Gavilon Grain LLC Lease Agreement for City Salt SiteTHE CITY OF
Dui
Masterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Lease Agreement for a Portion of City's Salt Site
DATE: August 1, 2013
Dubuque
band
AI- America City
11111r
2007 • 2012 • 2013
Acting Economic Development Director Phil Wagner is recommending the City lease
6.02 acres along the Peosta Channel to Gavilon Peavey.
The salt site, located along the Peosta Channel, was leased by Gavilon prior to 2010 at
$3,600 per year, plus wharfage. The company did not renew the lease and the City
began to operate the salt site. Gavilon has now expressed interest in again leasing this
site. The City would retain a small portion of the site for the City's salt needs.
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. As a separate agenda item, Gavilon
also has proposed to lease a portion of the former Cargill site in the Dove Harbor area.
In the attached lease, Gavilon Grain, LLC is proposing to lease the approximately 6.02
usable acres of the Salt Site. 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 that is usable is 6.02 acres. This initial annual lease rate is $246,820 at
$41,000 per usable acre.
4. 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.
5. Gavilon will pay a wharfage fee of $.33 per ton for all inbound cargo, unless the
cargo is for the City.
6. Gavilon will be responsible for property taxes.
7. The city will commit up to $100,000 to remove or rehabilitate the existing building
on the site. These funds are in FY14 CIP. Gavilon will pay any costs above that
amount.
8. An additional rent of $12,000 per year will be paid for use of the existing building
should Gavilon choose to rehabilitate the structure.
9. The City will commit up to $670,577 for dock repairs. The funds are in FY14 CIP.
Gavilon will pay any costs above that amount.
10. Gavilon is the City's current salt handler at a rate of $5.50 /ton. If Gavilon
continues to provide this service, the fee can not increase more than the
Consumer Price Index adjustment during the term of the renewal.
11. Within the first three years of the lease, the City will dredge the area around the
dock, 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, docks and
dolphins) remain property of the City.
13. The City reserves rights over the site to access the City's Salt site, the dock and
the scale.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Phil Wagner, Acting Economic Development Director
Gus Psihoyos, City Engineering
Don Vogt, Public Works Director
2
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 City's Salt Site
Dubuque
All- America City
11111
2012
INTRODUCTION
This memorandum provides for City Council consideration a Lease Agreement
for a portion of the City's Salt Site. 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.
BACKGROUND
The salt site, located along the Peosta Channel, was leased by Gavilon prior to
2010. The company did not renew the lease and the City began to operate the
salt site. Gavilon has now expressed interest in again leasing this site. The City
would retain a small portion of the site for the City's salt needs.
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 a portion of the former Cargill site in the Dove Harbor area
(see separate memo).
In the attached lease, Gavilon Grain, LLC is proposing to lease the approximately
6.02 usable acres of the Salt Site. 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 that is usable is 6.02 acres. This initial annual lease rate is
$41,000 per usable acre.
4. 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.
5. Gavilon will pay a wharfage fee of $.33 per ton for all inbound cargo,
unless the cargo is for the City.
6. Gavilon will be responsible for property taxes.
7. The city will commit up to $100,000 to remove or rehabilitate the existing
building on the site. These funds are in FY14 CIP. Gavilon will pay any
costs above that amount.
8. An additional rent of $12,000 per year will be paid for use of the existing
building should Gavilon choose to rehabilitate the structure.
9. The City will commit up to $670,577 for dock repairs. The funds are in
FY14 CIP. Gavilon will pay any costs above that amount.
10. Gavilon is the City's current salt handler at a rate of $5.50 /ton. If Gavilon
continues to provide this service, the fee can not increase more than the
Consumer Price Index adjustment during the term of the renewal.
11. Within the first three years of the lease, the City will dredge the area
around the dock, 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, docks and dolphins) remain property of the City.
13. The City reserves rights over the site to access the City's Salt site, the
dock and the scale.
Additional terms and conditions of the lease of the property are included
within the attached Lease Agreement.
RECOMMENDATION
Because the property is an urban renewal district, Iowa law 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 approximately
6.02 usable -acre Salt Site. Competitive proposals are due by 10:00 a.m. on
August 5, 2013.
This action supports the Council's objectives to develop annual revenue sources
in lieu of property taxes and to assist local business and industry.
ACTION STEP
The action step for the City Council is to 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 \Salt Site \20130801 staff memo.docx
RESOLUTION NO. 254 -13
APPROVING DISPOSAL OF AN INTEREST IN REAL PROPERTY OWNED BY THE
CITY OF DUBUQUE AT THE SALT SITE 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 9.66 acres in total, 6.02 usable acreage)
located in the area known as the Salt Site (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 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:
Trish L. Gleason, Assistant City Clerk
Roy D. Buol, Mayor
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. 200 -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 Salt Site, 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 Salt Site, 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 Salt Site 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. 200 -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 Salt Site;
2. Determined the fair market value of the Salt Site 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 Salt Site 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 Salt Site, 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.
2. That the City Manager be and he is hereby nominated and appointed as the
-5-
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 Salt Site
area may be increased from the amount last proposed by the proponent, but only in
increments of not less than $3,000;
b. 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
SALT SITE 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 9.66 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 C (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 reserves for itself, its agents and employees, and for its lessees of
property adjoining the Demised Premises, a nonexclusive easement for ingress and
egress over the Demised Premises for access to and use of the scale, docks and salt
pile on the Demised Premises. Such access by Lessor, its agents and employees and
lessees shall not interfere with Lessee's operations on the Demised Premises.
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;
2
Gavilon Salt Site Lease 062713ba1
Manufacture or processing of the following materials: ammonia or chlorine; Manufacture
of acid, lime or lime products, and detergent;
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 and no other purposes without the prior written consent of Lessor, which
consent shall not be unreasonably withheld.
1.6. Lessee acknowledges that Lessor has a Gypsum Storage and Handling
Agreement dated July 31, 2012, a copy of which has been provided to Lessee, which
allows the storage of gypsoil on the Demised Premises. Lessee agrees to abide by the
terms of that Agreement.
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 useable acre (estimated at 6.02 acres)
in twelve equal monthly payments commencing on the 1st day of September,
2013, and on the first day of each month thereafter.
(2) In the event Lessee exercises the option in Section. 3.2(3) to repair the
building, as additional rent, Lessee shall pay for the use of the existing building
on the Demised Premises $12,000.00 in twelve equal monthly payments of
$1,000.00 commencing on the 1st day of the first month after notice of the
exercise of the option to Lessor, 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
3
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
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 Lessee's inbound cargo
transferred to the Demised Premises by water, rail or motor vehicle for every ton
received at the Demised Premises. Lessee shall not be required pay said fee for
Lessor's inbound cargo.
(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.
