the
commencement of the Term are as follows:
Any existing tanks, silos, permanently anchored and installed belt
conveying systems or piped conveying systems, hard wired electrical
systems, railroad tracks and buildings.
Lessee shall not construct any new improvements on the Demised Premises without the
prior written consent of Lessor, which consent shall not be unreasonably withheld or
delayed. By executing this Lease, Lessor hereby grants Lessee written consent to remove
the office building on the Demised Premises, subject to and in compliance with all
applicable requirements of the City of Dubuque Code of Ordinances and the terms and
conditions of this Lease. All Existing Improvements and any improvements constructed
after the Commencement Date (collectively the "Improvements") on the Demised
Premises are and shall be the property of Lessee during the Term of this Lease and no
longer. Upon the expiration or any termination of this Lease, by reason of any cause
whatsoever, if the Improvements or any part thereof shall then be on the Demised
Premises, all of Lessee's right, title, and interest therein shall cease and terminate, and
title to the Improvements shall vest in Lessor, and the Improvements or the part thereof
then within the Demised Premises shall be surrendered by Lessee to Lessor. No further
deed or other instrument shall be necessary to confirm the vesting in Lessor of title to the
Improvements. However, upon any termination of this Lease, Lessee, upon request of
Lessor, shall execute, acknowledge and deliver to Lessor a quitclaim deed confirming
that all of Lessee's right, title and interest in or to the Improvements has expired, and that
title to the Improvements has vested in Lessor. Lessor reserves the right to require Lessee
to remove some or all of the Improvements, which Lessee shall accomplish within 30
days of the expiration of this Lease Agreement, provided that Lessor must provide Lessee
written notice of which Improvements must be removed not less than 180 days prior to
the expiration of the Lease Term.
3.3 Compliance with City Ordinances. Lessee shall comply with all applicable City of
Dubuque Code of Ordinances with respect to Lessee's construction or installation of any
5
new improvements. City shall reasonably assist Lessee in obtaining any necessary
approvals regarding any new improvements.
3.4 Landscaping.
(1) No fence shall be installed on the Demised Premises without the approval
of Lessor, which consent shall not be unreasonably withheld; provided, however,
that if such fencing is otherwise required by applicable law, rule or regulation,
Lessee may install such fencing without Lessor's consent.
(2) Lessee shall, no later than July 1, 2021, install landscaping along Kerper
Boulevard substantially similar to the landscaping shown on Exhibit B. Lessee shall
maintain all landscaping on the Demised Premises during the Term of this Lease.
3.5 Flagpoles. Lessee shall, no later than July 1, 2021 construct in an area along the
western boundary of the Demised Premises, not less than three (3) 35-foot lighted flag
poles, one of which shall display a minimum 5-foot by 8-foot official flag of the City of
Dubuque, which official flag Lessor shall provide to Lessee. All flags shall be maintained
in a state of good repair at all times and replaced at least every six months.
3.6 Railroad Extensions.
(1) Lessee shall have the exclusive right (subject to this paragraph) to use the
Lessor owned railroad spur track connecting to the Demised Premises and located
off of the Demised Premises shown in yellow on Exhibit C (the "Lessor Track").
Lessor hereby grants Lessee written consent, but Lessee is not obligated, to
construct and install the railroad improvements to the Lessor Track shown on
Exhibit C (the "Rail Improvements") attached hereto incorporated herein. Lessor
shall upon the request of Lessee, request that the CN Railroad, or other applicable
party, reinstall the switch serving the Lessor Track. Lessor and Lessee
acknowledge that the estimated cost of the Rail Improvements and the associated
materials and equipment is $1,500,000.00 based on the estimate provided by
Lessee. If Lessor or East Central Intergovernmental Agency receives a state or
federal grant and/or loan to rebuild the Rail Improvements, Lessor or East Central
Intergovernmental Agency shall contribute such funds to Lessee for the Rail
Improvements, or if Lessor or East Central Intergovernmental Agency is prohibited
by such grants or loans from contributing the funds to Lessee, then Lessor or East
Central Intergovernmental Agency shall pay such funds to the entity constructing
the Rail Improvements, and Lessee shall pay the balance of the costs. Lessor's
or East Central Intergovernmental Agency's contribution to the Rail Improvements
shall not be due and payable to Lessee until thirty (30) days after the Rail
Improvements are completed and fully operational and approved by Lessor in
Lessor's sole discretion, which shall not be unreasonably withheld or delayed.
