Signed Contract_Schmitt Island Management AgreementCopyrighted
November 7, 2022
City of Dubuque
City Council Meeting
Consent Items # 016.
ITEM TITLE: Signed Contract(s)
SUMMARY: Schmitt Island Management Agreement.
SUGGESTED Suggested Disposition: Receive and File
DISPOSITION:
ATTACHMENTS:
Description Type
Schmitt Island Management Agreement Supporting Documentation
SCHMITT ISLAND MANAGEMENT AGREEMENT
BETWEEN CITY OF DUBUQUE, IOWA
AND SCHMITT ISLAND DEVELOPMENT CORPORATION
THIS MANAGEMENT AGREEMENT (this "Agreement") is made and entered into as
of October 20, 2022, by and between the CITY OF DUBUQUE, IOWA, an Iowa municipal
corporation (the "City"), and SCHMITT ISLAND DEVELOPMENT CORPORATION, an Iowa
nonprofit corporation
WHEREAS, the City is the owner of the real property and other assets situated on Chaplain
Schmitt Island located in the City of Dubuque, Iowa ("Schmitt Island"); and
WHEREAS, the financial and operational success and maintenance of such property and
assets is of the highest importance to the City of Dubuque; and
WHEREAS, SID is a nonprofit corporation formed to undertake or assist in the
management, development and sponsorship of assets, projects and activities directed to (i) the
general betterment of Schmitt Island and (ii) the implementation of the Chaplain Schmitt Island
Master Plan adopted by the City Council of Dubuque, Iowa and
WHEREAS, the City desires to engage SID, and SID desires to accept such engagement,
to provide management and marketing services on the terms and conditions set forth herein for
certain assets that are located on Schmitt Island and identified on attached Exhibit A, as such
Exhibit is amended, modified, supplemented or restated from time to time (the assets described
and set forth on Exhibit A are hereinafter referred to as the "Managed Schmitt Island Assets");
and
WHEREAS, the City intends to work in mutual accord with SID in order to ensure
provision of high -quality management and marketing services, thereby enhancing the use and
enjoyment of the Managed Schmitt Island Assets, while simultaneously lessening the burden of
government; and
WHEREAS, SID is not intended to displace the Dubuque Racing Association (DRA) as
the lessee and operator of all existing gaming facilities and other facilities within the DRA lease
with the City or any accessory facilities to those facilities that are contemplated in the lease
between the City and the DRA (Ex. outdoor amphitheater).
NOW, THEREFORE, in consideration of the mutual premises, covenants and agreements
herein contained, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions
For purposes of this Agreement, the following terms have the meanings referred to in this
Section 1:
"ADA" has the meaning specified in Section 8.1(b) of this Agreement.
"Agreement" has the meaning specified in this first paragraph of this Agreement.
"Capital Equipment" means any and all furniture, fixtures, machinery or equipment, either
additional or replacement, which according to the City's past practices is defined as a capital item.
"Capital Improvements" means any and all building additions, alterations, renovations,
repairs or improvements that have an initial dollar cost of not less than $3,000 per project and an
expected useful life of at least ten (10) years.
"CC" has the meaning specified in this first paragraph of this Agreement.
"City Council" means the City Council of the City of Dubuque, Iowa.
"City Fiscal Year" means a one-year period beginning July 1 and ending on June 30 of the
next year.
"City Manager" means the senior administrative official of the City as from time to time
appointed by the City Council, or such person as may from time to time be authorized in writing
by such administrative official to act for him/her with respect to any or all matters pertaining to
this Agreement.
"Confidential Information" has the meaning specified in Section 2.5(a)(iii) of this
Agreement.
"Disclosing Party" has the meaning specified in Section 2.5(a) of this Agreement.
"Equitable Liti-ag Lion" has the meaning specified in Section 13.2(g) of this Agreement.
"Event Expenses" means any and all expenses incurred, or payments made by SID in
connection with the management of, and/or the occurrence of events held at, any of the Managed
Schmitt Island Assets, including but not limited to costs for event staffing including ushers, ticket
takers, concession attendants, caterers, security and other event staff, and costs relating to setup
and cleanup.
"Fixture" means any object permanently attached to a property by way of bolts, screws,
nails, glue, cement or other means.
"Force Majeure" has the meaning specified in Section 13.6(a) of this Agreement.
"Laws" has the meaning specified in Section 11.2 of this Agreement.
"Losses" has the meaning specified in Section 8.1(a) of this Agreement.
"Managed Schmitt Island Assets" has the meaning specified in the Recitals of this
Agreement.
"Operating Expenses" means (a) any and all expenses and expenditures of whatever kind
or nature incurred directly, by SID in promoting, marketing, operating, maintaining and/or
managing the Managed Schmitt Island Assets, including, but not limited to: costs associated with
the operation of food and beverage concession and catering services at any of the Managed Schmitt
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Island Assets, employee compensation, employee benefits and related costs, contracted personnel
compensation, contracted personnel benefits and related costs, supplies, material and parts costs,
costs of any interns and independent contractors, advertising, marketing and public relations costs
and commissions, janitorial and cleaning expenses, data processing costs, dues, subscriptions and
membership costs, the costs of procuring and maintaining the insurance and amounts expended to
procure and maintain permits and licenses, charges, taxes, excises, penalties and fees, professional
fees, printing and stationery costs, Event Expenses, postage and freight costs, equipment rental
costs, computer equipment leases and line charges, repairs and maintenance costs (e.g., elevator
and HVAC), security expenses, utility and telephone charges, the cost of uniforms for employees
or contracted personnel, safety and medical expenses, exterminator and waste disposal costs, costs
relating to the maintenance of signage inventory and systems, the cost of compliance with laws
and regulations, costs incurred under agreements, commitments, licenses and contracts executed
as provided in Section 2.3(c) hereof, and the fixed management fees payable to SID pursuant to
Section 4.1 below, all as determined in accordance with generally accepted accounting principles
and recognized on a full accrual basis; provided that (a) each of the foregoing items, to the extent
incurred or paid by a Third -Party Contractor (as independent contractor or agent of SID) in the
performance of SID's obligations hereunder shall constitute Operating Expenses notwithstanding
the fact that such items were incurred by such Third -Party Contractor rather than directly by SID,
and (b) Operating Expenses shall not include expenses or expenditures in connection with Capital
Improvements and Capital Equipment purchases.
"Operating Revenues" means (a) any and all revenues of every kind or nature derived from
owning, operating, managing, promoting or marketing the Managed Schmitt Island Assets,
including, but not limited to: license, lease and concession fees and rentals, revenues from
merchandise sales, advertising sales, equipment rentals, utility revenues, admission fees, event
revenues, ticket office revenues, parking revenues, sponsorships, fundraisers, food service and
concession and catering revenues, commissions or other revenues from decoration and set-up,
security and other subcontractors miscellaneous operating revenues, revenues generated from
separate agreements with users of the Managed Schmitt Island Assets, and interest revenues, all as
determined in accordance with generally accepted accounting principles and recognized on a full
accrual basis.
"Recipient Party" has the meaning specified in Section 2.5(a) of this Agreement.
"Schmitt Island" has the meaning specified in the Recitals of this Agreement.
"SID" has the meaning specified in the first paragraph of this Agreement.
"SID Capital Equipment Purchases" has the meaning specified in Section 5.2(b) of this
Agreement.
"SID Capital Improvements" has the meaning specified in Section 5.2(b) of this
Agreement.
"SID Fiscal Year" means a one-year period beginning January 1 and ending December 31
of such year.
"Term" has the meaning specified in Section 3.
"Third Party Contractor" has the meaning specified in Section 2.3(a) of this Agreement.
2. Engagement of SID; Scope of Services.
2.1 Engagement.
(a) General Scope. The City hereby engages SID to promote, market, operate and manage the
Managed Schmitt Island Assets during the Term upon the terms and conditions hereinafter set
forth, and SID hereby accepts such engagement.
(b) Manager of the Managed Schmitt Island Assets. Subject to the terms of this Agreement,
SID shall be, as agent for the City, the sole and exclusive manager of the City to manage, operate,
promote and market the Managed Schmitt Island Assets during the Term. In such capacity, SID
shall have exclusive authority over the day-to-day operation of the Managed Schmitt Island Assets
and all activities therein; provided that SID shall follow all policies and guidelines of the City
hereafter established or modified by the City that the City notifies SID in writing are applicable to
the Managed Schmitt Island Assets (including without limitation any methodology pertaining to
the allocation of any costs and expenses by the City to the Managed Schmitt Island Assets as
permitted herein).