2.3. Sale of Products to Lessor. On October 1 of each year of this Lease, Lessee
agrees to offer to sell to Lessor, for its seasonal salt requirements, salt and all other
products owned by Lessee (excluding salt and product owned by third parties that
Lessee handles but does not hold title to) at the lowest contracted retail price out of
Lessee's Dubuque terminal into the Iowa market to date for the current year. Other
than salt, the offer will be for a defined set of product(s) and volume(s) at a determined
price as mutually agreed to by both parties.
2.4 Salt Handling. Lessee is currently Lessor's salt handler under a separate
agreement dated the 4t" day of June, 2012 ( "Salt Handler Agreement "). Lessee agrees
that the salt handling fee in any renewal or extension of the Salt Handler Agreement will
not increase over the fee of $5.50 per ton by an amount greater than the annual
increase, if any, by the CPI Adjustment during the term of such renewal or extension.
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 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
4
exclusive property of Lessee after the expiration or termination of this Lease, for
whatever reason. Lessor acknowledges and understands that it shall have no
right, title or interest in or to Lessee's Trade Fixtures either during the term of this
Lease, or thereafter (except as hereinafter provided). Lessor acknowledges and
agrees that Lessee shall have the right to encumber, sell, or hypothecate
Lessee's Trade Fixtures, to remove them from the Demised Premises, or to
otherwise deal with all or any portion of such Lessee's Trade Fixtures, at
Lessee's sole discretion. Upon ten (10) days' prior written notice to Lessor,
Lessor shall execute and deliver to Lessee a certificate in recordable form
prepared by Lessee stating that Lessor has no interest or right in or to Lessee's
Trade Fixtures, as well as any other or further document which Lessee may
reasonably request from Lessor. If Lessee elects to remove its Trade Fixtures,
Lessee shall remove the Trade Fixtures not more than thirty (30) days after the
expiration of this Lease Agreement; any Trade Fixture remaining on the Demised
Premises after such thirty -day period become the property of Lessor.
3.2. Improvements.
(1) Lessor -owned Improvements on the Demised Premises as of the
commencement date of this Lease are the following: scale and scale house
buildings, dock, and dolphins (collectively, the "Lessor Improvements "). Lessor
will make improvements to the dock in Lessor's fiscal year 2014 at Lessor's cost
at a cost not to exceed $670,577. Any expenses for repairs above $670,577
shall be the responsibility of the Lessee. The improvements shall be made at
times agreed to by the parties and so as not to interfere with Lessee's river
season operations. Lessee agrees to maintain such dock improvements after
they have been made by Lessor for the term of this Lease. Lessee shall
maintain at its sole cost and expense during the Term of this Lease, the dolphins,
scale and scale house.
(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.
(3) Upon commencement of the Lease Term, Lessee shall have the option to
either remove or repair the existing building on the Demised Premises at
Lessor's expense but not to exceed $100,000.
(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
5
remove the Improvements within thirty (30) days after the expiration of this Lease
Agreement. Title to all existing and new Improvements is and shall be at all times
vested in Lessor. No further deed or other instrument shall be necessary to
confirm the vesting in Lessor of title to the Improvements.
(5) Plans for Construction of Improvements. Plans and specifications with
respect to the construction of any improvements on the Demised Premises (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,
hens 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 any
improvements to be constructed by Lessee. All work with respect to such
improvements shall be in substantial conformity with the Construction Plans
approved by Lessor.
3.3. Landscaping.
(1) Reasonable material landscaping or aesthetic improvements will be made
by the Lessee as mutually agreed upon by the Lessor and Lessee. Lessee shall
maintain all landscaping or aesthetic improvements to the reasonable satisfaction
of Lessor.
(2) No other fence shall be installed on the Demised Premises without the
approval of Lessor, which approval shall not be unreasonably withheld.
SECTION 4. ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST
4A. 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 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
6
existence of the encumbrance and the address of the Holder, then Lessor shall mail or
deliver to the Holder, at such address, a duplicate copy of all notices in writing which
Lessor may, from time to time, give or serve on Lessee under and pursuant to the terms
and provisions of this Lease. The copies shall be mailed or delivered to the Holder at, or
near as possible to, the same time the notices are given to or served on Lessee. The
Holder may, at its option, at any time before the rights of Lessee shall be terminated as
provided in this Lease, pay any of the rents due under this Lease or pay any taxes and
assessments, or do any other act or thing required of Lessee by the terms of this Lease,
or do any act or thing that may be necessary and proper to be done in the observance
of the covenants and conditions of this Lease or to prevent the termination of this
Lease; provided, however, that the doing of any act or thing requiring possession of the
Demised Premises shall be subject to the further rights of Holder as set forth in 16.2.
All payments so made and all things so done and performed by the Holder shall be
effective to prevent a foreclosure of the rights of Lessee thereunder as the same would
have been if done and performed by Lessee.
SECTION 5. TAXES.
5.1. Lessee agrees to pay as additional rent all property taxes levied or assessed
upon the real estate and the improvements to the Demised Premises that become
payable during the term hereof and which would become delinquent if not so paid
during the term hereof. If any such taxes shall be levied or assessed for any period of
time prior to the commencement of the Term or after the expiration thereof, such taxes
shall be prorated accordingly. Lessee shall further provide to Lessor official receipts of
the appropriate taxing authority or other evidence satisfactory to Lessor evidencing
payment thereof.
5.2. During the term of this Lease, Lessee further agrees to pay all other taxes, fees
(including but not limited to storm water fees), rates, charges, levies and assessments,
general and special, of every name, nature and kind, whether now known to the law or
hereafter created which may be taxed, charged, assessed, levied or imposed upon said
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 or Lessor 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 thereon, including
but not limited to the docks, and all sidewalks, 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 docks.
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 thereafter.
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
8
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 Improvements on the Demised Premises resulting from waste.
Lessee shall not remove any Lessor Improvements on the Demised Premises except as
allowed pursuant to this Lease. All trash, garbage and refuse of any kind shall be
promptly removed from the Demised Premises by Lessee.
SECTION 8. ALTERATIONS. Lessee shall not, without Lessor's prior written
consent, which consent shall not be unreasonably withheld, make any alteration,
addition, or modification to any Lessor Improvement on the Demised Premises that
exceeds One Hundred Thousand Dollars ($100,000.00) in cost. Any alteration,
addition, or modification of less than One Hundred Thousand ($100,000.00) Dollars
shall not require Lessor's consent.
SECTION 9. USE OF DEMISED PREMISES.
9.1. Lessee shall not knowingly use or allow the Demised Premises or any buildings
or Lessor Improvements 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 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.
