Dubuque Terminals, Inc._Amended Dove Harbor Lease AgreementLIMITED POWER OF ATTORNEY
Gary Newt. residing at 17340 US Route 20 West, East Dubuque, Illinois 61025, the
undersigned, do hereby appoint Carter Newt, of 17391 US Route 20 West, East Dubuque,
Illinois 61025, as my attorney-in-fact ("Agent") to exercise the following powers, making
him my attorney-in-fact to enter into binding contracts on my behalf, and to sign all
documents necessary for:
1. Operation of Dubuque Terminals, Inc., including, but not Limited to borrowing
money and pledging property for security, both real and personal, from Dubuque
Bank and Trust Company.
Operation of Dubuque Barge and Fleeting Service Company, including, but not
limited to borrowing money and pledging property for security, both real and
personal, from Dubuque Bank and Trust Company.
3. Operation, maintenance or borrowing money, from Dubuque Bank and Trust
Company, for any farm land I own.
I hereby revoke the General Power of Attorney I signed April 5, 2012.
Dated this 30 day of April, 2012.
STATE OF .j o w 7 )
)ss
COUNTY OF /.,�jt/��, e )
Clk
The foregoing instrument was acknowledged before me by Gary Newt, this 3 7 —
day of April 2012.
otary Public
My commission expires: -%-3 -, 0/3
SHEILA M. MCCARTY
Commission- Numbs- 745231
My Coerss:,fag.
THE CITY OF
Dui
Masterpiece on the Mississippi
Dubuque
band
AI -America City
r
2007 • 2012 • 2013
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Amended and Restated Lease Agreement Between the City of Dubuque,
Iowa, and Dubuque Terminals, Inc.
DATE: March 13, 2014
Economic Development Director Maurice Jones recommends City Council approval of
the Amended and Restated Lease Agreement with Dubuque Terminals, Inc. to
incorporate changes in the lease rate and leasable area, as well as to align terms with
the existing Gavilon Grain, LLC lease in Dove Harbor.
The most significant changes made to the lease agreement to more closely align with
the Gavilon Grain lease include the following:
• The term of the lease will end in August 2038 as opposed to June 2038.
• Rent will escalate in accordance with the CPI as opposed to the COL.
• Dubuque Terminals must repair or remove structures on the site requested by
the City within 120 days, as opposed to 10 days.
• Dubuque Terminals may not make any alterations to improvements on the
property exceeding $100,000 as opposed to $25,000.
• Longshoreman and Harbor Workers Compensation Act Coverage has been
added to the insurance schedule.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
bt/1144 „,,
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Maurice Jones, Economic Development Director
2
THE CITY OF
DIItbU
Masterpiece on the Mississippi
Dubuque
All -America City
1 r
2007 • 2012 • 2013
TO: Michael Van Milligen, City Manager
FROM: Maurice Jones, Economic Development Director
DATE: March 13, 2014
SUBJECT: Amended and Restated Lease Agreement Between the City of
Dubuque, Iowa and Dubuque Terminals, Inc.
INTRODUCTION
This memorandum presents for City Council consideration and action the attached
resolution approving an Amended and Restated Lease Agreement with Dubuque
Terminals, Inc. for property in Dove Harbor.
BACKGROUND
On May 3, 2013 the City entered into a lease with Dubuque Terminals, Inc. for
approximately 6.13 acres near Dove Harbor. The company, a subsidary of Newt
Marine, specializes in marine services such as the loading and unloading of barges.
Dubuque Terminals had previously only used riverfront property in the Ice Harbor area,
however with the change of zoning, staff indentified leasable riverfront property in Dove
Harbor that was available for industrial use.
The commencement date for the lease was scheduled for February 1, 2013. In March
2013, the City notified Dubuque Terminals of a lease rate modification as a result of a
separate lease on the Dove Harbor peninsula the City had negotiated with Flint Hills
Resources Pine Bend, LLC in March 2012. The Dubuque Terminals lease required the
City to adjust lease rent to match the lowest rent provided to anyone in the area. Since
Flint Hills Resources was leased usable property at $40,907 annually per acre, lower
than the $50,000 per acre Dubuque Terminals was to be charged on a portion of their
lease, they qualified for a discount. Additionally, after lease negotations with Dubuque
Terminals, staff determined that 2.24 acres were restricted by the Army Corps of
Engineers. The restricted property has very little value for the company and staff
agreed to lease that portion of the property at no charge. Lease charges have also
been eliminated on 1.06 acres in the property, as it provides shared access to various
users on the peninsula.
The remaining leasable acreage is 2.86 acres expected to generate $116,994 annually.
The original lease projected an annual return of $188,766, resulting in a $71,772
reduction for the company. These changes were conveyed to Dubuque Terminals via a
letter in March 2013. It was determined at that time an amendment to the lease was not
required.
Since then, the City entered into a lease in August 2013 with Gavilon Grain, LLC for the
use of approximately 7.87 acres of property on the Dove Harbor peninsula. Gavilon
Grain has also separately negotatiated with Dubuque Terminals to sublet a portion of
the 6.13 acres. However Gavilon Grain has requested the terms of their leases align for
ease of operation on both sites. Therefore staff has worked with Dubuque Terminals on
an Amended and Restated Lease Agreement to align the terms of the lease, where
possible, to those contained in the Gavilon Grain lease. The amendment will also
incorporate the newly revised lease rate structure.
DISCUSSION
Aside from the aforementioned changes in leasable area and lease rates, the proposed
changes in the Amended and Restated Lease Agreement are fairly minor. The most
significant changes made to more closely align with the Gavilon Grain lease include the
following:
• The term of the lease will end in August 2038 as opposed to June 2038.
• Rent will escalate in accordance with the CPI as opposed to the COL.
• Dubuque Terminals must repair or remove structures on the site requested by
the City within 120 days, as opposed to 10 days.
• Dubuque Terminals may not make any alterations to improvements on the
property exceeding $100,000 as opposed to $25,000.