Provided the Rail Improvements are completed, Lessee at its expense shall
maintain the Lessor Track and Rail Improvements in accordance with all applicable
laws governing its use thereof; provided, however, that Lessor and its other tenants
6
at the port shall be permitted to use the Lessor Track and Rail Improvements upon
the following conditions: (i) use of the Lessor Track and Rail Improvements by any
third parties pursuant to this Section shall not interfere with Lessee's use of the
Lessor Track or Rail Improvements, (ii) Lessee shall retain first priority to use the
Lessor Track and Rail Improvements, (iii) Lessee may charge Lessor or any such
third party a reasonable switching charge or other fee for use of the Lessor Track
or Rail Improvements and may require any such third party to sign a reasonable
indemnity agreement, and (iv) Lessor shall defend, indemnify and hold harmless
Lessee from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and expenses (including reasonable attorney fees)
imposed upon, incurred by or asserted against Lessee in connection with Lessor's
use of the Lessor Track or Rail Improvements. Lessee agrees that in moving cars
with its own locomotives it shall not unreasonably block any public rail crossing of
the Lessor Track (East Seventh Street or East Commercial Street), excepting any
blocking of a crossing caused by mechanical breakdown, track or switch icing,
derailment or other matter beyond Lessee's reasonable control provided that
Lessee take reasonable steps to timely address any such issue. The parties hereto
acknowledge and agree that this Section 3.6 is part of the consideration for this
Lease, and Lessee, subject to the foregoing, agrees to cooperate with said parties
to make such connections to the track of Lessee
(2) For any railroad tracks on the Demised Premises shown on Exhibit A
existing as of the commencement of this Lease and in the event Lessee installs
any track on the Demised Premises (together, the "Demised Premises Tracks"),
Lessee at its expense shall maintain the Demised Premises Tracks , including at -
grade crossings, in accordance with all applicable laws governing its use thereof.
Lessee shall have the exclusive right to use the Demised Premises Tracks, and
neither Lessor nor any other tenant shall be permitted to use the Demised
Premises Tracks without the prior written authorization of Lessee.
SECTION 4. ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST. Lessee may
not encumber by mortgage, deed of trust or other financial instrument, the Demised
Premises without the prior written consent of Lessor which consent shall not be
unreasonably withheld.
SECTION 5. TAXES.
5.1 Lessee agrees to pay to City as additional rent an amount equal to real estate
taxes upon the real estate of the Demised Premises that accrue during the Term of this
Lease (including taxes accrued during the Term but not due and payable until after the
Term), upon receipt of a statement from City, accompanied with all statements from any
other taxing authority verifying the amount of such accrued taxes.
5.2 During the Term of this Lease, Lessee further agrees to pay all other taxes, fees,
rates, charges, levies, general assessments and special assessments for which Lessor
7
is entitled to impose under statute or ordinance due to the actions or inactions of Lessee,
of every name, nature and kind, whether now known to the law or hereafter created which
may be taxed, charged, assessed, levied or imposed upon the real estate of the Demised
Premises and which become payable during the term hereof and which would become
delinquent if not so paid during the term hereof, any buildings or improvements thereon
which may be taxed, charged, assessed, levied or imposed upon the leasehold estate
hereby created and upon the real estate of the Demised Premises during the Term hereof
and which become payable during the term hereof and which would become delinquent
if not so paid during the Term hereof, and all such taxes, fees, rates, charges, levies and
assessments shall be paid by Lessee as they become due and before they become
delinquent during the Term hereof.
5.3 Lessee agrees to timely pay all taxes, fees, assessments or other public charges
levied or assessed by lawful authority (but reasonably preserving Lessee's rights of
appeal) against its personal property on the Demised Premises, during the Term of this
Lease.
5.4 Nothing herein shall require Lessee to pay any of Lessor's income taxes, surtaxes,
excess profit taxes or any taxes on the rents or other amounts reserved or paid to Lessor
hereunder.
5.5 Lessee shall at all times have the right to challenge or contest in good faith, in any
proper proceedings, in the name of Lessor if necessary, the amount, valuation, payment
or satisfaction of any such taxes, fees, assessments, rates, charges or levies so agreed
to be paid by Lessee if the amount, valuation or validity thereof, or the right to assess or
levy the same against or collect the same from said Demised Premises or Lessee's
improvements, shall be disputed, and Lessor shall provide reasonable cooperation in
support of any such challenge or contest by Lessee unless Lessor is the entity imposing
such taxes, fees, assessments, rates, charges or levies. Upon the conclusion of any such
suit or proceedings Lessee shall promptly pay and satisfy such disputed tax, fee,
assessment or other charge as finally determined, together with all expenses, costs and
attorneys' fees whatsoever incurred in connection therewith.
SECTION 6. REPAIRS.
