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Dubuque County Historical Society Lease for Mississippi Plaza PropertyMasterpiece on the Mississippi Dubuque All-America City IIII1 I 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Dubuque County Historical Society Lease Ice Harbor Lease Amendment No. 4 - Recommendation and Approval DATE: August 12, 2010 Assistant City Engineer Robert Schiesl recommends City Council approval of the amended lease agreement between the Dubuque County Historical Society and the City of Dubuque for the development of the proposed Mississippi Plaza, subject to the approval of the associated sub -lease agreements and the Vision Iowa contract. The Mississippi Plaza is the outdoor plaza area that will provide a connection between the two flagship museum facilities and create an integrated campus setting. I concur with the recommendation and respectfully request Mayor and City Council approval. MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Gus Psihoyos, City Engineer Robert Schiesl, Assistant City Engineer Michael C. Van Milligen THE CITY OF DUB E MEMORANDUM Masterpiece on the Mississippi BARRY LINDA CITY ATTORN To: Michael C. Van Milligen City Manager DATE: August 12, 2010 RE: Dubuque County Historical Society Sublease and Sub - Sublease With Peninsula Gaming Company, L.L.C. Attached are a sublease and a sub - sublease agreement between Dubuque County Historical Society and Peninsula Gaming Company, L.L.C. (Peninsula). The sub - sublease is for part of Lot C and Lot D on Exhibit A attached to the sub - sublease. Lot C and Lot D are leased by the City to Dubuque Racing Association (DRA), and DRA has subleased Lots C and D to Peninsula. Dubuque County Historical Society has requested the City's consent to a sub - sublease of Lots C and D in connection with the development of the new museum plaza. The lease for Lot C and D expires December 31, 2018. At that time, DRA may request an extension of this lease, or in the event DRA does not request an extension, Dubuque County Historical Society could request a lease of Lot C and D directly with the City. The sublease is for Lot B on Exhibit A attached to the sublease. The City /Peninsula lease also expires December 31, 2018. At that time, Lot B will become a part of the leased premises for the lease between the City and Dubuque County Historical Society. I recommend that the subleases be submitted to the City Council for consideration and approval. BAL:tls Attachment cc: Bob Schiesl, Assistant City Engineer RESOLUTION NO. -10 DISPOSING OF AN INTEREST IN REAL PROPERTY BY FOURTH AMENDMENT TO LEASE BETWEEN THE CITY OF DUBUQE, IOWA AND DUBUQUE COUNTY HISTORICAL SOCIETY WHEREAS, the City of Dubuque, Iowa (City) and Dubuque County Historical Society (DCHS) entered into a Lease Agreement (Lease) on June 5, 2000 for certain real property (Demised Premises); and WHEREAS, City and DCHS amended the Lease by the First, Second and Third Amendments to Lease Agreement; and WHEREAS, City and DCHS desire to further amend the Lease as set forth in the attached Fourth Amendment; and WHEREAS, on August 2, 2010, 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; AND WHEREAS, the City Council finds that it is in the best interests of the City to approve the disposition of such real property. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The City Council of the City of Dubuque, Iowa, approves the Fourth Amendment to Lease Agreement attached hereto and the Mayor is hereby authorized and directed to sign this Resolution and the Fourth Amendment to Lease Agreement. Passed, approved and adopted this 16 day of August 2010. Attest: Jeanne F. Schneider, City Clerk F: \USERS \tsteckle \Lindahl\Dubuque County Historical Society Lease\ Resolution_ DisposingOfRealPropertyBy4thAmendment _072810.doc 4. This Fourth Amendment is subject to the execution of a sublease between Lessee and Peninsula Gaming, L.L.C. for Lot B (the Plaza), and a sub - sublease between Lessee and Peninsula Gaming, L.L.C. of Lot D and for that part of Lot E subleased by Dubuque Racing Association to Peninsula Gaming, L.L.C. necessary for the construction of the Plaza. 5. All other terms and conditions of the Lease shall remain in full force and effect. LESSOR: CITY OF DUBUQUE, IOWA By: Roy D. B i�• I, Mayor Attest: Jeanne F. Schneider City Clerk 8 LESSEE: DUBUQUE COUNTY HISTORICAL SOCIETY 3. The following new Article 24 is added: ARTICLE XXIV ENVIRONMENTAL 24.1. Lessor shall assume liability and shall indemnify and hold Lessee harmless against all liability or expense arising from any condition which existed, whether known or unknown, at the time of execution of this Lease which condition is not a result of actions of Lessee or which condition arises after date of execution but which is not a result of actions of Lessee. 24.2. Lessee. Lessee expressly represents and agrees: 1) During the lease Term, Lessee's use of the Demised Premises shall not include the use of any hazardous substance without Lessee first obtaining the written consent of Lessor. Lessee understands and agrees that Lessor's consent is at Lessor's sole option and complete discretion and that such consent may be withheld or may be granted with any conditions or requirements that Lessor deems appropriate. 2) During the lease Term, Lessee shall be fully liable for all costs and expenses related to the use, storage, removal and disposal of hazardous substances used or kept on the property by Lessee, and Lessee shall give immediate notice to Lessor of any violation or any potential violation of any environmental regulation, rule, statute or ordinance relating to the use, storage or disposal of any hazardous substance. 3) Lessee, at its sole cost and expense, agrees to remediate, correct or remove from the premises any contamination of the property caused by any hazardous substances which have been used or permitted by Lessee on the premises during any term of this Lease. Remediation, correction or removal shall be in a safe and reasonable manner, and in conformance with all applicable laws, rules and regulations. Lessee reserves all rights allowed by law to seek indemnity or contribution from any person, other than Lessor, who is or may be liable for any such cost and expense. 4) Lessee agrees to indemnify and hold Lessor harmless from and against all claims, causes of action, damages, loss, costs, expense, penalties, fines, lawsuit, liabilities, attorney fees, engineering and consulting fees, arising out of or in any manner connected with hazardous substances, which are caused or created by Lessee during the term of this Lease including, but not limited to, injury or death to persons or damage to property, and including any diminution of the value of the Demised Premises which may result from the foregoing. This indemnity shall survive the cessation, termination, abandonment or expiration of this Lease for a period of five years. 7 adjoining property at the sole cost of Lessor and shall conduct such maintenance and replacement in a timely and reasonable manner with the intent of providing minimal disruption to the Demised Premises. Lessor agrees to be responsible for the complete repair of any damage to public property caused by the maintenance, repair or replacement of said public utilities, infrastructure or equipment. Lessee agrees to be responsible for the complete repair of any damage to private property within the Demised Premises caused by the maintenance, repair or replacement of said public utilities, infrastructure or equipment. Lessor shall exercise its rights hereunder in such manner as to cause minimal disruption to Lessee's operations and shall make every reasonable effort to limit the damage or repair costs. 23.4. Lessee agrees to be responsible for and shall incur all costs associated with impacts to or modifications thereon to any existing public utilities, infrastructure or facilities within the Demised Premises as a result of the Lessee's improvements or modifications thereto. 23.5. Lessee agrees that any public fixtures or equipment within the Demised Premises that is removed as a result of the Lessee's improvements or modifications thereto shall remain the property of the Lessor. 23.6. Lessee agrees to be responsible for and shall incur all costs associated with impacts to any and all private utilities located within the Demised Premises as a result of the Lessee's improvements or modifications thereto. 23.7. Lessee agrees to allow private utility providers /owners the right of reasonable access to the Demised Premises for the purpose of maintaining and /or replacing any and all existing private utilities, infrastructure and equipment, at the sole cost of the private utility provider /owner such maintenance and replacement shall be conducted in a timely and reasonable manner with the intent of providing minimal disruption to the Demised Premises. Said private utility provider /owner shall be responsible for the complete repair of any damage to the Demised Premises caused by such utility maintenance or replacement. 23.8. Lessor acknowledges and authorizes Lessee to remove the existing concrete from the Demised Premises for purposes of construction of an outdoor plaza area to be utilized for purposes related to the National Mississippi River Museum and Aquarium. Lessee agrees to clean, seal and maintain any remaining or newly installed decorative concrete located within the Demised Premises in compliance with City standards. Lessee agrees to clean, seal and maintain all decorative concrete located within the Demised Premises on a two - year cycle as required to maintain the appearance and integrity of said decorative concrete. Lessee agrees to incur all costs associated with the cleaning, sealing and maintenance of said decorative concrete pavement surfaces within the Demised Premises. 6 ARTICLE XXIII ACCESS TO DEMISED PREMISES 23.1. Lessee agrees to provide Lessor a twenty -foot wide public access easement to the Ice Harbor over the Demised Premises at a location designated by Lessor and subject to Lessee's approval, which shall not be unreasonably withheld. Such easement shall in no event extend in a westerly direction beyond a north -south line extending from the southwesterly corner of the utility room of the National River Center Building to the Ice Harbor. Lessee reserves the right hereunder to erect and maintain a boundary fence extending along the north - south line described in the preceding sentence. Further, Lessee agrees to permit access to the Ice Harbor over the Demised Premises for emergency purposes. Lessor agrees that once the location of the access easement has been determined, Lessor shall not require alternate non - emergency access to the Ice Harbor over the Demised Premises unless expressly permitted by Lessee in a separate agreement. Lessee reserves the right, subject to Lessor's prior written approval of plans therefor, to erect and maintain a north -south boundary gateway from the northeast corner of the covered walkway to the Ice Harbor. The twenty -foot wide public access easement located between the boundary fence permitted in the preceding paragraph and the boundary gateway permitted herein shall be open to the public during such times as Lessor shall determine. Lessee shall permit public access through the boundary fence and gateway fence at all times for emergency purposes. 