• Longshoreman and Harbor Workers Compensation Act Coverage has been
added to the insurance schedule.
RECOMMENDATION
I recommend that the City Council approve the Amended and Restated Lease
Agreement with Dubuque Terminals, Inc. to incorporate changes in the lease rate and
leasable area, as well as to align terms with the existing Gavilon Grain, LLC lease in
Dove Harbor.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
F:\USERS\Econ Dev\Newt\Dove Harbor\20140312 Amended and Restated Dove Harbor Lease Memo.docx
RESOLUTION NO. 82-14
APPROVING AN AMENDED AND RESTATED LEASE BETWEEN THE CITY OF
DUBUQUE, IOWA AND DUBUQUE TERMINALS, INC. IN DOVE HARBOR
Whereas, the City of Dubuque, Iowa (Lessor) and Dubuque Terminals, Inc. (Lessee)
entered into a Lease Agreement dated May 3, 2010 for approximately 6.13 acres near
Dove Harbor (the Original Lease Agreement); and
Whereas, Lessor notified Lessee of a lease rate modification to address a change in
leasable area and a reduction in the lease rate; and
Whereas, Lessor and Gavilon Grain, LLC have entered into a separate lease
agreement for approximately 7.87 acres of property adjacent to the Leased Premises of
the Original Lease Agreement; and
Whereas Gavilon Grain, LLC also plans to sublet from Lessee a portion of the
Leased Premises of the Original Lease Agreement; and
Whereas Gavilon Grain, LLC and Lessee have requested that the terms of the
Original Lease Agreement align with the terms of the Gavilon Grain, LLC lease prior to
subletting; and
Whereas in response to the request of Gavilon Grain, LLC, Lessor and Lessee desire
to amend and restate the terms of the Original Lease Agreement as set forth in the
attached Amended and Restated Lease Agreement; and
Whereas, the City Council finds that it is in the best interest of the City of Dubuque to
approve the Amended and Restated Lease Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE AS FOLLOWS:
Section 1. The Amended and Restated Lease Agreement is hereby approved.
Section 2. The Mayor and City Clerk are authorized and directed to execute the
Amended and Restated Lease Agreement.
Section 3. The City Manager is authorized and directed to take such further action as
may be necessary to implement the Amended and Restated Lease.
AMENDED AND RESTATED
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DUBUQUE TERMINALS, INC.
(The Dove Harbor Lease)
This Amended and Restated Lease Agreement (Lease Agreement), dated for
reference purposes the 17th day of March, 2014, is entered into by and between the City
of Dubuque, Iowa, a municipal corporation (Lessor) and Dubuque Terminals, Inc., an
Iowa corporation (Lessee).
Whereas, Lessor and Lessee entered into a Lease Agreement dated May 3,
2010 for approximately 6.13 acres near Dove Harbor (the Original Lease Agreement);
and
Whereas, on March 13, 2013 Lessor notified Lessee of a lease rate modification
to address a change in leasable area and a reduction in the lease rate. The notification
followed a revised exhibit showing the new leasable area sent on February 28, 2013;
and
Whereas, on August 5, 2013 Lessor and Gavilon Grain, LLC entered into a
separate lease agreement for approximately 7.87 acres of property adjacent to the
Leased Premises of the Original Lease Agreement; and
Whereas Gavilon Grain, LLC also plans to sublet from Lessee a portion of the
6.13 acres Leased Premises of the Original Lease Agreement; and
Whereas Gavilon Grain, LLC and Lessee have requested that the terms of the
Original Lease Agreement align with the terms of the Gavilon Grain, LLC lease prior to
subletting; and
Whereas in response to the request of Gavilon Grain, LLC, Lessor and Lessee
desire to amend and restate the terms of the Original Lease Agreement .
NOW, THEREFORE, Lessee and Lessor, in consideration of the mutual
covenants and conditions hereinafter set forth, agree that the Original Lease Agreement
is hereby amended and restated as follows:
SECTION 1. DEMISE AND TERM.
1.1. Demise and Term. 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 as follows:
031114 pjw
A part of Lot 3 and unplatted slough in Section 19, Township 89 North,
Range 3 East of the 5th Principle Meridian all in the City of Dubuque,
Dubuque Co., Iowa containing 6.13 acres, more or less, as shown on the
attached Exhibit A, subject to surveying and platting of same
(the Demised Premises), to have and to hold for an initial term commencing as of the 1st
day of February, 2013 (the Commencement Date), and ending at midnight on the 31st
day of August, 2038 (the Term), subject to all of the terms, covenants, conditions and
agreements contained herein. Lease shall not commence until prior lessee has
removed all of their property and debris from the site, and completely relinquished the
site back to the city. The initial dredging to be completed by the city, referred to in
section 6.4 of this agreement, shall also be completed prior to commencement of this
lease.
1.2. Any improvements needed to allow water access to the Demised Premises shall
be at the Lessee's expense, except for the initial dredging to be completed by the city
as per section 6.4 of this agreement. Lessee agrees that Lessee's use of the Demised
Premises shall not interfere with access from Dove Harbor or any other location to the
remainder of the parcel or any other parcel by any other person, as may reasonably be
determined by Lessor.
1.3. Lessor reserves unto itself and for the benefit of tenants of adjacent property a
driveway easement over and across the access easement area, as shown on Exhibit A,
for ingress and egress to adjacent property from and to Kerper Boulevard. Lessee shall
at its expense maintain the driveway in a state of good repair during the Lease Term.
SECTION 2. RENT, TAXES, AND OTHER PAYMENTS.
2.1. Rent.
(1) Lessee shall pay Lessor, in addition to taxes, 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 $40,907 per usable
acre, as shown on Exhibit A (estimated at 2.86 acres), in twelve equal monthly
payments commencing on the 1st day of February, 2013 or on the 1st day of the
first month after initial dredging, pursuant to Section 6.4, whichever is later, and
on the first day of each month thereafter.