6.1 Lessee shall at all times during the term of this Lease, at Lessee's own costs and
expense, keep the Demised Premises and the improvements thereon, including all
sidewalks, curbs, and all appurtenances upon Demised Premises, and the dolphins and
structures in the channel adjacent to and serving the Demised Premises, in good order,
condition and repair, and in a safe, clean and neat condition, casualties and ordinary wear
and tear excepted. Lessee shall keep the Demised Premises in such condition as may
be required by law and by the terms of the insurance policies furnished pursuant to this
Lease, whether or not such repair shall be interior or exterior, and whether or not such
repair shall be of a structural nature. Upon reasonable notice to Lessee, Lessor may, at
its discretion and at its cost, during Lessee's normal business hours and while
accompanied by Lessee, conduct an annual inspection of the Demised Premises to
8
determine Lessee's compliance with this Section 6.
6.2 Except for the levee and floodwall, Lessor shall have no obligation to Lessee for
any maintenance expense of any kind on the Demised Premises, including but not limited
to sidewalks, private roads, or railroad tracks.
SECTION 7. ALTERATIONS. Lessee shall not, without Lessor's prior written consent,
which consent shall not be unreasonably withheld or delayed, make any alteration,
addition, or modification to any improvement on the Demised Premises that exceeds One
Hundred Thousand Dollars ($100,000.00) in cost. Any alteration, addition, or modification
of less than One Hundred Thousand Dollars ($100,000.00) shall not require Lessor's
consent. By executing this Lease, Lessor hereby grants Lessee written consent to
construct or modify the Improvements on the Demised Premises described in Section 3
as well as the Rail Improvements, subject to the requirements in Section 3.
SECTION 8. COMPLIANCE WITH LAW.
8.1 During the term of this Lease, Lessee shall comply with all local, state and federal
laws applicable to Lessee's use of the Demised Premises, including but not limited to the
Americans with Disabilities Act and the Smokefree Air Act, Iowa Code Section 142D.3.
Lessee shall not commit waste on the Demised Premises except as necessary for its
business purposes including the removal or construction of any buildings and
improvements on the Demised Premises.
8.2 Lessee shall also at all times comply with all regulations governing the use of the
USACE Permitted Area shown on Exhibit A. In the event Lessee elects to construct an
entrance to the USACE Permitted Area, any such construction shall require the prior
written approval of Lessor, which shall not be unreasonably withheld, and the United
States Army Corps of Engineers. Lessee shall be solely responsible for the cost of any
such entrance.
8.3 Lessor reserves a right of access to the levee and floodwall at all times for Lessor's
operations and maintenance of the levee and floodwall, provided that Lessor shall make
reasonable efforts not to interfere with Lessee's operations. Lessee acknowledges that
there is a U.S. Army Corps of Engineers Clear Zone on the Demised Property, and
Lessee agrees to comply with such free zone requirement at all times, subject to any prior
approvals from the U.S. Army Corps of Engineer or permitted exclusions including
preexisting structures. The foregoing notwithstanding, but only to the extent it complies
with the rules of the U.S. Army Corps of Engineers, Lessee shall be allowed to maintain
the use and placement of the following existing improvements: fertilizer storage and
loading facility, fertilizer storage tanks, maintenance shop, and rail line extensions.
SECTION 9. USE OF DEMISED PREMISES.
9.1 Lessee shall not knowingly use or allow the Demised Premises or any buildings or
improvements thereon, to be used or occupied for any unlawful purpose or in violation of
9
any certificate of occupancy. Lessee shall not engage in any act or permit any condition
to exist within the Demised Premises or in any improvement thereon, or permit any article
to be brought therein, which is inherently dangerous, unless safeguarded as required by
law, or which, in law, constitutes a public nuisance, or which makes void or voidable any
insurance in force with respect thereto.
SECTION 10. PARKING. Lessor's employees, clients, or contractors may not park in
such a manner that interferes with other lessors of City's other property or the City's use
of such other property.
SECTION 11. INSURANCE.
11.1 Lessee shall maintain during the Term of this Lease insurance as set forth in the
City's Standard Insurance Schedule for Lessees of City Property. The insurance
coverage limits in such uniform, standardized schedule may from time to time be
reasonably amended. The Insurance Schedule is attached to this Lease as Insurance
Schedule A. Lessor shall provide written notice of any rate limit amendment to the
Insurance Schedule not less than sixty days prior to the effective date of such
amendment.
11.2 Lessee shall maintain, or cause to be maintained, at its cost and expense (and
from time to time at the reasonable request of City shall furnish proof of such insurance),
property insurance against loss and/or damage to improvements under an insurance
policy written on the Special Perils Form in an amount not less than the full insurable
replacement value of the Improvements. The term "replacement value" shall mean the
actual replacement cost of the Improvements (excluding foundation and excavation costs
and costs of underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be determined from time to time at the reasonable request of City,
but not more frequently than once every three years, and paid for by Lessee.
