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DICE_Intent to Dispose of Real Property with DA, Lease Exhibits Dated 9 16 09THE CITY OF Dui Masterpiece on the Mississippi BARRY LINDAHL CITY ATTORNEY MEMORANDUM To: Michael C. Van Milligen City Manager DATE: September 16, 2009 RE: Development Agreement Between and Among the City of Dubuque, Iowa, Dubuque Ice & Recreation Center, Inc., Dubuque Racing Association, Ltd., and Battlefield Dubuque, LLC and Lease Agreement Between the City of Dubuque, Iowa and Dubuque Ice & Recreation Center, Inc. Attached is a Resolution of Intent to Dispose of Real Property pursuant to a development agreement and lease of property located on Schmitt Island for the construction of an ice area. Also attached is the proposed Development Agreement and proposed Lease Agreement. Dubuque Ice & Recreation Center, Inc., an Iowa Corporation (DICE), has requested that the City lease to DICE certain real property so that DICE may construct on the property an ice arena. Dubuque Racing Association, Ltd. (DRA) has agreed to contribute funds to the project. Battlefield Dubuque, LLC, (Battlefield), a Minnesota Limited Liability Company, has also agreed to contribute funds for the construction of the arena and to enter into an agreement with DICE for the use of the arena. Significant terms of the Development Agreement are the following: 1. The City will lease the property to DICE pursuant to the Lease Agreement for a term of twenty -five (25) years. 2. DICE will construct on the property the ice arena for a total cost of approximately $6.276 Million. 3. Construction shall commence within thirty (30) days of the October 15, 2009 closing date and shall be substantially completed within nine (9) months after the commencement of construction. OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944 TELEPHONE (563) 583 -4113 / FAx (563) 583 -1040 / EMAIL balesq @cityofdubuque.org 4. Although the City will own the arena, the City will not incur any costs related in any way to the design, construction, or operation of the arena. 5. During the term of the lease, the City will not enter into any agreement to operate another indoor ice facility on property owned by or under the control of the City and will no longer operate the ice facility at Five Flags Civic Center. 6. DRA agrees to contribute to DICE the sum of $1 Million for the construction of the arena and to provide funds not to exceed $300,000.00 for parking improvements. 7. Battlefield agrees to contribute $3.2 Million to DICE for the construction of the arena. DICE and Battlefield have entered into an Arena Usage Agreement for the arena. DICE has entered into a Management Agreement with Southwood Management, LLC for the management of the arena. 8. An Arena Advisory Board comprising the Chairperson of the DICE Board of Directors, the President and CEO of the DRA, the Chairperson of the Battlefield Board of Governors, the City Manager, and the President of the Dubuque Youth Hockey, will advise and make non - binding recommendations to the DICE Board of Directors and the arena manager for such things as capital improvements and expenditures, a master schedule for the arena, establishing facility rules and regulations, and providing a voice for all stakeholders using the arena. Elevations showing the proposed arena are attached to this Memorandum. I would recommend that the Resolution, Development Agreement and Lease Agreement be submitted to the City Council for consideration at the September 21, 2009 City Council meeting, and that a public hearing be set for the disposition of the property for the October 5, 2009 City Council meeting. BAL:tls Attachment cc: Cindy Steinhauser, Assistant City Manager Gil Spence, Leisure Services Manager F: \USERS \tsteckle \Lindaht \Dubuque Community Ice\ MVM_ DevAgreement &LeaseAgreement_091609.doc OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944 TELEPHONE (563) 583 -4113 / FAx (563) 583 -1040 / EMAIL balesq @cityofdubuque.org Preparer: Barry A. Lindahl, Esq. Address: Suite 330, 300 Main Street, Dubuque, IA 52001 Telephone: (563) 583 -4113 RESOLUTION NO. RESOLUTION OF INTENT TO DISPOSE OF AN INTEREST IN REAL PROPERTY BY DEVELOPMENT AGREEMENT BETWEEN AND AMONG DUBUQUE ICE & RECREATION CENTER, INC., DUBUQUE RACING ASSOCIATION, AND BATTLEFIELD DUBUQUE, LLC AND LEASE AGREEMENT WITH DUBUQUE COMMUNITY ICE & RECREATIONAL CENTER, INC. WHEREAS, the City of Dubuque, Iowa (City) is the owner of the following described real estate (the Property): A part of Mineral Lots 298 and 299 in Fractional Section 19, T89N, R3E, 5th P.M., in the City of Dubuque, Iowa, containing 6.63 acres, more or less, subject to easements of record and not of record; and WHEREAS, Dubuque Community Ice &. Recreational Center, Inc. (DICE), an Iowa Corporation, desires to lease a part of the Property shown on Exhibit A -1 attached hereto for the construction and operation of an ice arena (the Arena) as described in a Development Agreement and Lease Agreement now on file at the office of the City Clerk, 50 West 13th Street, Dubuque, Iowa; and WHEREAS, Dubuque Racing Association, LTD (DRA) has agreed to enter into the Development Agreement and contribute to the funds required by DICE for the construction of the Arena; and WHEREAS, Battlefield Dubuque, LLC (Battlefield), a Minnesota limited liability company, has agreed to entered into the Development Agreement and contribute to the funds required by DICE for the construction of the Arena and to enter in an agreement with DICE for the use of the arena. WHEREAS, the City Council of the City of Dubuque has found that the development of the Property pursuant to the Development Agreement and Lease Agreement, and the fulfillment generally of the Development Agreement and Lease Agreement, are in the vital and best interests of City and in accord with the public purposes and provisions of the applicable federal, state and local. WHEREAS, the City Council has tentatively determined that it would be in the best interests of the City to approve the Development Agreement and enter into the Lease Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The City of Dubuque intends to dispose of its interest in the Property pursuant to the Development Agreement and Lease Agreement. Section 2. The City Clerk is hereby authorized and directed to cause this Resolution and a notice to be published as prescribed by Iowa Code Section 364.7 of a public hearing on the City's intent to dispose of the foregoing- described real property, to be held on the 5th day of October, 2009, at 6:30 o'clock p.m. at the Historic Federal Building, 350 West 6th Street, Dubuque, Iowa. Passed, approved and adopted this 21st day of September, 2009. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, City Clerk F: \USERS \tsteckle \Lindahl \Dubuque Community Ice \ResolutionOflntent_091609.doc LEASE E)CHII3IT A PARCEL OF.LAND LYING WITHIN THE NORTHEAST QUARTER OF SECTION'19, TOWNSHIP 89 NORTH, RANGE.3a EAST OF THE 5TH PRINCIPALTMERIDIAN, DUBUQUE COUNTY IOWA S87 °00'14 1.91' LARRISON & ASSOCIATES architects 96g2 POINT OF BEGINNING NE CORNER SEC. 19, T89N, R3E NORTH LINE OF THE NE 1/4 SEC.19 ti P0M1 021'C N 0 •69 740 L= 73.33' DUBUQUE COMMUNITY ICE & 0=521°04'15"E 73.28' RECREATION, INC. 73.28` R= 570.0' 287,868 sq. It. 6.61 ACRES S5198'09'W 67.91'' S38 °41'51 "E 35.23' o. LEASE: AREA C 0 100' 200' S38 °30'01 "E � 44.00 6 6`?° r• s 600' SCALE: I" =100' -0" 1N N38 °41'51'NV,`��' 44.00 ,c LEASE AREA B 20 NOTE: THIS BOUNDRY HAS NOT BEEN SURVEYED. THIS IS A PROPOSED LEASE BOUNDRY AND IS SUBJECT TO CHANGE PROGRESS PRINT Oq/13/200c1 1,-V 1I8I HX3 This DEVELOPMENT AGREEMENT (the Agreement), dated for reference purposes the day of , 2009 (the Effective Date), by and between the City of Dubuque, Iowa (City), an Iowa municipality, Dubuque Ice & Recreation Center, Inc., an Iowa corporation (DICE), Dubuque Racing Association, LTD (DRA), an Iowa nonprofit corporation, and Battlefield Dubuque, LLC (Battlefield), a Minnesota limited liability company. WHEREAS, DICE has requested that City lease to DICE certain real property located in the City of Dubuque, Dubuque County, Iowa (the Property) so that DICE may construct on the Property an ice arena (the Arena) as described herein ;and WHEREAS, DRA has agreed to contribute to the funds required by DICE for the construction of the Arena; and WHEREAS, Battlefield has agreed to contribute to the funds required by DICE for the construction of the Arena and to enter in an agreement for the use of the Arena. WHEREAS, the City Council of the City of Dubuque has found that the development of the Property pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital and best interests of City and in accord with the public purposes and provisions of the applicable federal, state and local. NOW THEREFORE, in consideration of the promises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: SECTION 1. LEASE OF PROPERTY TO DICE 1.1 Lease Agreement. On the Closing Date, City shall transfer possession of the Property pursuant to a Lease Agreement with DICE (the Lease) in the form attached hereto as Exhibit B. 1.2 Recordation of Lease. City shall promptly record a Memorandum of Lease in the form attached hereto as Exhibit E in the office of the Recorder of Dubuque County, Iowa. DICE shall pay all the costs for so recording. 1.3 Condition of Property. City shall deliver the Property to DICE in its "as is" condition, subject to approval by DICE. 1.4 Representations of City. In order to induce DICE to enter into this Agreement, City hereby represents and warrants to DICE that by the Closing Date and to the best of City's knowledge: (1) City is the owner of the Property in fee simple subject to no liens or encumbrances. (2) City has duly obtained all necessary approvals and consents for its execution, delivery and performance of this Agreement and the Lease Agreement, and that it has full power and authority to execute, deliver and perform its obligations under this Agreement and the Lease Agreement. 1.5 Conditions to Closing. The closing of the transaction contemplated by this Agreement and all the obligations of DICE under this Agreement are subject to fulfillment, on or before the Closing Date, of the following contingencies. If any of the following conditions has not occurred prior to the Closing Date, any party may terminate this Agreement upon written notice to the other parties. The termination of this Agreement and the refund of any unused funds contributed by each respective party shall be the sole remedy of all parties and no party shall be entitled to reimbursement of any costs or damages incurred by the party in connection with this Agreement. (1) The representations and warranties made by City in Section 1.4 shall be correct as of the Closing Date with the same force and effect as if such representations were made at such time. (2) DICE shall have obtained any and all necessary governmental approvals, including without limitation approval of zoning, subdivision or platting, and of the Construction Plans pursuant to Section 2.2 below that are necessary or desirable in connection with the Lease Agreement and development of the Property. Any conditions imposed as a part of the zoning, platting, subdivision or plan approval must be satisfactory to DICE, in its sole discretion. City shall cooperate with DICE in attempting to obtain any such approvals, provided that City shall bear no expense in connection therewith. (3) DICE and City shall be in compliance with all the material terms and provisions of this Agreement. (4) City shall have received an opinion of counsel to DICE in the form attached hereto as Exhibit C. (5) DICE shall have furnished City and Battlefield with executed loan documents, in form and substance satisfactory to the City and Battlefield, setting forth the terms and conditions of a bridge loan (Bridge Loan) to DICE sufficient in amount to complete construction of the Minimum Improvements (as defined herein) to the Property in conformance with Construction Plans (as defined herein), which such terms and 2 conditions shall provide that the proceeds of the Bridge Loan have been deposited into an escrow account prior to the commencement of construction of the Minimum Improvements on the same terms and conditions that have been agreed to by Battlefield with respect to its pre-closing contribution or irrevocably committed to DICE when called without condition. (6) DICE and City shall have entered into the Lease, in the form attached hereto as Exhibit B. (7) DICE shall have received, reviewed and approved an abstract of title, provided at City's expense. In the event DICE objects to any matters revealed by such examination that are attributable to matters shown in the abstract of title, such objection shall be delivered to City not later than thirty (30) days after receipt by DICE of the abstract of title. City shall have a period of time equal to twenty (20) days after receipt of DICE notice to correct DICE'S objection to title, and if it shall fail to do so within said twenty (20) day period of time, then DICE shall, by written notice given to City on or before seven (7) days after expiration of the aforementioned twenty (20) day time period, notify City that (i) it has elected to declare this Agreement null, void and of no further effect, in which event neither party shall have any further liability hereunder; or (ii) it has elected to proceed to closing notwithstanding the objection. The Lease shall be subject to all matters revealed by the abstract except those matters which are objected to by DICE and corrected by City, or objected to by DICE and subsequently waived by DICE as provided for herein. (8) DICE shall have entered into the Management Agreement in the form attached hereto as Exhibit F. (9) DICE and Battlefield shall have entered into the Ice Usage Agreement in the form attached hereto as Exhibit G. (10) Battlefield shall have delivered to DICE in a form acceptable to DICE and City an irrevocable letter of credit, escrowed funds, cash or a combination of them equaling $2.8 million. (11) DRA shall have paid to DICE the pre-closing contribution required by Section 5.1. (12) DICE shall have paid into an escrow account DRA's pre-closing contribution, such escrow account being on the same terms and conditions that have been agreed to by Battlefield with respect to its pre-closing contribution except for the requirement that any unused funds of DRA's pre-closing contribution shall be refunded to DRA in the event this Development Agreement is terminated. (13) Battlefield shall have committed to DICE the pre-closing contribution required by Section 6.1. 3 (14) DICE shall have received State of Iowa Vision Iowa CAT Committee and Vision Iowa Board approval of the revised Arena size and scope as an amendment to the previously awarded Vision Iowa CAT grant. (15) DICE shall have furnished to Battlefield all schematic floor plans, renderings, site plan, and descriptions regarding the Minimum Improvements and Construction Plans, where such exist as well as any other documents, information, reports, agreements and other materials, excluding individual donor lists, relating to the Minimum Improvements that have been provided, or are required to be provided, to DICE's lenders in connection with the construction of the Minimum Improvements. Further, DICE shall have furnished to Battlefield company information and examples of previous construction projects in size, scope or use of the general contractor and architect of the Minimum Improvements. (16) The Escrow Agreement, dated as of September 9, 2009 ("Battlefield Escrow Agreement") by and among Battlefield, Philip A. Falcone and Dubuque Bank & Trust Co. shall have been amended to provide that (i) the withdrawal of funds deposited in escrow pursuant to the Battlefield Escrow Agreement shall be subject to the same conditions precedent that are required to be satisfied in order to draw funds under DICE's bridge loan and (ii) any unused funds of Battlefield's pre-closing contribution shall be refunded to Battlefield in the event this Development Agreement is terminated. 1.6 Closing. The closing shall take place on or before October 15, 2009 (the Closing Date), or such other date as the parties may agree in writing. Exclusive possession of the Property shall be delivered to DICE on the Closing Date in its current condition and in compliance with this Agreement, including City's representations and warranties regarding the same. Consummation of the closing shall be deemed an agreement of the parties to this Agreement that the conditions of closing have been satisfied or waived. 1.7 Closing Costs. The following costs and expenses shall be paid on or prior to the Closing Date: (1) City shall pay: (a) The transfer fee imposed on the conveyance, if any. (b) All special assessments whether levied, pending or assessed. (c) The cost of preparing and providing to DICE an abstract of title to the Property. City agrees that the abstract of title shall be provided. no later than thirty (30) days prior to the Closing Date. (2) DICE shall pay the recording fee necessary to record the Memorandum of Lease. 4 1.8 Real Estate Taxes. DICE shall pay all real estate taxes pursuant to the Lease Agreement, if any. SECTION 2. ®EVLOP ENT ACTIVITIES 2.1 Required Minimum Improvements. DICE hereby agrees to construct on the Property the Minimum Improvements described in Exhibit D attached hereto. 2.2 Plans~for Construction of~Minimum Improvements. Plans and specifications with respect to the construction of the initial Minimum Improvements (the Construction Plans) shall be approved by City provided they are in conformity with all applicable state and local laws, ordinances and regulations. To that end, DICE shall, not later than ten (10) days prior to the Closing Date, submit to City, for approval by City, the Construction Plans and such additional documents as City may reasonably request with respect to the Minimum Improvements to be constructed by DICE on the Property. All work with respect to the Minimum Improvements shall be in conformity with the Construction Plans as approved by City. It is agreed that approval of the Construction Plans by City is a condition to closing under Section 1.5(3) above, and unless such approval shall be given by City on or before the Closing Date, this Agreement shall be null and void. 2.3 Timing of Improvements. DICE hereby agrees that construction of the Minimum Improvements on the Property shall be commenced within forty five (45) days after the Closing Date, and shall be substantially completed within nine (9) months after the commencement of construction. The time for performance of such obligations shall be suspended during the period of any delays caused by acts of God or other matters not within the control of DICE including, but not limited to, extreme weather conditions and/or other natural causes, casualty, labor problems (including, but not limited to, strikes, walk-outs, picketings, boycotts and shutdowns), governmental restriction upon the availability or use of labor or materials, or insurrection, embargoes, or delays in providing necessary consents or approvals unless otherwise agreed upon in writing by City and DICE. The time for performance of such obligations shall. be extended only for the period of such delay. 2.4 Certificate of Completion. Promptly upon completion of the Minimum Improvements in accordance with those provisions of this Agreement relating solely to the obligations of DICE to construct the Minimum Improvements, including the dates for beginning and completion thereof, City shall furnish DICE with an appropriate instrument so certifying. Such certification shall be a conclusive determination of the satisfaction and termination of the agreements and covenants in this Agreement and in the Lease with respect to the obligations of DICE to construct the Minimum Improvements. SECTION 3. CITY PARTICIPATION 3.1. Lease Terms. For and in consideration of DICE'S obligations hereunder to construct the Minimum Improvements, City agrees to lease the Property to DICE pursuant to the terms of the Lease. DICE acknowledges and agrees that it is the intent of the parties that City shall not incur any costs related in any way to the design, construction, or operation of the Arena. Except as provided by law, the City acknowledges and agrees that it shall have no right to affect, control or otherwise modify the design, construction or operation of the Arena following the Closing Date. 3.2. Exclusive City Ice Facility. City agrees that during the Term of the Lease, City shall not operate or enter into any agreement to operate another in door ice facility on property owned by or under the control of City. City further agrees that during the Term of the Lease, City shall not allow any ice at Five Flags Civil Center without DICE's written approval. City agrees to deliver to DICE for its use at the Arena the equipment shown on Exhibit I. The City shall not be prohibited from maintaining outdoor ice on property owned by or under the control of City. 3.3 Recognition Agreement. In the event of cancellation or termination of the Lease or of the surrender or rejection thereof (other than in connection with any action, inaction or default of Battlefield under the Ice Usage Agreement), whether voluntary or involuntary or by operation of law, prior to the expiration or earlier termination of the Ice Usage Agreement including any extensions or renewals of the Ice Usage Agreement, then City agrees to recognize all of the rights that Battlefield has under the Ice Usage Agreement on the same terms, covenants and conditions provided in the Ice Usage Agreement as in effect immediately prior to such cancellation or termination, for so long as Battlefield is not in default under the Ice Usage Agreement. SECTION 4. COlJENANTS OF DICE 4.1 Insurance Coverages. DICE shall obtain and maintain insurance as set forth in the Lease. 4.2 Non-Discrimination. In carrying out the project, DICE shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, sexual orientation, national origin, age or disability. 4.3 Conflict of Interest. DICE agrees that no member, officer or employee of City, or its designees or agents, nor any consultant or member of the governing body of City, and no other public official of City who exercises or has exercised any functions or responsibilities with respect to the Project during his or her tenure, or who is in a position to participate in adecision-making process or gain insider information with regard to the Project, shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the Project, or in any activity, or benefit therefrom, which is part of this Project at any time during or after such person's tenure. 4.4 Non-transferability. This Agreement may not be assigned by DICE without the prior written consent of City, which consent shall not be unreasonably withheld. Transfer or assignment of the Lease shall be governed by the terms thereof. 6 SECTION 5. DRA PARTICIPATION 5.1. DRA Financial Commitment. DRA agrees to contribute to DICE prior to closing for the construction of the Minimum Improvements the sum of $ 1,000,000. Following the closing, DRA will also provide funds, not to exceed $300,000.00, necessary to increase the amount of parking so that the Arena meets City Code requirements for the intended use of the Arena and capacity, including lighting the parking lot located at the softball and baseball fields across from the Arena. SECTION 6. BATTLEFIELD PARTICIPATION 6.1. Battlefield Financial Commitment. Battlefield agrees to contribute $ 3.2 M to DICE for the construction of the Minimum Improvements as Base Rent set forth in the Arena Use Agreement. The Base Rent shall be used exclusively by DICE for the construction of the Minimum Improvements. 