2.2 Scope of Services — Generally.
SID shall perform and furnish such management services and systems as are appropriate or
necessary to operate, manage, promote and market the Managed Schmitt Island Assets in a manner
consistent with SID's policies and procedures and the operations of other similar assets, and SID
shall act in accordance with prevailing industry standards to prevent any nuisance, damage or
hazardous activity from occurring at, on, about or within the Managed Schmitt Island Assets. In
addition to the foregoing, SID shall comply with the requirements and limitations outlined in the
Regulatory Matrix for Schmitt Island attached as Exhibit B. SID shall cooperate with the City,
and consider the City's recommendations and advice, with respect to the management of Managed
Schmitt Island Assets.
2.3 Specific Services.
Without limiting the generality of the foregoing, SID shall have the sole right and authority,
without any prior approval by the City (except as otherwise expressly noted below), to, directly or
indirectly through a Third -Party Contractor (as defined in subparagraph (a) below):
(a) negotiate, execute, deliver and administer, and assign any and all independent contractor
agreements, staffing agreements, management agreements, administration agreements, and all
other contracts and agreements in connection with the management, promotion and operation of
the Managed Schmitt Island Assets, it being expressly understood and agreed to by the City that
SID intends to contract with one or more third parties experienced and skilled in providing the
services contemplated hereunder (such third party or parties are individually and collectively
referred to as a "Third Party Contractor");
(b) negotiate, execute, deliver and administer any and all licenses, occupancy agreements,
rental agreements, booking commitments, advertising agreements, concession agreements,
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catering contracts, supplier agreements, service contracts (including, without limitation, contracts
for cleaning, decorating and set-up, general maintenance and maintenance and inspection of
HVAC systems, elevators, stage equipment, fire control panel and other safety equipment, staffing
and personnel needs, including security guards and ushers, and other services which are necessary
or appropriate) and all other contracts and agreements in connection with the management,
promotion and operation of the Managed Schmitt Island Assets, provided that if any such license,
agreement, commitment or contract other than those involving the license, lease or rental of the
Managed Schmitt Island Assets in the ordinary course has a term that extends beyond the Tterm
of this Agreement, as the case may be, such license, agreement, commitment or contract shall be
approved and executed by the City (which approval shall not be unreasonably withheld) or include
a provision for assignment to the City after expiration of the Term;
(c) to the extent that Operating Revenues or funds supplied by the City or other contributors
or donors are made available therefor, maintain the Managed Schmitt Island Assets in the condition
received, casualties and reasonable wear and tear excepted, and undertake SID Capital
Improvements and SID Capital Equipment Purchases; provided that the City shall be responsible
for undertaking all Capital Improvements and Capital Equipment purchases pursuant to Section 5;
(d) to the extent that Operating Revenues or funds supplied by the City or other contributors,
or donors are made available therefor, rent, lease or purchase all equipment and maintenance
supplies necessary or appropriate for the operation and maintenance of the Managed Schmitt Island
Assets; provided that the City shall be responsible for undertaking all Capital Improvements and
Capital Equipment purchases pursuant to Section 5;
(e) determine and establish fees, rates and rate schedules for users of the Managed Schmitt
Island Assets and, in connection therewith, SID shall evaluate comparable fees, rates and rate
schedules for users of similar goods and services at similar and/or competing facilities.
Notwithstanding the foregoing, if SID determines that such fees, rates and/or rate schedules need
to be adjusted, SID shall obtain the City Manager's approval;
(f) pay, when due, all Operating Expenses, SID Capital Improvements and SID Capital
Equipment Purchases from accounts established pursuant to Section 5 of this Agreement;
(g) institute such legal actions or proceedings as SID shall deem necessary or appropriate in
connection with the operation of the Managed Schmitt Island Assets, including, without limitation,
to collect charges, rents or other revenues due to SID or to cancel, terminate or sue for damages
under, any license, use, advertisement or service agreement for the breach thereof or default
thereunder by any licensee, user, advertiser, or service provider at the Managed Schmitt Island
Assets;
(h) maintain a master set of all booking records and schedules for the Managed Schmitt Island
Assets;
(i) provide day-to-day administrative services in support of its management activities pursuant
to Approved Budgets and annual plans described herein, including, but not limited to, the
acquisition of services, equipment, supplies and facilities; internal budgeting and accounting;
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maintenance and property management; custodial services; personnel management; record -
keeping; collections and billing; and similar services;
0) manage and operate the food and beverage concession and any catering services at the
Managed Schmitt Island Assets, including setting the prices for such concession items and catering
services and, in connection therewith, SID shall evaluate comparable prices for similar items and
services at similar and/or competing facilities;
(k) direct all marketing activities undertaken at or related to the Schmitt Island Managed Assets
in such a manner that maximizes the uses thereof by all persons and provides maximum revenue
and accessibility for the community and visitors to the Managed Schmitt Island Assets;
(1) develop and implement a marketing plan for the Managed Schmitt Island Assets;
(m) to the extent that the City has obtained the support of Travel Dubuque in the marketing of
the Managed Schmitt Island Assts, engage and partner with Travel Dubuque to market activities
of both Travel Dubuque and the Managed Schmitt Island Assets, including the development of
opportunities for tournaments, events, and other activities at the Managed Schmitt Island Assets
that will aid in bringing tournaments, events, and other activities to the Managed Schmitt Island
Assets and that will benefit the Dubuque community and its visitors;
(n) provide the services specified on any addendum attached to and incorporated into this
Agreement, if any, that pertains to any particular Managed Schmitt Island Asset; and
(o) engage in such advertising, solicitation, and promotional activities as SID deems necessary
or appropriate to develop the potential of the Managed Schmitt Island Assets and the cultivation
of broad community support (including, without limitation, selling advertising inventory,
sponsorships and, in consultation with the City, securing product and naming rights for the
Managed Schmitt Island Assets). In connection with its activities under this Agreement, including
without limitation advertising relating to the Managed Schmitt Island Assets, SID shall be
permitted to use the terms "Schmitt Island", "Schmitt Island Development Corporation" or
"Dubuque Ice Arena" and logos for such names in its advertising.
2.4 Right of Entry Reserved.
Representatives of the City shall have the right, upon twenty-four hours advance
notice to SID and at appropriate times, to enter all portions of the Managed Schmitt Island Assets
to inspect same, to observe the performance of SID of its obligations under this Agreement, to
install, remove, adjust, repair, replace or otherwise handle any equipment, utility lines, or other
matters in, on, or about the premises, or to do any act or thing which the City may be obligated or
have the right to do under this Agreement or otherwise. Nothing contained in this Section is
intended or shall be construed to limit any other rights of the City under this Agreement. The City
shall not interfere with the activities of SID hereunder, and the City's actions shall be conducted
such that disruption of SID's work shall be kept to a minimum. Nothing in this Section shall
impose or be construed to impose upon the City any independent obligation to construct or
maintain or make repairs, replacements, alterations, additions or improvements or create any
independent liability for any failure to do so.
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2.5 Confidentialitv/Nondisclosure.
(a) As used herein, "Confidential Information" means all confidential information disclosed
by a party ("Disclosing Party") to the other party ("Receiving Party'% whether orally or in writing,
that is designated as confidential or that reasonably should be understood to be confidential given
the nature of the information and the circumstances of disclosure. Confidential Information is
subject to open records requirements defined by state statute, unless explicitly exempt under state
statute. Confidential Information of each party shall include business and marketing plans,
technology and technical information, product plans and designs, and business processes disclosed
by such party. However, Confidential Information shall not include any information that
(i) is or becomes generally known to the public without breach of any obligation by the
Receiving Party owed to the Disclosing Party,
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without
breach of any obligation owed to the Disclosing Party,
(iii) is received from a third party without breach of any obligation owed to the Disclosing
Party, or
(iv) (iv) was independently developed by the Receiving Party.
(b) The Receiving Party shall use the same degree of care that it uses to protect the
confidentiality of its own confidential information of like kind (but in no event less than reasonable
care). The Receiving Party shall not to use any Confidential Information of the Disclosing Party
for any purpose outside the scope of this Agreement, and except as otherwise authorized by the
Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to
those of its and its affiliates' employees, contractors and agents who need such access for purposes
consistent with this Agreement and who have signed confidentiality agreements with the
Receiving Party containing protections no less stringent than those herein. Neither party shall
disclose the terms of this Agreement other than to its affiliates and their respective legal counsel
and accountants without the other party's prior written consent.