11.3 Lessee agrees to promptly notify City in the case of damage exceeding $250,000
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 Lessee, and Lessee, in its sole discretion, may remove or repair, reconstruct,
restore, or replace the Improvements to substantially the same or an improved condition
or value as they existed prior to the event causing such damage subject to the
requirements of the City of Dubuque Code of Ordinances and, to the extent necessary to
accomplish such repair, reconstruction and restoration, Lessee may apply the Net
Proceeds of any insurance relating to such damage received by Lessee to the payment
or reimbursement of the costs thereof. Lessee shall notify Lessor of any damage to the
flood wall regardless of the amount of such damage.
11.4 Lessee shall complete the removal, replacement, repair, reconstruction or
restoration of improvements, whether or not the Net Proceeds of insurance received by
Lessee for such purposes are sufficient.
10
SECTION 12. LESSOR'S WARRANTIES AND REPRESENTATIONS.
12.1 Lessor's Representation of Good Title. Lessor covenants and warrants that Lessor
is lawfully seized in possession of the Demised Premises, and that it has full right and
authority to enter into this Lease for the full Term hereof, and covenants and agrees that
upon paying the rent provided for herein, and upon Lessee's performing the covenants
and agreements of this Lease required to be performed by said Lessee, that it will have,
hold and enjoy quiet possession of the Demised Premises. Lessor warrants to Lessee
that the Demised Premises are properly zoned for the conduct of the operation of
Lessee's business. Lessor otherwise covenants and warrants that it has full authority to
grant the rights set forth herein.
12.2 Lessor makes no representations or warranties as to the condition, including
environmental condition, of the Demised Premises and Lessee accepts the Demised
Premises as is.
SECTION 13. LESSEE'S WARRANTIES AND REPRESENTATION.
13.1 Lessee Compliance With Law. Lessee shall comply with all applicable local, state
and federal laws, rules, regulations and permits with regard to the Demised Premises and
its use and occupancy of the Demised Premises.
13.2 Environmental Matters.
(1) Lessee covenants and agrees that Lessor shall have no responsibility for or
liability arising from any release of a Hazardous Substance which is caused by or
results from Lessee or Lessee's use of the Demised Premises, except for Lessor
Hazardous Substances (any Hazardous Substance which leaches or migrates
upon the Demised Premises from any property owned by Lessor) of Lessor or any
third party authorized by Lessor to use the Demised Premises and relating to the
use of Demised Premises Tracks by the same. Notwithstanding any other
provision of this Lease, Lessee shall not have any responsibility for any Hazardous
Substance which leaches or migrates upon the Demised Premises from any
adjacent property or any release of a Hazardous Substances which is caused by
Lessor or any third party utilizing the Demised Premises Tracks or which pre-exists
the date of this Lease; provided, however, that Lessee shall be responsible for pre-
existing releases to the extent caused by Lessee. Lessee shall provide reasonable
cooperation, assistance, and access to Lessor or other parties investigating and/or
responding to a threatened or actual release of a Hazardous Substance.
(2) Lessee covenants and agrees to promptly notify Lessor of any release of a
Hazardous Substance in, on or about the Demised Premises, the shoreline along
the Demised Premises or the channel adjacent to the Demised Premises, of which
Lessee has actual knowledge.
(3) Lessee covenants and agrees to promptly take any and all necessary
11
response required by an environmental regulatory authority having jurisdiction to
address any release of a Hazardous Substance for which Lessee is responsible
under this Section following advance notice to Lessor. Such response shall
include, without limitation, notification to appropriate governmental authorities, as
may be required by law.
(4) Lessee covenants and agrees to not manufacture, treat or dispose of
Hazardous Substances at the Demised Premises, the shoreline along the Demised
Premises or the channel adjacent to the Demised Premises, or allow the
manufacture, treatment, or disposal of Hazardous Substances on the Demised
Premises, the shoreline along the Demised Premises or the channel adjacent to
the Demised Premises. Lessee shall use and store on the Demised Premises, the
shoreline along the Demised Premises or the channel adjacent to the Demised
Premises, only those Hazardous Substances as are associated with its regular
business activities, and then only as allowed by law.
(5) For the purposes of this Lease, "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 Iowa or the United
States Government. It includes, without limitation, any material or substance that
is (i) defined as a "hazardous substance" or "hazardous waste" under Chapter
455B, Iowa Code, (ii) petroleum and petroleum products, (iii) asbestos containing
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)
defined as a "hazardous waste" pursuant to § 1004of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (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
Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. § 6991 et
seq. The term "Hazardous Substance" shall not include any air emissions
discharged into the atmosphere as allowed by a duly issued permit from the
applicable governmental agency.
SECTION 14. INDEMNIFICATION.
