Schmitt Island Management Agreement Between the City of Dubuque, Iowa and the Schmitt Island Development Corporation ApprovalCity of Dubuque
City Council Meeting
Action Items # 04.
Copyrighted
January 16, 2024
ITEM TITLE: Schmitt Island Management Agreement Between the City of Dubuque,
Iowa and the Schmitt Island Development Corporation Approval
SUMMARY: City Manager recommending City Council approval of the Schmitt Island
Management Agreement between the City of Dubuque, Iowa and the
Schmitt Island Development Corporation.
RESOLUTION Approving the Schmitt Island Management Agreement
between the City of Dubuque and the Schmitt Island Development
Corporation
SUGGESTED Suggested Disposition: Receive and File; Adopt Resolution(s)
DISPOSITION:
ATTACHMENTS:
Description Type
MVM Memo City Manager Memo
Staff Memo Staff Memo
Resolution Resolutions
Agreement Supporting Documentation
THE C
Dubuque
DUjIBQTE
WAWca 914
Masterpiece on the Mississippi
YP pp
aoo�•o 13
zai7*20*�oi9
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Schmitt Island Management Agreement Between the City of Dubuque, Iowa and
the Schmitt Island Development Corporation Approval
DATE: January 11, 2024
Leisure Services Manager Marie Ware is recommending City Council approval of the Schmitt
Island Management Agreement between the City of Dubuque, Iowa and the Schmitt Island
Development Corporation.
I concur with the recommendation and respectfully request Mayor and City Council approval.
v
Mic ael C. Van Milligen
MCVM:sv
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Marie Ware, Leisure Services Director
Alex Dixon, President and CEO Dubuque Racing Association
Kathy Buhr, Director of Strategic Philanthropy & Schmitt Island Development
Dubuque Racing Association
Tonya Trumm, Counsel O'Connor and Thomas, P.C.
THE CF
D�Uj__B E
Masterpiece on the Mississippi
TO: Michael C. Van Milligen, City Manager
FROM: Marie L. Ware, Leisure Services Manager
Dubuque
AIFAmMu CKY
I I
2007-2012-2013
2017*2019
SUBJECT: Schmitt Island Management Agreement Between the City of Dubuque,
Iowa and the Schmitt Island Development Corporation Approval
DATE: January 11, 2024
INTRODUCTION
The purpose of this memorandum is to request your approval of the Schmitt Island
Management Agreement Between the City of Dubuque, Iowa and the Schmitt Island
Development Corporation which includes management of the ImOn Arena.
BACKGROUND
The City of Dubuque took over Ice Center operations on September 6, 2021 and
committed to continue ice operations to avoid disruption of ice usage for all user groups
involved and honor the commitments made by all parties in the Development
Agreement and Ice Usage Agreement which included day-to-day operations of the ice
center.
As the City took over the operations, we committed to continue to consider the best
operational model for the future of the Mystique Community Ice Center. During this time
the community and other partners continued conversations regarding what is the best
model for operations into the future. The DRA was a partner in the development of
Mystique Community Ice Center from its start. The discussions around the new lease
for the DRA included how the provisions could and would focus on the vision, mission
and implementation of the Chaplain Schmitt Island Master Plan as well as the
Placemaking and Implementation Plan. This led to more in-depth conversations about
the possibility the DRA and City could progress and expand the partnership that would
ultimately lead to the DRA becoming the Ice Center's facility manager.
The City and the DRA discussed the opportunity to move the day-to-day operations of
the Mystique Community Ice Center to the DRA. This led to an Interim Staffing
Agreement By and Between the City of Dubuque, Iowa and the Dubuque Racing
Association in which the DRA would provide interim staffing to operate the facility
beginning January 1, 2022 until the present. The DRA is experienced and skilled at
providing these services and did an excellent job the first of the year.
The DRA and the City committed to negotiate a Management Agreement to fully
transition all day-to-day management activities beyond what the staffing agreement
outlined. During these negotiations the City and the newly formed Schmitt Island
Development signed a shorter -term management agreement and addendum for the Ice
Arena. This agreement and extensions were signed by the City Manager and shared
with the City Council through the signed agreements agenda item. The shorter -term
agreement allowed for the full transition of day-to-day operations to Schmitt Island
Development (SID), expanding the responsibilities beyond the original staffing
agreement.
DISCUSSION
City representatives City Attorney Crenna Brumwell, Alex Dixon, President and CEO of
Dubuque Racing Association, Kathy Buhr, Chair of Chaplain Schmitt Island
Development and Tonya Trumm of O'Connor & Thomas, P.0 continued the work toward
a long-term agreement to further develop the partnership that is now reflected in the
attached the Schmitt Island Management Agreement and Addendum specific to the
ImOn Arena. This partnership has proven very successful in the short term, and we are
all excited for our long-term success with this management agreement.
ACTION REQUESTED
I recommend and respectfully City Council approval of the Schmitt Island Management
Agreement Between the City of Dubuque, Iowa and the Schmitt Island Development
Corporation which includes management of the ImOn Arena.
cc: Crenna Brumwell, City Attorney
Alex Dixon, President and CEO of Dubuque Racing Association
Kathy Buhr, Chair of Chaplain Schmitt Island Development
Tonya Trumm, Counsel O'Connor and Thomas, P.C.
