Gavilon Grain, LLC Lease Agreement - Commercial Street_HearingCity of Dubuque
ITEM TITLE:
SUMMARY:
SUGGESTED DISPOSITION:
Copyrighted
April 6, 2020
Public Hearings # 3.
Gavilon Grain, LLC Lease Agreement - Commercial Street
(aka East 7th Street) Property
Proof of publication on notice of public hearing to consider
approval of a Lease Agreement with Gavilon Grain, LLC for
the Commercial Street (Seventh Street Lease), which will
replace the 1971 Lease Agreement, and the City Manager
recommending approval.
RESOLUTION Disposing of an interest in real property by
Lease Agreement between the City of Dubuque, Iowa and
Gavilon Grain, LLC - Commercial Street (Seventh Street)
Lease
Suggested Disposition: Receive and File; Adopt
Resolution(s)
ATTACHMENTS:
Description
Gavilon Industrial Riverfront Leases-MVM
August 16, 2016 Riverfront Leases Information
Gavilon Lease Recommendation from Engineering
Supporting Documents to Steve Sampson Brown
Memo-1
Supporting Documents to Steve Sampson Brown
Memo--2
Supporting Documents to Steve Sampson Brown
Memo-3
Supporting Documents to Steve Sampson Brown
Memo-4
Supporting Documents to Steve Sampson Brown
Memo-5
Staff Memo
Resolution Disposing - Commercial-7th Street
Gavilon - Commercial Street Lease (Partially Executed)
Type
Staff Memo
Supporting Documentation
Staff Memo
Supporting Documentation
Supporting Documentation
Supporting Documentation
Supporting Documentation
Supporting Documentation
Staff Memo
Resolutions
Supporting Documentation
Masterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Gavilon Industrial Riverfront Leases
DATE: April 2, 2020
Dubuque
kitting
AINUmerip City
11111,
2007.2012.2013
2017*2019
The City owns approximately 65 acres of prime riverfront industrial property, protected
by a levee, with existing barge -docking facilities on the Mississippi River available for
private industrial use. The City uses a small part of this to off load and store road salt to
treat streets in the winter and to sell to our local government partners. Having this site
allows the City to buy salt in bulk and save thousands of dollars a year in salt costs and
avoid ever running out of salt in a bad winter. These properties are a limited resource
that offers direct access to multi -modal transport methods, including:
1. Three rail lines, with a switching yard within one mile;
2. Existing docking and loading facilities for barges;
3. Four 4-lane highways; and
4. Mississippi River Bridge Crossings into Illinois and Wisconsin, two for vehicles
and one for trains.
In previous discussions with the Corps of Engineers, the U.S. Fish and Wildlife Service
and the Iowa Department of Natural Resources, the City has been told that if a
company could find a similar river accessible site conducive to industrial use it would
take about 10 years to go through the environmental permitting process and would need
to invest well over $20 million to make the site work. These agencies stressed the
point, if a site could be found. Using barges and trains is very efficient. One truck trailer
can carry 25 tons of product. One rail car can carry 110 tons. One barge can carry
1,750 tons. Relating this to transportation cost one barge equals, 16 rail cars and 70
truck trailers. That creates a great deal of value for the City industrial riverfront sites.
In the 1950's and 1960's, the City Dock Commission had full authority over leases for
City -owned riverfront property and executed leases for between 50 and 100 years at
below market rate with no escalation clauses to spur economic development. The
50-year leases are now coming due. The Dock Commission no longer exists and the
City land leases are now considered by the City Council.
Gavilon currently leases property from the City of Dubuque at four locations along the
12th Street Peninsula industrial harbor area. In 2013, two of Gavilon's expiring leases
were renegotiated as new lease agreements with new rental rates based on fair market
value along with market value wharfage rates. Both of these leases have terms that
expire in 25 years (2038). Prior to 2008, the original long-term riverfront lease
agreements substantially favored the lease tenants. General terms and conditions of
the previous lease agreements required the City to pay property taxes and to pay for
dredging of the docks adjacent to the lease sites. Historically dredging costs exceeded
$100,000 every few years on average. Considering the costs to administer the lease
agreements, in some cases prior to 2008, the City was barely breaking even on certain
lease agreements. In 2008 the City Council directed City staff to begin negotiating new
lease agreements based on fair market value as the existing long-term industrial leases
began to expire. Since 2008, all of the City -owned industrial lease sites have been
renegotiated with lease rates based on fair market value and more favorable general
terms and conditions, including the elimination of all dredging costs and property tax
payments except for two remaining Gavilon sites.
Gavilon currently operates two industrial lease sites with older lease agreements. One
site is adjacent to the Shot Tower and is currently known as the Freebird II LLC —
Lease 2 site [now renamed the Commercial Street (East 7th Street) site]. The current
lease agreement for this site was entered into in 1971. The existing agreement will
expire on November 30, 2021 after a 50-year period. The current lease site is 11.2
acres and has a rent with no cost of inflation adjustment of $6,792 per year. Under the
present agreement, annual wharfage revenues are estimated at $22,000/year.
The second industrial lease site is adjacent to Kerper Blvd. and Peosta Channel known
as the Freebird II LLC — Lease 3 site (now renamed the Purina Drive Lease). The
current lease agreement for this site was entered into in 2002. The existing agreement
will expire on November 30, 2022 after a 20-year period. The current lease site is 5.2
acres and has a rent that is adjusted only twice in years 10 and 15 via reappraisal. The
current annual rent for this property is $58,000 per year. There are no provisions for
wharfage revenue in the existing agreement.
The City has been attempting to renegotiate new, fair market value -based agreements
with Gavilon for the Commercial Street (aka East Seventh Street) Lease and the Purina
Drive Lease sites since 2014. City staff and Gavilon have now completed negotiations
regarding these two sites and are recommending approval of new lease agreements. I
do not think it should be lost on everyone that Gavilon cooperated in these most recent
negotiations and agreed to end their current leases over two years early. This will be
very beneficial to the City of Dubuque in these challenging economic times and for this
we owe them a debt of gratitude. To coincide with the two new lease agreements, two
amendments are proposed for the existing Salt Site and Dove Harbor leases so that the
wharfage rates for these two existing sites will match the wharfage rates proposed for
the Commercial Street and Purina Drive sites.
