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Rainbo Oil Lease Agrement_16th Street CorridorMasterpiece 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: January 16, 2013 Dubuque kital All- America City II h/ 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. 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. 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 their costs 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. Because the property is in an urban renewal district, Iowa law requires a special competitive disposition process to dispose of the property. The City Council authorized a 30 day public notice on the competitive disposition of approximately 3.25 acre site on 16th Street. Competitive proposals are due by 10:00 a.m. on January 22, 2013. Economic Development Director Dave Heiar recommends the City Council utilize the attached proceedings prepared by Bill Noth, Ahlers, & Cooney, P.C., if a competitive proposal is submitted prior to the 10:00 a.m deadline on January 22, 2013. If no competitive proposal is submitted, Dave Heiar recommends City Council approval of the resolution accepting the proposal submitted by Rainbo Oil Co. DBA Kwik Stop C- Stores. 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 2 Masterpiece on the Mississippi TO: Michael Van Milligen, City Manager FROM: David J. Heiar, Economic Development Director SUBJECT: Lease Agreement for a portion of 16th Street Corridor Dubuque Weill All-America City 'I'll®, 2007 January 15, 2013 INTRODUCTION This memorandum provides for City Council consideration a Lease Agreement for a portion of the 16th Street corridor property. At the December 17, 2012 meeting, the council set a process for accepting competitive proposals for the lease of this site as required by the Iowa Code. 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 recommended 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 /ACTION STEP Because the property is in an urban renewal district, Iowa law requires a special competitive disposition process to dispose of the property. The City Council authorized a 30 day public notice on the competitive disposition of approximately 3.25 acre site on 16th Street. Competitive proposals are due by 10:00 a.m. on January 22, 2013. The action step for the City Council is to utilize the attached proceedings prepared by Bill Noth, Ahlers, & Cooney, P.C., if a competitive proposal is submitted prior to the 10:00 a.m deadline on January 22, 2013. If no competitive proposal is submitted, the action step is to approve the resolution accepting the proposal submitted by Rainbo Oil Co. DBA Kwik Stop C- Stores. This action supports the Council's objectives to develop annual revenue sources in lieu of property taxes and to create new jobs. F: \USERS \Econ Dev \16th Street Commercial Site \Rainbo\20130115 MEMO - Lease Agreement for a portion of 16th Street Corridor.doc RESOLUTION NO. 25-13 APPROVING DISPOSAL OF AN INTEREST IN REAL PROPERTY OWNED BY THE CITY OF DUBUQUE BY LEASE AGREEMENT WITH RAINBO OIL CO. DBA KWIK STOP C- STORES Whereas, the City of Dubuque, Iowa is the owner of the real property described in Exhibit A attached hereto (approximately 3.25 acres) located at the corner of 16th Street and Kerper Boulevard (the Property); and Whereas, the City of Dubuque, Iowa, is interested in stimulating reinvestment in the Greater Downtown Urban Renewal District; and Whereas, Rainbo Oil, Co. DBA Kwik Stop C- Stores has proposed a Lease Agreement for the Property to construct a fueling station, convenience store and a restaurant; and WHEREAS, the City Clerk published a notice as required by law soliciting competitive proposal for the Property; and WHEREAS, as of 10:00 a.m. on January 22, 2013, the City Clerk received no competitive proposals for the Property; and Whereas, the City Council believes it is in the best interest of the City of Dubuque to approve the Lease Agreement proposed by Rainbo Oil, Co. DBA Kwik Stop C- Stores. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The Lease Agreement between the City and Rainbo Oil, Co. DBA Kwik Stop C- Stores is hereby approved. Section 2. The Mayor is authorized and directed to execute said Lease Agreement on behalf of the City of Dubuque. Passed, approved and adopted this 22th day of January, 2013. Attest: Kevin irnstahl, City F: \USERS \Eton Dev \16th Street Commercial Site \Rainbo\20130115 Reso Approving 16th Street LA.doc D. Buol, Mayor 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 22nd day of January , 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: CITY OF DUBUQUE, IOWA Attest: Ke S. Firnstahl, 18 LESSEE: RAINBO OIL CO. DBA Kwik Stop C- Stores By: Paul M Fahey, Owner EXHIBIT A LEGAL DESCRIPTION 19 „ I [11111 111 It if1 KAINlill OIL COMPAKY I 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 ISO 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 ISO 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 I 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 ISO commercial general liability form CG 0001, or Business owners form BP 0002, shall be clearly identified. b) Include ISO 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 ISO 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 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 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 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 the16th 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. Passed, approved and adopted this 17th day of December, 2012. Attest: Kevi irnstahl, City Cle F: \USERS \Econ Dev\1 6th Street Commercial Site\Rainbo\1 2.6.12 Rainbow Competitive Resolution.doc / "i .