6.2. Ice Usage Agreement. Prior to the Closing, DICE and Battlefield shall enter into the Ice Usage Agreement in the form attached hereto as Exhibit G. 6.3. Performance Guarantee. To secure the performance of Battlefield's financial commitment in Sec. 6.1, ,Battlefield shall prior to Closing deliver to DICE in a form acceptable to DICE and City an irrevocable letter of credit, escrowed funds, cash or a combination of them equaling $ 2.8 million. SECTION 7. CONSTRUCTION PROGRESS MEETINGS AND COSTS 7.1. Construction Progress Meetings; Information. The parties shall meet weekly during the construction of the Minimum Improvements to review the construction of the Minimum Improvements. Battlefield shall also be notified of, and have the right to participate in, all scheduled meetings. DICE agrees to provide Battlefield with all documents, information, reports, agreements and other materials relating to the Minimum Improvements that are provided, or are required to be provided, to DICE's lenders in connection with the construction of the Minimum Improvements. 7.2. Disbursements. The parties hereto agree that the funds contributed by DICE, DRA and Battlefield for the construction of the Minimum Improvements shall be drawn in the order and amounts set forth on the schedule of withdrawals attached hereto as Exhibit J, unless otherwise approved by DICE, DRA and Battlefield. DICE further agrees to provide evidence of such withdrawals upon the request of the DRA and/or Battlefield. Following the Closing Date, in the event that DICE enters into, amends or modifies any agreement with its lenders regarding the disbursement of the proceeds of the Bridge Loan on terms more favorable to such lenders than the terms of this Development Agreement and the Battlefield Escrow Agreement then the terms of this Development Agreement and the Battlefield Escrow Agreement shall be revised so that Battlefield will obtain treatment at least as favorable. 7 7.3. Excess Construction Costs. City, DRA and Battlefield shall not be liable for any additional construction costs, cost overruns, fees or expenses required to complete the Minimum Improvements in excess of what each party has already contributed and shall not be required to contribute any additional funds to complete the Minimum Improvements, provided however, that in the event a party requests any changes, alterations or additions to the Minimum Improvements, the party requesting such change, alteration or addition shall bear the additional costs, fees and expenses that are necessary to make such change, alteration or addition. SECTION 8. ARENA MANAGEMENT AGREEMENT 8.1. Management Agreement. Prior to the Closing, DICE shall enter into the Management Agreement in the form attached hereto as Exhibit F. The Management Agreement may not be modified in any way without the prior written consent of City. 8.2 Arena Advisory Board. The Arena Advisory Board is a select group of stakeholders whose function shall be to advise and make non-binding recommendations to the DICE Board of Directors and the Arena Manager. The Arena Advisory Board shall among other things, suggest capital improvements and expenditures, determine the master schedule for the Arena, assist in establishing Facility Rules and Regulations, and provide a voice for all stakeholders using the Arena. The Arena Advisory board shall be comprised of the following five (5) members: A) Chairperson of the DICE Board of Directors, or designee; B) President and CEO of the DRA, or designee; C) Chairperson of the Battlefield Board of Governors, or designee; D) City of Dubuque City Manager, or designee; E) President of Dubuque Youth Hockey or designee 8.3 Public Use Priority. The priority use of the Arena is for public skating and all other uses are secondary in nature. Other than the specific dates and times agreed to in the Ice Usage Agreement between DICE and Battlefield, the arena shall be scheduled for, and open to, public uses including, but not limited to, public skate, learn to skate, youth hockey, figure skating, broomball, adult hockey, birthday parties and similar ice-related activities. During the prime ice period from September 1St to June 1St each season, the facility shall be designated for such public use and access for at least 88% of the hours the facility is open. Battlefield ice use is estimated to be approximately 580 hours of ice use per year from a total of nearly 4,800 hours. During the off season from June 1St to September 1St 100% of the hours the facility is open is available for public use. Ice Arena Management shall prioritize the ice scheduling per this Development Agreement and Ice Usage Agreement, and provide DICE with a copy of the schedule for DICE's approval. A Master Schedule scheduling meeting will be held each year on or about August 1. At this meeting, representatives from all interested user groups will select dates and times for their activities with priority given to public skating. 8 SECl'I®N 9. INDEMIVIFICAI"I®N 9.1. DICE'S Indemnification of City. (1) DICE releases City and its governing body members, officers, agents, servants and employees thereof (hereinafter, for purposes of this Section 9.1, the "Indemnified Parties") from and covenants and agrees that the Indemnified Parties shall not be liable for, and agrees to indemnify, defend and hold harmless the indemnified parties against any loss or damage to property or any injury to or death of~ any person occurring at or about or resulting from any defect in the Property and the Minimum Improvements. (2) Except for any willful misrepresentation or any willful or wanton misconduct or any unlawful act of the Indemnified Parties, DICE agrees to protect and defend the Indemnified Parties, now or forever, and further agrees to hold the Indemnified Parties harmless, from any claim, demand, suit, action or other proceedings whatsoever by any person or entity whatsoever arising or purportedly arising from (i) any violation of any agreement or condition of this Agreement, except with respect to any suit, action, demand or other proceeding brought by DICE against City to enforce its rights under this Agreement or (ii) the construction, installation, ownership and operation of the Minimum Improvements or (iii) the condition of the Property and any hazardous substance or environmental contamination located in or on the Property which is caused by DICE after DICE takes possession of the Property. (3) The Indemnified Parties shall not be liable for any damage or injury to the persons or property of DICE or its officers, agents, servants or employees or any other person who may be about the Property or the Minimum Improvements other than any act of negligence on the part of any such Indemnified Parties. (4) All covenants, stipulations, promises, agreements and obligations of City contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of City, and not of any governing body member, officer, agent, servant or employee of City in the individual capacity thereof. (5) The provisions of this Section 9.1 shall survive the termination of this Agreement. 9.2 City's Indemnification of DICE. (1) City releases DICE and its directors, officers, agents, servants, volunteers and employees (hereinafter, for purposes of this Section 9.2, also referred to as the "Indemnified Parties") from and covenants and agrees that Indemnified Parties under this paragraph shall not be liable for, and agrees to indemnify, defend and hold harmless the Indemnified Parties against any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Property 9 prior to the Closing Date, or any loss, damage or expense associated with any environmental condition existing at the Property as of the Closing Date. (2) Except for any willful misrepresentation or any willful or wanton misconduct or any unlawful act of DICE or its owners, officers, agents, servants and employees, City agrees to protect and defend DICE or its owners, officers, agents, servants and employees, now or forever, and further agrees to hold the DICE and its owners, officers, agents, servants and employees harmless from any claim, demand, suit, action or other proceedings whatsoever by any person or entity whatsoever arising or purportedly arising from (i) any violation of any agreement or condition of this agreement by City, except with respect to any suit, action, demand or other proceeding brought by City against DICE to enforce its rights under this agreement; or (ii) negligence of the City or (iii) the condition of the Property as of the Closing Date and any hazardous substance or environmental contamination located in or on the Property which is or was caused by City at any time. (3) The Indemnified Parties shall not be liable for any damage or injury to the persons or property of City or its governing body members, officers, agents, servants and employees or any other person who may be about the property or the Minimum Improvements other than any act of negligence on the part of any such Indemnified Parties. (4) All covenants, stipulations, promises, agreements and obligations of DICE contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of DICE and not of any owner, officer, agent, servant or employee of DICE in the individual capacity thereof. (5) The provisions of this Section 9.2 shall survive the termination of this agreement. SECTION 10. EVENTS ®F ®EFAl1LT' p-N® RE EIES 10.1 Events of Default Defined. The following shall be Events of Default under this Agreement and Event of Default shall mean, whenever it is used in this Agreement, any one or more of the following events: (1) Any event of default by DICE under the Lease. (2) Failure by DICE to cause the construction of the Minimum Improvements to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement. (3) Failure by DICE to cause the Minimum Improvements to be reconstructed when required pursuant to the Lease. 10 (4) Transfer of any interest by DICE of the Minimum Improvements in violation of the provisions of this Agreement. (5) Failure by DICE to substantially observe or perform any other covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement or the Lease. (6) DICE shall: (a) file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act of 1978, as amended, or under any similar federal or state. laws (b) make an assignment for the benefit of its creditors; (c) admit in writing its inability to pay its debts generally as they become due; or (d) be adjudicated a bankrupt or insolvent: or if a petition or answer proposing the adjudication of DICE as a bankrupt or its reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof, or a receiver, trustee or liquidator of DICE or of Minimum Improvements, or part thereof, shall be appointed in any proceedings brought against DICE, and shall not be discharged within ninety (90) days after such appointment, or if DICE shall consent to or acquiesce in such appointment. (7) Failure by DICE, DRAS or Battlefield to substantially observe or perform any covenant, condition, obligation or agreement on their part to be observed or performed under this Agreement, the Lease, the Management Agreement, or the Ice Usage Agreement. 10.2 Notice of Default. City shall issue a written notice of default providing therein a thirty (30) day period in which the defaulting shall have an opportunity to cure such default. In the event the default is of a nature that cannot be cured within the aforementioned thirty (30) day time period, then the defaulting party shall be deemed to be curing the default if the defaulting, within thirty (30) days after receipt of notice thereof, commences action to cure the default and prosecutes the' same to completion, such that the default is cured within a reasonable time under all of the facts and circumstances then existing. 10.3 Remedies Upon Default. If the default remains unremedied after such thirty (30) day period, City shall have the right to do one or more of the following: 11 (1) exercise any remedy provided by law; (2) suspend City's performance under this Agreement, the Lease, the Management Agreement, or the Ice Usage Agreement; (3) terminate this Agreement, the Lease, the Management Agreement, or the Ice Usage Agreement; (4) withhold certification of completion with respect to the Minimum Improvements; (5) require repayment of all Financial Assistance provided to DICE, and/or the payment of damages by the defaulting party for any costs incurred by City in connection with the default; and (6) take such action as may be necessary to remove the defaulting party from the Property. 10.4 No Implied Waiver. In the event any term, covenant or condition contained in this Agreement is breached by any party and thereafter waived by any other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. SECTION 11. CENER,4L TERMS AN® PROVISIONS 11.1 Notices and Demands. Whenever this Agreement requires or permits any notice or written request by one party to another, it shall be in writing, enclosed in an envelope, addressed to the party to be notified, properly stamped, sealed and deposited in the United States Mail, and (1) In the case of DICE, is addressed to Epic Construction, Inc., 137 Main Street, Suite 500, Dubuque, IA 52001; and F. Robert Woodward, III, PO Box 1816, Dubuque, IA 52004; or (2) In the case of City, is addressed to the City Manager, City Hall, 50 W. 13th Street, Dubuque, IA 52001; or (3) In the case of DRA, is addressed to Jesus Aviles, President and CEO, Mystique Casino, 1855 Greyhound Park Rd., Dubuque IA 52001 (4) In the case of Battlefield is addressed to Battlefield Dubuque, LLC, c/o Brian Schoenborn, Vice President, P.O. Box 817, St. Joseph MN 56374 at such other address with respect to either party as that party may, from time to time designate in writing and forward to the other as provided in this Section. Any notice 12 delivered hereunder shall be deemed delivered upon the earlier of the actual receipt or two (2) business days after posting. 11.2 Compliance with Laws and Regulations. All of the parties shall comply with all applicable city, state and federal laws, rules, ordinances, regulations and orders. 11.3 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of City and DICE and their respective successors and assigns. 11.4 Termination Date. (1)This Agreement and the rights and obligations of the parties hereunder shall terminate upon expiration of the Lease (the Termination Date). (2) In the event that the Lease is terminated for any reason, whether voluntary or involuntary or by operation of law, prior to the Termination Date, then Clty shall, no more than thirty (30) days following the date of such termination, provide written notice to DRA and Battlefield that the Lease has terminated and offer to DRA the right to enter into a new lease, on the same terms and conditions as the Lease, for the term then remaining, and specifically preserving all unexercised options. DRA shall have thirty (30) days after receipt of such notice to accept such offer and enter into a new lease with the City. In the event DRA fails to accept such offer and enter into a new lease with the City within such thirty day period, City shall provide written notice to Battlefield that DRA has failed to accept the City's offer to enter into a new lease and shall offer to Battlefield the right to enter into a new lease, on the same terms as the Lease, for the term then remaining, and specifically preserving all unexercised options. Battlefield shall have thirty (30) days after receipt of such notice to accept such offer and enter into a new lease with the City. Without regard to whether Battlefield or DRA enters into a new lease with the City pursuant to this Section 11.4(2), the City shall, and shall cause any new lessee of the Demised Premises (as defined in the Lease) to, enter into a written agreement recognizing all of the rights that Battlefield and the parties to the Management Agreement have under the Ice Usage Agreement and the Management Agreement, on the same terms, covenants and conditions provided in the Ice Usage Agreement and Management as in effect immediately prior to the termination of the Lease. 11.5 Execution By Facsimile. The parties agree that this Agreement may be transmitted between them by facsimile. The parties intend that faxed signatures constitute original signatures and that a faxed Agreement containing the signatures, original or faxed, of all the parties is binding on the parties. 11.6 DRA Execution Of This Agreement. DRA is executing this Agreement only as to the following paragraphs: 1.5, 1.6, 5.1, 7.2, 7.3, 8.2, 10.1(7), 11.2, 11.4, and 11.5. 11.7 Battlefield Execution Of This Agreement. Battlefield is executing this Agreement only as to the following paragraphs: 1.5, 1.6, 3.3, 6.1, 6.2, 6.3, 7.1, 7.2, 7.3, 8.2, 10.1(7), 10.2, 10.3, 10.4, 11.1, 11.2, 11.4 and 11.5. 13 CITY F ®l1BlJQlJE, I W~4 By: Roy D. Buol, Mayor Dated By: Jeanne F. Schneider, City Clerk 14 ®UBUQU ICE RCR,4TIN CENTER, INC. By: F. Robert Woodward, III, President PO Box 1816 Dubuque, IA 52004 Dated 15 l1 UQUE RACING ACIAT6®N, LT®., only as to paragraphs: 1.5, 1.6, 5.1, 7.2, 7.3, 8.2, 10.1(7), 11.2, 11.4, and 11.5. By Jesus Aviles Dated President and CEO 1855 Greyhound Park Rd. Dubuque IA 5001 16 ~-°fl°LEFIEL® U UU, LLC By Brian Schoenborn Vice President 17 Dated x~l IT LIST No Exhibit A Exhibit B Lease Exhibit C Opinion of Counsel to DICE Exhibit D Minimum Improvements Exhibit E Memorandum of Development Agreement Exhibit F Management Agreement Exhibit G Ice Usage Agreement No Exhibit H Exhibit I Five Flags Ice Equipment Exhibit J Fund Drawdown Schedule 18 ~x~«r~ ~~~s~ LEASE AGREEIViENT TR ~! 1 1 ~ W N61~y ILY~~ A~® ®uuQEDE c~I~uN'TV'cE R~c~E~Tt~ c~N~r~~, Ilti<C. THIS LEASE AGREEMENT (the "Lease") dated for reference purposes the day of , 2009, between the City of Dubuque, Iowa, a municipal corporation (Lessor) and Dubuque Community Ice & Recreation Center, Inc., an Iowa corporation (Lessee). SECTi1~N 1. ®E~IIISE AN®'TERt~t 1.7. In consideration of the rents hereinafter reserved and the terms, covenants, conditions and agreements set forth in this Lease, Lessor hereby leases to Lessee the real property shown on Exhibit A, attached hereto, togethor with any and all easements and appurEenances thereto and subject to any easements and restrictions of record (the "Demised Premises"), to have and to hold for a term of twenty-five (25} years commencing on , 2009, and terminating at 11:59 p.m. on , 2024, subject to all of the terms, covenants, conditions and agreements contained herein. 1.2. Closing Date. Un the Closing Date, Lessor shall transfer possession of the Demised Premises pursuant to this Lease. 1.3. Condition of Property. Lessor shall deliver the Demised Premises in its "as is" condition. 1.4. Conditions to Closing. The closing of the transaction contemplated by this Lease and all the obligations of Lessee under this Lease are subject to fulfillment, on or before the Closing Date, of the following contingencies: {1) Lessee shall have obtained any and all necessary governmental approvals, including without limitation approval of zoning, subdivision or platting, and of the Construction Plans pursuant to Section 3.2 below that are necessary or desirable in connection with the Lease and development of the Demised Premises. Lessor shall cooperate with Lessee in attempting to obtain any such approvals, provided that Lessor steal! bear no expense in connection therewith. (2} Lessee shall be in compliance with all the material terms and provisions of this Lease. (3} Lessee shall have furnished Lessor with evidence, in a form satisfactory to Lessor as Lessor shall determine in the reasonable exercise of its discretion, that Lessee wig be able to operate the Tenant Improvements for the Term of this Lease on a sound financial and managerial basis 091709balfinal -j- (4) Lessee shall of its cost have caused a survey and plat of the Demised Premises to be prepared and recorded. 1.5 Closing: The closing shall take place on or before October 45, 2009 (the Closing Date)., or such other date as the parties may agree in writing: Exclusive possession of tiie Property shall be delivered to Lessee on the Closing Date in its current condition and in compliance with this Lease.' Consummation of the closing shall be deemed an agreement of the parties to this Lease that the conditions of closing have been satisfied ar waived. 1.7 Termination of Prior Lease. Upon execution of this Lease, the prior Lease between the parties is terminated. SECTION 2. CoNSTRUCTIBN Before Lessee commences construction, Lessee shall furnish to Lessor evidence, in a form satisfactory to the Lessor as Lessor shall determine in the reasonable exercise of its discretion (such as evidence of cash on hand or a letter of commitment frarn a bank or other lending institution for funds to cover the- cost of construction and furnishings): that Lessee has firm financial commitments sufficient in amount to complete construction of the Lessee Improvements (as defined herein) to the Qemised Premises in conformance with Construction Plans (as defined herein}, or Lessor shall have received such other evidence of Lessee's financial ability as in the reasonable judgment of Lessor is required to complete such Improvements. SECTION 3. RENT Lessee shall pay Lessor (in addition to taxes, assessments, and other charges required to be paid under this Lease by Lessee) rent for the Demised Premises of One Dollar ($'1.00) a year in advance upon execution of this Lease and on the same date each year of the term. Lessee shat! not be in default of rent unless and unfit thirty (30) days after Lessor delivers written notice to the Board of Directors of the Lessee (or its lawful successor or assign) that rent is past due.. Lessor acknowledges receipt of the rent. for the first year. SECTION 4. TITLE T'® IMPROVEMENTS AN®T DE FIX~'URE$ 4.1. Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean all of Lessee's personal property located on the Demised Premises used in Lessee's business. Title fo Lessee's trade fixtures (the "Trade Fixtures") are and shall be the sole and exclusive property of Lessee during the term of this Lease and shall remain the sole and exclusive property of Lessee after the expiration or termination of this Lease, for whatever reason. Lessor acknowledges and understands #hat it shall have no right, title, or interest in or to Lessee's Trade Fixtures either during the term of this Lease, or #hereafter (except as hereinafter provided). Lessor acknowledges and agrees that Lessee shall have the right to encumber, sell, or hypothecate Lessee's Trade 091709balfmat -2- Fixtures, to remove them from the. Demised Premises,. or to otherwise deal with all or any portion of such Lessee's Trade Fixtures, at Lessee's sole discretion. Provided further, that upon ten. (10) days' prior written notice to Lessor, Lessor shall prepare and deliver to Lessee a certificate in recordable form stating that Lessor has no interest or right in or to Lessee's Trade Fixtures, as well as any other or further document which Lessee may reasonably request from Lessor. 