(c) The Receiving Party may disclose Confidential Information of the Disclosing Party if it is
compelled by law to do so which includes the opinion of its legal counsel that it is compelled by
law, provided the Receiving Party gives the Disclosing Party prior written notice of such
compelled disclosure. If the Disclosing Party fails to take any action to protect the Confidential
Information within ten (10) days after receipt of such notice, the Receiving Party may disclose the
Confidential Information with no liability of any kind to the Disclosing Party.
(d) With respect to any information or material which is protected by copyright of a Disclosing
Party, no part of such materials may be reproduced, stored in a data base and retrieval system or
transmitted in any form or by any means - graphic, electronic, photocopying, recording,
mechanical or otherwise - without the prior written permission of the Disclosing Party.
(e) Each Recipient Party agrees that the provisions of this Section 2.5 are reasonable and
necessary to protect the interests of the Disclosing Party and that the Disclosing Party's remedies
of law for a breach of any of the provisions of this Section 2.5 shall be inadequate and that, in
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connection with any such breach, the Disclosing Party shall be entitled, in addition to any other
remedies (whether at law or in equity), to temporary and permanent injunctive relief in accordance
with applicable law. Notwithstanding the foregoing, if a court of competent jurisdiction shall
determine any of the provisions of this Section 2.5 to be unreasonable, each Recipient Party agrees
to a reaffirmation of such provisions by such court to any limits which such court finds to be
reasonable, and each Recipient Party shall not assert that such provision shall be eliminated in their
entirety by such court.
(f) For all purposes of this Section 2 (including the definition of "Confidential Information"),
the term "party" shall be deemed to mean and include each Third -Party Contractor, and each of
SID and the City shall maintain the confidentiality of such Third -Party Contractor's confidential
information to the same extent as it is required by this Section 2 to maintain the confidential
information of the other.
3. Term and Renewal.
The City hereby engages SID beginning October 18, 2022 through January 31, 2023 with the
option to renew, in writing, for a period of thirty (30) additional days (the "Term").
4. Compensation, Fixed Fee.
As base compensation to SID for providing the services herein specified the City shall pay SID
$100,000, for services and operational expenses. The foregoing compensation shall be payable
upon execution of this Agreement by the City.
5. Funding; Budgets; Bank Accounts; Contributions.
5.1 Receipts and Disbursements.
SID shall establish and maintain in one or more depositories one or more operating and other bank
accounts for the promotion, operation and management of the Managed Schmitt Island Assets. All
revenues collected by SID from the operation of the Managed Schmitt Island Assets shall be
deposited into such accounts and Operating Expenses shall be paid by SID from such accounts.
All revenues collected by SID arising from operation of the Managed Schmitt Island Assets,
including revenues from ticket office sales, equipment rentals, utility rental agreements, food and
beverage concessions, or any other source, are the sole property of SID for application as provided
herein; provided, however, any amounts remaining in such accounts upon termination of this
Agreement for any reason, after payment of all outstanding Operating Expenses, Capital
Improvements and Capital Equipment purchases, shall be promptly paid by SID to the City.
5.2 Capital Improvements; Capital Equipment.
(a) The obligation to pay for, and authority to perform, direct and supervise Capital
Improvements and Capital Equipment purchases shall remain with the City, except as otherwise
provided in subparagraph (b) below, and shall not be considered Operating Expenses.
(b) Notwithstanding the City's obligations in subparagraph (a) above, SID may undertake
certain Capital Improvements projects ("SID Capital Improvements") and/or make certain Capital
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Equipment purchases ("SID Capital Equipment Purchases") with respect to the Managed Schmitt
Island Assets, pursuant to Iowa Code §26.6, to the extent that (i) the City Manager has approved
such SID Capital Improvements and/or SID Capital Equipment Purchases, as applicable, and
(ii) funds sufficient to fully pay for such SID Capital Improvements and/or SID Capital Equipment
Purchases have been contributed, granted, awarded, or donated by third parties and/or are on
deposit in the operating or other account(s) established pursuant to Section 5.1. The authority to
perform, direct and supervise SID Capital Improvements and SID Capital Equipment Purchases
shall remain with SID, but SID shall, in connection therewith, take into account the Capital
Improvements and Capital Equipment purchases to be funded by the City pursuant to subparagraph
(a). If appropriate (i.e., to the extent of capital improvements and purchases that impact or
implicate both Capital Improvements or Capital Equipment purchases by the City and SID Capital
Improvements or SID Capital Equipment Purchases), SID shall work with the City to prepare, and
mutually agree upon, a budget of the SID Capital Improvements and/or SID Capital Purchases,
along with the scope of work to be performed with respect thereto, the supervision of tasks, and
the estimated time frames for the projects listed in such budget.
5.3 Limitation of SID Liability.
Notwithstanding any provision herein to the contrary and except for SID's express indemnification
undertakings in Section 8.1 and its express reimbursement undertakings in Section 6.1(b), SID
shall have no obligation to fund any cost, expense, or liability with respect to the operation,
management or promotion of the Managed Schmitt Island Assets.
5.4 Funds for Emergency Repairs.
SID shall have the right to act, without the prior consent of the City Manager, in situations which
SID determines to be an emergency with respect to the safety, welfare and protection of the general
public, including spending and committing funds held in the operating or other account(s) of the
Managed Schmitt Island Assets, even if such expenses are not budgeted; provided, however, SID
shall have no obligation under any circumstance to spend or commit funds other than funds then
available in such accounts for any such purpose. Immediately following such action, SID shall
inform the City Manager of the situation and the action(s) taken, and the City shall pay into such
account(s) the amount of funds, if any, spent or committed by SID pursuant in excess of budgeted
amounts.
5.5 Contributions; Donations.
(a) The City shall contribute the aggregate sum of One Hundred Seventy Thousand ($170,000)
to SID for the purpose of making food and beverage concession improvements at the Managed
Schmitt Island Assets, which sum was previously allocated to the Capital Improvement Project
titled "Ice Center Concession Improvements", CIP Number 3502954, as part of the City's FY2023
Capital Improvements Budget. Such contribution shall be made by the City promptly following
the execution of this Agreement and shall be deposited by SID into the operating or other
account(s) established pursuant to Section 5. L SID shall get competitive quotes for any single
expenditure of the contributed funds which exceed $109,000.
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(b) To the extent that any third parties make any contributions or donations to SID, and
provided that the particular use of such contributed or donated funds is not restricted or designated
by the contributor or donator thereof for a specific purpose (in which case, SID shall use such
contributed or donated funds for the restricted or designated purpose specified by such contributor
or donator), SID shall have the right to use such contributed or donated funds as it sees fit for
Operating Expenses, SID Capital Improvements, SID Capital Equipment Purchases, or projects
related to the Managed Schmitt Island Assets, provided that such usage shall take into account the
Capital Improvements and Capital Equipment purchases to be funded by the City pursuant to
subparagraph (a) above.
5.6 Continued Negotiations.
The Parties acknowledge this arrangement is new for both parties and the planned improvements
and financial arrangements for the Managed Schmitt Island Assets are in flux. The Parties agree
to negotiate in good faith during the term of this Agreement to reach a formula which is satisfactory
to both and in the best interests of the taxpayers.
6. Records, Audits and Reports.
6.1 Records and Audits.
(a) SID shall keep full and accurate accounting records relating to its activities at the Managed
Schmitt Island Assets in accordance with generally accepted United States accounting principles.
SID shall maintain a system of bookkeeping adequate for its operations hereunder and shall
establish and maintain internal financial control policies and practices related to its activities at the
Managed Schmitt Island Assets in accordance with generally accepted standards in the industry
and reasonably acceptable to the City. SID shall give the City's authorized representatives access
to such books and records maintained at the Managed Schmitt Island Assets during reasonable
business hours and upon reasonable advance notice. SID shall keep and preserve for at least five
(5) years following each SID Fiscal Year all sales slips, rental agreements, purchase order, sales
books, credit card invoices, bank books or duplicate deposit slips, and other evidence of Operating
Revenues, Operating Expenses, SID Capital Improvements and SID Capital Equipment Purchases
for such period. In addition, on or before March 1 following each SID Fiscal Year for which SID
is managing the Managed Schmitt Island Assets hereunder (beginning March 1, 2023), SID shall
furnish to the City a balance sheet, a statement of profit or loss and a statement of cash flows for
the Managed Schmitt Island Assets for the preceding SID Fiscal Year, prepared in accordance with
generally accepted United States accounting principles and accompanied by an independent
auditor's report of a nationally recognized, independent certified public accountant. The audit
shall contain an opinion expressed by the independent auditor of the accuracy of financial records
kept by SID. The audit shall also provide a certification of Operating Revenues, Operating
Expenses, SID Capital Improvements and SID Capital Equipment Purchases as defined in this
Agreement for such SID Fiscal Year. The audit shall be conducted by a reputable firm selected
by SID, which firm shall be acceptable to the City in its discretion, and the costs of such audit shall
constitute an Operating Expense hereunder.