The bullets below summarize the new terms and conditions negotiated as part of the
Commercial Street and Purina Drive leases and with the Dove Harbor and Salt Site
lease amendments:
2
COMMERCIAL STREET
• Term is July 1, 2020 through June 30, 2048.
• Lease area is 8.07 acres with Gavilon having an option to rent an additional 1.13
acres within 6 months following the commencement date of the lease.
• Lease rent is $43,279.41/acre or a base rent of $349,264 per year with an annual
adjustment equal to the consumer price index, but not to exceed 3.0% per year.
• Gavilon will pay to City an annual docking fee of $19,691 with a CPI adjustment
which provides Gavilon with exclusive rights to use the shoreline adjacent to their
lease site.
• Wharfage rates will be Grain/DDGS/Oilseed $ 0.1000/ton, all other goods
$0.2500/ton with an annual adjustment equal to the consumer price index, but
not to exceed 3.0% per year.
• Gavilon will completely remove the existing warehouse building on the site by no
later than December 31, 2023.
• Gavilon has rights to use all railroad tracks in the 12th Street Peninsula area.
• Railroad Extensions — Gavilon intends to pay for the upgrade to the railroad track
spur lines that serve the 12th Street Peninsula (See Exhibit E). The City will
agree to support this work by submitting grant applications and advocating for
coordination by the Canadian National Railroad.
• Gavilon will install landscaping, flagpoles, and a site fence.
• Gavilon will pave all parking areas and drive lanes not later than April 1, 2024.
• Contribute to cost of reconstruction of Commercial Street by the lesser of the
assessment or $145,000.
• Any new buildings constructed on the site will be approved by the City and will be
aesthetically pleasing.
PURINA DRIVE
• Term is July 1, 2020 through June 30, 2048.
• Lease area is 4.86 acres
• Lease rent is $43,279.41/acre or a base rent of $210,338 per year with an annual
adjustment equal to the consumer price index, but not to exceed 3.0% per year.
• Gavilon will pay to City an annual docking fee of $17,094 with a CPI adjustment
which provides Gavilon with exclusive rights to use the shoreline adjacent to their
lease site.
• Wharfage rates will be Grain/DDGS/Oilseed $ 0.1000/ton, all other goods
$0.2500/ton with an annual adjustment equal to the consumer price index, but
not to exceed 3.0% per year.
• Gavilon has rights to use all railroad tracks in the 12th Street Peninsula area.
• Railroad Extensions — Gavilon will pay for railroad track upgrade as noted in the
Commercial Street lease agreement.
• Gavilon will install landscaping and flagpoles.
DOVE HARBOR
• The lease amendment provides for a change to the wharfage rates for inbound
cargo transferred to the Demised Premises by water, rail or motor vehicle for
3
every ton received at the Demised Premises: (a) $0.1000 per ton for grain, whole
cotton seed, and dried distillers grain with solubles; and $0.2500 per ton for all
other products including fertilizer, salt, and steel rebar.
• The wharfage rate on each lease anniversary date shall adjust by the consumer
price index however, the wharfage rate shall not exceed three percent (3%) in
any one year.
SALT SITE
• The lease amendment provides for a change to the wharfage rates for inbound
cargo transferred to the Demised Premises by water, rail or motor vehicle for
every ton received at the Demised Premises: (a) $0.1000 per ton for grain, whole
cotton seed, and dried distillers grain with solubles; and $0.2500 per ton for all
other products including fertilizer, salt, and steel rebar.
• The wharfage rate on each lease anniversary date shall adjust by the consumer
price index however, the wharfage rate shall not exceed three percent (3%) in
any one year.
The wharfage rate change applied to all four Gavilon lease sites is expected to produce
a net increase in wharfage revenue of $77,000 per year.
Now that almost all of the City -owned industrial riverfront sites will be leased, the City
will have gone from earning about $30,000 a year from the lease of these properties,
with substantial offsetting expenses, to earning in 2020 an estimated $2.77 million a
year in revenues.
I want to thank the policy leadership of the Mayor and City Council through this journey.
I also want to thank Senior Counsel Barry Lindahl, City Attorney Crenna Brumwell,
Project Manager Steve Sampson Brown, City Engineer Gus Psihoyos, Public Works
Director John Klostermann, Economic Development Director Jill Connors and the rest of
our team as these leases were negotiated. There is no doubt that Barry put his heart
and soul into making these negotiations successful since the beginning about 13 years
ago.
I concur with the recommendation from Senior Counsel Barry Lindahl and respectfully
recommend Mayor and City Council approval.
7'
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
4
iftilt44 .
IVERFRONT LEASES
City of Dubuque Riverfront Lease Revenue
2,500,000
2,000,000
1,500,000
1,000,000
500,000
Total:
$1,721,192
Total:
$139,485
Total:
$2,187,724
FY08 Actual FY15 Actual FY19 Projected
The City of Dubuque has been promoting new market -rate
leases of more than 60 acres of City -owned property along
the Missississippi River since 2008 and the Dubuque City
Council identified riverfront leases as a high priority
during their annual goal -setting session in 2013.
In the 195Os and 6Os, the City Dock Commission leased
much of the City's industrial riverfront to businesses using
50-year leases to spur economic development and to
preserve jobs by enticing businesses to stay and lease
undeveloped, riverfront land at significantly discounted
rates. Because there was no floodwall along the river at
the time, these properties regularly flooded which also
lowered their value. The City was responsible for paying
the property taxes on the land and dredging so the
businesses had access to the river. The costs to the City to
maintain the properties outweighed the revenues they were
generating, resulting in financial Iosses.Those long-term
leases have been expiring in recent years.
New and renegotiated lease agreements finalized in recent
years are the culmination of a years -long process guided by
a study of best practices in other river towns and
negotiations with previous lease -holders. The goal was to
preserve as many existing business relationships as
possible and increase annual revenue.
Seven of 10 leases have been renegotiated with new lease
rates and inflation adjustments.
