Dove Harbor Lease Agreement_Gavilon Grain, LLCTHE CITY OF
Dui
Masterpiece 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 Dove Harbor
DATE: June 28, 2013
Dubuque
AI-America CitY
'I I.'
2012
Acting Economic Development Director Phil Wagner is recommending City Council
authorization of a 30 -day public notice on the competitive disposition of approximately
7.87 acre site Dove Harbor. Written proposals for the lease of this portion of Dove
Harbor will be received by the City Clerk at or before 10:00 a.m., August 5, 2013. Any
proposal received will be presented to the City Council at the August 5, 2013, City
Council meeting.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
1,ilwx :..,/),4,,,
Michael C. Van Milligen
MCVM:sv
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Phil Wagner, Acting Economic Development Director
Masterpiece on the Mississippi
DATE: June 28, 2013
TO: Michael Van Milligen, City Manager
FROM: Phil Wagner, Acting Economic Development Director
SUBJECT: Lease Agreement for a portion of Dove Harbor
INTRODUCTION
This memorandum provides for City Council consideration a Lease Agreement
for a portion of the Dove Harbor area. A resolution is attached to set a
competitive process accepting proposals for the lease of this site. With this
lease, the City anticipates to receive annual lease and wharfage payment
beginning at $530,000.
Dubuque
All- America City
11111
2012
BACKGROUND
Until June 2012, Cargill leased approximately 15 acres of City owned river front
land in Dove Harbor. The Company indicated that it was not interested in
renewing this lease based on the City's intent to adjust river front leases to more
accurately reflect the current market rate. In May 2010, the City Council
approved the lease of approximately 7 acres of this site to Dubuque Terminals
(Newt) to be effective February, 2013. Gavilon Grain LLC, has already signed a
two month lease for the balance of this site and is now proposing a long term
lease for this property.
In March of 2012, the City Council approved a river front lease with Flint Hills
Resources Pine Bend LLC. This was a 10 year lease with a 3 year option. Flint
Hills had a previous lease for the 20.09 acre site in Dove Harbor which would
have expired in March of 2014. The previous lease was approved by the Dock
Commission in 1964 and provided for an annual lease payment of $7,000 plus
$1,666 in wharfage fees. Under this lease, the City was responsible for property
taxes and dredging costs, which on average exceeded the annual revenue
generated from this lease. That old lease also did not provide for any inflation
adjustments.
The March 2012 lease approved by the Council provided payments of $337,500
thru March of 2014, at which time the lease rate will become $650,000 per year
plus wharfage fees which are expected to generate another $20,000 per year.
Flint Hills will also be responsible for dredging costs and property taxes. This
new lease also provides for an annual lease rate increase adjusted by the cost of
living.
In May of 2010 the City Council approved a Dove Harbor lease with Dubuque
Terminals (Newt) for the southern 6 acres of the former Cargill area. This lease
was for 25 years, effective February 2013. The lease rate was set at $50,000 for
useable acres, but as agreed, will be reduced to $40,906.23 per acre based on
the Flint Hills lease rate. After an initial dredging, this lease also requires the
lesser to pay for future dredging and property taxes. Based on the new lease
rate, this lease (for 2.86 useable acres) will generate $116,992 of annual revenue
plus wharfage fees.
DISCUSSION
Over the past few years the City has been promoting the City owned river front
properties for industrial use that is river dependant. Several companies including
Gavilon have evaluated the available sites. Gavilon currently leases two other
river front properties from the City. One is an 11 acre site on Commercial Street
near the Shot Tower; the other is a 5 acre site on Purina Drive. Gavilon also has
proposed to lease approximately 6 acres of the City's salt site (see separate
memo).
In the attached lease, Gavilon Grain LLC is proposing to lease the approximately
7.87 acres remaining from the former Cargill site. The key elements of this
proposed lease agreement includes the following:
1. The term of the lease is 25 years.
2. The lease would begin upon City Council authorization, anticipated to be
September, 2013.
3. The final size of the site will be determined by a survey. The approximate
size of the site is 7.87 acres. This initial annual lease rate is $41,000 per
acre.
4. An additional rent of $180,000 per year will be paid for use of the existing
buildings located on this site.
5. The lease payments and additional rent may be adjusted up to 3%
annually at the City's discretion.
6. Gavilon will pay a wharfage fee of $.33 per ton for all inbound cargo,
unless the cargo is for the City.
7. Gavilon will invest $2.5 million on improvements to the site.
8. Gavilon will pay for maintenance of the rail spur. This cost will be prorated
with other industries utilizing the rail spur.
9. Gavilon will be responsible for property taxes.
10. Gavilon will be responsible for required landscaping improvements
including the placement of 3 lighted flag poles. The lesser will provide the
official City flag for one of these poles.
11. Within the first three years of the lease, the City will dredge Dove Harbor,
from that point forward Gavilon is responsible for dredging.
12. Upon termination of the lease, Gavilon shall retain ownership of trade
fixtures (i.e. conveyors and loading racks), while site improvements
(buildings, railroad spurs, docks and dolphins) remain property of the City.
Additional terms and conditions of the lease of the property are included
within the attached Lease Agreement.
RECOMMENDATION
Because the property is an urban renewal district, Iowa law requires a special
competitive disposition process to dispose of the property described in the
attached Resolution. I recommend that the City Council authorize a 30 day public
notice on the competitive disposition of approximately 7.87 acre site in Dove
Harbor. This action supports the Council's objectives to develop annual revenue
sources in lieu of property taxes and to assist local business and industry.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
F: \USERS \Econ Dev \Cargill -North American - Peavey - Gavilon \Gavilon \Lease\2013 \Dove Harbor \20130628 Lease
memo.docx
Prepared by: Barry A. Lindahl 300 Main Street Dubuque IA 52001 563 583 -4113
OFFICIAL NOTICE
RESOLUTION NO. 199 -13
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 GAVILON GRAIN, LLC 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 GAVILON GRAIN, LLC IN
THE EVENT THAT NO COMPETING PROPOSALS ARE SUBMITTED;
AND (3) SOLICITING COMPETING PROPOSALS.
