Dbq Terminals Lease Assgn/AgreeRESOLUTION NO. 163 -00
CONSENTING TO A LEASE ASSIGNMENT BY PCS NITROGEN FERTILIZER, LP
TO DUBUQUE RNER TERMINALS, INC.
WHEREAS, PCS Nitrogen Fertilizer, LP (PCS Nitrogen) has requested that the
City of Dubuque (City) consent to a Lease Assignment of its Lease dated November 20,
1962, between PCS Nitrogen and City, to Dubuque River Terminals, Inc.
AND WHEREAS, the Lease Assignment attached hereto appears to be in the best
interests of City.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF DUBUQUE AS FOLLOWS:
1. The City hereby consents to the Lease Assignment attached hereto.
2. The Mayor is hereby authorized and directed to sign the Lease Assignment.
3. The City Clerk is hereby authorized and directed to record this resolution with
the Dubuque County Recorder.
Passed, approved and adopted this ~ day of April, 2000.
Terrance M. Duggan, Mayor
Attest:
Jeanne F. Schneider, City Clerk
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CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (Agreement) is made and entered into this /7.,14...-
day of April, 2000, by and between the City of Dubuque, a municipal corporation (City),
and Dubuque Terminals, Inc., an Iowa business corporation (Terminals).
WHEREAS, City owns certain property (Property) in the City of Dubuque,
Dubuque County, Iowa, described on Exhibit A, attached hereto, which property is leased
to Terminals;
WHEREAS, Peavey Company (Peavey) is negotiating an assignment of the lease
ITom Terminals;
WHEREAS, in order to evaluate the assignment, Peavey, desires to cause IIW
Engineers and Surveyors, P.C. (Consultant) to undertake an environmental review of the
Property as set forth in the Consultant's Proposal, a copy of which is attached hereto as
Exhibit B, and prepare a report thereon (Proposal and Report);
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WHEREAS, City and Terminals desire to protect the confidentiality of
information contained in the Proposal and Report regarding the Property, including,
without limitation, any information used, generated or learned by Consultant, including
previous environmental assessments and/or information furnished to or by Consultant to
either party and related to the Property on or after the date of this Agreement
(collectively, hereinafter, Confidential Information), and the parties hereto desire to
preserve their ability to utilize the Iowa Environmental Audit Privilege and Immunity Act
regarding such Confidential Information;
WHEREAS, City agrees to allow Peavey to conduct the environmental review
but only on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of which is
herebyãcRïioWledged,-the parties hèfetoagree as follows. ___.H_.
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1. All Confidential Information will be kept confidential by Terminals and
shall not be reproduced, disclosed, distributed or communicated, directly or indirectly, in
whole or in part, to any other person (as defined below), except that Terminals may
disclose the Confidential Information or portions thereofto those persons or entities who,
in its judgment, are reasonably required to review the Confidential Information in
connection with the Property, including, but not limited to, its (i) directors, officers,
members, partners, attorneys and employees and (ii) representatives, agents, consultants,
advisors, lenders, professionals, insurers and other persons or entities who have
acknowledged an obligation of confidentiality and an agreement to be bound by the terms
and conditions of this Agreement (the persons in clauses (i) and (ii) to whom such
disclosure is permissible being collectively called "representatives").
.
2. Terminals agrees that it will inform each of its representatives who have,
or will have, access to any or all of the Confidential Information, of the existence and
content of this Agreement and will take all reasonable action necessary to cause such
representatives to observe the confidentiality requirements of this Agreement. In the
event Terminals or any of its representatives are required by law or legal process
(including by deposition, interrogatory, request for documents, subpoena, civil
investigation demand or similar process) to disclose any ofthe Confidential Information,
Terminals shall use its good faith efforts to provide or shall use its good faith efforts to
cause such representative to provide, prompt prior written notice of such compulsion to
City, so that City may seek a protective order or other appropriate remedy or, if
appropriate, waive compliance with the terms of this Agreement. The term "person" as
used in this Agreement will be interpreted broadly to include, without limitation, any
corporation, company, partnership, individual or other entity of any kind whatsoever.
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3. Notwithstanding anything to the contrary in this Agreement, the term
"Confidential Information" shall not include any information which (i) at the time of
disclosure or thereafter is generally available to or known by the public (other than
through a disclosure directly or indirectly resulting ITom a violation hereunder), (ii) at the
time of disclosure was already known on a non-confidential basis or had been
independently developed by the applicable party as evidenced by its business records, in
each case, provided that such information is not known by the applicable party to be
subject to another confidentiality agreement with or other obligation of secrecy to the
disclosing party or any other person, or (iii) was available to the applicable party on a
non-confidential basis ITom a source (other than pursuant to this Agreement) that is not
and was not bound by a confidentiality agreement or otherwise prohibited fÌ'om
transmitting the information to the applicable party on a non-confidential basis by a
contractual, legal or fiduciary obligation).