Freebird II - Lease 3
Start Date: 12/1/2002
End Date: 11/30/2022
Annual Rent: $57,999.96
Wharfage: $0
Gavilon - Dove Harbor
Start Date: 9/1/2013
End Date: 8/31/2038
Annual Rent: $511,047.82
Wharfage: $56,704.89
Dubuque Terminals, Inc - Dove Harbor
Start Date: 2/1/2013
End Date: 8/31/2038
Annual Rent: $117,362.75
Wharfage: $0
rxecmraF n
hthuque
bgtol
DUB E 11���r
Mnsierpiscewr are Mississippi
Freebird II - Lease 2
4 Start Date: 12/1/1971
End Date: 11/30/2021
1 Annual Rent: $6,792.00
Wharfage: $22,167.81
Gavilon - Salt Site
Start Date: 9/1/2013
End Date: 8/31/2038
Annual Rent: $250,933.66
Wharfage: $13,890.02
Hodge Transit Warehouse
Start Date: 4/28/1969
End Date: 10/31/2018
New End Date: 10/31/2043
Annual Rent: $6,355.31
New Annual Rent: $386,349.17
Wharfage: $0
Flint Hills Resources Pine Bend, LLC
Start Date: 3/25/1964
End Date: 3/31/2027
Annual Rent: $649,999.92
Wharfage: $27,937.63
! 'j14 xi
,,"":IMap.ereated bey ®ty, s Dubuque
Masterpiece on the Mississippi
TO: Michael Van Milligen — City Manager
FROM: Steve Sampson Brown - Project Manager
Dubuque
biking
IIII•Meriea City
W1TC.LL RN_ I1:,V
1 I I I I I
2007.2012.2013
2017*2019
SUBJECT: Lease Agreements Between the City of Dubuque and Gavilon Grain, LLC
a the Commercial Street and Purina Drive Lease Sites Along with Lease
Amendments for the Salt Site and Dove Harbor Locations
DATE: April 2, 2020
INTRODUCTION
This memorandum provides a description of new lease agreements negotiated with
Gavilon Grain, LLC (Gavilon) for the 7th Street/Shot Tower and Purina Drive/Peosta
Channel Sites along with lease amendments to the Gavilon Salt Site and Dove Harbor
location.
BACKGROUND
Gavilon currently leases property from the City at four locations along the 12th Street
Peninsula industrial harbor area. In 2013 two of Gavilon's expiring leases were
renegotiated as new lease agreements with new rental rates based on fair market value
along with market value wharfage rates. Both of these leases have terms that expire in
25 years (2038). The attached chart shows the details of the FY21 rent and wharfage
projected revenues for the 2013 leases known as the Gavilon-Salt Site and Gavilon-
Dove Harbor leases.
Prior to 2008, the original long term riverfront lease agreements (see attached chart)
substantially favored the lease tenants. General terms and conditions of the previous
lease agreements required the City to pay property taxes and to pay for dredging of the
docks adjacent to the lease sites. Historically dredging costs exceeded $100,000 every
few years on average. Considering the costs to administer the lease agreements, in
some cases prior to 2008 the city was barely breaking on even on certain lease
agreements. In 2008 the City Council directed city staff to begin negotiating new lease
agreements based on fair market value as the existing long-term industrial leases
began to expire. Since 2008 all of the city owned industrial lease sites have been
renegotiated with lease rates based on fair market value and more favorable general
terms and conditions including the elimination of all dredging costs and property tax
payments except for two remaining Gavilon sites.
DISCUSSION
Page 1 of 5
Gavilon currently operates two industrial lease sites with older lease agreement. One
site is adjacent to the Shot Tower and is currently known as the Freebird II LLC — Lease
2 site. The current lease agreement for this site was entered into in 1971. The existing
agreement will finally expire on November 30, 2021 after a 50 year period. The current
lease site is 11.2 acres and has a rent with no cost of inflation adjustment of $6,792 per
year. Under the existing agreement wharfage fees are as follows: bulk fluids $0.025
per ton, bulk solids $0.05 per ton, $0.15 per ton packaged goods, and grain is charged
at five cents per ton for the first 28,000 tons then four cents per ton for the second
28,000 tons and three cents per ton for any additional tonnage over 56,000 ton. Under
the present agreement, annual wharfage revenues are estimated at $22,000/year.
The second industrial lease site is adjacent to Kerper Blvd. and Peosta Channel known
as the Freebird II LLC — Lease 3 site. The current lease agreement for this site was
entered into in 2002. The existing agreement will expired on November 30, 2022 after a
20 year period. The current lease site is 5.2 acres and has a rent that is adjusted only
twice in years 10 and 15 via reappraisal. The current annual rent for this property is
$58,000 per year. There are no provisions for wharfage revenue in the existing
agreement.
The City has been attempting to renegotiate new, fair market value based agreements
with Gavilon for the Shot Tower and Peosta Channel lease sites since 2014. In the past
six months Gavilon has come to the table and negotiate in earnest so new agreements
can be finalized and executed. As part of the negotiations the lease agreement for the
Shot Tower site has been renamed the Commercial Street (aka EAST Seventh Street)
Lease. The lease agreement for the Peosta Channel site has been renamed the Purina
Drive Lease. City staff and Gavilon have now completed negotiations regarding these
two sites and are recommending approval of new lease agreements. To coincide with
the two new lease agreements, two amendments are proposed for the existing Salt Site
and Dove Harbor leases so that the wharfage rates for these two existing sites will
match the wharfage rates proposed for the Commercial Street and Purina Drive sites.
The bullets below summarize the new terms and conditions negotiated as part of the
Commercial Street and Purina Drive leases and with the Dove Harbor and Salt Site
lease amendments:
COMMERCIAL STREET
• Term is July 1, 2020 through June 30, 2048.
• Lease area is 8.07 acres with Gavilon having an option to rent an additional 1.13
acres within 6 months following the commencement date of the lease.
• Lease rent is $43,279.41/acre or a base rent of $349,264 per year with an annual
adjustment equal to the consumer price index, but not to exceed 3.0% per year.
• Gavilon will pay to City an annual docking fee of $19,691 with a CPI adjustment
which provides Gavilon with exclusive rights to use the shoreline adjacent to their
lease site.
• Wharfage rates will be Grain/DDGS/Oilseed $ 0.1000/ton, all other goods
$0.2500/ton with an annual adjustment equal to the consumer price index, but
not to exceed 3.0% per year.
Page 2 of 5
• Gavilon will completely remove the existing warehouse building on the site by no
later than December 31, 2023.
• Gavilon has rights to use all railroad tracks in the 12 Street Peninsula area.