(b) The City shall have the right at any time, and from time to time, to cause nationally
recognized independent auditors to audit all of the books of SID relating to Operating Revenues,
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Operating Expenses, SID Capital Improvements and SID Capital Equipment Purchases, including,
without limitation, cash register tapes, credit card invoices, duplicate deposit tapes, and invoices,
at the City's cost and expense. If any such audit demonstrates that the Operating Revenues,
Operating Expenses, SID Capital Improvements or SID Capital Equipment Purchases reflected in
any financial statements prepared by SID and audited as specified in the foregoing subparagraph
(a) are understated or overstated in either case by more than five percent (5%), SID shall reimburse
the City for the reasonable cost of such audit, which reimbursement expense shall constitute an
Operating Expense hereunder. The City's right to have such an audit made with respect to any
SID Fiscal Year and SID's obligation to retain the above records shall expire three (3) years after
SID's statement for such SID Fiscal Year has been delivered to the City.
6.2 Additional Reports.
SID shall, upon reasonable request of the City, prepare for the City or assist the City in the
preparation of such additional financial reports with respect to the Managed Schmitt Island Assets
as may be required; provided, however, that SID shall not be required to provide any additional
reports considered confidential, proprietary, or a trade secret.
7. Employees; Contracted Personnel.
7.1 Employees; Contracted Personnel.
(a) SID, directly or indirectly through a Third Party Contractor as agent for SID, shall select,
train, employ and supervise at the Managed Schmitt Island Assets such number of employees or
contracted personnel as SID deems necessary or appropriate to satisfy its responsibilities
hereunder; SID shall use its best efforts to recruit, hire and train employees or contracted personnel
who shall be proficient, productive, and courteous to patrons or users of the Managed Schmitt
Island Assets, and, SID shall have authority to hire (or contract), terminate and discipline any and
all personnel working at or rendering services in respect of the Managed Schmitt Island Assets.
(b) Neither SID nor a Third -Party Contractor will at any time discriminate against any
employee or subcontractor, or against any invitee or other person or entity whatsoever, because of
race, creed, color, religion, sex, age, sexual orientation, gender identity, national origin, disability,
or status as a disabled veteran. SID and Third -Party Contractor will follow and comply with all
applicable local, state, and federal anti -discrimination and employment laws and shall post in
conspicuous places within the administrative offices at the Managed Schmitt Island Assets that are
available to employees and applicants for employment, notices setting forth the provisions of the
nondiscrimination clause required by this paragraph. In all solicitations and advertisements for
employment placed by SID or Third -Party Contractor with respect to positions at the Managed
Schmitt Island Employees, SID or such Third -Party Contractor, as applicable, shall state that it is
an equal opportunity employer.
(c) SID employees and/or contracted personnel working at or rendering services in respect of
the Managed Schmitt Island Assets shall not for any purpose be considered to be employees of the
City. SID, directly or indirectly through a Third -Party Contractor, shall be solely responsible for
the supervision and daily direction and control of such employees and/or contracted personnel, as
well as for setting and paying, as an Operating Expense, their compensation and any employee
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benefits. SID, directly or indirectly through a Third Party Contractor, shall pay employees' wages,
provide benefits as required by law, withhold and pay all payroll taxes, provide unemployment
and workers' compensation insurance, pay employer's portion of state and federal unemployment
compensation taxes and social security taxes, maintain all I-9 forms, and comply with all other
federal, state, and local laws applicable to SID or such Third Party Contractor as an employer or
as a common law employer, including but not limited to, compliance with all of the provisions of
the Patient Protection and Affordable Care Act, with respect to employees staffed at the Managed
Schmitt Island Assets.
8. Indemnification and Insurance.
8.1 Indemnification.
(a) SID shall indemnify, defend and hold harmless the City, its officers, agents and employees
from and against any and all losses, liabilities, claims, damages and expenses (including reasonable
attorneys fees) (collectively, "Losses") arising from any negligent act or omission by SID or a
Third Party Contractor and their respective directors, officers, agents, volunteers, or employees,
or any material default or breach by SID of its obligations specified herein; provided, however,
that the foregoing indemnification shall not extend to Losses to the extent such Losses (i) arise
from any breach or default by the City of its obligations under Section 8.1(b) below, (ii) are caused
by or arise out of the services provided by the architects, engineers and other agents (other than
SID) retained by the City in connection with Capital Improvements or Capital Equipment
purchases at the Managed Schmitt Island Assets, or (iii) relate to or arise from occupational related
diseases of any City employees who provide any services at the Managed Schmitt Island Assets.
(b) The City shall indemnify, defend and hold harmless SID, each Third Party Contractor and
their respective directors, officers, agents, volunteers, and employees from and against any and all
Losses arising from (i) any material default or breach by the City of its obligations specified herein,
(ii) the fact that at any time prior to, as of, or after the commencement of the Term hereunder the
Managed Schmitt Island Assets has not been operated, or the Managed Schmitt Island Assets and
its premises are not or have not been, in compliance with all Laws (as defined in Section 11.2
hereof), including, but limited to, the Americans with Disabilities Act, 42 U.S.C. Sections 12101-
12213 as amended by the Civil Rights Act of 1991 (42 U.S.C. Section 1981(a)), as it now exists
and as it may be amended in the future by statute or judicial interpretation (collectively, the
"ADA"), (iii) the fact that prior to, as of, or after the commencement of the Term hereunder there
is any condition on, above, beneath or arising from the premises occupied by the Managed Schmitt
Island Assets which might, under any Law, give rise to liability or which would or may require
any "response," "removal" or "remedial action" (as such terms are defined under the
Comprehensive Environmental Response, Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act), (iv) any structural defect or unsound operating
condition with respect to the Managed Schmitt Island Assets or the premises occupied by the
Managed Schmitt Island Assets prior to, as of, or after the commencement of the Term hereunder,
(v) any obligation or liability under or in respect of any contract, agreement or other instrument
executed by SID as agent for the City as authorized herein, (vi) any obligation or liability for
physical damage or other Loss to any real property and personal property assets located at or
comprising the Managed Schmitt Island Assets or intended to be incorporated therein, whether
such assets are insured by the City or whether the City decides not to insure for such damage and
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Losses (including, without limitation, damages or Losses falling within any policy deductible), or
(vii) any act or omission carried out by SID (either directly or indirectly through a Third Party
Contractor as agent of SID) at or pursuant to the direction or instruction of the City, its agents or
employees (including, without limitation, the City Manager); provided, however, that the
foregoing indemnification under clauses (i) and (ii) above shall not extend to Losses to the extent
such Losses arise from any default or breach by SID of its obligations specified herein.
(c) The provisions set forth in subparagraphs (a) and (b) above shall survive termination of
this Agreement; provided, however, indemnification based upon Section 8.1(b)(ii), (iii), (iv), (v),
(vi), or (vii) above, a claim for indemnification pursuant to Section 8.1 shall be valid only if the
party entitled to such indemnification provides written notice thereof to the other party prior to
three (3) years following the date of termination of this Agreement.
(d) The terms of all insurance policies referred to in Section 8, including without limitation (i)
the property insurance policies of the City, and (ii) the policies of any Third -Party Contractor or
any other independent contractors retained by the City or hired by SID (such as, emergency
medical technicians who are not employed by SID), shall preclude subrogation claims against SID,
the City and their respective officers, directors, employees and agents.
(e) The foregoing indemnification rights shall be the exclusive remedies of each party hereto
(other than any right to terminate this Agreement pursuant to Section 12) arising from any breach
of, default under or performance pursuant to this Agreement.
8.2 Liability Insurance.
(a) SID (directly or indirectly through a Third -Party Contractor) shall at all times during the
Term maintain insurance as required by the City's standard Insurance Schedule for Management
Services as such schedule may from time to time be amended not more frequently than once a year
by the City. A copy of the City's current schedule is attached hereto as Exhibit C.
(b) All of the insurance policies described in this Section 8 shall contain a provision covering
the parties' indemnification liabilities to each other.
(c) Notwithstanding the provisions of this Section 8.2, the parties hereto acknowledge that the
above policies may contain exclusions from coverage which are reasonable and customary for
policies of such type.