Enclosure:
Schmitt Island Management Agreement Between the City of Dubuque, Iowa and the
Schmitt Island Development Corporation and Addendum to Management Agreement
Prepared by Crenna M, BrumweH 300 Main Street, Suite 330 Dubuque IA 52001 563 589-4381
Return to Prepared by Crenna M. Brumwe[[ 300 Main Street, Suite 330 Dubuque [A 52001 563 589-4381
RESOLUTION NO. 16-24
APPROVING THE SCHMITT ISLAND MANAGEMENT AGREEMENT BETWEEN THE
CITY OF DUBUQUE AND THE SCHMITT ISLAND DEVELOPMENT 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; 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, Schmitt Island Development Corporation 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 Schmitt Island Development Corporation,
and Schmitt Island Development Corporation desires to accept such engagement, to
provide management and marketing services on the terms and conditions agreed; and
WHEREAS, the City intends to work in mutual accord with Schmitt Island
Development Corporation in order to ensure provision of high -quality management and
marketing services, thereby enhancing the use and enjoyment of the Schmitt Island, while
simultaneously lessening the burden of government.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA, AS FOLLOWS:
1. The City of Dubuque hereby consents to the Schmitt Island Management
Agreement between the City and the Schmitt Island Development Corporation,
which is attached hereto.
2. The Mayor is authorized and directed to execute the Schmitt Island
Management Agreement on behalf of the City of Dubuque.
Passed, approved, and adopted this 16th day of January, 2024.
Attest:
Adrienne N. Breitfelder, City Clerk
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 January 1, 2024, 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
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.
"Appropriation Deficiency Notice" shall mean the notice required from the City to SID
in Section 5.2(a) of this Agreement which puts SID on notice there is a shortfall in City funding
available to fund this Agreement. The notice shall contain information on any remaining available
resources.
"Approved Budget" means any budget submitted by SID, as approved by the City pursuant
to Section 5 hereof.
"Capital Equipment" means any and all furniture, fixtures, machinery or equipment, either
additional or replacement, where the costs exceeds $10,000 and has a useful life of greater than
five (5) years for equipment and a useful life of three (3) years for technology.
"Capital Improvements" means any and all expenditures for building additions, alterations,
repairs or improvements, and for purchases of additional or replacement furniture, machinery, or
equipment, where the costs of such expenditure is greater than $5,000 and the depreciable life of
the applicable item is, according to generally accepted accounting principles, is in excess of one
year.
"Cash Flow Shortfall" has the meaning specified in Section 5.1 of this Agreement.
"Citv" 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 P " has the meaning specified in Section 2.5(a) of this Agreement.
"Equitable Litigation" 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.
"Initial Term" means the period from 12:01 a.m. on January 1, 2024, to 11:59 p.m. on
December 31, 2033.
2
"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.
"Net Operating_ Loss" means, with respect to a SID Fiscal Year, the excess of Operating
Expenses for such SID Fiscal Year over Operating Revenues for such SID Fiscal Year.
"Operating Expenses" means (a) any and all expenses and expenditures of whatever kind
or nature incurred directly or indirectly 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 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
referred to in Section 8 below, 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 Ieases and line
charges, repairs and maintenance costs (e.g., elevator and RVAC), 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 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 (however, if such revenues are collected in the first instance by
and retained by such subcontractors, the amount of such revenues paid by such contractors to the
Managed Schmitt Island Assets shall be included as Operating Revenues), 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.
"Receiving party" has the meaning specified in Section 2.5(a) of this Agreement.
"Renewal Term" means the five-year period from 12:01 a.m. on January 1, 2034, to 11:59
p.m. on December 31, 2038, for which this Agreement may be renewed at the option of the City
Council in accordance with Section 3.1 hereof.
"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" are Capital Equipment Purchases as taken on by SID
as outlined in Section 5.7(b) of this Agreement.
"SID Capital Improvements" are Capital Improvements as taken on by SID as outlined in
Section 5.7(b) of this Agreement.
"SID Fiscal Year" means a one-year period beginning January 1 and ending December 31
of such year.
"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 Initial Term and the Renewal Term, if any, upon the
terms and conditions hereinafter set forth, and SID hereby accepts such engagement subject to
annual budget appropriation by the City Council.
(b) Manager of the Managed Schmitt Island Assets. Subject to the ternis 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 Initial Term and the Renewal
Term, if any. 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 SID has and maintains
appropriate internal control policies which shall be provided to the City upon request.
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 which shall be available for review by the City, 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) subject to Section 11.3 of this Agreement, negotiate, execute, deliver and administer 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) subject to Section 11.3 of this Agreement, negotiate, execute, deliver and administer any
and all licenses, occupancy agreements, rental agreements, booking commitments, advertising
agreements, concession agreements, 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 remaining Initial Term or Renewal Term, 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 initial Term or Renewal Term;
(c) to the extent that Operating Revenues or funds supplied by the City, other contributors, or
donors are available, maintain the Managed Schmitt Island Assets in the condition received
(casualties and reasonable wear and tear excepted) and undertake in its discretion and to the extent
permitted under Section 5.7(b), SID Capital Improvements and SID Capital Equipment Purchases;
(d) to the extent that Operating Revenues or funds supplied by the City, other contributors, or
donors are available, rent, lease, or purchase the equipment and maintenance supplies necessary
or appropriate for the operation and maintenance of the Managed Schmitt Island Assets in
accordance with the Annual Budget appropriation of the City;
(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, in the event that such established fees, rates and/or rate schedules
will be adjusted by more than fifteen percent (15%) of the amount currently in effect, SID shall
obtain the City Manager's approval prior to effectuating such adjustment;
(f) to the extent that Operating Revenues or funds supplied by the City, other contributors, or
donors are available, pay, when due, all Operating Expenses, SID Capital Improvements and SID
Capital Equipment Purchases from accounts established pursuant to Section 5.6 of this Agreement;
R
(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;
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) subject to Section 11.3 of this Agreement, 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", "ImOn Arena" and logos for such names in its advertising.
2.4 Right of Entry Reserved.
2
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.
2.5 Confidentiality/Nondisclosure.
(a) Definition of Confidential Information. As used herein, "Confidential
Information" means all confidential information disclosed by a parry ("Disclosing") 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 Parry prior to its disclosure by the
Disclosing Party without breach of any obligation owed to the Disclosing Party,
(iii) is received from a third parry without breach of any obligation owed
to the Disclosing Party, or
(iv) was independently developed by the Receiving Party.