• Railroad Extensions — Gavilon intends to pay for the upgrade the railroad track
spur lines that serve the 12th Street Peninsula (See Exhibit E). The City will
agree to support this work by submitting grant applications and advocating for
coordination by the Canadian National Railroad.
• Gavilon will install landscaping, flagpoles, and a site fence.
• Gavilon will pave all parking areas and drive lanes not later than April 1, 2024.
• Contribute to cost of reconstruction of Commercial Street by the lesser of the
assessment or $145,000.
• Any new buildings constructed on the site will be approved by the City and will be
aesthetically pleasing.
PURINA DRIVE
• Term is July 1, 2020 through June 30, 2048.
• Lease area is 4.86 acres
• Lease rent is $43,279.41/acre or a base rent of $210,338 per year with an annual
adjustment equal to the consumer price index, but not to exceed 3.0% per year.
• Gavilon will pay to City an annual docking fee of $17,094 with a CPI adjustment
which provides Gavilon with exclusive rights to use the shoreline adjacent to their
lease site.
• Wharfage rates will be Grain/DDGS/Oilseed $ 0.1000/ton, all other goods
$0.2500/ton with an annual adjustment equal to the consumer price index, but
not to exceed 3.0% per year.
• Gavilon has rights to use all railroad tracks in the 12 Street Peninsula area.
• Railroad Extensions — Gavilon will pay for railroad track upgrade as noted in the
Commercial Street lease agreement.
• Gavilon will install landscaping and flagpoles.
DOVE HARBOR
• The lease amendment provides for a change to the wharfage rates for inbound
cargo transferred to the Demised Premises by water, rail or motor vehicle for
every ton received at the Demised Premises: (a) $0.1000 per ton for grain, whole
cotton seed, and dried distillers grain with solubles; and $0.2500 per ton for all
other products including fertilizer, salt, and steel rebar.
• The wharfage rate on each lease anniversary date shall adjust by the consumer
price index however, the wharfage rate shall not exceed three percent (3%) in
any one year.
SALT SITE
• The lease amendment provides for a change to the wharfage rates for inbound
cargo transferred to the Demised Premises by water, rail or motor vehicle for
every ton received at the Demised Premises: (a) $0.1000 per ton for grain, whole
cotton seed, and dried distillers grain with solubles; and $0.2500 per ton for all
other products including fertilizer, salt, and steel rebar.
Page 3 of 5
• The wharfage rate on each lease anniversary date shall adjust by the consumer
price index however, the wharfage rate shall not exceed three percent (3%) in
any one year.
The wharfage rate change applied to all four Gavilon lease sites is expected produce a
net increase in wharfage revenue of $77,000 per year.
ACTION STEP
It recommend that the resolutions approving the Lease Agreements for the Commercial
Street and Purina Drive leases and the First Amendment to Salt Site and Dove Harbor
Lease Agreements be submitted to the City Council for consideration and adoption.
Attachment(s)
SSB\ssb
cc: Crenna Brumwell — City Attorney
Barry Lindahl — Senior Counsel
Gus Psihoyos — City Engineer
Page 4of5
Page 5 of 5
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Sheet
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Scale
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Gavilon Grain - Commercial Street
(a.k.a. E. 7th Street)
Exhibit A-1
♦v•♦v♦v♦�:
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MISSISSIPPI RIVER
(DOVE HARBOR)
•
NO MOORING BARGES
BEYOND THIS POINT
DISCLAIMER: This information was compiled using venous data sources
available to andlor maintained by the City of Dubuque (the City). By use
of this information, the user acknowledges that, while the City utilizes the
most cu rent and ac urele information available, the City does not
warrant the accuracy or currency of the information or data contained
therein. By use of this information, the user agrees the City is not
responsible for the misuse or misinterpretation of any information
displayed in this map and the Cry is not liable for any loss, damage, or
inconvenience caused as a result of reliance on the information.
Fence
USAGE Permitted Area
Demised Premises
Option to Rent
A
*Subject to Survey Verification
created by: TWK 2019-01-25
updated by: TWK 2020-03-16
EXHIBIT E
RAIL IMPROVEMENTS
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Railroad Spur Locations
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Direct Twofer & Ladder Trade
'Subject to Survey Verification
created bj. TWK 2019-01-02
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2018 Award Winner
DISCLAIMER: This information was compiled using venous data sources
available to and%or maintained by the City of Dubuque (0e City). By use
of this information, the user acknowledges Ihaf while the City utilizes the
most current and accurate infonnalion available, the City does not
warrant the accuracy or currency of the information or data contained
therein. By use of this information, the user agrees the City is not
responsible for the misuse or misinterpretation of any information
displayed in 0is map and the City is not liable for any loss, damage, or
inconvenience caused as a result of reliance on 0e information.
