Gavilon Grain LLC Lease Agreement for Dove Harbor SiteTHE CITY OF
Dui
Masterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
Dubuque
band
AI- America City
11111r
2007 • 2012 • 2013
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Lease Agreement for a Portion of Dove Harbor
DATE: August 1, 2013
Economic Development Director Phil Wagner is recommending approval of a lease with
Gavilon Grain, LLC for 7.87 acres of industrial riverfront property.
Until June 2012, Cargill leased approximately 15 acres of City owned river front land in
Dove Harbor at $3,800 per year, plus wharfage. 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.
In March of 2012, the City Council approved a river front lease with Flint Hills Resources
Pine Bend LLC for a parcel adjacent to the one being considered for Gavilon Grain.
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.
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 additional City property which is a separate agenda item.
In the attached lease, Gavilon Grain LLC is proposing to lease the approximately 7.87
acres in the Dove Harbor area. The key elements of this proposed lease agreement
include 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 $322,670 at $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 by the Consumer Price
Index for All Urban Consumers, up to a maximum of 3 percent annually.
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.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
2
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Phil Wagner, Acting Economic Development Director
Gus Psihoyos, City Engineering
Don Vogt, Public Works Director
Jennifer Larson, Budget Director
John Klostermann, Street and Sewer Maintenance Supervisor
Steve Brown, Project Manager
Rick Dickinson, Executive Director Greater Dubuque Development Corporation
3
Masterpiece on the Mississippi
DATE: August 1, 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. At the July 1, 2013 meeting, the City
Council set a process for accepting competitive proposals for the lease of this
site as required by the Iowa Code.
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 in the Dove Harbor area. The key elements of this proposed lease
agreement include 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 by the
Consumer Price Index for All Urban Consumers, up to a maximum of 3
percent annually.
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 / ACTION STEP
Because the property is an urban renewal district, Iowa law required a special
competitive disposition process to dispose of the property. The City Council
authorized a 30 day public notice on the competitive disposition of the
approximately 7.87 acre site in Dove Harbor. Competitive proposals are due by
10:00 a.m. on August 5, 2013.
The action step for the City Council is to utilize the attached proceedings
prepared by Bill Noth, Ahlers, & Cooney, P.C., if a competitive proposal is
submitted prior to the 10:00 a.m deadline on August 5, 2013. If no competitive
proposal is submitted, the action step is to approve the resolution accepting the
proposal submitted by Gavilon Grain, LLC.
This action supports the Council's objectives to develop annual revenue sources
in lieu of property taxes and to create new jobs.
F: \USERS \Econ Dev \Cargill -North American - Peavey - Gavilon \Gavilon \Lease\2013 \Dove Harbor \20130801 staff
memo.docx
RESOLUTION NO. 253 -13
APPROVING DISPOSAL OF AN INTEREST IN REAL PROPERTY OWNED BY THE
CITY OF DUBUQUE IN THE DOVE HARBOR AREA BY LEASE AGREEMENT WITH
GAVILON GRAIN, LLC
Whereas, the City of Dubuque, Iowa is the owner of the real property described
in Exhibit A attached hereto (approximately 7.87 acres) located in the Dove Harbor area
(the Property); and
Whereas, the City of Dubuque, Iowa, is interested in stimulating reinvestment in
the Greater Downtown Urban Renewal District; and
Whereas, Gavilon Grain, LLC has proposed a Lease Agreement on the Property
for the construction of improvements and the handling of bulk commodities; and
WHEREAS, the City Clerk published a notice as required by law soliciting
competitive proposal for the Property; and
WHEREAS, as of 10:00 a.m. on August 5, 2013, the City Clerk received no
competitive proposals for the Property; and
Whereas, the City Council believes it is in the best interest of the City of Dubuque
to approve the Lease Agreement proposed by Gavilon Grain, LLC.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The Lease Agreement between the City and Gavilon Grain, LLC is
hereby approved.
Section 2. The Mayor is authorized and directed to execute said Lease
Agreement on behalf of the City of Dubuque.
Passed, approved and adopted this 5th day of August, 2013.
Attest:
04/
Roy D. Buol, Mayor
Trish L. Gleason, Assistant City Clerk
F: \USERS \Econ Dev \Cargill -North American- Peavey - Gavilon \Gavilon \Lease\2013 \Dove Harbor\20130805 Reso Approving Dove
Harbor lease.docx
(This Notice to be posted)
NOTICE AND CALL OF PUBLIC MEETING
Governmental Body: The City Council of the City of Dubuque, Iowa.
Date of Meeting: August 05, 2013
Time of Meeting: 6:30 o'clock P.M.
Place of Meeting: Historic Federal Building, 350 West 6th Street, Dubuque,
Iowa.
PUBLIC NOTICE IS HEREBY GIVEN that the above mentioned governmental
body will meet at the date, time and place above set out. The tentative agenda for the
meeting is as follows:
• Resolution with respect to compliance of proposals with terms of urban renewal
offering
• Resolution setting date of a meeting to consider acceptance of a proposal for
redevelopment of a portion of the Greater Downtown Urban Renewal District, and
establishing rules for submitting amended proposals in advance thereof
Such additional matters as are set forth on the additional page(s) attached hereto.
(number)
This notice is given at the direction of the Mayor pursuant to Chapter 21, Code of
Iowa, and the local rules of the governmental body.