14.1 Indemnification of Lessee. To the extent allowed by law, Lessor will defend,
indemnify and save harmless Lessee 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 Lessee by reason of (a) any accident, injury to or death of persons or loss of or
damage to property occurring on or about the Demised Premises, the shoreline along the
Demised Premises or the channel adjacent to the Demised Premises, resulting from any
act or omission of Lessor its agents, employees, lessee's or invitees, (b) any failure on
the part of Lessor to perform or comply with any of the terms of this Lease,(c) any breach
on the part of Lessor of any warranty or representation contained in Section 12, and (d)
12
any Hazardous Substance on the Demised Premises, the shoreline along the Demised
Premises or the channel adjacent to the Demised Premises, which is not the responsibility
of Lessee pursuant to Section 13.2(1). In case any action, suit or proceeding is brought
against Lessee by reason of such occurrence, Lessor will, at Lessor's expense and
discretion, either defend such action, suit or proceeding, or cause the same to be
defended by counsel approved by Lessee, which approval will not be unreasonably
withheld.
14.2 Indemnification of Lessor. Lessee will defend, indemnify and save harmless
Lessor 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 Lessor by reason of (a) any
accident, injury to or death of persons or loss of or damage to property occurring on or
about the Demised Premises, the shoreline along the Demised Premises or the channel
adjacent to the Demised Premises, during the Term of this Lease and resulting from any
negligence of Lessee or anyone claiming by, through or under Lessee during the Term of
the Lease and (b) any failure on the part of Lessee to perform or comply in any material
respect with any of the material terms of this Lease, (c) any material breach on the part
of Lessee of any warranty or representation contained in Section 12, and (d) any
Hazardous Substance on the Demised Premises, the shoreline along the Demised
Premises or the channel adjacent to the Demised Premises, which is the responsibility of
Lessee pursuant to Section 13.2(1). In case any action, suit or proceeding is brought
against Lessor by reason of such occurrence, Lessee will, at Lessee's expense and
discretion, either defend such action, suit or proceeding, or cause the same to be
defended by counsel approved by Lessor, which approval will not be unreasonably
withheld.
14.3 Survival. The obligations and liabilities under this Section shall survive 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 Lease.
SECTION 15. CONDEMNATION.
15.1 Entire Condemnation. If at any time during the term of this Lease all or
substantially all of the Demised 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 this Lease shall terminate on the date of vesting of title in such
taking and any prepaid rent shall be apportioned as of said date. Substantially all of the
Demised Premises and the improvements thereon shall be deemed to have been taken
if the remaining portion of the Demised Premises shall not be of sufficient size to permit
Lessee, in Lessee's sole discretion, to operate its business thereon in a manner similar
to that prior to such taking.
15.2 Allocation of Award. Any award for such taking of all or substantially all of the
Demised Premises shall be paid to the parties hereto in accordance with the following:
13
(1) To Lessor, the amount of the award attributable to the real estate
constituting the Demised Premises, determined as if this Lease was not in effect
at the time of such award, excluding therefrom the amount of the award attributable
to improvements constructed and all other sums not directly attributable to the
value of the real estate constituting the Demised Premises;
(2) To Lessee, the entire award except that portion allocated to Lessor above.
15.3 Partial Condemnation.
(1) If less than all or substantially all of the Demised 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
Lessee, at its option, may elect to continue this Lease in full force and effect or
terminate this Lease. If Lessee shall elect to maintain this Lease in full force and
effect, the award for such partial condemnation shall be allocated as provided in
Section 15.2, and Lessee shall proceed with reasonable diligence to carry out any
necessary repair and restoration so that the remaining improvements and
appurtenances shall constitute a complete structural unit or units which can be
operated on an economically feasible basis under the provisions of this Lease. In
the event Lessee elects to continue this Lease in full force and effect after a partial
condemnation, the Rent shall be reduced in proportion to the area of the Demised
Premises taken.
(2) Should Lessee elect to terminate this Lease upon a partial condemnation,
Lessee shall provide Lessor with written notice of such election within thirty (30)
days after the date of vesting of title for such taking. Lessee shall specify in such
written notice the date on which this Lease shall terminate, which date shall be not
less than 60 days nor more than 360 days after delivery of such notice to Lessor
(the Termination Date). In the event Lessee terminates this Lease, Lessee shall
be entitled to the entire award for such partial taking.
15.4 Temporary Taking. If the temporary use of the whole or any part of the Demised
Premises or the improvements thereon or the appurtenances thereto shall be taken at
any time during the term of this Lease in the exercise of the power of eminent domain by
any sovereign, municipality, or other authority, the term of this Lease shall not be reduced
or affected in any way, and Lessee shall continue to pay in full the Rent, additional rent
and other sum or sums of money and charges herein reserved and provided to be paid
by Lessee, and the entire award for such temporary taking shall be paid to Lessee.
Lessee shall repair and restore any and all damage to the Demised Premises and the
improvements as soon as reasonably practicable after such temporary taking.
SECTION 16. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned
by Lessee without the prior written consent of Lessor, which consent shall not be
unreasonably withheld or delayed, except to a third party acquiring all or substantially all
of Lessee's assets related to this Lease.