9
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 Lessor Improvements, Lessee shall maintain,
or cause to be maintained, at its cost and expense, and from time to time at the request
of Lessor shall furnish proof of insurance as follows):
Property insurance against loss and /or damage to Improvements under an
insurance policy written on the Special Perils Form in an amount not less
than the full insurable replacement value of Improvements, but any such
policy may have a deductible amount of not more than $500,000.00. No
policy of insurance shall be so written that the proceeds thereof will
produce less than the minimum coverage required by the preceding
sentence, by reason of co- insurance provisions or otherwise, without the
prior consent thereto in writing by Lessor. The term "replacement value"
shall mean the actual replacement cost of Improvements (excluding
foundation and excavation costs and costs of underground flues, pipes,
drains and other uninsurable items) and equipment, and shall be
determined from time to time at the request of Lessor, but not more
frequently than once every three years, and paid for by Lessee.
10.3. All insurance required by this Section shall be taken out and maintained in
responsible insurance companies selected by Lessee which are authorized under the
laws of the State of Iowa to assume the risks covered thereby or Lessee may at its
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
$500,000.00 in amount to, or destruction of, Trade Fixtures 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 to substantially the same or an improved
10
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, 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 docks
whether or not the Net Proceeds of insurance received by Lessee for such purposes are
sufficient.
SECTION 11. LESSOR'S WARRANTIES AND REPRESENTATIONS
11.1. Lessor's Representation of Good Title. Lessor covenants and warrants that
Lessor is lawfully seized in possession of the Demised Premises, and that it has full
right and authority to enter into this Lease for the full term hereof, and covenants and
agrees that upon paying the rent provided for herein, and upon Lessee's performing the
covenants and agreements of this Lease required to be performed by said Lessee, that
it will have, hold and enjoy quiet possession of the Demised Premises. Lessor warrants
to Lessee that the Demised Premises are properly zoned for the conduct of the
operation of Lessee's business.
11.2. Lessor makes no representations or warranties as to the condition, including
environmental condition, of the Demised Premises and Lessee accepts the Demised
Premises as is.
SECTION 12. LESSEE'S WARRANTIES AND REPRESENTATION.
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
11
releases for which Lessee fails to take due care and adequate precaution and /or
for which Lessee's actions or inactions cause a worsening of the release, and (b)
Lessee shall provide full cooperation, assistance, and access to Lessor or other
parties investigating and /or responding to a threatened or actual release.
(2) Lessee covenants and agrees to promptly notify Lessor of any release of
Hazardous Substance for which Lessee is responsible under this Section 12.2(1)
that exceeds permitted levels as defined by any local, state or federal laws
applicable to Lessee's use of the Demised Premises originating after the
effective date of this Lease ( "Release ") in, on or about the Demised Premises of
which Lessee suspects or has actual knowledge.
(3) Lessee covenants and agrees to promptly take any and all necessary and
appropriate response to fully address any Release following the advance notice
to Lessor required in Section 12.2(2) above. Such response shall include, without
limitation, notification to appropriate governmental authorities, as may be
required by applicable law. Lessee shall respond to such Release to the full
extent required by applicable law; however, in no event shall Lessee allow
limitations or restrictions to be placed on the Demised Premises without the
written consent of the Lessor.
(4) Except as necessary to conduct its operations and use the Demised
Premises as detailed in Section 1.6 and 1.7, Lessee covenants and agrees to not
manufacture, treat or dispose of Hazardous Substances at the Demised
Premises or allow the manufacture, treatment, or disposal of Hazardous
Substances on the Demised Premises. Lessee shall use and store on the
Demised Premises only those Hazardous Substances as are associated with its
regular business activities, and then only as allowed by applicable law.
(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.
12
SECTION 13. INDEMNIFICATION.
13.1. Indemnification of Lessee. To the extent allowed by law, Lessor will defend,
indemnify and save harmless Lessee from and against all liabilities, obligations, claims,
damages, penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted
against Lessee by reason of (a) any accident, injury to or death of persons or loss of or
damage to property occurring on or about the Demised Premises and resulting from any
act or omission of Lessor its agents or employees, (b) any failure on the part of Lessor
to perform or comply with any of the terms of this Lease and (c) any breach on the part
of Lessor of any warranty or representation contained in Section 11 of this Lease. In
case any action, suit or proceeding is brought against Lessee by reason of any such
occurrence, Lessor will, at Lessor's 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 or the Lessor Improvements thereon shall be
taken in the exercise of the power of eminent domain by any sovereign, municipality or
other public or private authority, then this Lease shall terminate on the date of vesting of
title in such taking and any prepaid rent shall be apportioned as of said date.
Substantially all of the Demised Premises and the Lessor 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.
13
14.2. Allocation of Award. Any award for such taking of all or substantially all of the
Demised Premises shall be paid to the parties hereto in accordance with the following:
(1) To Lessor, the amount of the award attributable to the Demised Premises,
determined as if this Lease was not in effect at the time of such award, excluding
therefrom the amount of the award attributable to new Improvements constructed
by Lessee but not Improvements existing at the commencement of the Term of
this Lease except to the extent Lessee had constructed those Improvements
during a prior leasehold, and all other sums not directly attributable to the value
of the Land constituting the Demised Premises;
(2) To Lessee, the entire award except that portion allocated to Lessor above.
14.3. Partial Condemnation.
(1) If less than all or substantially all of the Demised Premises or the Lessor
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 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 Tess than 60 days nor more than 360 days after delivery of such notice to
Lessor (the Termination Date). In the event Lessee terminates this Lease, as
provided for in this 14.3, Lessee shall be entitled to the entire award for such
partial taking.
14.4 Temporary Taking. If the temporary use of the whole or any part of the Demised
Premises or the Lessor 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
13
provided to be paid by Lessee, and the entire award for such temporary taking shall be
paid to Lessee. Lessee shall repair and restore any and all damage to the Demised
Premises and the Lessor Improvements as soon as reasonably practicable after such
temporary taking to the extent of the condemnation award to Lessee.
SECTION 15. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned
by Lessee without the prior written consent of Lessor, which consent shall not be
unreasonably withheld, provided said third party agrees to comply with the terms and
conditions of this Lease; provided, however, Lessee may assign this Lease to an
affiliate without Lessor's prior written consent. Lessee may sublet parts of the Demised
Premises without the prior consent of Lessor provided Lessee's subtenants agree to
comply with the applicable terms and conditions of this Lease, and provided further that
Lessee shall remain responsible to Lessor for the terms and conditions of this Lease.
SECTION 16. DEFAULT.