23.2. Lessee agrees to allow Lessor to install and maintain an underground fuel system to service the Ice Harbor Transient Marina Facility at a location on the Demised Premises as selected by Lessor. Lessor shall maintain complete and sole liability and responsibility for the fuel system and the maintenance thereof. Lessor agrees to defend, indemnify and hold Lessee harmless for any and all claims for injury or property damage caused by the use of the underground fuel system. Lessee agrees to be responsible for the complete repair of any damage to private property within the Demised Premises caused by the installation, maintenance, repair or replacement of the underground fuel tanks. Lessor further agrees to be responsible for the complete repair of any damage to public property within the Demised Premises caused by the installation of and any ongoing maintenance of the underground fuel tanks. Lessor shall exercise its rights hereunder in such manner as to cause minimal disruption to Lessee's operations and shall make every reasonable effort to limit the damage or repair costs . 23.3. Lessee agrees to allow Lessor the right of access to the Demised Premises for the purpose of maintaining and /or replacing any and all existing public utilities, infrastructure, equipment and for maintenance needs of Lessor's 5 3) For the Patio (Lot B): a) The rental value for the first year of the lease (2019) for the Patio is $ 120,000 per acre, and as a result the first year rent for the Patio would be $ 60,000 (0.50 acres). Lessor agrees that the rent for the first year lease for the Patio for this not - for - profit corporation shall be $ 30,000 ( "the Patio Base Rent "). The Patio Base Rent for each successive year of the Lease Term shall be increased effective July 1 by the increase in the COL as of December 31 of each year compared to the COL as of December 31 of the previous year. b) Lessee shall be entitled to a rental value reduction in the amount of actual costs incurred by Lessee directly incident to Lessee's programs for providing access to, education of, and outreach to low- income and underserved residents of Dubuque, Iowa or residents who lives in the targeted neighborhoods ( "the Patio Rent Reduction "). Such costs include, but are not limited to, free and reduced admissions, direct wages, direct program costs, direct marketing costs, and direct administrative costs required to plan, implement, monitor and supervise education and activities, and the expenses related thereto, but excluding indirect costs and overhead for on -site or off -site programming. c) Lessee shall provide to Lessor not later than 90 days after the end of each year of the Term, a request for the Patio Rent Reduction together with written documentation, and such other supporting information as Lessor may reasonably request. The Patio Rent Reduction request may include the amounts of all qualifying costs incurred by Lessee and not previously rebated for the immediately preceding two years; but in no event shall the Patio Rent Reduction exceed the Patio Base Rent for the immediately preceding two years. Lessor shall review and respond to Lessee's request in writing within sixty (60) days of receipt of such request setting forth the amount of the Patio Rent Reduction. The review by Lessor shall be conducted in consideration of the objective of providing access to educational opportunities for low- income and underserved residents of the City of Dubuque. In the event Lessor and Lessee disagree as to the amount of the Patio Rent Reduction, the parties shall mutually select one (1) arbitrator and the disagreement shall be settled by binding arbitration. The arbitrator shall have no power to change the lease provisions. Both parties shall continue performing their lease obligations pending the decision of the arbitrator. The costs and expenses of the arbitrator shall be shared equally by the parties. d) The amount of the Base Patio Rent reduced by the Patio Rent Reduction shall be paid by Lessee to Lessor within 30 days of Lessee's response to the Plaza Rent Reduction request or within 30 days of receipt of the arbitrator's award, whichever later occurs. In no event shall the Patio Rent Reduction exceed the Patio Rent. 4 2) For the Plaza (Lot E): a) The rental value for the first year of the lease (2010) for the Plaza is $120,000 per acre, and as a result the first year rent for the Plaza would be $ 79,200 (0.66 acres). Lessor agrees that the rent for the first year lease for the Plaza for this not - for - profit corporation shall be $ 39,600 ( "the Plaza Base Rent "). The Plaza Base Rent for each successive year of the Lease Term shall be increased effective July 1 by the increase in the COL as of December 31 of each year compared to the COL as of December 31 of the previous year. b) Lessee shall be entitled to a reduction of the Plaza Base Rent in the amount of actual costs incurred by Lessee directly incident to Lessee's programs for providing access to, education of, and outreach to low - income and underserved distressed residents of Dubuque, Iowa or residents who lives in the targeted neighborhoods ( "the Plaza Rent Reduction "). For purposes of this Section, low- income residents means residents whose income is no more than 80% of the Area Median Income. Such costs include, but are not limited to, free and reduced admissions, direct wages, direct program costs, direct marketing costs, and direct administrative costs required to plan, implement, monitor and supervise education and activities, and the expenses related thereto, but excluding indirect costs and overhead for on -site or off -site programming. c) Lessee shall provide to Lessor not later than 90 days after the end of each year of the Term, a request for the Plaza Rent Reduction together with written documentation, and such other supporting information as Lessor may reasonably request. The Plaza Rent Reduction request may include the amounts of all qualifying costs incurred by Lessee and not previously rebated for the immediately preceding two years; but in no event shall the Plaza Rent Reduction exceed the Plaza Base Rent for the immediately preceding two years. Lessor shall review and respond to Lessee's request in writing within sixty (60) days of receipt of such request setting forth the amount of the Plaza Rent Reduction. The review by Lessor shall be conducted in consideration of the objective of providing access to educational opportunities for low- income and underserved residents of the City of Dubuque. In the event Lessor and Lessee disagree as to the value of the Plaza Rent Reduction, the parties shall mutually select one (1) arbitrator and the disagreement shall be settled by binding arbitration. The arbitrator shall have no power to change the lease provisions. Both parties shall continue performing their lease obligations pending the decision of the arbitrator. The costs and expenses of the arbitrator shall be shared equally by the parties. d) The amount of the Plaza Base Rent reduced by the Plaza Rent Reduction shall be paid by Lessee to Lessor within 30 days of Lessee's response to the Plaza Rent Reduction request or within 30 days of receipt of the arbitrator's award, whichever later occurs. In no event shall the Plaza Rent Reduction exceed the Plaza Base Rent. 3 indemnify and hold Lessee harmless from any and all claims for injury or property damage arising out of and /or incidental to the Lessor's operation and maintenance of the transient boat docks. 1.2 Commencing on January 1, 2019, the Demised Premises shall also include the real property shown as Lot B on Exhibit A, including the Pedestrian Access Easement shown on Exhibit A, ( "the Patio "). 1.3 If Lessee intends to request an extension of the term of this Lease, Lessee shall not later than five years prior to the expiration of the term of this Lease give Lessor written notice of such intention. Lessor shall negotiate exclusively with Lessee for a period of 180 days thereafter for an extension of this Lease. However, nothing herein shall obligate Lessor to agree to any extension of this Lease. 1.4 Excluded from the Demised Premises shall be the existing sheet pile retaining wall and all maintenance, expenses, and any liability associated therewith. Lessor agrees to indemnify and hold harmless Lessee, its board of directors, employees and agents from any bodily injury or property damage claim including, but not limited to, reasonable attorney's fees and expenses of litigation arising out of and /or incidental to Lessor's maintenance of the existing sheet pile retaining wall. Lessee agrees to allow Lessor the right of access to the Demised Premises for the purpose of maintaining and /or replacing the sheet pile retaining wall at the sole cost of Lessor and shall conduct such maintenance and replacement in a timely and reasonable manner with the intent of providing minimal disruption to the Demised Premises. t5 Excluded from the Demised Premises shall be the Pedestrian Access Easement shown on Exhibit A, and all maintenance, expenses, and any liability associated therewith. Lessor agrees to indemnify and hold harmless Lessee, its board of directors, employees and agents from any bodily injury or property damage claim, including, but not limited to, reasonable attorney's fees and expenses of litigation arising out of and /or incidental to the maintenance by Lessor and use by the public of the Pedestrian Access Easement shown on Exhibit A. 2. Article II is amended to read as follows: ARTICLE II RENT 2.1. Lessee shall pay Lessor, in addition to taxes, assessments, and other charges required to be paid under this Lease, rent as follows: 1) For the Museum, One Dollar per year ( "the Museum Rent "). 2 FOURTH AMENDMENT TO LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND DUBUQUE COUNTY HISTORICAL SOCIETY This Fourth Amendment to Lease Agreement, dated for reference purposes the day of , 2010, is made and entered into by and between the City of Dubuque, Iowa and Dubuque County Historical Society. WHEREAS, the City of Dubuque, Iowa (Lessor) and Dubuque County Historical Society (Lessee) entered into a Lease Agreement (the Lease) on June 5, 2000 for certain real property (Demised Premises), which Lease has been amended by the First, Second and Third Amendments; and WHEREAS, Lessor and Lessee now desire to further amend the Lease as set forth herein. NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS: 1. Article I is amended to read as follows: ARTICLE I 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 in addition to the real property shown as Lot A on Exhibit A ( "the Museum "), the real property shown as Lot E on Exhibit A ( "the Plaza ") attached hereto and made a part of this Lease, together with any and all easements and appurtenances thereto and subject to any easements and restrictions of record, collectively the "Demised Premises ", to have and to hold for a term of forty (40) years commencing on August 1, 2010 and terminating at 11:59 p.m. on July 31, 2050 ( "the Term ") subject to all of the terms, covenants, conditions and agreements contained herein. Lessor and Lessee acknowledge that the pedestrian walkway (river walk) as depicted on Exhibit A, are not part of the Demised Premises and will be relocated to the north of the Lessee's plaza area and Lessee assumes no responsibility for the maintenance or liability associated therewith. Lessor and Lessee acknowledge that there currently exist public transient boat docks erected and maintained by Lessor on Lot A. The parties have agreed to modify the boundaries of Lot A as originally defined in the Lease Agreement to reflect Lot A as shown on Exhibit A attached hereto. Lessor agrees to defend, 081310 EXHIBIT A '%'�i'%%###/i} / / / /.xmi r!1/!ll.