(b) Protection of Confidential Information. 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 Parry containing protections no less
stringent than those herein.
(c) Compelled Disclosure. The Receiving Party may disclose Confidential
Information of the Disclosing Party if it is compelled by law to do so which includes the opinion
7
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) Copyrighted Information. 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) Specific Performance. Each Receiving 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 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 Receiving Party agrees to a reaffirmation of such provisions by such court to
any limits which such court finds to be reasonable, and each Receiving Party shall not assert that
such provision shall be eliminated in their entirety by such court.
3. Term and Renewal.
3.1 Initial Term and Renewal Term.
This Agreement shall be effective throughout the Initial Term, unless earlier
terminated pursuant to the provisions of this Agreement. The City Council may, in its sole
discretion, extend the term hereof on the same terms and conditions for the Renewal Term by
giving written notice of such renewal to SID not less than one hundred eighty (180) days prior to
the date of expiration of the Initial Term, in which case this Agreement shall automatically renew
unless SID provides written notice to the City Council, within thirty (30) days of SID's receipt of
written notice of renewal from the City Council, that SID does not desire to renew this Agreement,
in which case this Agreement shall then automatically terminate at the expiration of the Initial
Term.
3.2 New Contract.
If (i) the City intends, upon termination of the Initial Term or Renewal Term, to
continue to provide management of the Managed Schmitt Island Assets through an entity other
than the City and (ii) this Agreement has not been terminated upon a default by SID, then the City
shall during the final year of the Initial Term (unless the City exercises its option to renew under
Section 3.1) or Renewal Term, as the case may be, negotiate and discuss in good faith a new
contract or arrangement with SID for the provision of such services following the completion of
such term. The obligation to negotiate with SID is not intended to guarantee any contract rights
for a future contract with SID or any specific terms of a new contract.
8
4. Compensation.
4.1 Fixed Fee.
As base compensation to SID for providing the services herein specified during the
Initial Term and any Renewal Term, the City shall pay SID during the Initial Term and the Renewal
Term, if any, an annual fixed fee of $100,000, which amount shall be adjusted on January 1, 2024,
and each January 1 thereafter during the term hereof by the percentage change in the Consumer
Price Index -- All Urban Consumers (CPI-U) -- U.S. City Average -- All Items, during the one
year period ending in November immediately preceding such adjustment date, as published by the
Bureau of Labor Statistics of the U.S. Department of Labor, or of any revised or successor index
hereafter published by the Bureau of Labor Statistics or other agency of the United States
Government succeeding to its functions. The foregoing annual fixed compensation shall be
payable, in advance, in equal monthly installments due on or before the first day of each calendar
month during the Initial Term and any Renewal Term, prorated for any partial calendar month
during the Initial Term or Renewal Term.
5. Funding; Budgets; Bank Accounts; Contributions.
5.1 Operating.
Subject to Section 5.2, to the extent that Operating Revenues during a calendar
quarter period, when aggregated with (i) any funds, if any, remaining from any prior payments by
the City to SID pursuant to this Section 5.1 and (ii) any funds, if any, contributed, awarded,
granted, and/or donated to SID by third parties (to the extent that such contributed and/or donated
funds are not designated for a specific use and are otherwise available to for use), are insufficient,
or expected to be insufficient, to cover all Operating Expenses for such quarter ("Cash Flow
Shortfall'), the City shall advance funds to SID as follows: thirty (30) days prior to the beginning
of each calendar quarter during the Initial Term and any Renewal Term, SID shall submit to the
City an invoice for the projected Cash Flow Shortfall for such quarter, and the City shall pay an
amount equal to such projected Cash Flow Shortfall to SID within thirty (30) calendar days after
the start of such calendar quarter. Such funds shall be deposited by SID in the operating or other
account(s) established pursuant to Section 5.6 and used to pay for Operating Expenses.
5.2 Non -Appropriation of Funding.
(a) The City shall have no obligation to provide funds for the payment of any Operating
Expenses incurred or committed after the date SID receives written notice from the City (an
"Appropriation Deficiency Notice") of the fact that insufficient funds or no funds have been
appropriated for the Managed Schmitt Island Assets.
(b) If the Appropriation Deficiency Notice is of insufficient funds:
(i) the City shall pay all Operating Expenses incurred or committed prior to the date
SID receives the Appropriation Deficiency Notice.
X
(ii) the City shall pay all Operating Expenses incurred or committed after such date that
are within the aggregate level of appropriated funds specified in the Appropriations
Deficiency Notice.
(iii) Any failure by the City to provide funds (beyond the appropriated funds) for the
payment of Operating Expenses incurred or committed for after SID receives an
Appropriations Deficiency Notice shall not be a breach of or default under this
Agreement by the City. Any failure by SID to perform its obligations under this
Agreement shall not be a breach of or default under this Agreement if such breach
or default results from the City's failure to appropriate sufficient fluids for the
management, operation and promotion of the Managed Schmitt Island Assets.
(c) If the City appropriates, or reduces appropriated funds to a level that, in SID's judgment,
renders the management of the Managed Schmitt Island Assets not feasible, SID may, at its option,
either:
(i) continue management of the Managed Schmitt Island Assets at a reduced
level consistent with anticipated Operating Revenues and available funding or
(ii) terminate this Agreement pursuant to Section 12.2, with the effect set forth
in Section 12.3. Following such termination, SID shall have the right to resume management of
the Managed Schmitt Island Assets at such time as the City first restores appropriated funding to
reasonable levels, but only if the City restores such f mds dining the remainder of the Initial Term
or the Renewal Term, if applicable. In such event, SID shall have the right to resume management
of the Managed Schmitt Island Assets for the period of time that was remaining under the Initial
Term or the Renewal Term, if applicable, at the time SID exercised is rights under this clause (ii).