✓ s. Roy D. B}5I, Mayor 6 CERTIFICATE of the CITY CLERK STATE OF IOWA ) SS: COUNTY OF DUBUQUE ) I, Kevin S. Firnstahl, do hereby certify that I am the duly appointed, qualified, City Clerk of the City of Dubuque, Iowa, in the County aforesaid, and as such City Clerk, I have in my possession or have access to the records of the proceedings of the City Council. I do further state that the hereto attached Resolution No. 349 -12 is a true and correct copy of the original. In Testimony Whereof, I hereunto set my hand and official seal of the City of Dubuque, Iowa. Dated at Dubuque, Iowa, on this 18th day of December, 2012. AP .11017 a B K . in S. Firnst. hl, C ` City Clerk (SEAL) 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_tendeLed_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 L 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. a inch 7f-v"4- Subscribed to before me, a Notary Public in and for Dubuque County, Iowa, this oZ day of , 20 /c2_.. Notary Public in and for Dubuque County, Iowa. MARY K. WESTER!,4EYER Commission Number 154-vE 5 Cr.R . . FEB a 2012 n Amended and adopt Restatead Urban Renewal Plan for the Greater Downtown Urban Renewal District I ("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 me 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, inrtheeventthat 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, 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 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 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 re- ceived 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 (This Notice to be posted) NOTICE AND CALL OF PUBLIC MEETING Governmental Body: The City Council of the City of Dubuque, Iowa. Date of Meeting: January 22, 2013 Time of Meeting: 6:30 o'clock P.M. Place of Meeting: Historic Federal Building, 350 West 6th Street, Dubuque, Iowa. PUBLIC NOTICE IS HEREBY GIVEN that the above mentioned governmental body will meet at the date, time and place above set out. The tentative agenda for the meeting is as follows: • Resolution with respect to compliance of proposals with terms of urban renewal offering • Resolution setting date of a meeting to consider acceptance of a proposal for redevelopment of a portion of the Greater Downtown Urban Renewal District, and establishing rules for submitting amended proposals in advance thereof Such additional matters as are set forth on the additional page(s) attached hereto. (number) This notice is given at the direction of the Mayor pursuant to Chapter 21, Code of Iowa, and the local rules of the governmental body. City Clerk, City of Dubuque, Iowa January 22, 2013 The City Council of the City of Dubuque, Iowa, met in regular session, in the Historic Federal Building, 350 West 6th Street, Dubuque, Iowa, at 6:30 o'clock P.M., on the above date. There were present Mayor , in the chair, and the following named Council Members: Absent: -1- Council Member introduced the following Resolution entitled "RESOLUTION WITH RESPECT TO COMPLIANCE OF PROPOSALS WITH TERMS OF URBAN RENEWAL OFFERING" and moved that the same be adopted. Council member seconded the motion to adopt. The roll was called and the vote was: AYES: NAYS: Whereupon, the Mayor declared the Resolution duly adopted as follows: RESOLUTION NO. RESOLUTION WITH RESPECT TO COMPLIANCE OF PROPOSALS WITH TERMS OF URBAN RENEWAL OFFERING WHEREAS, this Council, by Resolution No. 349 -12 adopted December 17, 2012 ( "Offering Resolution "), nominated the City Clerk as agent of the City of Dubuque, Iowa to receive and to open, on January 22, 2013, at 10:00 a.m., proposals in competition to the proposal of Rainbo Oil Co. referred to in said Offering Resolution for the lease and redevelopment of a portion of the Greater Downtown Urban Renewal District referred to therein as the "16th Street Property ", in accordance with the terms and conditions set forth in said Resolution; and WHEREAS, the City Clerk reports to this Council that a competing proposal has been submitted by , having an office for the transaction of business at ; and WHEREAS, as directed in the Offering Resolution, the City Manager has made a preliminary analysis of such proposal for compliance with the minimum requirements established by this Council in the Offering Resolution, and reports to this Council that, in his opinion, such proposal satisfies said minimum requirements. NOW, THEREFORE, BE