(2) Rent described in (1) 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
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no event shall the Rent for any Lease Year be less than the Rent for the
immediately preceding Lease Year. The "CPI Adjustment" shall be a fraction,
expressed as a decimal, the numerator of which shall be the Current CPI minus
the Prior CPI and the denominator of which is the Prior CPI. The "Current CPI" is
the last CPI published preceding the first calendar month of the applicable Lease
Year. The "Prior CPI" is the last CPI published for the first calendar month of the
immediately preceding Lease Year. The term "CPI" shall mean the "Consumer
Price Index for All Urban Consumers (CPI -U)" published by the Bureau of Labor
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.
(3) Notwithstanding the foregoing, if at any time during the Term, Lessor
executes a new lease for any industrial property in the Dove Harbor area to any
other person for industrial use for rent per acre per year less than the amounts in
Section 2.1(1) together with the annual CPI adjustment described above,
Lessee's rent shall be reduced to such lesser amount of rent per acre per year.
This provision shall only apply to the rent per acre per year and shall not include
any other term or provision of such leases.
SECTION 3. TITLE TO IMPROVEMENTS AND TRADE FIXTURES.
3.1. Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean all of
Lessee's personal property located on the Demised Premises used in Lessee's
business. Title to Lessee's trade fixtures (the Trade Fixtures) is and shall be the sole
and exclusive property of Lessee during the term of this Lease and shall remain the sole
and exclusive property of Lessee after the expiration or termination of this Lease, for
whatever reason. Lessor acknowledges and understands that it shall have no right, title
or interest in or to Lessee's Trade Fixtures either during the term of this Lease, or
thereafter (except as hereinafter provided). Lessor acknowledges and agrees that
Lessee shall have the right to encumber, sell, or hypothecate Lessee's Trade Fixtures,
to remove them from the Demised Premises, or to otherwise deal with all or any portion
of such Lessee's Trade Fixtures, at Lessee's sole discretion. Upon ten (10) days' prior
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.
3.2. Improvements.
(1) On delivery of possession of the Demised Premises to Lessee, Lessee
shall not construct any improvements on the Demised Premises without the prior
written consent of Lessor, which consent shall not be unreasonably withheld.
Upon any termination of this Lease, by reason of any cause whatsoever, if any
3
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, all of Lessee's
right, title, and interest therein shall cease and terminate, and title to the
Improvements shall vest in Lessor, and the Improvements or the part thereof
then within the Demised Premises shall be surrendered by Lessee to Lessor. No
further deed or other instrument shall be necessary to confirm the vesting in
Lessor of title to the Improvements. Upon any termination of this Lease, by
reason of any cause whatsoever, if any new Improvements or Improvements
existing at the time of the execution of this Lease or any part thereof shall then
be on the Demised Premises, Lessor may require Lessee at no cost to Lessor to
remove any or all of such Improvements by delivering notice to Lessee not later
than one hundred eighty days (180) prior to the expiration of the Lease, in which
event Lessee shall remove the Improvements within thirty (30) days after the
expiration of this Lease Agreement. Title to all existing and new Improvements is
and shall be at all times vested in Lessor. No further deed or other instrument
shall be necessary to confirm the vesting in Lessor of title to the Improvements.
(2) Lessor agrees to enter into an agreement with Lessee for a 10 -year tax
increment financing rebate of property taxes paid by Lessee for qualified
leasehold improvements completed within the first 5 years of the Lease in the
maximum amount allowed by law.
3.3. Landscaping.
(1) Lessee shall install on the Demised Premises not later than one year after
the commencement of this Lease decorative wrought -iron fencing and a 10 -foot
landscape buffer along all public street frontages with the area within 5 feet on
the outside of such fencing planted in annual flowers and the area within 5 feet
inside the fencing in planted in trees, annual or perennial flowers, shrubs, and
decorative grasses. No fencing or landscaping shall be installed without the prior
approval of Lessor and all such fencing and landscaping shall be maintained by
Lessee at all times to the satisfaction of Lessor.
(2) No other fence shall be installed on the Demised Premises without the
approval of Lessor.
3.4. Flagpoles. Lessee shall construct on the Demised Premises in a location
approved by Lessor not later than one year after the commencement of this Lease not
less than three (3) 35 -foot lighted flag poles, one of which shall display a minimum 5
foot by 8 foot official flag of the City of Dubuque.
3.5. Sidewalks. Lessee shall construct on the Demised Premises along all public
street frontages not later than one year after the commencement of this Lease
sidewalks in accordance with City of Dubuque specifications and of a width of not less
than five (5) feet.
4
3.6. Railroad Extensions. For any railroad tracks existing as of the commencement of
this Lease and in the event Lessee installs any track to serve the Demised Premises,
Lessee shall construct or maintain such track as will permit Lessor or any other Lessee
of Lessor, to connect thereto for the purpose of serving proposed tenants occupying
land in the vicinity of the Demised Premises and the parties hereto acknowledge and
agree that this 3.6 is part of the consideration for this Lease, and Lessee agrees to
cooperate with said parties to make such connections to the track of Lessee. In the
event that Lessor should lease additional property to tenant or tenants requiring
connection to a track serving Lessee's property, Lessee shall be entitled to charge such
tenant making connection to such track a proportionate cost for the track maintenance,
based upon the usage by the tenant of Lessee's track calculated on a per railroad car
basis. Such costs shall be limited to that part of Lessee's track used by such other
tenant or tenants.
SECTION 4. ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST.
4.1. Lessee's Right to Encumber Leasehold Interest. Lessee may encumber by
mortgage, deed of trust or other proper instrument, its leasehold interest and estate in
the Demised Premises, together with all Improvements on the Demised Premises, as
security for any indebtedness of Lessee, provided that no such encumbrance shall
extend beyond the term of this Lease. Lessee shall provide prompt written notice to
Lessor of any such encumbrance together with a copy of such encumbrance. In the
event of any judicial or nonjudicial foreclosure under any mortgage, deed of trust or
other similar instrument made by Lessee covering its leasehold interest in the Demised
Premises, Lessor shall, upon such foreclosure or sale, recognize the purchaser
thereunder as lessee under this Lease, provided such purchaser expressly agrees in
writing to be bound by the terms of this Lease.