Past & Current Lease Rates
MISSISSIPPI RIVER
(DOVE HARBOR)
8.5" x 11 Sheet
1 inch = 400 feet
0 200 400 Feet
*Subject to Survey Verification
created by: TWK 2020-02-26
updated by:
swing \Lease Agreementstease Exhibits
LOCATION
NAME
Lease
Start Date
Year 1 Rent
Rent
Adjustment
Wharfage
Term
(Years)
Lease End
Date
New Lease
Start Date
FY21 Projected
Rent
FY21 Projected
Wharfage
Lease End
Date
Term
(Years)
1
CURRENT LESSEE
Freebird-Lease 3 (Gavilon-Purina Drive)
7/1/2020
$210,337.00
$0.00
6/30/2048
28
FORMER LESSEE
Flynn Ready -Mix Concrete
1/1/1959
$2,702.20
No
$1,350.00
100
12/31/2058
2
CURRENT LESSEE
Gavilon-Salt Site
9/1/2013
$268,142.00
$33,048.00
8/31/2038
25
FORMER LESSEE
Dubuque Dock Company
3/15/1960
$2,320.00
No
$1,250.00
50
2/28/2010
FORMER LESSEE
Dubuque Dock Company
7/15/1961
$1,341.60
No
$0.00
48
3/14/2010
3
CURRENT LESSEE
Hodge Company
11/1/2018
$360,390.00
$0.00
10/31/2043
25
FORMER LESSEE
Hodge Transite
11/1/1968
$4,360.00
1% annually
$0.00
50
10/31/2018
4
CURRENT LESSEE
Gavilon-Dove Harbor
9/1/2013
$545,603.00
$40,968.00
8/31/2038
25
FORMER LESSEE
Thruput Terminals
7/25/1962
$927.50
No
$1,200.00
50
7/24/2012
FORMER LESSEE
Thruput Terminals Tract AA
1/9/1964
$1,092.00
No
$1,000.00
48
7/24/2012
5
CURRENT LESSEE
Dubuque Terminals (Newt)
2/1/2013
$123,718.00
$0.00
08.31.2038
25
FORMER LESSEE
Thruput Terminals Tract AA1
2/24/1971
$793.50
No
$1,100.00
41
7/24/2012
6
CURRENT LESSEE
Flint Hills Resources
4/1/2014
$686,850.00
$21,000.00
03.31.2024*
10
FORMER LESSEE
Dubuque Oil Terminal Co
4/1/1964
$350.00
No
$1,666.00
5
3/31/1969
7
CURRENT LESSEE
Freebird-Lease 2 (Gavilon-7th Street)
7/1/2020
$368,955.00
$106,115.00
6/30/2048
28
FORMER LESSEE
Swift Agricultural Chemicals
12/1/1971
$6,792.00
No
$1,708.00
50
11/30/2021
TOTAL REVENUE
$20,678.80
$9,274.00
$29,952.80
$2,563,995.00 $201,131.00
$2,765,126.00
* Lease contains option to
extend for 3 years
Masterpiece on the Mississippi
BARRY A. LINDAHL, ESQ.
SENIOR COUNSEL
MEMO
To: Michael C. Van Milligen
City Manager
DATE: March 27, 2020
Dubuque
berd
AII•America City
111111
2007+2012+2013
2017*2019
RE: Resolution Approving the Lease Agreement Between the City of Dubuque
and Gavilon Grain, LLC - Commercial Street (Seventh Street Lease)
Gavilon Grain, LLC (Gavilon) currently leases property from the City of Dubuque on
Commercial Street pursuant to a 1971 Lease Agreement.
The City and Gavilon have negotiated a new Lease Agreement which will replace the
1971 Lease Agreement. Significant terms of the new Lease Agreement are as follows:
• Current acreage reduced to 8.07 acres effective April 1, 2024 to be used for
the handling of bulk commodities such as grain, fertilizer, salt, rebar and other
bulk commodities; option to lease one additional acre
• Term is July 1, 2020 through June 30, 2048
• Annual rent is $349,264.84 with CIP annual adjustment
• Annual docking fee is $19,961.00 with CIP annual adjustment
• Wharfage fee for all goods transferred to the lease premises with CIP annual
adjustment
• Remove existing fertilizer building by December 31, 2023
• Pave areas used for vehicle traffic or parking
• Landscaping required along Commercial Street
• Right to railroad track usage
• Contribute to cost of reconstruction of Commercial Street by the lesser of the
assessment or $145,000
I recommend that the attached resolution approving the Lease Agreement be submitted
to the City Council for consideration and adoption.
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
Prepared by Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
RESOLUTION NO. 111-20
DISPOSING OF AN INTEREST IN REAL PROPERTY BY LEASE AGREEMENT
BETWEEN THE CITY OF DUBUQUE, IOWA AND GAVILON GRAIN, LLC -
COMMERCIAL STREET (SEVENTH STREET) LEASE
WHEREAS, the City of Dubuque, Iowa (City) owns certain property on Commercial
Street in the City of Dubuque (the Property); and
WHEREAS, City desires to enter into a Lease Agreement with Gavilon Grain, LLC for
the Property shown on Exhibit A attached to the Lease Agreement; and
WHEREAS, the City Council, pursuant to notice published as required by law, held a
public hearing on the proposed disposition of the Property on April 6, 2020, and overruled
all objections thereto; and
WHEREAS, the City Council finds that it is in the best interest of the City to approve
the Lease Agreement and the disposition of the Property.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA THAT:
Section 1. The City Council of the City of Dubuque, Iowa approves the Lease
Agreement between the City and Gavilon Grain, LLC, disposing of the City's interest in the
Property.
Section 2. The Mayor is hereby authorized and directed to execute the Lease
Agreement on behalf of the City.
Section 3. The City Manager is hereby authorized and directed to take such actions
as are necessary to carry out the terms of the Lease Agreement.
032720ba1
Passed, approved and adopted this 6th day of April, 2020.
Attest:
Kevi Firnstahl, City Clerk
Roy D. ol, Mayor
2
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
GAVILON GRAIN, LLC
COMMERCIAL STREET (aka EAST SEVENTH STREET) 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"), 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. On April 1, 2024, the area of the Demised Premises
shall automatically be reduced to the area of real property shown on Exhibit A-1.
(1) Lessee's use of the areas along the shoreline of the Demised Premises and
the City's adjacent property located to the southeast of the Demised Premises, and
the channel adjacent thereto, is strictly limited to maneuvering or mooring
watercraft or barges and transferring the products permitted in Section 1.5 of this
Lease. Lessee may not moor any watercraft or barges in any other area controlled
by the City unless otherwise provided in a separate lease or written agreement
with the City. Lessee's use of the shoreline along the Demised Premises and the
City's adjacent property located to the southeast of the Demised Premises as
shown on Exhibit A-1 (the "Option Property") subject to Section 1.1(2), and the
channel adjacent to thereto, must not block access to the harbor or unreasonably
interfere with the use of any other Lessor -owned site leased by any other tenant,
with City's maintenance of the flood wall, or with use of the flood wall for flood
fighting purposes.
(2) Gavilon may, at its sole option, elect to also lease the Option Property for a
cost of $43,279.41 per acre per year ("Option Rent"), by providing written notice to
Lessor at any time within the six (6) months following April 1, 2024. In the event
Lessee exercises such option the Option Property shall be deemed to be part of
the Demised Premises and the annual Rent in Section 2.1 shall be increased by
the Option Rent effective on the first day of the month immediately following the
date on which Gavilon exercises such option. In the event (i) Gavilon does not
choose to exercise its option and (ii) City in its sole discretion determine another
use for the Option Property, City may upon three (3) months' written notice to
Gavilon restrict, with such restrictions City determines appropriate in its sole
1
discretion, Gavilon's use of the shoreline of the Option Property for mooring of
Gavilon's barges.