14
SECTION 17. DEFAULT.
17.1 Lessor's Rights in the Event of Lessee's Default. If Lessee shall fail or neglect to
observe, keep or perform any of the covenants, terms or conditions contained in this
Lease on its part to be observed, kept or performed, and the default shall continue for a
period of thirty (30) days after written notice from Lessor setting forth the nature of
Lessee'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 Lessee has to 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 one hundred eighty (180) days or in the
event such cure relies on the consent or involvement of any regulatory authority, railroad
or other third party or is due to Force Majeure such time as a cure can reasonably be
effected by promptly initiating and diligently continuing reasonable efforts, then and in any
such event, Lessor shall have the right at its option, on written notice to Lessee, to
terminate this Lease. Lessor shall thereafter have the right to enter and take possession
of the Demised Premises with process of law and to remove all personal property from
the Demised Premises and all persons occupying the Demised Premises and to use all
necessary force therefor and in all respects to take the actual, full and exclusive
possession of the Demised Premises and every part of the Demised Premises as of
Lessor's original estate, without incurring any liability to Lessee or to any persons
occupying or using the Demised Premises for any damage caused or sustained by reason
of such entry on the Demised Premises or the removal of persons or property from the
Demised Premises.
17.2 Lessee's Rights in the Event of Lessor's Default. If Lessor shall fail or neglect to
observe, keep or perform any of the covenants, terms or conditions contained in this
Lease on its part to be observed, kept or performed, and the default shall continue for a
period of thirty (30) days after written notice from Lessee setting forth the nature of
Lessor'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 Lessor has to 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 one hundred eighty (180) days, or in
the event such cure relies on the consent or involvement of any regulatory authority,
railroad or other third party or is due to Force Majeure such time as a cure can reasonably
be effected by promptly initiating and diligently continuing reasonable efforts, then and in
any such event, Lessee shall have all rights available to it provided by law or equity.
SECTION 18. 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
thirty (30) days' prior written notice to such defaulting party (or such additional time to
cure as may be accorded pursuant to 17.1 above, but in no event longer than ninety (90)
days), the other party, at such other party's option, in addition to all other 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 Demised
15
Premises and the improvements thereon, as such other party may deem 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 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
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.
SECTION 19. QUIET ENJOYMENT. Lessor covenants that at all times during the term
of this Lease, so long as Lessee is not in default hereunder, Lessee's quiet enjoyment of
the Demised Premises or any part thereof shall not be disturbed by any act of Lessor, or
of anyone acting by, through or under Lessor. Notwithstanding the foregoing, Lessor shall
have the right upon reasonable notice to Lessee, but not more frequently than once per
calendar quarter, to enter the Demised Premised at any reasonable time during Lessee's
normal business hours to determine whether Lessee is in compliance with the
requirements of this Lease.
SECTION 20. ESTOPPEL CERTIFICATES. Each party hereto agrees that at any time
and from time to time during the term of this Lease, within ten (10) days after request by
the other party hereto or by any lender having an interest in Lessee's leasehold estate, it
will execute, acknowledge and deliver to the other party or to such lender or any
prospective purchaser, assignee or any mortgagee designated by such other party to the
extent true, a certificate stating (a) that this Lease is unmodified and in force and effect
(or if there have been modifications, that this Lease is in force and effect as modified, and
identifying the modification agreements), (b) the date to which rent has been paid, (c)
whether or not there is any existing default by Lessee in the payment of any rent 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.
SECTION 21. WAIVER. No waiver by either party hereto of any breach by the other
of any term, covenant, condition or agreement herein and no failure by any party to
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
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 Lessor, operate as a waiver of the rights of
Lessor to enforce the payment of any other rent then or thereafter in default, or to
terminate this Lease, or to recover the Demised Premises, or to invoke any other
appropriate remedy which Lessor may select as herein or by law provided.
SECTION 22. SURRENDER. Lessee shall, on the last day of the Term of this Lease
16
or upon any termination of this Lease, surrender and deliver the Demised Premises, with
the improvements then located thereon into the possession and use of Lessor, 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 Lease and those, if any,
created by Lessor, without (except as otherwise provided herein) any payment or
allowance whatsoever by Lessor on account of or for any buildings and improvements
erected or maintained on the Demised Premises at the time of the surrender. Lessee's
Trade Fixtures, personal property, equipment, materials and other belongings of Lessee
or of any sublessee or other occupant of space in the Demised Premises shall be and
remain the property of Lessee, and Lessee shall have a reasonable time after the
expiration of the term of this Lease (not to exceed thirty (30) days) to remove the same.
If Lessee fails to remove any Lessee's Trade Fixtures, personal property, equipment,
materials or other belongings from the Demised Premises within 30 days of the expiration
date of this lease, they will immediately become property of the Lessor. Any costs incurred
by Lessor having to remove, relocate, handle, store, sell or dispose of Lessee's items
described in this Section shall be paid for by Lessee.