8.3 Property Insurance.
(a) The City shall maintain its current property insurance covering the premises of the
Managed Schmitt Island Assets and its personal property located thereat. The City shall, with
respect to the Losses covered by such property and hazard insurance and business interruption and
extra expenses insurance, waive any subrogation rights that it may have against SID, a Third -Party
Contractor, and their respective officers, directors, employees and agents, whether or not the City
self -insures for the Losses covered by such insurance. Nothing in this Agreement is intended to
require SID to maintain property and hazard insurance covering the premises at the Managed
Schmitt Island Assets, the City's personal property located thereat or business interruption
13
insurance covering the interruption of operations by or for whatever cause at the Managed Schmitt
Island Assets.
(b) The original or a certified copy of the above policy, or policies, referred to in Section 8.3(a)
(with all required policy endorsements), plus certificates evidencing the existence thereof, all in
such form as SID may reasonably require, shall be delivered to SID prior to the commencement
of this Agreement. Notwithstanding the provisions of this Section 8.3, the parties hereto
acknowledge that the above policies may contain exclusions from coverage which are reasonable
and customary for policies of such type. Each such policy or certificate shall contain a valid
provision or endorsement stating, "This policy shall not be canceled or materially changed or
altered without first giving thirty (30) days' written notice thereof to "Schmitt Island Development
Corporation, Attn: President of the Board, 1800 Admiral Sheehy Drive, Dubuque, Iowa 52001,
sent by certified mail, return receipt requested."
(c) A renewal binder of coverage (or satisfactory evidence of such renewal) shall be delivered
to SID at least twenty (20) days before a policy's expiration date except for any policy expiring on
the termination date of this Agreement or thereafter.
9. Ownership of Assets.
9.1 Ownership.
The ownership of buildings and real estate, technical and office equipment and facilities, furniture,
displays, fixtures, vehicles and similar tangible property comprising the Managed Schmitt Island
Assets shall remain with the City. Ownership of and title to all intellectual property rights of
whatsoever value, held in the City's name shall remain in the name of the City. The ownership of
consumable assets (such as office supplies and cleaning materials) purchased with Operating
Revenues or City funds shall remain with the City, but such assets may be utilized and consumed
by SID in the performance of services under this Agreement. The ownership of data processing
programs and software owned by the City shall remain with the City, and the ownership of data
processing programs and Software owned by SID, or a Third -Party Contractor shall remain with
SID or such Third -Party Contractor. Neither SID nor a Third -Party Contractor shall take or use,
for its own purposes, customer or exhibitor lists or similar materials developed by the City for the
use of the Managed Schmitt Island Assets, unless written consent is granted by the City Manager.
Ownership of equipment, furnishings, materials, or fixtures not considered to be real property and
other personal property purchased by SID with City funds for use at and for the Managed Schmitt
Island Assets shall vest in the City automatically and immediately upon purchase or acquisition.
The assets of the City as described herein shall not be pledged, liened, encumbered or otherwise
alienated or assigned other than in the ordinary course of business of the Managed Schmitt Island
Assets without the prior approval of the City.
9.2 City Obligations.
Except as herein otherwise set forth, throughout the term of this Agreement, the City shall maintain
full beneficial use and ownership of the Managed Schmitt Island Assets and shall pay, keep,
observe and perform all payments, terms, covenants, conditions and obligations under any bonds,
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debentures or other security agreements or contracts relating to the Managed Schmitt Island Assets
to which the City may be bound.
10. Assignment.
10.1 Assignment.
Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either
party hereto without the prior written consent of the other party hereto; provided, however, that
notwithstanding the foregoing, the prior written consent of the City shall not be required in order
for SID to assign its management fees (or any portion thereof), or its right to assign or delegate its
obligations to perform any services required to be performed by SID under or pursuant to this
Agreement, to any Third Party Contractor.
11. Laws and Permits.
11.1 Permits. Licenses. Taxes and Liens.
SID (directly or indirectly through a Third -Party Contractor) shall use reasonable efforts to procure
any permits and licenses required for the business to be conducted by it hereunder. The City shall
cooperate with SID or such Third -Party Contractor in applying for such permits and licenses. SID
shall deliver copies of all such permits and licenses to the City Manager. SID shall pay promptly,
out of the accounts specified in Section 5.1, all taxes, excises, license fees and permit fees of
whatever nature arising from its operation, promotion and management of the Managed Schmitt
Island Assets. As mechanic or materialman liens are not authorized by Iowa law to be attached to
government -owned facilities, SID shall ensure other protections to secure payment for those
working on any public improvements at the premises or improvements at the Managed Schmitt
Island Assets, or any part of parcel thereof.
11.2 Governmental Compliance.
SID, each Third -Party Contractor, and their respective officers, directors, agents and employees
shall comply with all federal, state, local and municipal regulations, ordinances, statutes, rules,
laws and constitutional provisions (collectively, "Laws") applicable to SID's management of the
Managed Schmitt Island Assets hereunder, including without limitation Title III of the ADA and
the provision of such auxiliary aids or alternate services as may be required by the ADA. Nothing
in this Section 11.2 or elsewhere in this Agreement shall, however, require SID to undertake any
of the foregoing compliance activity, nor shall SID have any liability under this Agreement
therefor, if such activity requires any Capital Improvements or Capital Equipment purchases,
unless the City provides funds for such Capital Improvements and Capital Equipment purchases
pursuant to Section 5 hereof. Furthermore, SID shall have the right to require any licensee, lessee,
tenant, promoter or user of any portion of the Managed Schmitt Island Assets to comply, and to be
financially responsible for compliance, with Title III of the ADA in connection with any activities
of such licensee, lessee, tenant, promoter or user at the Managed Schmitt Island Assets.
15
11.3 No Discrimination; Affirmative Action.
In connection with the rendering of services or performance of work under this Agreement or
otherwise carrying out this Agreement, SID shall not refuse to hire, discharge, refuse to promote
or demote, or discriminate in matters of compensation or in the hiring or use of the Managed
Schmitt Island Assets or improvements thereon because of race, religion, color, sex, sexual
orientation, gender identify, national origin, age, disability, or other protected class.
12. Termination.
12.1 Right to Terminate.
Either party has the right to terminate this agreement upon thirty (30) days written notice to the
other party.
12.1 Effect of Termination.
In the event this Agreement expires or is terminated, (i) all Operating Expenses incurred or
committed for prior to the date of expiration or termination shall be paid using funds on deposit in
the account(s) described above and to the extent such funds are not sufficient, the City shall pay
all such Operating Expenses and shall indemnify and hold SID harmless therefrom, and (ii) the
City shall promptly pay SID all fees earned to the date of expiration or termination (the fixed fees
described in Section 4 hereof being subject to proration), provided that the City shall be entitled to
offset against such unpaid fees any damages (actual, not consequential) directly incurred by the
City in remedying any default by SID hereunder which resulted in such termination (other than
the fees or expenses of any replacement manager for the Managed Schmitt Island Assets). Upon
the expiration of this Agreement or a termination pursuant to Section 12.1 or 12.2, all further
obligations of the parties hereunder shall terminate except for the obligations in this Section 12.3
and in Sections 7.8.1 and 12.4; provided, however, that if such termination is the result of a willful
default, the nondefaulting party exercising its right to terminate this Agreement shall be entitled to
recover damages for breach arising from such willful default.
12.2 Surrender of Premises.
Upon termination of this Agreement (termination shall, for all purposes in this Agreement, include
termination pursuant to the terms of this Section 12 and any expiration of the term hereof), SID
shall surrender and vacate the Managed Schmitt Island Assets upon the effective date of such
termination. The Managed Schmitt Island Assets and all equipment and furnishings shall be
returned to the City in good repair, reasonable wear and tear excepted, to the extent funds were
made available therefor by the City. All reports, records, including financial records, and
documents maintained by SID at the Managed Schmitt Island Assets relating to this Agreement,
other than materials containing SID's or a Third -Party Contractor's proprietary information, shall
be immediately surrendered to the City by SID upon termination.
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13. Miscellaneous.
13.1 Use of Managed Schmitt Island Assets by the Citv.
(a) The City shall have the right to use the Managed Schmitt Island Assets or any part thereof,
upon reasonable advance notice and subject to availability, for such purposes as meetings,
seminars, training classes or other City uses without the payment of any rental or use fee, except
that direct out-of-pocket expenses incurred in connection with such uses (including, without
limitation, staff and food and beverage costs) shall be paid by the City. The events described in
this subparagraph (a) shall not be scheduled if they will conflict with paying events scheduled to
be held at the Managed Schmitt Island Assets and shall in all instances be subordinate to paying
events in terms of priority of use of the Managed Schmitt Island Assets
(b) In the unlikely event of a City emergency, the City shall have the right to use any of the
Managed Schmitt Island Assets, or portion thereof, as an emergency shelter and/or other
emergency operation. If SID must cancel events or activities at any of the Managed Schmitt Island
Assets due to City's use thereof as an emergency shelter and/or for other emergency operation, the
City shall reimburse SID for (i) any direct expense, which is caused by such emergency use, and
(ii) any actual, out of pocket expenses, including, but not limited to, clean-up costs or food costs,
which are caused by such emergency use. All such reimbursements will be limited to expenses
only for that part of the Managed Schmitt Island Assets actually used by the City as an emergency
shelter and/or for other emergency operation.
