Hodge Company Lease Agreement_Hearing 2016 Copyright 2014
City of Dubuque Public Hearings # 2.
ITEM TITLE: Hodge Company Lease Agreement
SUMMARY: Proof of publication on notice of public hearing to consider
approval of a riverfront lease agreement with Hodge
Company to lease 8.89 acres on Purina Drive and the City
Manager recommending approval.
RESOLUTION Approving the Disposal of an Interest in
Real Property Owned by the City of Dubuque by Lease
Between the City of Dubuque, Iowa and Hodge Company
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt
Resolution(s)
ATTACHMENTS:
Description Type
Hodge Company Lease Agreement-MVM Memo City Manager Memo
Staff Memo Staff Memo
Resolution Resolutions
Hodge Company Lease Agreement Supporting Documentation
Map Supporting Documentation
THE CITY OF Dubuque
U E I
erica .i
Masterpiece on the Mississippi 2007-2012-2013
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Lease Agreement for Hodge Company
DATE: June 14, 2016
Currently Hodge Transit Warehouse leases 8.72 acres of City owned property located
at 1111 Purina Drive. The current lease is set to expire on October 31, 2018. The
terms of the current active lease are:
a. This lease started in 1969 with a five year term and the option to renew for nine
additional periods of five years each (50 years total).
b. The rent was based on $500 an acre, and beginning in 1973 the rent was
compounded annually at (1 %) percent per year.
c. In November 2015 Hodge paid $6,418.86 for the upcoming year's rent.
In the past several years City Attorney Barry Lindahl and City staff have been
negotiating new market rate leases of City owned industrial properties along the
Mississippi River.
Project Manager Steve Brown recommends City Council approval of the Lease
Agreement between the City of Dubuque and Hodge Company. The key elements of
the Lease Agreement are:
1. The term of the lease is 25 years beginning on November 1, 2018 and ending on
October 31, 2043.
2. The area of the site that is usable is 8.89 acres. The initial annual lease rent rate
is set at $40,906.00 per usable acre for 8.47 acres, however a Consumer Price
Index adjustment in years 2016, 2017, 2018 will be applied before the 2018 rent
payment is calculated. Rent will also be paid at $20,453.00 per acre for .42 acres
for the area marked as Easement B on Exhibit A which can be used by the City
for roadway purposes and provides access to the flood levee.
3. Per the terms of this agreement Hodge Company will pay the City upon
execution of the lease $1,000.00 per month commencing on the 1st day of April,
2016, and on the first day of each month thereafter until November 1, 2018, the
last payment being due October 1, 2018.
4. Hodge will be responsible for property taxes and all other fees.
5. All property maintenance costs will be the responsibility of Hodge Company.
When the lease expires in 2043 all of the improvements (buildings) located on
the lease site will become property of the City.
In FY17 and FY18 lease revenues will increase $12,000 per year annually as a result of
this agreement. Starting in FY19 annual lease revenues will increase by $355,064.00.
In the 1960's the City Dock Commission had leased much of the City's industrial
riverfront to businesses using 50 year leases to spur economic development. Those
leases have been expiring. In Fiscal Year 2008, the City received $139,000 in revenue
from these industrial riverfront leases. In those prior leases, the City had responsibility
for paying the property taxes on the land and dredging so the businesses had access to
the river. In other words, the cost to the City outweighed the revenues.
With the execution of this lease with Hodge Company, the City will receive $2,188,000
in lease revenues in Fiscal Year 2019 for the industrial riverfront. This does not include
wharfage fees, which in Fiscal Year 2016 was $112,000. The City also no longer has
responsibility for property tax payments or dredging. Since Hodge does not use river
access, there is no wharfage or dredging.
Other tenants in the industrial riverfront are Dubuque Terminals (Newt), Flint Hills
Resources, Pine Bend LLC and Gavilon Grain.
This lease is consistent with other actions the City has taken in the industrial riverfront.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Miclfael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Steve Sampson Brown, Project Manager
Gus Psihoyos, City Engineer
2
THE CITY OF Dubuque
DUB E AR_Ame;ca CRY
Masterpiece on the Mississippi 2007.2012.20,.;
TO: Michael C. Van Milligen, City Manager
FROM: Steve Sampson Brown, Project Manager
SUBJECT: Lease Agreement for Hodge Company
DATE: June 10, 2016
INTRODUCTION
The enclosed resolution is in reference to the public hearing for the Lease Agreement
between the City of Dubuque and Hodge Company.
BACKGROUND
Currently Hodge Transit Warehouse leases 8.72 acres of City owned property located
at 1111 Purina Drive (also known as the 12th Street Peninsula). The current lease is set
to expire in October 31, 2018. The terms of the currently active lease are:
(a) This lease started in 1969 with a five year term and the option to renew for
nine additional periods of five years each (50 years total).
(b) The rent was based on $500 an acre, and beginning in 1973 the rent was
compounded annually at (1%) percent per year.
(c) In November 2015 Hodge paid $6,418.86 for the upcoming year's rent.
DISCUSSION
Over the past few several years the City has been promoting new market rate leases of
City owned properties along the Mississippi River for industrial uses. Recent new
market rate leases in the 12th Peninsula area include Dubuque Terminals Dove Harbor
2013, Gavilon Grain Salt Site in 2013, Gavilon Grain Dove Harbor 2013, and Flint Hills
Resources 2014 (see attached map).
In the attached lease, Hodge Company is proposing to lease 8.89 acres. The key
elements of this proposed lease agreement include the following:
1. The term of the lease is 25 years beginning on November 1, 2018 and ending on
October 31, 2043.
Page 1 of 2
2. The area of the site that is usable is 8.89 acres. The initial annual lease rent rate
is set at $40,906.00 per usable acre for 8.47 acres, however a Consumer Price
Index adjustment in years 2016, 2017, 2018 will be applied before the 2018 rent
payment is calculated. Rent will also be paid at $20,453.00 per acre for .42
acres for the area marked as Easement B on Exhibit A which can be used by the
City for roadway purposes and provides access to the flood levee.