5.3 Annual Budget; Cash Flow Budget.
(a) Operating Budget. As part of the annual plan described in Section 6.2 herein, on or before
October Is' (beginning October 1, 2024 for City Fiscal Year 2026) , SID shall prepare an annual
operating budget for the next SID Fiscal Year to meet the scope of services and objectives under
this Agreement. Such budget shall contain appropriate line items for revenues and expenses and
the projected net operating deficit or surplus.
(b) Cash Flow Budget. SID shall prepare and submit to the City Manager by October 1 sc
(beginning October 1, 2024 for City Fiscal Year 2026) an annual cash flow budget for the
succeeding SID Fiscal Year.
(c) The annual budgets referred to in subparagraphs (a) and (b) above shall be reviewed and
are subject to review and approval by the City Manager. By December 1 of each year during the
term of this Agreement, beginning December 1, 2024, the City Manager shall notify SID of any
changes to the annual operating budget and the cash flow funding budget for the succeeding SID
Fiscal Year proposed by SID and with such changes, if any, as are made by the City prior to
December 1, such budgets shall be the Approved Budgets for the following SID Fiscal Year,
provided that if the annual operating budget or the annual cash flow budget as proposed by SID
are modified by the City Manager in a manner which, in SID's judgment, could materially
interfere, impede or impair the ability of SID to manage, operate, promote or market the Managed
10
Schmitt Island Assets, SID shall have the right to terminate this Agreement pursuant to
Section 12.2 (with the effect set forth in Section 12.3), and provided further that if the approved
annual operating budget or annual cash flow budget departs from the budgets or schedule proposed
by SID, SID shall not be construed to have breached its obligations under this Agreement if the
alleged breach has been caused by the limitations in the SID Fiscal Year's budgets.
5.4 Budget Modifications Initiated by. SID.
SID may submit to the City Manager at any time prior to the close of a SID Fiscal
Year a supplemental or revised annual operating budget or cash flow budget for such SID Fiscal
Year. Upon the approval of the City Manager of such supplemental or revised budget, the
Approved Budgets for such SID Fiscal Year shall be deemed amended to incorporate such
supplemental or revised budget. The Approved Budgets may only be amended as set forth in
Section 5.5 below or in the two preceding sentences except that SID shall have the right to amend
the Approved Budgets as may be necessary or appropriate as the result of the scheduling by SID
of additional events or activities at or related to the Managed Schmitt Island Assets (and the
incurrence of additional Operating expenses arising from the scheduling of additional events or
activities at or related to the Managed Schmitt Island Assets) as long as prior to the scheduling of
such events or activities, SID had a good faith belief that the projected Net Operating Loss for the
SID Fiscal Year as set forth in the Approved Budgets would not be increased as a result of such
additional events or activities.
5.5 Budaet Modifications Initiated by the Ci
In the event that it appears reasonably likely, in any year during the term hereof,
that the actual Net Operating Loss for such SID Fiscal Year shall be larger than projected in the
annual operating budget for such SID Fiscal Year, the City Manager may request from SID a plan
for reduction of Operating Expenses, Capital Improvements and Capital Equipment purchases to
a level consistent with the budgeted Net Operating Loss amount. SID shall forthwith comply with
any such expense reduction requested by the City Manager, and the approved budgets for such
SID Fiscal Year shall be modified accordingly, provided that if the annual operating budget or
annual cash flow budget is modified in a manner which, in SID's judgment, could materially
interfere, impede or impair the ability of SID to manage, operate, promote or market the Managed
Schmitt Island Assets, SID shall have the right to terminate this Agreement pursuant to Section
12.2 (with the effect set forth in Section 12.3) and provided further that SID shall not be construed
to have breached its obligations under this Agreement if such alleged breach has been caused by
the limitations in the City Fiscal Year's budgets.
5.6 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 Operating Revenues collected by SID from the operation of the Managed
Schmitt Island Assets shall be deposited into such accounts and Operating Expenses (other than
Operating Expenses to be paid from an account described in Section 5.6) shall be paid by SID
from such accounts. All Operating Revenues collected by SID arising from operation of the
Managed Schmitt Island Assets, including revenues from ticket office sales, equipment rentals,
11
utility rental agreements, food and beverage concessions, or any other source, are 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.
5.7 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. The annual
plan submitted pursuant to Section 6.2 shall include SID's recommendation for Capital
Improvements and Capital Equipment purchases to be accomplished during the City's fiscal year
and estimated for the next four City fiscal years after that and shall be accompanied by an estimate
of the cost of all such items and projects and a request that the City budget funds therefor. The
City shall retain the discretion to determine whether and to what level to fund Capital
Improvements and Capital Equipment purchases with respect to the Managed Schmitt Island
Assets, except as otherwise provided in subparagraph (b) below.
(b) Notwithstanding the City's obligations in subparagraph (a) above, STD may undertake
certain Capital Improvements projects ("SID Capital Improvements") and/or make certain Capital
Equipment purchases ("SID Ca itu al 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) fiends 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 5.6. 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.
5.8 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 fluid any cost, expense, or liability with respect to the
operation, management or promotion of the Managed Schmitt Island Assets.
5.9 Funds for Emergency Repairs.
SID shall have the right to act, with prior notice to the City Manager, in situations
which SID determines to be an emergency with respect to the safety, welfare and protection of the
12
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,
(a) 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 and (b) SID shall obtain the prior approval
of the City prior to spending or committing to spend funds in excess of $25,000.00 in any such
emergency situation. 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 to this Section 5.9 in excess of budgeted
amounts.