13.2 Dispute Resolution.
(a) The parties desire to cooperate with each other in the management and operation of the
Managed Schmitt Island Assets pursuant to the terms hereof. In keeping with this cooperative
spirit and intent, any dispute arising hereunder shall first be referred to the parties' respective
agents or representatives prior to either party initiating a legal suit, who shall endeavor in good
faith to resolve any such disputes within the limits of their authority and within forty-five (45) days
after the commencement of such discussions. If and only if any dispute remains unresolved after
the parties have followed the dispute resolution procedure set forth above, the matter shall be
resolved pursuant to Section 13.2(b) and (c) below.
(b) If any dispute between the parties has not been resolved pursuant to Section 13.2(a) above,
the parties shall endeavor to settle the dispute by mediation under the then current American
Arbitration Association procedure for mediation of business disputes or, if such model procedure
no longer exists, some other mutually agreeable procedure. Within ten (10) business days from
the date that the parties cease direct negotiations pursuant to Section 13.2(a) above, the City shall
select a neutral third -party mediator, who shall be subject to the reasonable approval of SID. Each
party shall bear its own cost of mediation; provided, however, the cost charged by any independent
third -party mediator shall be borne equally by the parties.
(c) The parties agree that any mediation proceeding (as well as any discussion pursuant to
Section 13.2(a) above) shall constitute settlement negotiations for purposes of the federal and state
rules of evidence and shall be treated as non -discoverable, confidential and privileged
communication by the parties and the mediator. No stenographic, visual or audio record shall be
17
made of any mediation proceedings or such discussions. All conduct, statements, promises, offers
and opinions made in the course of the mediation or such discussion by any party, its agents,
employees, representatives or other invitees and by the mediator shall not be discoverable nor
admissible for any purposes in any litigation or other proceeding involving the parties and shall
not be disclosed to any third party.
(d) The parties agree that this mediation procedure shall be obligatory and participation therein
legally binding upon each of them. In the event that either party refuses to adhere to the mediation
procedure set forth in this Section 13.2, the other party may bring an action to seek enforcement
of such obligation in any court permitted pursuant to Section 13.2 hereof.
(e) The parties' efforts to reach a settlement of any dispute shall continue until the conclusion
of the mediation proceeding. The mediation proceeding shall be concluded when: (i) a written
settlement agreement is executed by the parties, or (ii) the mediator concludes and informs the
parties in writing that further efforts to mediate the dispute would not be useful, or (iii) the parties
agree in writing that an impasse has been reached. Notwithstanding the foregoing, either party
may withdraw from the mediation proceeding without liability therefor in the event such
proceeding continues for more than forty-five (45) days from the commencement of such
proceeding. For purposes of the preceding sentence, the proceeding shall be deemed to have
commenced following the completion of the selection of a mediator as provided in Section 13.2(b).
(f) If any dispute has not been resolved pursuant to the foregoing, either party may terminate
this Agreement as provided in Section 12 hereof and each is free to file suit in a court of competent
jurisdiction to enforce its rights hereunder.
(g) The procedure specified in this Section 13.2 shall be the sole and exclusive procedures for
the resolution of disputes between the parties arising out of or relating to this Agreement; provided,
however, that a party, without prejudice to the above procedures, may file a petition in a court
permitted under Section 13.15 to seek a preliminary injunction or other provisional judicial relief,
if in its sole discretion such action is necessary to avoid irreparable damage or to preserve the
status quo ("Equitable Liti _ ag tion"). Despite such action, the parties shall continue to participate
in good faith in the procedures specified in this Section 13.2.
(h) Any interim or appellate relief granted in such Equitable Litigation shall remain in effect
until the alternative dispute resolution procedures described in this Section 13.2 concerning the
dispute that is the subject of such Equitable Litigation result in a settlement agreement. Such
written settlement agreement shall be the final, binding determination on the merits of such
dispute, shall supercede and nullify any decision in the Equitable Litigation, and shall preclude
any subsequent litigation on such merits, notwithstanding any determination to the contrary in
connection with any Equitable Litigation granting or denying interim relief or any appeal
therefrom.
(i) All applicable statutes of limitation and defenses based upon the passage of time shall be
tolled while the procedures specified in this Section 13.2 are pending. The parties shall take such
action, if any, required to effectuate such tolling. Each party shall be required to perform its
obligations under this Agreement pending final resolution of any dispute arising out of or relating
to this Agreement, unless to do so would be impossible or impracticable under the circumstances.
13.3 No Partnership or Joint Venture.
Nothing herein contained is intended or shall be construed in any way to create or establish the
relationship of partners or a joint venture between the City and SID. No person providing service
under this Agreement shall have any right or power to bind or create any obligation whatsoever on
the part of the City. SID shall advise any individual providing services under this Agreement that
such individual is employed or hired by SID or a Third -Party Contractor, as applicable, and not by
the City.
13.4 Entire Agreement.
This Agreement, together with all Exhibits, Schedules and Addenda hereto (which form a material
part of this Agreement), contain the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings with respect thereto. No
other agreements, representations, warranties or other matters, whether oral or written, shall be
deemed to bind the parties hereto with respect to the subject matter hereof.
13.5 Written Amendments.
This Agreement shall not be altered, modified or amended in whole or in part, except in a writing
executed by each of the parties hereto.
13.6 Force Majeure.
(a) No party shall be liable or responsible to the other party for any delay, damage, loss, failure,
or inability to perform caused by a Force Majeure if notice is provided to the other party within
ten (10) days of date on which such party gains actual knowledge of the event of Force Majeure
that prevents such party from performing hereunder. The term "Force Majeure" as used in this
Agreement means the following: an act of God, strike, war, public rioting, lightning, fire, storm,
flood, explosions, inability to obtain materials, supplies, epidemics, pandemics, landslides,
lightning storms, earthquakes, floods, storms, washouts, civil disturbances, explosions, breakage
or accident to machinery or lines of equipment, temporary failure of equipment, freezing of
equipment, terrorist acts, and any other cause whether of the kinds specifically enumerated above
or otherwise which is not reasonably within the control of the party whose performance is to be
excused and which by the exercise of due diligence could not be reasonably prevented or overcome
(it being acknowledged that under no circumstances shall a failure to pay amounts due and payable
hereunder be excusable due to a Force Majeure).
(b) Neither party hereto shall be under any obligation to supply any service or services if and
to the extent and during any period that the supplying of any such service or services or the
provision of any component necessary therefor shall be prohibited or rationed by any Law.
(c) Except as otherwise expressly provided in this Agreement, no abatement, diminution or
reduction of the payments payable to SID shall be claimed by the City or charged against SID, nor
shall SID be entitled to additional payments beyond those provided for in this Agreement for any
inconvenience, interruption, cessation, or loss of business or other loss caused, directly or
indirectly, by any present or future Laws, or by priorities, rationing, or curtailment of labor or
materials, or by war or any matter or thing.
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(d) In the event of damage to or destruction of the Managed Schmitt Island Assets by reason
of fire, storm or other casualty or occurrence of any nature or any regulatory action or requirements
that, in either case, is expected to render the Managed Schmitt Island Assets materially
untenantable, notwithstanding the City's reasonable efforts to remedy such situation, for a period
estimated by an Architect selected by the City at the request of SID of at least one hundred eighty
(180) days from the happening of the fire, other casualty or any other such event, either party may
terminate this Agreement upon written notice to the other.
(e) SID may suspend performance required under this Agreement, without any further liability,
in the event of any act of God or other occurrence, which act or occurrence is of such effect and
duration as to effectively curtail the use of the Managed Schmitt Island Assets so as effect a
substantial reduction in the need for the services provided by SID for a period in excess of ninety
(90) days; provided, however, that for the purposes of this subsection, SID shall have the right to
suspend performance retroactively effective as of the date of the use of the Managed Schmitt Island
Assets was effectively curtailed. "Substantial reduction in the need for these services provided by
SID" shall mean such a reduction as shall make the provision of any services by SID economically
impractical. No payments of the management fees otherwise due and payable to SID shall be
made by the City during the period of suspension. In lieu thereof, the City Manager and SID may
agree to a reduced management fee payment for the period of reduction in services required.