4.2 Lessee Improvements. All Lessee Improvements hereafter constructed on the Demised Premises are and shall be the property of Lessor during the term of this Lease and no further deed or other instrument shall be necessary to confirm the vesting in Lessor of title to the Lessee Improvements. Upon request of Lessor, however, Lessee shall execute, acknowledge and deliver to Lessor a quitclaim deed confirming that all of Lessee's right, title and interest in or to the Lessee Improvements and that title to the Lessee Improvements has vested in Lessor. Notwithstanding the foregoing, Lessor at its option may require Lessee to remove the- Lessee Improvements from the Demised Premises at Lessee's sole expense upon 120 days' written notice to Lessee, and Lessee shall have ninety {90) days after the termination of this Lease to complete such removal. If Lessee fails to remove the Lessee Improvements within such ninety day period, Lessor may cause the Lessee Improvements to be removed and Lessee shall pay the costs of such removal within thirty (30) days of receipt of a statement therefore from Lessor: 4.3. Lessee Required Improvements. Lessee hereby agrees to construct on the Demised Premises the Minimum Improvements {the Lessee Improvements) described in Exhibit D of the Development Agreement dated the day of , 2009, upon the terms and conditions set forth in the Development Agreement. A copy of Exhibit D is attached hereto and incorporated herein by reference: 4.4. Certificate of Completion. Promptly upon completion of the Lessee Improvements in accordance with those provisions of this Lease relating solely to the obligations of Lessee to cori~truct the Lessee Improvements, including the dates for beginning and completion thereof, Lessor shall furnish Lessee with an appropriate instrument. so certifying. Such certification shall be a conclusive determination of the satisfaction and termination of the agreements and covenants in this Lease with respect to the obligations of Lessee to construct the Lessee Improvements. SECI°I~Ed 5. ENCt1~ t~CE OF LESSEE'S LEASER®LD 1~1TEREST 5.1. Lessee's right to encumber leasehold interest. Lessee shall not encumber by morfgage, deed of trust, or any other instrument, its leasehold interest and estate in the Demised Premises. SECTIN 6. T ES AND tJTILI°~IES 6.1, Lessee agrees to pay as additional rent an amount equal to real estate taxes upon the rea[ estate of the Demised Premises that become payable during the term 091709balfinai -3- hereof. Lessee shall further provide to Lessor official receipts of the appropriate taxing authority or other evidence satisfactory to Lessor evidencing payment thereofi. 6.2. The Lessee further agrees to pay all other taxes, rates, charges, levies and assessments, general and special, of every name, nature and kind; whether now known to the. law or hereafter created which may be taxed, charged, assessed, Levied or imposed upon said real estate, any buildings or improvements thereon which may be taxed, charged, assessed, levied or imposed upon the leasehold estate hereby created and upon the reversionary estate in said real estate during the term hereof, and all such other taxes, rates, charges, levies and assessments shall. be paid py Lessee as they become due and befiore they become delinquent. 6.3. Lessee agrees to timely pay all taxes, assessments or other public charges levied or assessed by lawful authority (but reasonably preserving Lessee's rights of appeal) against its personal property on the premises, during the .term. of this Lease. 6.4. Nothing herein shall require Lessee to pay any of Lessor's income taxes, surtaxes, excess profit taxes or any taxes on the rents reserved to Lessor hereunder: 6.5. Lessee shall at all times have the right to contest in good faith, in any proper proceedings, in the name of Lessor if necessary, the payment or satisfaction of any such taxes, assessments; rates, charges or- levies so agreed to be paid. by Lessee, if the validity thereof, or the right to assess or levy the same against or collect the same from said Demised Premises or improvements, shall be disputed. Upon the conclusion of any such suit or proceedings, or not less than three (3} months prier to the date. when the right to redeem therefrom expires, whichever will be the earlier, Lessee will promptly pay and satisfy such disputed tax, assessment or other charge as finally determined, together with all expenses,~costs and attorneys' fees whatsoever incurred in connection therewith. 6.6 Lessee shall pay for all utilities in connection with the Demised Premises. SECT`t®N 7. [U1AIN1"EIUANCE AN REPAIRS 7.1 Lessee sha{I at all times during the term of this Lease, at Lessee's own costs and expense,. keep the Demised Premises and the Lessee Improvements thereon, and appurtenances to the Demised Premises, in good order, condition, and repair, casualties and ordinary wear and tear excepted. Lessee shall at all times during the term of this Lease, at Lessee's own casts and expenses, keep the side walks and curbs of the Demised: Premises in good order,, condition and repair. Lessee shall keep and maintain the Demised Premises, including lanscaping; and ail improvements in superior condition, consistent with other similarly classed operations. Lessee shall keep the Demised Premises in such condition as may be required by law and by the terms of the insurance policies furnished pursuant to this Lease, whether or not such repair shall be interior or exterior, and whether or not such repair shall be of a structural nature. Upon reasonable notice to Lessee, Lessor may, at its discretion, conduct an annual 091709balfinal -4- inspection of the Demised Premises to determine Lessee's compliance with this Article VI. 7.2 Lessor shall maintain Lessor's parking lot which was in existence at the date of commencement of this Lease but shall have no obligation to plow snow in the parking lot. Snow plowing of the parking lot shat[ be Lessee's responsibility at its expense if Lessee intends to use the parking lot. Lessee shall provide for removal of all snow from the parking lot. Lessee shall provide, at its cost, adequate lighting, for the parking lot and shall be responsible for the maintenance of said lights. 7.3 With respect to any parking lot constructed by Lessee or for Lessee's benefit after the date of commencement of this Lease, Lessee shall be soley responsible to maintain any such parking lots, including but not limited to snow removal and lighting. SE~°f1O6~ 8. ~DI~tPLld4~lCE 4VtTH LAW 8.1. During the term of this Lease, Lessee shall comply with all applicable laws applicable to Lessee's use of the Demised Premises, the breach of which might result in any penalty on Lessor or forfeiture of Lessor's title to the Demised Premises. 8.2. Lessee shall not commit waste on the Demised Premises except as necessary for -the removal or construction of any buildings and Lessee Improvements on the Demised Premises. SECTION 9. AL°t'ERAi°INS Lessee shall not during the term of this Lease make any alteration, addition, or modification to the exterior of the Demised Premises or the improvements thereon without the prior written approval of Lessor in Lessor's sole discretion. Lessee shall not during the term of this Lease make any alteration, addition, or modification to the interior of the Demised Premises or the improvements therein in excess of $10,000 without the prior written approval of Lessor in Lessor's sole discretion. SECTI®N 90. l1SE F DEMISED PREMISES 10:1. Lessee shall use the Demised Premises primarily far an ice rink and shat( not use or allow the Demised Premises or any buildings or Lessee [mprovements thereon or any appurtenances thereto, to be used or occupied far any unlawful purpose or in violation of any certificate of occupancy. Lessee may use the Demised Premises occasionally for other uses when it is not being used as an ice rink, without notice to Lessor. Lessee will not suffer any act to be done or any condition to exist within the Demised Premises or in any Lessee Improvement thereon, or permit any article to be brought therein, which may be dangerous, unless safeguarded as required ay taw, or which may, in law, constitute a nuisance, public or private, or which may make void or voidable any insurance in force with respect thereto. 091709balfmal _$_ 10.2 Parkin All other recreational uses, including but not limited to baseball, softball, skate boarding, fishing, soccer and rugby, shall have precedence over Lessee with respect to the use of Lessor's parking lot. Lessee shall cooperate with Lessor to avoid conflicting use of Lessor's parking lot and shall notify Lessor in advance of any anticipated high use of the parking lot. 10.3 Recognition Agreement. to the event of cancellation or termination of the Lease or of the surrender or rejection thereof (other than in connec#ion with any action, inaction or. default of Battlefield Dubuque, LLC {"Battlefield") under that certain Ice Usage Agreement, dated as of August 5, 2009 {"Ice Usage Agreement'`) by and between Lessee and Battlefield), whether voluntary or involuntary or by operation of taw, prior to the expiration or earlier termination of the Ice Usage Agreement including any extensions or renewals of the Ice Usage Agreement, then Lessor agrees to recognize at{ of the rights that Battlefield has under the Ice Usage Agreement on the same terms, covenants and conditions provided in the Ice Usage Agreement as in effect immediately prior to such cancellation or termination, for so long as Battlefield is not in default under the Ice Usage Agreement. SEC1'IOt~ 11. INSU iUCE 11.1. Lessee shall at al[ times during the term of this Lease maintain insurance on the Demised Premises of the following character: (1) Insurance against Loss or damage by fire and other risks and perils. from time to time included under standard extended coverage endorsements in an amount equal to not less than ninety percent (90%) of the replacement value of the Demised Premises and the Lessee Improvements. (2) Insurance as set forth in the Lessor's standard Insurance Schedule for Lessees of City Properfy, as such uniform, standardized schedule may from time to time be amended. The current lnsurance Schedule. is attached to this Lease Agreement as lnsurance Schedule A. 11.2. Such insurance shall be written by companies legally qualified to issue such insurance in the State of Iowa and such insurance shall name as the insured parties thereunder, Lessor, ar its assigns, and Lessee, as their interests may appear. Lessor shall not tae required to prosecute any claim against any insurer or to contest any settlement proposed by any insurer, provided that Lessee may,. at its cost and expense, prosecute any such claim or Conte"st any such settlement, and in such event Lessee may bring any such prosecution or contest, in the name of Lessor, Lessee, or both, and Lessor shalt cooperate with Lessee and will join therein at Lessee's written request upon receipt by Lessor of an indemnity from Lessee against all costs., liabilities, and expenses in connection with such cooperation, prosecution, or contest. 11.3. Lessee shall deliver to Lessor promptly after the execution and delivery of this Lease the original or duplicate policies or certificates of insurers satisfactory to Lessor 0917096atfinal -6- evidencing all the insurance which is then required to be maintained by Lessee hereunder, and Lessee shall, within 30 days prior to the expiration of any such insurance, deliver other original or duplicate policies ar other certificates of the insurers evidencing the renewal of such insurance. Should Lessee fail. to effect, maintain, or renew any insurance provided for herein, or to pay the premium. therefor; or to deliver to Lessor any of such policies or certificates, Lessor, at its option, but without obligation so to do, may procure such insurance, and any sums expended by it to procure such insurance shall be additional rent hereunder and shall be repaid by Lessee within 30 days following the date on which demand therefor shall be made by lessor. Such insurance policy(ies) shall contain a provision that such policy(ies) shalt not be canceled or reduced in scope without thirty (30) days prior written notice to lessor. 11.4. Each party shall look first to any insurance in its favor before making any claim against the other party for recovery for loss or damage resulting from fire or other casualty, and to the extent that such insurance is in force and collectible and to the extent permitted by law, Lessor and Lessee each hereby releases and waives all right of recovery against the other or anyone claiming through or under each of them by way of subrogation or otherwise. The foregoing release and waiver shall be in force only if both releasors' insurance policies contain a clause providing that such a release or waiver shall not invalidate the insurance, and also provided that such policies can be obtained without additional premiums. Lessee acknowledges that Lessor will not carry insurance on Lessee's furniture and/or furnishings or any trade fixtures or equipment, improvements, or appurtenances removable by Lessee or Lessee's leasehold improvements and agrees that Lessor will not be obligated to repair any damage thereto or replace the same. 1'1.5. Lessee shall notify Lessor immediately in the case of damage exceeding $10,000.00 in amount to, or destruction of, any Lessee improvements or any portion thereof resulting from fire or other casualty. Net proceeds of any such insurance (Net Proceeds), shall be paid directly to Lessee as its interests may appear, and Lessee shall forthwith repair, reconstruct and restore the Lessee Improvements to substantially the same or an improved condition or value as they existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restoration, Lessee shall apply the. Net Proceeds of any insurance relating to such damage received by Lessee to the payment or reimbursement of the costs thereof, subject, however, to the terms of any mortgage encumbering title to the Demised Premises (as its interests may appear). Lessee shall complete the repair, reconstruction and restoration of the Lessee Improvements whether or not the Net Proceeds of insurance received by Lessee for such purposes are sufficient. SECTI®-N ~2. LESS®R'S BAR N7`6ES AND ~E~RESENT,~TtNS 12.9. Lessor's Representation Of Good Title.. lessor covenants and warrants that its is lawfully seized in fee simple of the Demised Premises, and that it has full right and authority to enter into this- Lease for the full term hereof, and covenants and agrees that upon paying the rent provided for herein, and upon Lessee's performing the covenants 091709balfinat _7_ and agreements of this Lease required to be performed by said Lessee, that it will have, hold and enjoy quiet possession of the Demised Premises. Lessor warrants to Lessee that the Demised Premises are properly zoned for the conduct of the operation of Lessee's business. 12:2. Lessor covenants and agrees that Lessee shall have no responsibility for or liability arising from any Hazardous Substance which was in, on or about the Demised Premises prior to the commencement date of this Lease {"Prior Hazardous Substances'`) or which leach or migrate upon the Demised Premises from any property awned by Lessor or their affiliates ("Lessor Hazardous Substances"). 12.3. Far the purposes of this Lease, "Hazardous Substance" or "Hazardous Substances" niears any hazardous or toxic substance, material or waste which is or becomes regulated by any local government, the State of Iowa or the United States Government. It includes, without limitation, any material or substance that is (i} defined as a "hazardous substance" or "hazardous waste" under Chapter 4558, Iowa Code, (ii) petroleum and petroleum products, (iii} asbestos, {iv} designated as a "hazardous substance" pursuant. to Section 311 of the Federal Water Pollution Control Act (33 U.S.C.. §1321), (v) defined as a "hazardous waste pursuant to §1004 of the Federal Resource Conservation and Recovery Act, 42 U.S:C. §6901 et seq., (vi) defined as a "hazardous substance" pursuant to §:101. of the Comprehensive Environmental Response, Compensation and Liability Act, U.S.C. §9601 et seq., or (vii} defined as a "regulated substance" pursuant to Subchapter IX, Solid Waste Disposal Act {Regulation of Underground Storage Tanks), 42 U.S.C. §6991 et seq. SEi'I®N 13. tRIDEtViIUIFICA"ft~i~! 13.1. Indemnification of Lessor. Except as otherwise provided herein, Lessee shall protect, indemnify, grid save harmless Lessor from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses {including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessor by reason of (a) any accident, injury ta, or death of persons or toss of or damage to property occurring on or about the Demised Premises during the term of this Lease and resulting from any act or omission of Lessee or anyone claiming by, through, or under Lessee during the term of the Lease; and (b) any failure on the part of Lessee to perform or comply with any of the terms of this Lease. In case any action, suit, or proceeding is bro. tight against Lessor by reason of such occurrence, Lessee will, at Lessee's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by Lessor. 13.2. Indemnification of Lessor. Except as otherwise provided herein, Lessor shall protect, indemnify, and save harmless Lessee from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses} imposed upon or incurred by or asserted against Lessee by reason of (a} any accident, injury to, or death of persons or Loss of or damage to property occurring on or about the Demised 09I709tialfinat -$- Premises during the term of this Lease and resulting from any act or omission of Lessor or anyone claiming by, through, or under Lessor during the term of the Lease; and (b) any failure on the part ofi Lessor to perform or comply with any of the terms ofi this Lease. In case any action, suit, or proceeding is brought against Lessee by reason of such occurrence, Lessor will, at Lessor's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended- by counsel approved by Lessee. 14.1. Entire Condemnation. If at any time during the term of this Lease all or substantially all of the Demised Premises or the improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign,, municipality, or other public or private authority; then this Lease shall terminate on the date of vesting of title in such taking and any prepaid rent shall be apportioned as of said date. Substantially all of the Demised Premises and the improvements thereon shall be deemed to have been taken if the remaining portion of the Demised Premises shall not be of sufficient size to permit Lessee to operate its business thereon in a manner similar to that prior to such taking, 14.2. Allocation of Award. Any award for such taking of all or substantially all of the Demised Premises shall be paid to the parties hereto in accordance with the following: (1) To Lessor, the amount of the award attributable to the Demised Premises, determined as if this Lease was not in effect at the time of such award, excluding therefrom the amount of the award attributable to the improvements, and all other sums not directly attributable to the value of the Land constituting the Demised Premises. (2) To Lessee, the entire award except that portion allocated to Lessor above; including but not limited to, the value of the improvements plus any other amount assessed for Lessee. 14.3. Partial Condemnation. (1) If less than alt or substantially all of the Demised Premises or the improvements thereon shall betaken iri the exercise of the power of eminent domain by any sovereign, municipality, or other public or private authority, then Lessee, at its option, may elect to continue this Lease in full force and effect or terminate this Lease. If Lessee shall elect to maintain this Lease in full force and effect, the entire award for such partial condemnation shall be paid over to Lessee, and Lessee shall proceed with reasonable diligence to carry out any necessary repair and restoration so that the remaining improvements and appurtenances shall constitute a complete structural unit or units which can be operated on an economically feasible basis under the provisions of this Lease. In the event Lessee. elects to continue this Lease in full force and effect after a partial condemnation, there steal( be no abatement in the basic Rent Lessee is required to pay hereunder. 0917096a1final _g_ (2) Should Lessee elect to terminate this Lease upon a partial condemnation, Lessee shall provide Lessor with written notice of such election within thirty (3l)} days after the date of vesting of title for such taking. Lessee shall specify in such written notice the date on which this Lease shall terminate, which date shall be not less than 60 days nor more than 360 days after delivery of such notice to Lessor (the Termination Date): In the event- Lessee Terminates this Lease, as provided for in this Section 13.3, Lessee shall be entitled to the entire award far such partial taking. 14,4. Temporary Taking. If the temporary use of the whole or any part of the Demised Premises or the Lessee Improvements thereon or the appurtenances thereto shall be taken at any #ime during the term of this Lease in the exercise of the power of eminent. domain by any sovereign, municipality, or other authority, the term of this Lease shall not be reduced or affected rr any way, and Lessee shall continue to pay in fup the rent, additional .rent, and other sum or sums of money and charges herein reserved and provided to be paid by Lessee, and the entire award for such temporary taking shalt be paid to Lessee. Lessee shall repair and restore any and all damage to the ®emised Premises and the improvements as soon as reasonably practicable after such temporary taking. 14.5. Effect of Taking: If any faking renders the construction of the meeting and entertainment center or hotel impossible, any financial penalties set forth in Section 1,3 (regarding The meeting and entertainment center) or Section 24.5 (regarding the hotel) shall not be applicable. SECT!®N 15. ASSIGNf1~ENT ARl® SULETT6NG Lessee shall not assign or transfer this Lease or sublease the whole or any part of the Demised Premises without the prior written consent of Lessor. SECTI®iV 16. tOEFp-IJLT 16.1. Lessor's Rights in the Event of Lessee's Default. If Lessee shag fail. or neglect to observe, keep, or perform any of the covenants, terms, or conditions contained in this Lease on its part to be observed, kept, or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessor setting forth the nature of Lessee's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessee has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence), then and in any such event, Lessor shall have the right at its option, on written notice to Lessee,. to terminate this Lease and all rights of Lessee under this Lease shall then cease. Lessor, without further notice to Lessee, shall have the right immediately to enter and fake possession of the Demised Premises with or without process of law and to remove all personal property from the Demised Premises and all persons occupying the Demised Premises and to use a[I necessary force therefor and in al( respects to take the actual, full, and exclusive possession of the 091709baifinal -10- Demised Premises and every part of the Demised Premises as of Lessor's original estate, without incurring any liability to Lessee or to any persons occupying or using the Demised Premises for any damage caused or sustained by reason of such entry on the Demised Premises or the removal of persons or property from the Demised Premises. 16.2. Rights of Holder of Encumbrance in Event- Lessee Defaults. If Lessee fails or neglects to observe, keep, or perform any of the covenants, terms,. or conditions contained in this Lease on its part to be observed, kept; or performed, the Holder of any indebtedness secured by an encumbrance on the leasehold estate under this Lease shall have thirty (30} days after receipt of written notice from Lessor setting forth the nature of Lessee's default and a reasonable time thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature thereof within such thirty (30) days and is diligently prosecuting such. proceedings, within which to endeavor to make good or remove the default or cause far termination of the Lease, All right of Lessor to terminate this Lease on the failure or neglect. of Lessee to observe, keep, and perform the covenants, terms, and conditions of this Lease, is, and shall continue to be, at all times prior to payment in full of the indebtedness to the Holder of Lessee,. subject to, and conditioned on, Lessor's having first given the Holder written notice thereof and the Holder having failed to cause the default or cause for termination to be made good or removed within thirty (30} days after receiving written notice of default or cause for termination or within a reasonable time thereafter if it shall have comm. enced foreclosure or other appropriate proceedings in the nature of foreclosure within such thirty (30} days and is diligently prosecuting such proceedings. In the event that the Lease is terminated due to the Lessee's bankruptcy, insolvency or other proceedings, and in the event the Holder has complied with the terms of this Section 15.2, then Lessor at Holder's option, shall enter into a new .lease wifh Holder or the successful bidder at foreclosure on the same terms as this Lease, for the term then remaining, and specifically preserving all unexercised options. 