16.1. Lessor's Rights in the Event of Lessee's Default. If Lessee shall fail or neglect to
observe, keep or perform any of the covenants, terms or conditions contained in this
Lease on its part to be observed, kept or performed, and the default shall continue for a
period of thirty (30) days after written notice from Lessor setting forth the nature of
Lessee's default (it being intended that in connection with a default not susceptible of
being cured with diligence within thirty (30) days, the time within which Lessee has to
cure the same shall be extended for such period as may be necessary to complete the
same with all due diligence, but in no event longer than ninety (90) days), then and in
any such event, Lessor shall have the right at its option, on written notice to Lessee, to
terminate this Lease. Lessor shall thereafter have the right to enter and take possession
of the Demised Premises with process of law and to remove all personal property from
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
14
this Lease is, and shall continue to be, at all times prior to payment in full of the
indebtedness to the Holder of Lessee, subject to and conditioned on Lessor's having
first given the Holder written notice thereof and the Holder having failed to cause the
default or cause for termination to be made good or removed within thirty (30) days after
receiving written notice of default or cause for termination or within a reasonable time
thereafter if it shall have commenced foreclosure or other appropriate proceedings in
the nature of foreclosure within such thirty (30) days and is diligently prosecuting such
proceedings, but in no event longer than ninety (90) days. In the event that the Lease is
terminated due to the Lessee's bankruptcy, insolvency or other proceedings, and in the
event the Holder has complied with the terms of this 16.2, then Lessor at Holder's
option, shall enter into a new lease with Holder or the successful bidder at foreclosure
on the same terms as this Lease, for the term then remaining, and specifically
preserving all unexercised options.
16.3. Lessee's Rights in the Event of Lessor's Default. If Lessor shall fail or neglect to
observe, keep or perform any of the covenants, terms or conditions contained in this
Lease on its part to be observed, kept or performed, and the default shall continue for a
period of thirty (30) days after written notice from Lessee setting forth the nature of
Lessor's default (it being intended that in connection with a default not susceptible of
being cured with diligence within thirty (30) days, the time within which Lessor has to
cure the same shall be extended for such period as may be necessary to complete the
same with all due diligence, but in no event longer than ninety (90) days), then and in
any such event, Lessee shall have all rights available to it provided by law or equity. If
Lessor's default shall render the Demised Premises of no operational use to Lessee,
and the default shall continue for a period of thirty (30) days after written notice from
Lessee setting forth the nature of Lessor's default, then Lessee shall have no further
obligation for the payment of rent, taxes, or wharfage or for the provision of Products to
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 and the Lessor 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.
17
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 roads required for access to the Demised
Premises or any part thereof shall not be disturbed by any act of Lessor.
Notwithstanding the foregoing, Lessor shall have the right upon reasonable notice to
Lessee to enter the Demised Premised at any time to determine whether Lessee is in
compliance with the requirement of this Lease.
SECTION 19. ESTOPPEL CERTIFICATES. Each party hereto agrees that at any
time and from time to time during the term of this Lease, within ten (10) days after
request by the other party hereto or by any lender having an interest in Lessee's
leasehold estate, it will execute, acknowledge and deliver to the other party or to such
lender or any prospective purchaser, assignee or any mortgagee designated by such
other party, a certificate stating (a) that this Lease is unmodified and in force and effect
(or if there have been modifications, that this Lease is in force and effect as modified,
and identifying the modification agreements), (b) the date to which rent has been paid,
(c) whether or not there is any existing default by Lessee in the payment of any rent or
other sum of money hereunder, and whether or not there is any other existing default by
either party hereto with respect to which a notice of default has been served, and, if
there is any such default, specifying the nature and extent thereof; and (d) whether or
not there are any setoffs, defenses or counterclaims against enforcement of the
obligations to be performed hereunder existing in favor of the party executing such
certificate.
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
18
Premises shall be and remain the property of Lessee, and Lessee shall, except for
Lessor's default, within thirty (30) days after the expiration of the Term of this Lease
remove the same, and shall pay pro -rated rent for each day it remains on the Demised
Premises, and in the event Lessee shall fail to do so, Lessor may cause the Trade
Fixtures to be removed and Lessee agrees pay Lessor for the costs of removal within
thirty (30) days of receipt of a statement therefore from Lessor.
SECTION 22. MEMORANDUM OF LEASE. Each of the parties hereto will, promptly
upon request of the other, execute a memorandum of this Lease in a form suitable for
recording setting forth the names of the parties hereto and the term of this Lease,
identifying the Demised Premises, and also including such other clauses therein as
either party may desire, except the amounts of basic rent payable hereunder.
SECTION 23. NOTICES.
23.1. All notices, demands or other writings in this Lease provided to be given or made
or sent, or which may be given or made or sent, by either party to the other, shall be
deemed to have been fully given or made or sent when made in writing and deposited in
the United States mail, registered and postage prepaid, and by facsimile addressed as
follows:
TO LESSOR:
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
19
23.2. The address and /or fax number to which any notice, demand or other writing
may be given or made or sent to any party as above provided may be changed
by written notice given by the party as above provided.
SECTION 24.
MISCELLANEOUS.
24.1. Time of the Essence. Time is of the essence of this Lease and all of
its provisions.
24.2. Governing Law. It is agreed that this Lease shall be governed by, construed
and enforced in accordance with the laws of the State of Iowa.
24.3. Paragraph Headings. The titles to the paragraphs of this Lease are solely for
the convenience of the parties and shall not be used to explain, modify, simplify or
aid in the interpretation of the provisions of this Lease.
24.4. Modification of Agreement. Any modification of this Lease or
additional obligation assumed by either party in connection with this Lease shall be
binding only if evidenced in a writing signed by each party or an authorized
representative of each party.
24.5. Parties Bound. This Lease shall be binding on and shall inure to the
benefit of and shall apply to the respective successors and assigns of Lessor
and Lessee. All references in this Lease to "Lessor" or "Lessee" shall be deemed
to refer to and include successors and assigns of Lessor or Lessee without
specific mention of such successors or assigns.
24.6. Force Majeure. In the event that either party hereto shall be delayed or
hindered in or prevented from the performance of any act required hereunder
by reason of strikes, lockouts, labor troubles, unavailability of construction
materials, unavailability or excessive price of fuel, power failure, riots, insurrection,
war, terrorist activities, explosions, hazardous conditions, fire, flood, weather or
acts of God, or by reason of any other cause beyond the exclusive and reasonable
control of the party delayed in performing work or doing acts required under the
terms of this Lease (collectively "Force Majeure"), then performance of such act
shall be excused for the period of the delay and the period for the performance of
any such act shall be extended for a period equivalent to the period of such delay.
LESSOR:
Roy Buol, Mayor
Attest\,
Trish L. Gleason, Assistant City Clerk
20
LESSEE:
GAVILON GRAIN}
By: 0; i i'1y y 1 :1'`+4
y,
Kon5or V194- 6M N
LIST OF EXHIBITS
EXHIBIT A Legal Description
EXHIBIT B Demised Premises
EXHIBT C Flood and Corps Restrictions
21
EXHIBIT A LEGAL
DESCRIPTION
Lots 1, 2, 3, 4, the northerly 50 feet of Lot 5, Lots 6, 7, 8, Lot 11 except the southerly
350 feet thereof and Lot 12 except the easterly 185.3 feet thereof all in Block 4; and
Lots 1, 2 and 3 in Block 8; all in River Front Subdivision No. 2 in the City of Dubuque,
Dubuque County, Iowa as shown on the attached Exhibit B;
Also including parts of the Northeast and Southeast Quarters of Section 19, T89N, R3E
of the 5th P.M., in Dubuque County, Iowa, being all the land between the normal high
water line of the Mississippi River and the aforementioned parts of Blocks 4 and 8 in
River Front Subdivision No. 2 as shown on the attached Exhibit B;
The sum total of the above described parcels contains 9.66 acres, more or less, and is
subject to easements of record and not of record.