Whereas, the City Council of Dubuque, Iowa, did on June 3, 2013 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, Gavilon Grain, LLC ( "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 Dove Harbor 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 Lessee 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
in Dove Harbor ( "the 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 Property at not less than fair market
value established herein;
b) Contains a commitment to lease approximately 7.87 acres in Dove Harbor
for uses allowed in a Heavy - Industrial 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
$2,500,000.
Section 3. That the Lease Agreement by and between the City and the Lessee
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 Property 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) Lessee obligations; and
d) General terms and conditions.
Section 5. That the Lease Agreement submitted by the Lessee 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 Lessee possesses the
qualifications, financial resources and legal ability necessary to lease the Property 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 Lessee
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 Lessee 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 Property and to approve the Lease Agreement by and between
City and Lessee.
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 5th day of July, 2013.
Section 12. That written proposals for the lease of the Property will be received
by the City Clerk at or before 10:00 a.m., August 5, 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 August
5, 2013. Said proposals will then be presented to the City Council at 6:30 p.m., August
5, 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 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 Property 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
4
by noting the receipt of same in the Minutes of the Council; that the City Manager is
hereby 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 under the 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 proposed improvements.
(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 wharfage fees
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 the 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 1st day of July, 2013.
Attest:
Kevi F'rnstahl, City Clerk
6
49,�
Roy D.$uol, Mayor'
Whereas, the Plan
provides, among other
things, for the disposi-
tion- of properties for
private development:
A‘purpos4s as a pro-
posed economic devel-
opment action; and
Whereas, Gavilon
Grain, LLC ( "Lessee ")
has submitted to the
City a proposal for the
leasing of certain real
property hereinafter
described for the oper-
ation and management
of a portion of the Dove
Harbor area as descri-
bed therein ( "the Lease
Agreement "), together
with the request that
this property be made
available for lease as
rapidly as possible;
Whereas, in order to
establish reasonably
competitive bidding
procedures for the dis-
position of the proper-
ty in accordance with
the statutory
ments of Iowa Code
Chapter 403, specifical-
ly, Section 403.8, and to
assure that the City ex-
tends a full and fair op-
portunity to all devel-
opers interested: in
submitting a proposal,
a summary of submis-
sion requirements, and
minimum,requirements
and competitive crite-
ria for the property of-
fering is included here -
in; 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 improve;
ments already .received
by the City, as descri-
bed: above, and to give
full and fair opportuni-
ty to other developers
interested in - submit-
ting, a proposal for the
use of the property,
this Council should by
this Resolution:
1) Set the fair market
value of the real prop-
erty for uses in accord-
ance with the Plan;
2) Approve the mini-
mum requirements and
competitive criteria in-
cluded herein;
3) Approve as to form
the . Lease Agreement
attached hereto as Ex-
hibit "A";
4) Set a date for re-
ceipt of competing pro-
posals and the opening
thereof;
5) Declare that the
proposal submitted by
Lessee satisfies the
minimum requirements
,of the offering, and
that in the event no
other qualified propos-
al is timely submitted,
that the City Council
intends to approve
such proposal and au -.
thorize the City Manag-
er 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 opportu-
nity to compete for
lease of the real prop-
erty on the terms and
conditions set forth
herein; and
7) Declare that in the
event another qualified
OFFICIAL NOTICE
• RESOLUTION
NO.199 -13
RESOLUTION (1) AP-
PROVING THE MINI-
MUM REQUIRE-
MENTS, COMPETI-
TIVE CRITERIA, AND
OFFERING PROCE-
DURES FOR THE .DE-
VELOPMENT AND
THE LEASE OF CER-
TAIN REAL PROPER-
TY AND IMPROVE-
MENTS IN THE
GREATER DOWN-
TOWN URBAN RE-
NEWAL DISTRICT; (2)
DETERMINING THAT
THE LEASE SUBMIT-
TED BY GAVILON
GRAIN, LLC 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 GAVILON
GRAIN, LLC IN THE
EVENT THAT NO
COMPETING PRO-
POSALS ARE SUBMIT-
TED; AND (3) SOLIC-
ITING COMPETING
PROPOSALS.
Whereas, the City
Council of Dubuque, Io-
wa, did on June 3, 2013
adopt an Amended and
Restated Urban Renew-
al Plan for the Greater
' Downtown Urban Re-
newal District ('the
Plan ") for the Urban
Renewal Area descri-
bed therein; and
proposal is timely sub-
mitted and accepted,
another and future no-
tice will be published
on the intent of the
City to -enter -into the
resulting contract, as
required by law;
and
Whereas, the City
Council beliieves,it is in
the best interest of the
City and the Plan to
as expeditiously as
possible to lease the
real property as set
forth herein.
NOW, THEREFORE, BE
1T RESOLVED BY THE
CITY COUNCIL OF THE
CITY OF DUBUQUE, 10-
WA:
Section 1. That the re-
al property shown on
Exhibit "B" attached
hereto located in Dove
Harbor, i ("the Proper-
ty ") 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 for
selection, any person
must submit a propos-
al which meets these
minimum requirements:
a) Contains an agree-
ment to lease the Prop-
eft at,not less than
fair market value es-
tablished herein;
b) Contains .a commit -
ment to lease apprcxi-
mately 7.87 acres in
Dove Harbor for uses
allowed „in .a Heavy -
Industrial Zoning. clas-
sification;
c) Sets out or pro -
vides to the satisfac-
tion of the City Council
.the experience of, the
principals and key staff
who are directly en-
gaged in the, perform-
ance of, contract obli-
gations in carrying out
projects of similar
scale and character;
and
d) Meets, at a mini-
mumk the terms and
conditions of the Lease
Agreement , submitted
by the Developer in-
cluding an agreement
to invest not less than
$2,500,000.