� / - \ ;LOT (LOT C) ti DIAMOND JO NATIONAL RIVER'S CENTER zLOT A. 3RD STREET RIVERWALK PEDESTRAIN WALKWAY = LOT A (5.12 ACRE) INN LOT B (0.50 ACRE) LOT D (15' WIDE) Q LOT E (0.66 ACRE) ICE NARBOR EXHIBIT "A" REVISED PER FOURTH AMENDMENT �777 r )% \ \s \ W\ t DUBUQUE RIVER RIDES Dubuque �hllll \• 0 100' 200' SCALE 1" = 200' FEET 2 400' CITY OF DUBUQUE ENGINEERING DEPARTMENT ouelsoaue NMI $.0410. IOarOF ■••■ Iw >+++.1.s PORT OF Dueuoua OLIDUOUC COON TY HISTORICAL GOCICTY LBASC EXHIBIT 'A' RESOLUTION NO. -10 DISPOSING OF AN INTEREST IN REAL PROPERTY BY FOURTH AMENDMENT TO LEASE BETWEEN THE CITY OF DUBUQE, IOWA AND DUBUQUE COUNTY HISTORICAL SOCIETY WHEREAS, the City of Dubuque, Iowa (City) and Dubuque County Historical Society (DCHS) entered into a Lease Agreement (Lease) on June 5, 2000 for certain real property (Demised Premises); and WHEREAS, City and DCHS amended the Lease by the First, Second and Third Amendments to Lease Agreement; and WHEREAS, City and DCHS desire to further amend the Lease as set forth in the attached Fourth Amendment; and WHEREAS, on August 2, 2010, 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; AND WHEREAS, the City Council finds that it is in the best interests of the City to approve the disposition of such real property. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The City Council of the City of Dubuque, Iowa, approves the Fourth Amendment to Lease Agreement attached hereto and the Mayor is hereby authorized and directed to sign this Resolution and the Fourth Amendment to Lease Agreement. Passed, approved and adopted this 16 day of August, 2010. Attest: Jeanne F. Schneider, City Clerk Roy D. Buol, Mayor F: \USERS\tsteckle\Lindahl\Dubuque County Historical Society Lease\ Resolution_ DisposingOfRealPropertyBy4thAmendment _072810.doc EXHIBIT A LOT A- R D STREET • RIVERWALK PEDESTRAIN WALKWAY LOT A (5.12 ACRE) N M LOT B (0.50 ACRE) LOT D (15' WIDE) LOT E (0.68 ACRE) ICE HARBOR DUBUQUE RIVER RIDES 0 100' 200' SCALE 1" = 200' FEET CITY OF DUBUQUE ENGINEERING DEPARTMENt mY •••�t.. ....eel' • vo, arnao r n o" CO011omr.no •w.nt i+an r «nm 41•011111,0 DUBUQUE DUBUQUE COUNTY HISTORICAL SOCIETY LBABE EXHIBIT Masterpiece on the Mississippi Dubuque AI- Ameica City Illr 2007 TO: Michael C. Van Milligen, City Manager Gus Psihoyos, City Engineer FROM: Robert Schiesl, Assistant City Engineer 2DS SUBJECT: Dubuque County Historical Society Lease Ice Harbor Lease Amendment No. 4 - Recommendation and Approval DATE: August 11, 2010 INTRODUCTION The purpose of this memorandum is to provide the City Council with information following the public hearing that was held on August 2nd for the request on behalf of the Dubuque County Historical Society for an amendment to their existing Ice Harbor lease. Final action was tabled until the August 16, 2010 meeting when information related to the associated sub -lease agreements is received. BACKGROUND The Dubuque County Historical Society (DCHS) received a $1,230,000 Vision Iowa RECAT Grant to develop an outdoor plaza between the Woodward Museum /Boatyard Exhibit and the new Diamond Jo National Rivers Center. The outdoor plaza area, or referred to as the Mississippi Plaza, will provide a connection between the two (2) flagship museum facilities and create an integrated campus setting. A copy of the planning level conceptual rendering of the proposed Mississippi Plaza is attached. DISCUSSION For the development of the proposed Mississippi Plaza, this will require an amendment to the existing DCHS Ice Harbor lease with the City. The amended lease will incorporate the existing National Mississippi River Museum & Aquarium site, the location occupied by Ice Harbor Park and the southerly patio area located behind the Diamond Jo National Rivers Center. An exhibit showing the revised DCHS lease boundary is shown in the attached Exhibit A. On the August 16, 2010 City Council agenda, the City will receive for consideration, a Sub - Lease Agreement from Peninsula Gaming for the southerly patio area and acknowledgment that none of the proposed Mississippi Plaza improvements will affect the Peninsula Gaming lease payments to the City. There will also be a Sub Sub -Lease with Peninsula Gaming for the 15 -foot strip of land along the southerly Ice Harbor pier wall and for part of the existing parking lot that will be modified as part of the proposed Mississippi Plaza improvements. Finally, there will also be a request for the City Council to approve a funding agreement contract with Vision Iowa for the RECAT Grant. RECOMMENDATION I recommend that the City Council approve the amended lease agreement between the Dubuque County Historical Society and the City for the development of the proposed Mississippi Plaza subject to the approval of the associated sub -lease agreements and the Vision Iowa contract. ACTION TO BE TAKEN The City Council is requested to approve the amended lease agreement between the Dubuque County Historical Society and the City for the development of the proposed Mississippi Plaza through the adoption of the enclosed resolution, subject to the approval of the associated sub -lease agreements and the Vision Iowa contract. Prepared by Robert Schiesl, Assistant City Engineer cc: Cindy Steinhauser, Assistant City Manager Preparer: Barry A. Lindahl, Esq. Suite 330, Harbor View Place, 300 Main Street, Dubuque, IA 52001 (563) 583 -4113 RESOLUTION NO. -10 APPROVING A SUBLEASE BETWEEN PENINSULA GAMING COMPANY, L.L.C. AND DUBUQUE COUNTY HISTORICAL SOCIETY AND A SUB - SUBLEASE BETWEEN PENINSULA GAMING COMPANY, L.L.C. AND DUBUQUE COUNTY HISTORICAL SOCIETY WHEREAS, on March 31, 2004, the City of Dubuque, Iowa (City) and Dubuque Racing Association, Ltd. (DRA) entered into an Amended and Restated Lease Agreement (original Lease Agreement dated February 18, 1990) in which the City leased to DRA a parcel of real estate identified as Lot C, for parking purposes; and a parcel of real estate identified as Lot D, each Lot more particularly identified on the attached Exhibit A. WHEREAS, DRA has subleased Lots C and D to Peninsula Gaming Company, L.L.C. (Peninsula); and WHEREAS, Dubuque County Historical Society (the Historical Society) desires and intends to expand the National Mississippi River Museum and Aquarium by developing a plaza area between the Great Rivers Center and the National Mississippi River Museum building which will require expansion and development into a portion of the area identified as Lot C, currently used for parking and a throughway and further requires the use of a portion of the area identified as Lot D, for development of the plaza area; and WHEREAS, the Historical Society desires to sub - sublease those necessary portions of Lots C and D from Peninsula for the creation of a plaza area for the National Mississippi River Museum and Aquarium pursuant to the Sub - Sublease between Peninsula Gaming Company, L.L.C. and Dubuque County Historical Society attached hereto, which Sub - Sublease the parties, including the City and DRA, desire to approve; and ' WHEREAS, City and Peninsula are parties to a Lease Agreement dated June 1, 2005, pursuant to which City leases to Peninsula Lot B shown on the attached Exhibit A; and Whereas, the Historical Society desires to sublease Lot B from Peninsula pursuant to the Sublease between Peninsula Gaming Company, L.L.C. and Dubuque County Historical Society attached hereto; and Whereas, City has agreed to consent to the Sublease and the Sub - Sublease but only on the terms and conditions set forth therein. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The Sublease between Peninsula Gaming Company, L.L.C. and Dubuque County Historical Society and the Sub - Sublease between Peninsula Gaming Company, L.L.C. and Dubuque County Historical Society are hereby approved. Section 2. The Mayor is authorized and directed to execute the consent to the Sublease between Peninsula Gaming Company, L.L.C. and Dubuque County Historical Society and the Sub - Sublease between Peninsula Gaming Company, L.L.C. and Dubuque County Historical Society. Attest: Passed, approved and adopted this Jeanne F. Schneider, City Clerk day of , 2010. F: \USERS \tsteckle \Lindahl \Dubuque County Historical Society Lease\ ResolutionApprovingSubleaseAndSub- Sublease_080310.doc CONSENT BY THE CITY OF DUBUQUE, IOWA The City of Dubuque, Iowa hereby consents to this Sublease. CITY OF DUB UE, IOWA By: Roy D. B I, Mayor Attest: Jeanne F. Schneider, City Clerk CONSENT BY DUBUQUE RACING ASSOCIATION, LTD. The Dubuque Racing Association, Ltd. hereby consents to this Sublease. DUBUQUE RACING ASSOCIATION, LTD. By: By: EXHIBIT A LOT (LOT Ck: r1� 3RD STREET EINE RIVERWALK PEDESTRAIN WALKWAY LOT A (5.12 ACRE) LOT B (0.50 ACRE) LOT D (15' WIDE) LOT E (0.66 ACRE) PART OF LOT 2 (LOT C) SUB - SUBLEASE TO DCHS f _r ICE I-IARBOR EXHIBIT "A" SUB - SUBLEASE DUBUQUE RIVER RIDES Dubuque 2007 0 100' 200' 400' SCALE 1" = 200' FEET CITY OF DUBUQUE ENGINEERING DEPARTMENT On•IA�.. w wEar.x. 9T"6CT uumnus. w 62011,411. 0..' Aw�1i0x PORT OF DUBUQUE DUBUQUE COUNTY HISTORICAL SOCIETY SUB-SUBLEASE EXHIBIT "A" SUBLEASE BETWEEN PENINSULA GAMING COMPANY, L.L.C. AND DUBUQUE COUNTY HISTORICAL SOCIETY THIS SUBLEASE AGREEMENT (Sublease) is entered into this day of , 2010, by Peninsula Gaming Company, L.L.C., an Iowa limited liability company (Peninsula), whose address for the purpose of this Sublease is 3` Street -Ice Harbor, Dubuque, Iowa 52001 and Dubuque County Historical Society, an Iowa nonprofit corporation (Historical Society), whose address for the purpose of this Sublease is 350 East 3' Street, Dubuque, Iowa 52001. WHEREAS, on March 31, 2004, the City of Dubuque, Iowa (City) and Dubuque Racing Association, Ltd. (DRA) entered into an Amended and Restated Lease Agreement (original Lease Agreement dated February 18, 1990) in which the City leased to DRA a parcel of real estate identified as Lot C, for parking purposes; and a parcel of real estate identified as Lot D on Exhibit "A ", which is attached hereto. WHEREAS, the Amended and Restated Lease Agreement provides that the Agreement shall not be assigned without the prior written consent of the City as evidenced by a resolution duly adopted by the City Council of the City and then only under such conditions as the City may establish. WHEREAS, on October 18, 1993, DRA and Peninsula's predecessor in interest entered into a Sublease Agreement in which Lot C and Lot D were subleased to Peninsula with the City's approval. WHEREAS, on June 1, 2005, an Extension of Sublease Agreement was made and entered extending the term of the Sublease between DRA and Peninsula through December 31, 2018 with the City's approval. WHEREAS, Historical Society desires and intends to expand the National Mississippi River Museum and Aquarium by developing a plaza area between the Great Rivers Center and the National Mississippi River Museum building which will require expansion and development into a portion of the area identified as Lot C, currently used for parking and a throughway and further requires the use of a portion of the area identified as Lot D, for development of the plaza area. WHEREAS, the Historical Society desires to sub - sublease those necessary portions of Lots C and D from Peninsula for the creation of a plaza area for the National Mississippi River Museum and Aquarium, which sub - sublease the parties, including the City and DRA, desire to approve; and 081110 WHEREAS, City and Peninsula are parties to a Lease Agreement (the Patio Lease) dated June 1, 2005, pursuant to which City leases to Peninsula certain other real estate shown on Exhibit A attached hereto; and WHEREAS, nothing contained in this Sublease in any way relieves Peninsula of any of its obligations to City in the Patio Lease, including but not limited to "Section 2. Rental and Compensation for Parking Privileges in Lots 1 and 2 ", and Peninsula warrants and covenants that it will continue to perform all such obligations during the Term of the Patio Lease; NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the parties agree as follows: 1. Premises and Term. Peninsula, in consideration of the rents, agreements and conditions herein contained, subleases to Historical Society and Historical Society subleases from Peninsula the following described premises situated in Dubuque County, Iowa: that portion of Lot C and that portion of Lot D, all as more particularly identified on the attached Exhibit A, together with any and all easements and appurtenant rights, and subject to easements, restrictions and appurtenant rights of record (hereafter the Subleased Premises). The term of this Sublease shall commence on the date certain to be chosen by the Historical Society upon sixty (60) days written notice provided to the City, DRA, and Peninsula and shall continue until December 30, 2018. 