13.7 Binding Upon Successors and Assigns, No Third -Party Beneficiaries.
(a) This Agreement and the rights and obligations set forth herein shall inure to the benefit of,
and be binding upon, the parties hereto and each of their respective successors and permitted
assigns.
(b) This Agreement shall not be construed as giving any person, other than the parties hereto,
any Third -Party Contractor, and their successors and permitted assigns, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any of the provisions herein
contained, this Agreement and all provisions and conditions hereof being intended to be, and being,
for the sole and exclusive benefit of such parties, such Third -Party Contractors, and their
successors and permitted assigns and for the benefit of no other person or entity.
13.8 Notices.
Any notice, consent or other communication given pursuant to this Agreement shall be in writing
and shall be effective either (a) when delivered personally to the party for whom intended, (b) on
the second business day following mailing by an overnight courier service that is generally
recognized as reliable, or (c) on the fifth day following mailing by certified or registered mail,
return receipt requested, postage prepaid, in any case addressed to such party as set forth below or
as a party may designate by written notice given to the other party in accordance herewith.
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To the City:
City Manager
City Hall
50 W. 13th Street
Dubuque, IA 52001
With a copy to:
City Attorney
300 Main Street
Suite 330
Dubuque, IA 52001
To SID:
Schmitt Island Development Corporation
1800 Admiral Sheehy Drive
Dubuque, IA 52001
Attention: President of the Board
With a copy to:
O'Connor & Thomas, P.C.
1000 Main Street
Dubuque, IA 52001
Attention: Christopher C. Fry, Esq.
13.9 Section Headings and Defined Terms.
The section headings contained herein are for reference purposes only and shall not in any way
affect the meaning and interpretation of this Agreement. The terms defined herein include the
plural as well as the singular and the singular as well as the plural, and the use of masculine
pronouns shall include the feminine and neuter. Except as otherwise indicated, all agreements
defined herein refer to the same as from time to time amended or supplemented or the terms thereof
waived or modified in accordance herewith and therewith.
13.10 Counterparts; Electronic Signature. _
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original copy of this Agreement, and all of which, when taken together, shall be deemed to
constitute but one and the same agreement. A signed copy of this Agreement delivered by
facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal
effect as delivery of an original signed copy of this Agreement.
21
13.11 Severability.
The invalidity or unenforceability of any particular provision, or part of any provision, of this
Agreement shall not affect the other provisions or parts hereof, and this Agreement shall be
construed in all respects as if such invalid or unenforceable provisions or parts were omitted.
13.12 Non -Waiver.
A failure by either party to take any action with respect to any default or violation by the other of
any of the terms, covenants, or conditions of this Agreement shall not in any respect limit,
prejudice, diminish, or constitute a waiver of any rights of such party to act with respect to any
prior, contemporaneous, or subsequent violation or default or with respect to any continuation or
repetition of the original violation or default.
13.13 Certain Representations and Warranties.
(a) The City represents and warrants to SID the following: (i) all required approvals have been
obtained, and the City has full legal right, power and authority to enter into and perform its
obligations hereunder, and (ii) this Agreement has been duly executed and delivered by the City
and constitutes a valid and binding obligation of the City, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally or by general equitable principles.
(b) SID represents and warrants to the City the following: (i) all required approvals have been
obtained, and SID has full legal right, power and authority to enter into and perform its obligations
hereunder, and (ii) this Agreement has been duly executed and delivered by SID and constitutes a
valid and binding obligation of SID, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally or by general equitable principles.
13.14 Time of the Essence.
Time is of the essence in this Agreement and all of its provisions
13.15 Governing Law: Damages: Attornevs' Fees.
(a) This Agreement shall be governed by and construed in accordance with the laws of the
State of Iowa, without giving effect to otherwise applicable principles of conflicts of law. Subject
to compliance with the provisions of Section 13.2 hereof, any dispute related to this Agreement
shall be resolved in the Iowa District Court in and for Dubuque County.
(b) Notwithstanding anything to the contrary herein, under no circumstances will any party be
liable to another party for any indirect, special, punitive or consequential damages including, but
not limited to, any claim for loss of business.
(c) If any action is filed related to this Agreement, the unsuccessful party in the action shall
pay to the successful party, in addition to all the other sums the unsuccessful party may be called
upon to pay, a reasonable sum for the successful party's attorneys' fees.
22
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as
of the day and year first above written.
ATTEST:
'4"""
Aa�Wl
Adrienne Breitfelder, City Clerk
CITY OF DUBUQUE, IOWA
By:
Michael C. Van Milligen, City Manager
SCHMITT ISLAND DEVELOPMENT
CORPORATION
JJV W 0 TV
By:_
athy Bu rest nt and Chair
of the Ward of Directors
23
EXHIBIT A
MANAGED SCHMITT ISLAND ASSETS
• Dubuque Ice Arena and all buildings and improvements immediately adjacent thereto
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EXHIBIT B
LAND AND WATER CONSERVATION REGULATIONS APPLICABLE TO AREA
COVERED BY AGREEMENT
Regulatory Matrix
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25
EXHIBIT C
CITY OF DUBUQUE INSURANCE REQUIREMENTS
FOR MANAGEMENT SERVICES
26
City of Dubuque Insurance Requirements for Management Services
INSURANCE SCHEDULE L
I. shall furnish a signed certificate of insurance to the City of Dubuque, Iowa for
the coverage required in Exhibit I prior to commencing work and at the end of the project If the
term of work is longer than 64 days. Contractors presenting ann us certificates shall present a
certificate at the end of each project with the fin al billing. Each certificate shall be prepared on
the most current ACORD form approved by the Iowa Department of Insurance or an equivalent if
approved by the Director cf rinance and Budget. Each certificate shall include a statement under
Description of Operations as to why issued. Eg: Project #_
2. All policies of insurance required hereunder shall be with an insurer authorized to do business in
Iowa and all insurers shall have a rating of A or better in the current A.M. Best's Rating Guide.
3. Each certificate shall be furnished to the Finance Department of the City of Dubuque,
4. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the
City. of Dubuque. F.ailuretoobtain or maintainthe required insurance shall be considered a
material breach of this agreement.
S. Contractor shall require all subcontractors and sub -subcontractors to obtain and maintain during
the performance of work insurance for the coverages described in this Insurance Schedule and
shall obtain certificates of insurances from all such subcontractors and sub -subcontractors.
Contractor agrees that it sh all be liable for.the failure of a subcontractor and sub-subcontractorto
obtain and maintain such coverages. The.City may request a copy of such certificates from.the
Contractor:
6. All required endorsements toverious policies shall be attached to certificateof insurance,
7. Whenever a specific ISOform is listed, an equivalent form may be substituted subject to the
approval of the Director of Finance and Budget and subject to the Contractor identifying and
listing in writing all deviations and exclusions that differ from the ISO form.
S. The Contractor shall be required to carry the minimum coverageArnits, or greater if required by
law or other legal agreement, in Exhibit I. If the Contractors limits of liability are higher than the
required minimum limits then the provider's limits shall be this agreement's required limits_
9. Whenever an ISO form is referenced the current edition of the form must be used.
'Id. Lessee, license & permittees shall be responsible for deductibles and self -Insured retention for
payment of all policy premiums and other cost associated with the insurance policies required
be low.
10. All certificates of insurance must include agents name, phone number, and email address.
11. The City of Dubuque reserves the right to require complete, certified copies of all requ fired
insurance policies, including endorsements, required by this Schedule at any time.
12. The City of Dubuque reserves the right to modify.these requirements, including limits, based on
changes in the risk or other special circumstances during the term of the Contract, subject to
mutual agreementofthe parties.
Page 1 of 4 Schedule L Management Services April 2021
27
City of Dubuque Insurance Requirements for Management Services
INSURANCE SCHEDULE L (continued)
Exhibit I
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 $1,000,000
Fire Damage Limit (any one occurrence) $50.000
Medical Payments $5,000
1) Coverage shall be written on an occurrence, not claims made, form. The general
liability coverage shall be written in accord with the current ISO form CG0001 or
business owners form BP0002. All deviations from the standard ISO commercial
general liability form CG 0001, or Business owners form BP 0002, shall be
clearly identified:.
2) Include ISO endorsement form CG 25 04 "Designated Location(s) General
Aggregate Limit' or CG 25 03 "Designated Construction Prcject (s) General
Aggregate Limit' as appropriate.