Section 3. That the
Lease Agreement by
and between the City
and the Lessee be and
is hereby approved as
to form for the purpos-
es hereinafter stated
Section 4. That for the
purpose of defining the
offering of the Proper-
ty site for lease, said
Lease Agreement shall
be deemed to be illus-
trative of the terms ac-
ceptable to the City
with respect to:
a) Annual lease pay-
ments;
b) Construction of
leasehold improvements;
c) Lessee obligations;
and
d) General terms and
conditions.
Section 5. That the
Lease Agreement sub -
mitted by the Lessee
satisfies the require-
ments of this offering
and, in the event that
no other qualified pro-
posals are timely sub-
mitted, that the City
Council intends to ac-
cept and approve the
Lease Agreement.
Section 6. That it is
hereby determined
that the, Lessee Os= sesses the qualifica-
tions, financial resour-
ces and legal ability
necessary to lease the
,Property and to man-
age and operate the
site in the manner pro -
posed by this offering
in accordance with the
Plan.
Section 7. That the an-
' nual lease payments
for the site offered by
the Lessee are hereby
found and determined
to be the fair market
value of the leasehold
interest - being, con-
veyed.
Section 8. That the
City Clerk shall receive
and retain for public
examination the at-
tached. Lease Agree-
ment submitted by the
Lessee and, in the
event no other quali-
fied , proposals are
timely submitted, shall
resubmit the Lease
Agreement to the City
Council for final appro-
val and execution upon.
expiration of the notice
h ereinafterprescribed.
Section a. That the ac-
tion of the City Council
be considered to be
and does hereby con -
stitute notice to all
concerned of the inten-
tion of this Council, in
the event that no other
qualified proposals are
timely submitted, to
accept the proposal of
the Developer.to lease
the Property and to ap-
prove the Lease Agree-
ment by and between
City and. Lessee.
Section 10. That the
official notice of this
offering and of the in-
tent of the City, in the
event no other quali-
.fied proposals are
timely submitted, to
.approve the Lease
Agreement, shall be a
true copy of this Reso-
lution, 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 with-
out attachments on or
before the 5th day of
July, 2013.
• Section 12. That writ-
ten proposals for the
lease of the Property
will be received by the
City Clerk at or before
10:00 a-m., August 5,
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 am. in
City Hall, Dubuque, lo-
wa on August 5, 2013.
Said proposals will
then be presented to
the City Council at 6:30
p.m., August 5, 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 conform-
ance with the provi-
sions of Iowa Code
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: July 05, 2013, and for which the charge is $165.31.
Subscribed to before me a Notary Public in and for Dubuque County, Iowa,
this /I5 day o i � _ , 20 a
Notary Public in and for Dubuque County, Iowa.
MARY K.WESTERMEYER
CorrimIe;Ioil Number 154685
posers ror me lease or
the Property on that
date and according to
the procedure hereina -
boye specified for re-
ceiptof such proposals
and to proceed at such
time to formally ac-
knowledge 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 direct-
ed to make preliminary
'analysis of each such
proposal for compli-
ance with the mini-
mum requirements es-
tablished by this Coun-
cil hereinabove. For
each proposal that sat-
isfies these require-
ments, the City Council
shall judge the
strength of the propos-
al by the competitive
criteria established
hereinabove. The City
Council shall then
make the final evalua-
tion and selection of
the proposals.
Section 16. Each pro-
posal submitted which
satisfies the - foregoing
minimum require-
ments, as determined
by the City Manager,
shall be reviewed on
the basis of the
strength of such pro-
posal under the follow-
ing Competitive Crite-
ria:
Quality of the Pro-
' posed Development
(1) The total cost of
the project.
(2) The types of mate-
rials to be used in the
proposed improvements.
(3) Overall project
amenities.
Architectural Design
of the Proposed Devel-
opment:
(1) The compatibility
of the design with ad-
jacent structures, vis-
tas, pedestrian traffic,
vehicular activities,
and future develop-
ment of adjacent prop-
erties. ■
(2) The functional de-
sign of the site, the
structures, and all pub-
lic spaces.
(3) The aesthetic
quality of the develop-
ment and its sensitivity
to the use and future
development of adja-
cent properties.
(4) The type, size and
arrangement of fa-
cades or signage along
each street frontage.
Economic Feasibility
pact or the proposes
development upon the
City's operating budget
and capital improve-
ment plan, particularly
as it relates to the con-
struction and mainte-
nance of any ,required
public improvements.
Section 17. If, and on-
ly if, competing pro -
posals 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 de-
termined 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. Dur-
ing such bid -off, each
competing bidder shall
bid against the other,
starting with the sec-
ond proposal received
and continuing until
such time as each bid -
der shall decline to im-
prove its proposal to
acquire and redevelop
the Property in re-
sponse 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 sub-
mitted and accepted
by the City, another
and further notice shall
be published of the in-
tent of the City of Du-
buque, Iowa, to enter
into the resulting
agreement, as required
by law.
Passed, approved and
adopted this 1st day of
July, 2013.
Roy D. Buol, Mayor
Attest Kevin Firnstahl,
City Clerk
It 7/5
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
GAVILON GRAIN, LLC
DOVE HARBOR LEASE
This Lease Agreement (the "Lease ") dated for reference purposes this day
of , 2013, between the City of Dubuque, Iowa, an Iowa municipal
corporation ( "Lessor "), and Gavilon Grain, LLC, a Delaware limited liability company
( "Lessee ").
SECTION 1. DEMISE AND TERM.
1.1. In consideration of the rents hereinafter reserved and the terms, covenants,
conditions and agreements set forth in this Lease, Lessor hereby leases to Lessee the
real property described in Exhibit A attached hereto and made a part of this Lease
(approximately 7.87 acres) subject to final determination by surveying and platting, at
Lessor's sole expense, 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, including but not limited to those indicated in Exhibit E (the
"Demised Premises "), to have and to hold for an initial term commencing as of the 1st
day of September, 2013, or such earlier date as the parties agree in writing, and ending
at midnight on the 31st day of August, 2038 (the Initial Term), subject to all of the terms,
covenants, conditions and agreements contained herein.