2. Rental. Historical Society shall pay to Peninsula as rent the sum of one dollar ($1.00) per year, paid on or before each January 1 of the term of this Sublease. Historical Society is not responsible for nor shall Historical Society pay to Peninsula or City any sums specified in the Patio Lease as rental or compensation for non - exclusive parking privileges for Lots 1 and 2, as set forth in paragraph 2 of the Patio Lease, and Peninsula agrees that it shall remain solely responsible for any and all payments due to City thereunder. Further, Historical Society shall not be entitled to any rights granted to Peninsula by City with respect to the non - exclusive privilege to park in Parking Lots 1 and 2 as described in paragraph 1 of the Patio Lease. Anything herein to the contrary notwithstanding, this Sublease shall not modify or affect in any way the terms and provisions of Peninsula's Operating Agreement with the DRA, including but not limited to the nature and extent of DRA's current reimbursement obligations included in Section 14(b) of the Operating Agreement. DRA's consent to this Sublease shall be considered consent by DRA that such rights, obligations, and commitments are unmodified by this Agreement. In the event the DRA's rights, obligations, 2 and commitments are found to be affected by DRA, in its sole and absolute discretion, this Sublease shall be null and void in all respects. Except as otherwise provided in this Sublease, this Sublease and the Historical Society's use of the Subleased Premises shall be subject in all respects to the Underlying Lease and the Patio Lease. 3. Use of Premises. Subject to the approval of the City, the Subleased Premises shall be solely used for the purposes related to the creation of the plaza area of the National Mississippi River Museum and Aquarium, subject to a public walkway reserved by the City, access to the public boat docks to the public walkway, and access by the City to maintain the Ice Harbor and floodwall, all as more specifically set forth in a Fourth Amendment to Lease Agreement Between the City of Dubuque, Iowa and Dubuque County Historical Society. The City hereby acknowledges that the Pedestrian Access Easement may be relocated by the Historical Society and be located along the northerly boundary of the completed plaza area of the National Mississippi River Museum and Aquarium subject to the approval of the City, which approval shall not be unreasonably withheld. 4. Care and Maintenance. The Historical Society agrees that, at all times during the term of this Sub - sublease that it shall, at its own expense, maintain and preserve the Subleased Premises, but shall have no responsibility to maintain or preserve those portions of Lot C and Lot D not included in the Subleased Premises. The Historical Society assumes no responsibility nor liability associated with the maintenance or repair of the Ice Harbor, sheet pile retaining wall or public pedestrian easement. The Historical Society assumes no responsibility nor liability for any parking fees or maintenance expenses associated with Lot C, and those parties responsible for such maintenance or fees prior to the execution and approval of this Sublease shall maintain such responsibility. 5. Indemnity /Insurance. The Historical Society shall indemnify and save City, DRA, Peninsula and their respective employees, agents, officers, directors, subsidiaries, and affiliates harmless from any against any and all claims, suits, actions, penalties, damages, liabilities, costs, expenses (including attorneys fees) and causes of action arising during the term of this Sublease, for any bodily injury, loss of life, or damage to property, or otherwise sustained by any person, firm or City related to the Historical Society's occupancy or use of the Subleased Premises. The Historical Society, as sublessee, shall maintain liability insurance insuring City, Peninsula, DRA and the Historical Society as named insureds with regard to all damages mentioned in this paragraph, in the minimum amounts of $500,000.00 for bodily injury or death to any one person; $1,000,000.00 for bodily injury or death resulting from one accident; $500,000.00 for property damages resulting from any one accident; and $5,000,000.00 umbrella policy. Such insurance shall be primary and non - contributory to any coverage maintained by Peninsula, DRA, or the City. 3 Notwithstanding any provision of this Sublease to the contrary, if either party hereto suffers a loss or damages, and such loss or damages would typically be covered under any policy of insurance that such party actually maintains or is required to maintain pursuant to this Sublease, then such party hereby releases the other party to and from any and all liability for each such loss or damage. All insurance policies maintained by the Historical Society as provided in this Section shall contain an agreement by the insurer waiving the insurer's right of subrogation against the other party to this Lease or agreeing not to acquire any rights of recovery which the insured has expressly waived prior to loss. 6. DRA Joinder. By consenting to this Sublease, DRA agrees that it is subleasing any leasehold interest it may possess in Lot D of the Subleased Premises. However, DRA shall maintain any riparian rights created by its Lease Agreement with City. 7. Assignment or Sublease. The Historical Society may not assign its rights under this Sublease nor sublet all or any portion of the Subleased Premises without the express written consent of Peninsula, DRA and City. 8. Consent of City, DRA and IRGC. It is understood and agreed that this Sublease is expressly conditional upon the written consent of City, DRA and the Iowa Racing and Gaming Commission. 9. Easements and Agreements Applicable to Subleased Premises. In conjunction with the execution of this Sublease, the Historical Society and City have negotiated and will be entering into a Fourth Amendment to Lease Agreement Between The City of Dubuque, Iowa and Dubuque County Historical Society in which the Historical Society will be leasing Lots E and B from City. The Historical Society and City hereby agree that those provisions set forth in Section 23 of the Fourth Amendment shall be binding upon the Historical Society and the City as those provisions may apply to the Subleased Premises. 10. Acknowledgment of Rights of Others. The parties acknowledge that this Sublease is subject to an Amended and Restated Lease Agreement, as amended, by and between City and DRA with respect to the Subleased Premises. Historical Society has been provided with a copy of such Amended and Restated Lease Agreement, as amended, and takes the Subleased Premises subject to the rights of DRA as set forth therein. Historical Society shall indemnify and hold harmless DRA its employees, agents, officers, directors, subsidiaries, and affiliates from any claims, damages, causes of action or demands that may arise as a consequence of Historical Society's occupancy, use, or operation of the Subleased Premises. 11. ENVIRONMENTAL. A. The City of Dubuque agrees to assume liability and shall indemnify and hold Historical Society harmless against all liability or expense arising from any condition which existed, whether know or unknown, at the time of execution of the Lease 4 Agreement which condition is not a result of actions of the Historical Society or which condition arises after date of execution but which is not a result of actions of the Historical Society. Historical Society acknowledges that the City is or will be conducting remediation on the Subleased Premises and Historical Society hereby grants to the City the right to enter the Subleased Premises for the purposes of testing, sampling, and conducting remediation activities. B. Historical Society. Historical Society expressly represents and agrees: 1. During the lease term, Historical Society's use of the Subleased Premises will not include the use of any hazardous substance without Historical Society first obtaining the written consent of Peninsula, the City and DRA. Historical Society understands and agrees that Peninsula's, City's and DRA's consent is at their respective sole option and complete discretion and that such consent may be withheld or may be granted with any conditions or requirements that Peninsula, the City and DRA deems appropriate. 2. During the lease term, Historical Society shall be fully liable for all costs and expenses related to the use, storage, removal and disposal of hazardous substances used or kept on the Subleased Premises by Historical Society, and Historical Society shall give immediate notice to Peninsula, the City and DRA of any violation or any potential violation of any environmental regulation, rule, statute or ordinance relating to the use, storage or disposal of any hazardous substance. 3. Historical Society, at its sole cost and expense, agrees to remediate, correct or remove from the Subleased Premises any contamination caused by any hazardous substances which have been used or permitted by Historical Society on the Subleased Premises during any term of this Sublease. Remediation, correction or, removal shall be in a safe and reasonable manner, and in conformance with all applicable laws, rules and regulations. Historical Society reserves all rights allowed by law to seek indemnity or contribution from any person, other than Peninsula, who is or may be liable for any such cost and expense. 4. Historical Society agrees to indemnify and hold Peninsula, DRA, and their respective employees, officers, agents, directors, subsidiaries, and affiliates harmless from and against all claims, causes of action, damages, loss, costs, expense, penalties, fines, lawsuit, liabilities, attorney fees, engineering and consulting fees, arising out of or in any manner connected with hazardous substances, which are caused or created by Historical Society on or after the date of this Sublease and during any term of this Sublease, including, but not limited to, injury or death to persons or damage to property, and including any diminution of the value of any Subleased Premises which may result from the foregoing. This indemnity shall survive the cessation, termination, abandonment or expiration of this Sublease. 