5.10 Contributions: Donations.
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 (a) such usage shall take into account the Capital
Improvements and Capital Equipment purchases to be funded by the City and (b) in the event that
any particular contribution or donation exceeds $25,000.00, SID shall consult with the City
regarding the use of such donated or contributed funds.
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.
(b) 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 seven (7) 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.
(c) In addition, on or before March I following each SID Fiscal Year for which SID is
managing the Managed Schmitt Island Assets hereunder (beginning March 1, 2024), 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
13
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.
(d) The City shall have the right at any time, and from time to time, to cause independent
auditors of the City's selection to audit all of the books of SID relating to Operating Revenues,
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 seven (7) years after
SID's statement for such SID Fiscal Year has been delivered to the City.
6.2 Annual Plan.
(a) SID shall provide to the City on or before October 1st (beginning October 1, 2024), an
annual management plan, which shall include the annual operating budget described in Section 5.3
for the next SID Fiscal Year. The annual plan shall include information regarding SID's
anticipated operations for such SID Fiscal Year, including planned SID Capital Improvements and
SID Capital Equipment Purchases (if any) and an anticipated budget therefor, planned operating
maintenance activities by SID, a five-year plan for requested Capital Improvements and Capital
Equipment purchases, equipment replacement schedule, and an anticipated budget therefor,
anticipated events at the Managed Schmitt Island Assets, anticipated advertising and promotional
activities, and planned equipment and fiiznishings purchases. The annual plan shall be subject to
review, revision and approval by the City Manager. Following review and revision and final
approval by the City Manager, SID shall have thirty (30) days to incorporate the revisions into its
plan. Upon approval by the City Manager, such annual plan shall constitute the operating program
for SID for the following SID Fiscal Year.
6.3 Quarterly Reports & Access to Financials.
(a) By the last day of each quarter, beginning on the 31' day of March 2024, SID agrees to
provide to the City a written quarterly report in a form approved by the City Manager setting out
the anticipated activities and financial condition of the Managed Schmitt Island Assets for the
upcoming quarter and reporting on the prior quarter's highlights, activities, repairs, maintenance,
and finances.
(b) The City shall have, upon seventy-two (72) hours' notice, the opportunity to review SID
financials.
14
6.4 Additional Renorts.
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 Parry 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 Parry 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
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.
S. Indemnification and Insurance.
8.1 Indemnification.
15
(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 Initial 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 Initial 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 Initial 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 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.
T
(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 Parry Contractor) shall at all times during the
Initial Term, and the Renewal Term, if any, maintain insurance as required by the City's standard
Insurance Schedule for Professional 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, subject to Section 5.2, 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 insurance covering the interruption of operations by or for whatever cause at
the Managed Schmitt Island Assets.
(i) 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: Chairman of the Board, 1800 Admiral Sheehy Drive, Dubuque, Iowa 52001,
sent by certified mail, return receipt requested."
17
(ii) 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 (including, without limitation, any such assets that are donated to
SID, and/or purchased by SID with any donated funds, during the Term of this Agreement) 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. The City is, and shall remain, the owner of any domain names, websites,
or social media accounts established and maintained related to Schmitt Island Managed Assets
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, debentures or other security agreements or contracts relating to the Managed
Schmitt Island Assets to which the City may be bound.
9.3 No Inconsistent Tax Position.
SID agrees that it is not entitled to and will not take any tax position that is
inconsistent with being a service provider with respect to the Managed Schmitt Island Assets,
10. Assignment.
10.1 Assignment.
18
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 for sake of clarity, the parties acknowledge and agree that the foregoing does not
preclude the assignment by SID of its rights to receive its management fees (or any portion
thereof), or 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 5.6, 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. Governmental Compliance.
SID, a 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 5.7 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.
11.2 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.
11.3 Compliance with Federal Tax Requirements.
19
SID understands that all or a portion of the Managed Schmitt Island Assets may be
financed on a tax-exempt basis and, as a result, the City must comply with certain provisions of
the Internal Revenue Code of 1986 (the "Code") and the treasury regulations promulgated
thereunder with respect to the use and management of the Managed Schmitt Island Assets by SID
or any other service provider that may be engaged by the City or SID with respect to all or a portion
of the Managed Schmitt Island Assets. SID agrees to cooperate with the City in complying with
the requirements of the Code applicable to tax -exempt -financed property, including but not limited
to restrictions on private business use: Without limiting the generality of the forgoing, SID agrees
to cooperate with the City in maintaining the safe harbor conditions provided in Revenue
Procedure 2017-13 (as modified, amplified and/or superseded, the "Revenue Procedure")
regarding qualified management contracts, and agrees that any agreements entered into with
respect to the Managed Schmitt Island Assets, including but not limited to any agreements entered
into pursuant to Section 2.3(a) or Section 2.3(o) of this Agreement, will comply with the conditions
of the safe harbor or be approved in advance by the City Manager.
12. Termination.
12.1 Termination Unon Default.
Either party may terminate this Agreement upon a default by the other parry
hereunder. A party shall be in default hereunder if (i) such parry fails to pay any sum payable
hereunder within thirty (30) days after same is due and payable, or (ii) such party fails in any
material respect to perform or comply with any of the other terms, covenants, agreements or
conditions hereof and such failure continues for more than sixty (60) days after written notice
thereof from the other party. In the event that a default (other than a default in the payment of
money) is not reasonably susceptible to being cured within the sixty (60) day period, the defaulting
party shall not be considered in default if it shall within such sixty (60) day period have
commenced with due diligence and dispatch to cure such default and thereafter completes with
dispatch and due diligence the curing of such default.
