Peavey Company - Disposition of Property
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RESOLUTION NO. 507-00
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DISPOSING OF AN INTEREST IN REAL PROPERTY BY LEASE TO CON AGRA
INC., DIB/ A PEAVEY COMPANY
AND APPROVING OF AN AGREEMENT TO PURCHASE REAL PROPERTY FROM
CON AGRA INC., DIB/A PEAVEY COMPANY
WHEREAS, the City of Dubuque, Iowa (City) is the owner ofthe real property legally
described as follows: Lot 9, Block 4, River Front Subdivision #2, Dubuque Iowa, the City
Property;
AND WHEREAS, Con Agra Inc., D/B/A Peavey Company (Peavey) desires to lease the
City Property for the purpose of storing commodities and other river related business activities
upon the terms set forth in the Lease Agreement attached hereto;
AND WHEREAS, Peavey Company is the owner of the real property legally described
as follows: All lots 39A, 19, 1-18, 1-17, 1-1-16 of Block 26; all of Lots 11 through 25 inclusive,
1-26, 1-27, 1-1-28, 1-9, 1-8, 1-1-7, 39A, 39,B, Part of Lot 10, all of Block 22; All of Lot 1 of
Public Square, All of Lots 1-20 thru 1-33 inclusive, Lot 39A of Block 11 (the Peavey Property);
AND WHEREAS, the City desires to purchase the Peavey Property for development of
the Fourth Street Peninsula upon the terms set forth in the Offer to Buy Real Estate and
. Acceptance attached hereto;
AND WHEREAS, the City Council held a public hearing on the City's intent to dispose
ofthe foregoing-described City Property on the 16th day of October, 2000 pursuant to notice as
required by law, and following the public hearing overruled all objections thereto;
NOW, AND THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF DUBUQUE, IOWA:
Section 1. The City Council of the City of Dubuque hereby approves of the Lease
Agreement with Con Agra Inc., D/B/A Peavey Company, attached hereto, for the above-
described City Property.
Section 2. The City Council of the City of Dubuque hereby approves of the Offer to Buy
Real Estate and Acceptance with Con Agra Inc., D/B/A Peavey Company, attached hereto.
Section 3. The Mayor is hereby authorized and directed to sign the Lease Agreement and
Offer to Buy Real Estate on behalf the City of Dubuque.
Section 4. The City Clerk is hereby authorized and directed to record this Resolution
with the Dubuque County Recorder.
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Passed, approved and adopted this 16th day of October, 2000.
Attest:
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Prepared by:
Barry A. Lindahl, Esq. 196 Dubuque Building Dubuque IA 52001 319583-4113
OFFER TO BUY REAL ESTATE AND ACCEPTANCE
TO: Conagra, Inc. d/b/a Peavey Company (Seller)
1. REAL ESTATE DESCRIPTION. The City of Dubuque, Iowa, a municipal corporation
(Buyer) offers to buy real estate in Dubuque County, Iowa, described as follows:
Legal
subject to the following: a. any zoning and other ordinances; b. any covenants of record; c. any
easements of record for public utilities, roads and highways designated the Real Estate.
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2. PRICE. The purchase price shall be $ 734,000.00, payable at City Hall, City of
Dubuque, Dubuque County, Iowa, as follows: Cash at Closing.
3. REAL ES TATE TAXES. Seller shall pay taxes for the current fiscal year prorated to the
date of possession and any unpaid real estate taxes for prior years. Buyer shall pay all subsequent
real estate taxes.
4. SPECIAL ASSESSMENTS. Special assessments which are a lien as of the date of
Closing shall be paid by Seller.
5. CARE AND MAINTENANCE. The Real Estate shall be preserved in its present
condition and delivered intact at the time possession is delivered to Buyer, provided, if there is loss
or destruction of all or any part of the Real Estate from causes covered by the insurance maintained
by Seller, Buyer agrees to accept such damaged or destroyed Real Estate together with such
insurance proceeds in lieu of the Real Estate in its present condition and Seller shall not be required
to repair or replace same.
6. POSSESSION/CLOSING DATE. If Buyer timely performs all obligations, possession of
the Real Estate shall be delivered to Buyer on July 1, 2001, with any adjustments ofrent, insurance,
and interest to be made as of the date of transfer of possession, subject to Par. 13(e).
7. USE OF PURCHASE PRICE. At time of settlement, funds of the purchase price may
. be used to pay taxes and other liens and to acquire outstanding interests, if any, of others.
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8. ABSTRACT AND TITLE. Seller, at its expense, shall promptly obtain an abstract of
title to the Real Estate continued through the date of acceptance of this offer, and deliver it to Buyer
for examination. It shall show merchantable title in Seller in conformity with this agreement, Iowa
law and Title Standards of the Iowa State Bar Association. The abstract shall become the property
of the Buyer when the purchase price is paid in full. Seller shall pay the costs of any additional
abstracting and title work due to any act or omission of Seller, including transfers by Seller or its
assIgnees.
9. DEED. Upon payment of the purchase price, Seller shall convey the Real Estate to
Buyer or their assignees, by Warranty Deed, free and clear of all liens, restrictions, and
encumbrances except as provided in 1 a. through 1 .c. Any general warranties of title shall extend
only to the time of acceptance of this offer, with special warranties as to acts of Seller continuing up
to time of delivery of the deed.
10. TIME IS OF THE ESSENCE. Time is of the essence in this contract.
11. CONTRACT BINDING ON SUCCESSORS IN INTEREST. This contract shall apply
to and bind the successors in interest of the parties.
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12. TIME FOR ACCEPTANCE. If this offer is not accepted by Seller on or before 5:00
p.m. , 2000, it shall become void and all payments shall be repaid to the Buyer.
13. OTHER PROVISIONS.
a. This offer is subject to fmal approval by the City of Dubuque City Council.
b. As a part of the consideration for the purchaser of the Real Estate by Buyer, Buyer agrees to
lease to Seller and Seller agrees to lease from Buyer the Demised Premises described in the
attached Lease Agreement upon the terms and conditions set forth therein.
c. Buyer, at its expense, shall promptly obtain an abstract of title to the Demised Premises
continued through the date of acceptance of this offer, and deliver it to Seller for examination. It
shall show merchantable title in Buyer in conformity with this agreement, Iowa law and Title
Standards of the Iowa State Bar Association. Buyer shall pay the costs of any additional abstracting
and title work due to any act or omission of Buyer, including transfers by Buyer or its assignees.
d. This agreement is subject, prior to closing, to Buyer obtaining a Phase I and Phase II
environmental report acceptable to Buyer for the Real Estate and subject, prior to closing, of Seller
obtaining a Phase I and Phase II acceptable to Seller for the Demised Premises.
e. Seller acknowledges that the Demised Premises is leased to a third party and that Buyer and
Seller anticipate that the tenant will have vacated the Demised Premises and the Demised Premises
will be suitable for Seller's purposes by the Closing Date, July 1, 2001. In the event that the
Demised Premises is not vacated and suitable to Seller by the Closing Date, the parties agree that
. the Closing Date shall be not later than April 1, 2002, and the term of the Lease Agreement
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adjusted accordingly.
f. It shall be a condition to closing that Seller shall prior to the Closing Date have obtained all
necessary permits and approvals for the operation of its business on the Demised Premises.
g. After closing, Buyer agrees to reimburse Seller for its actual expenses, upon receipt of a
statement therefore satisfactory to Buyer evidencing such expenses, for the cost of constructing a
loading cell and mooring dolphins on the Demised Premises but Buyer's obligation for such
reimbursement shall not exceed $200,000. It shall be a condition of closing that Buyer shall obtain
all necessary permits and approvals for Seller's construction of the loading cell and mooring
dolphins.
h. After closing, Buyer agrees to reimburse Seller for its actual expenses, upon receipt of a
statement therefore satisfactory to Buyer evidencing such expenses, for the cost of relocating
Seller's business operations from the Real Estate to the Demised Premises, but Buyer's obligation
for such reimbursement shall not exceed $100,000.
i. If the conditions set forth in this paragraph are not satisfied at Closing Date, this Agreement
shall terminate unless a new Closing Date is established by amendment to this Agreement. The
termination of this Agreement shall be the sole remedy in the event a condition set forth in this
paragraph is not satisfied.
Dated this _ day of
,2000.
CITY ~UQUE
By !L~Utfr-
TillS OFFER IS ACCEPTED
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CONAGRA, INC.
By
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CITY OF DUBUQUE, IOWA
MEMORANDUM
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October 12,2000
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To: The Honorable Mayor and City Council
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From: Michael C. Van Milligen, City Manager
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RE:
Property Acquisition and Property Lease Along the Riverfront
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The City of Dubuque owns 5.016 acres of property along the river near 12th Street, which is
currently leased to Flynn Company. The Peavey Company owns 5.34 acres on the Fourth Street
Peninsula located to the northwest of Fourth Street. The property is the site of the former
Petrakis Park. They have stored salt and com at the site for several years.
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The City Council recently approved the expansion of the Urban Renewal District to include the
property owned by Peavey Company and designated it as property to be acquired. Assistant City
Manager Tim Moerman has held discussions with representatives of the Peavey Company for the
past several months on the changing nature of the Fourth Street Peninsula and its impact on the
Peavey Company and the City. The discussions resulted in a proposed agreement, which
includes the City purchase ofthe Peavey Company's 5.34 acre parcel on the Fourth Street
Peninsula and the Peavey Company's lease ofthe City's 5.016 acre parcel of property along the
river, now leased by the Flynn Company. The Flynn Company will be moving to another
downtown site as part of this project.
The agreement calls for the City to lease the 12th Street property to Peavey with an annual lease
payment of$73,400 until November 30,2011, with the first lease payment due on the date
Peavey receives possession of the property. The City will pay up to $200,000 toward the cost of
constructing a loading cell and mooring dolphins and up to $100,000 toward the cost of
relocating the current business activity on the Fourth Street Peninsula to the 12th Street property.
The City will purchase Peavey's Fourth Street Peninsula property for $734,000.
The proposed agreement is the result of discussions aimed at providing a "win-win" scenario for
both a river-dependent business and the citizens of Dubuque. I believe that this agreement will
benefit each party for many years to come.
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Assistant City Manager Tim Moerman is recommending approval of the lease agreement and the
purchase agreement.
I concur with the recommendation and respectfully request Mayor and City Council approval.
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cc: Barry Lindahl, Corporation Counsel
Pauline Joyce, Administrative Services Manager
Jim Burke, Community and Economic Development Director
Mike Koch, Public Works Director
Delbert UWik, Peavey Company, 505 E. 7th Street, Dubuque, Iowa
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RESOLUTION NO.
497-00
RESOLUTION OF INTENT TO DISPOSE OF AN INTEREST IN REAL PROPERTY
BY LEASE TO CON AGRA INC., D/B/A PEAVEY COMPANY
WHEREAS, the City of Dubuque, Iowa (City) is the owner of the real property shown
on Exhibit A attached hereto and legally described as follows: Lot 9, Block 4, River Front
Subdivision #2, Dubuque Iowa, The Property;
AND WHEREAS, Con Agra Inc., D/B/A Peavey Company (Peavey) desires to lease the
City Property for the purpose of storing commodities and other river related business activities
upon the terms set forth in a Lease Agreement and Offer to Buy Real Estate and Acceptance now
on file in the Office of the City Clerk at City Hall, Dubuque, Iowa,;
AND WHEREAS, City and Peavey have tentatively agreed to the Lease Agreement,
which among other things, provides for a term through November 30, 2021;
AND WHEREAS, the City Council has tentatively determined that it would be in the
best interests of the City to enter into the Lease Agreement and Offer to Buy Real Estate and
Acceptance with Peavey;
NOW, AND THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF DUBUQUE, IOWA:
Section 1. The City of Dubuque intends to dispose of its interest in the foregoing-
described Property by Lease Agreement to Con Agra Inc., D/B/A Peavey Company.
Section 2. The City Clerk is hereby authorized and directed to cause this Resolution and
a notice to be published as prescribed by Iowa Code Section 364.7 of a public hearing on the
City's intent to dispose of the foregoing-described real property, to be held on the 16th day of
October, 2000, at 6:30 p.m. in the public library auditorium, 11th & Locust, Dubuque, Iowa.
Passed, approved and adopted this 4th day of October, 2000.
Attest:
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CITY OF DUBUQUE, IOWA
MEMORANDUM
October 4,2000
To: The Honorable Mayor and City Council
From: Michael C. Van Milligen, City Manager
RE: Property Acquisition and Property Lease Along the Riverfront
The City of Dubuque owns 5.016 acres of property along the river near 12th Street, which is
currently leased to Flynn Company. The Peavey Company owns 5.34 acres on the Fourth Street
Peninsula located to the northwest of Fourth Street. The property is the site of the former
Petrakis Park. They have stored salt and com at the site for several years.
The City Council recently approved the expansion of the Urban Renewal District to include the
property owned by Peavey Company and designated it as property to be acquired. Assistant City
Manager Tim Moerman has held discussions with representatives ofthe Peavey Company for the
past several months on the changing nature of the Fourth Street Peninsula and its impact on the
Peavey Company and the City. The discussions resulted in a proposed agreement, which
includes the City purchase of the Peavey Company's 5.34 acre parcel on the Fourth Street
Peninsula and the Peavey Company's lease of the City's 5.016 acre parcel of property along the
river, now leased by the Flynn Company. The Flynn Company will be moving to another
downtown site as part of this project.
The agreement calls for the City to lease the 12th Street property to Peavey with an annual lease
payment of$73,400 until November 30, 2011, with the first lease payment due on the date
Peavey receives possession ofthe property. The City will pay up to $200,000 toward the cost of
constructing a loading cell and mooring dolphins and up to $100,000 toward the cost of
relocating the current business activity on the Fourth Street Peninsula to the 12th Street property.
The City will purchase Peavey's Fourth Street Peninsula property for $734,000.
The proposed agreement is the result of discussions aimed at providing a "win-win" scenario for
both a river-dependent business and the citizens of Dubuque. I believe that this agreement will
benefit each party for many years to come.
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Assistant City Manager Tim Moerman is recommending a public hearing be set on the lease
agreement and the purchase agreement at the special City Council meeting on October 4, 2000
for the October 16, 2000 regular City Council meeting.
I concur with the recommendation and respectfully request Mayor and City Council approval.
cc: Barry Lindahl, Corporation Counsel
Pauline Joyce, Administrative Services Manager
Jim Burke, Community and Economic Development Director
Mike Koch, Public Works Director
Delbert Uhlik, Peavey Company, 505 E. 7th Street, Dubuque, Iowa
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CITY OF DUBUQUE, IOWA
MEMORANDUM
October 3, 2000
To: Michael C. Van Milligen, City Manager
From: Tim Moerman, Assistant City Manager
RE: Property Acquisition and Property Lease Along the Riverfront
Purpose
The purpose of this letter is to provide information on efforts by City staff on property
acquisition and leasing of City property and to make a recommendation on the purchase of
property on the Fourth Street Peninsula from Peavey Company and to lease City property near
12th Street to Peavey Company. The parent company for Peavey Company is Con Agra Inc.
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Background
The City of Dubuque owns 5.016 acres of property along the river near 12th Street which is
currently leased to Flynn Company until September 1 of 200 1. The lease allows the Flynn
Company ninety days to vacate the property after the expiration of the lease.
The Peavey Company owns 5.34 acres on the Fourth Street Peninsula located to the northwest of
Fourth Street. The property is the site of the former Petrakis Park. They have stored salt and
corn at the site for several years. Maps of the properties are attached.
Discussion
City staff has held discussions with representatives of the Peavey Company for the past several
months on the changing nature of the Fourth Street Peninsula and its impact on the Peavey
Company and the City. Discussions centered on the interests of the City in developing the Fourth
Street Peninsula for non-industrial uses. The Peavey Company's interest is to secure access to
property near the river to continue its business of storing salt and corn. Peavey Company also
expressed concerns on the cost of relocating the business to the new site and the costs of
preparing the new site for river access.
The discussions resulted in a proposed agreement, which includes the City purchase of the
Peavey Company's 5.34 acre parcel on the Fourth Street Peninsula and the Peavey Company's
lease of the City's 5.016 acre parcel of property along the river, now leased by the Flynn
Company.
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The agreement calls for the City to lease the 12th Street property to Peavey beginning on July 1,
2001 (or a later date determined by the availability ofthe property) and ending on November 30,
2021. Peavey Company will pay the City an annual lease payment of $73,400 until November
30,2011, with the first lease payment due on the date Peavey receives possession ofthe property.
The City and Peavey Company will participate in appraisals ofthe property in 2011 and 2016
and Peavey Company will pay an annual lease payment in the amount of 10% of the value of the
property determined by the appraisals.
The City will pay up to $200,000 toward the cost of constructing a loading cell and mooring
dolphins and acquire the necessary permits from the Corps of Engineers for the construction of
the loading cell and mooring dolphins. The City will pay up to $100,000 toward the cost of
relocating the current business activity on the Fourth Street Peninsula to the 12th Street property.
Peavey Company will construct hard surfaced pads for storage of grain and salt and install
equipment for elevating the grain and salt over the floodwall.
The agreement also calls for the City to purchase Peavey's Fourth Street Peninsula property for
$734,000 with the date of possession determined by the availability of the City's property on
12th Street. It is the intention of the agreement for Peavey Company to have continuous use of a
storage site through the transition process. The City will pay the Peavey Company $734,000 on
the date the City receives possession of the property.
Corporation Counsel Barry Lindahl has written a lease agreement for the City's property on 12th
Street and a purchase agreement for the property on the Fourth Street Peninsula. Copies of both
documents are attached.
As I stated above, the corporate parent of Peavey Company is Con Agra Inc. Management of
Peavey Company has reviewed the proposed agreement and will make a recommendation to Con
Agra Inc. to approve the agreement at their next board meeting, which is yet to be scheduled. but
will be prior to the end of the calendar year. A letter stating Peavey Company's intent to make
the recommendation is attached with the City's summary ofthe proposed agreement as the basis
for the recommendation. The language in the lease agreement and the purchase agreement is
under review by the staff at Peavey Company and their attorneys. Our expectation is that
changes to the language will be minor and not impact the overall content of the agreement.
Funding for the purchase of the property is budgeted under Riverfront Development.
Recommendation
The proposed agreement is the result of discussions aimed at providing a "win-win" scenario for
both a river-dependent business and the citizens of Dubuque. I believe that this agreement will
benefit each party for many years to come.
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I recommend the approval of the lease agreement and the purchase agreement with the Peavey
Company. City Council action on this recommendation will require the setting of a public
hearing on the lease agreement and the purchase agreement at the special City Council meeting
on October 4, 2000 for the October 16, 2000 regular City Council meeting.
cc: Barry Lindahl, Corporation Counsel
Pauline Joyce, Administrative Services Manager
Jim Burke, Community and Economic Development Director
Mike Koch, Public Works Director
Delbert Uhlik, Peavey Company, 505 E. 7th Street, Dubuque, Iowa
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NORTH
Proiect Description:
Flynn Lease along Kerper Blvd.
Approximately 4.97 Acres
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NORTH
Proiect Description:
Peavey Lease along 4th 5t.
Approximately 5.34 Acres
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Prepared by:
Barry A. Lindahl, Esq. 196 Dubuque Building Dubuque IA 52001 319 583-4113
LEASE AGREEMENT
TIllS LEASE AGREEMENT (the "Lease") made as of the _ day of
200_, between the CITY OF DUBUQUE, IOWA, a municipal corporation
(Lessor), and CONAGRA, INC. d/b/a Peavey Company, a corporation
(Lessee).
ARTICLE 1
DEMISE AND TERM
1.1 Demise and Term. 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 described in Exhibit A attached to and made a part of this Lease,
together with any and all easements and appurtenances thereto and subject to any easements and
restrictions of record (the "Demised Premises"), to have and to hold for an initial term
commencing as of the 1st day of July, 2001, and ending on the 30th day of November, 2021 (the
"Initial Term"), subject to all of the terms, covenants, conditions and agreements contained
herein.
ARTICLE 2
RENT
Lessee shall pay Lessor (in addition to taxes, assessments, and other charges required to
be paid under this Lease by Lessee) rent for the Demised Premises as follows:
2.1 Base Rent. For the first ten years of this Lease, Lessee shall pay Lessor rent as
follows: $ 73,400.00 per year.
All such Base Rent shall be payable in twelve (12) equal monthly installments on the first
day of each month beginning on the first day of the Initial Term.
For rental payable on and after July 1, 2011, Lessor and Lessee shall have prepared ninety
(90) days prior to such time and ninety (90) days prior to every sixty (60) months thereafter, an
appraisal of the Demised Premises by a certified appraiser experienced in appraising similar
types of properties in the Dubuque area mutually selected by Lessor and Lessee. If either party is
dissatisfied with the appraisal or the parties cannot agree on an appraiser, each shall, not later
than forty-five (45) days prior to January 1 of the appraisal year, appoint its own appraiser, each
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of which shall be experienced in appraising similar types of properties in the Dubuque area and
the two appointed by the parties shall select a third experienced appraiser. The average appraised
values of the three appraisers shall be the appraised value of the Demised Property for the
purposes of this Article. The annual rent shall be ten percent (10%) of the appraised value of the
Demised Premises for the sixty (60) month period following each sixty (60) month appraisal
period.
The Demised Premises shall be appraised as vacant, unimproved ground only without
regard to any buildings or other improvements on the Demised Premises.
The annual rent shall be paid in twelve (12) equal monthly installments on the first day of
each month beginning on July 1, 2011.
ARTICLE 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 Lessee's business. Title to
Lessee's trade fixtures (the "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 requestsfrom Lessor.
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3.2 Improvements. On delivery of possession of the Demised Premises to Lessee,
Lessee may construct, with the prior written consent of Lessor, on the Demised Premises such
Improvements necessary to the successful operation of Lessee's business, which consent shall not
be unreasonably withheld. All improvements on the Demised Premises are and shall be the
property of Lessee during the term of this Lease and no longer. Subject to the payment
obligations of Lessor set forth below, upon 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 oftitle 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.
ARTICLE 4
ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST
4.1 Lessee's Right to Encumber Leasehold Interest. Lessee may encumber by
mortgage, deed of trust or other proper instrument, its leasehold interest and estate in the
Demised Premises, together with all Improvements on the Demised Premises, as security for any
indebtedness of Lessee, provided that no such encumbrance shall extend beyond the term of this
Lease. Lessee shall provide prompt written notice to Lessor of any such encumbrance together
with a copy of such encumbrance. In the event of any judicial or nonjudicial foreclosure under
any mortgage, deed of trust or other similar instrument made by Lessee covering its leasehold
interest in the Demised Premises, Lessor shall, upon such foreclosure or sale, recognize the
purchaser thereunder as lessee under this Lease, provided such purchaser expressly agrees in
writing to be bound by the terms of this Lease.
4.2 Notice to Holder of Encumbrance; Right of Holder to Cure Lessee's Default. If
Lessee shall encumber its leasehold interest and estate in the Demised Premises and if Lessee, or
the holder of the indebtedness, its successors and/or assigns (the "Holder") secured by the
encumbrance shall give notice to Lessor of the existence of the encumbrance and the address of
the Holder, then Lessor shall mail or deliver to the Holder, at such address, a duplicate copy of
all notices in writing which Lessor may, from time to time, give or serve on Lessee under and
pursuant to the terms and provisions of this Lease. The copies shall be mailed or delivered to the
Holder at, or near as possible to, the same time the notices are given to or served on Lessee. The
Holder may, at its option, at any time before the rights of Lessee shall be terminated as provided
in this Lease, pay any of the rents due under this Lease or pay any taxes and assessments, or do
any other act or thing required of Lessee by the terms of this Lease, or do any act or thing that
may be necessary and proper to be done in the observance of the covenants and conditions of this
Lease or to prevent the termination of this Lease; provided, however, that the doing of any act or
thing requiring possession of the Demised Premises shall be subject to the further rights of
Holder as set forth in Section 16.2. All payments so made and all things so done and performed
by the Holder shall be effective to prevent a foreclosure of the rights of Lessee thereunder as the
same would have been if done and performed by Lessee.
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ARTICLE 5
TAXES
Lessee agrees to pay as additional rent an amount equal to real estate taxes upon the real
estate of the Demised Premises that become payable during the term hereof and which would
become delinquent if not so paid during the term hereof. Lessee shall further provide to Lessor
official receipts of the appropriate taxing authority or other evidence satisfactory to Lessor
evidencing payment thereof.
During the term of this Lease, Lessee further agrees to pay all other taxes, rates, charges,
levies and assessments, general and special, 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
said real estate 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 reversionary estate in said real estate 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 other taxes, rates, charges, levies and assessments shall be paid by Lessee as they
become due and before they become delinquent during the term hereof.
Lessee agrees to timely pay all taxes, 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 premises, during the term of this Lease.
Nothing herein shall require Lessee to pay any of Lessor's income taxes, surtaxes, excess
profit taxes or any taxes on the rents reserved to Lessor hereunder.
Lessee shall at all times have the right to contest in good faith, in any proper proceedings,
in the name of Lessor if necessary, the payment or satisfaction of any such taxes, assessments,
rates, charges or levies so agreed to be paid by Lessee, if the validity thereof, or the right to
assess or levy the same against or collect the same from said Demised Premises or
Improvements, shall be disputed. Upon the conclusion of any such suit or proceedings, or not
less than three (3) months prior to the date when the right to redeem therefrom expires,
whichever will be the earlier, Lessee shall promptly pay and satisfy such disputed tax, assessment
or other charge as finally determined, together with all expenses, costs and attorneys' fees
whatsoever incurred in connection therewith.
ARTICLE 6
REPAIRS
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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, and all sidewalks, curbs, and all
appurtenances to the Demised Premises, in good order, condition and repair, casualties and
ordinary wear and tear excepted. Lessee shall keep and maintain the Demised Premises and all
Improvements in a condition consistent with other similarly classed operations. 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
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Lessee, Lessor may, at its discretion and at its cost, conduct an annual inspection of the Demised
Premises to determine Lessee's compliance with this Article 6.
ARTICLE 7
COMPLIANCE WITH LAW
7.1 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.
7.2 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, and shall be liable for any damages to or destruction of any buildings
or Improvements on the Demised Premises resulting from waste and shall be required to repair or
rebuild such buildings or Improvements. Lessee may remove existing Improvements or construct
new Improvements on the Demised Premises subject to all of the terms and conditions of this
Lease provided Lessee has received the prior approval of Lessor, which approval Lessor shall not
unreasonably withhold.
ARTICLE 8
AL TERA TIONS
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Lessee shall have the right, with Lessor's prior written consent which consent shall not be
unreasonably withheld for any such alteration, addition, or modification that exceeds that exceed
Fifty Thousand and 00/100 Dollars ($50,000.00) in cost, at Lessee's expense, from time to time
during the term of this Lease to make any alteration, addition or modification to the Demised
Premises or the Improvements thereon.
ARTICLE 9
USE OF DEMISED PREMISES
Lessee shall operate the Improvements for storage of commodities and shall not
knowingly use or allow the Demised Premises or any buildings or Improvements thereon or any
appurtenances thereto, to be used or occupied for any unlawful purpose or in violation of any
certificate of occupancy. Lessee shall not suffer any act to be done or any condition to exist
within the Demised Premises or in any Improvement thereon, or permit any article to be brought
therein, which is dangerous, unless safeguarded as required by law, or which, in law, constitute a
nuisance, public or private, or which may make void or voidable any insurance in force with
respect thereto.
ARTICLE 10
INSURANCE
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10.1 Lessee shall provide and maintain or cause to be maintained at all times during the
process of constructing Improvements (and, from time to time at the request of City, furnish City
with proof of payment of premiums on):
A. Builder's risk insurance, written on the Special Perils Form in an amount equal to
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one hundred percent (l 00%) of the replacement value of Improvements as the same shall
exist from time to time during the construction process;
B. Commercial general liability insurance (including operations, contingent liability,
operations of subcontractors, completed operations and contractual liability insurance)
together with an Owner's Contractor's Policy with limits against bodily injury and
property damage of not less than $2,000,000.00 for each occurrence (to accomplish the
above-required limits, an umbrella excess liability policy may be used); and
C. Worker's compensation insurance, with statutory coverage.
10.2 Upon completion of construction of Improvements, Lessee shall maintain, or
cause to be maintained, at its cost and expense (and from time to time at the request of City shall
furnish proof of the paYment of premiums on) insurance as follows:
A. 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 Improvements, but any such policy may have a deductible
amount of not more than $50,000.00. No policy of insurance shall be so written that the
proceeds thereof will produce less than the minimum coverage required by the preceding
sentence, by reason of co-insurance provisions or otherwise, without the prior consent
thereto in writing by City. The term "replacement value" shall mean the actual
replacement cost of Improvements (excluding foundation and excavation costs and costs
of underground flues, pipes, drains and other uninsurable items) and equipment, and shall
be determined from time to time at the request of City, but not more frequently than once
every three years, and paid for by Lessee.
B. Commercial general liability insurance, including personal injury liability for
injuries to persons and/or property, in the minimum amount for each occurrence and for
each year of$2,000,000.00.
10.3 All insurance required by this Article shall be taken out and maintained in
responsible insurance companies selected by Lessee which are authorized under the laws of the
State oflowa to assume the risks covered thereby. Lessee shall deposit annually with City copies
of policies evidencing all such insurance, or a certificate or certificates or binders of the
respective insurers stating that such insurance is in force and effect. Unless otherwise provided in
this Section, each policy shall contain a provision that the insurer shall not cancel or modify it
without giving written notice to Lessee and City at least thirty (30) days before the cancellation
or modification becomes effective. Lessee shall furnish City evidence satisfactory to City that the
policy has been renewed or replaced by another policy conforming to the provisions of this
Section, or that there is no necessity therefor under the terms hereof. In lieu of separate policies,
Lessee may maintain a single policy, or blanket or umbrella policies, or a combination thereof,
which provide the total coverage required herein, in which event Lessee shall deposit with City a
certificate or certificates of the respective insurers as to the amount of coverage in force upon
Improvements, provided, however, the specific limit shall not be impaired.
lOA Lessee agrees to notify City immediately in the case of damage exceeding
$500,000.00 in amount to, or destruction of, Improvements or any portion thereof resulting from
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fire or other casualty. Net proceeds of any such insurance ("Net Proceeds"), shall be paid
directly to Lessee, and Lessee shall forthwith repair, reconstruct and restore the Improvements to
substantially the same or an improved condition or value as they existed prior to the event
causing such damage and, to the extent necessary to accomplish such repair, reconstruction and
restoration, Lessee shall apply the Net Proceeds of any insurance relating to such damage
received by Developer to the payment or reimbursement of the costs thereof, subject, however, to
the terms of any mortgage encumbering title to the Property.
10.5 Lessee shall complete the repair, reconstruction and restoration of Improvements,
whether or not the Net Proceeds of insurance received by Lessee for such purposes are sufficient.
ARTICLE 11
LESSOR'S WARRANTIES AND REPRESENTATIONS
11.1 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.
11.2 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.
ARTICLE 12
LESSEE'S WARRANTIES AND REPRESENTATION
12.1 Lessee Compliance With Law.
A. Lessee shall comply with all applicable local, state and federal laws, rules,
regulations and permits with regard to the Demised Premises and its use, occupancy and control
of the Demised Premises.
12.2 Environmental Matters.
A. 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 results from
Lessee. Lessee's use, occupancy or control 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). 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 which pre-exists the date of this Lease.
B. Lessee covenants and agrees to promptly notify Lessor of any release of
Hazardous Substance in, on or about the Demised Premises of which Lessee has actual
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knowledge.
C. Lessee covenants and agrees to promptly take any and all necessary and
appropriate response to address any release of Hazardous Substance for which Lessee is
responsible under Section 12.2A. Such response shall include, without limitation, notification to
appropriate governmental authorities, as may be required by law.
D. Lessee covenants and agrees to not manufacture, treat or dispose of
Hazardous Substances at the Demised Premises or knowingly allow the manufacture, treatment,
or disposal of Hazardous Substances same on the Demised Premises.
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 Section 311 of the Federal Water Pollution Control Act (33
U.S.C. ~ 1321), (v) defmed as a "hazardous waste pursuant to ~ 1004 of 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, U.S.C ~ 9601 et seq., or (vii) defined as a "regulated substance" pursuant to
Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 US.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.
ARTICLE 13
INDEMNIFICATION
13.1 Indemnification of Lessee.
A. To the extent allowed by law, Lessor will 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
and resulting from any act or omission of Lessor, (b) any failure on the part of Lessor to perform
or comply with any of the terms of this Lease and (c) any breach on the part of Lessor of any
warranty or representation contained in Article 11. In case any action, suit or proceeding is
brought against Lessee by reason of such occurrence, Lessor will, at Lessor 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.
13.2 Indemnification of Lessor. Lessee will 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 during the
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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, and (c) any material
breach on the part of Lessee of any warranty or representation contained in Article 12. 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.
13.3 Survival. The obligations and liabilities under this Article 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.
ARTICLE 14
CONDEMNATION
14.1 Entire Condemnation. If at any time during the term of this Lease all or
substantially all of the Demised Premises or the Improvements thereon shall be taken in the
exercise of the power of eminent domain by any sovereign, municipality or other public or
private authority, then this Lease shall terminate on the date of vesting oftitle 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.
14.2 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:
A. To Lessor, the amount of the award attributable to 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 the Improvements, and all other sums
not directly attributable to the value of the Land constituting the Demised Premises;
B. To Lessee, the entire award except that portion allocated to Lessor above.
14.3 Partial Condemnation. 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 14.2, 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 Base Rent shall be reduced in proportion
to the area of the Demised Premises taken.
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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, as provided for in this Section 13.3, Lessee shall be entitled to the entire award for such
partial taking.
14.4 Temporary Taking. If the temporary use of the whole or any part of the Demised
Premises or the Improvements thereon or the appurtenances thereto shall be taken at any time
during the term of this Lease in the exercise of the power of eminent domain by any sovereign,
municipality, or other authority, the term of this Lease shall not be reduced or affected in any
way, and Lessee shall continue to pay in full the rent, additional rent and other sum or sums of
money and charges herein reserved and provided to be paid by Lessee, and the entire award for
such temporary taking shall be paid to Lessee. Lessee shall repair and restore any and all damage
to the Demised Premises and the Improvements as soon as reasonably practicable after such
temporary taking.
14.5 Effect of Taking. If any taking renders the construction of the hotel and
entertainment center impossible, any financial penalties set forth in Section 1.3 due after such
taking shall not be applicable.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
This Lease may not be assigned by Lessee without the prior written consent of the City,
which consent shall not be unreasonably withheld, provided said third party agrees to comply
with the terms and conditions ofthis Lease.
ARTICLE 16
DEFAULT
16.1 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 ninety (90) days), 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
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the removal of persons or property from the Demised Premises.
16.2 Rights of Holder of Encumbrance in Event Lessee Defaults. If Lessee fails or
neglects 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, the Holder of any indebtedness secured by an
encumbrance on the leasehold estate under this Lease shall have thirty (30) days after receipt of
written notice from Lessor setting forth the nature of Lessee's default and a reasonable time
thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature
thereof within such thirty (30) days and is diligently prosecuting such proceedings, but in no
event longer than ninety (90) days, within which to endeavor to make good or remove the default
or cause for termination of the Lease. All right of Lessor to terminate this Lease on the failure or
neglect of Lessee to observe, keep and perform the covenants, terms and conditions of this Lease
is, and shall continue to be, at all times prior to payment in full of the indebtedness to the Holder
of Lessee, subject to and conditioned on Lessor's having first given the Holder written notice
thereof and the Holder having failed to cause the default or cause for termination to be made
good or removed within thirty (30) days after receiving written notice of default or cause for
termination or within a reasonable time thereafter if it shall have commenced foreclosure or other
appropriate proceedings in the nature of foreclosure within such thirty (30) days and is diligently
prosecuting such proceedings, but in no event longer than ninety (90) days. In the event that the
Lease is terminated due to the Lessee's bankruptcy, insolvency or other proceedings, and in the
event the Holder has complied with the terms of this Section 16.2, then Lessor at Holder's
option, shall enter into a new lease with Holder or the successful bidder at foreclosure on the
same terms as this Lease, for the term then remaining, and specifically preserving all unexercised
options.
16.3 Lessee's Rights in the Event of Lessee'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 ninety (90)
days), then and in any such event, Lessee shall have all rights available to it provided by law or
equity.
ARTICLE 17
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 Lessee pursuant to Section 16.1 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
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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.
ARTICLE 18
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.
ARTICLE 19
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, 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.
ARTICLE 20
WAIVER
No waiver by either party hereto of any breach by the other of any term, covenant,
condition or agreement herein and no failure by any party to exercise any right or remedy in
respect of any breach hereunder, shall constitute a waiver or relinquishment for the future of any
such term, covenant, condition or agreement or of any subsequent breach of any such term,
covenant, condition or agreement, nor bar any right or remedy of the other party in respect of any
such subsequent breach, nor shall the receipt of any rent, or any portion thereof, by Lessor,
operate as a waiver of the rights of Lessor to enforce the payment of any other rent then or
thereafter in default, or to terminate this Lease, or to recover the Demised Premises, or to invoke
any other appropriate remedy which Lessor may select as herein or by law provided.
ARTICLE 21
SURRENDER
Lessee shall, on the last day of the term of this Lease or upon any termination of this
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Lease, surrender and deliver up 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 alllettings 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 whatever by Lessor on account of or for any buildings and Improvements erected or
maintained on the Demised Premises at the time of the surrender, or for the contents thereof or
appurtenances thereto. Lessee's Trade Fixtures, personal property 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.
ARTICLE 22
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 Basic Rent payable
hereunder.
ARTICLE 23
NOTICES
23.1 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, and by facsimile addressed as follows:
TO LESSOR: City of Dubuque, Iowa
City Manager
City Hall
13th and Central Avenue
Dubuque IA 42001
Fax 319589-4149
TO LESSEE:
23.2 The address and/or fax number 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.
ARTICLE 24
MISCELLANEOUS
24.1 Time of the Essence. Time is of the essence of this Lease and all of its provisions.
24.2 Governing Law. It is agreed that this Lease shall be governed by, construed and
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enforced in accordance with the laws of the State of Iowa.
24.3 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.
24.4 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.
24.5 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.
24.6 Force Maieure. In the event that either party hereto shall be delayed or hindered
in or prevented from the performance of any act required hereunder by reason of strikes,
lockouts, labor troubles, unavailability of construction materials, unavailability or excessive price
of fuel, power failure, riots, insurrection, war, terrorist activities, explosions, hazardous
conditions, fire, flood, weather or acts of God, or by reason of any other cause beyond the
exclusive and reasonable control of the party delayed in performing work or doing acts required
under the terms of this Lease (collectively "Force Majeure"), then performance of such act shall
be excused for the period of the delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay.
LESSOR:
Attest: .:/ 7'Ce. ~:,c;~)
Jeanne F. Schneider, City Clerk
LESSEE:
CONAGRA
Attest:
By:
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EXHIBIT "A"
LEGAL DESCRIPTION OF DEMISED PREMISES
Lot 9, Block 4, River Front Subdivision #2, Dubuque, Iowa
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Peavey
Peavey Company
P.O. Box 1480
Dubuque, IA 52004
(319) 556-4245
Tim Moerman
Assistant City Manager
City Manager's Office
City Hall, 50 West 13th Str.
Dubuque, Iowa 52001
Tim,
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Please be advised that we are in the final processes of receiving Conagra Corporate approval. Conagra
Trade Group has prepared the required internal documents for the final approval. The documents include,
the lease expenditure request, the divestment of land request, the draft long-term lease agreement and a
draft offer to buy real estate.
I have reviewed the two main documents, i.e. the LER and Divestment. They conform to the "City of
Dubuque and Peavey, Summary of the Proposed Agreement, August, 2000" (see attachment). I approved
and forwarded to Senior Finance Officer of Conagra Trade Group, who in turn submits to Conagra
Corporate. Due to the length of the lease and because the sale ofland is involved, Conagra Corporate
approval will be necessary.
The legal documents are in the hand of McGrath North, our attorneys, and initial review completed with
minimal changes.
I cannot foresee any reason that would cause final approval to be withheld.
Ron B. Gillis
Director Financial Planning and Analysis
ConAgra Trade Group Inc.
402-595-5866
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a ConAgra Company
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City of Dubuque and Peavey
Summary of the Proposed Agreement
August, 2000
City agrees to:
lease the 12th Street property to Peavey beginning on July 1,2001 or a later date
determined by the availability ofthe property and ending on November 30,2021
pay to $200,000 toward the cost of constructing a loading cell and mooring dolphins
acquire the necessary permits from the Corps of Engineers for the construction of the
loading cell and mooring dolphins
pay up to $100,000 toward the cost of relocating the current business activity on the
Fourth Street Peninsula to the 12th Street property
purchase Peavey's Fourth Street Peninsula property for $734,000 with the date of
possession determined by the availability of the City's property on 12th Street
pay Peavey $734,000 on the date the City receives possession of the property
Peavey agrees to:
lease the 12th Street property from the City until November 31, 2021 with possession
beginning on July 1,2001 or a later date determined by the availability of the property
pay the City an annual lease payment of $73,400 until November 30,2011, with the first
lease payment due on the date Peavey receives possession of the property
participate in appraisals of the property in 2011 and 2016 and pay an annual lease
payment in the amount of 10% of the value of the property
construct hard surfaced pads for storage of grain and salt and install equipment for
elevating the grain and salt over the floodwall
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OCT 16 2000 14:27 FR AGM
515 224 2651 TO 913195890890
P.01/01
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October 16, 2000
Box 8129
Des Moines, IA 50301
515/224.2600
BY FAX
(3l9-589-0890)
City Clerk
Dubuque, Iowa
Dear Honorable Mayor and City Council Members,
RE: Lease of the Flynn Property to Peavey
On behalf of Cargill and our j/v company in Dubuque, Agri Orain Marketing, we want to
congratulate the City on moving forward with the Mississippi River Discovery Center towards
which our organization collectively has made plans to contribute over $200,000.
In response to the recent article in the Dubuque Telegraph Herald, dated Oct S. 2000,
we would to request that any new parcels of land made available for industrial use are done so in
an open and competitive manner. We may well be interested in expanding our presence in
Dubuque and feel it is only fair that we have the opportunity to participate in this process.
As such, we are concemed to see that a deal gets close to being consummated, behind closed
doors, and we have to read of it in the newspaper. Our local management employees have been
in contact with the City expressing our interest in this property over the last year.
We would suggest that any "deal" be reviewed and opened for competitive bids in an open,
public setting especially if the City is offering to pay infrastructure costs for the benefit of the
landuser. We would think this is the only legal and fair way to proceed.
Again - we are pleased to see the riverfront project proceeding and congratulate the City on
following through on this. Weare disappointed that despite our organization's support of the
City's project we stand to see our competitive position diminished through their actions.
Thank you for your consideration and I look forward to your response.
Qcere~~
. 7"2-~
J Sutter
M General Manager and Vice-President of Cargill's NAGOS Biz Unit
cc: Michelle Grogg/Communications and Program Manager. Cargill P.R., Minneapolis
** TOTAL PAGE.01 **