City Clerk, City of Dubuque, Iowa
August 5, 2013
The City Council of the City of Dubuque, Iowa, met in regular session, in the
Historic Federal Building, 350 West 6th Street, Dubuque, Iowa, at 6:30 o'clock P.M., on
the above date. There were present Mayor , in the chair, and the
following named Council Members:
Absent:
-1-
Council Member introduced the
following Resolution entitled "RESOLUTION WITH RESPECT TO COMPLIANCE OF
PROPOSALS WITH TERMS OF URBAN RENEWAL OFFERING" and moved that the
same be adopted. Council member seconded the
motion to adopt. The roll was called and the vote was:
AYES:
NAYS:
Whereupon, the Mayor declared the Resolution duly adopted as follows:
RESOLUTION NO.
RESOLUTION WITH RESPECT TO COMPLIANCE OF PROPOSALS
WITH TERMS OF URBAN RENEWAL OFFERING
WHEREAS, this Council, by Resolution No. 199 -13 adopted July 1, 2013
( "Offering Resolution "), nominated the City Clerk as agent of the City of Dubuque, Iowa
to receive and to open, on August 5, 2013, at 10:00 a.m., proposals in competition to the
proposal of Gavilon Grain, LLC referred to in said Offering Resolution for the lease and
redevelopment of a portion of the Greater Downtown Urban Renewal District referred to
therein as the Dove Harbor area, in accordance with the terms and conditions set forth in
said Resolution; and
WHEREAS, the City Clerk reports to this Council that a competing proposal has
been submitted by , having an office for the transaction
of business at ; and
WHEREAS, as directed in the Offering Resolution, the City Manager has made a
preliminary analysis of such proposal for compliance with the minimum requirements
established by this Council in the Offering Resolution, and reports to this Council that, in
his opinion, such proposal satisfies said minimum requirements.
NOW, THEREFORE, BE IT RESOLVED by the City Council by the City of
Dubuque, Iowa:
-2-
1. That the report of the City Clerk that the competing proposal submitted by
for the lease and redevelopment of the Dove Harbor
area, be received and filed and approved; and that it is hereby determined that the
proposals by Gavilon Grain, LLC and for the lease and
redevelopment of the Dove Harbor area are the only proposals which satisfy the terms
and conditions of the offering set forth in the Offering Resolution.
PASSED AND APPROVED this day of
, 2013.
Mayor
ATTEST:
City Clerk
-3-
Council Member then introduced the following
Resolution entitled 'RESOLUTION SETTING DATE OF MEETING TO CONSIDER
ACCEPTANCE OF A PROPOSAL FOR REDEVELOPMENT OF A PORTION OF
THE GREATER DOWNTOWN URBAN RENEWAL DISTRICT, AND
ESTABLISHING RULES FOR SUBMITTING AMENDED PROPOSALS IN
ADVANCE THEREOF" and moved that the same be adopted. Council member
seconded the motion to adopt. The roll was called and
the vote was:
AYES:
NAYS:
Whereupon, the Mayor declared the Resolution duly adopted as follows:
RESOLUTION NO.
RESOLUTION SETTING DATE OF MEETING TO CONSIDER
ACCEPTANCE OF A PROPOSAL FOR REDEVELOPMENT OF A PORTION
OF THE GREATER DOWNTOWN URBAN RENEWAL DISTRICT, AND
ESTABLISHING RULES FOR SUBMITTING AMENDED PROPOSALS IN
ADVANCE THEREOF
WHEREAS, this Council, by Resolution No. 199 -13 adopted on July 1, 2013
( "Offering Resolution "), among other things:
1. Adopted competitive terms and minimum requirements for offering a
portion of the Greater Downtown Urban Renewal District ( "District ") for lease and
redevelopment, referred to therein as the Dove Harbor area;
2. Determined the fair market value of the Dove Harbor area for uses in
accordance with the Amended and Restated Urban Renewal Plan (the "Plan ") for the
District;
3. Determined that the proposal submitted by Gavilon Grain, LLC satisfies the
terms and requirements of said offering;
-4-
4. Approved as to form the proposed Lease Agreement by and between the
City and Gavilon Grain, LLC
5. Determined that Gavilon Grain, LLC possesses the qualifications, financial
resources and legal ability necessary to acquire and redevelop the area described therein
in the manner proposed in the offering and in accordance with the Plan;
6. Set a date for receipt of competing proposals and any opening thereof, and
provided for review of such proposals with recommendations to this Council in
accordance with established procedures;
7. Declared that the proposal submitted by Gavilon Grain, LLC satisfied the
requirements of the offering, and declared its intent to accept such proposal and enter into
the Lease Agreement in the event no other qualified proposal is timely submitted; and
8. Approved and directed publication of a Notice to advise any would -be
competitors of the opportunity to compete for the lease of the Dove Harbor area for
rehabilitation on the terms and conditions described therein;
WHEREAS, on July 2013, the text of the Offering Resolution was published as
the Official Notice of this offering and of the intent of the City of Dubuque, Iowa, in the
event that no other qualified proposals were timely submitted, to enter into the Lease
Agreement; and
WHEREAS, by separate Resolution of this date, this Council has received and
approved as its own the City Clerk's report that a competing proposal was timely
received, said proposal being submitted by of
; and
WHEREAS, as provided in the Offering Resolution, it is now appropriate to set a
date of a meeting of this Council to be held to consider acceptance of one of said
proposals for redevelopment of the Dove Harbor area, and to establish rules for
submitting amended proposals in advance thereof.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Dubuque, Iowa.
1. That Gavilon Grain, LLC shall have until 1:00 P.M. on August 12, 2013 to
amend its proposal in any desired respect in response to the competing proposal
submitted by and to deliver the same to the City Clerk.