16.3 Lessee's Rights in the Event of Lessor's Default. If Lessor shat[ fail or neglect to observe, keep or perform any of the material covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessee setting forth the nature of Lessor`s default, it being intended that in connection wtih a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessor has to cure the same shall be extended far such period as may be necessary to complete the same with all due diligence, but in no event longer than ninety (90} days, then and in any such even#, Lessee shall have all rights available to it provided by law or equity. SECT'lahl 17. RtCI-I'i" T CURE °CI-0E6@`S DEFAULTS Whenever and as often as a party shall flail or neglect to comply with and perform any term, covenant, condition, or agreement to be complied with or performed by such party hereunder, then, upon thirty (30) days' prior written notice to such defaulting party, the other party, at such other party's option, in addition to all other remedies available to 091709balfinal -11- such other party, may perform, or cause to be performed, such work, labor, services, acts, or things, and take such other steps, including entry onto the Demised Premises and the Lessee Improvements thereon, as such other party may deem advisable, to comply with and perform any such term, covenant, condition, or agreement which is in default, in which event such defaulting party shall reimburse such other party upon demand, and from time to time, for all costs and expenses suffered or incurred by such other party in so complying iniith or performing such term, covenant, condition, or agreemen#. The commencement. of any work or the taking of any other steps or performance of any other act by such other party pursuant to the immediately preceding sentence shall not be deemed to obligate such other party to complete the curing of any term, covenant, condition,. or agreement which is in default.. SECTION 18. 4U1E1' ENJOYtVIEN°f Lessor covenants that at-all times during the term of this Lease, so long as Lessee is not in default hereunder, Lessee's quiet enjoyment of the Demised- Premises or any part thereof shall not be disturbed by any act of Lessor, or of anyone acting by, through, or under Lessor. SECi"ICN 19. t~lQ-I~IE hlo waiver by Lessor of any breach by Lessee of any term, covenant, condition, or agreement herein and no failure by Lessor to exercise any right or remedy in respect of ariy breach hereunder, shall constitute a waiver or relinquishment for the future of any such term, covenant, condition, or agreement or of any subsequent breach of any such term, covenant, condition., or agreement, nor bar any right or remedy of Lessor in respect of any such subsequent breach, nor shall the receipt of any rent, or any portion thereof, by Lessor, operate as a waiver of the rights. of Lessor to enforce the payment of any other rent then or thereafter in default, or to terminate this Lease, or to recover the Demised Premises, or fio invoke any other appropriate remedy which Lessor may select as herein or by law provided.. SECTIUIV 20. ~URFtEN®ER Unless otherwise agreed, Lessee shall, on the Last day of the term of this Lease or upon any termination of this Lease hereof, surrender and deliver up the Demised Premises, with the improvements then located thereon info the possession and use of Lessor, without fraud. or delay and in goad order, condition,. and repair; free and clear of all lettings and occupancies, free and clear of all liens and encumbrances other than those existing on the date of this Lease and those, if any, created toy Lessor, without (except as otherwise provided herein) any payment or allowance whatever by Lessor on account of or for any buildings and improvements erected or maintained on the Demised Premises at the time of the surrender, or for the contents thereof or appurtenances thereto. At Lessor's option, Lessee shat! remove any or elf of the !_essee Improvements located on the Demised Premises. Provided, however, that Lessee°s Trade Fixtures, personal property, and other belongings of Lessee or of any 091709balfinat -12- sublessee or other occupant of space in the Demised Premises shall be and remain the property of Lessee, and Lessee shall have a reasonable time after the expiration of the . term of this Lease to remove the same. SECTION 21. Mfg N®UtUi ®F LEASE Each of the parties hereto will, promptly upon request of the other, execute a memorandum of this Lease in form suitable for recording setting forth the names of the parties hereto and the term of this Lease, Identifying the Demised Premises, and also including such other clauses therein as either party may desire, except the amounts of Basic Rent payable hereunder. SECT!®~! 22. N®TICES 22.1. All notices, demands, or other writings in this Lease provided to be given or made or sent, or which may be given or made or sent, by either party to the other, shall be deemed to have been fully given or made or sent when made in writing and deposited in the United States mail, registered and postage prepaid, and addressed as follows: TO LESSOR: City Manager City of Dubuque, Iowa 50 West 13t~' Street Dubuque,. Iowa 52001 TO LESSEE: James E. Goodman, Jr. 700 Locust Street, Suite 200 P.O. Box 599 Dubuque, IA 52004-0599 22.2: The address to which any notice, demand, or other writing may be given or made or sent to any party as above provided may be changed by written notice given by the party as above provided. SECTI®N 23. tVItSCELL~NOUS 23.9. Time of the Essence. Time is of the essence of this Lease and all of its provisions. 23.2. Governing Law. It is agreed that this Lease shall be governed by, construed, and enforced in accordance with the laws of the State of Iowa. 23.3. Attorney Fees. In the event that any action is filed in relation to this Lease, the unsuccessful party in the action shall pay to the successful party; in addition to all the 091709balfinat -13- sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees. 23.4. Paragraph Headings. The titles to the paragraphs of this Lease are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this Lease. 23.5. Modification of Agreement. Any modification of this Lease or additional obligation assumed by either party in connection with this Lease shall be binding only if evidenced in a writing signed by each party or an authorized representative of each party. 23.6. Parties Bound. This Lease shall be binding on and shall inure to the benefit of and shall apply fio the respective successors and assigns of Lessor and Lessee. All references in this Lease to "Lessor" or "basses" shelf be deemed to refer fo and include successors and assigns of Lessor or Lessee without specific mention of such successors or assigns. 23.7. Force Maieure. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, unavailability or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, chemical explosions, hazardous conditions, fire, weather or acts of God, or by reason of any other cause beyond the exclusive and reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. 23.8. tJse of Tobacco Products. The use of tobacco products in any building on the Demised Premises is prohibited and Lessee shall use its best efforts to enforce such prohibition. l"he use of tobacco products outside of any buildings on the Demised Premises shall be allowed only in -areas designed by Lessee and Lessee shall use its best efforts to enforce such restriction. 23.9. Nondiscrimination. Lessee shaft not discriminate against any person for employment or use of the Demised Premises or Improvements thereon because of race, religion, color, sex, sexual orientation, national origin, age or disability. LESSOR: [SEALI Attest: -- Jeanne F. Schneider, City Clerk CITE ~F DUUQI~, tG1i~lA ~y: Roy D. Buol, Mayor 091709batfinal -14- LESSEE: P3UBUQUE COMMUNITY ICE RECREP-TION CENTER, INC. By: P. Robert Woodward, III, President -15- Ex~i t~r ~'s~ Ex. A The Demised Premises Ex. A-1 Insurance Schedule Ex: B Minimum Improvements -16- EXHIEI`C ~+ THE ®EN11~E® PREt~1SE~ A part of Mineral Lots 298 and 299 in Fractional Section 19, 1'89N, R3E, 5th P.t~., in the City of t3ubuque, Iowa, containing 6.63 acres, more or less, subject to easements of record and not of record, as shown on the attached Exhibit A-1. -17- LEASE EXHIBIT A PARCEL OF LAND LYING WITHIN THE NORTHEAST QUARTER OF SECTION 19, TOWNSHIP 89 NORTH, RANGE 3 EAST OF THE 5114 PRINCIPAL MERIDIAN, DUBUQUE COUNTY IOWA 98 0" 4'W 263 .91, 44, Vft ■ "14 LARRISON & ASSOCIATES architects 66•4 POINTOF BEGINNING LEASE AREA C 0 100' 200' SCALE: 1" = 1 00"-O" NE CORNER SEC. 19, 189N, R3E ORTH LINE OF THE NE114 SEC. 19 11k0) 502 4.7p. #470,98.1 744, L=73.33' DUBUQUE COMMUNITY ICE & 0421°0415"E 73.28' RECREATION, INC. R=570.0' 287,868 sq. a. 6.61 ACRES S51'18'09"W 67.91' S3841.51"E 35.23' S3830'01E IC? (r. 44.00 dt. o 445)° ? 44' a, %. 3 0 44 ■ ' 4 P 600' 414.4 es" ,,cfr N38•41'51'W 44.00 4 44` LEASE AREA B nY. NOTE: THIS BOUNDRY HAS NOT BEEN SURVEYED. THIS IS A PROPOSED LEASE BOUNDRY AND IS SUBJECT TO CHANGE PROGRESS PRINT 041/15/200c1 -b 1I8IHX3 INSURANCE SCHEDULE INSURANCE REQUIREMENTS FOR LESSEES AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE 1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A or better in the current A.M. Best Rating Guide. 2. All policies of insurance shall be endorsed to provide a thirty (30) day advance notice of cancellation to the City of Dubuque, except for 10 day notice for non - payment, if cancellation is prior to the expiration date. This endorsement supersedes the standard cancellation statement on the Certificate of Insurance. 3. Lessee shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 6 below. Such certificates shall include copies of the following policy endorsements: a) Commercial General Liability policy is primary and non- contributing. b) Commercial General Liability additional insured endorsement. c) Governmental Immunity Endorsements. 4. Each certificate shall be submitted to the contracting department of the City of Dubuque. 5. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement. 6. Lessee shall be required to carry the following minimum coverage /limits or greater if required by law or other legal agreement: a) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products- Completed Operations Aggregate Limit $1,000,000 Personal and Advertising injury Limit $1,000,000 Each Occurrence Limit $1,000,000 Fire Damage Limit (any one occurrence) $ 50,000 Medical Payments $ 5,000 This coverage shall be written on an occurrence, not a claims made form. Form CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be included. All deviations or exclusions from the standard ISO commercial general liability form CG 0001, or Business Owners form BP 0002, shall be clearly identified. -20- INSURANCE SCHEDULE A (Continued) INSURANCE REQUIREMENTS FOR LESSEES AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE Governmental Immunity Endorsement identical or equivalent to form attached. Additional Insured Requirement: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers shall be named as an additional insured on General Liability Policies using ISO endorsement CG 20 26 0704 "Additional Insured — Designated Person or Organization," or it's equivalent. — See Specimen b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY Statutory for Coverage A Employers Liability: Each Accident $100,000 Each Employee — Disease $100,000 Policy Limit — Disease $500,000 ) UMBRELLA EXCESS LIABILITY LIQUOR OR DRAM SHOP LIABILITY Coverage to be determined on a case by case basis by Finance Director. Completion Checklist ❑ Certificate of Liability Insurance (2 pages) ❑ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages) ❑ Additional Insured 20 26 07 04 ❑ Governmental immunities Endorsement CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 674.4 as it is now exists and as it may be amended from time to time. 2. Claims Coverage. The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670,4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. 4. Non - Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN -22- POLICY NI 17.113t It COMMERCIAL GENERAL LIABILITY CG 20 26 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION I his endorsement modif,es insurance prcvicud undue the robbing. CCMMLHCIAL GENERAL t APtILITY COVERAGE PART SCHEDULE Name Of Additional Insured Perron(s) Or Orgonlzation(s) The City of Dubuque, including 011 ILs eIeftad and appointed officials, all its enpIoyees and volunteers, all i:s hoards, coma sSions and /or authorities and their baord niembers, employees and volunteers. Inkimption rewired to corone=ts 11 ate Schedule, if not _hewn above, will be shown in the )eclaratiors. Oe4Unn n — Who Is An Insured is ar crd d io in- clude as an edditio'na insured tha pornor (r,) or hi ni zaron(e) rha;vn in tho Scl: =dale, but only Wiz respect to liability for "bodily Injurer ", "prape-ty damage' of "I:ersarrI and aduartsirg injury caused, in whrta or in part, by your ass Or omissions or the acts or urn-s- alons of thase acting on your behalf: A. In the performance of your ongoing coerrtion5: Or B. In connection with your premises owned by or mulct-110 yon ca 7n 9R n7 Ad i, IRO P:ooeriea 1m.. 2QU4 Pane 1 of 1 ❑ -23- AK, CERTIFICATE OF LIABILITY INSURANCE OHD",h (563)556 -0272 FAX (5631556 -4915 116UR,VL•CE AGENCY SINEE1 ADDRESS L11Y, SI.4lL, ZIP COOT -FANNED Colvally Streul Addre5$ City, State, 71p Cnde w.Tr, 7.puccrIrsl 42/24/2005 THIS CERTIFICATE 15 ISSUED AS A MATTER OF INFORMATION ONLY ANDCONFEFLS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE UOES NOT AMEND, EXTEND OR ALTER THE COVERAGE' AFFORDED BY THE FOLIC ES BELOW. INSURERS AFFORDING COVERAGE NAIL 14 ri$ -4t:14 Insurance cnnpany (44 I- t 4 rfi:.:11t 1J '.,1.14 11, us: 1•t 1 - coVERA4E4 THE PCH !Ain (IF IA ilIPAACE LIST L ?aTLOW 1.'aL 0M14 IONE°TO THE PIE APT) H•d1FD Matt arst1 Fl. o•JLICY.LHIUUIMA:A_1CU. F41 VA! •IJIFt1UNP J:R/ nc uIr.EUE'Jr, 1ERF./ S.R(.:CNUII KIII (•1 ANY 4CN1H1L:T eft C41-01 00- ULIEt4T VATH FSSPECr TOI'AHFH ` SON VU1II =1TAl 11NY Pf I.S.R J111 no PIP /1,4141P 1HL-I4SIJP HCCIHTCR 3 BY TIC FOAM IFFErNIFIEIJI4ERE111 I t.UJEGLiOALL THE 'MT DIC•_LSV1:5 AHD COSCHTIOHSQFSUCH POJCES. fir_47IF.cATF 1:I :ITSSHn4AN L`AY FAL (ILIA IILL:UrJ -U JT •FJL I: -RIV 1711Q+ TYFFOF Mil I1SV:F DOJO kVi'fJEi na1 +1YM•OMYYI TF PdMODM7 A x GPI. LIJAFIHTf X ; (Inas .)Cu #i Ct•=7 }l l.FJ11Tr IVAN:AKIN AMIE GOILh:%1 E'5T, I.-,;u al III:.? FCCISY F A x I JIOr08LE (PE Ur' 1J.v FAD 1111:hTr.P••VIg1 •C(101.110 *WAN HR :37.1.170'' MP ■ CAHACELAMir( f17rAUTO A { G[ ru; ut1Pl Lt° L0EUTY H Ilcl #41 Cr( s VdrIVIIS CC4torF3AI1,14 Atm cu;LL OMS. MILEY AYr 11i Pftfl: RfJfi"FE9F.. =CJr,sE 4Y 11:.45'kYthI ks:y'J tl'r i A�Ho, r•l"r 5 X LFRO:•111CL9 L8:.•. U1USA l kr J- .5"ct-1r1 I -4 A 1,000.000 FVS.1 JVI'1111liu T.. rs -aT., f Ai Het :Mr Acts tra ;1411L Y HI ;I.Y :•.• Yr13111 1,000,000 :stir n1Y::AVA::' :4:r3.4 3'11 4,I11r:N r- tAFU:11t ;1 Mg,'" lYFl A art; fs AG! 5 r4r /lrr;IU11M:1 pf.RlFnl nnl K:1l +Ir.11K1 FI1 E L f :F Afr;. 'n1- 5 100,000 LL CIi :AiE• CA LI;W[:il l * 100,000 ELr,u;. E u tPII S 500.000 C u;jTiulrr UltMAIIJIpt U.*iAIIUYdi Ytlnl: b. 1.44 J4 4 *CG '(elsetlseU[NT tsrealll rR: A9'grs) IHE CITY OF DUBUOUE I5 LiSTCD AS Al AU0ITI0NAL INSURED ON GENERAL LIABILITY I'JFIIcIFS USING I50 ENDORSE - TENT FORM CG 20 26 07 0.1 "ATIOI1T1N41. INSURED- DESIGNATED PERSON OR ORGANIZATION" OR IIS EQUIVILJANT. GENERAL LIABILITY POLICY IS PRIMARY AND NON- CONTRIBUTIAG. FORM CG 25 04 43 97 " DESIGNATED LOCATIONS" GENERAL LIABILITY AGGREGATE UNIT SHALL BE INCLUDED. C01iERNMENTAL IMMUNITIES ENDORSEMENT I5 INCLUDED. ALL POLICIES SHALL BE INN)ZSTD 10 PROVIDE 30 DAY ADVANCE NOTICE OF CANCEL441101 TO CITY OF DUBUQUE CERTIi1CATE1j0LOFR CITY OF OUHUQIIE CITY HALL SO W. 13111 STREET WIiUQUE• TA 52001 CANCELLATION _ ELL HOOANYOF TYEAJ30•sE Cf.5URK° FCL"CDSO- MIMI. rolr1 t[lt nit~ EXPIRATION DATE UMW, THE IMPS DIEMENltll 1 IC1TLIiXVDD PAL n_CAVE YIFInTFLI IHJTCE10 Tit CrEYFrATr1Er nrst &UM to 712121. I, IINVOCUOKNECEUXIMMEMITWAVOLUOIXAXXXXOXIXIOWE EXMOREMUMOS*KOMOIMMOUOMONANVOY.XXXXXXXV4XX Mrnl1LIl7SC IRr11Laf,rrAmfg ACCRC 21120011081 -24- (0AGORD CORPORATION 1886 IMPORTANT If the Certifeiite fielder ill an AL)DI I W1.AL INSuREO. tt pulicyfT<r.;) lyrist tm et:ru,.:eit. A italament un ihi G9rlrIL'0ie daes no confer rr3hts to ills t TGfru>le Jolliet in lieu of errdursvnrent(3). If SUBROGATION IS WAIVED, sutrnct to um tears and cvllditit tis of II, uedatn policies may isquiru : it mu es:went. A statement on this cot-ilk-zit; 4u dots nut r:unre, riyttI It. Ilrr. L trikAte hcldrr in lieu cf sue endcraernerd(s). DISCLAIMER The Ovitifitsec ofhr3ura ace nn the reverse side of Ins fotra dues riot laNRililule it corittoiX ICts�'Ckr1 she issuing insurcrtst, :iutI O*ited representative or pro-dozer, and tree Gestfi ate lie do., too; km it atlurratvely ul nouttiveiy PI re , extend era ter the coverage afforded try dm poliuius li :lr t ll rrrrnr SPECIMEN ACORN 25 [2 0011043) -25- FQL!CY NUMBER COMMERCIAL GENERAL_ LIAEILiTY CG25040?97 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED LOCATION(S) GENERAL AGGREGATE LIMIT This undaseinent mode'tev 14-stir-anal pnwided tinder Uio tcltvwing COMMERCIAL GENERAL LlAtl ll ITV COVERAGE PART SCHEDULE DesIgnatod Locatton(s}: SPECIMEN fit no entt, appears above. irfomItiticn required to GOmp'ete this er r.rsemenl w1I I ,: r,hcrxri in Nre Decloratians as aopfa+b!e to lhs encorsenent.) A For all sum:, witch the hatred becomes legally obligated 10 Lary as damages caused by "nccurrerres" unties C.OVi=RA(M A (SECTION lj. and fo' all rredinal exremes mused by etc - dents under COVLHAGE C (SECTION I), whici can be attributed only to Ope-ratieus dt a sing;a dusignated °ir cation" shown in the Selo/ire above: 1. A se (acute Dossigna:ld Luca'.ion General fggregaf Unlit apples to eavh designated 'tacalion', sal that imit Lg equal to the rnuurnl ur the General Aggregate Limt *hewn in the Oertwatien3 2. Tito Designated Location CanRr:i nrggregaie 1 ieiul to the must we will pay for the sum of all damages under CQVCttA,GC A, except dam- ages because of "bodily injury' er 'pfoporty damage' included in the' products.oemplleeted operations hazard'. and for medical exF .rues under COVERAGE C reitardlcss et the num- ber apt: a. !nsufed& b. Claims made o.''SUlis lautyt 1. or c. Persons or argerrza'rnna n ikiN claims or brining'sttlts`. 3. Any payments made under COVERAGE A tor damages or under COVERAGE C for medico, eApelses shall reduce Ike Desig- nated Ltx:3lloft Galen(, Applegate Limit for the designated 'location ". Oath payments snail not reduce the Genera'. gcre:gain timL shr.wn in the DeelPieliona nor OA they re- duce any other Desinnat d Location Genera! Aggregate Limit for any ?tier de..J anted 'location' shown in beSchedde above, 4. The limits shown in the Declarations tot Each °ceurrenco; fire Damage erd Medial, Ex- per-a4 continua to apply. however; rnstead of being subject to the General Applegate Limit 611Ow' in itra Decraratbn3, such !,mils w1ll be 6uJ)e(t to tiro upplkabfu Designated location Comore! Aeggre gr/e'e I. Unit -26- B. For ell Slims wtrL'h (he iusarr-,d becomes legally obligated . to pay as dsmagea caused by 'noeurrencee' under COVERAGE A �SECIION I), and fir aft medical expert m t MOAN' by aryl• d; rits under COVERAGE C (SECTION 1) . whcit cannot be attributed only to eperatara at a sin- gle designated 'location' shown in the Schedule abovu. 1. My p'ftyn-ente made under COVERAGE. A far dar-ragos c .rude COVERAGE C °or medical expenses shall reduce the anicant available under the General Aggregate Llmlt or the Pr ducts-Cur ipleled Upetationt Ag- gregate limit whirhrver is appIiaable; and 2. Bach paymerls shalt not redwe any Designated Laearian General Aggregate Unit, C. When coverage fur flashily arising rn:: et the 'products completed oper`tione, hazard' ie pro- viced, any payments for damages because of 'budiy injury' or °prcperty damage" ncluded in the "products- completed oaerations hazard' vrill reduce the Prodtocts-Comp%1ed operation=_ Ag- gregate LirriiL sod not reduce the General Ag- gregate Unit nor fire Designated fixation Gev- eralAggregaie Limit D. Far the, purposes of this endersernent. the Defi- nitions Secion is amended by the addition of the following definitar: 'Location" means premise i; rvoiv ng tto same or ccnnectiing lots, or premises vnose canrtbc- ion Is Inte-ruated onty by a snout. readtray. vra- lenvey or right -cf -way ofa railroad E. 1 he praVisions of I kilts Of Insuran:.e (SECTION 111) not el-err/Ise modified by this rsrn i nt shall nett nue to apply as stipulated. SPECIfiEN -27- EXHIBIT B MINIMUM IMPROVEMENTS Building Type: 2 -Story Pre - Engineered & Conventional Build ing. Poured concrete grade beams on deep pile foundation. Pre- Engineered Building has steel frames with wall and roof purlins, metal roof and metal wall panels with some brick veneer. The second floor (concourse level) is precast deck on masonry walls. The conventional construction is masonry bearing with precast deck, brick and stone veneer and glass storefront. Includes Sitework Drives Walks and Seeding. The Minimum Improvements shall also include separate facility public restrooms with not less than three (3) toilets for men and three (3) toilets for women. If the restroom building on the Demised Premises as of the date of this Lease remains, it shall be accessible from the soccer field area and the parking lot area. If a new restroom is constructed, it shall be constructed at a location approved by Lessor. Lessor shall be responsible for the maintenance of the restrooms. Lessee shall restore all landscaping and seeding surrounding the Demised Premises after construction. Approximate Building Size: 62,340 s.f. Main Level 28,965 s.f. Concourse Level Approximate value: $6.276 million (excluding owner - supplied items, design costs and equipment like Zamboni, etc.). EXHIBIT C OPINION OF COUNSEL TO ®ICE ~~(G/~~V~~ Y/.R 1 I .w. ' ~OLI~O An Iowa Professional Limited Company Established in 1897 ATTORNEYS AT LAW Stephen W, Scott Darin S. Harmon f Dean J. I<ontiiidy* Cory R. Thein Brian w. Peters Hillary 7. Friedmann Douglas Q. Davis, lI Of Counsel Arnold J. Van Etten David F. Setter *Also licensed in Illinois 'tAlso ticensed in Wisconsin DUBUQUE OFFICE 100 West 12"' Street ' P. O. Boz 703 Dubuque, Iowa 52004-0703 Telephone 563-588-0547 Facsimile 563-588-1981 We6site kintztaw.com Chazles A. Kintzinger {1925-1999) Thursday, September I7, 2009 lvlayor and City Councilmembers City Hall 13 `h and Central Avenue Dubuque, IA 52001 Re: Development Agreement Between and Among the City of Dubuque, Iowa, Dubuque Ice & Recreation Center, Inc., .Dubuque Racing Association, and Battlefield Ventures, LLC. - . Dear IVlayor and City Councilmembers: We have been retained as counsel for Dubuque Community Ice and Recreation Center, Inc.; (DICE) in connection with the execution and delivery of a certain Development Agreement (Development Agreement) between DICE and the City of Dubuque, Iowa ("City") dated for reference purposes the _ day of , 2009. We have examined the original certified copy, or copies otherwise identif ed to our satisfaction as being true copies, of the Development Agreement and such other documents;and records as we'have deemed relevant and necessary as a basis far the opinions set forth hexen. Based on the pertinent law, the foxegoing examination and such other inquiries as we have deemed appropriate,'we are of the opinion that: 1. TothebestofourltriowledgeDICEisananprofitcorporatonorganizedandexisting under the laws of the Mate of Iowa and has full power and authority to execute, deliver and perform infull the Development Agreement. Development Agreement has been duty andvalidly authorized, executed and delivered by DICE and, assuming due authorization, execution and delivery by City, is in full force and effect and is valid and legally binding instrument of DICE enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. September 17, 2009 Page 2 2. To the best of our knowledge the execution, delivery and performance by DICE of the Development Agreement and the carrying out of the terms thereof, will not result in violation of any provision of, or in default under, the articles of incorporation and bylaws of DICE, any indenture, mortgage, deed oftrust, indebtedness, agreement, judgment, decree, oxder, statute, rule, regulation or restriction to which the DICE is a party or by which DICE'S property is bound or subject. 