IT RESOLVED by the City Council by the City of Dubuque, Iowa: -2- 1. That the report of the City Clerk that the competing proposal submitted by for the lease and redevelopment of the 16th Street Property, be received and filed and approved; and that it is hereby determined that the proposals by Rainbo Oil Co. and for the lease and redevelopment of the 16th Street Property are the only proposals which satisfy the terms and conditions of the offering set forth in the Offering Resolution. PASSED AND APPROVED this day of , 2013. Mayor ATTEST: City Clerk -3- Council Member then introduced the following Resolution entitled 'RESOLUTION SETTING DATE OF MEETING TO CONSIDER ACCEPTANCE OF A PROPOSAL FOR REDEVELOPMENT OF A PORTION OF THE GREATER DOWNTOWN URBAN RENEWAL DISTRICT, AND ESTABLISHING RULES FOR SUBMITTING AMENDED PROPOSALS IN ADVANCE THEREOF" and moved that the same be adopted. Council member seconded the motion to adopt. The roll was called and the vote was: AYES: NAYS: Whereupon, the Mayor declared the Resolution duly adopted as follows: RESOLUTION NO. RESOLUTION SETTING DATE OF MEETING TO CONSIDER ACCEPTANCE OF A PROPOSAL FOR REDEVELOPMENT OF A PORTION OF THE GREATER DOWNTOWN URBAN RENEWAL DISTRICT, AND ESTABLISHING RULES FOR SUBMITTING AMENDED PROPOSALS IN ADVANCE THEREOF WHEREAS, this Council, by Resolution No. 349 -12 adopted on December 17, 2012 ( "Offering Resolution "), among other things: 1. Adopted competitive terms and minimum requirements for offering a portion of the Greater Downtown Urban Renewal District ( "District ") for lease and redevelopment, referred to therein as the "16th Street Property "; 2. Determined the fair market value of the 16th Street Property for uses in accordance with the Amended and Restated Urban Renewal Plan (the "Plan ") for the District; 3. Determined that the proposal submitted by Rainbo Oil Co. satisfies the terms and requirements of said offering; -4- 4. Approved as to form the proposed Lease Agreement by and between the City and Rainbo Oil Co.; 5. Determined that Rainbo Oil Co. possesses the qualifications, financial resources and legal ability necessary to acquire and redevelop the area described therein in the manner proposed in the offering and in accordance with the Plan; 6. Set a date for receipt of competing proposals and any opening thereof, and provided for review of such proposals with recommendations to this Council in accordance with established procedures; 7. Declared that the proposal submitted by Rainbo Oil Co. satisfied the requirements of the offering, and declared its intent to accept such proposal and enter into the Lease Agreement in the event no other qualified proposal is timely submitted; and 8. Approved and directed publication of a Notice to advise any would -be competitors of the opportunity to compete for the lease of the 16th Street Property for rehabilitation on the terms and conditions described therein; WHEREAS, on December , 2012, the text of the Offering Resolution was published as the Official Notice of this offering and of the intent of the City of Dubuque, Iowa, in the event that no other qualified proposals were timely submitted, to enter into the Lease Agreement; and WHEREAS, by separate Resolution of this date, this Council has received and approved as its own the City Clerk's report that a competing proposal was timely received, said proposal being submitted by of ; and WHEREAS, as provided in the Offering Resolution, it is now appropriate to set a date of a meeting of this Council to be held to consider acceptance of one of said proposals for redevelopment of the 16th Street Property, and to establish rules for submitting amended proposals in advance thereof. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Dubuque, Iowa. 1. That Rainbo Oil Co. shall have until 1:00 P.M. on January [28], 2013 to amend its proposal in any desired respect in response to the competing proposal submitted by and to deliver the same to the City Clerk. -5- 2. That the City Manager be and he is hereby nominated and appointed as the agent of the City of Dubuque, Iowa and of this City Council to conduct a bid -off at a meeting between the proponents of the two proposals received by the City, commencing at 9:00 A.M. on , 2013, each proposal against the other, starting with the proposal of . Each bidder shall be given a period of not to exceed one -half hour to improve its bid in response to the last bid of the other bidder. The bid -off shall continue until such time as each proponent shall decline to improve its bid any further, but in all events, the aggregate period of time to be allowed for such bid -off shall not be in excess of three consecutive hours on said date. 3. That during such bid -off, each proponent shall be permitted to amend its proposal only as follows: a. The amount of the annual lease payment to be paid for the 16th Street Property may be increased from the amount last proposed by the proponent, but only in increments of not less than $3,000; b. The amount of the proponent's committed investment in the improvements to be constructed on the 16th Street Property may be increased from the amount last proposed by the proponent, but only in increments of not less than $100,000; c. Other commitments to incur costs for public features, amenities or facilities on or adjacent to the site, or elsewhere in the District, may be submitted by the proponent, but only if the direct economic benefit to the City of each such proposed feature, amenity or facility is not less than $25,000, in the sole judgment of the City Manager. No other amendments to the proposals shall be considered. 