-5-
2. That the City Manager be and he is hereby nominated and appointed as the
agent of the City of Dubuque, Iowa and of this City Council to conduct a bid -off at a
meeting between the proponents of the two proposals received by the City, commencing
at 9:00 A.M. on , 2013, each proposal against the other, starting with
the proposal of . Each bidder shall be given a period of
not to exceed one -half hour to improve its bid in response to the last bid of the other
bidder. The bid -off shall continue until such time as each proponent shall decline to
improve its bid any further, but in all events, the aggregate period of time to be allowed
for such bid -off shall not be in excess of three consecutive hours on said date.
3. That during such bid -off, each proponent shall be permitted to amend its
proposal only as follows:
a. The amount of the annual lease payment to be paid for the Dove
Harbor area may be increased from the amount last proposed by the proponent, but
only in increments of not less than $3,000;
b. The amount of the proponent's committed investment in the
improvements to be constructed on the Dove Harbor area may be increased from
the amount last proposed by the proponent, but only in increments of not less than
$100,000;
c. Other commitments to incur costs for public features, amenities or
facilities on or adjacent to the site, or elsewhere in the District, may be submitted
by the proponent, but only if the direct economic benefit to the City of each such
proposed feature, amenity or facility is not less than $25,000, in the sole judgment
of the City Manager.
No other amendments to the proposals shall be considered.
4. That the City Manager be and he is hereby authorized and directed to
conduct such bid -off under such procedural rules as he shall determine to be necessary or
desirable during the course thereof, with the intent that both such proponents be given a
reasonable opportunity, within the confines of the procedures and limitations set forth
herein, to present amended proposals to the City if they so desire and to ensure that the
best interests of the citizens of the City are protected and advanced in the process, and
that the offering of the property by the City be undertaken in full compliance with the
provisions of Chapter 403 of the Iowa Code. All such rules, and any determinations
made by the City Manager during such bid -off, shall be absolute and shall not be subject
to appeal or review by this Council.
-6-
5. That the City Manager be and he is hereby authorized and directed to make
a preliminary analysis of each such amended proposal following such bid -off, utilizing
such financial and other advisors as he shall deem necessary in the circumstances, and to
submit his recommendations to the City Council at 6:30 p.m. on August 19, 2013 at the
regular meeting of this Council to be held in the Historic Federal Building, 350 West 6th
Street, Dubuque, Iowa.
6. That at such meeting the Council shall consider the strength of the
proposals by the competitive criteria established in the Offering Resolution, taking into
account both the original proposal's adherence to said minimum requirements as well as
any amendments to the original proposals offered by the proponents thereof during the
bid -off and the recommendations of the City Manager with respect thereto, and accept the
proposal or take such other action as it determines to be in the best interests of the City
and the residents hereof. A representative of each proponent should be available for
questions at such meeting. The Council reserves the right to reject both proposals, to
defer action with respect to the acceptance of a proposal, to require additional
information to be submitted by a proponent prior to further consideration of its proposal,
and otherwise to take such action as it shall determine to be in the best interests of the
City and the residents hereof and in accord with the public purposes of Chapter 403 and
the Amended and Restated Urban Renewal Plan for the District.
7. That the City Clerk be and he is hereby authorized and directed to send a
copy of this Resolution to each such bidder.
PASSED AND APPROVED this day of , 2013.
ATTEST:
City Clerk
Mayor
- 7 -
CERTIFICATE
STATE OF IOWA
) SS
COUNTY OF DUBUQUE
I, the undersigned City Clerk of the City of Dubuque, State of Iowa, do hereby
certify that attached is a true and complete copy of the portion of the corporate records of
the City showing proceedings of the City Council, and the same is a true and complete
copy of the action taken by the Council with respect to the matter at the meeting held on
the date indicated in the attachment, which proceedings remain in full force and effect,
and have not been amended or rescinded in any way; that meeting and all action thereat
was duly and publicly held in accordance with a notice of meeting and tentative agenda, a
copy of which was timely served on each member of the Council and posted on a bulletin
board or other prominent place easily accessible to the public and clearly designated for
that purpose at the principal office of the Council (a copy of the face sheet of the agenda
being attached hereto) pursuant to the local rules of the Council and the provisions of
Chapter 21, Code of Iowa, upon reasonable advance notice to the public and media at
least twenty -four hours prior to the commencement of the meeting as required by law and
with members of the public present in attendance; I further certify that the individuals
named therein were on the date thereof duly and lawfully possessed of their respective
City offices as indicated therein, that no Council vacancy existed except as may be stated
in the proceedings, and that no controversy or litigation is pending, prayed or threatened
involving the incorporation, organization, existence or boundaries of the City or the right
of the individuals named therein as officers to their respective positions.
WITNESS my hand and the seal of the City hereto affixed this day of
, 2013.