3) Include endorsement indicating that coverage is primary and non-contributory.
4) Include Preservation of Governmental Immunities endorsement. (Sample
attached).
5) Include additional Insured endorsement for:
The City of Dubuque, including all its elected and appointed officials, all its
employees and volunteers, all its boards, commissions andior authorities and
their board members, employees and volunteers. Use ISO form CG 20 26.
6) Include Waiver of Right to Recover from Others endorsement.
B} AUTOMOBILE LIABILITY
Combined Single Limit. $1.000.000
Coverage shall Include all owned, non -owned, and hired vehicles. If the Contractor's
business does not own any vehicles, coverage is required on non -owned and hired
vehicles.
Policy shall include Waiver of Right to Recover from Others endorsement
q WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Page 2of4
Statutory Benefits covering all employees injured on the job by accident or disease as
prescribed by Iowa Code Chapter 95.
Coverage A Statutory —State of Iowa
Coverage B Employers Liability
Each Accident $100.000
Each Employee -disease $100.000
Policy Limit -Disease $500.000
Policy shall include Waiverof Right to Recover from Others endorsement.
Coverage B limits shall be greater if required by the umbrella)excess insurer.
Schedule L Management Services April 2021
City of Dubuque Insurance Requirements for Management Services
INSURANCE SCHEDULE L (continued)
OR
V, by Iowa Cade Section $5.1A, the Contractor is not required to purchase Workers'
Compensation Insurance, the Contractor shall have a copy of the State's Idonelection of
Workers' Compensation or Employers' Liability Coverage form on file with the Iowa
Workers' Compensation Insurance Commissioner, as required by Iowa Cade Section
B7.72. Completed form must be attached.
D} UMBRELLM EXCESS LIABILITY $1,000,D66
The General Llability, Automobile Liability and Workers Compensation I nsurance
requirements may be satisfied with a combination of primary and Umbrella or Excess
Liability Insurance. If the Umbrella or Excess Insurance policydoes not follow the form
cf the primary policies, it shall includethe same endorsements as required of the primary
policies including Waiver of Subrogation and Primary and Non-contributory in favor cf the
Glty.
Ey CONCESSIONAIRE BOND
X Yes No
Amount
$25, 000
Fj DRAMSHOPf LIQUOR LIABILITY $3,000,000
X Yes --No
Gj CYBER LIA B I LITYfBR EA C H $1,666,600
Page 3 of 4
X Yes. —No
Coverage for First a nd Third Party liability Including but not limited to lost data and
restoration, loss of income and cyber breach of information.
29
Schedule L Management Services April 2021
City of Dubuque Insurance Requirements for Management Services
Please be aware that naming -the City of Dubuque as an additional insured as is required by this
Insurance SGhedule.may result in the waiver of the City's governmental immunities provided in Iowa Code
sec. 670.4. If you would IIke to preserve those Immunities, please use this endorsement or an equivalent
form.
PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT
1 Nonweiver of Governmental Immunity. The Insurer expressly. agrees and states that the purchase
cf this policy and the including ofthe City of Dubuque. Iowa as an Additional Insured does not waive any
cf the defenses of governmental immunity available to the City of Dubuque, Iowa under. Coded Iowa
Section 674.4 as it is now exists and as it may be amended from time to time.
2. Claims Coverage. The insurer 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 57DA as it
now exists and as it may be amended from time to time. Those clal ms not subject to Code of Iowa
Section 576.4 shall be covered by the terms and cond itions of this insurance policy.
3. Assertion of Government Immu nity. The City of Dubuque, Iowa shall be responsible for asserting
any defense of govern mental immunity, and may do so at any time and shall do so upon the timely written
request of the insurer.
4. Non -Denial of Coverage. The insurer shall not deny coverage under this policy and the insurer
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 defenses) of governmental immunity asserted by the City of Dubuque, Iowa.
No Other Change in Policy. The above preservation of govarn mental immunities shall not otherwise
change or alter the coverage available under the policy.
SPECIMEN
[DEPARTMENT MANAGER: FILL IN ALL BLANKS AND CHECK BOXES)
Page 4 of 4 Schedule L Management Services April 2021
30
Addendum to Management Agreement
This Addendum (this "Addendum") is effective as of the date of the last signature below (the "Effective
Date"). This Addendum is attached to and a made part of that certain Management Agreement dated as
of October 20, 2022, by and between the City of Dubuque, Iowa and Schmitt Island Development
Corporation (the "Agreement"). Capitalized terms used and not otherwise defined in this Schedule shall
have the meanings ascribed to such terms in the Agreement.
This Addendum constitutes an addendum referenced in Section 2.3(n) of the Agreement and sets forth
the following specific services to be provided by SID or a Third -Party Contractor with respect to the
Dubuque Ice Arena (the "Ice Arena"):
• Hire and supervise an onsite Ice Center Operations Manager and assist said Ice Center Operations
Manager with hiring, supervising, and directing employees and personnel consistent with the
provisions of the Agreement.
• Cause the Ice Center Operations Manager to develop and maintain all schedules for events and
activities held at the Ice Arena in a manner that maximizes the use thereof.
• Make parking available in the Ice Arena parking lot for off -site public events when such events
will not conflict with Ice Arena events, which parking may be made available at a reasonable
rental fee.
• Keep the sidewalks and pathways at the Ice Arena cleared of snow and ice; provided, however,
that the City and SID acknowledge and agree that the City shall retain all responsibility for
maintaining parking lots (including the removal of snow) and landscaping (including the mowing
of grass) at or on the Managed Schmitt Island Assets, including at the Ice Arena.
• Manage and staff the catering and concession services at the Ice Arena for the sale of food and
beverage items through manual service, vending machines and other methods. This responsibility
includes but is not limited to:
(i) Food and beverage serving locations must be maintained and cleaned to the
standard or quality required by law and in no event in less quality than before
January 1, 2022. Food and beverage serving areas must be cleaned within twelve
(12) hours of each event's conclusion.
(ii) SID or Third Party Contractor will use reasonable commercial efforts under the
circumstances to ensure the food and beverage services at the Ice Arena are
operated and conducted pursuant to industry standards for this type of facility.
(iii) All food and beverages sold or served at the Ice Arena must be of the same,
similar or better standard of quality and purity for the type of food or beverage
provided at the Ice Arena before January 1, 2022; must be stored and handled at
all times consistent with industry standards of sanitation, preservation, and
purity; must be well prepared and promptly served; and must conform to the
requirements of all applicable laws, statues, ordinances, and regulations. For the
sake of clarity, the provisions so this subclause (iii) shall not be deemed to
preclude SID, Third Party Contractor or any caterer, as applicable, from selling
or serving food and beverage items that are of a different or higher -end quality
than the food or beverage items provided at the Ice Arena before January 1, 2022.
(iv) Employees or other personnel retained by SID or Third Party Contractor to staff
or provide services at the Ice Arena shall manage all appropriate food and
beverage requirements necessary to fulfill the purposes of the Agreement at the
Ice Arena.
(v) During all events open to the general public at the Ice Arena where there are food
and beverage sales, staff shall ensure that signs are posted and menus are provided
advertising the prices of all items offered for sale; provided, that, the foregoing is
not applicable or required for catered events or events not open to the general
public.
• Ensure that employees staffed at the Ice Arena will perform their duties in such a manner that
all persons who patronize the Ice Arena are treated in an orderly, safe, and courteous manner by such
employees or staff.
• Maintain public skating as a priority, but not exclusive, use of the Ice Arena. To that end, other
than the specific dates and times agreed to in any ice usage agreement between SID and Northern
Lights Hockey LLC, the Ice Arena will be generally scheduled for and open to public uses
including, but not limited to, public skating, learn to skate classes and programs, youth hockey,
figure skating, broomball, curling, adult hockey, fitness users, birthday parties and similar
recreational activities.
• Prohibit the use of tobacco products in the Ice Arena, and inform all employees and staff assigned
to the Ice Arena to use their best efforts to enforce such prohibition.
• Limit the use of tobacco products outside the Ice Arena to only designated areas, and inform
employees and staff assigned to the Ice Arena to use their best efforts to enforce such restriction.
From and after the Effective Date, all references in Section 2.3(n) of the Agreement to any addendum
shall be deemed to include this Addendum.
CITY OF DUBUQUE, IOWA
By �f
Name: Michael Van Milligen
Title: City Manager
SCHMITT ISLAND DEVELOPMENT CORPORATION
Name:
Title:
Date: October 20, 2022 Date: October 20, 2022