1.2. Lessee agrees to cooperate with Lessor in surveying and platting the Demised
Premises and amending this Lease to include the final legal description; provided,
however, that Lessee shall not be required to pay for the cost of any such surveying and
platting.
1.3. Lessor hereby grants Lessee a nonexclusive easement for ingress and egress to
the Demised Premises over and across the Private Road shown on Exhibit B, attached
hereto. Lessor shall have no obligation for any maintenance for the easement area.
1.4. Use of Premises. Lessee acknowledges that the Demised Premises is currently
zoned HI Heavy Industrial. Notwithstanding such zoning, Lessee agrees that the
Demises Premises shall not be used for any of the following uses:
Slaughterhouses or stockyards;
Manufacture or processing of the following materials: ammonia or chlorine;
Manufacture of acid, lime or lime products, and detergent;
Gavilon Dove Harbor Long Term Lease 062113baI
Sanitary landfills;
Sewage treatment plants;
Crematoriums; reduction plants; foundries, forges or smelters; and
Junk yards, salvage yards.
1.5. Lessee further agrees that the Demised Premises shall be used only for the
handling of bulk commodities (grain, fertilizer, salt, whole cotton seed) and or other bulk
commodities, steel rebar and dried distillers grains with solubles, and no other purposes
without the prior written consent of Lessor, which consent shall not be unreasonably
withheld.
1.6. Lessor and Lessee will enter into a separate Lease Agreement for the Demised
Premises from July 1, 2013 until this Lease is approved by both parties.
SECTION 2. RENT, TAXES, 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 $41,000.00 per acre in twelve equal monthly payments
commencing on the 1st day of September, 2013, and on the first day of each
month thereafter.
(2) As additional rent, Lessee shall pay for the use of the Improvements on
the Demised Premises shown on Exhibit D $180,000 in twelve equal monthly
payments of $15,000 commencing on the 1st day of September, 2013, and on the
first day of each month thereafter.
(3) At Lessor's discretion, rent described in (1) and (2) for each successive
year of the Lease Term may be increased effective September 1 by up to three
percent (3 %) per year.
2.2. Wharfage.
(1) Lessee shall pay Lessor $0.33 per ton for inbound cargo transferred to the
Demised Premises by water, rail or motor vehicle for every ton received at the
Demised Premises.
(2) Tonnage reports shall be provided to Lessor by January 15 of each year
for the preceding calendar year with the payment for each year due by no later
than February 1 immediately following the end of each such year.
SECTION 3. TITLE TO IMPROVEMENTS AND TRADE FIXTURES
2
3.1. Trade Fixtures.
(1) For the purposes of this Lease, "Trade Fixtures" shall mean the personal
property and equipment located on the Demised Premises used in Lessee's
business and all structures above ground, including silos and conveyors, but not
any improvements described in Section 3.2.
(2) Title to Lessee's Trade Fixtures is and shall be the sole and exclusive
property of Lessee during the term of this Lease and shall remain the sole and
exclusive property of Lessee after the expiration or termination of this Lease, for
whatever reason. Lessor acknowledges and understands that it shall have no
right, title or interest in or to Lessee's Trade Fixtures either during the term of this
Lease, or thereafter (except as hereinafter provided). Lessor acknowledges and
agrees that Lessee shall have the right to encumber, sell, or hypothecate
Lessee's Trade Fixtures, to remove them from the Demised Premises, or to
otherwise deal with all or any portion of such Lessee's Trade Fixtures, at
Lessee's sole discretion. Upon ten (10) days' prior written notice to Lessor,
Lessor shall execute and deliver to Lessee a certificate in recordable form
prepared by Lessee stating that Lessor has no interest or right in or to Lessee's
Trade Fixtures, as well as any other or further document which Lessee may
reasonably request from Lessor. If Lessee elects to remove its Trade Fixtures,
Lessee shall remove the Trade Fixtures not more than thirty (30) days after the
expiration of this Lease Agreement; any Trade Fixture remaining on the Demised
Premises after such thirty -day period become the property of Lessor.
3.2. Improvements.
(1) Lessor -owned improvements on the Demised Premises as of the
commencement date of this Lease are the following: office and maintenance
buildings, storage buildings, railroad spurs, dock, and dolphins (collectively, the
"Lessor Improvements ").
(2) On delivery of possession of the Demised Premises to Lessee, Lessee
shall not construct or deconstruct any Lessor Improvements on the Demised
Premises without the prior written consent of Lessor, such consent not to be
unreasonably withheld. Lessee shall compensate Lessor for any deconstructed
Lessor Improvements at fair market value, except for deconstruction or
demolition occasioned by those improvements described in Section 3.2(4).
(3) Lessee shall construct on the Demised Premises not later than December 31,
2016, new improvements or repairs to the existing Lessor Improvements at a
cost of not less than $2.5 Million as follows (collectively, the "Lessee
Improvements "):
The invested capital will be deployed to bring existing equipment and structures
up to terminal operating condition.
3
(4) 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, Lessor
may require Lessee at no cost to Lessor to remove any or all of such
Improvements by delivering notice to Lessee not later than one hundred eighty
days (180) prior to the expiration of the Lease, in which event Lessee shall
remove the Improvements within thirty (30) days after the expiration of this Lease
Agreement. Title to all existing and new Improvements is and shall be at all times
vested in Lessor. No further deed or other instrument shall be necessary to
confirm the vesting in Lessor of title to the Improvements.
(5) Plans for Construction of Improvements. Plan and specifications with
respect to the construction of the Improvements thereon (the Construction Plans)
shall be in conformity with the Urban Renewal Plan, this Agreement, and all
applicable state and local laws and regulations, including but not limited to any
covenants, conditions, restrictions, reservations, easements, liens and charges,
applicable to the Demised Premises, in the records of Dubuque County, Iowa.
