HomeMy WebLinkAboutASPRO - Profit a Prendre Agreement (Riverview Recreation Area) - 5/15/2023 Prepared by Christopher S.Wendland,P.O.Box 596,Waterloo,IA 50704. (319)234-5701
PROFIT A PRENDRE AGREEMENT
This Agreement is entered into as of January 1, 2023,by and between the City of
Waterloo, Iowa("City") and Aspro, Inc., an Iowa corporation("Aspro").
RECITALS
WHEREAS, City owns certain property commonly known as the Riverview Recreation
Area, which has plentiful minerals upon it; and
WHEREAS, City has a need to develop those areas as part of the Riverview Recreation
Area; and
WHEREAS, Aspro is willing and able to mine stone, sand, gravel and overburden from
the areas owned by City and, at the same time, meet the needs of the City.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein, and for other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the parties agree as follows:
1. Subject Areas. The subject of this Agreement is two areas in the Riverview
Recreation Area as shown on attached Exhibit"A" (the "Premises").
2. Grant of Rights. In consideration of the sum of Five Thousand Dollars
($5,000.00), which sum is to be considered advance royalty and shall be deducted from the first
sales made until the royalty account is balanced, and on and subject to the terms and conditions
provided in this Agreement, City hereby grants to Aspro all stone, sand, gravel and overburden
in, on and under the Premises, and the exclusive right to sample, drill and test for, develop, mine,
quarry, extract,process, sell and remove them during the term of this Agreement.
3. Term and Request to Renew. The term of this Agreement shall begin on January
1, 2023 and end December 31, 2033. Aspro may request to renew this Agreement for an
additional 10-year term by delivering to City written notice of its intent no later than November
1, 2033. The decision to renew this Agreement shall be at the sole discretion of City. However,
City shall not unreasonably withhold its consent.
4. Payments. On the first day of each month, Aspro shall pay royalties to City for all
material sold from the Premises at the rate of five percent(5%) of Aspro's average net selling
price until the expiration or termination of this Agreement,whichever may occur first. The term
"average net selling price" as used in this paragraph shall mean Aspro's weighted average unit
selling price, F.O.B. its plant, per ton of material mined, quarried or extracted and sold and
removed from the Premises and for all overburden sold and removed from the Premises by
Aspro after deducting therefrom its reasonable transportation charges, discount and sales returns
and allowances.
For each calendar year of this Agreement, there shall be a minimum annual
royalty of Five Thousand Dollars ($5,000.00) for all material sold from the Premises. On or
before February 15 of the succeeding year, Aspro shall determine if the minimum royalty has
been satisfied for the prior year. Any difference owned City shall be paid by Aspro on or before
March 1 of that succeeding year.
Aspro shall furnish to the City an accurate written statement of all quantities of
material sold from the Premises during each calendar month. Royalty payments shall be made
within twenty(20) days after the close of each month, or interest shall accrue at the rate of one
and one-half percent(1'V2%)per month. City shall have the right at all reasonable times to
examine Aspro's sales records relating to any material sold from the Premises during the
Agreement term in order to verify the amount of stone, sand, gravel or overburden removed and
sold from the Premises. City shall have the further right to measure and calculate all stone, sand,
gravel or overburden mined from the Premises, which shall be conducted at any reasonable time.
5. Operations. Aspro's operations on the Premises shall be conducted in a
workmanlike and commercially reasonable manner, in compliance with all applicable laws,
ordinances,rules and regulations,but at times and in a manner to be determined by Aspro in its
reasonable discretion. Aspro shall have the right to install, construct, operate,maintain,
dismantle and remove all plants, dredges, machinery, equipment, improvements and other
facilities, including without limitation any roads,rail lines,pipelines, power lines, telephone
lines,water courses, dams, ponds, and stockpile areas on the Premises and any right-of-way
included therein. Aspro shall have the right, during the term of this Agreement and without
further payments to City(unless the same is sold), to strip and remove overburden on and from
the Premises, and otherwise to use the occupy the Premises all as reasonably required in
connection with mining, quarrying extracting, processing, storage, sale and the removal of stone,
sand, and gravel in, on, under or from the Premises. If Aspro removes any material from the
Premises for purposes of stockpiling it elsewhere, it shall report to City in writing the quantities
and types of material so moved. Sale of any material stockpiled off-site shall be subject to the
payment of royalties and related reporting as provided in Section 4.
6. Liabilities. Aspro assumes any and all liability which may arise as a result of this
Agreement and/or its mining, extracting, storage, processing, quarrying, storage, or removal of
stone, sand, gravel, and other minerals on the Premises. Aspro shall name City as an additional
insured for any and all liabilities which may arise out of its presence on the Premises as well as
this Agreement,and to that end shall maintain a minimum of Three Million Dollars
($3,000,000.00) for said liability coverage. A certificate of insurance shall be furnished to City
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on an annual basis, and said insurance may not be canceled without at least thirty(30) days' prior
written notice to City of said intent. In the event the insurance required by the Agreement is
canceled, City, at its sole discretion, may immediately terminate this Agreement without any
liability whatsoever, and Aspro shall be liable to City of any and all amounts it owes up to the
date this Agreement is terminated.