21
EXHIBIT B DEMISED
PREMISES
22
Exhibit B
PURINA DR
Document Palk. H 1Engneenngteas,
mentsVSall 3uildin/4.2013 05-07.2013 Eahk;t 8mxd
Autif
2013 -05 -21
*Subject to Survey Verification
oswwrn: iM. ww:ww.. rdqu
man.
a ae»...m t, wormy n w:, «*w
o�nwww�wrr�r� 'wwn.ay.
sod
togg W. Witty
e .ew..1011.nn..rm.a.now,iIrw.w.E aa
a ^ °a Corps Restricted
THE CITY OF
DAGIS DiTa5 IJE
EXHIBIT C
FLOOD AND CORPS RESTRICTIONS
1 1RRiuer Stage 23 feet.
River Prediction 24 feet
Public Works partnrent sso rt
Peavey (Virginia Carolina) 24' gat€
the Peavey ' loading dock
'12, iv't r Stage 24 fees
River Prediction 25 feet
gal
c,
fl
rks fel attars r
411
Lael.attirrnt
Callan 25, x).
Depellment
Department ara
€aiaal nt
pal in
Fri ltr Wo
1 'hru ut
e, Public Wor
ent feu
rilllratal)
Ica #ed bet���
plil,ap rl; t�
n 1h' ccaaincl1 ci
tl
atiraie t Iralrol the flood
o Alilet..t Energy
plug and 3`
Carr
put Tetinti➢o
nne
llet will install a
lily Carg
n
Mete; ; E :ii`
sill prior to i
13.River Stage 2b fa
River Pre&1ietion 26 feet
Pars nel A ssi
mine! u'iiI rt
a�A �,1tt9�:tit €at
t A Eor Prll
reaaer,
�irld, 1111 ni��r 8
re 1i -till d
de, etr and tlrr tr 11
MD, qat ran the 84`
i a tzIled to ur rp 5 its r
over th f1
v
and
of rup[
I all and pimp'
24
INSURANCE SCHEDULE
City of Dubuque Insurance Requirements for Tenants and Lessees of City
Property or Vendors (Suppliers, Service Providers)
1.
Insurance Schedule 4
shall furnish a signed Certificate of insurance (COI} 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 CO1 annually. Each Certificate sha"I be prepared on the most current ACORii form
approved by the Department of Insurance or an equivalent. Each certificate shall; include a statement
under Description of Operations as to why issued. Eg: Project # or Lease of premises at
or construction of
2. All policies of insurance required hereunder shal be with a carrier authorized to do business in Iowa and
all carriers shall have a rating of A. or better in the current A.M. Best's Rating Guide.
3. Each Certificate shall: be furnished to the contracting department of the City of Dubuque.
4. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of
Dubuque_ Failure to obtain or maintain the required insurance shall be considered a material breach of
this agreement.
5. All required endorsements to various paiicies shaIw be attached to Certificate of insurance.
6. Whenever a specific !SO form is listed, an equivalent form may be substituted subject to the provider
identifying and listing in writing all deviations and exclusions that differ from the ISO form_
7. Provider shall be required to carry the minimum coverage /limits, or greater if required by law or other
egal agreement, in Exhibit 1.
E. Whenever an ISO or is referenced the current edition of the form must be used.
Page 1 of 3 Schedule A, Property Or Vendors (Suppliers, Service Providers
25
City of Dubuque Insurance Requirements for Tenants and Lessees of City
Property or Vendors (Suppliers, Service Providers)
Insurance Schedule (continued)
Exhibit I
A) COMMERCIAL GENERAL LIABILITY
Genera l Aggreg ate Limit 52,000,000
Products - Completed Operations Aggregate limit 51,000,000
Persona" and Advertising Injury Limit 51,000,000
Each Occurrence 51,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medics Payments 5 5,000
a) Coverage shat be written on an occurrence, not claims made, form_ A deviations from the
standard ISO commercial general liability form CG 0001, or Business owners form BP 0002,
shag be clearly identified.
b) Include 1550 endorsement form CG 25 04 "Designated Location(s) General Aggregate Limit.'
c) Include endorsement indicating that coverage is primary and non - contributory_
d) Include endorsement to preserve Governmenta': Immunity. (Sarnp'e attached).
e) Include an endorsement that deletes any €e °low empjoyee exclusion.
f) Include additions" insured endorsement for:
The City of Dubuque,, including all its elected and appointed officia's; a';1 its employees
and vo`Iunteers, al:' its boards, commissions andalor authorities and their board members,
employees and vo`unteers. Use ISO form CG 2010. Ongoing operations.
g) If vendor uti_izes Trikkes or Segvays in the conduct of business, include an endorsement
reflecting that these vehicles are not excluded from Commercia General Liabi'ity coverage.
B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory benefits covering al emp!':oyees injured on the job by accident or disease as prescribed by
Iowa Code Chapter 85 as amended.
Coverage A
Coverage B
Statutory —State of Iowa
Employers Liability
Each Accident 5100,000
Each Employee-Disease 5100,000
Polo? Limit - Disease 5500,000
Policy shall inc'?ude an endorsement providing a waiver of subrogation to the City of Dubuque.
Policy shall inc'ude an endorsement for United States Long =bore and Harbor Workers' Compensation
coverage.
Page 2 of 3 Schedule A, Property Or Vendors (Supp iers, Service Providers
26
City of Dubuque Insurance Requirements for Tenants and Lessees of City
Property ar Vendors {Suppliers, Service Providers)
Preservation of Governmental Immunities Endorsement
1. Nonwaiver of Governmental iMMunity. The insurance carrier expressly agrees and states that the
purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does
not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa
under Code of Iowa Section 670.4 as it is now exist and as it may be amended from time to time.
2. Claims Coverage_ The insurance carrier further agrees that this policy of insurance shall cover only
those claims not subject to the defense of governmental immunity under the Code of Iowa Section
670.4 as it now exists and as it may be amended from time to time. Those claims not subject to
Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any
defense of governmental immunity, and may do so at any time and shall do so upon the timely
written request of the insurance carrier.
4. Non-Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the
insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa
under this policy for reasons of governmental immunity unless and until a court of competent
jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of
Dubuque, Iowa.
No Other Change in Policy. The above preservation of governmental immunities shall not otherwise
change ar alter the coverage available under the policy.