Lessee shall submit to Lessor, for approval by Lessor, plans, drawings,
specifications, and related documents with respect to the improvements to be
constructed by Lessee. All work with respect to the Improvements shall be in
substantial conformity with the Construction Plans approved by Lessor.
(6) Upon request of Lessor, Lessee shall provide Lessor with evidence
satisfactory to Lessor showing that the Lessee improvements in this Section 3.2
have been completed.
3.3. Landscaping.
(1) Reasonable 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.
(2) No other fence shall be installed on the Demised Premises without the
approval of Lessor, which consent shall not be unreasonably withheld.
(3) Lessee shall not later than December 31, 2014, install improvements
along approximately 650 lineal feet of Kerper Boulevard substantially similar to
those shown on Exhibit C.
3.4. Flagpoles. Lessee shall construct 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 of which shall display a minimum 5
foot by 8 foot official flag of the City of Dubuque, which official flag Lessor shall provide
to Lessee.
4
3.5. Railroad Extensions.
(1) Lessee shall have the non - exclusive right to use the railroad track located
along East 11th Street and Kerper Boulevard and adjacent to the Demised
Premises (the "Lessor Track ") for storage. Lessee agrees to pay a proportionate
share of the costs of maintenance, repair and upgrades to the Lessor Track with
Lessor and /or third parties in an amount commensurate with Lessee's annual
usage of the Lessor Track. Lessee's annual usage shall be determined based
upon records maintained by Lessee and the railroad and shall be calculated on a
per rail car basis. For any period during the Term of this Lease that Lessee does
not use the Lessor Track, Lessee shall not be responsible for payment of any
costs of maintenance, repair or upgrades to the Lessor Track.
(2) For any railroad tracks on the Demised Premises existing as of the
commencement of this Lease and in the event Lessee installs any track to serve
the Demised Premises (together, the "Demised Premises" Tracks "), Lessee at its
expense shall maintain the Demises Premises Tracks as will permit Lessee,
Lessor or any other lessee of Lessor, to connect thereto for the purpose of
serving proposed tenants occupying land in the vicinity of the Demised Premises;
provided, however, that (i) use of the Demised Premises Tracks by any third
parties pursuant to this Section 3.5(2) shall not interfere with Lessee's use of the
Demised Premises Tracks, (ii) Lessee shall retain first priority to use the
Demised Premises Tracks and any other track located on the Demised Premises
and (iii) Lessor shall defend, indemnify and hold harmless Lessee from and
against all liabilities, obligations, claims, damages, penalties, causes of action,
costs and expenses (including reasonable attorney fees) imposed upon, incurred
by or asserted against Lessee in connection with any third party lessor's use of
the Demised Premises Tracks. The parties hereto acknowledge and agree that
this Section 3.5 is part of the consideration for this Lease, and Lessee agrees to
cooperate with said parties to make such connections to the track of Lessee. In
the event that Lessor should lease additional property to tenant or tenants
requiring connection to a track serving Lessee's property, Lessee shall be
entitled to charge such tenant making connection to such track a proportionate
cost for the track maintenance, based upon the annual usage by the tenant of
Lessee's track calculated on a per railroad car basis. Such costs shall be limited
to that part of Lessee's track used by such other tenant or tenants.
(3) Lessee, when requested by the Lessor, shall remove the railroad tracks
for the purpose of closing the floodwall gates for flood control or maintenance.
The cost of removal and replacement of the railroad tracks shall be at the
expense of the Lessee
SECTION 4. ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST
4.1. Lessee's Right to Encumber Leasehold Interest. Lessee may encumber by
5
mortgage, deed of trust or other proper instrument, its leasehold interest and estate in
the Demised Premises, together with all Lessor Improvements or Lessee Improvements
on the Demised Premises, as security for any indebtedness of Lessee, provided that no
such encumbrance shall extend beyond the term of this Lease. Lessee shall provide
prompt written notice to Lessor of any such encumbrance together with a copy of such
encumbrance. In the event of any judicial or nonjudicial foreclosure under any
mortgage, deed of trust or other similar instrument made by Lessee covering its
leasehold interest in the Demised Premises, Lessor shall, upon such foreclosure or
sale, recognize the purchaser thereunder as lessee under this Lease, provided such
purchaser expressly agrees in writing to be bound by the terms of this Lease.
4.2. Notice to Holder of Encumbrance; Right of Holder to Cure Lessee's Default. If
Lessee shall encumber its leasehold interest and estate in the Demised Premises and if
Lessee, or the holder of the indebtedness, its successors and /or assigns (the Holder)
secured by the encumbrance shall give notice to Lessor 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 all property taxes levied or assessed
upon the real estate and the improvements to the Demised Premises that become
payable during the term hereof and which would become delinquent if not so paid
during the term hereof. If any such taxes shall be levied or assessed for any period of
time prior to the commencement of the Term or after the expiration thereof, such taxes
shall be prorated accordingly. Lessee shall further provide to Lessor official receipts of
the appropriate taxing authority or other evidence satisfactory to Lessor evidencing
payment thereof.
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
6
real estate and which become payable during the term hereof and which would become
delinquent if not so paid during the term hereof, any buildings or improvements thereon
which may be taxed, charged, assessed, levied or imposed upon the leasehold estate
hereby created and upon the reversionary estate in said real estate during the term
hereof and which become payable during the term hereof and which would become
delinquent if not so paid during the term hereof, and all such other taxes, fees, rates,
charges, levies and assessments shall be paid by Lessee as they become due and
before they become delinquent during the term hereof. If any such taxes, fees, rates,
charges, levies and assessments shall be levied or assessed against any period of time
prior to the commencement of the Term or after the expiration thereof, such taxes, fees,
rates, charges, levies and assessments shall be prorated accordingly.