12.2 Termination Other than Upon Default.
(a) SID shall have the right to terminate this Agreement upon one hundred -eighty (180) days
written notice to the City (i) under the circrumstances described in Sections 5.2, 5.3 or 5.5 hereof,
or (ii) if the City fails to make Capital Improvements or Capital Equipment purchases at the
Managed Schmitt Island Assets to the extent that such omission, in SID's judgment, materially
interferes with, impedes or impairs the ability of SID to manage the Managed Schmitt Island Assets
effectively.
(b) Either parry shall have the right to terminate this Agreement under the circumstances
specified in Section 13.6(d).
(c) Either Party shall have the right to terminate this Agreement for convenience upon twelve
(12) months written notice to the other party.
12.3 Effect of Termination.
20
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 in Section 5.6 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.
12.4 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 Parry Contractor's proprietary information, shall
be immediately surrendered to the City by SID upon termination.
13. Miscellaneous.
13.1 Use of Managed Schmitt Island Assets by the City.
(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
21
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 (1 o) 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
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).
22
(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 Limited Relationship.
SID and related parties have no more than 20% of the voting power of the City
Council. The City Council does not include the CEO or chairperson (or equivalent) of SID or any
related party. The CEO (or equivalent) of SID or any related party is not the City Manager or
Mayor of the City.
13.5 Entire Agreement.
This Agreement, together with all Exhibits 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
23
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
13.6 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.
13.7 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 Majcure
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.
(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
24
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.
13.8 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
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 and their successors and permitted assigns and for the benefit of no other person or
entity.
13.9 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 parry 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.
To the City:
City Manager
City Hall
50 W. 13t' 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
25
Attention: Chairman of the Board
With a copy to:
O'Connor & Thomas, P.C.
1000 Main Street
Dubuque, IA 52001
Attention: Christopher C. Fry, Esq.
13.10 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.
13.11 Counterparts
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.
13.12 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.
13.13 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 parry 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.
13.14 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.
26
(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.
13.15 Time of the Essence. Time is of the essence in this Agreement and all of its provisions.
13.16 Governing Law; Damages, Attorneys' 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, Linder 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.
[Remainder of Page Intentionally Blank; Signature Page Follows]
27
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as
of the day and year first above written.
ATTEST:
Adrienne N. Breitfe(der, City Clerk
CITY OF DUBUQUE, IOWA
Brad M. Ca gh, Mayor
SCHMITT ISLAND DEVELOPMENT
CORPORATION
28
24
EXHIBIT A
MANAGED SCHMITT ISLAND ASSETS
• Dubuque Ice Arena and all buildings and improvements immediately adjacent thereto
•
EXHIBIT B
LAND AND WATER CONSERVATION REGULATIONS APPLICABLE TO AREA
COVERED BY AGREEMENT
Regulatory Matrix
AIrn7 Caps
w.:laSr! wxit:
; ]-la0dw lvlekn
S�rtanjnhcka, p5caoprty
foprEt a• 4.- r..
r 1ai it"01 km
¢flnLfnnn
µyr%�,di
►+-r1YYvn.ewx+ae
7rnndRe Ftglex
Sse!
keoxwmeHan
Dfiii�ei F:: frr* t%'=i»!
Ce^R� MCddtleel rldlr �eG.r-
CM t9 S=1d wr�.V
ilFl �"d[`- Lse• rr�- Ghr w
10 n tlt1�rrna
&"%SQDW'
SSSOGdnpe h�s'4
MIIaeG sett 9lrirf V V
iri�.E:aT 1t-d Pdr `••1
1�
`t 7s-rn : fre
Irrwa ONR
Iloodpl;unffCaedr�
le-r5il �ri fa InInt
fvd a Hww ►W.:4tw rQ
2eye't:s0nft*U.
iJe 14•rnitFe=
FlaodpEalq
�rpditzRlrseperre
ip1CaY i'fyecx
Slo!
iAtna;amanl
Lase d» A+1'�L$gnrl-
-
Fayth ltN•a d W.rt-L1rJAR is
Y1�4
El+e3i ycE -6n
tetra DM
'•••sxlnra9L1dwV1sdSpr_r:
4-Lw�fatf+pdfkY
Sr�`MlrmaJtpptSssia»Fa
CK1++�;•.•s f,;:r,•
F10I1MiofFm I
Sc+ktaTlll
+.rNr"csn-"
iG_a::te>atkrptre�a
ru^'''c R*
)toA
PugMdf
lands•
Hat :ir
.� ;44hw
(dtlit�!'fBC �trJ�7
sow IWR
WOO*
OMrrwuindift""tda
FSAI
Set e•rryfarCarp:of
widarA
40rVIxJr [4afrFy Cn clFetec
��}
r■emteilnj
I
10*66bT
N-ejrl
im'
NO A."prkirc"fe�
SCr.W feale«t
! -.14 AW-V , w
Cris tdarkM'dS►
Larr,rr� F•i Lfslaf H'ilii'ar
Fi-1WANn dr'.+i=J
K V r,F Lrt t;r VAWO 4- !I -
WisCeelln[7Qf
6fid��
No t•S•rrart l:a.u:sle Cf Hl
5bnx
F�hj Cia3nrl.
Smtawde
fltt1-1 "Opt4aMn.r
inaw dremat�nr 4-jja^m'e
rwbt
rxdtn n WbCU*r,
C67itl R4ard
'fit+•latan l.ol.a
k""-i LLa:
5crl n K'sr Fvh prapped
.:_ .
I+lka�r3tirrlke
4'11 No bVA what
it•.ir`[ a41t"t xawfi the f irt•
ran finhr! ighst Fnner, %ern
Cti t�!Y�e[a•R 6 r— OW
rnq 61lu rq aaay frm pen rr77
*R`^Lk r4�4:4 31•W tN f i netd t0
rari Cps-'•�' 4.a " V4,1
H411wui park
Lrr_' S. Water Omgw .�- Firrtl
Qt ,A -a .r
G 4 s
L3rdiriNl. Cpxt^Khcrr
§4rrle0jr W2
0IT0etrl $rh* I INt+n7tlil PNB
~1ClyLmi S•T_
ONR
SV¢ 15S!- i%'t Apptgyed, C-rro?5tq
r.74[U SGr =r FCdS-TXx
usfh$l
1•.-es;»trJSL +�-��15x_r:
Crlylrwd.r;?.rrrf
h:a
.
waduf.