4. That the City Manager be and he is hereby authorized and directed to conduct such bid -off under such procedural rules as he shall determine to be necessary or desirable during the course thereof, with the intent that both such proponents be given a reasonable opportunity, within the confines of the procedures and limitations set forth herein, to present amended proposals to the City if they so desire and to ensure that the best interests of the citizens of the City are protected and advanced in the process, and that the offering of the property by the City be undertaken in full compliance with the provisions of Chapter 403 of the Iowa Code. All such rules, and any determinations made by the City Manager during such bid -off, shall be absolute and shall not be subject to appeal or review by this Council. -6- 5. That the City Manager be and he is hereby authorized and directed to make a preliminary analysis of each such amended proposal following such bid -off, utilizing such financial and other advisors as he shall deem necessary in the circumstances, and to submit his recommendations to the City Council at 6:30 p.m. on February 4, 2013 at the regular meeting of this Council to be held in the Historic Federal Building, 350 West 6th Street, Dubuque, Iowa. 6. That at such meeting the Council shall consider the strength of the proposals by the competitive criteria established in the Offering Resolution, taking into account both the original proposal's adherence to said minimum requirements as well as any amendments to the original proposals offered by the proponents thereof during the bid -off and the recommendations of the City Manager with respect thereto, and accept the proposal or take such other action as it determines to be in the best interests of the City and the residents hereof. A representative of each proponent should be available for questions at such meeting. The Council reserves the right to reject both proposals, to defer action with respect to the acceptance of a proposal, to require additional information to be submitted by a proponent prior to further consideration of its proposal, and otherwise to take such action as it shall determine to be in the best interests of the City and the residents hereof and in accord with the public purposes of Chapter 403 and the Amended and Restated Urban Renewal Plan for the District. 7. That the City Clerk be and he is hereby authorized and directed to send a copy of this Resolution to each such bidder. PASSED AND APPROVED this day of , 2013. ATTEST: City Clerk Mayor - 7 - CERTIFICATE STATE OF IOWA ) SS COUNTY OF DUBUQUE I, the undersigned City Clerk of the City of Dubuque, State of Iowa, do hereby certify that attached is a true and complete copy of the portion of the corporate records of the City showing proceedings of the City Council, and the same is a true and complete copy of the action taken by the Council with respect to the matter at the meeting held on the date indicated in the attachment, which proceedings remain in full force and effect, and have not been amended or rescinded in any way; that meeting and all action thereat was duly and publicly held in accordance with a notice of meeting and tentative agenda, a copy of which was timely served on each member of the Council and posted on a bulletin board or other prominent place easily accessible to the public and clearly designated for that purpose at the principal office of the Council (a copy of the face sheet of the agenda being attached hereto) pursuant to the local rules of the Council and the provisions of Chapter 21, Code of Iowa, upon reasonable advance notice to the public and media at least twenty -four hours prior to the commencement of the meeting as required by law and with members of the public present in attendance; I further certify that the individuals named therein were on the date thereof duly and lawfully possessed of their respective City offices as indicated therein, that no Council vacancy existed except as may be stated in the proceedings, and that no controversy or litigation is pending, prayed or threatened involving the incorporation, organization, existence or boundaries of the City or the right of the individuals named therein as officers to their respective positions. WITNESS my hand and the seal of the City hereto affixed this day of , 2013. (SEAL) 00910245 -1 \1 0422.067 City Clerk, City of Dubuque, State of Iowa 8