4. The parties understand and acknowledge that neither of the parties or any
oftheir respective directors, officers, stockholders, partners, employees, owners,
affiliates, representatives, advisors or agents is making any representation or warranty,
express or implied, as to the accuracy or completeness of any Confidential Information,
and neither of the parties or any of their respective directors, ofilcers, stockholders-;.-
partners, members, employees, owners, affiliates, representatives, advisors or agents will
have any liability to the other party or any other person resulting fÌ'om use of the
Confidential Information by such party or by any of the representatives.
5. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. This Agreement may not be
changed, modified, amended, supplemented or assigned except by a written instrument
signed by each of the parties.
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6. Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified below such party's signature or at such other
address as the party shall specify in writing. Such notice shall be deemed given upon
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either the date ofthe personal delivery of such notice or three (3) days after the date of
mailing such notice by certified or registered mail, postage prepaid.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year flfst above written.
By:
Address: S- .:so",,-~-9;.
Ðu..ì>,,"\u.t. ,XII '5200\
Michael C. Van Milligen, CIty Manager
City Hall
13th and Central Avenue
Dubuque IA 52001
319589-4110
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Exhibit A
Legal Description
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Exhibit B
Consultant's Proposal
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This LeeH' nnd Agreement ~ade and entered into this
// .cA- :lay 'Of ;;::;;'~'~~""';;I-' 1962 by and bet-teen the
CITY OF DUBU;UE. 10',';1\. a l1unicipal Corporation of Iowa, through
ita Bo!1rd of Dock Commissi "~ers.
eccinafter called "Lessor"
and DUBU'iUE JOCK CC¡':?ANY, an Iowa corpor-tion, hereinafter
called "Lessee",
~ I T N E SSE T H :
lJhere'ls, the partie:, hereto have heretofore entered
bto the follo,",;,ng leases:
(a)
A leaso entered into June 29, 1959 of a tract of land
therein describ':d AO "A tract of land approximately
3.059 acres in area along the "aterfront in the land-
fill known ~s "Ar"a A", immediately s~uth of the
Flynn lease";
.
(b)
A lease entered into October la, 1961 of a tract
of land therein described :1S: "A rectangular tract
of land contiguous to the southerly sBe of the
premises heretororo leased by 'Lessor to LeBBee in
Block 4 of "iverfront Subdivision No.2 and woose
northerly and southerly sides are 595 feet in length,
whose easterly and \'leB"erly sides are 275 feet in
length, containing 3,.756 acres .",ore or hss"; and
'./herens on the 22nd day of August, 1961 LeBSOr adopted
its Resolution No.14-61 in which LesBor authorized Lessee to
make certÜn improvements on the above descrioed ar9a on con-
dition that Lessee agree to certain the~ein contained modifi-
cations of Baid lease ;':lich condi tionB Lessee accepted in
",riting attached to Si1.id Resolut ion; and
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'/hereas, since the execution of the above described
LeBses, and the adoption of the aboy,!..descoibecL.Resolution, the -.
demised premises:llave been plat ~ed by a recorded plat approved
by the City Council of tc.e City ~f Dubuque, Iowa; and
Where..s, the parties hereto have ae;reed that it is
in the best inter'st of both parties t':at this Le;'~e A",reement
be entered into in lieu of and :in Bubstituticn for the fore"'
going described lcas~s, in order to incorporate t!1erein the
tert!Js aDd conditi ans of said Resolut j on and further to consoli-
dote the same and to describe the demised pramiscs more
~ccurately in accordance \á th the above refer,"ed to plat;
Now Therefore, in consider"t~"n of the mutual covenants
herein contained the parties hereto agree 38 follows:
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1 - That the "rovisicns of the preamble, hereto be adopted and
coneidered a part of this Agreement. (
2 - Lessor does hereby lease to Lessee the following demiSed..
premises, to-wit:
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Lots 1, 2, 3. 4. 5, 6, 7 and 8 in Block 4. and
Lots 1 and 2 ieo Block 8, all in Riverfront Subdivision
No.2 in the City of Dubuque, Dubuque County, Iowa,
to have and to hold the same until March 14. 1970.
3 - Lessee is hereby granted the option of extend ing this
Lease for root more than eight (8} additional successive
periods of five (5) years each under the same ter:ns and
conditions set forth herein for the original term herein,
by giving written notice to Lessor of the exercise of such
option at least sixty (60) days prior to the expiration of
the original term. or the expiration of any other term as
to which Lessee may have exercised such option.