SPECIMEN
Page 3 of 3 Schedule A, Property Or Vendors (Suppqers, Service Providers
27
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
OFFICIAL NOTICE
RESOLUTION
NO. 200-13
RESOLUTION (1) AP-
PROVING THE MINI-
MUM REQUIRE-
MENTS, : COMPETI-
TIVE CRITERIA, AND
OFFERING PROCE-
DURES FOR THE DE-
VELOPMENT AND
THE LEASE OF CER-
TAIN REAL PROPER-
TY AND IMPROVE -
MENTS IN THE
GREATER DOWN-
TOWN URBAN RE-
NEWAL DISTRICT; (2)
DETERMINING THAT
THE LEASE SUBMIT-
TED BY GAVILON
GRAIN, LLC SATIS-
FIES THE OFFERING
REQUIREMENTS
WITH RESPECT TO
THE REAL PROPERTY
AND IMPROVEMENTS
AND DECLARING THE
INTENT OF THE CITY
COUNCIL TO AP-
PROVE THE LEASE
WITH GAVILON
GRAIN, LLC IN THE
EVENT THAT NO
COMPETING PRO-
POSALS ARE SUBMIT-
TED; AND (3) SOLIC-
ITING COMPETING
PROPOSALS.
Whereas, the City
Council of Dubuque, lo-
wa, did on June 3, 2013
adopt an Amended and
Restated Urban Renew-
al -Plan for the Greater
Downtown Urban Re-
newal District ( "the
Plan ") for the Urban
Renewal Area descri-
bed therein; and
Whereas, the Plan
provides, among other
things, for the disposi-
tion of properties for
private development
purposes as a pro-
posed economic devel-
opment action; and
Whereas, Gavilon
Grain, LLC ( "Lessee ")
has submitted to the
City a proposal for the
leasing of certain real
property hereinafter
described for the oper-
ation and management
of a portion of the Salt
Site area as described
therein ( "the Lease
Agreement"), together
with the request that
this property be made
available for lease as
rapidly as possible;
and
Whereas, in order to
establish reasonably
competitive bidding
procedures forte dis-
ing classification;
c) Sets out or pro
vides to the satisfac
tion`of the City Council
the experience of the
principals and key staff
who are directly en
gaged in the perform
ance of contract obli-
gations in carrying out
projects of similar
scale and character;
and
d) Meets, at a mini-
mum, the terms and
conditions of the Lease
Agreement submitted
by the Lessee.
Section 3. That the
Lease Agreement by
and between the City
and the Lessee be and
is hereby approved as
to form for the purpos-
es hereinafter stated.
Section 4. That for the
purpose of defining the
offering of the Proper-
ty for lease, said Lease
Agreement shall be
deemed to be illustra-
tive of the terms ac-
ceptable to the City
with respect to:
a) Annual lease pay-
ments;
b) Construction of
leasehold improve-
ments;
c) Lessee obligations;
d) General terms and
conditions.
Section 5. That the
Lease Agreement sub-
mitted by the Lessee
satisfies the require-
ments of this offering
and, in the event that
no other qualified pro-
posals are timely sub -
mitted, that the City
Council intends to ac-
cept and approve the
Lease Agreement.
Section 6. That it is
hereby determined
that the Lessee pos-
sesses the qualifica-
tions, financial resour-
ces
and legal ability
necessary to lease the
Property and to man-
age and operate the
site in the manner pro-
posed by this offering
in accordance with the
Plan.
Section 7. That the an-
nual lease payments
for the site offered by
the Lessee are hereby
found and determined
to be the fair market
value of the leasehold
interest being con -
veyed.
Section 8. That the
City Clerk shall receive
and retain for public
examination the at-
tached Lease Agree-
ment submitted by the
Lessee and, in the
event no other quali-
fied proposals are
prove the Lease Agree -
ment by and between
City and Lessee.
Section 10. That the'
official ! notice of this
offering and of the in-
tent of the City, in the
event no other quali-
fied proposals ` are
timely submitted, to
approve the Lease
Agreement, shall' be a
true copy of this Reso-
lution, but without the
attachments referred
to herein.
Section 11. That the
City Clerk is authorized
and directed to secure
immediate publication
of said official notice in
the Telegraph Herald, a
newspaper having a
general circulation in
the community, by
publication of the text
of this Resolution with -
out attachments on or
before the 5th day of
July, 2013.
Section 12. That writ-
ten proposals for the
lease of the Property
will be received by the
City Clerk at or before
10:00 a.m., August 5,
2013 in the Office of
the City Clerk, located
on the first floor at City
Hall, 50 West 13th
Street, Dubuque, Iowa
52001. Each proposal
will be opened at the
hour of 10:00 a.m. in
City Hall, Dubuque, Io-
wa on August 5, 2013.
Said proposals will
then be presented to I
the City Council at 6:30
p.m., August 5, 2013, at q
a meeting to be held in
the City Council Cham- t
bers, Historic Federal d
Building at 350 West c
6th Street, Dubuque,
Iowa. a
Section 13. That such
offering shall be in
substantial conform-
ance with the provi- ,o
sions of Iowa Code 'o
Section 403.8, requiring
reasonable competitive t
bidding procedures as e
are hereby prescribed, v
which method is here - b
by determined to 'be a
the appropriate meth- 'n
od for development of p
the Property. e
Section 14. That the g
required documents o
for the submissions of a th
proposal shall - be in re conformity th
with the `provisions of
this Resolution. pr
Section 15. That the to
City Clerk is hereby pl
nominated and ap- pr
pointed as the agent of
the City of Dubuque, pa
Iowa to receive _,pro- de
posals for the lease of Ci
the Property on that an
datp and arrnrdinn
Legal Notice
OFFICIAL
PUBLICATION
ORDINANCE NO.32 -1i
AMENDING CITY C
DUBUQUE CODE t0
ORDINANCES TIT[
14 BUILDING AND DI
VELOPMENT, CHA6
TER 2 BUILDING COI
STRUCTION, DEMOL
TION AND MOVIN4
SECTION 14-2 -4 MOI
ATORIUM FOR COI
STRUCTION OR OTh
ER WORK ON ,CEO
THIN STREET
AREAS OR FACILITIh
BY EXTENDING TH
MORATORIUM
Section 1. City of Di
buque Code of Ord
nances `Section 14 -2•
is amended to read
follows:
Section 14 -2 -4: Mon
torium For Constru ■
tion Or Other Work C
Certain Streets, Are
Or Facilities:
A. Southwest Arteri
Corridor: The city mai
ager may not issue ar
permit for any ne
construction or sul
stantial ? enlargemen
alteration, repair or n
modeling of any stru
ture, building, or sig
in the southwest arter
r al corridor but not :1
e include demolition,
delineated on drawinc
s on file in the oil
s clerk's office, from th
1 ;effective date hereof
1
t'ul,v ,4.,,,:20j14,, o ei
uality of the develop-
ment and its sensitivity
o the use and future
evelopment of adja-
ent properties.
(4) The type, size and
rrangement of fa-
cades or signage along
each street frontage.