3. Per the terms of this agreement Hodge Company will pay the City upon
execution of the lease $1 ,000.00 per month commencing on the 1 st day of April,
2016, and on the first day of each month thereafter until November 1 , 2018, the
last payment being due October 1 , 2018.
4. Hodge will be responsible for property taxes and all other fees (including but not
limited to storm water fees).
5. All property maintenance costs will be the responsibility of Hodge Company.
When the lease expires in 2043 all of the improvements (buildings) located on
the lease site will become property of the City.
Additional terms and conditions of the lease are included within the attached Lease
Agreement.
RECOMMENDATION
I recommend that the City Council approve the Lease Agreement between the City of
Dubuque and Hodge Company through the adoption of the enclosed resolution.
BUDGETIMPACT
In FY17 and FY18 lease revenues will increase $12,000 per year annually as a result of
this agreement. Starting in FY19 annual lease revenues will increase by $355,064.00.
ACTION TO BE TAKEN
I recommend that the City Council approve the Lease Agreement between the City of
Dubuque and Hodge Company through the adoption of the enclosed resolution.
cc: Barry Lindahl, City Attorney
Jenny Larson, Budget Director
Gus Psihoyos, City Engineer
Jean Nachtman, Finance Director
Encs.
K:\SBrown\Leases\Hodge Transit Warehouse Co\Correspon den ce\Council\Memo to MVM 06.06.2016-Public Hearing Memo-to approve Lease.docx
Page 2 of 2
RESOLUTION NO. 249-16
APPROVING THE DISPOSAL OF AN INTEREST IN REAL PROPERTY OWNED BY
THE CITY OF DUBUQUE BY LEASE BETWEEN THE CITY OF DUBUQUE, IOWA
AND HODGE COMPANY
Whereas, the City of Dubuque, Iowa is the owner of the real property legally
described as follows:
Lot 2 of Lot 10 and part of Lot 11 of Block 4 in Riverfront Sub. No. 2 in the
City of Dubuque, Iowa (approximately 8.89 acres in total)
; and
Whereas, Hodge Company desires to lease a part of the property as shown on
Exhibit A for industrial uses, storage and warehousing and other business activities
upon the terms set forth in a Lease Agreement which is on file at the office of the City
Clerk, City Hall 13th and Central Avenue, Dubuque, Iowa; and
Whereas, City and Hodge Company have agreed to the Lease Agreement, which
among other things, provides for a term through October 31, 2043; and
WHEREAS, on June 20, 2016, the City Council pursuant to notice published as
required by law held a public hearing on its intent to dispose of the foregoing interest in
real property and overruled all objections thereto;
Whereas, the City Council believes it is in the best interest of the City of Dubuque
to approve the Lease Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The Lease Agreement between the City and Hodge Company is
hereby approved; and
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 20th day of June, 201
Attest:
Kevin S(�iFnstahl City6rk
1
Roy D. Buol, Mayor
PREPARED BY: IIW. P.C. 4155 PENNSYLVANIA AVE DUBUQUE. IOWA (563) 555-2464
LEASE AREA EXHIBIT -
HODGE COMPANY
LOT 2 OF LOT 10 AND PART OF LOT 11 OF BLOCK 4 IN RIVERFRONT SUB.
NO. 2 IN THE, CITY OF DUBUQUE, IOWA
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LOT 2-10w + TOTAL AREA: 8.89 ACRES
BLOCK 4 611
RIVERFRONT SUB. NO. 2
OR
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LEASE BOUNDARY
LINE
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UTILITY EASEMENT ' 0 FOUND 1" IRON PIPE
- - - ® FOUND MAG NAIL
- ® FOUND CONCRETE MONUMENT
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30'.X 811' EASEMENT " FOUND CUT "X"
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FOR ROAD PURPOSES: -_
- - - NOTE
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_ EASEMENTS, RESERVATIONS,
Yo RESTRICTIONS AND RIGHTS—OF—WAY
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INT'aI'. SOLUTIONS
DRAWN BMR PLAT NO, 34-IA-13
CHECKED CLC IPROJ,NO.13006-05
DATE 5-11-16 SHEET 1 of 1
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Prepared by: Barry A. Lindahl, Esq. 330 Main Street, Suite 300 Dubuque IA 52001 563 583-4113
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
HODGE COMPANY
This Lease Agreement (the Lease) dated for reference purposes this �i �`' day
of . ; , 2016, between the City of Dubuque, Iowa, an Iowa municipal corporation
(L-ssor), and Hodge Company, an Iowa Corporation (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 shown on Exhibit A, attached hereto, legally described as follows:
Lot 2 of Lot 10 and part of Lot 11 of Block 4 in Riverfront Sub. No. 2 in the
City of Dubuque, Iowa
together with any and all easements and appurtenances thereto and subject to any
easements and restrictions of record (the Demised Premises), to have and to hold for an
initial term commencing as of the 1st day of November, 2018, and ending at midnight on
the 31st day of October, 2043 (the Term), subject to all of the terms, covenants, conditions
and agreements contained herein.
1.2 Turbine Easement; Floodwall Access.
(1) In the event Lessor elects to construct a river water current turbine on or
adjacent to the Demised Premises, Lessee agrees to grant Lessor access to the
easement as shown on Exhibit A (the Turbine Easement) for the construction and
operation of such turbine and associated equipment and transmission lines.
(2) Lessee may allow its employees to park vehicles on Easement B, as shown
on Exhibit A. Lessee agrees to remove all such vehicles upon not less than twenty-
four (24) hours notice to Lessee for such emergency access to the levee and
floodwall as Lessor determines necessary for emergency operations and
maintenance of the levee and floodwall. In the event Lessor's emergency
operations or maintenance exceed seventy-two hours, Lessor will adjust the rent
accordingly for any period of use in excess of 72 hours.
1.3 Upon commencement of the Term of this Lease, all prior leases between Lessor
and Lessee for the Demised Premises or any part thereof shall terminate.
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
052416ba1
Premises shall not be used for any of the following uses:
Slaughterhouses or stockyards;
Manufacture or processing of the following materials: ammonia or chlorine;
Manufacture of acid, lime or lime products, and detergent;
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
following purposes and no others without the prior written consent of Lessor, which
consent shall not be unreasonably withheld: Storage, warehousing, and manufacturing,
subject to Section 9.1. However, under no circumstances shall Lessor be required to
consent to the following uses:
Slaughterhouses or stockyards;
Manufacture or processing of the following materials: ammonia or chlorine;
Manufacture of acid, lime or lime products, and detergent;
Sanitary landfills;
Sewage treatment plants;
Crematoriums; reduction plants; foundries, forges or smelters; and junk yards,
salvage yards.
1.6 Lessee agrees to pay to Lessor upon execution of this Lease by Lessee, in order
for the right to enter into this Lease, $1,000.00 per month commencing on the 1st day of
April, 2016, and on the first day of each month thereafter until November 1, 2018, the last
such payment being due October 1, 2018.
SECTION 2. RENT, TAXES, AND OTHER PAYMENTS
2.1 Rent.
(1) Lessee shall pay Lessor at its Finance Department City Hall, 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 twelve equal monthly payments
commencing on the 1st day of November 2018, and on the first day of each month
as follows thereafter:
(a) $40,906.00/acre x 8.47 acres of the Demised Premises (which excludes
0.42 acres for Easement B, adjusted by the CPI Adjustment for 2016, 2017
and 2018 calculated in the same manner as rent for each succeeding year
of the Term in accordance with Section 2.1(2); plus.
(b) $20,453.00/acre x 0.42 acres for Easement B;
2
For a total of $355,064.08.
(2) Rent Adjustment.
(a) The Rent described in Section 2.1 for each year of the Term,
beginning on the first anniversary date of the first Term and continuing on
each subsequent anniversary date thereof, shall be determined by
multiplying the Rent and in effect immediately prior to the applicable
anniversary date of the Term by the CPI Adjustment (as hereinafter defined)
and then adding the resulting product, if positive (CPI Increase), to the Rent
in affect immediately prior to the applicable anniversary date of the Term;
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 year be
less than the Rent for the immediately preceding year.
(b) 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, or 3%, whichever amount is less.
The "Current CPI" is the latest CPI published prior to the anniversary date
of the lease term. The "Prior CPI" is the CPI published in the immediately
preceding calendar year for the same month as the Current CPI.
(c) The term "CPI" shall mean the "Consumer Price Index for All Urban
Consumers (CPI -U)" published by the Bureau of Labor Statistics of the U.S.
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.
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 located on the Demised Premises used in Lessee's business and all
structures above ground, including tanks and loading racks, and excepting,
railroad spurs and buildings located on the Demised Premises.
(2) 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
3
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. Lessee shall remove its Trade Fixtures within thirty (30) days after the
expiration of this Lease Agreement.
3.2 Improvements.
(1) Improvements on the Demised Premises as of the commencement date of
this Lease are the following: warehouse buildings as shown on Exhibit B. During
the Term of this Lease, title to such Improvements is and shall remain in Lessee.
Lessee shall keep such Improvements in good order, condition and repair as
required by this Lease. Lessee shall not remove, alter or demolish such
Improvements without the consent of Lessor.
(2) On delivery of possession of the Demised Premises to Lessee, Lessee shall
not construct any material Improvements on the Demised Premises without the
prior written consent of Lessor, which consent shall not be unreasonably withheld.
(3) Upon 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. Upon termination of this
Lease by reason of any cause whatsoever, title to all existing and new
Improvements shall vest in Lessor. No further deed or other instrument shall be
necessary to confirm the vesting in Lessor of title to the Improvements.
(4) At the time of construction of any new material Improvements on the
Demised Premises, Lessee shall consider the following, but final plans for new
material Improvements will be mutually agreed upon by the Lessor and Lessee:
• LEED certification;
Alternative energy sources such as solar, or wind -powered; or
• Any other sustainable design elements with the prior written approval
of Lessor.
(5) Upon request of Lessor, Lessee shall provide Lessor with information
satisfactory to Lessor showing that the improvements in Section 3.2(4) have been
4
completed.
3.3 Landscaping. No 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, which official flag Lessor shall provide to
Lessee.
SECTION 4. ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST
4.1. Lessee's Right to Encumber Leasehold Interest. Lessee may encumber by
mortgage, deed of trust or other proper instrument, its leasehold interest and estate in
the Demised Premises, together with all 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 non -judicial foreclosure under any mortgage, deed of trust or other
similar instrument made by Lessee covering its leasehold interest in the Demised
Premises, Lessor shall, upon such foreclosure or sale, recognize the purchaser
thereunder as lessee under this Lease, provided such purchaser expressly agrees in
writing to be bound by the terms of this Lease.
4.2. Notice to Holder of Encumbrance; Right of Holder to Cure Lessee's Default. If
Lessee shall encumber its leasehold interest and estate in the Demised Premises and if
Lessee, or the holder of the indebtedness, its successors and/or assigns (the Holder)
secured by the encumbrance shall give notice to Lessor within 30 days thereafter of the
existence of the encumbrance and the address of the Holder, then Lessor shall mail or
deliver to the Holder, at such address, a duplicate copy of all notices in writing which
Lessor may, from time to time, give or serve on Lessee under and pursuant to the terms
and provisions of this Lease. The copies shall be mailed or delivered to the Holder at, or
near as possible to, the same time the notices are given to or served on Lessee. The
Holder may, at its option, at any time before the rights of Lessee shall be terminated as
provided in this Lease, pay any of the rents due under this Lease or pay any taxes and
assessments, or do any other act or thing required of Lessee by the terms of this Lease,
or do any act or thing that may be necessary and proper to be done in the observance of
the covenants and conditions of this Lease or to prevent the termination of this Lease;
provided, however, that the doing of any act or thing requiring possession of the Demised
Premises shall be subject to the further rights of Holder as set forth in 16.2. All payments
so made and all things so done and performed by the Holder shall be effective to prevent
a foreclosure of the rights of Lessee thereunder as the same would have been if done
and performed by Lessee.
SECTION 5. TAXES.
5
5.1. Lessee agrees to pay as additional rent an amount equal to real estate taxes upon
the real estate of the Demised Premises that become payable during the term hereof and
which would become delinquent if not so paid during the term hereof. Lessee shall further
provide to Lessor official receipts of the appropriate taxing authority or other evidence
satisfactory to Lessor evidencing payment thereof.
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.
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 Tess 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 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, casualties and ordinary wear and tear excepted and to a condition 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
6
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 including legal fees on the Demised Premises, including but not limited to, private
roads, parking areas, utility connections or buildings.
6.4. Lessor shall have no obligation to Lessee for any maintenance expense of any
kind including but not limited to dredging of any kind necessary to serve the Demised
Premises.
SECTION 7. COMPLIANCE WITH LAW.
7.1. During the term of this Lease, Lessee shall comply with all local, state and federal
laws applicable to Lessee's use of the Demised Premises, including but not limited to the
Americans with Disabilities Act and the Iowa Smoke Free Air Act.
7.2. Lessee shall not commit waste on the Demised Premises except as necessary for
its business purposes including the removal or construction of any buildings and
Improvements on the Demised Premises, and shall be liable for any damages to or
destruction of any buildings or Improvements on the Demised Premises resulting from
waste and shall be required to repair or rebuild such buildings or Improvements. Lessee
shall not remove any Improvements on the Demised Premises except as allowed
pursuant to this Lease. All trash, garbage and refuse of any kind shall be promptly
removed from the Demised Premises by Lessee.
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 ($100,000.00) in cost. Any alteration, addition, or modification of less
than One Hundred Thousand Dollars ($100,000.00) 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,
7
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. Lessee acknowledges that there is a U.S. Army Corps of Engineers Clear Zone of
20' from the flood levee that must be free from all storage or construction, and Lessee
agrees to comply with such free zone requirement at all times. That 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:
picnic tables and benches.
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 Lessee shall maintain, or cause to be maintained, at its cost and expense (and
from time to time at the request of City shall furnish proof of insurance as follows:
Property insurance against loss and/or damage to Improvements under an
insurance policy written on the Special Perils Form in an amount not less than the
full insurable replacement value of Improvements, but any such policy may have
a deductible amount of not more than $50,000.00. No policy of insurance shall be
so written that the proceeds thereof will produce less than the minimum coverage
required by the preceding sentence, by reason of co-insurance provisions or
otherwise, without the prior consent thereto in writing by City. The term
"replacement value" shall mean the actual replacement cost of Improvements
(excluding foundation and excavation costs and costs of underground flues, pipes,
drains and other uninsurable items) and equipment, and shall be determined from
time to time at the request of City, but not more frequently than once every three
years, and paid for by Lessee.
10.3 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. 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
8
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, Trade Fixtures or buildings or any portion
thereof resulting from fire or other casualty. Net proceeds of any such insurance (Net
Proceeds), shall be paid directly to Lessee, and Lessee shall forthwith repair, reconstruct
and restore the Trade Fixtures or buildings to substantially the same or an improved
condition or value as they existed prior to the event causing such damage and, to the
extent necessary to accomplish such repair, reconstruction and restoration, or remove
such Trade Fixtures or buildings. Lessee shall apply the Net Proceeds of any insurance
relating to such damage received by Lessee to the payment or reimbursement of the
costs thereof, subject, however, to the terms of any mortgage encumbering title to the
Property.
10.5 Lessee shall complete the repair, reconstruction and restoration of any railroad
spur, docks, or dolphins, whether or not the Net Proceeds of insurance received by
Lessee for such purposes are sufficient.
SECTION 11. LESSOR'S WARR ANTIES 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 WARR ANTIES 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
9
leaches or migrates upon the Demised Premises from any property owned by
Lessor). Notwithstanding any other provision of this Lease, Lessee shall not have
any responsibility for any Hazardous Substance which leaches or migrates upon
the Demised Premises from any adjacent property or any release of a Hazardous
Substances which is caused by Lessor or which pre-exists the date of this Lease,
except as follows: (a) Lessee shall be responsible for known pre- existing releases
for which Lessee fails to take due care and adequate precaution and/or for which
Lessee's actions or inactions cause a worsening of the release, and (b) Lessee
shall provide full cooperation, assistance, and access to Lessor or other parties
investigating and/or responding to a threatened or actual release.
(2) Lessee covenants and agrees to promptly notify Lessor of any release of
Hazardous Substance for which Lessee is responsible under this Section 12.2(1)
that exceeds permitted levels as defined by any local, state or federal laws
applicable to Lessee's use of the Demised Premises originating after the effective
date of this Lease ("Release") in, on or about the Demised Premises of which
Lessee suspects or has actual knowledge.
(3) Lessee covenants and agrees to promptly take any and all necessary and
appropriate response to fully address any Release following the advance notice to
Lessor required in Section 12.2(2) above. Such response shall include, without
limitation, notification to appropriate governmental authorities, as may be required
by applicable law. Lessee shall respond to such Release to the full extent required
by applicable law; however, in no event shall Lessee allow limitations or restrictions
to be placed on the Demised Premises without the written consent of the Lessor.
(4) Except as necessary to conduct its operations and use the Demised
Premises as detailed in Section 1.6 and 1.7, Lessee covenants and agrees to not
manufacture, treat or dispose of Hazardous Substances at the Demised Premises
or allow the manufacture, treatment, or disposal of Hazardous Substances on the
Demised Premises. Lessee shall use and store on the Demised Premises only
those Hazardous Substances as are associated with its regular business activities,
and then only as allowed by applicable law.
(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)
10
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.
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
11
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 except to the extent Lessee had constructed those Improvements
during a prior leasehold, and all other sums not directly attributable to the value of
the Land constituting the Demised Premises;
(2) To Lessee, the entire award except that portion allocated to Lessor above.
14.3. Partial Condemnation.
(1) If less than all or substantially all of the Demised Premises or the
Improvements thereon shall be taken in the exercise of the power of eminent
domain by any sovereign, municipality or other public or private authority, then
Lessee, at its option, may elect to continue this Lease in full force and effect or
terminate this Lease. If Lessee shall elect to maintain this Lease in full force and
effect, the award for such partial condemnation shall be allocated as provided in
14.2, and Lessee shall proceed with reasonable diligence to carry out any
necessary repair and restoration so that the remaining Improvements and
appurtenances shall constitute a complete structural unit or units which can be
operated on an economically feasible basis under the provisions of this Lease. In
the event Lessee elects to continue this Lease in full force and effect after a partial
condemnation, the Rent shall be reduced in proportion to the value of the area of
the Demised Premises taken.
(2) Should Lessee elect to terminate this Lease upon a partial condemnation,
Lessee shall provide Lessor with written notice of such election within thirty (30)
days after the date of vesting of title for such taking. Lessee shall specify in such
written notice the date on which this Lease shall terminate, which date shall be not
less than 60 days nor more than 360 days after delivery of such notice to Lessor
(the Termination Date). In the event Lessee terminates this Lease, as provided for
in this 13.3, 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
12
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, in which event and subject to the terms of such assignment being
satisfactory to Lessor in its sole discretion, Lessor shall relieve Lessee from further
obligations under this Lease. Lessee may sublet parts of the Demised Premises without
the prior consent of Lessor provided Lessee's subtenants agree to comply with the
applicable terms and conditions of this Lease, and provided further that Lessee shall
remain responsible to Lessor for the terms and conditions of this Lease.
SECTION 16. DEFAULT.
16.1. Lessor's Rights in the Event of Lessee's Default. If Lessee shall fail or neglect to
observe, keep or perform any of the covenants, terms or conditions contained in this
Lease on its part to be observed, kept or performed, and the default shall continue for a
period of thirty (30) days after written notice from Lessor setting forth the nature of
Lessee's default (it being intended that in connection with a default not susceptible of
being cured with diligence within thirty (30) days, the time within which Lessee has to cure
the same shall be extended for such period as may be necessary to complete the same
with all due diligence, but in no event longer than ninety (90) days), then and in any such
event, Lessor shall have the right at its option, on written notice to Lessee, to terminate
this Lease. 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
13
prosecuting such proceedings, but in no event longer than ninety (90) days, within which
to endeavor to make good or remove the default or cause for termination of the Lease.
All right of Lessor to terminate this Lease on the failure or neglect of Lessee to observe,
keep and perform the covenants, terms and conditions of this Lease is, and shall continue
to be, at all times prior to payment in full of the indebtedness to the Holder of Lessee,
subject to and conditioned on Lessor's having first given the Holder written notice thereof
and the Holder having failed to cause the default or cause for termination to be made
good or removed within thirty (30) days after receiving written notice of default or cause
for termination or within a reasonable time thereafter if it shall have commenced
foreclosure or other appropriate proceedings in the nature of foreclosure within such thirty
(30) days and is diligently prosecuting such proceedings, but in no event longer than
ninety (90) days. In the event that the Lease is terminated due to the Lessee's bankruptcy,
insolvency or other proceedings, and in the event the Holder has complied with the terms
of this 16.2, then Lessor at Holder's option, shall enter into a new lease with Holder or the
successful bidder at foreclosure on the same terms as this Lease, for the term then
remaining, and specifically preserving all unexercised options.
16.3 Lessee's Rights in the Event of Lessor's Default. If Lessor shall fail or neglect to
observe, keep or perform any of the covenants, terms or conditions contained in this
Lease on its part to be observed, kept or performed, and the default shall continue for a
period of thirty (30) days after written notice from Lessee setting forth the nature of
Lessor's default (it being intended that in connection with a default not susceptible of
being cured with diligence within thirty (30) days, the time within which Lessor has to cure
the same shall be extended for such period as may be necessary to complete the same
with all due diligence, but in no event longer than ninety (90) days), then and in any such
event, Lessee shall have all rights available to it provided by law or equity. If Lessor's
default shall render the Demised Premises of no operational use to Lessee, and the
default shall continue for a period of thirty (30) days after written notice from Lessee
setting forth the nature of Lessor's default, then Lessee shall have no further obligation
for the payment of rent, taxes, or wharfage or for the provision of Products to 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
14
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 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
15
erected or maintained on the Demised Premises at the time of the surrender, or for the
contents thereof or appurtenances thereto. That notwithstanding, in accordance with
Section 3.2 of this Lease, Lessee may remove any Improvements within thirty (30) days
of termination of the Lease. Lessee's Trade Fixtures, personal property and other
belongings of Lessee or of any sublessee or other occupant of space in the Demised
Premises shall be and remain the property of Lessee, and Lessee shall, except for
Lessor's default, within thirty (30) days after the expiration of the Term of this Lease
remove the same, and shall pay pro -rated rent for each day it remains on the Demised
Premises, and in the event Lessee shall fail to do so, Lessor may cause the Trade
Fixtures to be removed and Lessee agrees pay Lessor for the costs of removal within
thirty (30) days of receipt of a statement therefore from Lessor.
SECTION 22. MEMORANDUM OF LEASE. Each of the parties hereto will, promptly
upon request of the other, execute a memorandum of this Lease in a form suitable for
recording setting forth the names of the parties hereto and the term of this Lease,
identifying the Demised Premises, and also including such other clauses therein as either
party may desire, except the amounts of Basic Rent payable hereunder.
SECTION 23. NOTICES.
23.1. All notices, demands or other writings in this Lease provided to be given or made
or sent, or which may be given or made or sent, by either party to the other, shall be
deemed to have been fully given or made or sent when made in writing and deposited in
the United States mail, registered and postage prepaid, and by facsimile addressed as
follows:
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 13thStreet
Dubuque IA 52001
TO LESSEE: Hodge Company
Attn: Tim Hodge
7465 Chavenelle Road
Dubuque, IA 52002-9664
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.
16
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:
CITY OF DUBUQUE, IOWA
By:
Roy D. Bq� , Mayor
Attest:
Kevin 18. Firnstahl, Cyt
Clerk
17
LESSEE:
HODGE COMPANY
EXHIBIT A
PLAT
18
PREPARED BY: IIW,P.C. 4155 PENNSYLVANIA AVE DUBVCUE.IOWA (363)556-2464
LEASE AREA EXHIBIT - A
HODGE COMPANY
LOT 2 OF LOT 10 AND PART OF LOT 11 OF BLOCK 4 IN RIVERFRONT SUB.
NO. 2 IN THE. CITY OF DUBUQUE, IOWA
( '
OW)
�b
a �p
I.
a
_Q
Z GRAPHIC SCALE
0 100 200
o, a
rn
- 'Z a 1" = 100'
DRAWING MAY HAVE BEEN REDUCED
it
0"
A.
N
TOTAL AREA: 8.89 ACRES
LOT 2-:10 •I
BLOCK 4
RITONT SUB. NO. .. I
' LEGEND
LEASE BOUNDARY
—LOT LINE
EXISTING EASEMENT
+ ( } RECORDED AS
■ FOUND 5/8" IRON REBAR WITH
20' 'x 900' TURBINE AND PLASTIC CAP & NO. AS NOTED
U111-11Y EASEMENT 0 FOUND 1" IRON PIPE
® FOUND MAG NAIL
O FOUND CONCRETE MONUMENT
30'. X 611' EASEMENT "F.3" I ® FOUND CUT "X"
FOR, FCAD PURPOSES I ROW RIGHT OF WAY
3 NOTE
�p THIS SURVEY IS SUBJECT TO
! 4 EASEMENTS, RESERVATIONS,
✓� �."7 RESTRICTIONS AND RIGHTS-OF-WAY
OF RECORD AND NOT OF RECORD.
- 22'18'42"W 340.82`
— _ '- ----- IHr3alremeRlMEc%wnar6
RAWN BNR PUT NO. 34-IA-13
NECKED CLC PROJ.N0.13008-08
t ATE 5-11-18 SHEET I of I
' •\ll\O{bfAA-®\11006-[B DM1M3\9JPYElVkY16-Cfi
3
INSURANCE SCHEDULE A
20
City of Dulmque Insurance Requirements for Tenants and Lessees of City Property or
Vendors(Suppliers,Service Providers),or Right of Way Permit Holders
Insurance Schedule A
1. _sbadfuimish a sigmtiCertificate of inssir arse(CZ)to the City ot Dubuque,Ivmf or
the coverage required in ExhOxt I prior to cowaact or lease commencement-AH lezee—,of,,—r-y propeny
and Right of f'l'ay permit Holders shall sutmk.an updated C01 annually.Each Certificate shall be prepared
on-4ie most current AGGRO form appraved"The Department c Ind;TaKe or an eTjivatent.Each
cern ,ate shall include a slaterneat uryuef Descflptiort of Ow,atiom ato MY Issued.ft FrOect
#_or Lease of premises at or construction of or right of way
permitted Location mJ de5cription
2
— All pofiries of insurance req Lrted hereunder shall be vvith a carrier=Wuzed to 0 business in Iowa aid
all ccarrfers shall hzve a rating of A or better in the.current A.M.Best's Rating GLAde.
3, Each Cerfificaw shalt be furnisl,.ed to the torwracting deparzrner-t of the city of Oubuque-
4, Failu-Te to pro videminim-urn cove—rage shall not be deemed a wai-,�'zr of 2,*se requiremen:4 by the,City of
v'%h4u
,e. failure to obtain or mawtalm the required insurance shaU be ccTosidlered a material breach of
tris agreement,
5. All required endo senivits to vac jous po-!Icles snail be attached to Certificate of insurance.
6, whene'ver a SpecM,ISO form is ft,"d,an equivalent form may be substftted subject to the pr6oder
identifyingand listing in%witing ail deviations and.ex.clauons,that,differtom the IS form-
7, Provider,hat be reqp.�re4 to carry he Mirdmurn towage/lim-Its,or joeate"if reqLAnd by law or Other
legal agreem&nz,in Exhibit 1,
Whenver an ISO form is refer emed the current edition of the form mLst be used. 11providerst1w.itsof
Ilabiliny are hleer than the required minimum l4mft then e p,,rcvjders limits sba,41 be this agreement
rewired limmits.
Page I of,3 Schedule A Property Cr Vendors March X16
21
City of DuNique Insurance Requirements for Tenants and Lessees of City Property or
Vendors(Suppiflers,Service Providers),or Right of Way Peniiit Holders
Inswancg Schedule A cont raved
Exhibit I
Al KD1U'vJ—ER-1rML-QQ1WL1WIWU
GeneralAggregatel.irnit 5:211,000,000
Pr*�w4-Cnxrp1ff.edOPer Agzrigate Unft 51,000,000
Personal and Ad�wzising Inlipy Limit 511000"Wo
EachCccwence S1,00Qow
Fire Damage Umit Jany one occurrence! S so coo
W, dical Paymervz S 5.6w
a) Coverage Iha,;l be ViritTen en an occurrence,not slain-as made,form.The genfal liability
coverage shall be wrften in accord with W form CGOWI or business owners form BP 's.
All de,A3'dom from the standard ISO commercial general habirlity fQwCGON011,or Businew
ovirners form BP 0002,shati be dearly ideriffied..
b) I n c t cdt ISO e n domem-e n t farm CG 2 5 04'Devgna te d Lo cat ion(s)Neral eral Ag,gregalt trait:"
r-) Insft de endo r se.rre nt indicating that cwe r-a g e is prKmar}and n a wcorrtf*utot N,,.
d) Include enforst-went to preservt f-wernn-wental lmtrAj"itV,,(Samok mtt�,edj,
e) Include an that deletes any 10ow em. ployce exclusion.
t) Include adcritional las ed endm-serrient fcr.
The City of Dutwqtm,including all Its elected and appointed officials,&H its employees
and volunteers,all its boards,commissions andjor authorWes and tbeir board members,
el-iploVees ar4 VVjunteem unt 1form CG 20 10(ongmingera mnns)or its
ecuWafent
g) If vendorutivizes TrUes orSegways in the conduct of business,irclude an endorsement
rel ecting that there vehides are mot excluded from.Conwercial GemerV Liability der e,
B) _WQ"ERY COMPENSATION&EMPLOYERS LIABILITY
StawtcrY tenefits cc�ermg a,1 emplo-yees ined on The job by accident ox disease as Prescribed-by
Fcnva Code Chapter 85 as amended.
Coverage A statuton'—Rate of 10"va
Coverage 6 Enrplcye-,Liability
Each Accident S100,wo
Each Employee-D5ease $10010W
F0h'cV Unt-Disease $5w.cw
P 014 cpy steal,inn Lde a,n end or sernt nz providing a wahee r of vfo mg,a*,i tm to the Cityof Dub�4ue
Q C werage req u'red:
i —2Lflo
Poflution Liablity cv.,erage shall be required if lessee has any poRLtlon expesure-5 inducfinz
abatement of hazard us,or contaminated materials includiri,ka notfurked to,petroleum prod=s,
the removal o,{`earl.wsbesws,or PCWs.PoDutionprodixt and complete.operations coverage sih M
also be covered,
5'2'c"'000 each occvf ferce
54, ky W, rega
a) Policy to Made premises and transportation coverage.
b) ;ndude additional Insured asstate d.in At above.
c) Include preservation of gwernmemal Immunity as stated in Ad ab vv.
chi Provide evidence ctf coverage for 5 years after cournpletion of pas t
Page 2 of 3 edvjle A Prc;VerTg Or Vendors Mardi'Bins
22
City of Dubuque Insurance Reqtilrernents for Tenants and Lessees of City Property or
Vendors(Suppliers,Service Providers),or Right of Way Permit Holders
Preservation of Governmental Immunitie-s Endorsement
i- ±1gl1w�Lv The Insurance carries expressly agrees and states that the
per::.h i,,e of Ois policy and theoc-jdtagof the C4 of Dubuque,fovia as an Additional Invire-cl des
not, vaive any cf the defenses of governmental irnrnunfty available to the City of Dubuque,lowa
under Ode of krvva 3ect:7-on 670.4 as it is no exists and as it may be amended from tine to time.
lames rv.4r2Vt.,The Insuraryze carrier further agrees that this policy of inswance sha?,11 cover only
thase clwm,,not subject to the defenseof govemrnentaimmunity under the Code C,,f lova Section
670-4&1 it,now exiSts and as it May be amended from time to time,Those dalms riot subjed to
Code of Ionva Section 670.4 shall be covered by,the terms and conclitiorts of this insurance p3iicy-
AssertioK,o
yr,,jj�ij)L.The City of Dubuque,Iowa shall bee res on,s,,,bL-for asserting any
defense:J governmental ir—rfnLnity,3nd may do scat anytime and shall d3 so,upon the timely
written request of the insurance car6er.
4. Non-Denial of eovr The insurance carder shall not Berry coverage under Siris policy and the
insurance carrier shall not deny any of the rights and benefits accrumg to the Cityof CK;buque,loova,
under this policy fior reason,,of governmental imrnurlty ur'ess and until a co-urt of competent
jurisdiction has neled in favor of the defenseis)of governmiental Immunity asserted by the CRY of
DL—A�uque,;:owa.
IND Other w,-Polia.The abvve preservation of governmental immunit.'es shall got otherwisse
chargee or alter the coverage available Ln.der the policy.
SPECIMEN
Page 3 of 3 Schedule A pr =en Cr Vendors March 201,56
23
4 Lease`
at Co rov
Gavilon - Salt Site
Start Date: 9/1/2013
Freebird II - Lease 3 _ :' End Date: 8/31/2038
Start Date: 12/1/2002 n- Annual Rent: $250,933.66
End Date: 11/30/2022 i'� Wharfage: $13,890.02
Annual Rent: $57,999.96
Wharfage: $0
�a Hodge Transit Warehouse
Start Date:4/28/1969
PDRIHp DR' End Date: 10/31/2018
-,\ New End Date: 10/31/2043
Annual Rent: $6,355.31
j New Annual Rent: $386,349.17
Wharfage: $0
Gavilon - Dove Harbor
Start Date: 9/1/2013 "- ROCH CT
End Date: 8/31/2038
Annual Rent: $511,047.82
Wharfage: $56,704.89
���,.� Flint Hills Resources Pine Bend, LLC
Dubuque Terminals, Inc - Dove Harbor Start Date: 4/1/2014
End Date: 3/31/2027
Start Date: 2/1/2013
End Date: 8/31/2038 Annual Rent: $649,999.92
Wharfage: $27,937.63
Annual Rent: $117,362.75
Wharfage: $0
�Q.
—o, Freebird II - Lease
+'— c Start Date: 12/1/1971
F�'LI rr End Date: 11/30/2021
` Annual Rent: $6,792.00
. '.� Wharfage: $22,167.81 COMMERCIAOST0
N
STpR.BREWERY D
H9Pro e ase A reemen6V 016ARive Leas
Dale QM
M
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: June 10, 2016, and for which the charge is $57.40.
Subscribed to before m:y otary Public in and for Dubuque County, Iowa,
,20 //
this /D VJ day of
No'.'ry Public in and for Dubuquedr
o ty, Iowa.
MARY K. WESTERMEYER
Commission Number 154885
My Comm. Exp, FEB, '1, 2017
CITY OF DUBUQUE,
IOWA,
OFFICIAL NOTICE
NOTICE OF A PUBLIC
HEARING OF THE
CITY COUNCIL OF
THE CITY OF DUBU-
QUE, IOWA, ON THE
INTENT TO DISPOSE
OF AN INTEREST IN
THE REAL PROPERTY
OWNED BY THE CITY
OF DUBUQUE BY
LEASE BETWEEN THE
CITY^'::'OF`' DUBUQUE,
JOWA ANP , HODGE
COMPANY LEGALLY;
DESCRIBEDAS:
Lot 2 of Lot 10 and
part of Lot ll of Block 4
in Riverfront Sub. No. 2
in the City of Dubuque,
Iowa as shown on the
attached Exhibit A (ap-
'pro)dmately 8.89 acres
in total)
NOTICE 1S HEREBY l
GIVEN: The City Coun-
cil of. the City of Dubu-
que, 'Iowa will hold a
public hearing on the
20th day of. June, 2016,
at S:30 p.m.;at,the His-
toricFederal Building,
Council,Chambers ?I
(second 'floor), 350 'I
West 6th Street,Dubu'
que Iowa at which
n'ieeti, g the City Cburr ..
tionmop the disposal of.
an 'Interest ;in real' j
property owned by the
City of Dubuque by
lease between the City
of Dubuque, Iowa and
Hodge Company, for
industrial uses, storage
and warehousing, and i
other business activi-
ties upon the terms set
forth in a Lease Agree-
ment, which is on file
at the office of the City
Clerk, City Hall, 50 W
13th Street, Dubuque,
Iowa. Said proposed
plans, specifications,
form of contract and
estimated cost are now
on file in the office of
the City Clerk. At said
-.hearing any interested
person may appear
and file objections
thereto.
At the meeting, the
City Council ' will re-
ceive oral and written
objections from Tany
resident or property
owner of said City to
the above action. After, and warehousing, and
all objections have other business active 1
been received and con- ties upon the terms set
sidered, the City Coun- forth in a Lease Agree-
cil may at this meeting t mentwhich is on file at '',
or at any adjournment' the" Office t Hall, ` CW.
thereof, take additional t1 Clerk,
City Dubuque,
50 W.
action on the proposal Iowa; and Street,
to enter, into the Lease Whereas,' City and
Agreement. By order of
the City Council said Hodge Company have
hearing;, and' appeals tentatively. agreed 'to
therefrom shall be the Lease Agreement,
in accOrdancejwith and which among other
governed by the provi- I things, provides for a
sions of Chapter 364.7 term through October
of the Code of Iowa. 31, 2043; and;
Any. visual or hearing- Whereas, the City ;1
impaired , persons Council believes it is in
needing; special assis- the best interest of the
tance orpersons,with City of Dubuque to ap-
special ` ` accessibility prove the Lease Agree -
needs should contact merit,
NOWTHEREFORE,
the, City. Clerk's office ' BE IT RESOLVED E,
at (5 t (. 589-412069-:78or THE CITY COUNCIL
BY
TDD, le (563)at;iurs 678 OF'THE CITY OF DU
-
toleast e priornours"B UE, IOWA:
to the meeting: . ` � . Seection 1. The City of
Published by order. of
the City Council given Dubuque intends to
on the 6thr day of June, dispose of its interest
2016." in the foregoing -
Kevin S. Firnstahl, described real property
CMC," City;Clerk by Lease Agreement
RESOLUTION between City and
NO 225-16 - Hodge Company; and
1 INTENT TO DISPOSE ` Section 2. The City..
OF AN INTEREST IN Clerk is hereby author
REAL`- ,-.PROPERTY ized and directed to
OWNED BY THE CITY cause this Resolution
OF DUBUQUE BY and a notice to be pub
LEASE' BETWEEN THF lished as prescribed by
CITY OF DUBUQUE, Iowa Code Section
IOWA AND HODGE 364.7 of a public hear
COMPANY- ing on the City's intent
Whereas, the City of to dispose of the fore -
Dubuque, Iowa (City) is J,going-described real
the owner of the real property by Lease
property legally descri- Agreement, to be held
bed as-followson the 20th day of
Lot—2 of Lot'10 and June, 2016, at 6:30
part of Lot 11 of Block 4 o'clock p.m. at the His -
in Riverfront Sub. No.2 toric Federal Building,
in the City of Dubuque, Council Chambers, 350
Iowa as shown on the W. 6th Street, Dubu-
, attached Exhibit A (ap- que, Iowa.
proximately 8.89 acres Passed, approved and
in total); and adopted this 6th dajirlof
Whereas, Hodge Com- June, 2016.
pany desires to lease a j Ric W. Jones,
part of the property as Mayor Pro -Tem
shown' on Exhibit A at- Attest Kevin S.
tached hereto, for in- Firnstahl, City Clerk
dustrial uses, storage lt 6/10