4 - At the time of the execution of this Agreement Lessee has
paid to Lessor all rentals due under this Lesse snd the
leases described in the preamble hereof up to and includ-
ing Msrch 14. 196~. snd thereafter Lessee agrees to pay
Lessor. at its of ice in the City, of Dubuque, Iowa, on or
before March 15, of each succeeding year of this Lease, or
any extension thereof, commencing with March 15, :1963; an
annual rental in adv,once of Three Thoucand Six Hundred,
Thirt -four and 60 100 Dollars 4. a . which amounts
include a charge of wo 01 srs per front foot for
the exclusive use of the rive" front of said property.
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5 - In the event Lessor ~hall determine at any time during the
original term of this Lease. or any extension thereof,
that it is in Lessor's best bterest to lease to Lessee
Lot 12 in Block 4 in Riverfront, Subdivision No.2
Lessor shall have the right to notify Lessee of its elec-
tion to do so, and thereafter said lot shall be included
in the term "demised premises", and the snnual rental
theresfter shall be increased by the sum of ~.
Subject to the apportionment for the first year in which
such election is exercised in the ratio that' the remain-
ing portion of said year bears to an entire twelve month
year.
6 - In addition to the rental reserved in Paragraph 4, Lessee
agrees to pay Lessor such ;;harfage fees ,as may be estab-
lished frem tiI:Je to time by Dock Bo¡g-d Ordinance in accord-.
ance with provisi(onsofSection 3§¡:.3.7 of the 1958 Code
of Iowa, or as the same may be amended during the term of
this Lease, or any renewal theIoeof. ~"e wharfage fees pre-
sently in forc!! under such Code section are hereby agreed
to be ss follows: 0
(a)
Two and one-half cents (2~1I) per ton of 2,000
pounds on all bulk fluids transferred to or
from the demised premises by water;
"ive cents (511) per ton of 2,000 pounds on all
bulk solids trsnsferred to or from the demised
preI:Jises by water;
(b)
(c)
Fifteen cents (1511) per ,ton of 2,000 pounds on
all psckaged goods transferccd to or from the
.
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demised premises by "'iter (packaged goods aD
used herein shall not' icclude bulk lumoer which
shall be considered bulk solids even though
pacbged in bundles).
7 - On or before the 15th day of March of each y,,"r of the term
of this leas~. or any renel,;al thereof, Lessee shall submit
to Lessor a statement showing the quantit;.es of goods of
every character 'cransferred to or fro" the demised pre-
mises by water during the preceding twelve (12) months,
tor;ether ',lith the payment of the wharfage fees due Lessor
as shown by said statement. Quantities of products sub-
ject to tonn'Ge rent"l shall be measured in " manner
satisfactory to Lessor and Les[;ee. The pertinent books,
files and records of the Lessee shall at all rea~onable
times be open to inspection by Lessor, or its authorized
representative, for audit to verify the amounts due under
thia Le',se and A[reement.
8 ~ In the event Lessee pays the annual rentals in advance as
' required by ParaGraph 4 hereof, Lessee shall be entitled
to a credit in unt of One Thousand. Two Hundred and
'., / Fift Dollar $12 0 ag,Ünst the wharfage fees for the
'-/ year of such aymen
¡'. but said credit shall not be cumula-
tive and any sue credit not exhausted in anyone year
shall not be carried over to any subsequent year.
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9 - In the event tha.t Lessee shall fail to "aint,Ün an average
annual tonnage of twelve thousand five hundred 12 00
tons of goods or materials transferred to or from t e
demised premLes by water during any consecutive five (5)
ye"r period, then. in that event, Lessor shall have the
right, a.t its option. to terminate this Lease, or any
renewal the:-eof, unless said LÜlure on the part of the
Lessee shall be shown to be attributable tn acts of God
or government.
10 - Lessee shall twe the right to construct a dock along the
waterfront of the demised p:-emises, together '.'/;, th any
necessary piling for mooring barges. : rovided the same is
constructed in accordance with plans approved by Lessor
and fUrther ¡-rovided that upon the co"pletion thereof the
same shall beco,¡e a part of the land and the property of
Lessor.
11 - Lessee egre"s to indemnify and hold harmless Lessor from
any and all damages, or claims for damages, 1;0 pel'suns ur
property, arising from the erection or maintenance or
existence of the dock, unloading facility, pile clusters,
or fill ereoted by Lessee on Lot One of Block 8 of Hiver-
front Subdivision No.2, and further agrees to reimbu:,se
Lessor for any and all damages to the waterfront, rip rap,
nr slopes resulting from the erection, ",aintenance or
existence of oaid improvement or from shoaling resulting
therefrom.
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12 - Lessor shall have the right and easement to enter upon the
demised premises for the purpose of inspection. ropair and
maintenance of the rip rap and land fronting on the w"ter
adj aGent thereto.