Cdt]Of
C:tu-ni Lee+
t1Lmaids imie egm,,%:
I' JK. m1m W-ase 12 ---.d a,rY
Ov6agrit
Enlernul YatrT!—Dj
it Lo
nt][la.ne i�dw f=atsr sordrfr^_
Lr44"viCft-Wary Spears floc
No drawn r+ amt to
Ar"-
Ica wym
Cltr �x 4cnz � OA.0 ¢, F+hm
vw of
FUD Lsrr.y L 6..1 n n •ew s rei !C-Ea dkr s-e
r.- - RA 1t4-rsr! Li.t
-4
Li,1uaW
5"w"ft,4 h
mpv-
m b .
pn+.rtln[ re"
6.7d+'•j Fptp.1
tppE•ctOrSY f7t 6'1`ffY!!. AsnC+,
=tpy�i=niti+yt. t
CTS'tC FrR y.r•R.Y�V
it -v!ad k? U,-- ihO -L-
-#-": 0%6Ai Ck,—dIdewdcrtIs m!.vwr!V`s .Jd pt a.eca.a++e:ir..sr.1
F»P^•dpWr. t.
CHAPLAIN SCHMITT ISLAND | Placemaking & Implementation Plan 17
Regulatory Matrix
Regulatory
Agency
Regulation Summary Review/Approval
Process Anticipated
Timeline
Steps to Move
Forward
Perceived Difficulty
of Proceeding
(1=Likely 10=Unlikely)
Potential Cost
or Mitigation
Implication
Army Corp of
Engineers
Navigable Waters
Wetlands
Discharge of Fill from Dredging
Ped. Bridge over Peosta Channel
30-160 days for Joint
Application response
Send in Joint Application for
Specific Project
Identify if covered under
Section 10 or 404 Permit
Depends on Project,
3 to 8
If loss is over 0.1 Acre.
Replacement ratio is case
to case. Wetland Banking:
$40.000-$55,000/acre, but
no wetland bank serves the
DBQ area at the current
time.
No Permit Fee
Iowa DNR
Floodplain
Management
Floodplain/Floodway 30-160 days for Joint
Application response
Send in Joint Application for
Specific Project
Letter of Map Amendment -
North Point of Island - LIDAR
is 611-612 BFE = 611
Depends on Project,
3 to 8
7 to 9
No Permit Fee
Iowa DNR
Sovereign
Lands*
Threatened & Endangered Species
Rare Natural Communities
Sensitive Habitat
4-6 weeks for their office
30-160 days for Joint
Application response
Send in Joint Application for
Specific Project
Depends on Project,
3 to 8
No Permit Fee
Potential for "take"
(destroying T&E species)
Iowa DNR
Wetland
Permitting
Wetlands Only involved if Corps needs
401 Water Quality Certificate
N/A See entry for Corps of
Engineers
Iowa DOT Bridges
Special Projects
City Island Bridge
FHWA No. 604440
3 months - 1 year Send in Project Concept
Submit Application and
Agreement for Use of
Highway ROW of Utility
Accommodation
2 to 4 No Application Fee
Wisconsin DOT Bridges
Statewide
No estimate because of all
the different options that
may be presented.
It is not standard practice to
allow decorative lighting on
state bridges in Wisconsin
8 to 10 No Application Fee
Coast Guard Navigation Buoys
Bridge Lighting
30 -60 Days Send in letter with proposed
lighting. No bright white
lights shining outward
towards the river. No flashing
lights, however, lights can
change color over time. Keep
red lighting away from piers.
May need remote shut-off
linked to marine operators
channel VHF 28.
1 to 2 No Application Fee
National Park
Service/Iowa
DNR
Land & Water Conservation Fund
Chaplain Schmitt Memorial Park
$109,853.00 1983 Approved, Completed
in 1987, Project #1065-XXX
One Year +/-6 to 9 Land Value, Construction of
Replacement Site
US Fish &
Wildlife
Threatened & Endangered Species Only involved if needed N/A
City of
Dubuque
Zoning Zoned CR - Commercial
Recreation
City of
Dubuque
Current Leases
Engineering - Yacht Basin (3)
Leisure Services - Water Sports Club,
Ice Arena
City Budget Office - DRA (2), Hilton
None, unless lease renewal
is up
No clause in the leases to
end the agreement
None, unless lease renewal
is up
No clause in the leases to
end the agreement
*Note: Chaplain Schmitt Island is City owed and therefore a Sovereign Land permit is not required. However, they would provide recommendations for proposed projects
EXHIBIT C
CITY OF DUBUQUE INSURANCE REQUIREMENTS
FOR PROFESSIONAL SERVICES
City of Dubuque Insurance Requirements for Professional Services
INSURANCE SCHEDULE J
1. 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 60 days. Contractors presenting annual certificates shall present a
certificate at the end of each project with the final billing. Each certificate shall be prepared on
the most current ACORD form approved by the Iowa Department of Insurance or an equivalent
approved by the Director of Finance and Budget. Each certificate shall include a statement under
Description of Operations as to why the certificate was issued. Eg: Project # or Project
Location at or construction of
2. All policies of insurance required hereunder shall be with an insurer authorized to de business
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 coverage required by this Insurance Schedule shall not be deemed a waiver of
these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance
shall be considered a material breach of this agreement.
5. Contractors shall require all subconsultants and sub-subconsultants 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 suboonsultants and sub-subeonsultants.