4.2. Notice to Holder of Encumbrance; Right of Holder to Cure Lessee's Default. If
Lessee shall encumber its leasehold interest and estate in the Demised Premises and if
Lessee, or the holder of the indebtedness, its successors and/or assigns (the Holder)
secured by the encumbrance shall give notice to Lessor within 30 days thereafter of the
existence of the encumbrance and the address of the Holder, then Lessor shall mail or
deliver to the Holder, at such address, a duplicate copy of all notices in writing which
Lessor may, from time to time, give or serve on Lessee under and pursuant to the terms
and provisions of this Lease. The copies shall be mailed or delivered to the Holder at, or
near as possible to, the same time the notices are given to or served on Lessee. The
Holder may, at its option, at any time before the rights of Lessee shall be terminated as
provided in this Lease, pay any of the rents due under this Lease or pay any taxes and
assessments, or do any other act or thing required of Lessee by the terms of this Lease,
or do any act or thing that may be necessary and proper to be done in the observance
of the covenants and conditions of this Lease or to prevent the termination of this
Lease; provided, however, that the doing of any act or thing requiring possession of the
Demised Premises shall be subject to the further rights of Holder as set forth in 16.2.
All payments so made and all things so done and performed by the Holder shall be
effective to prevent a foreclosure of the rights of Lessee thereunder as the same would
5
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 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.
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SECTION 6. REPAIRS.
6.1. Lessee shall at all times during the term of this Lease, at Lessee's own costs and
expense, keep the Demised Premises and the Improvements thereon, and all
sidewalks, curbs, and all appurtenances to the Demised Premises, in good order,
condition and repair, and in a safe, clean and neat condition, casualties and ordinary
wear and tear excepted. Lessee shall keep the Demised Premises in such condition as
may be required by law and by the terms of the insurance policies furnished pursuant to
this Lease, whether or not such repair shall be interior or exterior, and whether or not
such repair shall be of a structural nature. Upon reasonable notice to Lessee, Lessor
may, at its discretion and at its cost, conduct an annual inspection of the Demised
Premises to determine Lessee's compliance with this Section 6.
6.2. Lessor shall have the right to require Lessee upon written notice to repair or
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. Except as provided in Section 6.4, Lessor shall have no obligation to Lessee for
any maintenance expense of any kind on the Demised Premises or elsewhere,
including but not limited to dredging, public streets, private roads, or railroad tracks.
Lessor agrees to cooperate with Lessee to include Lessee's dredging needs in
contracts entered into by Lessor for dredging as part of Lessor's other operations but
only at Lessee's sole expense.
6.4. Lessor agrees to provide at Lessor's cost a one-time initial dredging to bring the
waterfront area to a minimum navigable water depth of 9 feet at normal pool. Such
dredging shall be completed prior to the Commencement Date. After such initial
dredging, Lessee assumes responsibility for all maintenance dredging. To reduce the
costs of the one-time initial dredging, Lessor will consider a predetermined price per
cubic yard for dredging and disposal from Sunflower Enterprises. The dredged area
shall go from the shoreline at normal pool away from shore until it ties into nine foot
navigable water within the harbor.
SECTION 7. COMPLIANCE WITH LAW.
7.1. During the term of this Lease, Lessee shall comply with all local, state and
federal laws applicable to Lessee's use of the Demised Premises, including but not
limited to the Americans with Disabilities Act and the Smokefree Air Act, Iowa Code
Section 142D.3.
7.2. Lessee shall not commit waste on the Demised Premises except as necessary
for its business purposes including the removal or construction of any buildings and
Improvements on the Demised Premises, and shall be liable for any damages to or
7
destruction of any buildings or Improvements on the Demised Premises resulting from
waste and shall be required to repair or rebuild such buildings or Improvements.
Lessee shall not remove any Improvements on the Demised Premises without the prior
written approval of Lessor.
SECTION 8. ALTERATIONS. Lessee shall not, without Lessor's prior written
consent, which consent shall not be unreasonably withheld, make any alteration,
addition, or modification to any Improvement on the Demised Premises that exceeds
One Hundred Thousand Dollars ($100,000) in cost. Any alteration, addition, or
modification of less than One Hundred Thousand Dollars ($100,000) shall not require
Lessor's consent.
SECTION 9. USE OF DEMISED PREMISES.
9.1. Lessee shall not knowingly use or allow the Demised Premises or any buildings
or Improvements thereon or any appurtenances thereto, to be used or occupied for any
unlawful purpose or in violation of any certificate of occupancy. Lessee shall not suffer
any act to be done or any condition to exist within the Demised Premises or in any
Improvement thereon, or permit any article to be brought therein, which is dangerous,
unless safeguarded as required by law, or which, in law, constitute a nuisance, public or
private, or which may make void or voidable any insurance in force with respect thereto.
9.2. Any vessels or barges docked along the Demised Premises 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.
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 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.
SECTION 10. INSURANCE.
10.1. Lessee shall maintain during the term of this Lease insurance as set forth in the
City's standard Insurance Schedule for Lessees of City Property, as such uniform,
standardized schedule may from time to time be amended. The current Insurance
Schedule is attached to this Lease Agreement as Insurance Schedule A. Lessor shall
provide written notice of any amendment to the Insurance Schedule not less than sixty
days prior to the effective date of such amendment.
10.2. Upon completion of construction of Improvements, Lessee shall maintain, or
cause to be maintained, at its cost and expense (and from time to time at the request of
City shall furnish proof of the payment of premiums on), 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,
8
but any such policy may have a deductible amount of not more than $50,000.00. No
policy of insurance shall be so written that the proceeds thereof will produce less than
the minimum coverage required by the preceding sentence, by reason of co-insurance
provisions or otherwise, without the prior consent thereto in writing by City. The term
"replacement value" shall mean the actual replacement cost of Improvements
(excluding foundation and excavation costs and costs of underground flues, pipes,
drains and other uninsurable items) and equipment, and shall be determined from time
to time at the request of City, but not more frequently than once every three years, and
paid for by Lessee.