Economic Feasibility
f the Proposed Devel-
pment:
(1) The economic re-
urn to the City provid-
d by the proposed de-
elopment, including
of not limited to, the
mount of lease reve-
ue generated, the
roperty and sales tax -
s and wharfage fees
enerated, the number
f jobs provided, and
e` encouragement of
elated development in
e area.
(2) The ability of the
ospective developer
finance and com-
ete the project as
oposed.
(3) The financial im-
ct of the proposed
velopment upon the
ty's operating budget
d capital improve-
STATE OF IOWA {SS:
DUBUQUE COUNTY
CERTIFICATION OF PUBLICATION
I, Suzanne Pike, a Billing Clerk for Woodward Communications, Inc., an Iowa
corporation, publisher of the Telegraph Herald,a newspaper of general circulation
published in the City of Dubuque, County of Dubuque and State of Iowa; hereby
certify that the attached notice was published in said newspaper on the following
dates: July 05, 2013, and for which the charge is $165.59.
Subscribed to before 1a - .. Notary Public in and for Dubuque County, Iowa,
, 2045 .
this 7,,W day o
Notary Public in and for Dubuque County, Iowa.
l 'VARY K, WESTERP,IEYER ti
comhmis�lon l umbor 156,885
ing classification;
c) Sets out or pro-
vides to the satisfac-
tion of the City Council
the experience of the
principals and key staff
who are directly en-
OFFICIAL NOTICE gaged in the perform -
RESOLUTION ance of contract obli-
NO•200-13 gations in carrying out
RESOLUTION (1) AP- projects of ! similar
PROVING THE MINI- scale and character;
MUM REQUIRE- and
MENTS, COMPETI- d) Meets, at a mini -
TIVE CRITERIA, AND mum, the terms and
OFFERING PROCE- conditions of the Lease
DUKES FOR THE DE- Agreement submitted
VELOPMENT AND by the Lessee.
THE LEASE OF CER- Section 3. That the
THIN REAL PROPER- Lease Agreement by
TY AND IMPROVE- and between the City
MENTS IN THE and the Lessee be and
GRATER DOWN- is hereby approved as
TOWN URBAN RE- to form for the purpos-
NEWAL DISTRICT; (2) es hereinafter stated.
DETERMINING THAT Section 4. That for the
THE LEASE SUBMIT- purpose of defining the
TED BY GAVILON offering of the ?Proper -
GRAIN, LLC SATIS- ty for lease, said Lease
FIBS THE OFFERING Agreement shall be
REQUIREMENT'S deemed to be illustra-
WITH RESPECT TO tive of the terms ac-
THE REAL PROPERTY ceptable to the City
AND IMPROVEMENTS with respect to:
AND DECLARING THE a) Annual lease pay -
INTENT OF THE CITY ments;
COUNCIL TO AP- b) Construction of
PROVE THE LEASE leasehold improve -
WITH GAVILON ments;
GRAIN, LLC IN THE c) Lessee obligations;
EVENT WHAT NO and
COMPE'T'ING PRO- d) ;General terms and
POSALS ARE SUBMIT- conditions.
TED; AND (3) SOLIC- Section 5. That the
ITING COMPETING Lease Agreement sub -
PROPOSALS. mitted by the Lessee
Whereas, the City satisfies the require -
Council of Dubuque, lo- ments of this offering
wa, did on June 3, 2013 and, in the event that
adopt an Amended and no other qualified pro -
Restated Urban Renew- posais are timely sub-
al Plan for the Greater mitted, that the City
Downtown Urban Re- Council intends to ac-
newal District ( "the cept and approve the
Plan ") for the Urban Lease Agreement.
Renewal Area descri- Section 6. That it is
bed therein; and hereby determined
Whereas, the Plan that the Lessee pos-
provides, among other sesses the qualifica-
things, for the disposi- tions, financial resour-
tion of properties for ces and legal ability
private development necessary to lease the
purposes as a pro- Property and to man -
posed economic devel- age and operate the
opment action; and site in the manner pro -
Whereas, Gavilon posed by this offering
Grain, LLC ( "Lessee ") in accordance with the
has submitted to the Plan. a proposal for the Section 7. That the an-
leasing of certain real
property hereinafter
described for the oper-
ation and management
of a portion of the Salt
Site area as described
therein ( "the Lease
Agreement "), together
with the request that
this property be made
available for lease as
rapidly as possible;
and
Whereas, in order to
establish reasonably
competitive ° bidding
procedures for the dis-
position of the proper-
ty in accordance with
the statutory require-
ments of Iowa Code
Chapter 403, specifical-
ly, Section 403.8, and to
assure that the City ex-
tends a full and fair op-
portunity to all devel-
opers interested in
submitting a proposal,
a summary of submis-
sion requirements and
minimum requirements
and competitive crite-
ria for the property of-
fering is included here-
in; and
Whereas, said Devel-
oper has tendered the
Lease Agreement with
the City, attached
hereto as Exhibit "A";
and
Whereas, to recognize
both the firm proposal
for lease of the real
property and improve-
ments already received
by the City, as descri-
bed above, and to give
full and fair opportuni-
ty to other developers
interested in submit-
ting a proposal for the
use of the property,
this Council should by
this Resolution:
1) Set the fair market
value of the real prop-
erty for uses in accord-
ance with the Plan;
2) Approve the mini
mum requirements and
competitive criteria in
eluded herein;
3) Approve as to form
the Lease Agreement
attached hereto as Ex-
hibit "A';
4) Set ae date for re-
ceipt of competingpro
posais and the opening
thereof
5) Declare that the
proposal submitted by
Lessee satisfies the
minimum requirements
of the offering, and
that in the event no
other qualified propos-
al is timely submitted,
that the City Council
intends to approve
such proposal and au-
thorize the City Manag-
er to sign the Lease
Agreement; and direct
publication of noticeiof
said intent;
6) Approve and direct
publication of a notice
to advised any other
person of the opportu
nity to compete for
lease of the real prop
erty on the terms and
conditions set forth
herein; and
7) Declare that in the
event another qualified
proposal is timely sub-
mitted and accepted,
another and future no-
tice will pe published
on the intent of the
city to enter into the
nual lease, payments
for the site offered by
the Lessee are hereby
found and determined
to be the fair market
value of the leasehold
interest being con-
veyed.
Section 8. That the
City Clerk shall receive
and retain for public
examination ' the at-
tached Lease Agree-
ment submitted by the
Lessee and, in the
event no other quali-
fied ` proposals are
timely submitted, shall
resubmit the Lease
Agreement to the City
Council for final appro-
val and execution upon
expiration of the notice
hereinafter prescribed.
Section 9. That the ac-
tion of the City Council
be considered to be
and does hereby con -
stitute notice to all
concerned of the inten-
tion of this Council, in
the event that no other
qualified proposals are
timely submitted, to
accept the proposal of
the Developer to lease
the Property and to ap-
prove the Lease Agree-
ment by and between
City and Lessee.