(SEAL)
City Clerk, City of Dubuque, State of Iowa
8
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 5th day of
August, 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 062113ba1
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) Rent described in (1) and (2) for each year of the Lease Term, beginning
on the first anniversary date of the Lease Term and continuing on each
subsequent anniversary date thereof, shall be determined by multiplying the Rent
in effect immediately prior to the applicable anniversary date of the Lease Year
by the CPI Adjustment (as hereinafter defined) and then adding the resulting
product, if positive (the "CPI Increase "), to the Rent in effect immediately prior to
the applicable anniversary date of the Lease Year; provided, however, in no
event shall the CPI Increase exceed three percent (3 %) and provided, further,
that in no event shall the Rent for any Lease Year be less than the Rent for the
immediately preceding Lease Year. The "CPI Adjustment" shall be a fraction,
expressed as a decimal, the numerator of which shall be the Current CPI minus
the Prior CPI and the denominator of which is the Prior CPI. The "Current CPI" is
the last CPI published preceding the first calendar month of the applicable Lease
Year. The "Prior CPI" is the last CPI published for the first calendar month of the
immediately preceding Lease Year. The term "CPI" shall mean the "Consumer
Price Index for All Urban Consumers (CPI -U)" published by the Bureau of Labor
2
Statistics of the United States Department of Labor, All Items (1982 -84 =100),
U.S. City Average, or any successor index thereto, appropriately adjusted. If the
CPI ceases to be published and there is no successor thereto, such other
government or nonpartisan index or computation shall be used which would
obtain a substantially similar result as if the CPI had not been discontinued.
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
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
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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.
(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) Plants 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.
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(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.
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
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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
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
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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
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
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,
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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
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):
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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
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
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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.
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
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which Lessee suspects or has actual knowledge.
(3) Lessee covenants and agrees to promptly take any and all necessary and
appropriate response to fully address any Release following the advance notice
to Lessor required in Section 12.2(2) above. Such response shall include, without
limitation, notification to appropriate governmental authorities, as may be
required by applicable law. Lessee shall respond to such Release to the full
extent required by applicable law; however, in no event shall Lessee allow
limitations or restrictions to be placed on the Demised Premises without the
written consent of the Lessor.
(4) Except as necessary to conduct its operations and use the Demised
Premises as detailed in Section 1.6 and 1.7, Lessee covenants and agrees to not
manufacture, treat or dispose of Hazardous Substances at the Demised
Premises or allow the manufacture, treatment, or disposal of Hazardous
Substances on the Demised Premises. Lessee shall use and store on the
Demised Premises only those Hazardous Substances as are associated with its
regular business activities, and then only as allowed by applicable law.
(5) For the purposes of this Lease, "Hazardous Substance" or "Hazardous
Substances" means any hazardous or toxic substance, material or waste which
is or becomes regulated by any local government, the State of Iowa or the United
States Government. It includes, without limitation, any material or substance
that is (i) defined as a "hazardous substance" or "hazardous waste" under
Chapter 455B, Iowa Code, (ii) petroleum and petroleum products, (iii) asbestos
containing materials in any form or condition, (iv) designated as a "hazardous
substance" pursuant to 311 of the Federal Water Pollution Control Act (33
U.S.C. § 1321), (v) defined as a "hazardous waste" pursuant to § 1004 of the
Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi)
defined as a "hazardous substance" pursuant to § 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.0 § 9601 et
seq., or (vii) defined as a "regulated substance" pursuant to Subchapter IX, Solid
Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C.
§ 6991 et seq.] The term "Hazardous Substance" shall not include any air
emissions discharged into the atmosphere as allowed by a duly issued permit
from the applicable governmental agency.
SECTION 13. INDEMNIFICATION.
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
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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,
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;
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(2) To Lessee, the entire award except that portion allocated to Lessor above.
14.3. Partial Condemnation.
(1) If Tess 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
shall be reduced in proportion to the value of the area of the Demised Premises
taken.
(2) Should Lessee elect to terminate this Lease upon a partial condemnation,
Lessee shall provide Lessor with written notice of such election within thirty (30)
days after the date of vesting of title for such taking. Lessee shall specify in such
written notice the date on which this Lease shall terminate, which date shall be
not less than 60 days nor more than 360 days after delivery of such notice to
Lessor (the Termination Date). In the event Lessee terminates this Lease, as
provided for in this 14.3, Lessee shall be entitled to the entire award for such
partial taking.
14.4 Temporary Taking. If the temporary use of the whole or any part of the Demised
Premises, 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
14
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
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
15
event the Holder has complied with the terms of this 16.2, then Lessor at Holder's
option, shall enter into a new lease with Holder or the successful bidder at foreclosure
on the same terms as this Lease, for the term then remaining, and specifically
preserving all unexercised options.
16.3. Lessee's Rights in the Event of Lessor's Default. If Lessor shall fail or neglect to
observe, keep or perform any of the covenants, terms or conditions contained in this
Lease on its part to be observed, kept or performed, and the default shall continue for a
period of thirty (30) days after written notice from Lessee setting forth the nature of
Lessor's default (it being intended that in connection with a default not susceptible of
being cured with diligence within thirty (30) days, the time within which Lessor has to
cure the same shall be extended for such period as may be necessary to complete the
same with all due diligence, but in no event longer than ninety (90) days), then and in
any such event, Lessee shall have all rights available to it provided by law or equity. If
Lessor's default shall render the Demised Premises of no operational use to Lessee,
and the default shall continue for a period of thirty (30) days after written notice from
Lessee setting forth the nature of Lessor's default, then Lessee shall have no further
obligation for the payment of rent, taxes, or wharfage or for the provision of Products to
Lessor, and Lessee may terminate this Lease Agreement and remove all Trade Fixtures
and Improvements subject to Section 3.2.
SECTION 17. RIGHT TO CURE OTHER'S DEFAULTS. Whenever and as often as
a party shall fail or neglect to comply with and perform any term, covenant, condition or
agreement to be complied with or performed by such party hereunder, then, following
thirty (30) days' prior written notice to such defaulting party (or such additional time to
cure as may be accorded Lessee pursuant to 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
16
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.