12. Peninsula's Covenant to the City of Dubuque. Peninsula warrants and covenants to City, that nothing contained in this Sublease in any way relieves Peninsula of 5 any of its obligations to City in the Patio Lease, including but not limited to Section 2. Rental and Compensation for Parking Privileges in Lots 1 and 2, and Peninsula warrants and covenants that it will continue to perform all such obligations during the Term of the Patio Lease. 13. Sub - Sublease. This is a sublease of a sublease interest. Peninsula' interest in the Subleased Premises is as a sublessee under an underlying sublease made and entered with DRA, as amended, a copy of which is attached hereto (Peninsula Sublease). Except as otherwise provided herein, this Sublease is expressly made subject to all the terms and conditions of the Amended and Restated Lease Agreement between City and DRA and the Peninsula Sublease. The Historical Society shall not do or omit to do anything which will breach any of the terms of the Amended and Restated Lease and Peninsula Sublease unless otherwise authorized by City, Peninsula and DRA. The Historical Society indemnifies and agrees to hold Peninsula harmless against any action or inaction on its part that causes, direct or indirect, Peninsula to be in breach or default of the provisions of the Amended and Restated Lease or the Peninsula Sublease. If the Amended and Restated Lease or Peninsula Sublease is terminated, this Sublease shall terminate simultaneously at the option of City. 14. Access. DRA or its appointed agents or employees shall have access to the Subleased Premises upon reasonable advance notice to Historical Society for purposes related to this Sublease or DRA's operations, subject to the approval of the Historical Society, which approval shall not be unreasonably withheld. 15. Additional Actions. Peninsula, Historical Society and City agree to undertake any commercially reasonable actions and execute any additional and commercially reasonable documents requested by DRA for the purpose of preserving its tax exempt status. PENINSULA GAMING COMPANY, L.L.C. DUBUQUE COUNTY HISTORICAL SOCIETY By: By: 6 By: CITY OF DUBU UE, IOWA 1 I /A By: Attest: Roy D. Dubuque Racing Association, Ltd. CONSENT BY THE CITY OF DUBUQUE, IOWA The City of Dubuque, Iowa hereby consents to this Sublease. , Mayor Jeanne F. Schneider, City Clerk CONSENT BY THE DUBUQUE RACING ASSOCIATION, LTD. The Dubuque Racing Association, Ltd. hereby consents to Sublease to the extent its consent is necessary pursuant to Section (2) herein. By: By: 14 hazardous conditions, fire, 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 Sublease, 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. 29. CONTINGENCY. This Sublease is contingent and conditional upon, and Tenant's performance hereunder is subject to Landlord obtaining the written consent from City consenting to this Sublease and further contingent upon Tenant obtaining the written consent of City authorizing the use of the premises for purposes related to the Mississippi River Museum and exhibit construction. This Sublease is contingent upon the approval of it by the Iowa Racing and Gaming Commission. 30. SUBLEASE. This is a sublease. The Landlord's interest in the Premises is as Tenant under the Underlying Lease, a copy of which is attached hereto. This Sublease is expressly made subject to all the terms and conditions of the Underlying Lease. The terms of the Underlying Lease are hereby incorporated herein by this reference. To the extent any provision(s) or term(s) of this Sublease is prohibited by or otherwise contrary to a term(s) pr provision(s) of the Underlying Lease, the terms of this Underlying Lease shall control and this Sublease shall be considered to be so amended. Tenant shall use the Premises in accordance with the terms of the Underlying Lease and shall not do or omit to do anything which will breach any of its terms unless otherwise authorized by Peninsula and the City. If the Underlying Lease is terminated, this Sublease shall terminate simultaneously and any unearned rent paid in advance shall be refunded to Tenant, if such termination is not the result of a breach by Tenant of the within Sublease. Tenant shall assume the obligation for performance of all Landlord's obligations under the Underlying Lease, except as otherwise provided for herein. 31. Landlord's Covenant to City of Dubuque. Landlord warrants and covenants to City, that nothing contained in this Sublease in any way relieves Landlord of any of its obligations to City, in the Underlying Lease, including but not limited to Section 2. Rental and Compensation for Parking Privileges in Lots 1 and 2, and Landlord warrants and covenants that it will continue to perform all such obligations during the Term of the Underlying Lease. TENANT LANDLORD Peninsula Gaming Company, L.L.C. Dubuque County Historical Society By: By: 13 EXHIBIT A 15 7 � , L� . , 7,. .. - C ..-0,- ...... C� pcgi ez rS,� 1, 1r �` _z� eke �_ SLOT 2 (LOT C)=------- : �z �.z -z9 a3 3RD STREET RIVERWALK PEDESTRAIN WALKWAY ® LOT B (0.50 ACRE) LOT D (15' WIDE) ! U.S COAST GUARD ICE HARBOR EXHIBIT "A" SUBLEASE DUBUQUE RIVER RIDES 0 100' 200' 400' SCALE 1" = 200' FEET Dubuque 2007 CITY OF DUBUQUE ENGINEERING DEPARTMENT CST/ MALL_ roWFFT avw OUFU ANS, N ba00 Ira�rYaaa Kral•r.�am Ora.r ova um .11 most I9ar •■h in PORT OF DUBUQUE DUBUQUE COUNTY HISTORICAL SOCIETY SUBLEASE EXHIBIT •A• EXHIBIT B COMMENCEMENT DATE MEMORANDUM 17 INSURANCE SCHEDULE A INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE 1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A or better in the current A.M. Best Rating Guide. 2. All Certificates of Insurance required hereunder shall provide a thirty (30) day notice of cancellation to the City of Dubuque, except for a ten (10) day notice for non- payment, if cancellation is prior to the expiration date. 3. shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 6 below. Such certificates shall include copies of the following policy endorsements: a) Commercial General Liability policy is primary and non - contributing. b) Commercial General Liability additional insured endorsement. c) Governmental Immunity Endorsements. 4. Each certificate shall be submitted to the contracting department of the City of Dubuque. 5. 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. 6. shall be required to carry the following minimum coverage/limits or greater if required by law or other legal agreement: a) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products - Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence Limit $1,000,000 Fire Damage Limit (any one occurrence) $ 50,000 Medical Payments $ 5,000 This coverage shall be written on an occurrence, not a claims made form. Form CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be included. All deviations or exclusions from the standard ISO commercial general liability form CG 0001, or Business Owners form BP 0002, shall be clearly identified. 1 of 2 January 2008 INSURANCE SCHEDULE A (Continued) INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE Governmental Immunity Endorsement identical or equivalent to form attached. Additional Insured Requirement: 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 shall be named as an additional insured on General Liability Policies using ISO endorsement CG 20 26 0704 "Additional Insured — Designated Person or Organization," or it's equivalent. — See Specimen b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY Statutory for Coverage A Employers Liability: Each Accident $100,000 Each Employee — Disease $100,000 Policy Limit — Disease $500,000 c) UMBRELLA EXCESS LIABILITY LIQUOR OR DRAM SHOP LIABILITY Coverage to be determined on a case by case basis by Finance Director. Completion Checklist ❑ Certificate of Liability Insurance (2 pages) ❑ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages) ❑ Additional Insured 20 26 07 04 ❑ Governmental Immunities Endorsement 2 of 2 January 2008 ACORD CERTIFICATE OF LIABILITY INSURANCE I DATE(MM/DDIYYYY) 12/7/2007 TYPE OF INSURANCE PRODUCER (563) 123 -4567 Insurance Agency Street Address City ST FAX (563) 987 -6543 Zip Code THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC 9 INSURED Company Street City St Zip Code INSURER A: Insurance Company INSURER B: S 1,000,000 INSURER C P REMI E TO RENTED PREMISES R NTEDnp) INSURER 0: INSURER E: MED EXP (Any one person) THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR AMYL INSRD TYPE OF INSURANCE POUCY NUMBER POLICY EFFECTIVE DATE (MM/DDIYY) POUCY EXPIRATION DATE (MMIDD/YY) LIMITS A X GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE S 1,000,000 X P REMI E TO RENTED PREMISES R NTEDnp) S 50,000 I CLAIMS MADE X OCCUR MED EXP (Any one person) S 5 , 00 0 PERSONAL R ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEM AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGO $ 1,000,000 { ( — I POLICY I X NEC 1 - 1 LOC A AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS COMBINED SINGLE LIMIT (Ea accident) 1 , 000, 000 — X BODILY INJURY (Per person) _ — BODILY INJURY (Per accident) — PROPERTY DAMAGE (Per accident) S GARAGE LIABILITY I ANY AUTO AUTO ONLY -EA ACCIDENT $ OTHER THAN EA ACC AUTO ONLY: AGG $ i EXCESS/UMBRELLA — 1 LIABILITY OCCUR CLAIMS MADE DEDUCTIBLE RETENTION S 0 Q EACH OCCURRENCE S _ AGGREGATE S S S $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBEREXCLUDED9 I yes, describe under SPECIAL PROVISIONS below Siii V g UU X I TyV� ORY LNaITS I 1 EL. EACH ACCEDENi S 100,000 E.L. DISEASE -EA EMPLOYEE 100, 000 E . DISEASE - POLICY LI IT S 500,000 OTHER DESCRIPTION OF OPERATIONS /LOCATIONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS City of Dubuque is listed as an additional insured on general liability policies using ISO endorsement form CG 2026 0704 "Additional Insured - Designated Person or Organisation" or its equivalent. General Liability policy is primary 4 non - contributing. Porm CG 2504 0397 "Designated Locations" general liability aggregate limit is included. Governmental immunities endorsement is included. COVERAGES CERTIFICATE HOLDER City of Dubuque 50 West 13th Street Dubuque, IA 52001 ACORD 25 (2001108) 1NS025 (0106)46 AMS CANCELLATION AUTHORIZED REPRESENTATIVE VMP Mortgage Solutions, Inc. (800)327-0545 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR WIBILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVE& ® ACORD CORPORATION 1988 Page 1 of 2 ACORD 25 (2001!08) INS025 moo .os AMS IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the Issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. Page 2 C Page 2 Of 2 POLICY NUMBER: THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Designated Location(s): (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) A. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under COVERAGE A (SECTION I), and for all medical expenses caused by accidents under COVERAGE C (SECTION I), which can be attributed only to operations at a single desig- nated "location" shown in the Schedule above: 1. A separate Designated Location General Aggregate Limit applies to each designated location ", and that limit is equal to the amount of the General Aggregate Limit shown in the Declarations. 2. The Designated Location General Aggregate Limit is the most we will pay for the sum of all damages under COVERAGE A, except dam- ages because of "bodily injury" or "property damage" included in the "products - completed operations hazard ", and for medical expenses under COVERAGE C regardless of the num- ber of: a. Insureds; b. Claims made or "suits° brought; or c. Persons or organizations making claims or bringing "suits ". 3. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the Designated Loca- tion General Aggregate Limit for that desig- nated "location ". Such payments shall not re- duce the General Aggregate Limit shown in DESIGNATED LOCATION(S) GENERAL AGGREGATE LIMIT COMMERCIAL GENERAL LIABILITY CG 25 04 03 97 the Declarations nor shall they reduce any other Designated Location General Aggre- gate Limit for any other designated location" shown in the Schedule above. 4. The limits shown in the Declarations for Each Occurrence, Fire Damage and Medical Ex- pense continue to apply. However, instead of being subject to the General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Designated Location General Aggregate Limit. B. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under COVERAGE A (SECTION I), and for all medical expenses caused by accidents under COVERAGE C (SECTION I), which can- not be attributed only to operations at a single designated "location" shown in the Schedule above: 1. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products - Completed Operations Aggregate Limit, whichever is applicable; and 2. Such payments shall not reduce any Desig- nated Location General Aggregate Limit. CG 25 04 03 97 Page 1 of 2 CG 25 04 03 97 C. When coverage for liability arising out of the "products - completed operations hazard" is pro- vided, any payments for damages because of "bodily injury" or "property damage" included in the "products - completed operations hazard" will reduce the Products - Completed Operations Ag- gregate Limit, and not reduce the General Ag- gregate Limit nor the Designated Location Gen- eral Aggregate Limit. D. For the purposes of this endorsement, the Defi- nitions Section is amended by the addition of the following definition: Copyright, Insurance Services Office, Inc., 1996 "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway, waterway or right -of -way of a railroad. E. The provisions of Limits Of Insurance (SECTION III) not otherwise modified by this endorsement shall continue to apply as stipulated. Page 2 of 2 CG 25 04 03 97 POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG 20 26 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) 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. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section 11 — Who Is An Insured is amended to in- clude as an additional insured the person(s) or or- ganization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property dam- age" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: A. In the performance of your ongoing operations; or B. In connection with your premises owned by or rented to you. All terms and conditions of this policy apply unless modified by this endorsement. CG 20 26 07 04 Includes copyrighted material of Insurance Services Office, Inc. with permission. Page 1 of 1 0 ISO Properties, Inc., 2004 CITY OF DUBUQUE, IOWA 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 1 of 1 January 2008 THE CITY OF DUB E MEMORANDUM Masterpiece on the Mississippi BARRY LINDA CITY ATTORN 1 9)111---- To: Michael C. Van Milligen City Manager DATE: August 12, 2010 RE: Dubuque County Historical Society Sublease and Sub - Sublease With Peninsula Gaming Company, L.L.C. Attached are a sublease and a sub - sublease agreement between Dubuque County Historical Society and Peninsula Gaming Company, L.L.C. (Peninsula). The sub - sublease is for part of Lot C and Lot D on Exhibit A attached to the sub - sublease. Lot C and Lot D are leased by the City to Dubuque Racing Association (DRA), and DRA has subleased Lots C and D to Peninsula. Dubuque County Historical Society has requested the City's consent to a sub - sublease of Lots C and D in connection with the development of the new museum plaza. The lease for Lot C and D expires December 31, 2018. At that time, DRA may request an extension of this lease, or in the event DRA does not request an extension, Dubuque County Historical Society could request a lease of Lot C and D directly with the City. The sublease is for Lot B on Exhibit A attached to the sublease. The City /Peninsula lease also expires December 31, 2018. At that time, Lot B will become a part of the leased premises for the lease between the City and Dubuque County Historical Society. I recommend that the subleases be submitted to the City Council for consideration and approval. BAL:tls Attachment cc: Bob Schiesl, Assistant City Engineer A; and SUBLEASE BETWEEN PENINSULA GAMING COMPANY, L.L.C. AND DUBUQUE COUNTY HISTORICAL SOCIETY THIS SUBLEASE AGREEMENT ( "the Sublease ") is entered into this day of 2010, by PENINSULA GAMING COMPANY, LLC, an Iowa limited liability company ( "Landlord "), whose address for the purpose of this Sublease is 3rd Street -Ice Harbor, Dubuque, Iowa 52001 and Dubuque County Historical Society, an Iowa not - for - profit corporation ( "Tenant "), whose address for the purpose of this Sublease is 350 East 3 Street, Dubuque, Iowa 52001. Whereas, the City of Dubuque, Iowa and Peninsula Gaming Company, L.L.C., are parties to a Lease Agreement ( "the Underlying Lease ") dated June 1, 2005, pursuant to which the City of Dubuque ( "City ") leases to Peninsula Gaming Company, L.L.C. real estate shown on Exhibit A attached hereto; and Whereas, Tenant desires to sublease from Landlord Lot B as shown on Exhibit Whereas, nothing contained in this Sublease in any way relieves Landlord of any of its obligations to City, in the Underlying Lease, including but not limited to Section 2. Rental and Compensation for Parking Privileges in Lots 1 and 2, and Landlord warrants and covenants that it will continue to perform all such obligations during the Term of the Underlying Lease; and Whereas, City has agreed to consent to a sublease but only on the terms and conditions set forth herein. 1. PREMISES AND TERM. Landlord, in consideration of the rents, agreements and conditions herein contained subleases to Tenant and Tenant subleases from Landlord, according to the terms and provisions of this Sublease, the following described premises situated in Dubuque County, Iowa: with the improvements thereon, and all rights, easements and appurtenances, (the "Premises "), subject to the non - exclusive, perpetual Public Access Easement running with the land, as shown on Exhibit A, for public pedestrian access said access to remain open, clear and unobstructed at all times except as may be otherwise agreed in writing 081110 The patio area (Lot B) as shown on Exhibit A attached hereto (but specifically excluding the hydraulic lift located on Lot B and by this reference made a part hereof (the Premises), legally described as a part of Lot 6 of Ice Harbor Development, according to the recorded plat thereof, by City upon the condition that the Tenant pays rent therefore, and otherwise performs as in this Sublease provided. A. Sublease Commencement. The term of this Sublease shall commence on the date possession of the Premises is delivered to Tenant in accordance with this Sublease or any appendices, riders or addenda attached hereto (the "Commencement Date "). Upon final determination of the actual Commencement Date, Landlord and Tenant shall execute that certain Commencement Date Memorandum, in the form and substance of Exhibit B attached hereto, thereby confirming the Commencement Date hereunder. B. Term. This Sublease ( "Initial Term ") shall be run from the Commencement Date to and including December30, 2018. Hereinafter, "Term" shall mean the Term as described herein and any extension thereof. 2. RENTAL. Tenant shall pay to Landlord as rent the sum of one dollar ($1.00) per year, paid on or before each January 1 of the Term of this Sublease. Tenant may, at its option, prepay any or all rent due under this Sublease. Tenant is not responsible for nor shall Tenant pay to Landlord or City any sums specified in the Underlying Lease as rental or compensation for non - exclusive parking privileges for Lots 1 and 2, as set forth in paragraph 2 of the Underlying Lease, and Landlord agrees that it shall remain solely responsible for any and all payments due to City thereunder. Further, Tenant shall not be entitled to any rights granted to Landlord by City with respect to the non - exclusive privilege to park in Parking Lots 1 and 2 as described in paragraph 1 of the Underlying Lease. Anything herein to the contrary notwithstanding, this Sublease shall not modify or affect in any way the terms and provisions of Peninsula's Operating Agreement with the Dubuque Racing Association ( "DRA "), including but not limited to the nature and extent of DRA's current reimbursement obligations included in Section 14(b) of the Operating Agreement. DRA's consent to this Sublease shall be considered consent by DRA that such obligations and commitments are unmodified by this Agreement. In the event DRA's rights, obligations, or commitments are found to be affected in DRA's sole and absolute discretion, this Sublease shall be null and void in all respects. This Sublease shall be subject in all respects to the Underlying Lease. 3. POSSESSION. Tenant shall be entitled to possession on the Commencement Date, and shall yield possession to the Landlord at the end of the Term, except as herein otherwise expressly provided. Should Landlord be unable to give possession on said date, Tenant's only damages shall be a rebuying of the pro rata rental. 4. USE OF PREMISES. It is contemplated between the parties, subject to the approval of City and the terms of the Underlying Lease, that the Premises shall be 2 used by Tenant for museum exhibits, concerts (primarily but not limited to Wednesdays and Fridays), entertainment and food service to the customers of Tenant and other members of the public and that attendance at some of the events will require an admission fee or other charge and some will be without charge. Tenant shall have the right, at its option, during the term of this Sublease, to use the Improvements (as defined below) and the Premises in any reasonable and lawful manner consistent with Tenant's then current business practices contemplated by this Sublease. 5. QUIET ENJOYMENT. Landlord covenants that its estate in said Premises is as a tenant of the City under the Underlying Lease and that the Tenant, if not in default of this Lease or the Underlying Lease, shall peaceably have, hold and enjoy the Premises for the Term of this Sublease free from molestation, eviction, or disturbance by the Landlord or any other persons or legal entity whatsoever. City shall have the right to mortgage all of its right, title, and interest in said Premises at any time without notice, subject to this Lease. 6. CARE AND MAINTENANCE OF PREMISES. A. Tenant takes said Premises in their present condition except for such repairs and alterations as may be expressly herein provided. B. Landlord's Duty Of Care And Maintenance. Landlord shall have no duty of care or maintenance. C. Tenant's Duty Of Care And Maintenance. Tenant shall at all times during the term of this Sublease, at Tenant's own costs and expense, keep the Premises and the Improvements thereon, and all sidewalks, curbs, and all appurtenances to the Premises, in good order, condition, and repair, casualties and ordinary wear and tear excepted. Tenant shall keep and maintain the Premises and all improvements in superior condition, consistent with other similarly classed operations. Tenant shall keep the Premises in such condition as may be required by law and by the terms of the insurance policies furnished pursuant to this Sublease, 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 Tenant, Landlord may, at its discretion, conduct an annual inspection of the Premises to determine Tenant's compliance with this Article 6. Tenant shall, after taking possession of said Premises and until the termination of this Sublease and the actual removal from the premises, at its own expense, care for and maintain the surface of the Premises in a reasonably safe and serviceable condition including snow removal. Tenant will not permit or allow said premises to be damaged or depreciated in value by any act or negligence of Tenant, its agents or employees. Tenant may repair and replace any portion or all of the Premises. Tenant's maintenance obligation hereunder shall include snow removal, landscaping and other general maintenance. 