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13 - In addition to the rigcts contained in Par!lgraph 10,
Lessee shall have the further right and privilege to
erect on the premises herein described, all necessary
improvement" for the operation of Lessee's business, but
all such structures and improvements shall be erected,
built, and maintained in strict con:ormity with all appli-
cable Federal, State or Municipal Stotutes, Ordinance" and
regulations.
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1.4. - Lessee shall have the exclusi ye ~se /1. f the ',;aterfront
- abutting the demised premises. j~/
~I- ~t for the impro'Jemð~structed under the provi-
~ sions of I'a:cagrAph-l~;~f :v~pon the termination of this
lease, for any cause whatsoever, Lessee shall have the
privilege, during the period of six (6) months after the
termination of this lease, for any cause whatsoever, to
remove !illY and all im rovements made b Lessee upon the
demised premises, provi e e same are re of l!llldlord I s
liens, or other lien rights in Lessor. It is agreed that
a:U such improvements are to remain personal property
wi thout regard in wha:t manner they may be affixed to the
real estate. In the event of.. Jò!l..<:ç..!,e,l!loval the premises
shall be restor"d .toessenHaÙy thê- säiiie--ëôÏid.Tt~
the~ were on September 1. 1959. Failure to remove~f
sue ~mproYements, or other property of Lessee within
such six months' period shall constitute an abandonment
thereof unless the parties hereto otherwise ,ogree in
writing. '-
16 - Lessor agrees to pay all taxes and assessments, general
or special, that may be levied or assessed against the
de:nised premises, including the improvements provided for
in Paragraph 10 hereof. Lessee, howev"r, a[lrees to pay
all taxes, JJcenses, imposts or other governmental charges
levied or assessed against !illY other improvementsplaeed
upon said premiscs by Lessee, or the business conducted
thereon.
17 - During the term of this Lease, or: any extension thereof,
the Lessee shall h"ve the right to sub-let or assign any
of its rights, in and to the said ,remises, providi~'
however, that !illY such,.sub-leasc or assignment sha.have
thewritt"ti approval of the Lessor to the end that the
Lessor' 6 interests shall bc fully protected.
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18 - Lessee agrees to keep the demised ?remises and the build-
inEs 3r,1 "~ructure thereon in a nsnt and orderly conditiol..
at all times and in good condition and repair and to con-
form >lith all Federal, State and tíunicipal regclations in
regard to the use of the premisea, and the operation of the
business conducted thereon, ànd further ogrees not to dump
any trash or sweepings, or other waste material in the
channel along the demised premises, or on the hanks thereof,
in such a m!lllner that the same may r--!ldily be washed into
the channel.
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19 - Lessee ngrees to procure and maintain in force durinr; the
term of this lesse, or any renewal thereof', a policy of'
liability ineurance insuring the liability of the City of'
Dubuque, or its Board of' Dock Commi"sioners, f'rom any
claims arising out of' theleaeing of the demised !,remises,
or the operntions conducted thereon.
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Said liability insuranca policies shall be written in a
company authorized to do business in Io;¡a, in amounts not
less than Three Hundred Thousand; Dollars 5 00 000 per-
sonal injury and Fift Thousand ollars ;¡ a 000 property
damage; shall contain a clause pro ib~ ting the cancellation
thereof 'Ñithout ten (la) days' ;;ritten notice to the City
of Dubuque and a duplic"te thereof shall be deposited with
the Lessor's Secretary.
20 - If Lessee shall make defcul t in the payment of the rentals
hereunder, or any part thereof, or shall make default in the
performance of any of the other covenants herein contained,
and such default shall continuo for a period of thirty days
after written notice thereof, specifying the dafllul t com-
plained of ,mailed to Lessee at its address in the City of
Dubuque, Iowa, by United States registered mail, then it
shall be lawful for Lessor, at its election, to declare
the term of this lease ended and to re-enter upon the leased
prer:1ises, with or without process of law, and to expel and
remove Lesse~, or any person, or' persons in or upon the
same, using such force as mey be necessary under the cir.
cumstances; and if at any time, by reason of such default
of the Lessee and the continuance thereof for such period
of thirty days after the written ' notice has been given
said term shall be so ended, Lessee hereby covenants and
agrees to surrender and deliver up the leased premises
peaceably to the Lessor.
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21 - Upon the execution of this Lease and Agreement tha same
shall stand in lieu of and in substitutin for the Leasea
and Resoluticn described in tte preamble hereof and in the
event of any conflict the provisions of this Agreement
shall prevail and be deemed the agreement of the parties.
IN WITNESS ',.JHEREOF the parties ,:ersto have caused
the due executiG'J of this Agreement, in duplicate, as of the
day and year first above written.
CITY OF ¡¡UBU~UE, IC'"A, Lessor,
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DUB~ DOCK~Çor'.PANY, Lessee,
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