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, in the name of Lessor if necessary, 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, Lessor Improvements or Lessee 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 Lessor Improvements and Lessee
Improvements thereon, and all sidewalks, curbs, and all appurtenances to the Demised
Premises, in good order, condition and repair, casualties and ordinary wear and tear
excepted and to a condition reasonably satisfactory to Lessor. 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
remove any structure on the Demised Premises which Lessor determines does not
7
comply with the requirements of this Section, and Lessee shall repair or remove, as the
notice may require, any such structure within one - hundred twenty (120) days after
receipt of such notice.
6.3 Lessor shall have no obligation to Lessee for any maintenance expense of any
kind on the Demised Premises, including but not limited to, private roads or railroad
tracks. However, Lessor shall, at Lessor's expense, provide routine maintenance and
snow removal for Koch Court.
6.4 Within the first three (3) years of this Lease, Lessor shall perform an initial
dredging at its cost and expense. Lessee agrees to perform all maintenance dredging
necessary to serve 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, and Lessee shall be liable for any damages to or destruction
of any buildings or Lessor Improvements on the Demised Premises resulting from
waste. Lessee shall not remove any Lessor 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.
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 Lessor Improvement on the Demised Premises that
exceeds One Hundred Thousand Dollars ($100,000.00) in cost. Any alteration,
addition, or modification of less than One Hundred Thousand ($100,000.00) 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 Lessor Improvements or Lessee 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 Lessor Improvement or Lessee 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.
9.2. Any vessels or barges docked along the Demised Premises for purposes other
than active loading /unloading shall be no more than 2 vessels or barges in width away
8
from the dock, shall at all times be maintained in a good state of repair, and shall not be
used for the storage of junk or salvage material. In no event, however, shall any vessels
or barges unreasonably interfere with the use of any waterway by other users, nor shall
the number of vessels or barges actively loading or unloading exceed 4.
9.3. Lessee hereby grants access to Lessor to the levee and floodwall at all times for
Lessor's operations and maintenance of the levee and floodwall. Lessee acknowledges
that there is a U.S. Army Corps of Engineers Clear Zone of 20' from the levee and
floodwall that must be free from all storage or construction, and Lessee agrees to
comply with such free zone requirement at all times. The foregoing notwithstanding, but
only to the extent it complies with the rules of the U.S. Army Corps of Engineers,
Lessee shall be allowed to maintain the use and placement of the following existing
structures: grain storage and loading facility, bulk oil storage tank, equipment
maintenance shop and electrical room, rail line and related equipment shed and
material loading conveyor.
SECTION 10. INSURANCE.
10.1. Lessee shall maintain during the term of this Lease insurance as set forth in the
Lessor's standard Insurance Schedule for Lessees of Lessor 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
(60) days prior to the effective date of such amendment.
10.2. Upon completion of construction of the Lessee Improvements, Lessee shall
maintain, or cause to be maintained, at its cost and expense (and from time to time at
the request of Lessor 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 $500,000.00. 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 Lessor. 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 Lessor, but not more
frequently than once every three years, and paid for by Lessee.
10.3. 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
9
election self- insure itself pursuant to the aforementioned guidelines. Lessee shall
deposit annually by not later than July 1 of each year with Lessor a certificate or
certificates or binders of the respective insurers stating that such insurance is in force
and effect. Lessee shall furnish Lessor evidence satisfactory to Lessor 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 Lessor 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.
10.4. Lessee agrees to notify Lessor immediately in the case of damage exceeding
$50,000.00 in amount to, or destruction of, Trade Fixtures or Lessee Improvements or
any portion thereof resulting from fire or other casualty. Net proceeds of any such
insurance ( "Net Proceeds "), shall be paid directly to Lessee, and Lessee shall forthwith
repair, reconstruct and restore the Trade Fixtures or Lessee Improvements to
substantially the same or an improved condition or value as they existed prior to the
event causing such damage and, to the extent necessary to accomplish such repair,
reconstruction and restoration, or remove such Trade Fixtures or Lessee Improvements
whether or not the Net Proceeds of insurance received by Lessee for such purposes are
sufficient. 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 Demised
Premises.
10.5. Lessee shall complete the repair; reconstruction and restoration of any railroad
spur, docks, or dolphins, whether or not the Net Proceeds of insurance received by
Lessee for such purposes are sufficient.
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 makes no representations or warranties as to the condition, including
environmental condition, of the Demised Premises and Lessee accepts the Demised
Premises as is.
SECTION 12. LESSEE'S WARRANTIES AND REPRESENTATION.
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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. 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 onto the Demised Premises which is caused by Lessor
or other tenants or lessees of Lessor or which pre- exists the date of this Lease,
except as follows: (a) Lessee shall be responsible for known pre- existing
releases for which Lessee fails to take due care and adequate precaution and /or
for which Lessee's actions or inactions cause a worsening of the release, and (b)
Lessee shall provide full cooperation, assistance, and access 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.
11
(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.
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, its agents or employees, (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 of this Lease. In
case any action, suit or proceeding is brought against Lessee by reason of any 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, (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,
12
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, the Lessor Improvements or Lessee
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, the Lessor
Improvements and the Lessee Improvements thereon shall be deemed to have been
taken if the remaining portion of the Demised Premises shall not be of sufficient size to
permit Lessee, in Lessee's sole discretion, to operate its business thereon in a manner
similar to that prior to such taking.
14.2. Allocation of Award. Any award for such taking of all or substantially all of the
Demised Premises shall be paid to the parties hereto in accordance with the following:
(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 the Lessee Improvements but
not the Lessor Improvements, 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, the Lessor
Improvements or the Lessee 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, but
only to the extent of the award to Lessee under Section 14.2, so that the
remaining Lessor or Lessee 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
13
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 Tess 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, the Lessor Improvements or the Lessee Improvements thereon or the
appurtenances thereto shall be taken at any time during the term of this Lease in the
exercise of the power of eminent domain by any sovereign, municipality, or other
authority, the term of this Lease shall not be reduced or affected in any way, and
Lessee shall continue to pay in full the rent, additional rent and other sum or sums of
money and charges herein reserved and provided to be paid by Lessee, and the entire
award for such temporary taking shall be paid to Lessee. Lessee shall repair and
restore any and all damage to the Demised Premises, the Lessor Improvements and
the Lessee Improvements as soon as reasonably practicable after such temporary
taking to the extent of the condemnation award to Lessee.