Section 10. That the
official notice of this
offering and of the in-
tent of the City, in the
event no other quali-
fied proposals are
timely submitted,'; to
approve ! the Lease
Agreement, shall be a
true copy of this Reso-
lution, but without the
attachments referred
to herein.
Section 11. That the
City Clerk is authorized
and directed to secure
immediate publication
of said official notice in
the Telegraph Herald, a
newspaper having a
general circulation in
the community, by
publication of the text
of this Resolution with -
out attachments on or
before the 5th day of
July, 2013.
Section 12. That writ-
ten proposals for the
lease of the Property
will be received by the
City Clerk at or before
10:00 a.m., August 5,
2013 in the Office of
the City Clerk, located
on the first floor at City
Hall, 50 West 13th
Street, Dubuque, Iowa
52001. Each proposal
will be opened at the
hour of 10:00 a.m. in
City Hall, Dubuque, lo-
wa on August 5, 2013.
Said proposals will
then be presented to
the City Council at 6:30
p.m., August 5, 2013, at
a meeting to be held in
the City Council Cham-
bers, Historic Federal
Building at 350 West
6th Street, Dubuque,
Iowa.
Section 13. That such
offering shall be in
substantial conform-
ance with the provi-
isfies these require-
ments, the City Council
shall judge the
strength the ppos-
ai "by ngt the of competitive
criteria established
hereinabove. The City
Council shall then
make the final evalua-
tion and selection of
the proposals.
Section 16. Each pro-
posal submitted which
satisfies the foregoing
minimum require-
ments, as determined
by the City Manager,
shall be reviewed on
the basis of the
strength of such pro-
posal under the follow-
ing Competitive Crite-
ria:
Quality of the Pro-
posed Development:
(1) The total cost of
the project.
(2) The types of mate-
rials to be used in the
proposed improver
ments.
(3) Overall project
amenities.
Architectural Design
of the Proposed Devel-
opment:
(1) The compatibility
of the design with ad-
jacent structures, vis-
tas, pedestrian traffic,
vehicular activities,
and future develop-
ment of adjacent prop-
erties.
(2) The functional de-
sign of the site, the
structures, and all pub-
lic spaces.
(3) The aesthetic
quality of the develop-
ment and its sensitivity
to the use and future
of adja-
cent properties.
(4) The type, size and
arrangement of fa-
cades or signage along
each street frontage.
Economic Feasibility
Propose
Devel-
of the Pro
p
sions of Iowa Code opment:
Section 403.8, requiring (1) The economic re-
reasonable competitive turn to the City provid-
bidding procedures as ed by the proposed de-
are hereby prescribed, velopment, including
which method is here- but not limited to, the
by determined to be amount of lease reve-
the appropriate meth- nue :generated, the
od for development of property and sales tax-
the Property. es and wharfage fees
Section 14. That the generated, the number
required documents of jobs provided, and
for the submission of a the encouragement of
proposal shall be in related development; in
substantial conformity the area.
with the provisions of (2) The ability of the
this Resolution. prospective developer
Section 15. That the to finance and com-
City Clerk is hereby plete the . project as
nominated and ap- proposed.
pointed as the agent of (3) The financial im-
the City of Dubuque, pact of the proposed
Iowa to receive pro- development upon the
posals for the lease of City's operating budget
the Property on that and capital improve -
date and according to ment plan, particularly
the procedure hereina- as it relates to the con-
bove specified for re- struction and mainte-
ceipt of such proposals Nance of any required,
and to proceed at such public improvements.
time to formally ac- Section 17. If, and on-
knowledge receipt of ly if, competing pro -
each of such proposal posals are received
by noting the receipt of and determined by the
same in the Minutes of Council to meet the
Council; that the minimum requirements
City Manager is hereby described herein, the
authorized and direct- Lessee shall be allowed
ed to make preliminary to amend its proposal
analysis of each such in response thereto
proposal for compli- and to deliver same to
ance with the mini- the City Manager, by
mum requirements es- no later than a date de-
tablished by this Coun- termined by the City
cil hereinabove. For Council. In such event,
each proposal that sat- the Council shall
schedule a subsequent
meeting to be held by
the City Manager at
a
which'there shall be
bid -off conducted by
the City Manager. Dup-
ing such bid -off, each
competing bidder shall
bid against the other,
starting with the sec-
ond proposal received
OF IOWA
and continuing until
such time as each bid-
der shall decline to bid-
prove its proposal to )I5E COUNTY
acquire and redevelop
the Property in re-
sponse to the last bid',
of the other bidder or
bidders. The period of
time to be allowed for
such bid -off shall be
determined by the City
Manager. The rules of
such bid -off shall be as
determined by the City
Manager at or before
such bid -off period and
shall be absolute.
Section 18. That in the
event another qualified
proposal is timely sub-
mitted and accepted
by the City, another
and further notice shall
be published of the in-
tent of the City of Du-
buque, Iowa, to enter
into the resulting
agreement, as required
by law.
Passed, approved and
adopted this 1st day of
July, 2013.
Roy D. Buol, Mayor
Attest: Kevin Firnstahl,
City Clerk
it 7/5
{SS:
CERTIFICATION OF PUBLICATION
'ike, a Billing Clerk for Woodward Communications, Inc., an Iowa
publisher of the Telegraph Herald,a newspaper of general circulation
the City of Dubuque, County of Dubuque and State of Iowa; hereby
he attached notice was published in said newspaper on the following
05, 2013, and for which the charge is $165.59.
Subscribed to before 1
this !t day o
Notary Public in and for Dubuque County, Iowa,
, 20/g .
Notary Public in and for Dubuque County, Iowa.
fq MARY K, WESTERM ' ER Ij
Comrrlselon Humber '15085
erty on the terms and
conditions set forth
herein and
7) Declare that: in the
event another qualified
proposal is timely sub -
mitted and accepted,
another and future no-
tice will be published
on the' intent of the
City to enter into the
resulting contract, as
required by law;
and
Whereas, the City
Council believes it is in
the best interest of the__.
City and the plan to act
as expeditiously as
possible' to lease the
real property as set
forth herein.
NOW, THEREFORE, BE
IT RESOLVED BY THE
CITY COUNCIL OF THE
CITY OF DUBUQUE, I0-
WA:
Section 1. That the re-
al property shown on
Exhibit "B" attached
hereto as the Salt Site
ocated along the P.eos-
ta Channel (the Prop -
erty') shall be offered
for lease in accordance
with the terms and
Conditions contained in
this Resolution.
Section 2. That it is
hereby determined
that in order to qualify
for consideration for
selection, any person
must submit a propos
al which meets these
minimum require -u
ments:
a) Contains an agree-
ment to lease the Prop-
erty at not less than
fair market value es-
tablished herein;
b) Contains a commit-
ment to lease approxi-
mately 6 02 acres along
Peosta Channel for
uses allowed in -a
Heavy - Industrial Zon-