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 Lessor and Swift
Agricultural Chemicals Corporation dated November 29, 1971, as subsequently assigned
to The Pillsbury Company, as subsequently assigned to ConAgra Foods, Inc., and as
subsequently amended and assigned to Lessee (the "1971 Lease Agreement"). Upon
commencement of the Term of this Lease, the 1971 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,
which consent shall not be unreasonably withheld or delayed.
1.6 Lessee may store the permitted products set forth in Section 1.5 outdoors,
provided any such outdoor storage shall be in accordance with applicable laws, permits
and customary industry practices, including not less than the six (6) foot fencing
improvements shown on Exhibit B.
1.7 Storm Sewer Easement. Lessor reserves to itself an easement and the right, at its
sole cost and expense, to construct, reconstruct, maintain, operate, repair, and remove
through, under and across the Demised Premises an underground storm sewer as shown
on Exhibit D. Lessee shall not erect any structure over the storm sewer without obtaining
the prior written approval of Lessor, which shall not be unreasonably withheld or delayed.
By executing this Lease, Lessor hereby consents to any existing structure now in place
and grants Lessee written approval to construct or install the railroad track extensions,
roads, flat storage and other New Improvements (defined below) over the storm sewer as
shown on Exhibit B attached hereto and made a part hereof, as further set forth in Section
2
3. However, prior to any construction over the storm sewer, Lessee shall provide Lessor
with an engineer's report reasonably acceptable to Lessor showing that such construction
will not cause any damage to the storm sewer. Lessor agrees to cooperate with Lessee
in its preparation of any engineer's report by providing Lessee, upon request, with all
available information concerning the storm sewer. Lessee shall be responsible for
maintaining any structure constructed over the storm sewer and any damage which to the
storm sewer which results from such construction. Lessor, its agents or contractors, shall
at all times upon reasonable notice of not less than two (2) weeks to Lessee, or such
shorter period of notice as is reasonably possible in the event of an emergency
reasonably determined by City, have free access to and egress from and over the
Demised Premises to maintain or repair the storm sewer, provided that Lessor shall make
all reasonable efforts not to interfere with Lessee's operations on the Demised Premises.
In the event any Lessee property or improvements located immediately over the storm
sewer must be removed or dismantled to perform any work pursuant to this paragraph,
Lessor shall take reasonable measures to prevent damage to such property or
improvements, perform its work as quickly as possible to reduce interruptions in Lessee's
business, and shall reconstruct the storm sewer in a manner which will support the
reconstruction of Lessee's improvements, and following completion of such work, Lessor
shall restore and recompact the soil to the level of the property prior to performing such
work. Lessor shall not be responsible for any damage to Lessee's property or
improvements located directly over the storm sewer caused in the course of Lessor
exercising any of its rights pursuant to this paragraph, but shall be responsible for any
other damage of injury caused by Lessor exercising its rights pursuant to this paragraph.
1.8 Lessee agrees to cooperate with Lessor and not object to the renaming of
Commercial Street as East 7th Street.
1.9 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 the Option Property, and in the channel adjacent thereto during
the Term of the Lease, subject to Section 1.1.
(1) Docking Fee; Exclusive Use; Maintenance.
(a) Lessee agrees to pay to City an annual fee (the Docking Fee) of
$19,691.00, payable in twelve equal monthly payments of $1,640.92, 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 Sec. 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.
3
(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 1.9. 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
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 1.9 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 $349,264.84
payable in twelve equal monthly payments of $29,105.40, due in advance on the first day
of each month during the Term. Such Rent shall be increased as provided in Section 1.1
in the event Lessee exercises its option on the Option Property.
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
4
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
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/DDGS/Oilseeds $ 0.1000/ton
All other goods $ 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,
5
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
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
6
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, but
Lessee is not obligated, to construct or install on the Demised Premises a new shop, rail
track, truck scale, grading building, direct transfer structure, fence, trees and other
improvements generally as shown on Exhibit B attached hereto and made a part hereof
(the "New Improvements"), subject to Secs. 1.7 and 3.4 and in compliance with all
applicable requirements of the City of Dubuque Code of Ordinances and which, if
constructed, shall be completed on or before April 1, 2024. Lessee may make minor
alterations to the design of the New Improvements, provided that any material alterations
must be approved by Lessor, which approval shall not be unreasonably withheld, and that
in the event such approval is not granted, Lessee shall have the option to terminate this
Lease. All Existing Improvements and New Improvements (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 Removal of Existing Building. Lessee shall remove the existing dry fertilizer
building on the Demised Premises as shown on Exhibit A by December 31, 2023;
provided, however, that the deadline for removing the fertilizer building shall be extended
for a reasonable period of time in the event of Force Majeure (defined below).
3.4 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 the
New Improvements. City shall reasonably assist Lessee in obtaining any necessary
approvals regarding the New Improvements.
3.5 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,
7
Lessee may install such fencing without Lessor's consent.
(2) Lessee shall, in connection with its installation of the New Improvements,
install landscaping in the areas identified on Exhibit B substantially similar to the
landscaping shown on Exhibit C. Lessee shall maintain all landscaping on the
Demised Premises during the Term of this Lease.
3.6 Flagpoles. Lessee shall, in connection with its installation of the New
Improvements, construct on the Demised Premises in the location shown on Exhibit B 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.
3.7 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 E (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 E (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
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
8
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 3.7 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 E
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.
3.8 [Reserved].
3.9 Commercial Street (aka East 7th Street) Reconstruction. If Lessor reconstructs
Commercial Street (aka East 7th Street) during the Term of this Lease, Lessee shall
reimburse Lessor the lesser of (i) an amount equal to the assessment or (ii) $145,000.00
increased by the CPI Adjustment which shall be a fraction expressed as a decimal, the
numerator of which shall be the CPI as of the date of this Lease and the denominator of
which is the CPI as of the date of reconstruction, not to exceed 3 percent per year. All
costs related to the removal, repair, or replacement of any railroad track owned by Lessee
effected by such reconstruction, including the cost of constructing any street crossing,
shall be the sole responsibility of Lessor, and Lessor shall promptly remove, repair, or
replace such track and/or construct such new or replacement and crossing. Lessee shall
design any railroad tracks constructed or reconstructed by Lessee consistent with City's
plans for City's 7th Street Reconstruction, provided that such plans are provided to Lessee
in advance of Lessee's construction or reconstruction of any tracks and that City's plans
shall not materially alter the grade or elevation of any such track without the prior consent
of Lessee.