3. To the best of our knowledge there is no actions, suits ox proceedings pending or threatened against or affecting DICE in any court or before any arbitrator or before or by .any governmental body in which there is a reasonable possibility of any adverse decision which could materially adversely affect the business {present or prospective), financial position or results of operations of DICE or which in any manner raises any questions affecting the validity of the Agreement of DICE'S ability to perform DICE'S obligations thereunder. Yours truly; KINT GER LAW FIRM, P.L.C. By: Darin S. Harmon Harmor~lcintzlaw. com DSH/lmb Z:IUSarsLL1N~5EY~Da~in HertnonWice.msyortt ~~~i [~ ~ ntll~il~illM tMt3~V~MEN~'~ Building Type: 2-Story Pre-Engineered & Conventional Building. Poured concrete grade beams on deep pile foundation. Pre-Engineered Building has steel frames with wall and roof purlins, metal roof and metal wall panels with some brick veneer. The second floor (concourse level} is precast deck on masonry walls. The conventional construction is masonry bearing with precast deck, brick and stone veneer and glass storefront. [ncludes Sitework Drives Walks and Seeding.. The Minimum Improvements shall also include separate facility public restrooms with not less than three (3) toilets for men and three (3) toilets for women. [f the restroom building on the Demised Premises as of the date of this Lease remains, it shall be accessible from the soccer field area and the parking lot area. If a new restroom is constructed, it shalt be constructed at a location approved by Lessor. Lessor shall be responsible for the maintenance of the restrpoms: Lessee shall restore all landscaping and seeding surrounding the Demised Premises after construction. Approximate Building Size: 62,340 s.f. Main Level 28,965 s.f. Concourse Level Approximate value: $6.276 million {excluding owner-supplied items; design costs and equipment like Zamboni, etc.). N1Ei~®RAPI®UM OF ®EVEL®PMEN°T AGREEMENT' Prepared by: Barry A. Lindah) 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113 Return to: Barry A. Lindah) 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113 MEiViORANDUM ®F ®EV~LOPMEi~T ACaRFEIt11EilIT A Development Agreement by and among the City of Dubuque, Iowa, an Iowa municipal corporation, of Dubuque, Iowa, Dubuque Ice and Recreation Center, Inc., Dubuque Racing Association, and Battlefield Dubuque, LLC was made regarding the following described premises: A part of Mineral Lots X96 and X99 in Bractional Sec#ion 19, TS9iv, R3E, 5th I~.i111., in the City of ®ubuque, Iowa, containing 6.63 acres, fnore or less, subject to easements of record and not of record, as shown on the attached Elchibit Aa'I. The Development Agreement is dated for reference purposes the day of 20_, and contains covenants, conditions, and restrictions concerning the sale and use of said premises. This Memorandum of Development Agreement is recorded for the purpose of constructive notice. In the event of any conflict between the provisions of this Memorandum and the Development Agreement itself, executed by the parties, the terms and provisions of the Development Agreement shall prevail. A complete counterpart of the Development Agreement, together with any amendments thereto, is in the possession of the City of Dubuque and may be examined at its offices as above provided. Dated this day of , 20_. CITY OF ®U~UQUE, IQUVA By: Roy D. Buol, Mayor By: Jeanne F. Schneider, City Clerk ST'~.T'E ®F IOVi/A ®U13UQUE COU~1'Y ss: On this day ofi ; 20_, before me, a Notary Public in and for the State of Iowa, in and for said county, personally appeared Roy D: Buol and Jeanne F. Schneider, to me personally known, who being by me duly sworn did say that they are the Mayor and City Clerk, respectively of the City of Dubuque, a Municipal Corporation, created and existing under the laws of the State of Iowa, and that the seal affixed to said instrument is the seal of said Municipal Corporation and that said instrument was signed and. sealed on behalf of said Municipal corporation by authority and resolution of its City Council and said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said Municipal Corporation by it voluntarily executed. Notary Public, State of Iowa EXHIEIT F MANAGEMENT' AGREEMENT' FACILITY MANAGEMENT AGREEMENT THIS FACILITY MANAGEMENT AGREEMENT (the "Agreement") is made and entered into as of this September 9, 2p49 by and between Dubuque Community lce & . Recreation Center, Inc., an Iowa corporation (herein referred to as "DICE"} and Southwood Management, LLC (hereinafter referred to as "SM"}. NOW THEREFORE, in consideration of the premises and of the terms, covenants and conditions hereinafter contained, it is agreed as follows: 'l. Retention of Manager. D[CE hereby retains SM as an independent contractor for the purpose of performing the management services for the Facility described in this Agreement. "Facility" shall mean the ice arena facility and grounds shown on Exhibit A, attached hereto, Subject to the terms and conditions set faith herein, SM agrees to provide the management services for the Facility in accordance with this Agreement and consistent with reasonable policies approved by DICE. SM shall use its best efforts to maximize revenues in the marketing, operating and management of the Facility. 2, Independent Contractor. The parties intend that the relationship between them created under this Agreement is that of an independent contractor only. Nothing contained herein or in the services provided hereunder shall create or be construed as creating a partnership, joint venture, or other relationship than independent manager/consultant. SM is not to be considered an employee of DICE for any purpose. 3. Management Responsibilities. Except as otherwise provided in this Agreement, all aspects of the management, use and operation of the Facility shall be the responsibility of SM including, without limitation the fallowing responsibilities: a. Operate, manage, market, and arrange programming for the Facility. b. Provide all services required for the management, use and operation of the Facility. c. All revenues generated by the Facility shall be deposited in accounts established by DICE and DICE shall have exclusive control over all such accounts. d. Prior to the commencement of DICE's fiscal year SM shall assist in the preparation of and submit to DICE an annual budget for the facility. After approval by the DICE Board of Directors, SM shall operate the Facility within the scope of the budget or any amendments thereto which SM has previously submitted to DICE. SM shall monitor the budget as part of its monthly financial reporting to DICE's Board of Directors. e. Hire and supervise an onsite Arena Manager and assist said Arena . Manager with hiring, supervising, and directing employees and personnel consistent with the provisions of this Agreement. Arena Manager will be an employee of DICE. This would also include the ability to discipline andlor discharge employees as needed. 4. Marketing Responsibilities. SM shall direct all marketing activities. SM shall develop and implement a promotional plan for the Facility that shall be submitted to DICE far approval. 5. Scheduling Responsibilities. SM shall conduct a Master Schedule scheduling meeting each year on or about August 1. At this meeting, representatives from all interested user groups will select dates and times for their activities. Other than the specific dates and times agreed to in the Ice Usage Agreement between DICE and Battlefield, the arena shad be scheduled with first priority given to public skating activities. During the period from September .Ist to June 1St each season, the facility shall be designated for such public use and access for at least 8Q% of the hours the facility is open. Once the Master Schedule has been published, all changes must be approved by the Arena Advisory Board. 6. Operation Plan. SM shall at least annually develop and submit to DICE and at all times have in effect an operational plan ~"Operational Plan"} which provides for the guidelines and usage of the Facility, controE of the services being provided and other such matters as necessary. The Operation Plan shall cover and include but not be limited to the following matters: a. Maintenance, repair, replacement and usage of the equipment and leasehold improvements. b. Prices of the food, beverages and services being provided at the Facility. c. Menus and items offered for sale. d. Use of equipment and leasehold improvements. e. Rules and regulations relating to the sale and distribution of food and beverages. f. Sponsorship, advertising and promotion of the Facility and the services being provided. g. Sanitation and cleaning guidelines. h. Scheduling the usage of the Facility. i. Crowd control. j. A dress code and training program for Facility employees providing food, beverages and other services, as well as staffing guidelines for each event. k. Facility rules and regulations. I. Procedures to address revenue sharing and sponsorship opportunities far selected° events at the Facility. 2 7. Expenses. During the term of this Agreement, SM shall bill and DICE shall reimburse him for all reasonable and approved out-af-packet expenses which are incurred in connection with the performance of the duties hereunder. 8. Term and Termination. The term of this Agreement shall be for a three (3} year period commencing April 1, 2010 (the "Commencement Date"). Either party shall have the right to terminate this Agreement upon sixty (60) days notice. Upon termination, ail obligations of the parties hereunder shall cease. SM sha11 have the right to cancel this Agreement without notice if it's unable to perform the Agreement due to health. DICE will provide a review to SM on an annual basis in writing. Further, if any failure to perform under this Agreement arises in the opinion of DICE, DICE agrees to provide written notice of such #ailure to perform to SM during the term of this Agreement or within fifteen (15) days of the discovery of the failure. 9. Reimbursement to SM. In exchange for management services provided under this Agreement by SM, DICE agrees to reimburse SM at the rate of $50 per hour for the first year of this Agreement, $53 per hour for the second year of the Agreement, and $56 per hour in the third year of the Agreement. Starting with the official opening date of the arena, but no later than August 1, 2010, SM agrees to provide a minimum of 10 hours per week managing the [=acility. Prior to the official opening date of the arena, but no earlier than April 1, 2010, SM will invoice DICE for any hours working for DICE. At no time will SM charge D[CE for more than 20 hours in any one week even if SM spends in excess of 20 hours managing the facility during any one week. 10. Miscellaneous. a. The SM shall not use or permit to be used any property of D[CE other than for its intended purpose. b. This Agreement and the Exhibits attached hereoo embodies the entire Agreement between DICE and SM, and there are no other representations, promises, agreements, conditions or understandings, either oral or written, between DIGS and SM other than as set forth in this Agreement. c. No subsequent alteration, amendment, change or modification to this Agreement shall be binding upon any party unless in writing and signed by the party to be charged, which writing must expressly refer to the fact that it is altering, amending, changing or modifying this Agreement. d. Any and all changes, modifications or amendments to this Agreement may only be made jointly by DICE and SM. e. This Agreement is not intended by any of the provisions hereof to make any person or entity not a party to this Agreement a third party beneficiary hereunder, and is not intended to benefit any such third party. f. This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa. g. Any controversies arising out of the terms of this Agreement or its interpretation shaft be settled in accordance with the rules of the American Arbitration Association, and the judgment upon award may be entered in any court having jurisdiction thereof. h. Except as may otherwise be specifically provided within this Agreement, neither party hereto may transfer ar assign this Agreement without prior written consent of the other party. i. Any notices permitted or required under this Agreement shall be deemed given upon the date of personal delivery or forty-eight (48} hours after deposit in the United States mail, postage fuf#y prepaid, return receipt requested, at the address stated herein, or at any other address as any party may, from time to time, designate by notice given in compliance with this section. j. Any of the terms and covenants contained in this Agreement which require the performance of either party after the Closing shall survive the Closing. k. Failure of either party at any time to require performance of any provision of this Agreement shall net limit the party's right to enforce the provision, nor shall any waiver of any breach of any provision be a waiver of any succeeding breach of any provision or a waiver of the provision itself for any other provision. I. All articles, section and paragraph titles or captions contained in this Agreement are for convenience only and shall not be deemed part of the context nor affect the interpretation of this Agreement. m. Ail pronouns and any variations thereo# shall be deemed to refer to the masculine, feminine, neuter, singular ar plural as the identity of the Person or Persons may require. n. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which if is held invalid, shall not be affected thereby. 1'1. Limitation of Liability. SM shall not be liable to DICE for any failure to perform this Agreement unless SM is found guilty of a felony. DICE's sole remedy far a violation of this Agreement other than a felony is to cancel this Agreement under paragraph 8. IN WITNESS HEREOF, the parties hereto have executed this agreement as of the day and year first above written. DICE: SM: Dubuque Coiumunity Ice & South~vood Management, LLC. Recreation Center, Inc. e, Name: F. Robert Woodward, III By: ~~ _-~ Nance: Brian D. Southwood Title: President Title: President ~xhibif A ~u~ty so-6 a •31f) 'ub(~80348fj Tg Sod ~ ~ t~ E lii 1~1E27ilU7Lu0'.,,~ 4Rdflt(OQ ~.E r ~lr ~ ~ ~~77'~~77~I !~ ~~ . F ~....+.,~.~-a jj1~ 1'+ [i~ ~~. l ~~~~ _~~~ ~{ ~' ~a~~~~~~~ _ ~ f _ _ F - t.l ',~, .__ ~~ t~ ~~ ~~ .:r .~ Irv `` ~ -`.... `+-.- .~ -.-.3 , { s The Demised Premises are located in the following described real property: A part of an unplatted slough and parts of Mineral Lots 298 and 299 south and west of Admiral Sheehy Drive in the Northwest Quarter of the Northeast Quarter of fractional Section 19, Township 89 North, Range 3 East of the 5th Principal Meridian in the City of Dubuque, Dubuque County, Iowa. EXHIEII" G _ _ ICE USAGE AGREE~'IE~1' DUBUQTTE C4NlMUNITX' ICE & RECItEAT.IOIY CEN'z'TR, ;<Id~C. ICE USAGE .A.GRTvElYIENT THIS ICE USt~.GE A.GREEMEi~1T ("Agreement") is hereby made and entered into by and between Battlefield Dzibnque, LLC, its successors or assigns, a Mnznesota tinted liability company authorised to do business in Iowa ("Battlefield") and Dubi~giie Con?rnunity-Ice & Recreation Center, Ine, ("DICE"). E1s used herein, the terns Battlefeld shall include all o~rvners, players, employees and agezits of Battlefield. WHEREAS, DICE is constzueting an arena on land located on ScIzmitt Island, Dubuque, Iowa (the "Arena"); and W.IIEREAS, the City of Dubuque is leasing to DICE the land for the Arena and the Dubuque P~zcing.A.ssociatiou has pledged Cue Millzon Dollars ($1,000,000) to assist DICE in the building of the Arena; WHEREAS, Battlefield awns a United States Hockey League, Izzo. {"USHI.") member Team and desv:es tb locate and operate such member team izz Dzzbuque, Io~~~a, where the team Warne of such franchise wilt be "The Fighting Saints"; and WHEREAS, RICE and Battlefield have agreed to the terms associated ivittz the occupancy and lase of the Arena for business operations, team adniinistlation, practices and games by Battlefietcl subject to ceLtain terms and conditions set fortiz herein; and WHEREAS, I3atttefteld and DICIa wish to document herein the terms aizd conditions associated ~vifli Baitlefielcl's use and occupancy of the Arena. NOW THEREFORE, in coz?slderation of the mutual covenants and agreerrzents herein contained the sufficiency and receipt of which are ackzzawledged, the parties do hereby itzutually undertake, promise, agree and contract each for itself and its suecessozs and assigns as follows: 1. Ice Usage Agreement. S~zbjec# to the agreements, conditions and provisions contained ui this Agreement, and subject to the City of Dubuque and DICE entering into a lease for the A.reiza upon fiernzs acceptable to Battlefield, DICE hereby grants to Battlefield the right to use those parts of the Arena described herein, and Battlefield hereby agrees to use those parts of the Arena for the purpose of presenting USHL ice hockey games, coudttoting practices, potentially presenting the USHL All $taz` Game and USHL Fall Classic, operating. the business and .hockey operations and performing activities directly incidental #hereto (tlze "Intended Puzposes"), DICE agrees to allow Battlefield to use such po1•tions of the Arena that ale yzecessazy for the Intended Purpose, including bizt not limited to the ice arena, home team and visiting team locker z•ooztls, seating (except as otherwise provided herein), concession space, oFEce space, common areas and any other areas reasonably necessary to carry out the Iitended Purpose, Upon compliance with the terzzas aizd conditions of this Agreement, Cinnl 0310d/09 DICE shall permit Battlefield to have, hold attd enjoy peaceably and quietly the rise of the A1ena'far the Intended Purposes and for the term set forth below. Battlefield shall quit and stirieiider the Arena (including the office space protvided herein)Pat the end of the Term as pzovided in this Agreement zit the same condition as at the date of the com rencenieiit of such rise, ordinary wear. and tear excepted,. "Battlefield Ice Hockey Carnets)" shall be defined for purposes of this Agreeiuerit to include all Battlefield home ice hockey exhibition pre-season, regitlac season or playoff games. as well as US~IL Alt Sta# slid US> ZL Eall_ Classic games. Battlefield Zca Hockey Games shall not exceed ~2 in any given season ~vithotit the express written consent of RICE. Battlefield will play all Battlefield Ice Hockey Gaines at the Arena, tittles both pasties Hereto agree otherwise. 2. Tet'an. The terns of this Agreement s1ta11 coztttnenee upon execution of this Agreerxiettt and texmnafa on May 31., 2030 (tile Tenn). One year prior to the termination of this Agreement, the patties s1tall negotiate in good faith for a new Ica Usage Agreeirieut: This new Ice Usage Agreement may include any and all amendments that exist at the tiit~ie of negotiation, Any ne~v Ice Usage Agreeniant will attempt to be true to the past aid include, rvhereve>• possible, similar terms and overall structure to this Agreetzterit. , 3. Rent,- Battlefield shall pay DICE rent far the l~.rena in the atnoiiiits and sxratitiei• as set forth. in aria Sectioai 3 during the'Term, Additionally, DICB shall, also be responsible for providing egtzipitent heeded to operate the Arena and conduct Battlefield Ice fToclcey Games as set forth in this Section 3 during .the Term. 3.1.13ase Rexit, Battlefield shall pay to RICE for the use of the Arena base rent equal to the amounts and at the times set forth iii the table below {"Base Reut"). RANT Payinent Due IDate $500,004.00 On or' beforeNovetxiber 20, 2009 $500,000.00 On ar before laintar 1 S, 2010 $1,100,000.00 On oi'. bet©re Ma 15, 2010 $1,1.00,000.00 Ozi or Before Au ust 1S, 2010 Battlefield has placed $100,000.00 in escrow with Dubuque Bank & Trust as evidence of its conitxiitiuent to move its U~SHL membership to Dubuque and occupy the Arena. To secure the payment of the Base Rent, no later than Noon oil September' 3, 2009, Battlefield shall protride funds equaling $3.2 million. These funds niay be in the form of escrowed funds, cash, an irrevocable letter of credit in a fours acceptable #o City and DICE from a United States bank, or a combination of theirs. Tlie irrevocable letter of credit will be in force until such time as the $3;240,0(}0 gfrent is paid in fiill. Tf this timeline is not met, this agreement is terminated. The termination of this agreement shall be the sale remedy of all patties and no party shall be entitled to reimbursement of any costs or damages itacitrred bs` the party its caimectan with this Agreement, Final 08/0x/09 C_Tpon reca3ipt by DICE, DZCB shalt nsttttct Dubuque Bank & Trust to retain the $100,000.00 escrow fluids and accrued interest to Battlefield. As set fot•th of the Escrow Agreement between DIC7~.; Battlefield• and Dubuque Bank & Trttst, the escrow fiords will become AICE's ptopert3` iii the event this Agreeztzettt is not finalized by August 15, :2009, -dire to the action or inaetlaii of Battlefield. Battlefield and its individual members shall have the right to substitute charitable ooutribtttions to DICE for Base Rent payments as set forth hereizi. Tile substitution sllatl in no way affect the atizoiant or dining of paynietits. 