10.3. 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 City a certificate or
certificates or binders of the respective insurers stating that such insurance is in force
and effect. Unless otherwise provided in this, each policy shall contain a provision that
the insurer shall not cancel or modify it without giving written notice to Lessee and City
at least thirty (30) days before the cancellation or modification becomes effective.
Lessee shall furnish City evidence satisfactory to City that the policy has been renewed
or replaced by another policy conforming to the provisions of this , or that there is no
necessity therefor under the terms hereof. In lieu of separate policies, Lessee may
maintain a single policy, or blanket or umbrella policies, or a combination thereof, which
provide the total coverage required herein, in which event Lessee shall deposit with City
a certificate or certificates of the respective insurers as to the amount of coverage in
force upon Improvements, provided, however, the specific limit shall not be impaired.
10.4. Lessee agrees to notify City immediately in the case of damage exceeding
$50,000.00 in amount to, or destruction of, Improvements or any portion thereof
resulting from fire or other casualty. Net proceeds of any such insurance (Net
Proceeds), shall be paid directly to Lessee, and Lessee shall forthwith repair,
reconstruct and restore the Improvements to substantially the same or an improved
condition or value as they existed prior to the event causing such damage and, to the
extent necessary to accomplish such repair, reconstruction and restoration, Lessee
shall apply the Net Proceeds of any insurance relating to such damage received by
Lessee to the payment or reimbursement of the costs thereof, subject, however, to the
terms of any mortgage encumbering title to the Property.
10.5. Lessee shall complete the repair, reconstruction and restoration of
Improvements, 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
9
right and authority to enter into this Lease for the full term hereof, and covenants and
agrees that upon paying the rent provided for herein, and upon Lessee's performing the
covenants and agreements of this Lease required to be performed by said Lessee, that
it will have, hold and enjoy quiet possession of the Demised Premises. Lessor warrants
to Lessee that the Demised Premises are properly zoned for the conduct of the
operation of Lessee's business.
11.2. Lessor makes no representations or warranties as to the condition, including
environmental condition, of the Demised Premises and Lessee accepts the Demised
Premises as is.
SECTION 12. LESSEE'S WARRANTIES AND REPRESENTATION.
12.1. Lessee Compliance With Law. Lessee shall comply with all applicable local,
state and federal laws, rules, regulations and permits with regard to the Demised
Premises and its use, occupancy and control of the Demised Premises.
12.2. Environmental Matters.
(1) Lessee covenants and agrees that Lessor shall have no responsibility for
or liability arising from any release of a Hazardous Substance which is caused by
or results from Lessee, Lessee's use, occupancy or control of the Demised
Premises, except for Lessor Hazardous Substances (any Hazardous Substance
which leaches or migrates upon the Demised Premises from any property owned
by Lessor). Notwithstanding any other provision of this Lease, Lessee shall not
have any responsibility for any Hazardous Substance which leaches or migrates
upon the Demised Premises from any adjacent property or any release of a
Hazardous Substances onto the Demised Premises which is caused by Lessor
or other tenants or lessees of Lessor or which pre-exists the date of this Lease,
except as follows: (a) Lessee shall be responsible for known pre-existing
releases for which Lessee fails to take due care and adequate precaution and/or
for which Lessee's actions or inactions cause a worsening of the release, and (b)
Lessee shall provide full cooperation, assistance, and access to Lessor or other
parties investigating and/or responding to a threatened or actual release.
(2) Lessee covenants and agrees to promptly notify Lessor of any release of
Hazardous Substance for which Lessee is responsible under 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
10
required by applicable law. Lessee shall respond to such Release to the full
extent required by applicable law; however, in no event shall Lessee allow
limitations or restrictions to be placed on the Demised Premises without the
written consent of the Lessor.
(4) Except as necessary to conduct its operations and use the Demised
Premises as detailed in Section 1.6 and 1.7, Lessee covenants and agrees to not
manufacture, treat or dispose of Hazardous Substances at the Demised
Premises or allow the manufacture, treatment, or disposal of Hazardous
Substances on the Demised Premises. Lessee shall use and store on the
Demised Premises only those Hazardous Substances as are associated with its
regular business activities, and then only as allowed by applicable law.
(5) For the purposes of this Lease, "Hazardous Substance" or "Hazardous
Substances" means any hazardous or toxic substance, material or waste which
is or becomes regulated by any local government, the State of Iowa or the United
States Government. It includes, without limitation, any material or substance
that is (i) defined as a "hazardous substance" or "hazardous waste" under
Chapter 455B, Iowa Code, (ii) petroleum and petroleum products, (iii) asbestos
containing materials in any form or condition, (iv) designated as a "hazardous
substance" pursuant to 311 of the Federal Water Pollution Control Act (33
U.S.C. § 1321), (v) defined as a "hazardous waste" pursuant to § 1004 of the
Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi)
defined as a "hazardous substance" pursuant to § 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.0 § 9601 et
seq., or (vii) defined as a "regulated substance" pursuant to Subchapter IX, Solid
Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C.
§ 6991 et seq.] The term "Hazardous Substance" shall not include any air
emissions discharged into the atmosphere as allowed by a duly issued permit
from the applicable governmental agency.
SECTION 13. INDEMNIFICATION.
13.1. Indemnification of Lessee. To the extent allowed by law, Lessor will defend,
indemnify and save harmless Lessee from and against all liabilities, obligations, claims,
damages, penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted
against Lessee by reason of (a) any accident, injury to or death of persons or loss of or
damage to property occurring on or about the Demised Premises and resulting from any
act or omission of Lessor, (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. In case any action, suit or proceeding is
brought against Lessee by reason of such occurrence, Lessor will, at Lessor expense
and discretion, either defend such action, suit or proceeding, or cause the same to be
defended by counsel approved by Lessee, which approval will not be unreasonably
withheld.