3 D. Tenant will make no unlawful use of said Premises and agrees to comply with all city ordinances, and the laws of the State of Iowa and the federal government. E. Tenant agrees that its care and maintenance of the Premises shall at a minimum meet the Landlord's care and maintenance requirements under the Underlying Lease. 7. IMPROVEMENTS. On delivery of possession of the Premises to Tenant, Tenant shall not construct on the Premises any structures, buildings or other improvements except as agreed upon in advance by City (the "Improvements "). City shall have the right, in its reasonable discretion, to approve the design, appearance and quality of any such Improvements, which approval shall not be unreasonably withheld or delayed. All Improvements hereafter constructed on the Premises and all Trade Fixtures hereinafter located on the Premises are and shall be the property of Tenant during the term of this Sublease and no longer. Subject to the payment obligations of Tenant, upon any termination of this Sublease, by reason of any cause whatsoever, if the Improvements or any part thereof shall then be on the Premises, all of Tenant's right, title, and interest therein shall cease and terminate, and title to the Improvements shall vest in City, and the Improvements or the part thereof then within the Premises and all Trade Fixtures shall be surrendered by Tenant to City (excluding furniture, fixtures, and equipment in the offices). No further deed or other instrument shall be necessary to confirm the vesting in Premises of title to the Improvements or Trade Fixtures. However, upon any termination of this Sublease, Tenant, upon request of City, shall execute, acknowledge and deliver to City a quitclaim deed confirming that all of Tenant's right, title and interest in or to the Improvements or Trade Fixtures has expired, and that title to the Improvements and Trade Fixtures has vested in City. Tenant shall not encumber by mortgage, deed of trust, or other instrument, its leasehold interest and estate in the Premises, or any Improvements placed by Tenant on the Premises. 8. ICE HARBOR URBAN RENEWAL DISTRICT DESIGN STANDARDS. Tenant agrees that it shall at all times comply with the Ice Harbor Urban Renewal District Design Standards with respect to the Premises. 9. UTILITIES AND SERVICES. Tenant, during the term of this Sublease, shall pay, before delinquency, all charges for all utilities and services, including garbage disposal and trash disposal. 4 10. SURRENDER OF PREMISES AT END OF TERM - REMOVAL OF FIXTURES. A. Tenant shall, on the last day of the term of this Sublease or upon any termination of this Sublease, surrender and deliver up the Premises, with the Improvements then located thereon into the possession and use of City, in compliance with the Underlying Lease, without fraud or delay and in good order, condition, and repair, 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 Sublease and those, if any, created by Landlord, without (except as otherwise provided herein) any payment or allowance whatever by Landlord on account of or for any buildings and improvements erected or maintained on the Premises at the time of the surrender, or for the contents thereof or appurtenances thereto. At City's option, Landlord and Tenant shall agree to jointly remove any or all of the Improvements located on the Premises. B. Holding Over. Subject to the terms of the Underlying Lease, continued possession, beyond the expiratory date of the term of this Sublease by the Tenant, coupled with the acceptance of the specified rental by the Landlord (and absent a written agreement by both parties for an extension of this Sublease, or for a new lease) shall constitute a month to month extension of this Sublease. 11. ASSIGNMENT AND SUBLETTING. This Sublease may not be assigned nor the Premises sublet by the Tenant without the prior written consent of the Landlord, DRA and City, which consent shall not be unreasonably withheld. 12. REAL ESTATE TAXES. A. Tenant agrees to timely pay all taxes, assessments or other public charges levied or assessed by lawful authority (but reasonably preserving Tenant's rights of appeal) against the Premises, its personal property on the premises, during the term of this Sublease. Landlord agrees to timely pay all taxes, assessments or other public charges levied or assessed against the Premises accruing on or prior to the date of this Sublease. B. Nothing herein shall require Tenant to pay any of Landlord's income taxes, surtaxes, excess profit taxes or any taxes on the rents reserved to Landlord hereunder. 13. INSURANCE. A. Tenant shall keep the Premises and its liability in regard thereto, and the personal property on the Premises, insured as set forth in the attached Insurance Schedule against hazards and casualties; that is, fire and those items usually covered by extended coverage; and Tenant will procure and deliver to the Landlord a certification form the respective insurance companies to that effect. 5 B. [INTENTIONALLY LEFT BLANK.] C. [INTENTIONALLY LEFT BLANK.] D. Tenant further agrees to comply with recommendations of Iowa Insurance Service Bureau and to be liable for and to promptly pay, as if current rental, any increase in insurance rates on said premises due to increased risks or hazards, resulting from Tenant's use of the premises otherwise than as herein contemplated and agreed. E. [INTENTIONALLY LEFT BLANK.] 14. INDEMNITY AND LIABILITY INSURANCE. A. Tenant will protect, indemnify, and save harmless Landlord 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 Landlord by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Premises during the term of this Sublease and resulting from any act or omission of Tenant or anyone claiming by, through, or under Tenant during the term of the Sublease; or (b) any action or omission of the Tenant that directly or indirectly causes the Landlord to be in default or breach of the Underlying Lease. In case any action, suit, or proceeding is brought against Landlord by reason of such occurrence, Tenant will, at Tenant's expense, resist and defend such action, suit, or proceeding. B. Tenant further covenants and agrees that it will at its own expense procure and maintain liability insurance as set forth in the attached Insurance Schedule as such schedule may from time to time be mutually agreed upon by City and Tenant. The Landlord shall be named as an additional insured. Such insurance shall be primary and non - contributory to any coverage maintained by Peninsula or the City. C. Notwithstanding any provision of this Sublease to the contrary, if either party hereto suffers a loss or damages, and such loss or damages would typically be covered under any policy of insurance that such party actually maintains or is required to maintain pursuant to this Sublease, then such party hereby releases the other party to and from any and all liability for each such loss or damage. All insurance policies maintained by the Tenant as provided in this Section shall contain an agreement by the insurer waiving the insurer's right of subrogation against the other party to this Lease or agreeing not to acquire any rights of recovery which the insured has expressly waived prior to loss. 15. FIRE AND CASUALTY. PARTIAL DESTRUCTION OF PREMISES. A. In the event of a partial destruction or damage of the Premises, which is a business interference, that is, which prevents the conducting of a normal 6 business (patio) operation and which damage is reasonably repairable within sixty (60) days after its occurrence, this Sublease shall not terminate but the rent for the Premises shall abate during the time of such business interference. In the event of partial destruction, Tenant shall repair such damages (at its sole cost) within sixty (60) days of its occurrence unless prevented from so doing by acts of God, the elements, the public enemy, strikes, riots, insurrection, government regulations, city ordinances, labor, material or transportation shortages, or other causes beyond Tenant's reasonable control. B. Zoning. Should the zoning ordinance of the City of Dubuque make it impossible for Tenant using diligent and timely effort to obtain necessary permits and to repair and /or rebuild so that Tenant is not able to conduct its business on these premises, then such partial destruction shall be treated as a total destruction as in the next paragraph provided. C. Total Destruction Of Business Use. In the event of a destruction or damage of the Premises so that Tenants is not able to conduct its intended use on the Premises or the then current legal use for which the premises are being used and which damages cannot be repaired within One hundred eighty (180) days this Sublease may be terminated at the option of Tenant. In which event, all insurance proceeds received by Tenant shall be payable to Landlord and if the cost to return the Premises to its then current condition shall be in excess of such cost, the Tenant shall be responsible for and shall pay over to Landlord such shortfall. Such termination in such event shall be effected by written notice of Tenant to Landlord, within (20) days after such destruction. Tenant shall surrender possession within ten (10) days after such notice issues, and each party shall be released from all future obligations hereunder (except for Tenant's obligations set forth above), Tenant paying rental pro rata only to the date of such destruction. Tenant may rebuild the parking lot and continue under the terms of this Sublease if Tenant so elects. In the event of such termination of this Sublease, Landlord at its option, may rebuild or not, according to its own wishes and needs. 16. CONDEMNATION. A. Entire Condemnation. If at any time during the term of this Sublease all or substantially all of the 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 Sublease 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 Premises and the improvements thereon shall be deemed to have been taken if the remaining portion of the Premises shall not be of sufficient size to permit Tenant to operate its business thereon in a manner similar to that prior to such taking. B. Allocation of Award. Any award for such taking of all or substantially all of the Premises shall be paid to the parties thereto in accordance with the following: 1. To Landlord, the amount of the award attributable to the Premises, determined as if this Sublease was not in effect at the time of such award, excluding therefrom the amount of the award attributable to the improvements, and all other sums not directly attributable to the value of the Land constituting the Premises. 