3.10 Paving. Lessee shall not later than April 1, 2024 pave all areas of the Demised
Premises used by Lessee for vehicle traffic and parking. Paving shall include asphalt or
concrete.
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3.11 Dust Mitigation. Lessee shall implement and comply with reasonable policies and
procedures designed to mitigate against dust emissions caused by vehicular traffic on the
Demised Premises.
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
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
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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 and the Option
Property for so long as the Option Property is used by Lessee, 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 determine Lessee's
compliance with this Section 6.
6.2 Except for the storm sewer, 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. Lessor reserves a right of
access to the levee and floodwall at all times with reasonable advance notice to Lessee
for Lessor's operation and maintenance of the levee and floodwall, provided that Lessor
shall make reasonable efforts not to interfere with Lessee's operations.
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.
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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.
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
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. Lessee shall prohibit its employees from parking in City -
owned parking stalls anywhere southwest of the railroad bridge in the Port of Dubuque.
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
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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.
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
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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
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.
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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)
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 and the area shown on
Exhibit E, 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
15
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:
(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
16
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.
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
17
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
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
18
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
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:
City of Dubuque, Iowa
City Manager
City Hall
19
50 West 13111 Street
Dubuque IA 52001
WITH COPY TO: City Attorney
City Hall
50 West 1 3th Street
Dubuque IA 52001
TO LESSEE: Gavilon Grain, LLC
1331 Capitol Ave
Omaha, NE 68102
Attention: Legal Department
WITH COPY TO: 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
20
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
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
21
LESSOR:
CITY OF DUBUQUE, IOWA
Attest:
By:
Kevin S 'Firnstahl, cTty CIe
LESSEE:
GAVILON GRAIN, LLC
Name: 6 Ki V-r4t�
Title: �'�`e-4
LIST OF EXHIBITS
EXHIBIT A Demised Premises through March 31, 2024
EXHIBIT A-1 Demised Premises beginning April 1, 2024
EXHIBIT B Lessee's New Improvements
EXHIBIT C Commercial Street (aka East 7t" Street) Landscaping
EXHIBIT D Existing Storm Sewer — Proposed 7th Street Alignment
EXHIBIT E Rail Improvements
INSURANCE SCHEDULE A
•
EXHIBIT A
DEMISED PREMISES THROUGH MARCH 31, 2024
MISSISSIPPI RIVER
ElARBOR}
NO MOORING BARGES
BEYOND THIS POINT
.mws+s-1w carer cn c.w.�.
8.5" z 11" Sheet
1 inch = 260 feel
00 10.0 . 200 Feet
A
`Subject to Surrey Verification
created hy: TWI( 2607-05-24
updated 6y: TWK 202G-02-28
EXHIBIT A-1
DEMISED PREMISES BEGINNING APRIL 1, 2024
•
♦
•
h1]SSISSIPPS RIVER
c IM1VF. >!AR]it)RI
NO MOORING BARGES
BEYOND THIS POINT
;4111N.
tt1.13 Acres °O*.'
!
r++ 'awn �VW ti+ .
r f #.•• •• •
Q •
++4
!
a
4
SH0 3 •y
'QSED INTERP TIV'S
CENTER. ;•
•a'
:
Yqtt ♦ 45a
�aowai .up r�
I ti•4 h., pva.4w. 31 Vy. . i.-5,dam
mal
•Tny Wfa•ax xo•nae•r. r. n.wan•a•q,*
wa �'N.YM1b-IXTNwl iYmf TI :ryiN
Oael.f.1 ryla5au.:h • •n.. i+aw
Fence Demised Premaea
DACE Permitted Area IM Option m Rent
*Subject to Survey Verification
created by: TVUK 2019.01-25
updated by: TWK 2020 03-16
EXHIBIT B
LESSEE'S NEW IMPROVEMENTS
Example Fencing Improvements
(Exhibit B Continued)
Example Tree Line Improvements (Arborvitae Variety)
(Exhibit B Continued)
Example of Proposed Shop
(Exhibit B Continued)
Example of Proposed Direct Transfer Building
(Exhibit B Continued)
EXHIBIT C
COMMERCIAL STREET (aka EAST 7TH STREET) LANDSCAPING
Of li '•'. •1''?,t,",11 ■
WININSIN
EXHIBIT D
EXISTING STORM SEWER - PROPOSED 7TH STREET ALIGNMENT
..
a.my
Iw.hT a.1ara rr b.
•ImY
g EMU!
173ACE Reunited Amp
prgpacid Ltsse Area OM Arree
WE
'Subyect to Survey Verification
ptetedhy TW1{ 2(}1B-12-213
updetod br PN% 2019-01-25
MFYti rt�wFn4.4r4M.�Jr31 Fr
r.ram
nY •
-a;rr. rw•
mrid NAM 04iVnirlid
EXHIBIT E
RAIL IMPROVEMENTS
Railroad Spur Locations
l2th Siree€ Peninsula
Raman m be Revered
OM, Railroad Crnlerlinr.
da. Mid Twofer & Ladder Tracks
l r _' ,r: .... • 11:'.3. I •-
I 11 11 r1i R I
" ubfect to Surrey Verification
created by. TWK 2I 19-01-02
updered 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
1) 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.
2) Include endorsement indicating that coverage is primary and non-contributory.
3) Include Preservation of Governmental Immunities Endorsement (Sample
attached).
4) 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.
5) 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.
6) 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)
STATE OF IOWA {SS:
DUBUQUE COUNTY
CERTIFICATION OF PUBLICATION
I, Kathy Goetzinger, a Billing Clerk for Woodward
Communications, Inc., an Iowa corporation, publisher
of the Telegraph Herald, a newspaper of general
circulation published in the City of Dubuque, County
of Dubuque and State of Iowa; hereby certify that the
attached notice was published in said newspaper on the
following dates:
March 30, 2020,
and for which the char is $139.20
Subscribed to before me, a Notar 'ublic in and for
Dubuque County, Iowa,
this c- day of in , 20 aV..