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
17
remove the same, and shall pay pro -rated rent for each day it remains on the Demised
Premises, and in the event Lessee shall fail to do so, Lessor may cause the Trade
Fixtures to be removed and Lessee agrees pay Lessor for the costs of removal within
thirty (30) days of receipt of a statement therefore from Lessor.
SECTION 22. MEMORANDUM OF LEASE. Each of the parties hereto will, promptly
upon request of the other, execute a memorandum of this Lease in a form suitable for
recording setting forth the names of the parties hereto and the term of this Lease,
identifying the Demised Premises, and also including such other clauses therein as
either party may desire, except the amounts of basic rent payable hereunder.
SECTION 23. NOTICES.
23.1. All notices, demands or other writings in this Lease provided to be given or made
or sent, or which may be given or made or sent, by either party to the other, shall be
deemed to have been fully given or made or sent when made in writing and deposited in
the United States mail, registered and postage prepaid, and by facsimile addressed as
follows:
TO LESSOR:
City of Dubuque, Iowa
City Manager
City Hall
50 West 13th Street
Dubuque IA 52001
Fax 319 589 -4149
WITH COPY TO: 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
18
provisions.
24.2. Governing Law. It is agreed that this Lease shall be governed by, construed and
enforced in accordance with the laws of the State of Iowa.
24.3. Paragraph Headings. The titles to the paragraphs of this Lease are solely for the
convenience of the parties and shall not be used to explain, modify, simplify or aid in the
interpretation of the provisions of this Lease.
24.4. Modification of Agreement. Any modification of this Lease or additional
obligation assumed by either party in connection with this Lease shall be binding only if
evidenced in a writing signed by each party or an authorized representative of each
party.
24.5. Parties Bound. This Lease shall be binding on and shall inure to the benefit of
and shall apply to the respective successors and assigns of Lessor and Lessee. All
references in this Lease to "Lessor" or "Lessee" shall be deemed to refer to and include
successors and assigns of Lessor or Lessee without specific mention of such
successors or assigns.
24.6. Force Majeure. In the event that either party hereto shall be delayed or hindered
in or prevented from the performance of any act required hereunder by reason of
strikes, lockouts, labor troubles, unavailability of construction materials, unavailability or
excessive price of fuel, power failure, riots, insurrection, war, terrorist activities,
explosions, hazardous conditions, fire, flood, weather or acts of God, or by reason of
any other cause beyond the exclusive and reasonable control of the party delayed in
performing work or doing acts required under the terms of this Lease (collectively "Force
Majeure"), then performance of such act shall be excused for the period of the delay
and the period for the performance of any such act shall be extended for a period
equivalent to the period of such delay.
LESSOR:
CITY OF DUBUQUE, IOWA
By:
Roy D. = uol, Mayor
Attest ( • 21\
LESSEE:
GAVILON GRAIN, LLC
4
By: ,/' 1'),
V►° 4 G NA Np
Trish L. Gleason, Assistant City Clerk
19
LIST OF EXHIBITS
EXHIBIT A Legal Description
EXHIBIT B Demised Premises
EXHIBIT C Conceptual Landscape Plan
EXHIBIT D Existing Site
EXHIBIT E 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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..,,_. . tam,* Waal.. ,,.a
fr411...1..iaa a .....a in ar a iv, ml
ol: =I mama .�_ -.ae
apaa as a lam Mau
wataSsew
Lease Area Carps Restricted
0 60 120 240 260
Access Easement
Feet
480
x,ur., Nit/ a c.r...vu.. a,- ..,. eat 2971, P rrA:.kl.Yl.-+:o1 -:e Mb el
23
^irc,x (177N br�o
AGIS " LPL: F3Lr9T TF
EXHIBIT C
CONCEPTUAL LANDSCAPE PLAN
24
25
26
27
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
Ma lus Prairiefire Crab (pink flower)
Ma lus Morning princess Crab (red flower)
Ma lus Firebird Crab (white flower)
Crab tree varieties that would fit height restrictions with over head wires
EXHIBIT D
EXISTING SITE
30
FJ,t S 1�..r...�,_��
—..�.&_framohn,M. e.._� ..
u to, 4la... u .
. [mot. -. ...,.r ir.m
sass.
sa
Lease Area Corps Restricted Access Easement
0 50 `R
200
tyy- +r-eit .- l• } ^evr:- .lore.9.r. vrneZ-GAre.Uiarl erti a- a�:.�I1F'lrnr_sd
31
- -t
400
I�I.lirr
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.
1 2. 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 Department 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 Insurance (COO to the City of Dubuque, Iowa for
the coverage required in Exhibit I prior to contract or lease commencement. All lessees of City property
shall submit an updated COI annually. Each Certificate shell be prepared ort the most current ACDRD form
approved by the Department of Insurance or En equivalent. Each certificate shall include a statement
under Description of Operations as to why issued. Eg: Project * or Lease of premises at
cr construction of
2 All policies of insurance required hereunder shah be with a carrier authorized to do business in Iowa and
all carrier s. shall have a rating of A or better in the current A.M. Best's Rating Guide.
3. Each Certificate shall be furnished to the contracting department of the City of Dubuque.
4. Failure to provide minimum coverage char not be deemed a waiver of these requirements by the City a
Dubuque. Failure to obtain or maintain the required insurance shall be considered a materie breach of
this agreement.