2. To Tenant, the entire award except that portion allocated to Landlord above, including but not limited to, the value of the improvements plus any other amount assessed for Tenant. C. Partial Condemnation. If less than all or substantially all of the 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 Tenant, at its option, may elect to continue this Sublease in full force and effect or terminate this Sublease. If Tenant shall elect to maintain this Sublease in full force and effect, the entire award for such partial condemnation shall be paid over to Tenant, and Tenant 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 Sublease. In the event Tenant elects to continue this Sublease in full force and effect after a partial condemnation, there shall be no abatement in the Basic Rent Tenant is required to pay hereunder. Should Tenant elect to terminate this Sublease upon a partial condemnation, Tenant shall provide Landlord with written notice of such election within thirty (30) days after the date of vesting of title for such taking. Tenant shall specify in such written notice the date on which this Sublease shall terminate, which date shall be not less than 60 days nor more than 360 days after delivery of such notice to Landlord (the Termination Date). In the event Tenant terminates this Sublease, as provided for in this Article 13.3, Tenant shall be entitled to the entire award for such partial taking. D. Temporary Taking. If the temporary use of the whole or any part of the Premises or the Improvements thereon or the appurtenances thereto shall be taken at any time during the term of this Sublease in the exercise of the power of eminent domain by any sovereign, municipality, or other authority, the term of this Sublease shall not be reduced or affected in any way, and Tenant 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 Tenant, and the entire award for such temporary taking shall be paid to Tenant. Tenant shall repair and restore any and all damage to the Premises and the improvements as soon as reasonably practicable after such temporary taking. E. Bankruptcy or Insolvency of Tenant. In the event Tenant is adjudicated a bankrupt or in the event of a judicial sale or other transfer of Tenant's leasehold interest by reason by any bankruptcy or insolvency proceedings or by other operation of law, but not by death, and such bankruptcy, judicial sale or transfer has not been vacated or set aside within ten (10) days from the giving of notice thereof by 8 Landlord to Tenant, then and in any such events, Landlord may, at its option, immediately terminate this Sublease, re -enter said premises, upon giving ten (10) days' written notice by Landlord to Tenant, all to the extent permitted by applicable law. 17. DEFAULT. If Tenant shall fail or neglect to observe, keep, or perform any of the covenants, terms, or conditions contained in this Sublease on its part to be observed, kept, or performed, and the default shall continue for a period of thirty (30) days after written notice form Landlord setting forth the nature of Tenant'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 Tenant has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence), then and in any such event, Landlord shall have the right at its option, on written notice to Tenant, to terminate this Sublease and all rights of Tenant under this Sublease shall then cease. Landlord, without further notice to tenant shall have the right immediately to enter and take possession of the Premises with or without process of law and to remove all personal property from the Premises and all persons occupying the Premises and to use all necessary force therefor and in all respects to take the actual, full, and exclusive possession of the Premises and every part of the Premises as of Landlord's original estate, without incurring any liability to Tenant or to any persons occupying or using the Premises for any damage caused or sustained by reason of such entry on the Premises or the removal of persons or property from the Premises. 18. RIGHT OF EITHER PARTY TO MAKE GOOD ANY DEFAULT OF THE OTHER. If default shall be made by either party in the performance of, or compliance with, any of the terms, covenants or conditions of this Sublease, and such default shall have continued for thirty (30) days after written notice thereof from one party to the other, the person aggrieved, in addition to all other remedies now or hereafter provided by law, may, but need not, perform such term, covenant or condition, or make good such default and any amount advanced shall be repaid forthwith on demand, together with interest at the rate of 9% per annum, from date of advance. the premises; 19. SIGNS. A. Tenant shall have the right and privilege of attaching, affixing, painting or exhibiting signs on the Premises, provided: 1. That any and all signs shall comply with the ordinances of the City of Dubuque and the laws of the State of Iowa and the Ice Harbor Urban Renewal District Design Standards; 2. Such signs shall not change the structure of any building or 3. Such signs if and when taken down shall not damage any building or the premises; and 9 4. Such signs shall be subject to the written approval of the Landlord and City, which approval shall not be unreasonably withheld. 20. MECHANIC'S LIENS. Neither the Tenant nor anyone claiming by, through, or under the Tenant, shall have the right to file or place any mechanic's lien or other lien of any kind of character whatsoever, upon said premises or upon any building or improvement hereon, or upon the leasehold interest of the Tenant therein, and notice is hereby given that no contractor, sub - contractor, or anyone else who may furnish any material, service or labor for any building, improvements, alteration, repairs or any part thereof, shall at any time be or become entitled to any lien thereon, and for the further security of the Landlord, the Tenant covenants and agrees to give actual notice thereof in advance, to any and all contractors and sub - contractors who may furnish or agree to furnish any such material, service or labor. 21. [INTENTIONALLY LEFT BLANK] 22. RIGHTS CUMULATIVE. The various rights, powers, options, elections and remedies of either party, provided in this Sublease, shall be construed as cumulative and no one of them as exclusive of the others, or exclusive of any rights, remedies or priorities allowed either party by law, and shall in no way affect or impair the right of either party to pursue any other equitable or legal remedy to which either party may be entitled as long as any default remains in any way unremedied, unsatisfied or undischarged. 23. PROVISIONS TO BIND AND BENEFIT SUCCESSORS, ASSIGNS, ETC. Each and every covenant and agreement herein contained shall extend to and be binding upon the respective successors, heirs, administrators, executors and assigns of the parties hereto. 24. CONSTRUCTION. Words and phrases herein, including acknowledgment hereof, shall be construed as in the singular or plural number, and as masculine, feminine or neuter gender according to the context. 25. ENVIRONMENTAL. A. Landlord. Pursuant to the original Lease Agreement, the City of Dubuque agrees to assume liability and shall indemnify and hold Tenant harmless against all liability or expense arising from any condition which existed, whether know or unknown, at the time of execution of the Lease Agreement which condition is not a result of actions of the Tenant or which condition arises after date of execution but which is not a result of actions of the Tenant. Tenant acknowledges that the City is or will be conducting remediation on the Premises and Tenant hereby grants to the City the right to enter the Premises for the purposes of testing, sampling, and conducting remediation activities. 10 B. Tenant. Tenant expressly represents and agrees: 1. During the lease term, Tenant's use of the property will not include the use of any hazardous substance without Tenant first obtaining the written consent of Landlord. Tenant understands and agrees that Landlord's consent is at Landlord's sole option and complete discretion and that such consent may be withheld or may be granted with any conditions or requirements that Landlord deems appropriate. 2. During the lease term, Tenant shall be fully liable for all costs and expenses related to the use, storage, removal and disposal of hazardous substances used or kept on the property by Tenant, and Tenant shall give immediate notice to Landlord of any violation or any potential violation of any environmental regulation, rule, statute or ordinance relating to the use, storage or disposal of any hazardous substance. 3. Tenant, at its sole cost and expense, agrees to remediate, correct or remove from the premises any contamination of the property caused by any hazardous substances which have been used or permitted by Tenant on the premises during any term of this Sublease. Remediation, correction or, removal shall be in a safe and reasonable manner, and in conformance with all applicable laws, rules and regulations. Tenant reserves all rights allowed by law to seek indemnity or contribution from any person, other than Landlord, who is or may be liable for any such cost and expense. 4. Tenant agrees to indemnify and hold Landlord harmless from and against all claims, causes of action, damages, loss, costs, expense, penalties, fines, lawsuit, liabilities, attorney fees, engineering and consulting fees, arising out of or in any manner connected with hazardous substances, which are caused or created by Tenant on or after the date of this Sublease and during any term of this Sublease, including, but not limited to, injury or death to persons or damage to property, and including any diminution of the value of any Premises which may result from the foregoing. This indemnity shall survive the cessation, termination, abandonment or expiration of this Sublease. 26. MEMORANDUM OF SUBLEASE. Each of the parties hereto will, promptly upon request of the other, execute a memorandum of this Sublease in a form suitable for recording setting forth the names of the parties hereto and the term of this Sublease, identifying the Premises, and also including such other clauses therein as either party may desire. 27. NOTICES. All notices, demands, or other writings in this Sublease 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 addressed as follows: 11 TO LANDLORD: TO TENANT: TO CITY: Peninsula Gaming Company, L.L.C. 50 West 13th Street Dubuque, Iowa 52001 Dubuque County Historical Society 350 East 3rd Street Dubuque, Iowa 52001 City of Dubuque, Iowa 50 West 13 Street Dubuque, Iowa 52001 Attn: City Manager The address 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. 28. MISCELLANEOUS. A. Time of the Essence. Time is of the essence of this Sublease and all of its provisions. B. Governing Law. It is agreed that this Sublease shall be governed by, construed, and enforced in accordance with the laws of the State of Iowa. C. Paragraph Headings. The titles to the paragraphs of this Sublease 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 Sublease. D. Modification of Agreement. Any modification of this Sublease or additional obligation assumed by either party in connection with this Sublease shall be binding only if evidenced in a writing signed by each party or an authorized representative of each party. E. Parties Bound. This Sublease shall be binding on and shall inure to the benefit of and shall apply to the respective successors and assigns of Landlord and Tenant. All references in this Sublease to "Landlord" or "Tenant" shall be deemed to refer to and include successors and assigns of Landlord or Tenant without specific mention of such successors or assigns. F. 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 or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, chemical explosions, 12