Notary Public
nd for Dubuque County, Iowa.
JANET K. PAPE
Commission Number 1998E9
My Comm. Exp, DEC 11, 2022
;„-
)14
CITY. OrDUBUQUE, IOWA
-OFFICIAL NOTICE cc, ;
,
PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque; Iowa, will hold a public
hea ring on the 6th day ofApril 2020 at p.ni; in the HisinrippederaLBilildinb, 5501Alet 6th Street,
second floor Dul?u,ciue, Iowa (and/or by virtual means) at which meeting the City Co).ift oftcpbsg-410 • •
';.a.,isit?9spi.#;ii-ctrei in f.hetpildwitig c21.6.41130 real PralaertY,,kleaefe,..aY49,11'cdc...qir4,..fic... • ,
' c' • ' • COMMERCIAL STREET
• .• -gichib.litA` ,
• - •
Gavilon Gpitt - ConiiiteiciatStreet
• ••hibitA• •
/4)1400114 BAROO
11.L-44/0 TIA0 001.NTi;
Subjttto
414P;;g471.14c
At the meeting,:thee cit9 council will receive oral arid written, comments frorn anyies,identOrpr9pertY,-.
owner of said CitYtdihe above action Written comments regarding the above public hearing may be ;•t.
' Submitted to the City Clerk's Office City17iall,c50 W 1 th Street cycler...k,@.cityofd ubuciUe:Org; on or before
said time of public hearing.
Copies of supporting documents for the public hearings are on file in the City Clerks Office and rnay
be viewed during normal working hours.
Individuals with limited English ptoficiency, vision,' hearing•Or speech impairments te•OVI ihg special
assistance should contact the City Clerk's Office at (563) 589-4100, T. D. (563) 69 0-6678,,ctyc erk@ ;
citiofclubugue.org as soon as feasible..Deaf or hard-ohearingindividuals can iseRelaylow_.. a bydialing
71.1, Or (9o) 735-2942.
• Dated this 36tii day of March 2020. . '
keviii S. FirnStaill, CityClerk
' . ' - - ' . . ' — - - ' ' . ' • RESOLUTION NO. 98-20 • ,
• , INTENT TOOISPOSE OF AN INTEREST IN CITY ovrqp11EAL,PROPERTY BY LEASE AGREEMENT ,, • .
BETEENTRE'erryHpeCJIBWIU.,,E/ICNAANp.7?A21-V(?r-, G. il1..,JL,....,AC.--rli-771 :,..:.,,... ;:,,':,:-,:'"c.c-c,.. . ,: ,'''-:•'..-,_-,
' ''. STREET (tia'c.: '• •
EAST SEVENTH STREET) /;;?: c•c3,cc..:,... ',.,,cc: ,:,.....:,:cf , c vv., z......, . ._
WHEREAS the City of DubLqUeloWth.(05)20ms`he,reaiprggelly:shO.cyn on ExhibitA'ca4aCne'd ,c,....• _, i ,
hereto: - 'MO •-c;•;•.1'-: ,.. --cfic- .•,c-c-,::,,,,:,,-,,,,c,,,.„,-. . ,. ., ...
(the Property) and '.;:,::.,-,,„,, • , ,, ,
).AIHERtAS,','Clt-Vaircd DavilPhGrain'., LLC previously !-)i;c41,4to_th:.?i§7l Leas'/?kgir!..1701t'!7-1)e,,, -..?..„,.,
Property;•and' . . ' -:,
WHEREAS; City and GaVIIOnGrain','LLC have.' negotiateda,i;ikkq...40ie-,T,obri:1,t,f,I,,,..7!,,iigAl!ty;
attachedlierelgOnd, ,
WHEREAS4ectitY Council'!is'tentatiyAcleieJyttqd...'lhatit ±.)ycl'i):e:)1•the blcilvilitr,..iktfresViit0:*c)V.1);,
toapprouetheLeaseAdreement
.. \ Novi4TliERPNFi,, BE IT, RESOLVED RY,TI-I ECITYZOONOL OF THE CITY,1.00,..1)O0U,go , ow4,
Secti'o•nA:rfi-ie City of DLit$LIOue;Intehds to.dispose:ofit in ex,es,.,tiln...t..:.ef .,:forego
ing 'P 1-iWherii5881edai.•_%:..c,..?q,
pi0re40yi00'A6ree,#)"9-qiwitht60,iik:Ccil Grain LLC. c i 'c':C,!:'..cc.1..1c,;',"--:;., ,,....,. •c.'.; ' - - . ...;. c' ::1 ,,
SectiOn'21TheCitiClerk:s1561.06Yailithorizedari dd ire 4ectf6CauSelthis Resolutioand'apotieto be ...,
published as prescribedby Ic ._. _.
'' ia' Code Section 3647 0 4 public ho.r.11199,9 the City'S intent to dispose
of aninterest• the foregoing -described real propertyto0,t91,tt?ptiff',.,6t,..ha9of.Ap;r1l.„..-2,.02.,..0;;at 650
In35
the eVerit htia Meeting
O'clock -Tan. at the Flisoric FOcipracood!rig,-o vy 111w, , . ....7...,,,,k,
,.-'-'-', , ,riNe .i.'..,„,,,,,-.,-, .:.- r ,i.,:c,ckl,--r-,,c-: •-:--,,,y- Y - -:
Attest KOVirl , firristahliCity cle1;1'.cc:',..,:f... c ''. 'f- c c.c,:c-,!ccc-,
P&secl,•aplciroyedncicadopted in'iS 254.1 day ot_fifiov-tp39,:..,.:
6 rdeficDi.ibugue-e,clo0a:-
3 V?'..'-' 644t:,-,ticsible 4'.f.Wiilti.cf'",:c ,"-• ;',4'''•
Re0.'idol,:i'vlayOr';•1
at ihe,c17iiO4clfeder1 BwlC1j.:ii,..,g)tf?c4gn is
. " ' ' • for a .vtiial Meeting and pubilec.,ing0 will b;po e. _.
CQVID,1900,sr(itigns ai
...: i„.ti:t1p:,..h/-6,.. e6i)ti 61,..,ricI:ori
Piida
•_'..-y,-Aj3ill 42020 , at httpsi/AWWW.cityoldUbpque.orgiagenua,,,..
d