3,2. Additional Rent. Battlefield shall also pay to T}iCE $25,000,04 pet: year as additional rent .far years 6 to 20 of the Term ("Additional Relit"). Additional Rent shall be paid at the ezid of each season (deemed herein as Jttne 1st) coznmeneing at rife end of tl>e 20152016 season, and ending at tl>.e eiid of the 2029-2030 season: _ 3.3: Capital >Ctnprovement Funding. DICE shall contribute a zninimuzn of $10,000.00 and a ma~itttutit $25,000.40 per year inAteiia capital irifpiovemeiit funding to be allocated as DICE deeztfs in its sole tuzd absolute discretion :For years 11 to 20 of the Tetni {"Capital Itffprovement Funding") paid (and tnpi•oyements cotiipleted) prior to fire state of each season. Battlefield agrees to ziiatclf DICE's Capital Iinprgvement Funding up to a zitalintum of $2S,OOO,pO per year. For exazrzple, ri anlr particular year, DICB's contribution of $25,000 would lead to an equal contribution froze Battle:Fteld, :For a tafal of $50,000 in Capital Tniprovenfenf Funding. Itnpaovenients are based on a list of improvements suggested by fire Arena Advisory Board. DICE and Battlefield's payirietfts sha11 be made on or before August 15 of file respective year. • ~}, Scheduled Dates 4.1, dome +ixames. The parties agree that ail home $attlefield Ice Hoelcey Gauies shalt be played. at the Arena, finless othertyse approved by the parties in writing. Such games shall generally be scheduled bett~reen Septeniber l.st and June 1Sa each year dtuxug tUe Tenn {tlze "Hockey Season"). Tor ice scitednling parposes, battlefield shall be considered a sigtiiftcant user of the Arena aril shall have first priority far rile dates and times laf its Ice Hockey Gatnes. Not later thaif Inlay l $` of` each year, fife Arena Advisory Boai`d shall provide Battlefield t~~ith confirmation a?f the dates BatElefzeld has selected so it tnay submit those dates to the USHB far compilation of the USHL's master schedule. Battlefield shall provide the ,A.rena Advisory Board wltlt written notification of that. USHL's fillet master schedule iriimadiatelsr upon release and therefore atloFV the Arena Advisory Board to release held dates to other risers that tveie not used in compilation of the USIIL schedule. Any 8attlef'zeld Ice Hockey Genies that must be rescheduled after the master iTSHI. schedule is released is subject to ~viitEeu approval of the Arena Advisory Board. Final03lOd/09 A~.2. Playoff tsauies. Notwithstanding the foregoing Battlefield shall inotify the Arena Advisory Board as soon as practicable if Battlefield shall .require use of the Arena for any playoff games occurrlug after tine completion of the regular Hockey Season ("playoff Gaines"}.'The Arena Advisory Board shall make the Arena and leased prenuses available for such Playoff Games; and shall work tq wove or reschedule other aciivzties that znay be scheduled on proposed Playoff Gairie dates, especially Priday or Saturday nights. Upan eliznina#ion from playoff eantantiozi, Battlefield and lze Azezia Advisory Board shall z'elease any dates pz'eviously selxedztlerl for Playoff Games. X1,3.. Tryout Camp. lion a period of fine (S) coisecutl~e days during the last week of Iv[ay through Jane 21st during each year of the Teirn, ea,cept for fhe final year of this Agreemeztfi, Battlefield shall be entitled to access to the Arena between the hours of 8 a~zi and 10 p.m, for the purpose pf hoStitzg a US~-iL Tryout Camp ("Tryouts"}. The e:~act dates and tizues of the Tryouts shall he.provided to the .Arena Advisory Board no later than the April 151 izi~medzatel}' pzeceding s. ztcla Tryouts. Batflefield shall be entitled to access to the ice surface, penalty boxes, media morn -and player wenches as well as to all locker rooms during this period of trine. No additional rezztal fee will be payable by Battlefzeld foz' this access. S. SettIezuczifi, Box Office, Serrlces and Bees 5,1, Ticket Sales._ Baftlel"ield shall provide and operate the ticketing system used in the Arena for Battlefield Zce Hockey Gaines duizxg normal Arena business hozzrs. Battlefield shall pezform all duties normally associated with the Arena box of£zce function for the sale of all single game tickets for Battlef"teld Zce Hockey Crames. Such activities shall include, but not he Iizrzited to, the sale of single gariie tickets, accoun#irig procedures associated xuith Battlefield ice Hockey Craznes, the settlement ox ticket sales and other' i`evezntes from game expenses and other similar fiinctions, 5.2. Coinplirnentaiy 7Ciclcefs. Battlefzeld shall provide DYCE ten (1t7) complimentary tickets foz' each :Battlefield home Ice Hocke}r Gatzte and any USH~ playoff ga>ries or other USkII, sanctioned games played at the Arena ("the Battlefzeld Compliziientazy Ticl~ets"}. Tn the event DICE does Trot use some or all of the Battlefield Complimentary Tickets for a given foe Hockey Gave, llICI; shall nofify Battlefield and Battlefield may sell such unused BaitlefieId Complimentary 'tickets, 5.3. Concession Reven?ue. Battlefield shall receitre SS°lo of the gross concession revenue from food azid bevexages sold in the Aiezza at all Battlefzeld Ice Hockey Ganies..411 remaining revenue at all Battlefield Ice Hockey Ganies shall be the property of DICE or DICE's manager. Finat081041Q4 Battlefield shall not receive any concession ret=eniie front any non Battlefield Ice I~ocltey Gaines. In the event Battlefield is asked to assist •c~~ith the promotion or coordination of other events, the patties shall. negotiate a_ reasonable coninlission or otlzei consideratz'on to compensate Battlefield for its assistaiYCe. G. Sea#ing. Tine ticketing capacity of the Arena is approxizuately 3;200. Battlefeld sfiall not add or sell tickets exceeduig such capacity without the express wz-itten consent of the DICE or .Arena Manager. 7, Sponsorship 7.1. Scoreboat•ti anti o#her signage. Battlefield and DIGS shall work together to obtain all scoreboards, bICL agrees to ~znaii~tain; in good and. proper operating condition, acenter-hung-scoreboard within the Arena. Except as set foitli in Exhibit "7.1" Hereto, Battlefield shall leave the sole _azld exclusive right to sell sponsorships on or related to scoreboards and other indoor and outdoor peizrianent eked temporary signage anti. reader boards, and•reeeive all proceeds there frozzi subject to DICE's approval which will nQt be unreasonable witlilield. Bui'thermore, Satflefield shall have the right to meet with and solicit the sponsors listed on Exhibit "7.1" iVith any izxcrease izl sponsorship or support going entirely to Battlefield. Such amounts paid to DICE will be remitted to Battlefield within ten {lU) days of receipt ley DICE. Battlefield shall have tree right to solicit nerd. sell sponsorships other marketing and advertising opportunities and inventory for signage located within the Ai;ena (other than inventory identified in Exhibit "7,1") (subject, however, to DICE's approval whielz ~~~ill not be unreasoiralile withheld). All proceeds derived from the sale of'siich sporrsorslzips Shall be paid direotly front the spozisois to Battlefield. Additionally, upoir expiiatioir of the reaming and sponsorship opportunities set forth on Exhibit "7.1", those opportunities and That inventory shall become the sole property of Battlefield and niay be sold by Battlefield for whatever amount and far whatevez• duration it wishes with all proceeds there from going to Battlefield. Battlefield agrees that during tree Term of the Agreement that it shalt not sell sparsorsliips or advertiseinerit to the I7ianiond Jo Casino or its successors or assigns.l3attiefield has tree right to sell all the sponsorships, it can, however ante wl~ereyer possible. DICE or its designee will work with its primary beverage vendors (soda and beer} to secure favorable pricing and amenities for the Arena, inctnding secuz~ing the physical scoreboards themselves. 7.2. Dasher boards, ice Surface and Bench bo:zrds. Excepfi as set forth in Ex. 7.1 hereto, Battlefield shall have tree light to solicit and sell dasher board sponsorships, imbedded ice promotions and bench board sponsorships (subject, however; to DICI's approval which will not be unreasonable withheld}, and to retain all xeveriiie front same; provided, however, that in the event I}ICE sells these advertisements, sitbjecfi to advance writtezi approval from Baifilefield, not to be unreasonably ~vitlrlreld; DICE shall be entitled to a ten per•eent {1Q°1o) conmvtssioii on the net proceeds after expenses. Tn the event a sponsor pays for a Front 08104!09 sponsorship iii installments,. ilte deduction of the comcxzissoza shall be calculated as ten percent (X O°to} of the installment amount and not the aggregate sponsorship amount. 7.3. Ica RestiifacingMaeline. DICE has already solicited and sold the sponsorship in pez~petuity for one ice rasurfaaizig machine,. Battlefield shall have the right fa solicit and sell sponsorship on any other ice resurfacing ailachine(s}. Tn the event DICl; sells such sponsorship rights, silbject to advance v~iritten approval From Battlefield; not to be unreasonably wiihlzeld, I~ZC); shall be entitled to a tent percent (lt)°l°} convitissioia of xlet proceeds after expenses. In tlta event a sponsor pays for a spansorslzip in installments, the dedttctiozt of the cozrznzission shall be caletilated as ten percent (1 ~°l°} of the installment amount 2nd not the aggregate sponsorship amount. If a 2"`~ Ice 1Zesuz~acng machine is used, the machines shall be aiterziated to ensu>!e both. sponsors recezve credit. 7.4. Cdtspex•ation: DICE and Battlefield agree to work together to maximize sponsorship revezztie by potentially packagizxg the sponsorship oppoi~tnuities described above v~=henever possible. Is this enfoiceable? $, ltiTovelfies. -DICE gran.,ts Battlefield the .right to se[1 novelties and sotaveniz• items immediately prior to, during and immediately aver Battle£zeld Ice Hockey Gaines in areas designated by the Arena Manager. Novelties shall include, birt not be limited to, shirts, sweatshiz~ts hats, t-shirts, team jerseys and o#her similat• clothing, and pucks, sticks, pennants and other articles ("Novelties"). Battlefield shall, at its expense, provide atl such Novelties and all sales people necessary to carry ant such sales. Battlefield is entitled to all revenue generated f'rona the sale of Novelties. 9. I<oad aind Iicvcrage Revenue. DICE's managemsttt desigiee shall Stave the exclusive rightfo operate aitd control, all food and beverage sales, including alcolio[ic beverage sales, daaring Battlefield Ice Hockey Gaines anti collect alI revenue there Froze. Battlefield shalt reeeiYe 55% of the gross revenite From all rood and beverage sales dtuing Battlefield -Ice Hockey Games. DICE'S management designee sha11 obtain a liquor license from the Cit~l of Dubuque to sell alcoholic beverages at its sole expense, iztcfiding obtaining the appropriate clx~anr shop insnraztce. DICE or its management designee shall have the exclusive right t6 sell alcoholic beverages in the Arena. A.ll coircessian furniture, fixtures and equipment shall be provided by DICE, or its inanagetzie>«t designee:. DICL~ shall be required to tarn off all vending zttachines end close alt lobby and other non-Arena food and beverage operations one hour before, dtuirig and one hotit• after the conclusion of all Battlefield Ice Hockey Games held in the Ar.•ena.. 10. Use of Arezza. Battlefield agrees to conduct its activities izt the Arena so as not to endanger any person therein. Battlefield's use of tJre Arena shall at all dines be consistent vvitll the Intended Purposes. Finn10810~1/09 10.1. Removal 12ights. Battlefield reserves the tight to eject any objectionable person or persons from the Arena, and, upon the exercise of this authority through Battlefield's agents or police officers, DICE lzezeiay waives any right and all claims for damages during the Battlefield Ice Hockey Games. At all other times, DICE reserves the light to eject any objectionable person or persons. fiom the Arena or Teased areas #hereof, and, upon the exercise of this authority tluough DICE's agents or police officers, Battlefield hereby Naives any ziglit acid all claims for damages dozing zion Ice Hockey Games, 10._2. No Use of ltZachitzzeiy. Battlefield shall not, without the ~7itien consent of DICE, put up or operate airy engine or machinery or motor in the Arena or rise oils, burning fluids, campheize, kerosene, naphtha or gasoline fox either mechanical or other purposes or any agent, other than gas oz' electricity, for illumiiiatitig the fli:ena thereof: - 10,3. racility Rules and Regu~it#ions. Battlefield further ccivenants aztd agrees to observe and abide by the 11ites and regulations gotrei.uing the'use of the Arena pioniizlgated by tl~e Arena Manager and Arena Advisory Board and amended from time to trine (the "facility Rules and Regulations"}, incorporated herein by this reference, so long as those Facility Rules aild Regulations are reasonable. Battlefield shall act in cooperation with the Arena Manager tq cause its sezvants, agezits, employees; players, licensees, patrons, invitees Arid guests to abide by the then current facility Rifles and Regiilafions. No Facility Rule or Regulation shall be promulgated that restricts the sale and consumptiotl of alcoholic beverages daring battlefield Ice Hoclce~= Games, beyond those gezieral restrictiotzs contained in the ordiiances of rite City of pibiz~iie, Iowa. In the event of an}~ conflict bett~~een this Agreement and the ~`acllty Rules Azad Regulations,-the terms ofthis Agreement shall cbrztrol. 10.4. Arena Use. The Areaia gild tl~e keys thereto shall at all times remain imdee the charge and confrol of both 1?ICI; and Battlefield oz• their designees. Battlefield shall not permit the Aiezta to be used for lodging rooms or fox iu~y illegal, improper, immoral or objectionable purpose or as pICE shall determine in its sole disaz•etioii. $attlefzeld shall not obstruct or nterfeze with the rights of other Arena tenants ar injure or aiuaoy them or as DICB shall determine in its .sole discrctioti. A,1t keys shall remain the property of DICE and sltali trot be .duplicated slid shall be xetnriied at the termination ofthe A.greenzent. 10.5, x.,ativs. Battlefield will comply with all laws of the United States and the State of larva, and with respect to this Agreeniei~t and the use of the Arena, Battlefield will comply with all ordinances of the City of Dubuque and all zziles and requirements of the police and fire departments or gther municipal authorities of Dubuque. Battlefield will obtain and parr for all necessary permits and Licenses and will not do or suffer to be done ataything in the Arena or leased areas thereof during the Tenn of this Agreement in violation of any Find Q3104/09 such laws, oxdinauces, rules or regtiiren~ents, and, if the attention of Battlefield is called to any such violation on the part of Battlefield or of any person employed by or adnutted to the Arena or leased areas thereof by Battlefield, Battlefield will immediately desist from or correct sueh,violation. 10.6. Are~~a Tlamage. Battlefield shall not injure, mar or in any inatuier deface the Arena or cause or permit the same. to be done, and will not dtxve or peruiif to be driven 3iails, hooks, tacks or screws into any gait of the building and will not make or allow to be made any alterations of any kind therein without the express written permission of DICB, • 10.7, Arena Premises. Battlefeld shall act to bar' from admittance into the Arena thereof a larger number of persons than earl safely and freely move avout and in .said rented areas, and the decision of Battlefield, or its designee, in this respect shall be final. Battlefield shall notplace any ciaair or movable object in • a~iy passageways and will =keep passageways clear at .all tidies. Battlefield shall not obsttltct or use for any purpose, other than ingress and egress of the Arena, any portion of the sidewalE~s, entries, •passages, vestibules, halls, elevators or stairways, or access to public utilities of said builduig. Battlefield shall riot cover or obsta•tict the doors, stairways or openings that reflect or admit Iigh# .into any place in tl_te building. Battlefield shall use the ~vatei~ closets or other Water apparatus only for the purpose which they were consh-ttcted, and shall not deposit any sweepings, rubbish, rags, papers or other substances therein. Battlefield shall be responsible for any damage resulting from any misuse or damage of .any nature or character caused by Battlefield. 10.8. Personal Articles. the Arena Manager shall have the sole right to collect and have the custody of articles left in the Arena or leased areas thereof by perso»s attending any lee Hobkey Game ar fourdament game sponsored by battlefield held iu flle A~•ena, and Battlefield ar any person in Battlefield's en~play shall not collect or interfere with the collection or custody of such articles, 10.9. Arena, Strutctuxai Changes. DICE is coordinating and oausiug the Arena to be brtitt on Schmitt island, Dubuque, Iowa. Battlefield shall have the right. to have input in to the design of the building. The final plans and specifications shall be deteriniried by DICE. Those plans are attached hereto as Ir.xhibit "10 9" Minor internal structure and cosmetic changes shall be allowed so Iong as they do not increase the cost of the facility and jeopardize ti~ueIines. Any cost increases to the $G.6 nullion budget wotcld be borne by the part5r responsible for. the increase based on alterations not included in the agreed to and final arcl~iteottire drawings. Any cost savuigs under the sip million sit hundred thousand dollars ($6.6 iuillion) budget will be shared by the parties pro rata based on cantiibiitions by Battlefield and DICE contributing in kind contribtttians with the cost savings codiidg out of the rent payment(s) immediately following the deternunation of the cost savings. rinn10810d/09 11. UtiItties and Maintenance, DICE shalt provide, at its owiz expense, the follotiving utilities and n~ainteuance sezvices to the Arena: I1,1. Heat anil Cooling. DICE shall provide adequate and Inatually acceptable for the Ateiia and leased premises, when required by the season and for the use of the Arena fo>• t~.e Intended Purposes. It as the understanding of DIC$ and Battlefield if the Arena ,needs aiI conditioning and/or additional electrical rise during the off season, DICE andlor D12A nxust provide same, as they shall agree. • 11.2. Lighttxlg~ DICE shall provide lighting for use of the Arena in accordance with the Intended Purposes; 11,3, Wafer. DICE shall provide water by Ixxeans of flee appliances installed for ordil~ary wafex closet purposes, and for the ~xxakiaag arzd maintaining of the ice sheet, and for colzcessioupurposes; and 1 l.~t. CIeanin~. DICE or Arena Manager shall pro}dde Arena .cleaning, including post lee Hockey Game cleaning, suctz as is necessary on account of the public, to keep ttxe Arena in a clean and usable eonditlon. 12. Parl~ing. Arena pat~•ons shall zzot be clxarged for parking. In the event the parties determine it to ' be in tlzeil: best. interest to charge for parking, flee .fee must be reasonable and tlxe net proceeds there from shall be divided equally between the parties. Tlxis Agreement is Dilly for the Arena. Parking is not a part of the leased premises, 13. p'aeiiities. DICE shall provide or make available for Iise by Battlefield Clio following facilities: 13.t. Locker Rooms. DICE shall make .available to Battlefzeid the '.use of two locker roolixs throughout #lze Hnelcey Season. Tlxe locker room foi iattlefield shall consist of the basic facilities, including a traiming room, medical room, player change room, coaches' officeld~:essing room, shoivei~s, sinks, toilets, and bencixes. The locker room for tixe visiting team sUatl consist o£ the basic facilities, including coaches' meeting area, sl-o«rers, sinks; toilets, and benches. Battlefield stza111~e xesponsibie for all additional fuxishes, fiti7>islzings and fixtu~•es above the basic facilities provided by DICE as. wel! as any special equipment, includilg; bitfi not limited fo, fiuniture, whirlpools, lzot bibs, saunas, exercise egizipniezxt, video nxonitoz~inglediting equiplz~eni aztd similar equipment. Battlefield shall leave exclusive use of Battlefield home locker room during each Hockey Season tlz>;o~zglxvut the Tenn and shall Inaintailx the locker roatxis in a professional mariner, DICE shall have the right to use Battlefield's exclusive home !peke!' room on occasion upozz peI•-zxissicu by Battlefield, wlxich Shall not be ttizeasoixably tivithlield. Fiaat 08/04!09 13.2. Personal. PropeX•(y, .Neither DICB iior Arena Manager shall .not be responsible for any lost, stolen, or damaged egiiipu~ent, vaittables, personal effects or any other items ("Personal Property") s. Cored, left or placed in the locket' raoz~is far .any period of time: Battlefield shall remove its Personal Property ozi or before the end of the Hockey Season or upon forty-eight (48} hours prior written notice fioui DICE dtiritig the Hockey Season if the Iocker rooms ate needed for another event at the Arena. Battlefield shall defend, indemnify and hold DICE and the City of Dttbugne 1.iarinless from and against any claim, demand, or a..ctlon regarding #ha loss, theft; of daixzage to any Personal Property in the locker rooms. 13.3. Ice >tizilr. DICE shall provide alt ice rink complete vt~Ith rink boards, penalty boxes and player benches for alI practices and Battlefield Ice Hockey Games dut7ng each I~ockey Season tl1roughout the Term. DICE shall .tnaizitain ice from August 15 tluough the end of the TrSrout Camp as.stated izz Section d.3 above. 13:4. Medza Itoazn. ]DICE shall provide a media room for use b}r the media and visiting USHL representati~tres during traitiing camps and immediately prior to, during and of terBatlefeld Ice Hockey Gaines dining each Hockey Season tluoughoi~t the T'erin. I3.5. Office Space. Durv~g the Term, DICE sl?all provide, at lio additiozial cost to Battleleld, the exclusive use of office space at the Arena comprised of appro~iniately hve ln~ndred (500} square feet for the purpose of managing; admhustering and operating the USHL meiizber teaiii. Tattlefeld rvil! be responsible for furnishing, egciipping and supplying the office space. DICE Mill work 'with Battlefield to establish a #elephQne system and Internet access for the office space, however all costs associated with the provision of #hese seiviees and etluipzneztt will be charged to Battleleld at :17ICE's standard charge rates, Battlefield shall have frill access to the offzce space. 13.6. ' 1[ISHL Guidelines. Alt facilities provided by DICE to Battlefield pursuant to this Section shall be in a fozzxz and condition generally consistent ~~~ith the guidelines published by the USHL for the aduunstration. and operation of USHL inen~ber teams. The patties recognize that ~3attiefield shall inspect all such facilities at the Arena and canfxrin that all suclx facilities, iz~ their as built condition, #neet or exceed such guidelines. Notwithstanding the foregoing, in the event Battlefield provide DICE with written notification that any facilit}~ identified above does not comply vvith the USHL guidelines, and if zvodificatiotis to the facility for compliance will not cause DICE to incur any material. capital expenditures, as determined in DICI;'s sale discretion, then DICE shall make the necessary improvements for compliance. Battlefield shall immediately serve DICE with #lie USHL guidelines. After construction Fii~~t 08/04109 10 any changes to comply vaitlx USHL guidelines shall be of the cost of Battlefield. 13.7. Luxury coxes. Battlefield shall ha~Je the sole and exchtsive right #o sell suites and liiYUry boxes for its Battlefield Iee Hockey Gaitles and for all other events at the Arena. Battlefield steal[ be responsible for all fi~nittire, fixtzn•_es and egtiiipment in luxury boxes located at the Arexia, Lu~:ury bones are available for lease front: Battlefield. , 14. l'raefice ~'inxe. DICE shall pxavide Battlefield use of the Ice Rink at the Arena for practice subject to other scheduled evezrts {including, without limitation, scheduled intercollegiate hockey games or practices), iuantenaixce and operational needs as determined in flee Arena Manager's sole discretion. The .Arena IvTataagei• shall pro~llde Battlefield use of the• Ice Rinlc daily at no charge during noz7nal business hours (barn-3:30pni .central time) Monday - Eiiday when the Arena :is configured for hockey and available as set forth in this Section i4 upon 48 Hour notice. Once the practice schedule is set, it naay not be changed without the Arena Advisozy Board's approval. If practice occurs before 4;00 atn or between 10;00 pm and l2 ant, Battlefield shall pity DICE for personnel standard rates required to accommodate such practice at Azena's standard charge cafes,lli addition, if the Arena is not configured for hockey on the day Battlefielclwlshes to practice, Battlefield shall pay DICEfoi• all costs incugred by DICE td convert the Atana to hockey colt .figuration including, but not limited to, personnel, equipment and utilities, all at DICE's standard. charge rates, The pz•aotice time for Battlefield yt~ill be set beftveen tl~e Hours of 8:00 a.m. and 3:30 p.iv., for a period of approximately two hours. • is. Personnel. Battlefield ox the USHL shall provide, at no expense to DICE, the genie personnel fbr each Ice pIockey Game, including, but itot Ilmted to, referees, scorekeepez:, tlrnekeeper and public addLess announcer. The patty designated below, or Its agent oi~ contraotor shall, at that partSr's sole expense, provide the additional petsonttel set forth below in. a couunercially reasonable znannet• for each Battlefield Ice Hockey Gaeta: 15.1. went Staff, Battlefield shall provide event superviso>;s, event leads, #icket takers, ticket sellers, ushers, guest services staff and concierge persbivtel as reasonably determined by Battlefield. i$.2, Secur~ii3t Sfat'f, Battlefield shall provide appropriate Uniformed and/or rzon- unifokmed law enforcement personnel and cioti~rd managers. Stich security personnel slxaIl rezxiain on dtt#yttn#il the ,A.rena is cleared of the gezleraE public. 