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; provided, however, Lessee may assign this Lease to an
affiliate without Lessor's prior written consent. 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. 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
14
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
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
15
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 Section 16.1 above, but in no event
longer than ninety (90) days), the other party, at such other party's option, in addition to
all other remedies available to such other party, may perform or cause to be performed
such work, labor, services, acts or things, and take such other steps, including entry
onto the Demised Premises, the Lessor Improvements and the Lessee 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
term of this Lease, so long as Lessee is not in default hereunder, Lessee's quiet
enjoyment of the Demised Premises, the Lessor Track, the roads required for access to
the Demised Premises and the Demised Premises Tracks 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.
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.
16
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. Lessee shall, on the last day of the term of this Lease
or upon any termination of this Lease, surrender and deliver up the Demised Premises,
with the Improvements then located thereon into the possession and use of Lessor,
without fraud or delay and in good order, condition and repair, reasonable wear and tear
excepted, free and clear of all lettings and occupancies, free and clear of all liens and
encumbrances other than those existing on the date of this Lease and those, if any,
created by Lessor, without (except as otherwise provided herein) any payment or
allowance 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. That notwithstanding, in accordance with
Section 3.2 of this Lease, Lessee may remove any Improvements within thirty (30) days
of termination of the Lease. 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:
17
TO LESSOR:
WITH COPY TO:
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
TO LESSEE: Gavilon Grain, LLC
Eleven ConAgra Drive
Omaha, NE 68102
Attention: Kylie Kuhl
Facsimile: (402) 221 -0651
WITH COPY TO
Gavilon Grain LLC
505 East 7th Street
Dubuque, Iowa 52001
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
18
successors or assigns.
24.6. Force Maieure. In the event that either party hereto shall be delayed or hindered
in or prevented from the performance of any act required hereunder by reason of
strikes, lockouts, labor troubles, unavailability of construction materials, unavailability or
excessive price of fuel, power failure, riots, insurrection, war, terrorist activities,
explosions, hazardous conditions, fire, flood, weather or acts of God, or by reason of
any other cause beyond the exclusive and reasonable control of the party delayed in
performing work or doing acts required under the terms of this Lease (collectively "Force
Majeure "), then performance of such act shall be excused for the period of the delay
and the period for the performance of any such act shall be extended for a period
equivalent to the period of such delay.
LESSOR:
CITY OF DUBUQUE, IOWA
LESSEE:
GAVILON GRAIN, LLC
By: By: 17a /cam 4not- _-
Roy D. Buol, Mayor
Attest:
Kevin S. Firnstahl, City Clerk
19
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
LIST OF EXHIBITS
Legal Description
Demised Premises
Conceptual Landscape Plan
Existing Site
Flood and Corps Restrictions
20
EXHIBIT A
LEGAL DESCRIPTION
Block II River Front Subdivision No. 2 in the City of Dubuque, Dubuque County, Iowa;
And parts of unplatted slough and Government Lot 3, Section 19, Township 89 North,
Range 3 East, 5th Principal Meridian in the City of Dubuque, Dubuque County, Iowa;
Also including all the land between the westerly shore line of the Mississippi River to the
aforementioned adjacent boundaries all as shown on the attached Exhibit A.
The sum total of the above described parcels contains 9.70 acres, more or less, and is
subject to easements of record and not of record.
21
EXHIBIT B
DEMISED PREMISES
22
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23
EXHIBIT C
CONCEPTUAL LANDSCAPE PLAN
24
25
26
27
'FORAGE@ "' - ;t
PPE! OE
28
LIST OF POSSIBLE SPECIES
Viburnum dentatum "Blue Muffin"
Syringa patula "Miss Kim"
Hemerocallis species (daylilies various colors)
Berberis Thunbergii "crimson pygmy"
"Golden Rocket"
"Emerald Carousel"
Barberry varieties to create hedge pattern
Malus Prairiefire Crab (pink flower)
Malus Morning princess Crab (red flower)
Malus Firebird Crab (white flower)
Crab tree varieties that would fit height restrictions with over head wires
29
EXHIBIT D
EXISTING SITE
30
'Coips!.
Restricted:
* Are❑ subject survsy v,
oirip �..aw yW m
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�. w. . Oi .VD 149
....... .
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_--i w.dYrwaebL _—_-
h � y �.K� .,,a ..v a.. tea.
Lease Area V.23, Corps Restricted CC Access Easement
300
31
Feet
499
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EXHIBIT E
FLOOD AND CORPS RESTRICTIONS
EXHIBIT E
11.River Stage 23 feet
River Prediction 24 feet
Public Works Department personnel will install a 3" pump and close the
Peavey (Virginia Carolina) 24" gate located between the council circle and
the Peavey loading dock.
12. River Stage 24 feet
River Prediction 25 feet
a. Public Works Department personnel will continue to patrol the flood
control system 24/7.
b. Public Works Department personnel will close the two Alliant Energy
gates (sill elevation 25.5).
c. Public Works Department personnel will install a pipe plug and 3" pump at
Peavey (Olin Mathieson).
d. Public Works Department personnel will install a pipe plug at Cargill
(Thruput Terminal) at flap gate.
e. Public Works Department personnel will notify Cargill (Thruput Terminals)
to remove tracks and close the gates.
f. Public Works Depaitment personnel will close the gate at the Peavey
Terminal (Olin Mathieson). (See Attachment A for Public Works
Department Personnel Assignments)
Note: Extra equipment may be required to remove material from the gate
sill prior to closing.