Contractors agree that they shall be liable for the failure of a subconsultant and sub-
subconsultant to obtain and maintain such coverages. The City may request a copy of such
certificates from the Contractor.
6. All required endorsements shall be attached to certificate of insurance.
7. Whenever a specific ISO form is listed, required the current edition of the form must be used, or
an equivalent form may be substituted if approved by the Director of Finance and Budget and
subject to the contractor identifying and listing in writing all deviations and exclusions from the
ISO form.
8. Contractors shall be required to carry the minimum ooverage4imits, or greater if required by law
or other legal agreement, in Exhibit I. If the contractor's limits of liability are higher than the
required minimum limits then the provider's limits shall be this agreement's required limits.
9. Contractor shall be responsible for deductibles and self -insured retention for payment of all policy
premiums and other cost associated with the insurance policies required glow.
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 required
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 agreement, subject to
mutual agreement of the parties.
Page 1 of 4 Schedule J Professional Services April 2021
City of Dubuque Insurance Requirements for Professional Services
INSURANCE SCHEDULE J (continued)
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 ISO form CG 00 01 or business
owners form BP 0002. All deviations from the standard ISO commercial general
liability farm CG 00 01, or business owners form BP 00 02, shall be clearly
identified.
2) Include endorsement indicating that coverage is primary and non-contributory.
3) Include Preservation of Governmental Immunities Endorsement. (Sample
attached).
4) Include additional insured endorsement for:
The City of Dubuque, including ail its elected and appointed officials, all its
employees and volunteers, all its beards, commissions and/or authorities and
their board members, employees and volunteers. Use ISO form CG 20 26.
5) Policy shall include Waiver of Right to Reco*,er 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.
1) Policy shall include Waiver of Right to Recover from Others endorsement.
C) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory Benefits covering all employees injured on the job by accident or disease as
prescribed by Iowa Code Chapter 85.
Coverage A Statutory --State of Iowa
Coverage B Employers Liability
Each Accident $100,000
Each Employee -Disease $100,000
Policy Limit -Disease $500,000
Policy shall include Waiver of Right to Recover from Others endorsement.
Coverage B limits shall be greater if required by the umbrella/excess insurer.
OR
Page 2 of 4 Schedule J Professional Services April 2021
City of Dubuque Insurance Requirements for Management Services
INSURANCE SCHEDULE L (continued)
CAR
Ilr.by loom Gade Section 85.1A, the CwAractoris not. required to purchaseWorkers'
Carnpensatlon, fnsurartce, the'antractflr:shall have a copy of the State s. Noneieotian of
�Narkers' C0 rnsatean.orEm. players' Llabilit} Coverage farm on, file w1th the Iowa
Utiarlsers Campens$tinn Insurance.CammissiarreF .es required ta}+ Isr a:Cade:Sectian
87.22. >rompletW form must be attached
Dk UMBRELLAIEXCESSLIABILITY V,000,000
The General Liability Automobile Uablllty and Workers Compensation insurance
requirements may be satisfied with a .combination of primary and Umbrella or Excess
Uability Insurance. If the Umbrella or Excess Insurance pollcy does not follow the form
(f.1" primary.policies, it shall includethe same endorsements as required of the primary
policles.including Weiverof`Subrogatiorr and Primary and Non-contributory in favor ufthe
City.
E) CONCESSIONAIRE BOND'
X Yes —NO
Amou nt $25, 000
Fy DRAMSH OP f UQU OR UAB]UrY $3,000,0D.O
X Yes _ No
Gy CYBER LIABILITYJBREACH %1,000,000
X Yes No
Coverage for First and Third Party liability Including but not limited to lost data and
restoration, loss of -income and cyber breach of -information.
Page 3 of 4 Sched ule L Management Services April 2021
City of Dubuque Insurance Requirements for Professional Services
Please be aware that naming the City of Dubuque as an additional insured as is required by this
Insurance Schedule may result in the waiver of the City's governmental immunities provided in Iowa Code
sec. 670.4. If you would like to preserve those immunities, please use this endorsement or an equivalent
form.
PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Go,emmental Immunity. The insurer expressly agrees and states that the purchase
of this policy and the including of the City of Dubuque, lo,.fa 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 Coyeraae. 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 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 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 Y enefits 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 governmental 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 J Professional Services April 2021
Addendum to Management Agreement
This Addendum (this "Addendum") is effective as of the date of the last signature below (the "F.,f#ective
Date"). This Addendum is attached to and a made part of that certain Management Agreement dated as
of January 2024, by and between the City of Dubuque, Iowa and Schmitt Island
Development Corporation (the "A eement"). Capitalized terms used and not otherwise defined in this
Schedule shall have the meanings ascribed to such terrns in the Agreement.
'I1is Addendum constitutes an addendum referenced in Section 23(n) of the Agreement and sets forth
the following speciCc 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 fee 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 maxiinizes 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 puking may be made. available at a reasonable
rental fee.
• Keep the sidewalks and pathways at the lee 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 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 duality required by lave and in no event in less duality than before
January 1, 2024. Food and beverage serving areas must be cleaned within twelve
(12) hours of each event's conclusion.
60 SiD or Third Party Contractor will use reasonable commercial efforts under the
circumstances to ensure the food and beverage services at the Ice Arena axe
operated and conducted pursuant to industry standards for this type of facility.
(iii) All food and beverages sold or served at the fee Arena must be of the same or
similar standard of quality and purity for the type of food or beverage provided
at the Ice Arena before January 1, 2024; 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.
(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 during the I11itial
Term or Renewal Terns, if any, 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 lee 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 this 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, IO«A
Name: rep (AVaL010,1
Title:
Date:
SCHMITT ISLAND DEVELOPINIENT CORPORATION
ii-2
�
Date: