Rainbo Oil_Sixteenth Street Lease AgreementMasterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Lease Agreement for a Portion of 16th Street Corridor
DATE: December 3, 2012
Dubuque
kital
All- America City
II 111!
2012
As part of the Bee Branch Creek Restoration and Gateway Project, the City of Dubuque
created prime waterfront commercial sites available for lease along 16th Street located
between Kerper Boulevard and Sycamore Street.
City staff has been marketing this property along the south side of 16th Street for lease
as commercial development. Economic Development Director Dave Heiar believes the
lease proposal submitted and negotiated with Rainbo Oil Company to be the best
currently submitted. The key elements of the proposed Lease Agreement with Rainbo
Oil Company are:
1. The term of the lease is 25 years with three 5 -year option periods.
2. The final size of the site will be determined by a survey, but it is anticipated
based on a conceptual site plan, that the developer would need 3.25 acres at an
annual lease rate of $37,000 per acre. The City would receive $120,249.96 in
lease payments during the first year.
3. The lease would begin upon City Council authorization, anticipated to be early
2013. The developer will be given approximately 1 year to construct the
improvements. Monthly lease payments would begin upon completion of the
improvements or on January 1, 2014, whichever occurs first.
4. Beginning in year two of the lease payments, the lease rate will be adjusted by
the CPI on an annual basis.
5. The Lessee will invest $5 million on the development of the site, which will
include a gas station, a CNG fuel pump, a convenience store and a restaurant.
6. Preliminary plans must be submitted by the developer within 30 days of an
executed lease. Final plans must be submitted within 60 days thereafter.
7. The lessee will construct a 12 -foot wide walkway /bike path at its cost along the
eastern and southern edges of the leased site. The City will maintain this public
amenity.
8. During the term of this lease, the City agrees not to lease other sites along 16th
Street from Kerper to Sycamore Street to any other fueling station.
9. The lessee will be responsible for property taxes. The lessee will not be liable for
any special assessments related to improvements on 16th Street or Kerper
Boulevard for the first 10 years of the lease.
Because the property is in an urban renewal district, Iowa law requires a special
competitive disposition process to dispose of the property. Economic Development
Director Dave Heiar recommends City Council authorization of a 30 -day public notice on
the competitive disposition of approximately 3.25 acre site on 16th Street. Written
proposals for the lease of the 16th Street site will be received by the City Clerk at or
before 10:00 a.m., January 22, 2013. Any proposal received will be presented to the
City Council at the January 22, 2013, City Council meeting.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
David J Heiar, Economic Development Director
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CITY OF DUBUQUE, IOWA
MEMORANDUM
December 11, 2012
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director
SUBJECT: Lease Agreement for a portion of 16th Street Corridor
INTRODUCTION
This memorandum provides for City Council consideration a Lease Agreement for a
portion of the 16th Street corridor property. A resolution is attached to set a competitive
process accepting proposals for the lease of this site.
BACKGROUND
As part of the Bee Branch Creek Restoration and Gateway Project, the City of Dubuque
created prime waterfront commercial sites available for lease along 16th Street located
between Kerper Boulevard and Sycamore Street. See attached map.
This property is at the gateway entrance into our community from Wisconsin and is also
along the primary route to Chaplain Schmitt Island, home of Mystique Casino, the
Mystique Ice Arena, and other attractions, and the Kerper Boulevard industrial area.
This property is easily accessible with entrance and exit ramps from Highway 151/61.
The most recent traffic counts from 2009 show 20,700 vehicles per day on Highway
151/61, which overlooks this site. In addition, there are 11,800 vehicles per day on
Kerper Blvd and 6,800 vehicles per day on 16th Street. As the Bee Branch Creek
Project is completed and other developments are initiated in this area of our community,
City Staff anticipates this to be a prime corridor for a wide variety of business activities,
which will create increased traffic counts.
DISCUSSION
Over the past year the City has been marketing this property along the south side of
16th Street for lease as commercial development. In January of 2012, staff sent a mass
mailing to all local businesses to make them aware of this opportunity. Over the past
several months, two competing parties have expressed interest in about one -half of the
larger parcel of property on 16th Street at the intersection with Kerper. After evaluating
the two proposals, I am recommending that the City move forward with the lease
proposal submitted and negotiated with Rainbo Oil Company. Most of the terms and
conditions of the two proposals are similar. However, Rainbo's proposal is for a leased
area about .3 acres larger that the competing proposal and also includes a restaurant in
addition to a convenience store /fueling station.
The attached Lease Agreement establishes the proposed terms. The key elements of
this proposed Lease Agreement includes the following:
1. The term of the lease is 25 years with three 5 -year option periods.
2. The final size of the site will be determined by a survey, but it is anticipated
based on a conceptual site plan, that the developer would need 3.25 acres at an
annual lease rate of $37,000 per acre.
3. The lease would begin upon City Council authorization, anticipated to be early
2013. The developer will be given approximately 1 year to construct the
improvements. Monthly lease payments would begin upon completion of the
improvements or on January 1, 2014, whichever occurs first.
4. Beginning in year 2 of the lease payments, the lease rate will be adjusted by the
CPI on an annual basis.
5. The Lessee will invest $5 million on the development of the site, which will
include a gas station, a CNG fuel pump, convenience store and a restaurant (see
attached site plan).
6. Preliminary plans must be submitted by the developer within 30 days of an
executed lease. Final plans must be submitted within 60 days thereafter.
7. The lessee will construct a 12 -foot wide walkway /bike path at its cost along the
eastern and southern edges of the leased site. The City will maintain this public
amenity.
8. During the term of this lease, the City agrees not to lease other sites along 16th
Street from Kerper to Sycamore Street to any other fueling station.
9. The lessee will be responsible for property taxes. The lessee will not be liable for
any special assessments related to improvements on 16th Street or Kerper
Boulevard for the first 10 years of the lease.
Additional terms and conditions of the lease of the property are included within
the attached Lease Agreement.
RECOMMENDATION
Because the property is in an urban renewal district, Iowa law requires a special
competitive disposition process to dispose of the property described in the attached
Resolution. I recommend that the City Council authorize a 30 day public notice on the
competitive disposition of approximately 3.25 acre site on 16th Street. This action
supports the Council's objectives to develop annual revenue sources in lieu of property
taxes and to create new jobs.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
F: \USERS \Econ Dev \16th Street Commercial Site \Rainbo \12.11.12 Lease Agreement for a portion of 16th Street Corri.doc
Prepared by: Barry A. Lindahl 300 Main Street Dubuque IA 52001 563 583 -4113
OFFICIAL NOTICE
RESOLUTION NO. 349 -12
RESOLUTION (1) APPROVING THE MINIMUM REQUIREMENTS,
COMPETITIVE CRITERIA, AND OFFERING PROCEDURES FOR THE
DEVELOPMENT AND THE LEASE OF CERTAIN REAL PROPERTY AND
IMPROVEMENTS IN THE GREATER DOWNTOWN URBAN RENEWAL
DISTRICT; (2) DETERMINING THAT THE LEASE SUBMITTED BY
RAINBO OIL CO. SATISFIES THE OFFERING REQUIREMENTS WITH
RESPECT TO THE REAL PROPERTY AND IMPROVEMENTS AND
DECLARING THE INTENT OF THE CITY COUNCIL TO APPROVE THE
LEASE WITH RAINBO OIL CO. IN THE EVENT THAT NO COMPETING
PROPOSALS ARE SUBMITTED; AND (3) SOLICITING COMPETING
PROPOSALS.
Whereas, the City Council of Dubuque, Iowa, did on October 1, 2012 adopt an
Amended and Restated Urban Renewal Plan for the Greater Downtown Urban Renewal
District ( "the Plan ") for the Urban Renewal Area described therein; and
Whereas, the Plan provides, among other things, for the disposition of properties for
private development purposes as a proposed economic development action; and
Whereas, Rainbo Oil Co. ( "Lessee ") has submitted to the City a proposal for the
leasing of certain real property hereinafter described for the operation and management of
a portion of the 16th Street Bee Branch Project area as described therein ( "the Lease
Agreement "), together with the request that this property be made available for lease as
rapidly as possible; and
Whereas, in order to establish reasonably competitive bidding procedures for the
disposition of the property in accordance with the statutory requirements of Iowa Code
Chapter 403, specifically, Section 403.8, and to assure that the City extends a full and fair
opportunity to all developers interested in submitting a proposal, a summary of submission
requirements and minimum requirements and competitive criteria for the property offering
is included herein; and
1
Whereas, said Developer has tendered the Lease Agreement with the City, attached
hereto as Exhibit "A "; and
Whereas, to recognize both the firm proposal for lease of the real property and
improvements already received by the City, as described above, and to give full and fair
opportunity to other developers interested in submitting a proposal for the use of the
property, this Council should by this Resolution:
1) Set the fair market value of the real property for uses in accordance with the
Plan;
2) Approve the minimum requirements and competitive criteria included herein;
3) Approve as to form the Lease Agreement attached hereto as Exhibit "A ";
4) Set a date for receipt of competing proposals and the opening thereof;
5) Declare that the proposal submitted by Developer satisfies the minimum
requirements of the offering, and that in the event no other qualified proposal
is timely submitted, that the City Council intends to approve such proposal
and authorize the City Manager to sign the Lease Agreement; and direct
publication of notice of said intent;
6) Approve and direct publication of a notice to advise any other person of the
opportunity to compete for lease of the real property on the terms and
conditions set forth herein; and
7) Declare that in the event another qualified proposal is timely submitted and
accepted, another and future notice will be published on the intent of the City
to enter into the resulting contract, as required by law;
and
Whereas, the City Council believes it is in the best interest of the City and the Plan
to act as expeditiously as possible to lease the real property as set forth herein.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the real property shown on Exhibit "B" attached hereto located
along the south side of 16th Street and adjacent to Kerper Boulevard ( "the 16th Street
Property ") shall be offered for lease in accordance with the terms and conditions contained
in this Resolution.
2
Section 2. That it is hereby determined that in order to qualify for consideration
for selection, any person must submit a proposal which meets these minimum
requirements:
a) Contains an agreement to lease the 16th Street Property at not less than fair
market value established herein;
b) Contains a commitment to lease at least 3.25 acres of the 16th Street site for
uses allowed a C -4 Zoning classification;
c) Sets out or provides to the satisfaction of the City Council the experience of
the principals and key staff who are directly engaged in the performance of
contract obligations in carrying out projects of similar scale and character;
and
d) Meets, at a minimum, the terms and conditions of the Lease Agreement
submitted by the Developer including an agreement to invest not less than
$5,000,000 and a plan to develop, construct and pay for a bike
path /pedestrian walkway on the East and South sides of the leased site.
Section 3. That the Lease Agreement by and between the City and the Developer
be and is hereby approved as to form for the purposes hereinafter stated.
Section 4. That for the purpose of defining the offering of the 16th Street site for
lease, said Lease Agreement shall be deemed to be illustrative of the terms acceptable to
the City with respect to:
a) Annual lease payments;
b) Construction of leasehold improvements;
c) Developer obligations; and
d) General terms and conditions.
Section 5. That the Lease Agreement submitted by the Developer satisfies the
requirements of this offering and, in the event that no other qualified proposals are timely
submitted, that the City Council intends to accept and approve the Lease Agreement.
Section 6. That it is hereby determined that the Developer possesses the
qualifications, financial resources and legal ability necessary to lease the 16th Street site
and to manage and operate the site in the manner proposed by this offering in accordance
with the Plan.
3
Section 7. That the annual lease payments for the site offered by the Developer
are hereby found and determined to be the fair market value of the leasehold interest being
conveyed.
Section 8. That the City Clerk shall receive and retain for public examination the
attached Lease Agreement submitted by the Developer and, in the event no other qualified
proposals are timely submitted, shall resubmit the Lease Agreement to the City Council for
final approval and execution upon expiration of the notice hereinafter prescribed.
Section 9. That the action of the City Council be considered to be and does
hereby constitute notice to all concerned of the intention of this Council, in the event that
no other qualified proposals are timely submitted, to accept the proposal of the Developer
to lease the 16th Street site and to approve the Lease Agreement by and between City and
Developer.
Section 10. That the official notice of this offering and of the intent of the City, in
the event no other qualified proposals are timely submitted, to approve the Lease
Agreement, shall be a true copy of this Resolution, but without the attachments referred to
herein.
Section 11. That the City Clerk is authorized and directed to secure immediate
publication of said official notice in the Telegraph Herald, a newspaper having a general
circulation in the community, by publication of the text of this Resolution without
attachments on or before the 21st day of December, 2012.
Section 12. That written proposals for the lease of the 16th Street site will be
received by the City Clerk at or before 10:00 a.m., January 22, 2013 in the Office of the
City Clerk, located on the first floor at City Hall, 50 West 13t" Street, Dubuque, Iowa 52001.
Each proposal will be opened at the hour of 10:00 a.m. in City Hall, Dubuque, Iowa on
January 22, 2013. Said proposals will then be presented to the City Council at 6:30 p.m.,
January 22, 2013, at a meeting to be held in the City Council Chambers, Historic Federal
Building at 350 West 6th Street, Dubuque, Iowa.
Section 13. That such offering shall be in substantial conformance with the
provisions of Iowa Code Section 403.8, requiring reasonable competitive bidding
procedures as are hereby prescribed, which method is hereby determined to be the
appropriate method for development of the 16th Street property.
Section 14. That the required documents for the submission of a proposal shall be
in substantial conformity with the provisions of this Resolution.
Section 15. That the City Clerk is hereby nominated and appointed as the agent of
the City of Dubuque, Iowa to receive proposals for the lease of the 16th Street on that date
and according to the procedure hereinabove specified for receipt of such proposals and to
proceed at such time to formally acknowledge receipt of each of such proposal by noting
the receipt of same in the Minutes of the Council; that the City Manager is hereby
4
authorized and directed to make preliminary analysis of each such proposal for compliance
with the minimum requirements established by this Council hereinabove. For each
proposal that satisfies these requirements, the City Council shall judge the strength of the
proposal by the competitive criteria established hereinabove. The City Council shall then
make the final evaluation and selection of the proposals.
Section 16. Each proposal submitted which satisfies the foregoing minimum
requirements, as determined by the City Manager, shall be reviewed on the basis
of the strength of such proposal following Competitive Criteria:
Quality of the Proposed Development:
(1) The total cost of the project.
(2) The types of materials to be used in the construction of the project.
(3) Overall project amenities.
Architectural Design of the Proposed Development:
(1) The compatibility of the design with adjacent structures, vistas,
pedestrian traffic, vehicular activities, and future development of
adjacent properties.
(2) The functional design of the site, the structures, and all public
spaces.
(3) The aesthetic quality of the development and its sensitivity to the
use and future development of adjacent properties.
(4) The type, size and arrangement of facades or signage along each
street frontage..
Economic Feasibility of the Proposed Development:
(1) The economic return to the City provided by the proposed
development, including but not limited to, the amount of lease
revenue generated, the property and sales taxes generated, the
number of jobs provided, and the encouragement of related
development in the area.
(2) The ability of the prospective developer to finance and complete
the project as proposed.
5
(3)
The financial impact of the proposed development upon the City's
operating budget and capital improvement plan, particularly as it
relates to the construction and maintenance of any required public
improvements.
Section 17. If, and only if, competing proposals are received and determined by
the Council to meet the minimum requirements described herein, the Lessee shall be
allowed to amend its proposal in response thereto and to deliver same to the City Manager,
by no later than a date determined by the City Council. In such event, the Council shall
schedule a subsequent meeting to be held by the City Manager at which there shall be a
bid -off conducted by the City Manager. During such bid -off, each competing bidder shall
bid against the other, starting with the second proposal received and continuing until such
time as each bidder shall decline to improve its proposal to acquire and redevelop
thel6th Street Property in response to the last bid of the other bidder or bidders. The
period of time to be allowed for such bid -off shall be determined by the City Manager.
The rules of such bid -off shall be as determined by the City Manager at or before such
bid -off period and shall be absolute.
Section 18. That in the event another qualified proposal is timely submitted and
accepted by the City, another and further notice shall be published of the intent of the
City of Dubuque, Iowa, to enter into the resulting agreement, as required by law.
Attest:
Passed, approved and adopted this 17th day of December, 2012.
Kevi irnstahl, City Cle
60
Roy D. B}y(5l, Mayor
F: \USERS \Econ Dev \16th Street Commercial Site \Rainbo \12.6.12 Rainbow Competitive Resolution.doc
6
OFFICIAL NOTICE
RESOLUTION
NO. 349-12
RESOLUTION (1)
APPROVING THE
MINIMUM REQUIRE-
MENTS, COMPETI-
TIVE CRITERIA, AND
OFFERING PROCE-
DURES FOR THE
DEVELOPMENT AND
THE LEASE OF
CERTAIN REAL
PROPERTY AND
IMPROVEMENTS IN
THE GREATER DOWN-
TOWN URBAN
RENEWAL DISTRICT;
(2) DETERMINING
THAT THE LEASE
SUBMITTED BY RAIN -
BO OIL CO. SATIS-
FIES THE OFFERING
REQUIREMENTS
WITH RESPECT TO
THE REAL PROPERTY
AND IMPROVEMENTS
AND DECLARING THE
INTENT OF THE CITY
COUNCIL TO AP-
PROVE THE' LEASE
WITH RAINBO OIL
CO. IN THE EVENT
THAT NO COMPET-
ING PROPOSALS ARE
SUBMITTED; AND (3)
SOLICITING COMPET-
ING PROPOSALS.
Whereas, the City
Council of Dubuque,
Iowa, did on October 1,
2012 adopt. an
Amended and Restated
Urban Renewal Plan for
the Greater Downtown
Urban Renewal District
( "the Plan ") for the
Urban Renewal Area
described therein; and
Whereas, the Plan
provides, among other
things, for the dis-
position of properties
for private develop-
ment purposes as a
proposed economic
development action;
and
Whereas, Rainbo Oil
Co. ( "Lessee ") has
submitted to the City a
proposal for the
leasing of certain real
property hereinafter
described for the
operation and manage-
ment of a portion of
the 16th Street Bee
Branch Project area as
described therein ( "the
Lease Agreement"),
together with the
request that this pro-
perty be made avail-
able for lease as
rapidly as possible;
and
Whereas, in order to
establish reasonably
competitive bidding
procedures for the
disposition of the
property in accordance
with the statutory
requirements of Iowa
Code Chapter 403,
specifically, Section
403.8, and to assure
that the City extends a
full and fair oppor-
tunity to all developers
interested in submit-
ting a proposal, a
summary of submis-
sion requirements and
minimum requirements
and competitive cri-
teria for the property
offering is included
herein; and
. Whereas, said Devel-
oper_bes_tenqgjad_the
such proposal and
authorize the City
Manager to sign. the
Lease Agreement; and
direct ;publication- of
notice of said intent;
6) Approve and direct
'publication of a notice
to advise • any other
person of ' the
opportunity to com-
pete for lease of the
real property on the
terms and conditions
set forth herein; and
7) Declare that in the
event another qualified
ptoposal is timely
submitted and accept-
ed, another and future
notice will be pub-
lished on the intent of
the City to enter into
the resulting contract,
as required by law;
and
Whereas, the City
Council believes it is in
the best interest of the
City and the Plan to act
as expeditiously as
possible to 'lease the
real property as set
forth herein.
NOW, THEREFORE, BE
IT RESOLVED BY THE
CITY COUNCIL OF THE
CITY OF DUBUQUE,
, IOWA:
Section 1. That the
real property'shpWn on
Exhibit "B" attached
hereto located along
the south side of 16th
Street and adjacent to
Kerper Boulevard ( "the
16th Street Property ")
shall be offered for
lease in accordance
with, the terms and
conditions contained in
this Resolution.
Section 2. That it is
hereby determined
that in order to qualify
for •consideration fo'r
selection, any ;person
must .. submit a
proposal which meets
these minimum re-
quirements:
a) Contains an agree-
ment to lease the 16th
Street Property at not
less than fair market
value established here-
in;
b) Contains a commit-
ment to lease at least
3.25 acres of the 16th.
Street site for uses ,
allowed a C -4 Zoning
classification;
c) Sets out or
provides to the
satisfaction of the City
Council the experience
of the principals and
key staff who are
directly engaged in the
performance of con-
tract obligations in
carrying out projects of
similar scale and
character; and
d) Meets, at a mini-
mum, the terms and
conditions of the Lease
Agreement submitted
by the Developer
including an agree-
ment to invest not
less than $5,000,000
and a plan to develop,
construct and pay for a
bike path /pedestrian
walkway on the East
and South sides of the
leased site.
Section 3. That the
Lease Agreement by
and between the City
and the Developer be
and is hereby approved
as to form for the
purposes hereinafter
stated.
Section 4. That for the
purpose of defining the
offering of the 16th
Street site for lease,
said Lease Agreement
shall be deemed to be
illhstrative of the terms
acceptable to the City
with respect to:
a) Annual lease
payments;
b) Construction of
leasehold improvements;
c) Developer obliga-
tions; and
d) General terms and
conditions.
Section 5. That the
Lease. Agreement sub-
mitted by the Devel-
oper' satisfies the
requirements of this
offering and, in the
event that no other
qualified proposals are
timely submitted, that
the City Council
intends to accept and
approve the Lease
Agreement.
Section 6. That it is
hereby determined
that the Developer
possesses the quali-
fications, financial
resources and legal,
ability necessary to
lease the 16th Street
site and to manage and
operate the site in the
manner proposed by
this offering in accor-
dance with the Plan.
Section 7. That the
annual lease payments
for the site offered by
the Developer are
hereby found and
determined to be the
fair market value of the
leasehold interest be-
ing conveyed.
Section 8. That the
City Clerk shall receive
and retain for public
examination the , at-
tached Lease Agree-
ment submitted by the
Developer and, in the
event no other qual-
ified proposals are
timely submitted, shall
resubmit the Lease
Agreement to the City
Council for . final
approval and execution
upon expiration of the
day of December, 2012.
Section 12. That
written proposals for
the lease of the' 16th
Street site will be
received by the City
Clerk at or before 10:00
a.m., January. 2Z 2013
in the Office of the City
Clerk, located on the
first floor at City Hall,
50 West 13th Street,
Dubuque, Iowa 52001.
Each proposal will be
opened at the hour. of
10;00 a.m. in City °Hall,
Dubuque, Iowa " on
January 22, 2013. Said
proposals will then be .
presented to the City
Council at 6:30 p.m.,
January 22, 2013, at a
meeting to be held in
the City Council Cham-
bers, Historic Federal
Building at 350 West
6th Street, Dubuque,
Iowa.
Section 13. That such
offering shall be in
substantial confor-
mance with the
provisions of :Iowa
Code Section 403.8,
requiring reasonable
competitive • bidding
procedures as are
hereby prescribed,
which method is
hereby determined to
be the appropriate
method for develop-
ment of the 16th Street
property.
Section 14. That the
required documents
for the submission of a
proposal shall be in
substantial conformity
with the provisions of
this Resolution.
Section 15. That the
City Clerk is hereby
nominated and ap-
pointed'as the agent of
the City of Dubuque,
Iowa to receive
proposals for the lease
of the 16th Street on
that date and
according to the
procedure hereinabove
specified for receipt of
such proposals and to
proceed at such time
to formally acknowl-
edge receipt of each of
such proposal by
noting the receipt of
same in the Minutes of
the Council; that the
City Manager is-hereby
authorized and di-
rected to make
preliminary analysis of
each such proposal for
compliance with the
minimum requirements
established by this
Council hereinabove.
For each proposal that
satisfies these require-
ments, the City Council
shall judge the
strength of the
proposal by the
competitive criteria
established herein -
above. The City Council
shall then make the
final evaluation and
selection of - the
proposals.
Section 16. Each
proposal submitted
which satisfies the
foregoing minimum
requirements, as de-
termined by the City
Manager, shall be
reviewed on the basis
of the strength of such
proposal following
Competitive Criteria:
Quality of the Pro-
posed Development
(1). The total cost of
the project.
(2) The types of
materials to be used in .
the construction of the
project.
(3) • Overall project
amenities.
Architectural Design
of the Proposed
Development:
(1) The compatibility
of the design with
adjacent structures,
vistas, pedestrian traf-
fic "vehicular activities,
and future develop-
ment •of adjacent
properties.
(2) The functional
design of the site, the
structures, and all
public spaces.
(3) The aesthetic
quality of the devel-
opment and its
sensitivity to the use
and future develop-
ment of adjacent
properties.
(4) The type, size and
arrangement of fa-
cades or signage along
each street frontage.
Economic Feasibility.
of the Proposed
Development:
(1) The economic
return to . the City
provided by the
proposed develop-
ment, including but not
limited to, the amount
of lease revenue
generated, the proper-
ty and sales taxes
generated, the number
of jobs provided, and
the encouragement of
related development in
the area.
(2) The ability of the
prospective developer
to finance and
complete the project
as proposed. •
(3) The financial
impact of the proposed
development upon the
City's operating budget
and capital improve-
ment plan, particularly
as it relates to the
construction and main-
tenance of any
required public
improvements.
Section 17. If, and
event another qualified
proposal. ,is, timely
submitted and ac-
cepted by the City,
another and further
notice shall be
published of the intent
of the City of Dubuque,
Iowa, to enter into the
resulting agreement,
as required by law.
Passed, approved and
adopted this 17th day
of December, 2012.
Roy D. Buol, Mayor
Attest: Kevin Firnstahl,
City Clerk
It 12/21
STATE OF IOWA {SS:
DUBUQUE COUNTY
CERTIFICATION OF PUBLICATION
I, Suzanne Pike, 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: December 21, 2012, and for which the charge is $171.50.
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7f-v"4-
Subscribed to before me, a Notary Public in and for Dubuque County, Iowa,
this oZ day of , 20 /�..
Notary Public in and for Dubuque County, Iowa.
MARY K. V ES"i ERMEYER
Comm;ssicrc Number 154-vE
5
Cr.R . . FEB a
2012 n
Amended and adopt Restatead
Urban Renewal Plan for
the Greater Downtown
Urban Renewal District
("the Plan ") for the
Urban Renewal Area
described therein; and
Whereas, the Plan
provides, among other
things, for the dis-
position of properties
for private develop -
ment purposes as a
proposed economic
development action;
and
Whereas, Rainbo Oil
I Co. ( "Lessee ") has
submitted to the City a
proposal for the
leasing of certain real
property hereinafter
described for the
operation and manage-
ment of a Portion of
the 16th Street Bee
Branch Project area as
described therein ( "the
Lease Agreement "),
together with the
request that this pro-
perty be made avail-
able for lease as
rapidly as possible;
and
Whereas, in order to
establish reasonably
competitive bidding
procedures for the
disposition of the
property in accordance
with the statutory
requirements of Iowa
Code Chapter 403,
specifically, Section
403.8, and to, assure
that the City extends a
full and fair oppor-
tunity to all developers
interested In submit -
ting a proposal, a
summary of submis-
sion requirements and
minimum requirements
and competitive cri-
teria for the property
offering is included
herein; and
Whereas, said Devel-
oper has tendered the
Lease Agreement with
the . City, attached
hereto as Exhibit "A
and
Whereas, to recognize'
both the firm proposal
for lease of the real
property and im-
provements already
received by the City, as
described above, and
to give full and fair
opportunity to other
developers interested
in submitting a
proposal for the use of
the property, this
Council should by this
Resolution:
1) Set the fair market
value of the real
property for uses in
accordance ` with the
Plan;
2) Approve the
minimum requirements
and competitive cri-
teria Included herein;
3) Approve as to form
the lease Agreement
attached hereto as
Exhibit "A' ;
4) Set. a date for
receipt of competing
proposals and the
opening thereof;
- 5) Declare that the
proposal submitted by
Developer satisfies the
minimum requirements
of the, offering, and
that In the event no
other qualified propo-
sal is timely submitted,
that the City Council
intends to approve
nlustrauve OT ine terms
acceptable to the City
with respect to:
a) Annual lease
payments;
b) Construction of
leasehold improvements;
c) Developer obliga-
tions; and
d) General terms and
conditions.
Section 5. That the
Lease. Agreement sub-
mitted by, the Devel-
oper' satisfies the
requirements . of this
offering and, in the
event that no other
qualified proposals are
timely submitted, that
the City Council
intends to accept and
approve the Lease
Agreement.
Section 6. That It is
hereby determined
that the Developer
possesses the quali-
fications, financial
resources and legal
ability necessary to
lease the 16th' Street
site and to manage and
operate the site in the
manner proposed by
this offering In accor-
dance with the Plan.
Section 7. That the
annual lease payments
for the site offered by
the : Developer are
hereby, found and
determined to be the
fair market value of the,
leasehold interest be-
ing conveyed.
Section 8. That the
City Clerk shall receive
and retain for public
examination the at-
tached Lease Agree-
ment submitted by the
Developer and, In the
event no other qual-
ified proposals are
timely submitted, shall
resubmit the Lease
Agreement to the City
Council for final
approval and execution
upon expiration of the
notice hereinafter pre-
scribed.
Section 9. That the
action of the City
Council be tconsidered
to be and does hereby
constitute notice to all
concerned of the
Intention of this Coun-
cil, initheeventthat no
other qualified propo-
sals are timely
submitted, to accept
the proposal of the
Developer to lease the
16th Street site and to
approve. the Lease
Agreement by and
between , City and
Developer.
Section 10. That the
official notice of this
offering and of the
intent of the City, in
the event no other
qualified proposals are
timely submitted, to
approve the Lease
Agreement, shall be a
true ,copy of this
Resolution, but without
the attachments refer-
red to herein.
Section 11. That the
City, Clerk is authorized
and directed to secure
immediate publication
of said official notice in
the Telegraph Herald, a
newspaper having a
general circulation in
the community, by
publication of the text
of this Resolution
without attachments
on or before the 21st
amenities.
Architectural Design
of the Proposed
Development:
(1) The compatibility
of the design with
adjacent structures,
vistas, pedestrian traf-
fic,, vehicular activities,
and future develop -,
ment of adjacent
properties.
• (2) The functional
design of the site, the
structures, and all
public spaces.
(3) The aesthetic
quality of the devel-
opment and its
sensitivity to the use
and future develop-
ment of adjacent
properties.
(4) The type, slze and
arrangement of fa-
cades or signage along
each street frontage.
Economic Feasibility.
of the Proposed
Development:
(1) The economic
return to . the City
provided by the
proposed develop-
ment, Including but not
limited to, the amount
of lease revenue
generated, the proper-
ty and sales taxes
generated, the number
of jobs provided, and
the encouragement of
related development in
the area.
(2) The ability of the
prospective developer
to finance and
complete the project
as proposed. •
(3) The financial
impact of the proposed
development upon the
City's operating budget
and capital improve-
ment plan, particularly
as It relates to the
construction and main-
tenance of . any
required public
Improvements. °
Section 17. It and
only if, competing
proposals are received
and determined by the
Council to meet the
minimum requirements
described
Lessee shall be allowed
to amend its proposal
in response • thereto
and to deliver same to
the City Manager, by
no later than a date
determined by the City
Council: In such event,
the Council shay
schedule a subsequent
meeting to be held by
the City Manager at
which there shall be a
bid -off conducted by
the City Manager.
During such bid -off,
each competing bidder
shall bid against the
other, starting with the
second proposal re-
celved and continuing
until such time as each
bidder shall decline to
improve its proposal to
acquire and redevelop
thel6th Street Property
In response to the last
bid of the other bidder
or bidders,' The period
of time to be -allowed
for such bid -off shall
be determined by the
City Manager. The
rules of such bid -off
shall be as determined
by the City Manager at
or before such bid -off
period and shall be
absolute.
. Section 18. That in the
Subscribed to before me, a Notary Public in and
this 4 3 day of
Notary Public in a
Prepared by: Barry A. Lindahl, Esq. 330 Main Street, Suite 300 Dubuque IA 52001 563 583 -4113
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
RAINBO OIL CO. DBA Kwik Stop C- Stores
This Lease Agreement (the Lease) dated for reference purposes this day
of 2013, between the City of Dubuque, Iowa, an Iowa municipal
corporation (Lessor), and Rainbo Oil Co. DBA Kwik Stop C- Stores, an Iowa corporation
(or related affiliate entity) (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 described in Exhibit A attached to and made a part of this Lease
(approximately3.25 acres located at the corner of 16th St. and Kerper Blvd., acreage to
be determined by survey prior to closing), and as shown on Exhibit B, attached hereto,
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 January, 2013(hereinafter the
"Commencement Date ") and ending at midnight on December 31, 2038 (the Initial
Term), subject to all of the terms, covenants, conditions and agreements contained
herein.
Lessor hereby grants Lessee three (3) consecutive options to extend the Initial Term of
the Lease (each an "option to extend ") in accordance with the terms and conditions of
this Section 1.1 and otherwise upon the same terms and conditions contained in this
Lease. The first option to extend ( "First Option ") shall be an option to extend the term
for a period of five (5) years ( "First Extension Term "), commencing immediately upon
the expiration of the Initial Term. The second option to extend ( "Second Option "), shall
be an option to extend the term for an additional period of five (5) years ( "Second
Extension Term ") commencing immediately upon the expiration of the First Extension
Term. The third option to extend ( "Third Option "), shall be an option to extend the term
for an additional period of five (5) years ( "Third Extension Term ") commencing
immediately upon the expiration of the Second Extension Term. The First Extension
Term, Second Extension Term, and Third Extension Term are collectively the
( "Extension Term "). Lessee shall exercise the First Option, if at all, by written notice
delivered to Landlord at least 18 months prior to the expiration of the Initial Term.
Thereafter, Tenant shall exercise successive Extension Term options, if at all, by written
notice delivered to Lessor at least 18 months prior to the date of expiration of the
immediately preceding Extension Term.
120612baI
1.2. Lessee agrees to cooperate with Lessor in platting the Demised Premises and
amending this Lease to include the platted legal description.
1.3. Use of Premises. Lessee acknowledges that the Demised Premises is currently
zoned C -3 General Commercial.
1.4. Lessee further agrees that the Demised Premises shall be used only for the
following purposes and no others without the prior written consent of Lessor: restaurant,
fueling station (which includes but is not limited to gasoline, diesel, compressed natural
gas, or other alternate fuels) and convenience store.
SECTION 2. RENT AND OTHER PAYMENTS
2.1. Rent.
(1) 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, rent for the first year of
the Term in the amount of $37,000 per acre for 3.25 acres in twelve equal
monthly payments of $10,020.83 commencing on January 1, 2014 or the date of
the issuance of the Certificate of Completion for the Improvements required in
Section 3.2(1), whichever first occurs, and on the first day of each month
thereafter. (The first and last months Rent will be prorated for partial months, if
applicable.
(2) Commencing with the second year of the Initial Term and each successive
year of the Lease Term thereafter, rent shall be increased by the increase
percentage in the United States Bureau of Labor Statistics Consumer Price Index
( "CPI ") as of the applicable anniversary of the Commencement Date compared to
the CPI as of the same date of the previous year. In no event, however, shall the
rent for any year be less than the rent for the previous year.
SECTION 3. TITLE TO IMPROVEMENTS AND TRADE FIXTURES
3.1. Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean the
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
2
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. Lessee shall remove its Trade Fixtures within thirty
(30) days after the expiration of this Lease Agreement.
3.2. Improvements.
(1) On delivery of possession of the Demised Premises to Lessee, Lessee
shall construct Improvements on the Demised Premises at a cost of not less than
$5 Million Dollars.
(2) Upon any termination of this Lease, by reason of any cause whatsoever, if
any new Improvements or Improvements existing at the time of the execution of
this Lease or any part thereof shall then be on the Demised Premises, such
Improvements shall become the property of the Lessor. All of Lessee's right,
title, and interest to and in such Improvements shall cease and terminate upon
expiration of this Agreement, 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. If Lessor so desires and
provides written notice to Lessee not less than thirty (30) days prior to the
termination of this Lease Agreement, Lessor may require Lessee to remove such
Improvements from the Demised Premises within ninety (90) days after the
expiration of this Lease Agreement.
(3) Prior to construction of any Improvements on the Demised Premises,
Lessee shall obtain written approval of Lessee's site plan from Lessor. Such
approval shall not be unreasonably withheld.
(4) At the time of construction of any Improvements on the Demised
Premises, Lessee shall consider the following, but final plans for Improvements
will be mutually agreed upon by the Lessor and Lessee:
• LEED certification;
• Alternative energy sources such as solar, or wind - powered; or
• Any other sustainable design elements with the prior written approval
of Lessor.
(5) Upon request of Lessor, Lessee shall provide Lessor with information
satisfactory to Lessor showing that the improvements in Section 3.2(4) have
been completed.
3
(6) Lessee shall submit a preliminary site plan and preliminary construction plans
prepared by an architect /engineer within 30 days of the signing of this Lease and
final site and construction plans within 60 days of the signing of this Lease. If
Lessor and Lessee do not agree to the site plan and the construction plans within
90 days from the execution of this Lease, Lessee may terminate this Lease on
written notice to Lessor and same shall have no further force and effect.
3.3. Landscaping.
(1) Material landscaping or aesthetic improvements will be made by the
Lessee as mutually agreed upon by the Lessor and Lessee. Lessee shall
maintain all landscaping or aesthetic improvements to the reasonable satisfaction
of Lessor. Lessor's sole remedy with respect to a breach by Lessee of the
obligation contained in this Section 3.3(1) shall be that Lessor may maintain such
landscaping or aesthetic improvements to Lessor's reasonable satisfaction and
Lessor may then charge Lessee, as additional rent, the reasonable amount of
such maintenance performed by Lessor.
(2) No fence shall be installed on the Demised Premises without the approval
of Lessor.
3.4. Flagpoles. Lessee shall construct at Lessee's expense on the Demised
Premises in a location approved by Lessor not later than one year after the
commencement of this Lease not less than three (3) 35 -foot lighted flag poles. One
flagpole shall display a minimum 5 foot by 8 foot official flag of the City of Dubuque,
which official flag Lessor shall provide to Lessee. A second flagpole shall display a
minimum 5 foot by 8 foot official flag of the State of Iowa. A third flagpole shall display a
minimum 5 foot by 8 foot official flag of the United States of America. The Lessee may
add additional flag poles, if desired.
3.5 Bike Path /Pedestrian Walkway. Lessee shall construct a bike path /pedestrian
walkway at Lessee's expense on Lessor's property adjacent to the Demised Premises
in a location approved by Lessor not later than one year after the commencement of this
Lease in accordance with City Engineering standards. After construction by Lessee,
lessor shall be responsible for all maintenance, repair, and replacement of the
bike /path /pedestrian walkway.
SECTION 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
4
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. Lessor shall from time to time execute
and deliver to Lessee any Nondisturbance Agreement that may be required by a lender
of Lessee, provided, however, that such Nondisturbance Agreement shall be consistent
with 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 within 30 days thereafter 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 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.
SECTION 5. TAXES.
5.1. Lessee agrees to pay as additional rent an amount equal to real estate taxes
upon the real estate, including the land and any improvements on the land, 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. Notwithstanding the foregoing, Lessee shall not
be responsible for any special assessments related to improvements to 16th Street or
Kerper Boulevard (or any traffic signals therefore) completed in the first 10 years of this
Lease.
5.2. During the term of this Lease, Lessee further agrees to pay all other taxes, fees
(including but not limited to storm water fees), 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
5
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, 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 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 reserved to Lessor hereunder.
5.5. Lessee shall at all times have the right to contest in good faith, in any proper
proceedings, the payment or satisfaction of any such taxes, fees, 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, 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 cost 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, 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, conduct an
annual inspection of the Demised Premises to determine Lessee's compliance with this
Section 6.
6.2. Lessor shall have the right to require Lessee upon written notice to repair or
maintain any structure on the Demised Premises which Lessor reasonably determines
does not comply with the requirements of this Section, and Lessee shall repair or
maintain, as the notice may require, any such structure within one - hundred twenty (120)
days after receipt of such notice. Lessor's sole remedy shall be to perform such repairs
and /or maintenance and charge Lessee, as additional rent, the reasonable cost of any
such repairs and /or maintenance.
6.3. Lessor shall have no obligation to Lessee for any maintenance expense of any
6
kind on the Demised Premises.
SECTION 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 and the Iowa Smoke Free Air 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 shall not remove any Improvements on the Demised Premises except as
allowed pursuant to this Lease. All trash, garbage and refuse of any kind shall be
promptly removed from the Demised Premises by Lessee. Lessee shall promptly
remove all trash, garbage and refuse of any kind on surrounding properties that
originates at or results from the Demised Premises.
SECTION 8. ALTERATIONS. Lessee shall not, without Lessor's prior written
consent, which consent shall not be unreasonably withheld, make any alteration,
addition, or modification to any Improvement constructed on the Demised Premises
during the Term of this Lease that exceeds Fifty Thousand Dollars ($50,000.00) in cost.
Any alteration, addition, or modification of less than Fifty Thousand ($50,000.00) Dollars
shall not require Lessor's consent.
SECTION 9. USE OF DEMISED PREMISES.
9.1. Lessee 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.
SECTION 10. INSURANCE.
10.1. 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, as such uniform,
standardized schedule may from time to time be amended. The current Insurance
Schedule is attached to this Lease Agreement as Insurance Schedule A. Lessor shall
provide written notice of any amendment to the Insurance Schedule not less than sixty
days prior to the effective date of such amendment.
7
10.2 Developer shall provide and maintain or cause to be maintained at all times
during the process of constructing the Improvements (and, from time to time at the
request of City, furnish City with proof of insurance in the form of a certificate of
insurance for each insurance policy) all risk builder's risk insurance, written on a
Completed Value Form in an amount equal to one hundred percent (100 %) of the
replacement value when construction is completed.
10.3. Upon completion of construction of the 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 insurance as follows:
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.
10.4. All insurance required by this Section shall be taken out and maintained in
responsible insurance companies selected by Lessee which are authorized under the
laws of the State of Iowa to assume the risks covered thereby or Lessee may at its
election self- insure itself pursuant to the aforementioned guidelines. Lessee shall
deposit annually by not later than July 1 of each year with City a certificate or
certificates or binders of the respective insurers stating that such insurance is in force
and effect. Lessee shall furnish to City evidence satisfactory to City that the policy has
been renewed or replaced by another policy conforming to the provisions of this, 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.
10.5. Lessee agrees to notify City immediately in the case of damage exceeding
$50,000.00 in amount to, or destruction of, Trade Fixtures or buildings 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 shall forthwith repair,
reconstruct and restore the Trade Fixtures or buildings to substantially the same or an
improved condition or value as they existed prior to the event causing such damage
8
and, to the extent necessary to accomplish such repair, reconstruction and restoration,
or remove such Trade Fixtures or buildings. Lessee shall apply the Net Proceeds of any
insurance relating to such damage received by Lessee to the payment or
reimbursement of the costs thereof, subject, however, to the terms of any mortgage
encumbering title to the Property.
SECTION 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 has no knowledge of Hazardous Substances in or on the Real Estate.
Lessor makes no other representations or warranties as to the condition, including
environmental condition, of the Demised Premises and Lessee accepts the Demised
Premises as is.
SECTION 12. LESSEE'S WARRANTIES AND REPRESENTATION.
12.1. 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, occupancy and control of the Demised Premises.
12.2. As Is Condition. Lessee acknowledges that Lessor has performed its due
diligence at the Demised Premises, including but not limited to compaction tests, and
will provide copies of such tests to Lessee upon Lessee's request. However, Lessee
bears the sole responsibility of conducting its own due diligence at the Demised
Premises and accepts the Demised Premises in its AS IS condition accordingly.
12.3. 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, 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, except Lessee shall provide full cooperation, assistance, and acces^
9
to Lessor or other parties investigating and /or responding to a threatened or
actual release.
(2) Lessee covenants and agrees to promptly notify Lessor of any release of
Hazardous Substance for which Lessee is responsible under this Section 12.2(1)
that exceeds permitted levels as defined by any local, state or federal laws
applicable to Lessee's use of the Demised Premises originating after the
effective date of this Lease ( "Release ") in, on or about the Demised Premises of
which Lessee suspects or has actual knowledge.
(3) Lessee covenants and agrees to promptly take any and all necessary and
appropriate response to fully address any Release following the advance notice
to Lessor required in Section 12.2(2) above. Such response shall include,
without limitation, notification to appropriate governmental authorities, as may be
required by applicable law. Lessee shall respond to such Release to the full
extent required by applicable law; however, in no event shall Lessee allow
limitations or restrictions to be placed on the Demised Premises without the
written consent of the Lessor.
(4) Except as necessary to conduct its operations and use the Demised
Premises as detailed in Section 1.6 and 1.7, Lessee covenants and agrees to not
manufacture, treat or dispose of Hazardous Substances at the Demised
Premises or allow the manufacture, treatment, or disposal of Hazardous
Substances on the Demised Premises. Lessee shall use and store on the
Demised Premises only those Hazardous Substances as are associated with its
regular business activities, and then only as allowed by applicable 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 § 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, 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 13. INDEMNIFICATION.
10
13.1. 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 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 Section 11. If 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 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 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, and (c) any material
breach on the part of Lessee of any warranty or representation contained in Section 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 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 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 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.
11
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:
(1) 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 new Improvements constructed
by Lessee but not Improvements existing at the commencement of the Term of
this Lease except to the extent Lessee had constructed those Improvements
during a prior leasehold, and all other sums not directly attributable to the value
of the Land constituting the Demised Premises;
(2) To Lessee, the entire award except that portion allocated to Lessor above.
14.3. 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
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 Rent shall be reduced in proportion to the value of 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, as
provided for in this 14.3, 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
12
Premises and the Improvements as soon as reasonably practicable after such
temporary taking.
SECTION 15. 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, provided said third party agrees to comply with the terms and
conditions of this Lease. Lessee may sublet parts of the Demised Premises without the
prior consent of Lessor provided Lessee's subtenants agree to comply with the
applicable terms and conditions of this Lease, and provided further that Lessee shall
remain responsible to Lessor for the terms and conditions of this Lease.
SECTION 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. Pursuant to the procedures set forth in Section 3.2(2), 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.
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
13
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 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 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 ninety (90) days), then and in
any such event, Lessee shall have all rights available to it provided by law or equity. If
Lessor's default shall render the Demised Premises of no operational use to Lessee,
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, then Lessee shall have no further
obligation for the payment of rent, taxes, or wharfage or for the provision of Products to
Lessor, and Lessee may terminate this Lease Agreement and remove all Trade Fixtures
and Improvements subject to Section 3.2.
SECTION 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 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 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 18. QUIET ENJOYMENT. Lessor covenants that at all times during the
14
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 to enter the
Demised Premised at any time to determine whether Lessee is in compliance with the
requirement of this Lease. Notwithstanding this Section 18, Lessor retains the right to
enforce or assist in the enforcement of, without notice, all applicable federal, state and
local laws, including but not limited to, alcohol and tobacco compliance, building code
compliance, fire code compliance, public health and safety laws and any and all other
applicable federal, state and local laws.
SECTION 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.
SECTION 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.
SECTION 21. SURRENDER. Unless required by Lessor to remove Improvements
located on the Demised Premises pursuant to Section 3.2(2) of this Lease Agreement,
Lessee shall, on the last day of the term of this Lease Agreement or upon any
termination of this Lease Agreement, 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 all lettings and occupancies, free and clear of all liens and
15
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,
except for Lessor's default, within thirty (30) days after the expiration of the Term of this
Lease remove the same, and shall pay pro -rated rent for each day it remains on the
Demised Premises, and in the event Lessee shall fail to do so, Lessor may cause the
Trade Fixtures to be removed and Lessee agrees pay Lessor for the costs of removal
within thirty (30) days of receipt of a statement therefore from Lessor.
SECTION 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.
SECTION 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:
WITH COPY TO:
TO LESSEE:
City of Dubuque, Iowa
City Manager
City Hall
50 West 13th Street
Dubuque IA 52001
Fax 319 589-4149
City Attorney
City Hall
50 West 13th Street
Dubuque IA 52001
Paul M Fahey
2255 Kerper Boulevard
P 0 Box 768
Dubuque, IA 52001
WITH A COPY TO: Brad Heying — Kane Norby & Reddick
2100 Asbury Rd
Dubuque, IA 52001
16
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.
SECTION 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
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 Majeure. In the event that either party hereto shall be delayed or hindered
in or prevented from the performance of any act required hereunder by reason of
strikes, lockouts, labor troubles, unavailability of construction materials, unavailability or
excessive price of fuel, power failure, riots, insurrection, war, terrorist activities,
explosions, hazardous conditions, fire, flood, weather or acts of God, or by reason of
any other cause beyond the exclusive and reasonable control of the party delayed in
performing work or doing acts required under the terms of this Lease (collectively Force
Majeure), then performance of such act shall be excused for the period of the delay and
the period for the performance of any such act shall be extended for a period equivalent
to the period of such delay.
24.7. Covenant. During the term of this Lease, Lessor shall not permit the operation of
any fueling station (e.g. gas station, diesel sales, compressed natural gas sales and the
like) on any of Lessor's 16th Street property east of the Sycamore Street bridge. In the
event that Lessor sells or otherwise conveys any of its 16th Street property east of the
Sycamore Street bridge to a third party, any instrument of conveyance shall include the
restriction provided herein.
17
LESSOR: LESSEE:
CITY OF DUBUQUE, IOWA
RAINBO OIL CO.
DBA Kwik Stop C- Stores
By: By: p
Roy D. Buol, Mayor Paul M Fahey,' Owner
Attest:
Kevin S. Firnstahl, City Clerk
18
EXHIBIT A
LEGAL DESCRIPTION
19
1
„ I
[11111
111
if1
KAINlill OIL COMPAKY
1 tali STREET COMMERCIAL
11E v E [OMEN T
CONCEPTUAL SITE PLAN
%CMS 104. - r.r
1411-017.101/0 7 t 7013
n
J1- I •
M
81I8IHX3
1.
INSURANCE SCHEDULE
Insurance Schedule A
shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the
coverage required in Exhibit I prior to contract inception and at the end of the contract if the term of
contract is longer than 60 days. Each Certificate shall be prepared on the most current ACORD form
approved by the Iowa Department of Insurance or an equivalent.
2. All policies of insurance required hereunder shall be with a carrier authorized to do business in Iowa and
all carriers 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 contracting department of the City of Dubuque.
4. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of
Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of
this agreement.
5. All required endorsements to various policies shall be attached to Certificate of insurance.
6. Whenever a specific 150 form is listed, an equivalent form may be substituted subject to the provider
identifying and listing in writing all deviations and exclusions that differ from the 150 form.
7. Provider shall be required to carry the minimum coverage /limits, or greater if required by law or other
legal agreement, in Exhibit I.
21
City of Dubuque Insurance Requirements for Tenants and Lessees of
City Property or Vendors (Suppliers, Service Providers)
Insurance Schedule A (continued)
Exhibit 1
A) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000
Products - Completed Operations Aggregate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
a) Coverage shall be written on an occurrence, not claims made, form. All deviations from the
standard I50 commercial general liability form CG 0001, or Business owners form BP 0002,
shall be clearly identified.
b) Include I50 endorsement form CG 25 04 "Designated Location(s) General Aggregate Limit."
c) Include endorsement indicating that coverage is primary and non - contributory.
d) Include endorsement to preserve Governmental Immunity. (Sample attached).
e) 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.
using I50 form CG 20 10. Ongoing operations.
B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Coverage A
Coverage B
Statutory —State of Iowa
Employers Liability
Each Accident
Each Employee- Disease $100,000
Policy Limit - Disease $500,000
$100,000
a) Policy shall include an endorsement providing a waiver of subrogation to the City of
Dubuque.
22
City of Dubuque Insurance Requirements for Tenants and Lessees of
City Property or Vendors (Suppliers, Service Providers)
Preservation of Governmental Immunities Endorsement
1. Nonwaiver of Governmental Immunity. The insurance carrier 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 insurance carrier 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 insurance carrier.
4. Non - Denial of Coverage. The insurance carrier shall not deny coverage under this
policy and the insurance carrier 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
23