15,3, IV]iainteitance SE~tff/Cleaning. DICE'S management designee shall provide ail staff reasonably necessary to maintain the plryscal support services. of the Arena during Battlefield Ice Hockey Games. This shall include, but iaot be limited to, inaintatning the ice sziiface, HVAC system and electrical .system, and providing an ice resurfacing machine operator for each ice resurfacing r•;~,~t osaoa~o9 t t zrzaclsine used by Battlefield. DICE'S management designee shall also provide cleaning crews to maintainthe Arena, public areas and private aj;eas izi a clean condition such as is customary in public venues of this kind and reasonably acceptable to DICE during and after all Battle'fzeld Ice I~ocke~ Games. 15.9. Pregame Setup/,t'oSt game Striping. Battlefield sizall provide all staff and related expenses incirred to provide for the set-up atzd teal dQ•wil for all. Battlefield Ice I-lockey Games {except that any removal or reinstallation of the dasher boards. ei• ice sheet shall be performed by DICE at DICE's etipeiise}. 15,5, $ox Office IV.Canagei•ITiclcef Seller. Battlefield shall provide a box office zuanager acid staf£to provide the services as set forth herein. 15.6. D+ anergency 1Vfetiical 7'echnieiaizs ("EMTs"}.Battlefield shall provide BMTs to serve spectators, employees and players participating in Battlefield Ice ~Iockey Games. _ . 15.7. Addfioz~al Sex•rices. Battlefield shall provide game technicians azid spotlight' operators as required to operate azi}r Arena sound, lighting or other operating system, 16. Intellectual axzd Proprietary Rigizts 16.1. T1YCE ~.titghts, pTCE shall retain any and all rights, title and nte~~est in the name of the Arena, Battlefield shall include the current name of the Arena as designated by DICE in any and all media when advertising or promoting any Ice Hockey Game or Battlefield's event at the Arena. Additionally, DICE hereby grazits to Battlefield a license to rise the name of the Arena oiz any novelty tmless .advised otherwise iti writing by DICE. 16.2. Battlefield Rights. Battlefield hereby grants to DICE anon-eacIttsive worldwide license and right to use rite Battle. field and Dubuque Fighting Saints name and logo in promotion of the Arena in all media.. RICE shall have the right to display Battlefield's name and Ingo, inclcld.ing any names or logos associated with fhe USHL .team owned b~ Battlefield iu any promotional inaterlal regarding the tlxerza and auy media advertising file Arena. Upoiz request, DICE shall provide Battlefield with Copies O~ $Llell promotional maternal for Battlefield's review. In the .event Iattlefield deteriiaines, in its seasonable discz'etion, that there has been auy deviation or distortion of Battlefield's logo in any of theseproznotional materials, then DICE slza[l work in good faith with Battlefield to remedy such deviation ai• distortion on future promotional znatarials. Battlefield retains all other rights, title aiid interest in .and to Battlefield's riazne and logo, Battlefield ~itrther grants I?ICE a non- exclusive worldwide license and right to use photographs acid video footage fionr any Battlefield's Ice Hockey Games held at the Arena far pion;otional materials, For the puzToses of this Section 16:2; any rights obtained by DICE r,~~c asrovo9 12 to utilize the name and logo of Battlefield sl?all also be applicable for any successor name or logo ofBattlefield. 17. Stnalting. The Arena is anon-smoking building. Battlefield shall take i;easonable steps to ensure eotnplianee by its staff, employees, invitees, guests, licensees, patrons and agents with all federal, state oi• local laws and regtilatlons :and City policies applicable to smoking in the Arena. S 8. Broadenst ~igbts. Battlefield shall own all broadcast rights and revenues :for Battlefield's )<ce k?;oekey Games. ,Az-y cosfs .associated with the production of such broadcasts shall be paid by Battlefield. 19. ~gctcey Cunligurafion. DICE shall set ap the Arena in Hockey Configuration prior to an Ice Hockey Game. "Hocl{ey Configuration" shall include, brit notbe limited to, a sultalile ice surface, floor and dasher boards,, seating as ~3efined herein, ,penalty aixd teataz boxes, suites, and scoreboard wtlx a iniiniinutri of one microphone and, azi online input for musical presentation tliroiigh the Arena's sound system. 'The sound .system will be piavided by the facility, Aii attempt will be made ~o secure a center hci~ig 4- sided scoreboard with video display capabilities. 20. Americans with Disabilities Act. DICE shall copse all permanent siructttres of the Arena to comply ~vitli lire req~.urements of the Americans with Disabilities A.ct d~uing the Term. Battlefield acknowledges and agrees that its programs, activities and events will comply with the requirements of the Americans ~titlx Disabilities Act during the 't'erm. , 21. llamage orDestructio~r a£#lrie Arena. 21,1. Damage by Baftieiield. 7f the Arena or areas thereof leased to Battlefield are. damaged clnring the Tenn by fhe act, default or negligence of .Battlefield or its agents, employees, patrons, guests, invitees, licensees or any person ad>nitted to Elie pi~etnises by Battlefeld or during any event, operation or activity of Battlefield if sponsored by Battlefield, Battlefield shall pay to DICE upon demand suclx sums as shall be necessary to restore such premises to their present condition; provided, however, that Battle~elcl. shall not be liable for the negligent; reckless ar intentional iniscondi~et of DICE, its employees or agents. Battl.efeld hereby assuriies full responsibility for the .character; acts acid conduct of all persons adnriitted to tlie'premises pr to any portion of the premises bSt the eoiise>it of Battlefield, duuing any event, operataoii or activity of Battlefield or with lire consent of any person acting for and on behalf of Battlefield. 2L2. Arena Iieeomes Unusable, In the event the Arena is wlially oi° partially destroyed by fire- or other easitaltl~ covered 1?y the usual fori~i of fire and extended coverage insurance and are rendered untenable, D]:CE s1iaII, to the exfent of insurance proceeds acttiatly received by ATCE ar the City of Finfl108104/09 l3 Dubuque and not required to be paid to any mortgage or ground lessor, rebuild, repair or'restore the Az•ena and/or leased premises to substantially the same condition. as wizen the salzze were furnished to Battlefield and this A.greetrierkt shall reirzain in effect during such period. Notwithstanding the foregoing, the patties acluiowledge that file City of Dubuque has the right to determine vahat, if ..any, iebttildi3ig, repair or res#oration shall occur at the Arena andlor leased premises in the event the same is wholly qr partially destroyed, and that RICE is bound by such detern~inatlon. In the event of total destruction, rent aiid all other charges incidental to Battlefield`s use of the Arena shall aba#e during the period of reconsf~~iatlon, and in the strent of paz•tial destziiction, reztt and all other charges incidental to Battlefield's use of the Arezza shall abate during the period. of recoazstzztction in proportion tc the e:ctent o£ Battlefield's. Loss of use of the Arena andlor leased premises; prciVided, that theta shall be no abatenteut of rent or aziy other charges incidental to Battlefield's use of the Arena if the-fire or other casualty tivas caused by the act of Battlefield or Battlefield's employees or invitees: Iii the event that the Agreeriieut is terminated pursuant to this Section: 21.2, each patty hereby waives any claitit for dauxages or• contpensatiozz, provided, however; that DICI/ 51ia1I not waive any claims in the event the Agreement is #erxninated due to the act of Battlefield or Battlefield's employees or invitees. 21,3. I3atfile~eld IgiziPtnetzt aurI Trtiptovezuexzfis. Battlefield shall be responsible for and shall provide its own Insurance coverage, and supply DICE with reasonable evidence of such coverage, wt13 respect to any fnnttue, fzattues, inzpra•ueznents, betterzuezits, egttipmezzt and personal property belonging to Battlefield and placed by Battlefield in oz' upon the Arez~.a andJar leased pranzses. Battlefield agrees atzd warrants to .DICE that any fire insurance .policy; extended coveragepoIicy, casualty and loss palicy, oz• outer policy or policies carzied by Battlefield in eozuzeetiorz 1~TIth this Agreement or the Arena or iiisurirzg Battlefield's property or effects located thereizi shall contain a provision whereby the insurance cazrier ~yaives any right of subrogation against: DXCE and the City of Dnbugiie. 22. Insurance, Battlefield shall maintain, at its sole cost azzd expense, the insttranee on or in connection with the Arena, leased area and Battlefield Ice Hockey Cremes in the znattner set forth below. Battlefield shall furnish to DICE an llccord 25 Certificate of Insurance no later than thirty (3Q) days after execution of this Agreetrtetit; but in no event less than fourteen (14} days prioz` to occup~ring any portion of the .Arena or leased premises, evidencing that there is in effect far the Hockey Season, atzd will rennain in effect ttiroiigliout the 'Terns of this Agreement, the following forms of insurance, written by an insurer having a rating of not less than AVI in Best's Insurance Guide {or which is otherwise acceptable to DICE), and Iicensed to do business in the State of Iowa, 22.I. Genet•stl x,iabilit~t Uzsurazice. Battlefield shall maiataitz general public liability insiiraiice against claims for bodily injury, death or property damage r;~~~~ ostoaro9 t~ occitrrrig in or abort the Arena, parking garage, groizzzds sinrounding the Arena and any other area necessai•)r or used f'ar the Intended Purpose in an amount not less than $5,000,000 per occurrence foz' bodily ztjury oz death, Liability insurance of $1,000,000 per person for any one person, and $500,000 foz• property damage. Battlefield's General. Liability policy vc=i[I .ziame DICE DRA. and the City of Dubuque, their respective officers, directors, employees and agents as Additional Insureds. q'he insurance :afforiied to the Atlditioz~al Insureds ender Elie General Liability policy zriust be primary insuratzee over any other valid or collectible insiziance Which the Additional Insureds nay have with respeot to loss under the listed policy. 22.2. VVorlcers' Copnpensafion, Battlefield shall maintain workers' compensation insurance coverizig all persons eiziployed by Battlefield in connection with any work done on or abaut-tha Areiza for which claims for death or bodily .Injury could be asserted against DICE, Battlefield or the Arena. Such insurance shall be in accordance with stat<ttory limits and shall include Eziiplayer's I.iabilit~= insurance and a Waiver of Stzbiogation against DICE DRA and doe City of Dubuque, their z'espeefive officers, directors, ezi2ployees and agents. 22.3. ®flzer TizstYrance. Battlefield shall mazztaizz such other insurance ozt or xzz connection with the Arena as DICE mss%reasonably require and ivlzich at ariy time is commonly obtained in connection with public event properties similar to the Arena. 2.2,4. Authorized #o 'Trazzsact Business. All irist>•unients required by this. Section 22 shalt be written by companies of recognized finaneiai standing and authorized to do insurance business izz the State of Iowa. If said insnrarice or any ,part thereof shall eYpiz:e,. be withdrativx~, b~coxne void or voidable, Battlefield shall itlzznediatelp obtain ne~v insurance with thecoveageset forth herein. 22.5. Cancellation of Insurance. Each insurance policy regrired in this SeoEion 22. shall provide that it may riot be canceled eYCept after Thirty (30) .days prior writfen notice to RICE which shall be zioted an the policy. Each such policy shall also provide-that any loss otherwise payable there under shall be payable notwithstanding; (tj any act or oi»ission of 1.DICE which zi~iglit, absent such provision, result iii the forfeiture oi'a1l or any part of Bitch insziraizee paymezzt, (2) the occupation or rise of the Arena for purposes mare hazardous thazi those perznifted by provisions of such policy,. (3} the existence of other policies of insurance couerizig the Ateiza against the peril involved, whether collectible of not: 22.b. Compli:z-zce Svith policy. Battlefield shall pay as they become due alt prez~aiums for the insurance required by this Section 22, shall renew or replace Finaf OSIOdl09 IS eaela policy, shall promptly coruply vvith and conform to all provisions of each insurance policy and shall not #atce any action that :may result in the cancellation of any insurance policies regarding the Arena. Each party to this Agreement .may secure, at its own expense, any business inteixuption insurance it deems. necessary. A.II panes shad, list the other party as an additional insured far all insurance acquired herein: 23. Zzrdeiunity. 23.1. VICE 1>:ereby indez~nifies and agrees to Bold Iiainlless and to defend Battlefield's and its ownezs, directors, officers, employees, volunteers and players, and each of ihezn, from and against any and all claims, demands, liens, Sudgments, oz• otherwise, resulting from. or by reason of (i) Aiiy violation of this Agreement by DICE and/or (ii) death of or injury to any person Of` damage to any .property whatsoever acid all Ather claims, expenses, fines, deanands, actions and losses fiozn any source that n7ay happen of occur as a result of bICE's (or ifs ezrnployee's, corifractars' or agents') negligence, intentional acts or ouaissions. 23.2• Battlefield agrees to pay, protect, indemnify, save and hold harmless DICIs, ifs directors; officei:s and employees, their successors a~~d assigns horn acrd againstany.and all liabilities, lasses, damages, penalties, costs and expenses (including all reasonable attozzaey fees and expenses), cartses of action, shits, claims, demands oi: judgments of any natuze whaisoevez•, hoGVevez~ caused, arisiiig from.; {t} any injury to or death of any official, player, participant, patron, invitee, licensee, coach or stafF at aizy Ice I~ocltey Gante, Tryout Carnp or practice that' results from or is related to the arse of the Az'eua far its Intended 1?urposes, ineludiirg but zrof limited to, injuries or death resulting from any abject oX• person(s) leaving the Ice Rink or any injury or death to person(s), pla}~er(s), coaches or staff participating in the Ice Hockey Garne; (~} any injury to or death of any person or any loss of or damage to any property in any manner arising in or around the Arena or the leased premises or otherwise resulting from any Ice I•Iockey Garne or other activity, operation. or rise of the Arena or leased premises by Battlefield; (3) any violations of any provision of this Agreement, or azly contract or agreementto which Battlefield is a party; or (q) the deposit, storage, disposal, burial, damping, injecting, spilling, leaking or any other placement or release, or e:tisteiree in or an the leased peznises or Arena of a hazardous or toxic substance, matter or waste as defined in any la~v, rule, regulation, statute or Final OS/d4104 I G ordinance; e~ccept to the extent (1) - (4} arise from the aaegligeuce, inten#ional act or omission of I7CE. Battlefield agrees to defend, indeii5tiil'y, and hold harmless the City of Dubuque, and ifs officers acid employees from and against any aiid alt claims of any kii~rd arising out of rite negtigerace of Battlefield, its afficeis, and employees, and anyone under the control of Battlefield or for urhoin Battlefield is responsible, in tlae performance of this Agreemen#. In case any action or paoceed'uig is brought against either of the parties to this Agreement or the City of Dubuque, their directors, officers or employees, by reasozi of any such claiiix, the parties ]rereby covenant upon notice front the other party or rho City of l~tibuque to competently iesist or defend such action oi~ proceeding by counsel of its choice, and to cooperate and assist tit the defense of such action or proceeding if reasoiiably requested to db so. The obligations of the parties under this Section 23 sl;all survive any tez'ntinatiozi of this Agreenieirt, but sltitll 'apply only to obligations, events, inatteis or causes wvlri:clr occur or arise prior to the expiration or teruunatiota of trots Agreement: '24. Xudependent Cvaafi•actaz•s. It is understood and agreed b~' and between Battlefield and DIC)3 that any and alt acts that a party or its personnel, eriaployees, agen#s, caattractors or se~'ants perl'oim pursuant to the terms of this Agi°eenieirt shall be tuadeitakeit as independent coiatiactors and. not as eitiployees oi• agents of or joint pai•triers ~reartures the other party. Neither party shail.have the authoiify to biztd the other party by oz with any contract or agreEnieitt oz to iiiipose arty liability upon the otlaet• party. A.ti acts and contracts of a party shall be in its own name and iiot in the name of the other party: 25. Default. 25,.1, Battlefield Evezrts of Default. 'Z'he following acts or oiiaissions by Battlefield shall be tieeixied a default under this Agreement ("I3atttefield's Default"): (j) Battlefield faits to maintain its meinbersltip in the 17SH1J in good standing; (2) Battlefield fails to make payment at tizn~es laid t> the amounts required a~ndar this Agreerrrerit (3) Battlefield abandons and discontinues use of the Arena and leased premises for'the Intended Purpose; (4) Battlefield fails to perform, keep and observe any teens, provisions, covenants or conditions contained iii this Agreement; (s) .Battlefield fails fo abide by all applicable laws, ordinance, antes and regulations of the United States, State o f Iowa, City of Dubuque or DICE relating to Battlelxeld's use of tlae Arena and leased p>:emises; (G) Battlefield fails to pay any vendor for .services or materials provided for the benefit of Battlefield in the Ai•eira or leased areas thereof if ]~inn108/04(09 jg Battlefield are otherwise required Hereunder to directly pay such vendors ar i£ t3uy lien is placed ou the Arena or leased premises thereof by reason of atiy such failure by Battlefield; or (7) Battlefield fails to acquire and constaiitiy iizaintaitz insurance as ;provided in Section 22 during the Term of this Agreement. 25.2, DICE JUVeiats bf Aefault, Tlie follotiving acts oi• omissions by DICE shall be deemed a default under this Agreement ('!DICE's Defar}It"): (Z) DICE fails to cazrzply whiz all applicable laws, ordinances, rules and regulations of the United States; Stafe of Iowa, or City of Dubuque; or (2) DICE fails to pezfortn, keep or observe an}r tern~z; pzovision, covenant of condition contained in this Agreement: 25.3. Riglzf fa Cuz~e. Ii't the event of a Battlefield's Default or DICE'S Default, the tion-defaulting party shall provide the defaulting party with written rrotice of such default and the defaulting party shall -Have flurry {3Q) days to cure such default or if such default is. not reasotzably curable •witlzin thirty (30} days, to provide tl~e nan-defaillfiiiig party vtlith a plan to clue such default. Notwithstazrdizigtbe foregoing, (i) in the event of a Battlefteld's Default , tlxen the afoi•etizeiztioned cure perigd shall be three (3) business days; atzd (ii) in the event of DICE's default which cozizpletel}' prevenfs the playing of Xce hockey Games, theaz size aforemetxtioned cure period shalt tae five (5) business bays, If the defaulting party lzas not aired such default or provided a plan to cure such default within the Buie periods set forth herein, arz agent of each party to this A.greetnent shall meet within. 5 business days to discuss Izow fo best remedy such default {"1'rtternal Mediation"). Ttz the event that the parties are unable to resolve such default tlu:ough ltiteriial Mediation, the paztles tray seek External Mediation as set forth in Section 25.d. 25.x}. I;tcte>•nal Mediation. Either party may, upon written notice aizd within 10 days after the corzelusion of Internal Mediation, elect to utilize a note binding resolution procedure t~vliereby each presents its case to a niilhiall}~ acceptable neutral mediation ("Hearing").1;f a patty elects to utilize External 1vlediation, the other party agrees to participate. The Hearing will oecitr uo rnore than 10 days after a party seraes wri#ten notice to use External Mediation. Each party may be represented at the Hearing by layers. If the zrzattei cannot be resolved at such Hearing by The External Mediation proceedings will have been without prejudice to the legal position of either party. The parties shall each bear their respective costs incurred izr connection with this pacedure, except that they shall share egztally the fees and expezases of the mediation and the costs of tlLe facility for the Hearing. Tize parties will retain all other rights and remedies available to the-v at law or equity. 2d. I+'orce 1VTajeure. Neither party shall be liable to the other for datizages if such paz•ty's pez•fortnance is delayed. due to Acts of Gad, itichiding, but not lzzrzited to, fine, flood, Final X8104109 [S famine, war, disaster, riot or similar event beyond such parties teasotiable control {herein each called a "Force Majetue'') except as provided by Section 21. In such event, the affected party shall promptly notify the oilier of the delay atad its likely duration. Each party to this Agreement may secure, at its own expense, ansT business intetrttption insurance it deems necessarp.. 27. ~ocl~ey Eaclusiv~ity. Tlxe use of the Arena by other tenants may riot infringe ttpou the. rights of Battlefield and in rio circuntsfanees may another tenant cause Battlefield io lose its priority staftts with regard to the schedniing of ]3atttefield T.ce Hockey Gaines, .except for such special events as hosting #lie loyva Games, Illinois and Iowa Special Olympics and Stich other similar events. The parties agree to collaborate in bringing the USHL Fall Classic, USHL All Star Gaines anct other special events to fhe Arena. 28. Arena Advisory Board: The Arena Advisory )3oard is a select group of stakeholders whose function shall be to advise and inak~ riat~:-binding ~•ecommendatzons to the DICE Board of D>zectors aiid the Arena Ivlaitager. The [-lrna Advisory Boat'cl shill among other things, suggest capital impraventeuts and expeiidttti~•es, detexnuue the master schedule fox the Aetta, assist-iii establishing Facility Rules aitd Itegtilations, and provide a voice fo>• all stakeholders using the Arena, The Arena Advisory board shall be comprised ot: the following five {S) nxerrtbe>.•s; A) Chairperson of the DICi; Bciatcl of Directors, or desigtee; B) S?resident and CEO of the DItA, ox ciesigttee; C) Chaiipersoit of the Bafitlefield Board of Governors, or designee; D} City of Dubtttlue City Manager, or designee; E) k'resident of'Dubuque Youth Hockey or designee 29. General Provisions. 29.1, Cap#ious. The paragraph headings in Phis Agreement are used only for convenience ut finding the subject mattez• acid are riot part of this Agreement or to be used in determining the intent of fhe parties or otherwise interpreting this Agreement.. 