5. All required endorsements to various policie heli be attached to Certificate of insurance.
6. Whenever a specific ISO form is listed, an equivalsnt form maybe substituted 1.ibrect to the provider
identifying and listing in welting all deviations and exclusions that differ from the ISO form.
7. Provider shall be required to .carri the minimum coveragejlimits„ or greater if required by law or other
legal agreement, in Exhibit 1.
S. Whenever an ISO form is referenced the current edition of the form must be used.
Page 1. of 3 Schedule A„ Property Or Vendors (Supp Lars, Service Providers
33
City f Dubuque Insurance Requirements for Tenants and Lessees of City
Property or Vendors (Suppliers, Service Providers)
Insurance Schedule 4 (continued)
Exhibit 1
;
Al COMMERCIAL GENERAL LIABILITY
General Aggregate Limit - $2„000„000
Products-Completed Operations Aggregate Limit 51,000,000
Perna i and Advertising Injury Limit $1,000,000
Ea th Occurrence • 51,000,000
Fire Damage Limit (any one occurrence] 5 50,000
Medica3Payments 5 5,000
a) Coverage shaill be written On an otutenc4,.-not dims made, forrn. AI deviations frorn the
standard ISO ,cornmerciai general iiability form CG 0001, or Business own.ers form BP 0002,
sheil be clearly identified.
b) include ISO endorsement fomi CG 25 04 'Designated Location(s) General Aggregate Limit.'
c) include endorsement indicating that coverage is primary and non-contributory.
cl) Include endorsement to preserve GosJesnmentai Immunity. (Sernpie atteched).
ej Include an endorsement that deletes any feilow empioyee exclusion,
f) Include a dditionai insured en-dorsement for:
The City of Dubuque; including all its elected and appdhiltect cifficisis, ail its .employes
and wo"unte ars, its boards, commissions and/or authorities and their board members,
employees and voiunte-ers. Use i..50 form CG 20 10. -Ongoing operations.
If vendor utiiices Trikkes or Se gways in the conduct of business, include an endorsement
reflecting that the vehicles are rot excluded frorn Commercial General Liability cove-rage.
lArORKERS! COMPENSATION & EMPLOYERS LIABILITY
Statutory benefits covering all: entroyees injured on the 'Job by accident or cilseas as prescribed by
Iowa Code Chapter 85 ES amended.
Co‘'erage A
Coverage B
Statutone—State of Iowa
Employer s Lie b ility
Each Accident 5100,000
Each Employes-Disease 5100,000
Poiicy Limit-Disease 5500,000
Folicy shall inciude an endorsement providing a waiver of subrogation to the City of Dubuque.
Policy shall include an endorsement for United Rates Lortgshore and Harbor Workers' Compensation
COVE rage.
Page of Schedule A„ Property Or Vendors (Suppdert, Sereiice Providers
34
City of Dubuque Insurance Requirements for Tenants and Lessees of City
Property or Vendors (Suppliers, Service Providers)
Preservation of Governmental Immunities Endorsement
Nonwaiver of Governmentalirnmuniti. The insurance carrier expressly agrees and states that the
purchase of this policy and the including of the City of Dubuque, Iowa as an .Adclitional Insured does
not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa
under Code of Iowa Section 6714 as it is now exists and as it may be amended from time to time.
2. Claims Coverage. The insurance carrier further agrees that this policy of Insurance shall cover only
those claims not subject to the defense of governmental immunity under the Cade of Iowa Section
670.4 as it now exists and as it may be amended from time to time. Those claims not subject to
Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any
defense of governmental immunity, and may do so at any time and shall do so upon the timely
written request of the insurance carrier.
4. Non-Denial of Coverage. The insurance_ carrier shall not deny coverage under this policy arid the
insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, loyal
under this policy for reasons of governmental immunity unless a ncl 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 OtherChange in Policy. The above preservation of governmental immunities shall not otherwise
change or alter the coverage available under the policy.
SPECIMEN
Page 3 of 3 Schedule A, Properr,. Cr Vendors (Suppler, Service Providers
35
DISCLAIMER: This Information was compiled
wing the Dubuque Area Geographic information System
( DAGIS), which includes data created by both the City of
Dubuque and Dubuque County. 11 b understood that, while
the City of Dubuque and participating agencies utilized the
most current and accurate information available, DAGIS and
its suppliers do not warrant he accuracy or rncy of the
Information or data contained herein. The City and partkipatirg
agencies shall not be held liable for any direct, indirect, Incidental,
consequential, punitive, or spedal damages, whether foreseeable or
unforeseeable, arising out of the authorized or unauthorized we of
this data or the Inability to we this data or out of any breach of
warranty whatsoever.
OG
Existing Gavilon Leases
Proposed Lease Sites
Dubuque Terminals Lease SIG Hodge Transit Lea
Flint Hills Lease K City Salt Pile
THE CITY OF Duisuquf
�AGIS DUB • E '�II�'
2012
Document Patti: H: \EngineeringlLease Agreements \Cargill Properties \LeaseLocationMap.mzd
Maotetpiece at the Mississippi
Whereas, the Plan proposal is timely sub that the, Lessee pos
prow ies, among other mitted and accepted, senses the; qualifica-
things, for theidisposi- another and future no- ,tions, financial resour-
tion iof properties for tice will be published ces and legal ability
private development on the 'intent of the necessary to lease the
purposes as a pro- City to enter into the Property and to man
posed economic level- resulting contract, as age and operate the
opmentaction ;'and required!by law; site in the manner pro
Whereas, Gavilon and posed by this offering
Grain, LLC ( "Lessee ') Whereas, the ! City in accordance with the
has submitted to the Council believes it is in Plan.