7. Indemnification. Aspro agrees to indemnify, defend and hold harmless City, its
officials, officers, employees and agents, from and against any and all claims, demands, causes
of action, fines, fees, penalties, costs, damages and liabilities of any type or nature whatsoever,
including but not limited to reasonable attorneys' fees and expenses, whether sounding in tort,
contract or otherwise, in law or in equity, arising from or in any way connected with the acts or
omissions of Aspro, its officers, employees or agents, in or upon the Premises or other parts of
the Riverview Recreation Area.
8. Ownership. City represents and warrants that it has good and marketable title to
the Premises and to its stone, sand and gravel and the unrestricted right to enter into and fully
perform this Agreement, and that Aspro shall have the undisturbed enjoyment of its rights in and
to the Premises provided for in this Agreement. In the event that the Premises become subject to
a mortgage or other lien, Aspro shall have the right,but shall not be obligated, to make for the
account of City such payments as are necessary to discharge the mortgage or lien, or
alternatively to prevent or remedy default in respect thereof, and the amounts of any such
payments shall be applied to reduce any payments which Aspro is or thereafter becomes
obligated to make to City under this Agreement. City will promptly notify Aspro of any default
under and action to foreclosure any such mortgage or lien.
9. Termination. City shall have the right at its sole option to terminate this
Agreement upon sixty(60) days' advance written notice to Aspro if Aspro fails to perform any
of its obligations hereunder and such failure continues for a period of sixty(60) days after
written notice by City to Aspro specifying the failure. If through no fault of Aspro such failure is
impractical to correct within the 60-day cure period, City and Aspro shall meet to determine
appropriate further action. If City is satisfied that Aspro in good faith and with due diligence is
attempting to correct such failure, City may at its sole option choose not to terminate this
Agreement.
Aspro shall have the right to terminate this Agreement by giving sixty(60) days'
advance written notice either(a) after the 5-year anniversary of the date of this Agreement, or(b)
when Aspro determines in its sole judgment that the deposit is depleted of all salable stone, sand,
or gravel in, on or under the Premises.
10. End of Term. Upon expiration or termination of this Agreement, Aspro shall
dismantle and remove plants, machinery, equipment, improvements and other facilities installed
or constructed on the Premises by Aspro. If Aspro desires to sell any stockpiled materials after
expiration or termination, it shall remove such materials from the Premises within 30 days after
termination or expiration and shall pay to City a royalty as set forth in Section 4.
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11. Notices. All notices required under this Agreement and payments to City shall be
made by ordinary mail or personally delivered to the respective parties at their respective
addresses as set forth below or to another address as later requested in writing by a party.
For Aspro:
Aspro, Inc.
Attn: President
3613 Texas Street, P.O. Box 2620, Waterloo, IA 50704
Telephone number(319) 232-6537
For City:
City of Waterloo
Attn: Mayor, with copy to City Attorney
715 Mulberry Street, Waterloo, IA 50703
Telephone number(319) 291-4301
12. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors. This Agreement may not be assigned by Aspro
without the prior written consent of City.
13. Waiver of Lateral Support. City hereby confirms and agrees that Aspro has the
right to mine, quarry and extract stone, sand, gravel and overburden through and across all
common property lines between the Premises and other properties owned by City, and City
waives any and all rights of lateral support with respect to the other properties owned by City
insofar as such support may be affected by Aspro's operations.
14. Entire Agreement. This Agreement contains the entire agreement between the
parties and it nor any part of it may be changed, altered, modified or limited orally or by any
agreement between the parties unless such agreement is expressed in writing, signed and
acknowledged by the parties. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Profit a Prendre Agreement by
their duly authorized representatives, effective as of the date first written above.
ASPRO, INC. CITY OF WATERLOO, IOWA
444
By: By:Y
om k60eYri- Quentin Hart, Mayor
Title: b
Attest: 1/Leib jede,a-
Kelley Felile, City Clerk
[acknowledgments on next page]
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STATE OF IOWA )
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aJL Nr\Ca.,a� COUNTY)
Acknowledged before me on uN , ,9 3 , 2023 by
as (� ,�,z (�o, � of Aspro, Inc.
9 CHRISTY JOHNSON ,. . \ S,o�
AlkT COMMISSION NO.764029
* MY COMMISSION EXPIRES Notary Publi
lowA JULY 29I,2025
STATE OF IOWA )
) ss:
BLACK HAWK COUNTY )
Acknowledged before me oulEnt at, , 2023 by Quentin Hart and Kelley
Felchle as Mayor and City Clerk, respectively, of the City of Waterloo, Iowa.
OP5'"SF BRITNI C PERKINS
z COMMISSION NO.845529
* u,* MY COMMISSION EXPIRES
IOWA JANUARY 27,2026
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