13. River Stacie 25 feet
River Prediction 26 feet
Water in Roosevelt storm sewer, which is pressurized, will now back into
catch basins along Kerper Boulevard. Flap gates are installed on each
catch basin; rain water will pond in street until it is 6" deep and then flow
into sand to seep away. In case of rupture in this line, gate on the 84"
sewer can be shut at the floodwall and pumps installed to pump water
over the floodwall.
32
INSURANCE SCHEDULE
City of Dubuque Insurance Requirements for Tenants and Lessees of City
Property or Vendors (Suppliers, Service Providers)
Insurance Schedule A
1.
shall furnish a signed Certificate of Insutante (COI) to the City of Dubuque, Iowa for
the coverage required im Exhibit I. prior to Contract or lease CrmmencementAll lessees of City property
shall submit an updated COI annuaffy_ Eath Certificate shall be prepared on the most current AWED foram
approved by the Department et insurance or an equivalent. Each certificateshall include a statement
under Description of Operations as to why issued. Eg; Project N or tease of premises at
or construction of
2 All polities of insurance required hereuxidershall he with a carrier authorized to do business in Iowa and
ail carriers shall have a rating of it or better in the current A.M. Best's Rating Guide_
3. Each Certificate shall be tuumished to thecordracting department of the City of Dubuque.
a_ Faifureto provide mmirnnmi coverage shalnot be deemed a waiver of these requirements bythe City of
Dubuque. Failure to obtehr or maintain the required insurance shall be considered a material breads of
this agreement.
5_ ALt required endorsementsto various polices shall be attached to Certificate of insurance_
6. Whenever a specific 150 form is limed, air equiva.lentfotm may be substituted subject to the provider
identifying and listing in writing all darntions and exchusfons that differ from the 150 form.
7_ Providershall be required to any the minbnum. coverage /llmibs, or greater if required by law or other
legal agreement, in Exhibit 1_:
8. Whenever an ISO farm is referenced the current edition of the form must be used.
Pagel of
SchedufeA, Property Or Vend [Suppliers Service Providers
33
City of Dubuque Insurance Requirements for Tenants and Lessees of City
Property or Vendors (Suppliers, Service Providers)
Insurance Schedule A (continued)
Exhibit 1
AI COMMERCIAL GENERAL LIABILITY
General Aggregate Limit 52,000,000
Products-Completed Operations Aggregate Limn 51,000,00D
Personal and Advertising injury Limit 51,000,00D
Each Occurrence 51,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments 5 5,000
a) Coverage shall be written on an occurrence, not claims made, form. All deviations from the
standard 154 commercial general Embattle form CO 0001, or Business owners form BP 0002,
shall be dearly identified.
hI include ISO endorsement form CG 25 04 'Designated Leca¢ionjs) General Aggregate Limit°
c] includeendorsement indiatingthat coverage is primary and noro-contnirutory.
d) Include endorsement to preserve Governmental Immunity_ (Sample attached).
e} Include an endorsement that deletes anyfellow emlployeeexclusion.
f} Include additional insured endorsement for
The City or Dubuque, including all its elected and appointed officials, all its employees
and volunteers, all its boards, commissions andj'orauthorities and their board members,
employees and volunteers. Use 1501 form CG 2010. Ongoing operations.
ga Irvendor utilizes Mikes or Segways in the conduct of business, include an endorsement
reelecting that these vehicles are not extruded from Commercial General Liability coverage.
BI WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory benefits covering aril employees injured on the job by accident or disease as prescribed by
lowa Code Chapter 85 as amended_
Coverage A
Coverage 3
Statutory—State of Iowa
Employers Debility
Each Accident 5200,000
Each Employee- Disease 52001,000
Policy Limit- Disease S5004000
Policy shall include an endorsement providing a waiver Msubrogation to the City of Dubuque-
Policy shall include an endorsement for United States Longshore and Haab or Workers' Compensation
coverage.
Page 2 of 3 Schedule A, Property Or Vendors (Suppliers, Service Providers
34
City of Dubuque insurance Requirements for Tenants and Lessees of City
Property or Vendors (Suppliers, Service Providers)
Preservation of Governmental Immunities Endorsement
1. tier komajEgt The insurance carrier expressly agrees and states that the
purchase of this poibcy and the including ofthe City of Dubuque, Iowa as an Additional Insured does
not waive any of the defenses of governmental Immunity available to the Oty of Dubuque, Iowa
under Code of Iowa Section 670.4as 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 onty
those claims notsubjectto the defense of governmental immunity under the Code of Iowa Section
6704 as it nom edsts arid asit 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 anytime and shall do so upon thetirnely
Written request of the insurance carrier,
4. Non-Denial of Coverage. The insurance carver shall not deny coverage under this policy and the
insurance tauter shall not deny any of the rights and bene€its accruing to the City of Dubuque, Iowa
under this policy for reasons of government-al 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 shalt not otherwise
change or alter the coverage avatiable under the policy_
SPECIMEN
Page 3 of 3 Schedule A, Property Or Vendors (Suppriers,: Sersrice Providers
35
DISCLAIMER: This Information was compiled
zing the Dubuque Area Geographic Information System
( DAGIS), which includes data created by both the City of
Dubuque and Dubuque County. It is understood That, while
the City of Dubuque and participating agencies utilized the
most current and accurate Information available, DAGIS and
it suppliers do not warrant the accuracy or currency of the
Information or data contained herein. The City and participating
agencies shall not be held liable for any direct, Indirect, incidental,
consequential, punitive, or special damages, whether foreseeable or
unforeseeable, arising out of the authorized or unauthorized use of
this data or the Inability to use This data or out of any breach of
warranty whatsoever.
Existing Gavilon Leases 14 Dubuque Terminals Lease Hodge Transit Le
Proposed Lease Sites Flint Hills Lease
Document Path: H: \EngineeringlLease Agreements \CarGill Properties \LeaseLocationMap.mod
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