City a proposal for the the best interest of the section 7. That the an
leasing of certain real City and the Plan to act nual lease payments
property hereinafter as expeditiously as for the siteioffered by
described for the oper- possible' to lease the the Lessee are hereby
ation and management real property asl set found and determined
of a portion of the Dove forth herein. ton be the fair market
Harbor area as descri- NOW, THEREFORE, BE value of the leasehold
bed therein ( "the Lease IT RESOLVED BY THE interest being con -
Agreement ), together CITY COUNCIL OF THE veyed.
with the request that CITY OF'i DUBUQUE, 10- Section 8. That the
this property be made WA: C 'ty Clerk shall receive
available for lease as 3 Section 1. That the re and retain for pub is
rapidly as possible al property shown on examination the at-
and Exhibit "B" attached tached Lease Agree
Whereas, in order to hereto located in Dove ment submitted by the
establish reasonably !Harbor '( "the Proper Lessee ano, in the
competitive bidding ! ty ") shall be offered for event no other quali-
procetlures for?the din lease in accordance fietl proposals are
position of the proper- with the terms and timely submitted, shall
ty in accordance with conditions contained in resubmit the Lease
the statutory require- this Resolution. Agreement to the city
menu of Iowa Code Section 2. That it is Council for final appro-
Chapter 403, specifical- hereby determined val antl execution upon
ly, Section 403.8, and to that in order to qualify expiration of the notice
assure that the City ex- ' for consideration for hereinafter prescribed.
tends a full and fair op- selection, any person Section 9. That the ac-
the s ito to all deve - must submit apropos- t on of the City Council
opers interested in al which meets these be considered to be
submitting a proposal, minimum requirements: and does hereby Ion-
a summary of ubmis- ! a) Contains an agree sttute notice to all
Sion requirements and ment to lease the Prop- concerned of the inter -
minimum requirements erty at not less than t on of this Council, in
and competitive crite- fair market value es- the event that no other
ria for the property of- tablished herein; qualified proposals are
fering is included here - b) Contains a commit t mely submitted, to
in; antl ment to lease approxi accept the proposal of
Whereas, said Devei mately 787 acres in the Developerto lease
oper' has tendered the Dove Harbor for uses the Property and to ap-
Lease Agreement with allowed in a Heavy- prove the Lease Agree-
the City, attached Industrial Zoning clan ment by and between
hereto as Exhibit "A'; sification; City and Lessee.
and c) Sets out or pro- Section 10. That the
Whereas, to recognize ,ides to the satisfac- official notice of this
both the firm proposal tion of the City Council offering and of the in-
for lease of the real the experience of the tent of the City, in the
property and improve - principals and key staff event no other quali-
menu already received who are directly en- free proposals are
bee the City, as descri - i gaged in the perform- timely submitted, to
bed above, and to give ! ance of contract obli- approve the Lease
full and fair opportuni- ; gations in carrying out Agreement, shall be a
OFFICIAL NOTICE ty to` other developers projects of similar true copy of this Reso
RESOLUTION interested in submit- scale and character; iution, but without the
0.899-18 ting a proposal for the and attachments referred
RESOLU11ON (1) AP- use of the property, d) Meets, at a mini- to herein.
PROVING THE MINI- this Council should by mum, the terms'i and Section 11. That the
RUM REQUIRE- this Resolution; conditions of the Lease City Clerk is authorized
M NTS, COMPETI- 1) Set the fair market Agreement submitted and directed to secure
TIVE CRITERIA, A ® value of the real prop - by the Developer in immediate ;publication
OFFERING' PROLE- erty for uses in? accord- ciuding an agreement of said official notice in
DURES FOR THE DE- ance with the Plan; to invest not less than the Telegraph Herald, a
VELOPMENT AND 2) Approve the mini $2,500,000 newspaper having a
THE LEASE OF CER- mum requirements and Section 3. That the general circulation in
TAN REAL PROPER- competitive criteria in- Lease Agreement by the community, by
TY AND IMPROVE- eluded herein; and between the City publication 'of the text''
MENTS IN THE 3) Approve as to form and the :Lessee be and of his Resolution with -
GREATER ' DOWN- the Lease Agreement " is hereby approved as out attachments on or
TOWN URSAN RE- attached hereto as Ex- to form for the purpos before ,"'6 t h day of
N AL DISTRICT; (2) hibit "'A "; es hereinafter stated. July, 2013.
DETERMINING THAT 4) Set a date for re- es heren'4. That for the Section 12 That writ -
'THE LEASE SUBMIT- ceipt of competing pro- purpose of defining the ten proposals for the
TED SY GAV LON posals and the opening offering of the proper- lease of the Property
GRAIN, LLC SATIS- thereof; ty site for lease, aid will be received by the
FlES THE OFFERING 5) Declare that the Lease Agreement shall City Clerk at or before,
R E O U I R E nA E N T S proposal submitted by be deemed to be !ilius 10.00 a.m., August 5,
WITH RESPECT TO Lessee satisfies the trative of the terms ac 2013 in the Office of
THE REAL'PIROPERTY minimum requirements ' ceptable! to the City the City Clerk, located
AND IMPROVEMENTS of the offering, and 'with respect to: on the first floor at City;
AND DECLARING THE that in the event no a) Annual lease pay- Wall, 50 West 13th
INTENT OF THE CITY other; qualified propos- ments; Street, Dubuque, Iowa
COUNCIL ! TO AP- al is timely submitted, b) Construction of 52001. Each proposal
PROVE THE LEASE that the City Council leasehold; improvements; will be opened at the
WITH GAVILON intends to approve c) Lessee obligations; hour of 10 :00 a.m. in
GRAIN: LLC IN THE such proposal land au and City Hall, Dubuque, lo-
EVENT THAT NON thorize the City Manag- d) General terms and wa on August 5, 2013.