SECTION 23. MEMORANDUM OF LEASE. Each of the parties hereto will, promptly
upon request of the other, execute a memorandum of this Lease in a form suitable for
recording setting forth the names of the parties hereto and the term of this Lease,
identifying the Demised Premises, and also including such other clauses therein as either
party may desire, except the amounts of Rent payable hereunder.
SECTION 24. NOTICES.
24.1 All notices, demands or other writings in this Lease 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, or by UPS or FEDEX with proof
of receipt addressed as follows:
TO LESSOR:
WITH COPY TO:
TO LESSEE:
City of Dubuque, Iowa
City Manager
City Hall
50 West 13th Street
Dubuque IA 52001
City Attorney
City Hall
50 West 13th Street
Dubuque IA 52001
Gavilon Grain, LLC
1331 Capitol Ave
Omaha, NE 68102
17
WITH COPY TO:
Attention: Legal Department
Gavilon Grain LLC
505 East 7th Street
Dubuque, Iowa 52001
Attn: Delbert Uhlik
24.2 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.
SECTION 25. MISCELLANEOUS.
25.1 Time of the Essence. Time is of the essence of this Lease and all of its provisions.
25.2 Governing Law. It is agreed that this Lease shall be governed by, construed and
enforced in accordance with the laws of the State of Iowa.
25.3 Paragraph Headings. The titles to the paragraphs of this Lease 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 Lease.
25.4 Modification of Agreement. Any modification of this Lease or additional obligation
assumed by either party in connection with this Lease shall be binding only if evidenced
in a writing signed by each party or an authorized representative of each party.
25.5 Parties Bound. This Lease shall be binding on and shall inure to the benefit of and
shall apply to the respective successors and assigns of Lessor and Lessee. All
references in this Lease to "Lessor" or "Lessee" shall be deemed to refer to and include
successors and assigns of Lessor or Lessee without specific mention of such successors
or assigns.
25.6 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 of construction materials, unavailability or
excessive price of fuel, power failure, riots, insurrection, war, terrorist activities,
explosions, hazardous conditions, fire, flood, 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 the terms of this Lease (collectively "Force
Majeure"), 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 period equivalent
to the period of such delay.
SECTION 26. DISPUTE RESOLUTION. Lessor and Lessee 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 Lease, the parties will engage in mediation in
18
accordance with the Commercial Arbitration Rules of the U. S. Arbitration & Mediation,
Midwest ("USA&M") or the American Arbitration Association ("AAA"). The parties shall
divide equally all costs of mediation which shall be paid immediately upon billing by the
mediation service.
SIGNATURE PAGE FOLLOWS
19
LESSOR: LESSEE:
CITY OF DUBUQUE, IOWA
GAVILON GRAIN, LLC
By: By:
Roy D. Buol, Mayor
Attest:
Name: fI o►Th 1-"e>1% 1AS
By: Title:
Kevin S. Firnstahl, City Clerk
LIST OF EXHIBITS
EXHIBIT A Demised Premises
EXHIBIT B Landscaping
EXHIBIT C Rail Improvements
INSURANCE SCHEDULE A
EXHIBIT A
THE DEMISED PREMISES
diSpecial Achievement in GIS
2018 Award Winner
Gavilon Grain - Purina Drive
xe;Tm u. v:roissii:
DISCLAIMER'. This information was compiled using venous data sources
available to and/or maintained by the City of Dubuque (the City). By use
of this information, the user acknowledges that while the City utilizes the
most current and accurate information available, the City does not
warrant the accuracy or currency of the information or data contained
therein. By use of Nis information, the user agrees the City is not
responsible for the misuse or misinlerpreblion of any information
displayed in this map and the City is not liable for any loss, damage, or
inconvenience caused as a result of reliance on the information.
Demised Premises
USAGE Permitted Area
Exhibit A
N
*Subject to Survey Verification
created by: TWK 2019-01-25
updated by: TWK 2020-02-12
EXHIBIT B
LANDSCAPING
of! Ulr. ASAL111111MOMICIIPriali+Linf
'Jit IJY. I
EXHIBIT C
RAIL IMPROVEMENTS
Railroad Spur Locations
12th Street Peninsula
Retread ID 14 improved
- abet RAY mad Crain -fine
- or.eR 7Fn r & L.dd.r T idi.
W+E
'Subject to Survey Verification
creaked by TWVt 201$-01-07
we'verl by.