11
13.2. Indemnification of Lessor. Lessee will defend, indemnify and save harmless
Lessor from and against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted against Lessor by reason of (a) any
accident, injury to or death of persons or loss of or damage to property occurring on or
about the Demised Premises during the term of this Lease and resulting from any
negligence of Lessee or anyone claiming by, through or under Lessee during the term
of the Lease and (b) any failure on the part of Lessee to perform or comply in any
material respect with any of the material terms of this Lease, and (c) any material
breach on the part of Lessee of any warranty or representation contained in Section 12.
In case any action, suit or proceeding is brought against Lessor by reason of such
occurrence, Lessee will, at Lessee's expense and discretion, either defend such action,
suit or proceeding, or cause the same to be defended by counsel approved by Lessor,
which approval will not be unreasonably withheld.
13.3. Survival. The obligations and liabilities under this Section shall survive and
continue in full force and effect and shall not be terminated, discharged or released, in
whole or in part, irrespective of the termination or expiration of the term of this Lease.
SECTION 14. CONDEMNATION.
14.1. Entire Condemnation. If at any time during the term of this Lease all or
substantially all of the Demised Premises or the Improvements thereon shall be taken in
the exercise of the power of eminent domain by any sovereign, municipality or other
public or private authority, then this Lease shall terminate on the date of vesting of title
in such taking and any prepaid rent shall be apportioned as of said date. Substantially
all of the Demised Premises and the Improvements thereon shall be deemed to have
been taken if the remaining portion of the Demised Premises shall not be of sufficient
size to permit Lessee, in Lessee's sole discretion, to operate its business thereon in a
manner similar to that prior to such taking.
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, 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.
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(1) If less than all or substantially all of the Demised Premises or the
Improvements thereon shall be taken in the exercise of the power of eminent
domain by any sovereign, municipality or other public or private authority, then
Lessee, at its option, may elect to continue this Lease in full force and effect or
terminate this Lease. If Lessee shall elect to maintain this Lease in full force and
effect, the award for such partial condemnation shall be allocated as provided in
14.2, and Lessee shall proceed with reasonable diligence to carry out any
necessary repair and restoration so that the remaining Improvements and
appurtenances shall constitute a complete structural unit or units which can be
operated on an economically feasible basis under the provisions of this Lease.
In the event Lessee elects to continue this Lease in full force and effect after a
partial condemnation, the Rent shall be reduced in proportion to the area of the
Demised Premises taken.
(2) Should Lessee elect to terminate this Lease upon a partial condemnation,
Lessee shall provide Lessor with written notice of such election within thirty (30)
days after the date of vesting of title for such taking. Lessee shall specify in such
written notice the date on which this Lease shall terminate, which date shall be
not less than 60 days nor more than 360 days after delivery of such notice to
Lessor (the Termination Date). In the event Lessee terminates this Lease, as
provided for in this Section 14.3, Lessee shall be entitled to the entire award for
such partial taking.
14.4 Temporary Taking. If the temporary use of the whole or any part of the Demised
Premises or the Improvements thereon or the appurtenances thereto shall be taken at
any time during the term of this Lease in the exercise of the power of eminent domain
by any sovereign, municipality, or other authority, the term of this Lease shall not be
reduced or affected in any way, and Lessee shall continue to pay in full the rent,
additional rent and other sum or sums of money and charges herein reserved and
provided to be paid by Lessee, and the entire award for such temporary taking shall be
paid to Lessee. Lessee shall repair and restore any and all damage to the Demised
Premises and the Improvements as soon as reasonably practicable after such
temporary taking.
SECTION 15. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned
by Lessee without the prior written consent of Lessor, which consent shall not be
unreasonably withheld, provided said third party agrees to comply with the terms and
conditions of this Lease. Lessee may sublet parts of the Demised Premises without the
prior consent of Lessor provided Lessee's subtenants agree to comply with the
applicable terms and conditions of this Lease, and provided further that Lessee shall
remain responsible to Lessor for the terms and conditions of this Lease.
SECTION 16. DEFAULT.
16.1 Lessor's Rights in the Event of Lessee's Default. If Lessee shall fail or neglect to
observe, keep or perform any of the covenants, terms or conditions contained in this
Lease on its part to be observed, kept or performed, and the default shall continue for a
13
period of thirty (30) days after written notice from Lessor setting forth the nature of
Lessee's default (it being intended that in connection with a default not susceptible of
being cured with diligence within thirty (30) days, the time within which Lessee has to
cure the same shall be extended for such period as may be necessary to complete the
same with all due diligence, but in no event longer than ninety (90) days), then and in
any such event, Lessor shall have the right at its option, on written notice to Lessee, to
terminate this Lease. Lessor shall thereafter have the right to enter and take possession
of the Demised Premises with process of law and to remove all personal property from
the Demised Premises and all persons occupying the Demised Premises and to use all
necessary force therefor and in all respects to take the actual, full and exclusive
possession of the Demised Premises and every part of the Demised Premises as of
Lessor's original estate, without incurring any liability to Lessee or to any persons
occupying or using the Demised Premises for any damage caused or sustained by
reason of such entry on the Demised Premises or the removal of persons or property
from the Demised Premises.
16.2. Rights of Holder of Encumbrance in Event Lessee Defaults. If Lessee fails or
neglects to observe, keep or perform any of the covenants, terms or conditions
contained in this Lease on its part to be observed, kept or performed, the Holder of any
indebtedness secured by an encumbrance on the leasehold estate under this Lease
shall have thirty (30) days after receipt of written notice from Lessor setting forth the
nature of Lessee's default and a reasonable time thereafter if it shall have commenced
foreclosure or other appropriate proceedings in the nature thereof within such thirty (30)
days and is diligently prosecuting such proceedings, but in no event longer than ninety
(90) days, within which to endeavor to make good or remove the default or cause for
termination of the Lease. All right of Lessor to terminate this Lease on the failure or
neglect of Lessee to observe, keep and perform the covenants, terms and conditions of
this Lease is, and shall continue to be, at all times prior to payment in full of the
indebtedness to the Holder of Lessee, subject to and conditioned on Lessor's having
first given the Holder written notice thereof and the Holder having failed to cause the
default or cause for termination to be made good or removed within thirty (30) days after
receiving written notice of default or cause for termination or within a reasonable time
thereafter if it shall have commenced foreclosure or other appropriate proceedings in
the nature of foreclosure within such thirty (30) days and is diligently prosecuting such
proceedings, but in no event longer than ninety (90) days. In the event that the Lease is
terminated due to the Lessee's bankruptcy, insolvency or other proceedings, and in the
event the Holder has complied with the terms of this Section 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
14
being cured with diligence within thirty (30) days, the time within which Lessor has to
cure the same shall be extended for such period as may be necessary to complete the
same with all due diligence, but in no event longer than ninety (90) days), then and in
any such event, Lessee shall have all rights available to it provided by law or equity. If
Lessor's default shall render the Demised Premises of no operational use to Lessee,
and the default shall continue for a period of thirty (30) days after written notice from
Lessee setting forth the nature of Lessor's default, then Lessee shall have no further
obligation for the payment of rent, taxes, or wharfage or for the provision of Products to
Lessor, and Lessee may terminate this Lease Agreement and remove all Trade Fixtures
and Improvements subject to Section 3.2.
SECTION 17. RIGHT TO CURE OTHER'S DEFAULTS. Whenever and as often as
a party shall fail or neglect to comply with and perform any term, covenant, condition or
agreement to be complied with or performed by such party hereunder, then, following
thirty (30) days' prior written notice to such defaulting party (or such additional time to
cure as may be accorded Lessee pursuant to 16.1 above, but in no event longer than
ninety (90) days), the other party, at such other party's option, in addition to all other
remedies available to such other party, may perform or cause to be performed such
work, labor, services, acts or things, and take such other steps, including entry onto the
Demised Premises and the Improvements thereon, as such other party may deem
advisable, to comply with and perform any such term, covenant, condition or agreement
which is in default, in which event such defaulting party shall reimburse such other party
upon demand, and from time to time, for all costs and expenses suffered or incurred by
such other party in so complying with or performing such term, covenant, condition or
agreement. The commencement of any work or the taking of any other steps or
performance of any other act by such other party pursuant to the immediately preceding
sentence shall not be deemed to obligate such other party to complete the curing of any
term, covenant, condition or agreement which is in default.
SECTION 18. QUIET ENJOYMENT. Lessor covenants that at all times during the
term of this Lease, so long as Lessee is not in default hereunder, Lessee's quiet
enjoyment of the Demised Premises or any part thereof shall not be disturbed by any
act of Lessor, or of anyone acting by, through or under Lessor. Notwithstanding the
foregoing, Lessor shall have the right upon reasonably 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
15
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. Lessee's Trade Fixtures, personal property
and other belongings of Lessee or of any sublessee or other occupant of space in the
Demised Premises shall be and remain the property of Lessee, and Lessee shall have a
reasonable time after the expiration of the term of this Lease (not to exceed thirty (30)
days) to remove the same.
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.
16
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:
TO LESSEE:
City of Dubuque, Iowa
City Manager
City Hall
50 West 13th Street
Dubuque IA 52001
Fax 319 589-4149
Dubuque Terminals, Inc.
Carter Newt
5 Jones Street
Dubuque IA 52001
23.2. The address and/or fax number to which any notice, demand or other writing may
be given or made or sent to any party as above provided may be changed by written
notice given by the party as above provided.
SECTION 24. MISCELLANEOUS.
24.1. Time of the Essence. Time is of the essence of this Lease and all of its
provisions.
24.2. Governing Law. It is agreed that this Lease shall be governed by, construed and
enforced in accordance with the laws of the State of Iowa.
24.3. Paragraph Headings. The titles to the paragraphs of this Lease are solely for the
convenience of the parties and shall not be used to explain, modify, simplify or aid in the
interpretation of the provisions of this Lease.
24.4. Modification of Agreement. Any modification of this Lease or additional
obligation assumed by either party in connection with this Lease shall be binding only if
evidenced in a writing signed by each party or an authorized representative of each
party.
24.5. Parties Bound. This Lease shall be binding on and shall inure to the benefit of
and shall apply to the respective successors and assigns of Lessor and Lessee. All
references in this Lease to "Lessor" or "Lessee" shall be deemed to refer to and include
successors and assigns of Lessor or Lessee without specific mention of such
successors or assigns.
17
24.6. Force Maieure. In the event that either party hereto shall be delayed or hindered
in or prevented from the performance of any act required hereunder by reason of
strikes, lockouts, labor troubles, unavailability of construction materials, unavailability or
excessive price of fuel, power failure, riots, insurrection, war, terrorist activities,
explosions, hazardous conditions, fire, flood, weather or acts of God, or by reason of
any other cause beyond the exclusive and reasonable control of the party delayed in
performing work or doing acts required under the terms of this Lease (collectively Force
Majeure), then performance of such act shall be excused for the period of the delay and
the period for the performance of any such act shall be extended for a period equivalent
to the period of such delay.
SECTION 25. DISMISSAL OF LAWSUIT AND RELEASE. Lessee shall at the time
of execution of this Lease deliver to Lessor a dismissal of the appeal in GARY NEWT.
and KAREN NEWT, NEWT MARINE, INC., DUBUQUE BARGE & FLEETING
SERVICE, INC. d/b/a NEWT MARINE and DUBUQUE TERMINALS, INC. v. THE CITY
OF DUBUQUE, IOWA, together with a release approved as to form by Lessor by the
Plaintiffs in such action of all claims against the City of Dubuque, its officers and
employees, arising out of the rezoning of Plaintiffs South Port properties and the
expiration of Plaintiffs' leases of City property in the South Port.
SECTION 26. SALE OF PRODUCTS TO LESSOR. Lessee agrees that Lessor will
not be charged more than Lessee's other customers for the same products provided by
Lessee to its other customers. For purposes of this Section 28, Lessee shall make
available to City upon request its books of record and account which show the price or
fee charged to its customers. If Lessor discovers that a customer of Lessee is being
charged a lower price or fee for the same product, Lessee shall reduce its price or fee to
Lessor to the same price or fee being charged to such other customer and shall rebate
the difference charged to Lessor for such products together with a surcharge of 25% of
the amount of such overcharges for overcharges during the preceding 12 months.
LESSOR:
CITY OF DU -1 QUE, IOWA
By:
Roy D. ol, Mayor
Attest:
Ke in S. Firnstahl, City Clerk
18
LESSEE:
DUBUQUE TERMINALS, INC.
By:
G. Newt, President
LIMITED POWER OF ATTORNEY
Gary Newt, residing at 17840 US Route 20 West, East Dubuque, Illinois 61025, the
undersigned, do hereby appoint Carter Newt, of 17391 US Route 20 West, East Dubuque,
Illinois 61025, as my attorney-in-fact ("Agent") to exercise the following powers, making
him my attorney-in-fact to enter into binding contracts on my behalf, and to sign all
documents necessary for:
1. Operation of Dubuque Terminals, Inc., including, but not limited to borrowing
money and pledging property for security, both real and personal, from Dubuque
Bank and Trust Company.
Operation of Dubuque Barge and Fleeting Service Company, including, but not
limited to borrowing money and pledging, property for security, both real and
personal, from Dubuque Bank and Tnist Company.
3. Operation, maintenance or borrowing money, from Dubuque Bank and Trust
Company, for any farm land I own.
I hereby revoke the General Power of Attorney I signed April 5, 2012.
Dated this 30 day of April, 2012.
STATE OF e.,0
)ss
COUNTY OF i.C? :( Com. )
The foregoing instrument was acknowledged before me by Gary Newt, this 3)
day of April 2012.
Gary Newt
,v
i otary Public
My commission expires: 1-3 -()%3
SHEILA M, MCCARTY
Commission Numbv 74Q231
My Comm €a9. 4/-3 20/,
19
EXHIBIT A
THE DEMISED PREMISES
20
EXHIBIT A
wvO'w
.r.k..es
�n w.�;.�•"` K Usable Acreage Area « Non -Usable Acreage Area
Access Easement Area
Feet DUB
0 75 150 300 450 600
Ma 'tea ibehlu wyr.
21
INSURANCE SCHEDULE
22
City of Dubuque Insurance Requirements for Tenants and Lessees of City
Property or Vendors (Suppliers, Service Providers)
1.
Insurance Schedule A
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 COI annually. Each Certificate shall be prepared on the most current ACORD 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 shall be with a carrier authorized to do business in Iowa and
all carriers shall have a rating of A or better in the current A.M. Best's Rating Guide.
3. Each Certificate shall be furnished to the contracting department of the City of Dubuque.
4. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of
Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of
this agreement.
5. All required endorsements to various policies shall be attached to Certificate of insurance.
6. Whenever a specific ISO form is listed, an equivalent form may be substituted subject to the provider
identifying and listing in writing all deviations and exclusions that differ from the ISO form.
7. Provider shall be required to carry the minimum coverage/limits, or greater if required by law or other
legal agreement, in Exhibit I.
8. Whenever an ISO form is referenced the current edition of the form must be used.
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City of Dubuque Insurance Requirements for Tenants and Lessees of City
Property or Vendors (Suppliers, Service Providers)
Insurance Schedule A (continued)
Exhibit I
A) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit 52,000,000
Products -Completed Operations Aggregate Limit 51,000,000
Personal and Advertising Injury Limit 51,000,000
Each Occurrence 51,000,000
Fire Damage Limit {any one occurrence) 5 50,000
Medical Payments 5 5,000
a) Coverage shall be written on an occurrence, not claims made, form. All deviations from the
standard ISO commercial general liability form CG 0001, or Business owners form BP 0002,
shall be clearly identified.
b) Include 150 endorsement form CG 25 04 "Designated Location(s) General Aggregate Limit."
c) Include endorsement indicating that coverage is primary and non-contributory.
d) Include endorsement to preserve Governmental Immunity. (Sample attached).
e) Include an endorsement that deletes any fellow employee exclusion.
f) Include additional insured endorsement for:
The City of Dubuque, including all its elected and appointed officials, all its employees
and volunteers, all its boards, commissions and/or authorities and their board members,
employees and volunteers. Use ISO form CG 20 10. Ongoing operations.
g) If vendor utilizes Trikkes or Segways in the conduct of business, include an endorsement
reflecting that these vehicles are not excluded from Commercial General Liability coverage.
B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory benefits covering all employees 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
Policy Limit -Disease 5500,000
Policy shall include an endorsement providing a waiver of subrogation to the City of Dubuque.
Longshoreman and Harbor Workers Compensation Act Coverage
Pavel of 4 Schedule A Prnnertv Or Vendnrc (SunnIi rs Servile Prnvidercl Anril 7011 Onr
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City of Dubuque Insurance Requirements for Tenants and Lessees of City
Property or Vendors (Suppliers, Service Providers)
Preservation of Governmental Immunities Endorsement
1. Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and states that the
purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does
not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa
under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time.
2. Claims Coverage. The insurance carrier further agrees that this policy of insurance shall cover only
those claims not subject to the defense of governmental immunity under the Code of Iowa Section
670.4 as it now exists and as it may be amended from time to time. Those claims not subject to
Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any
defense of governmental immunity, and may do so at any time and shall do so upon the timely
written request of the insurance carrier.
4. Non -Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the
insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa
under this policy for reasons of governmental immunity unless and until a court of competent
jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of
Dubuque, Iowa.
No Other Change in Policy. The above preservation of governmental immunities shall not otherwise
change or alter the coverage available under the policy.
SPECIMEN
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