COMPETING PRO- er to' sign the Lease conditions. Said proposals will
POSALS ARE SUSM9T- Agreement; and direct Section 5. That the then be presented 'to
TED AND !tS) SOLIC- publication of notice of Lease Agreement isub the City Council at 6:30
ITING COMPETING said intent; mitted by the Lessee p.m., August 5, 2013, at
PROPOSALS• 6) Approve antl direct satisfies the require- a meeting to be held in
Whereas, the City publication of a notice ' ments of this offering the City Council Cham
Council of Dubuque, lo- to advise any other and, in the event lthat bees, Historic Federal
wa, did on June 3, 2013 person of the opportu no other qualified pro- Bustling at;'350 West'r
adopt an Amended and nity to compete for i posals are timely sub- 6th Street, Dubuque,
Restated Urban Renew lease: of the real prop ;: mitted, hat the City Iowa.
ai Plan for the Greater erty on the terms and Council mends to ac- Section 13 That such
Downtown Urban Re- conditions set forth cept antl approve the offering shall be in
newai District ('tfie herein; and Lease Agreement. substantial conform-
Plan ") for he Urban 7) :Declare that in the ' Section 6. That -it is ance with 'the provi
Renewal Area descri- event another: qualified hereby determined lions of Iowa Code
STATE OF IOWA
DUBUQUE COUNTY
{SS:
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 //e day o
Notary Public in and for Dubuque County, Iowa.
MARY K, Wl STERMEYER }j
ornmla.11on Num or 1551,,, S
Section 403.8, requiring of the Proposed Devel-
reasonable competitive opment:
bidding procedures as (1) The economic re-
are hereby prescribed, turn to the City provid-
which method is here - ed by the proposed de-
by determined to be velopment, including
the appropriate meth- but not limited to, the
od for development of amount of lease reve-
the Property, nue generated, the
Section 14. That the property and sales tax -
required documents i es wharfage fees gen-
for the submission of a erated, the number of
proposal shall be in jobs provided, and the
substantial conformity encouragement of re
with the provisions of i fated development in
this Resolution. the area.
Section 15. That the (2) The ability of the
City Clerk is hereby prospective developer
nominated and ap- to finance and com-
pointed as the agent of plete the project as
the City of Dubuque, proposed.
Iowa to receive pro - (3) The financial im-
posals for the lease of pact of the proposed
the Property on that development upon the
date and according to City's operating budget
the, procedure hereina- ! and capital improve -
Bove specified for re- ment plan, particularly
ceipt of such proposals as it relates to the con -
and to proceed at such struction and mainte-
time to formally ac- nance of any required
knowledge receipt of public improvements.
each of such proposal Section 17. If, and on-
by noting the receipt of ly if, competing pro -
same in the Minutes of posals are received
the Council; that the and determined by the
City[Manager is hereby ! Council ` to meet the
authorized and direct- minimum requirements
ed to make preliminary described herein, the
analysis of each such ` Lessee shall be allowed
proposal for compli- to amend its proposal
ance with the mini- ` in response thereto
mum requirements es- and to deliver same to
tablished by this Coun- the City Manager, by
cii hereinabove. For no later than a date de-
each
' proposal that sat- ! termined by the City these require- Council. in such event,
meats, the City Council the Council shall
shall judge the schedule a subsequent
strength of the propos- meeting' to be held by
al by the competitive the City Manager at
criteria established which there shall be a
hereinabove. The City bid -off conducted by
Council shall then r the City Manager Dur-
make the final evalua- ing such bid -off , each
tion and selection of competing bidder shall
the proposals. bid against the other,
Section 16. Each pro - starting with the sec -
posal submitted which and proposal received
satisfies the foregoing and continuing until
minimum require- such time as each bid -
ments, as determined ! der shall decline to im-
by the City Manager, prove its proposal to
shall be reviewed on acquire and redevelop
the ? basis of the the Property in re-
strength of such pro - sponse to the last bid
posal under the follow - r of the other bidder or
ing Competitive Crite- bidders.! The period of
ria: time to be allowed for
Quality of the Pro - such bid -off shall be
posed Development: determined by the City
(1) The total cost of Manager. The rules of
the project. such bid -off shall be as
(2) The types of mate- determined by the City
rialsrto be used in the ` Manager at or before
proposed improvements. such bid -off period and
(3). Overall project shall be absolute.
amenities. Section 18. That in the
Architectural Design event another qualified
of the Proposed Devel- proposal is timely sub -
opment: miffed and accepted '+
(1) The compatibility by the City, another
of the design with ad- < and further notice shall
jacent structures, vis- be published of the in-
tas,'pedestrian traffic, tent of the City of Du-
vehicular activities, buque, ;Iowa, to enter
and ', future develop- into the resulting
ment of adjacent prop- agreement, as required
erties. by law,
(2) The functional de- Passed, approved and
sign of the site, the adopted this 1st day of
structures, and all pub - < July, 2013.
lie spaces. Roy D. Buol, Mayor
(3) The aesthetic Attest: Kevin Firnstahl,
quality of the develop- ! City Clerk
ment and its sensitivity it 7/5
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