INSURANCE SCHEDULE A
1. Gavilon Grain, LLC shall furnish a signed certificate of insurance to the City of Dubuque, Iowa for
the coverage required in Exhibit I prior to the lease, license, or permit commencement. All
lessees of City property and right of way licensees or permittees shall submit an updated
certificate annually. Each certificate shall be prepared on the most current ACORD form approved
by the Iowa Insurance Division or an equivalent. Each certificate shall include a statement under
Description of Operations as to why the certificate was issued. Eg: Lease Agreement dated as of
July 1, 2020.
2. All policies of insurance required hereunder shall be with an insurer authorized to do business in
Iowa and all insurers 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 Finance Department of the City of Dubuque.
4. The lessee, licensee, or permittee shall be required to carry the minimum coverage/limits, or
greater if required by law or other legal agreement, in Exhibit I. Failure to provide the required
minimum coverage shall not be deemed a waiver of such requirements by the City of Dubuque.
5. Failure to obtain or maintain the required insurance shall be considered a material breach of the
lease, license, or permit.
6. All required endorsements shall be attached to certificate.
7. Whenever a specific ISO form is referenced the current edition of the form must be used unless
an equivalent form is approved by the Director of Finance and Budget. The lessee, licensee, or
permittee must identify and list in writing all deviations and exclusions from the ISO form.
8. If lessee's, licensee's, or permittee's limits of liability are higher than the required minimum limits
then the lessee's, licensee's, or permittee's limits shall be this agreement's required limits.
9. Lessee, licensee, or permittee shall require all subcontractors and sub -subcontractors to obtain
and maintain during the performance of work insurance for the coverages described in this
Insurance Schedule and shall obtain certificates of insurance from all such subcontractors and
sub -subcontractors. Lessee, licensee, or permittee agrees that it shall be liable for the failure of a
subcontractor and sub -subcontractor to obtain and maintain such coverage. The City may
request a copy of such certificates from the lessee, licensee, or permittee.
10. Lessee, license & permittees shall be responsible for deductibles and self -insured retention.
INSURANCE SCHEDULE A (Continued)
EXHIBIT I
A) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000
Personal and Advertising Injury Limit $1,000,000
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. The general
liability coverage shall be written in accord with ISO form CG 00 01 or business
owners form BP 00 02. All deviations from the standard ISO commercial general
liability form CG 0001, or Business owners form BP 00 02, shall be clearly
identified.
b) Include endorsement indicating that coverage is primary and non-contributory.
c) Include Preservation of Governmental Immunities Endorsement (Sample
attached).
d) 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.
e) If lessee, licensee, or permittee utilizes Trikkes or Segways in the conduct of
business, include an endorsement reflecting that these vehicles are not excluded
from Commercial General Liability coverage.
f) Policy shall include Waiver of Right to Recover from Others Endorsement.
B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory Benefits covering all employees injured on the job by accident or disease as
prescribed by Iowa Code Chapter 85.
Coverage A
Coverage B
Statutory —State of Iowa
Employers Liability
Each Accident
Each Employee -Disease
Policy Limit -Disease
$100,000
$100,000
$500,000
Policy shall include Waiver of Right to Recover from Others endorsement.
Coverage B limits shall be greater if required by the umbrella/excess insurer.
OR
Nonelection of Workers' Compensation or Employers' Liability Coverage under Iowa
Code sec. 87.22. Completed form must be attached.
INSURANCE SCHEDULE A (Continued)
C) POLLUTION LIABILITY
Coverage required: X yes no
Pollution liability coverage shall be required if the lessee, contracting party, or permittee
has any pollution exposure for abatement of hazardous or contaminated materials
including, but not limited to, petroleum products, the removal of lead, asbestos, or PCBs.
Each occurrence
Policy Aggregate
$2,000,000
$4,000,000
1) Policy to include job site and transportation coverage.
2) Include additional insured 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. Use ISO form CG 2010.
(Ongoing operations) or its equivalent and CG2037(completed operations) or
its equivalent.
3) Include Preservation of Governmental Immunities Endorsement.
4) Provide evidence of coverage for 5 years after completion of project.
D) PROPERTY INSURANCE REQUIRED BY LEASE, LICENSE, OR PERMIT
X yes no
Evidence of property coverage provided: yes
Include the City of Dubuque as Lender Loss Payable.
E) RIGHT-OF-WAY WORK ONLY:
UMBRELLA/EXCESS $1,000,000
X yes no
Umbrella/excess liability coverage must be at least following form with the underlying
policies included herein.
F) FLOOD INSURANCE
X yes no
Full replacement value.
PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmental Immunity. The insurer expressly agrees and states that the purchase
of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any
of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa
Section 670.4 as it is now exists and as it may be amended from time to time.
2. Claims Coverage. The insurer 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 insurer.
4. Non -Denial of Coverage. The insurer shall not deny coverage under this policy and the insurer
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 alter the coverage available under the policy.
SPECIMEN
(DEPARTMENT MANAGER: FILL IN ALL BLANKS AND CHECK BOXES)