29.2, Applicable I.a~v. 1?ai~ies to this Agreement shall conform to ali existing and applicable City ordinances, resolutions, sta#e and federal laws and all existing and fiittire rules and xegttlations pertaining to the A.tena, Iotiva law will govern the terms acid the perfoinlance tinder this Agreenlenf. Any coiii•t proceedings shall occur in the Dubuque Cow~fy District Court. 29.3. Merger. This Agreement constitutes t$e entire agreement between the patties and supersedes aII prior understandings and agreements, whether written or oral, between the parties hereto reiafing to the Arena and the hansac#ion provided far herein,. The parties have not relied upon any >,•eptesentations, ~varlattties or other promises, except those. expressly set forth herein. Fina108/Oal09 !~ 29.4. ].V~odi~eations. This Agreeizzent may be modified, amended, cliscI~arged or waived only by an agreement iu writing signed by the party against whom enforcement of such. znodificaf ion, aniendznent, d'ischatge oz waiver is sought: 29.5. Assgznnezxt. Battlefield shall leave the right to assign this Agreen~ezif and ifs obligations Hereunder ~~i#h the express written consent of DICIJ, which consent shall not be unreasonably withheld, conditioned or delayed. Ail covenants, stipula#loiis an8 agreements in this .Agreen~ezzt shall e.ctencl fQ and bind the legal represezztatives, permitted successors and assigns of the xespeetive parties hexeto. 2}.6. Strict CoFZrpliauce. All provisions of this Ageeinent az~ci each aril every document that shall be attached hereto shall be strictly complied with as written, and no substitution .or change shall Ue made except upon written direction f'iom an antlaorized_representaEive ofthe paz,•ties.: 29.7, lYofiee, Ali notices, den~aizds, requests, approvals,•consents, offers, stateziierits and other izistriinients of communications required ar perzzaitted to be given pursuant to the pibvisiops of this Agreement, shall bezu writing and sl3all be desin:ed to hate been: given when delivered an person, by Federal Express or deposited in the United :States mail b~~ aerti~ecl mail, reiuiu receipt regtte. steel, postage prepaid, addressed to the other party at ifs address set £ortlz below ZF TO BATTLE~)ELD: Battlefield Dubitgtle, LI.,C c/a Briaiz J, Schoenborn P.O. Bax 8I? St. Toseph, RAIN Sb374 With a copy to: Brian r. Schoenborn. Leonard, Street andDeinard, l?t1. 3800 Eighth Street Noz•Fh, Suite 102 St, Cloud, NzN 56303 IF TO DICE: Dubuque Cozninitziity fee & Recreation Cei~.ter, Izic. c% I<: Hobert Woodward, IIr 1450 Alta Vista Dubuque, zowa 52001 With a copy to: ,fames E. Goodman; 7r. O'Coxinor & Tliozzlas P.C. 70Q Locust Street, Suite 200 Dubuque, IA 52001 Fina10310~{/09 20 29.8. t[7.5. llolla~•s. All monetary amounts expressed in this Agreeient are in United States Dollars. Payments shall also be uxade in United States Dollars. 29.9. .Late ?~ayuaents. DICE shall zeceived interest at a rate of 1 %z % per ruon#h or the highest rate permitted by lai~~, whichever is less, on any outstanding balance that is past clue. 29. id. xztvalzcI Pc•ovision. Tn the event an~r one or more of the provisions contained in this Agreement shall for any reasozz be held #o be invalid; illegal or puez~forceable in any respect, such invalidity, illegality oz uneiiforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such in•c~alzd, illegal or unenfoxeeable provision lzad never` been contained herein. 29.11. Execution ixz Countex~az ts. This Agreement ma~J lie executed in any number of oountezpatts, each z7f ivliiah shall be deemed to be an original, and all of such counterparts shall constiftrte one agreement. Also, to facilitate exeeutiozz of this agreement, the parties zxzay execute arid- exchange by telephone facsimile counterparts of the sigziature pages, which shall be deemed originals far all purposes oi'this Agreerizent. 1N WITNESS WH1vRE4F, the parties hezeta have executed this Agreeznezit on the ,~~day of , 2(} 9 (ths "EfFective Date"). ~~~ DIC);: EAT~'LEJ?iELD: Dilbiique Cotnmunlty Ice Recreation Cente ~ c. Battlefield gtie; LLC `--~.~ By; ~, l ' f~ by' Nanie::p. Robert Woaclv~~ard, III Name: Brian J'. Schoenborn Title; President Title; President Fiuai ~8lOd/49 2I JCxhibi~'1.1 r•~~Ai asrauoa 22 ®ubuque Ice Arena S onsprship i nvento ~ ~x hli~i~ 7,'i Tenn Partner D1CE Gont roiled tnvenfo - Fer pefuai Bui{ding Per' efui DRA Exterior Plaza Per etul .Parking Lot rovided 6 DRA Per etui EntryWa - Reoreafionai Per etui Fo er Per etuf _. Multi-Use Meeting Room Per etu{ Woodward Famil Foundation Equi ment (Skate renfai Per etui Molp Offices - recreational ont Per eful Cottin ham & Butler Concessions Area - recreational on{y Pe ' etuit AY McDonald Tro h Case - Recreational - 14 Herrig-Herr{g t=acili Ticket Booth 10 tlniop Hoermari/Band & Cath Si mann Men's Resfroom ~ Recreational On{ . Women's Restroorti Recreational Qni Youth Hoeke Bulletin Board 10 S enter and Dee Smifh Fi ere Skating Bulletin Board 10 Public Skatin Bulletins Board 10 Adu{t Hocks Bulliteri Board 10 Dr f=ield Broambail Bulletin Board 10 Concessio n Area Chairs -Recrea tional 1 10 A uiia 2 14 .. A uila 3 10 q 10 __ Locker Rooms -Recreational 1 Per steal L nn and Jack McCullough 2 Per steal Kristin WoodwardfTJ & Austin Frith 3 Per steal Lon shadow Foundation 4 Per efua! Conlon Construction 5 Per steal E is Construction 6 HS Team Per steal Pete & Dlane Janecke _ Buildin W indows -Recreational 1 Buildin Doors - Recreational 1 Donor Wai { in front lobo' All Donors Less than $10,000. EVENT Related Invan to Zambon{ Per steal WCif{"eiegra h Herald Sound S stem Per steal DB & `f q Sided Center Hun Scoreboard Scoreboard 1 -1I2 side, bottom . Per etui Pe si Scoreboard 1 -112 side, bottom Per etui Rainbo/Qu icksho Scoreboard 2 -1/2 side, Bottom Per etuit Pe sl Scoreboard 2 -1/2 side, Bottom Per etul Giese Com antes Scoreboard 3 -Bottom BATTLEFIELD Space ermittin Scoreboard ~} -Bottom..... Scoreboard 1-To Scoreboard 2 - To Scoreboard 3 - Ta Scoreboard 4 - To" BATTL.EFSf=LD BATTLEFIELD BATTLEFIELD BATTLEFIELD BATTLEFIELD ~ Space permitting S ace permifting Space perrnittin Space permitting S ace ermifting In Ice Logos • Center Ice 10 Theisens Nuetral Zone left 10 American Trust and Savings Nuetral Zone Leff Nuefral Zone. Right 1a 1Q DB & T . Jeff anti Diane Bertsch7FlexSteel Nuetral Zone Right 10 American Trust and Savin s Zone 1 -Flight __ 10 'fruok Count Zone 1 -.Left ... 10 Fischer Com antes Zone 2 - Ri ht. - 10 Fischer Com antes Zone 2 --Left 1 d bu aco Nuetral Zone Center BATTLEFIELD Nuefral Zone Center BATTLEFIELD ' • Zone 1 Center. BATTLEFIELD Zone 2 Centel' BATTLEFIELD ` Goal Line _ BATTLEFIELD Goat Line BATTLEFIELD Seatir Areas To of Concourse stairs facia arena Per efuit Kendall-Hunt Publishin To of Conaocirse stai rs fiacin arena . Per etui Kendal{-Hunt. Publishing Stair Risers BATTLEFIELD Seat Backs BATTLEFIELD cu Holders BATTLEFIELD Pa Decks BATTLEFIELD Scorer Table 10 Truck Compan Home Bench... 1d Theisens.. Awa Bench 10 Dubu ue New Car Dealers Home Penal 10 Anderson-Weber Awa Penalt 10 Steel Mart ~' x 8' Wall Si ns SE arena Stairwell 1 14 Tamil Beer SE arena Stainuei! 2 10 US Bank SE arena Stairwell 3 Zamboni riser Home team. riser 10 1t} 1t} Dr Ffeld Richardsons Honkam - AboVe zamboni entrance Above team entrance Vsitin team riser 10 . Premier Bank Above. team entrance Gfticiai tunnel riser 10 Tamil Beer Si nage.Abave Suites Concourse Si ha a BATTLEFIELD BATTLEFIELD Ent a -Event BATTLEFEELD basher Boards Two on the left and right of the HomelAway benches 1 5 Amer Trust mentioned above, Two on the left and right of the . HomelAway benches 2 5 Amer Trust mentioned above. Two on tha left and . right o~ the HomelAway benches 3 6 Henri & Henri mentioned above. Two on the fait and ' rig}it of the Home/Away benches 4 6 Herrig & Herrlg ' ' mentioned above. ~`s 6-68 Ei ht Foot BATTLEFIELD Visiting Team Locker Room BATTLEFIELD Home-Team Locker Room BATTLEFIELD Exercise Facilll BATTLEFIELD Arena Roof Banners BATTLEFIELD Wtfh agreemen# of Note: Youkh Hockey Association wilt. be encouraged to h ang Championshi Banners, etc. Soda already agreed to with GanEz Famiiy {pepsi) and Snactcidrink machines Food & Bevera a Ri his ~ Events DiCEIBATiLEF1ELD {Vendors Unllmlted} Battiefiald a s for all cos#s associated vyith si na e/reap nfiion the 'sell Ex~xb~f X0.3 ra,at osioaros 23 ~~. z ~ff occ~ oan ~~~ _~rAtt ~ ~~q ~~~ _~- ~~ ~~ ,~~1~ "1~1 [ffla ~~~~ ~ ~ ~Q D ~1~ ~ ~ goo ~ ~ ~ , ~ ~ '} ep ~~ ~ lAS5J7`A1 ~ e. S~ o £ ~ 0'L ZIHTHX~ ~~ ~ ~ ~~ ~~N a ~~. . ~~' S~" ~~_ ~fr ~~ %i ... „v _. 2Y11WtfB ~ _...,.. g`. ~~ $ P .~. ~'~~IIIIIIII-'~ v# ~~ ~~ ~~ scu++1 Srrnavd rccrov4 . ~. ~..~. -a ~~.. .. ~,.;• ~ 1 ~ 1 ~ ~ - ~ A ~~4 ~ ..~..:.. 'V ~ ~~: _~.. rte.'. ~. ~~ a o ~~ F - ~ JL ...lL U~4QQQ~~~QUQQ .j . •'. ~ N ~.. µ „ ~~Q~~~~~YQUQ o ~ ;.4..y.' ~ `C ,QQ~QDQQQ ~ ~ c d6d'ad~ga ~~ _. ~ a 4 ~ M ~ ~~Q~Qdda~pa0 J L. J L ~F1~~QIIQQQQQQ~ f -ir -ir 'r ,. ~ ~ ~ ~. .. , '. _ a ~v ~ ~~ ~ ~~ ~ ~~ \.~ e•ot y~azHxa EXH1B11' 1 FIlIE FLAGS ICE EQU1PIViE~~' 1. Athletica Dasher board set 85 X 185 + 8 ft acrylic shielding 4 Years old 2. Insulating flooring approx. 500 4 X 8 sheets 4 years old 3. 3 Jet Ice icepainting system - approx. 4 years old 4. 165 ton Carrier refrigeration system 10 -15 years old 5. 140 ton Carrier refrigeration system 3 years old 6. Zamboni Ice Resurfaces 6 years old 7. Olympia ice edger 2 years old 8. Jet Ice line marking kif 4 years old 9. Rental .Skates @ 200 pair of Jackson figure and Flite hockey rental skates. Like new condition EXFIIEIT J FUN® ®RAV1!®®UVN SCHEDULE Fund ®rawdown Schedule DRA/DICE/Vision Battlefield Iowa First Draw $ 1,000,000 Second Draw $ 500,000 Third .Draw $ 750,000 Fourth Draw (pro rata) $ 500,000 $ 750,000 Fifth Draw $ 1,100,000 Final Qraw (pro rata) $ 1,100,000 $ 675,000 $ 3,200,000 $ 3,175,000 Fund Source DRA Battlefield DICE DICE/Battlefield Battlefield Vision Iowa/Battlefield Tota I LEASE AGREMEENT W/EXHIBITS LEASE AGREE ENT BETWEEN THE CITY OF DUEUQUE, IOWA AND DUEUQUE COIV1nlIUNITY ICE & RECREATION CENTER, INC. THIS LEASE AGREEMENT (the "Lease") dated for reference purposes the day of , 2009, between the City of Dubuque, Iowa, a municipal corporation (Lessor) and Dubuque Community Ice & Recreation Center, Inc., an Iowa corporation (Lessee). SECTION 1. DEMISE AND TERM 1.1. In consideration of the rents hereinafter reserved and the terms, covenants, conditions and agreements set forth in this Lease, Lessor hereby leases to Lessee the real property shown on Exhibit A, attached hereto, together with any and all buildings, structures, and other improvements located thereon, easements and appurtenances thereto and subject to any easements and restrictions of record (the "Demised Premises"), to have and to hold for a term of twenty-five (25) years commencing on 2009, and terminating at 11:59 p.m. on 2024 (the "Lease Expiration Date"), subject to all of the terms, covenants, conditions and agreements contained herein. 1.2. Closing Date. On the Closing Date, Lessor shall transfer possession of the Demised Premises pursuant to this Lease. 1.3. Condition of Property. Lessor shall deliver the Demised Premises in its "as is" condition. 1.4. Conditions to Closing. The closing of the transaction contemplated by this Lease and all the obligations of Lessee under this Lease are subject to fulfillment, on or before the Closing Date, of the following contingencies: (1) Lessee shall have obtained any and all necessary governmental approvals, including without limitation approval of zoning, subdivision or platting, and of the Construction Plans pursuant to Section 3.2 below that are necessary or desirable in connection with the Lease and development of the Demised Premises. Lessor shall cooperate with Lessee in attempting to obtain any such approvals, provided that Lessor shall bear no expense in connection therewith. (2) Lessee shall be in compliance with all the material terms and provisions of this Lease. (3) Lessee shall have furnished Lessor with evidence, in a form satisfactory to Lessor as Lessor shall determine in the reasonable exercise of its discretion, that 092209ba1 -1- Lessee will be able to operate the Tenant Improvements for the Term of this Lease on a sound financial and managerial basis. (4) Lessee shall at its cost have caused a survey and plat of the Demised Premises to be prepared and recorded. 1.5 Closing. The closing shall take place on or before October 15, 2009 (the Closing Date), or such other date as the parties may agree in writing. Exclusive possession of the Property shall be delivered to Lessee on the Closing Date in its current condition and in compliance with this Lease. Consummation of the closing shall be deemed an agreement of the parties to this Lease that the conditions of closing have been satisfied or waived. 1.7 Termination of Prior Lease. Upon execution of this Lease, the prior Lease between the parties is terminated. SECTION 2. CONSTRUCTION Before Lessee commences construction, Lessee shall furnish to Lessor evidence, in a form satisfactory to the Lessor as Lessor shall determine in the reasonable exercise of its discretion (such as evidence of cash on hand or a letter of commitment from a bank or other lending institution for funds to cover the cost of construction and furnishings), that Lessee has firm financial commitments sufficient in amount to complete construction of the Lessee Improvements (as defined herein) to the Demised Premises in conformance with Construction Plans (as defined herein), or Lessor shall have received such other evidence of Lessee's financial ability as in the reasonable judgment of Lessor is required to complete such Improvements. SECTION 3. RENT Lessee shall pay Lessor (in addition to taxes, assessments, and other charges required to be paid under this Lease by Lessee) rent for the Demised Premises of One Dollar ($1.00) a year in advance upon execution of this Lease and on the same date each year of the term. Lessee shall not be in default of rent unless and until thirty (30) days after Lessor delivers written notice to the Board of Directors of the Lessee (or its lawful successor or assign) that rent is past due. Lessor acknowledges receipt of the rent for the first year. SECTION 4. TITLE TO IIVIPROVEI111ENTS ~4ND TRi4DE FIXTURES 4.1. Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean all of Lessee's personal property located on the Demised Premises used in Lessee's business. Title to Lessee's trade fixtures (the "Trade Fixtures") are and shall be the sole and exclusive property of Lessee during the term of this Lease and shall remain the sole and exclusive property of Lessee after the expiration or termination of this Lease, for whatever reason. Lessor acknowledges and understands that it shall have 092209ba1 _2_ no right, title, or interest in or to Lessee's Trade Fixtures either during the term of this Lease, or thereafter (except as hereinafter provided). Lessor acknowledges and agrees that Lessee shall have the right to encumber, sell, or hypothecate Lessee's Trade Fixtures, to remove them from the Demised Premises, or to otherwise deal with all or any portion of such Lessee's Trade Fixtures, at Lessee's sole discretion. Provided further, that upon ten (10) days' prior written notice to Lessor, Lessor shall prepare and deliver to Lessee a certificate in recordable form stating that Lessor has no interest or right in or to Lessee's Trade Fixtures, as well as any other or further document which Lessee may reasonably request from Lessor. 4.2 Lessee Improvements. All Lessee Improvements hereafter constructed on the Demised Premises are and shall be the property of Lessor during the term of this Lease and thereafter no further deed or other instrument shall be necessary to confirm the vesting in Lessor of title to the Lessee Improvements. Upon request of Lessor, however, Lessee shall execute, acknowledge and deliver to Lessor a quitclaim deed confirming that all of Lessee's right, title and interest in or to the Lessee Improvements and that title to the Lessee Improvements has vested in Lessor. Notwithstanding the foregoing, Lessor at its option may require Lessee to remove the Lessee Improvements from the Demised Premises at Lessee's sole expense upon 120 days' written notice to Lessee, and Lessee shall have ninety (90) days after the termination of this Lease to complete such removal. If Lessee fails to remove the Lessee Improvements within such ninety day period, Lessor may cause the Lessee Improvements to be removed and Lessee shall pay the costs of such removal within thirty (30) days of receipt of a statement therefore from Lessor. 4.3. Lessee Required Improvements. Lessee hereby agrees to construct on the Demised Premises the Minimum Improvements (the Lessee Improvements) described in Exhibit D of the Development Agreement dated the day of 2009, upon the terms and conditions set forth in the Development Agreement. A copy of Exhibit D is attached hereto and incorporated herein by reference. 4.4. Certificate of Completion. Promptly upon completion of the Lessee Improvements in accordance with those provisions of this Lease relating solely to the obligations of Lessee to construct the Lessee Improvements, including the dates for beginning and completion thereof, Lessor shall furnish Lessee with an appropriate instrument so certifying. Such certification shall be a conclusive determination of the satisfaction and termination of the agreements and covenants in this Lease with respect to the obligations of Lessee to construct the Lessee Improvements. SECTION 5. ENCUM NCE OF LESSEE'S LEASEHOLD INTEREST 5.1. Lessee's right to encumber leasehold interest. Lessee shall not encumber by mortgage, deed of trust, or any other instrument, its leasehold interest and estate in the Demised Premises. SECTION 6. TAXES AND UTILITIES 092209ba1 -3- 6.1. Lessee agrees to pay as additional rent an amount equal to real estate taxes upon the real estate of the Demised Premises that become payable during the term hereof. Lessee shall further provide to Lessor official receipts of the appropriate taxing authority or other evidence satisfactory to Lessor evidencing payment thereof. 6.2. The Lessee further agrees to pay all other taxes, rates, charges, levies and assessments, general and special, of every name, nature and kind, whether now known to the law or hereafter created which may be taxed, charged, assessed, levied or imposed upon said real estate, any buildings or improvements thereon which may be taxed, charged, assessed, levied or imposed upon the leasehold estate hereby created and upon the reversionary estate in said real estate during the term hereof, and all such other taxes, rates, charges, levies and assessments shall be paid by Lessee as they become due and before they become delinquent. 6.3. Lessee agrees to timely pay all taxes, assessments or other public charges levied or assessed by lawful authority (but reasonably preserving Lessee's rights of appeal) against its personal property on the premises, during the term of this Lease. 6.4. Nothing herein shall require Lessee to pay any of Lessor's income taxes, surtaxes, excess profit taxes or any taxes on the rents reserved to Lessor hereunder. 6.5. Lessee shall at all times have the right to contest in good faith, in any proper proceedings, in the name of Lessor if necessary, the payment or satisfaction of any such taxes, assessments, rates, charges or levies so agreed to be paid by Lessee, if the validity thereof, or the right to assess or levy the same against or collect the same from said Demised Premises or improvements, shall be disputed. Upon the conclusion of any such suit or proceedings, or not less than three (3) months prior to the date when the right to redeem therefrom expires, whichever will be the earlier, Lessee will promptly pay and satisfy such. disputed tax, assessment or other charge as finally determined, together with all expenses, costs and attorneys' fees whatsoever incurred in connection therewith. 6.6 Lessee shall pay for all utilities in connection with the Demised Premises. SECTION 7. MAINTENANCE AND REPAIRS 7.1 Lessee shall at all times during the term of this Lease, at Lessee's own costs and expense, keep the Demised Premises and the Lessee Improvements thereon, and appurtenances to the Demised Premises, in good order, condition, and repair, casualties and ordinary wear and tear excepted. Lessee shall at all times during the term of this Lease, at Lessee's own costs and expenses, keep the side walks and curbs of the Demised Premises in good order, condition and repair. Lessee shall keep and maintain the Demised Premises, including lanscaping, and all improvements in superior condition, consistent with other similarly classed operations. Lessee shall keep the Demised Premises in such condition as may be required by law and by the terms of the 092209ba1 _q._ insurance policies furnished pursuant to this Lease, whether or not such repair shall be interior or exterior, and whether or not such repair shall be of a structural nature. Upon reasonable notice to Lessee, Lessor may, at its discretion, conduct an annual inspection of the Demised Premises to determine Lessee's compliance with this Article VI. 7.2 Lessor shall maintain Lessor's parking lot which was in existence at the date of commencement of this Lease but shall have no obligation to plow snow in the parking lot. Snow plowing of the parking lot shall be Lessee's responsibility at its expense if Lessee intends to use the parking lot. Lessee shall provide for removal of all snow from the parking lot. Lessee shall provide, at its cost, adequate lighting for the parking lot and shall be responsible for the maintenance of said lights. 7.3 With respect to any parking lot constructed by Lessee or for Lessee's benefit after the date of commencement of this Lease, Lessee shall be soley responsible to maintain any such parking lots, including but not limited to snow removal and lighting. SECTION 8. COMPLIANCE WITH LAW 8.1. During the term of this Lease, Lessee shall comply with all applicable laws applicable to Lessee's use of the Demised Premises, the breach of which might result . in any penalty on Lessor or forfeiture of Lessor's title to the Demised Premises. 8.2. Lessee shall not commit waste on the Demised Premises except as necessary for the removal or construction of any buildings and Lessee Improvements on the Demised Premises. SECTION 9. ALTERATIONS Lessee shall not during the term of this Lease make any alteration, addition, or modification to the exterior of the Demised Premises or the improvements thereon without the prior written approval of Lessor in Lessor's sole discretion. Lessee shall not during the term of this Lease make any alteration, addition, or modification to the interior of the Demised Premises or the improvements therein in excess of $10,000 without the prior written approval of Lessor in Lessor's sole discretion. SECTION 10. USE OP DEMISED PREMISES 10.1. Lessee shall use the Demised Premises primarily for an ice rink and shall not use or allow the Demised Premises or any buildings or Lessee Improvements thereon or any appurtenances thereto, to be used or occupied for any unlawful purpose or in violation of any certificate of occupancy. Lessee may use the Demised Premises occasionally for other uses when it is not being used as an ice rink, without notice to Lessor. Lessee will not suffer any act to be done or any condition to exist within the Demised Premises or in any Lessee Improvement thereon, or permit any article to be brought therein, which may be dangerous, unless safeguarded as required by law, or 092209ba1 -5- which may, in law, constitute a nuisance, public or private, or which may make void or voidable any insurance in force with respect thereto. 10.2. Parking. All other recreational uses, including but not limited to baseball, softball, skate boarding, fishing, soccer and rugby, shall have precedence over Lessee with respect to the use of Lessor's parking lot. Lessee shall cooperate with Lessor to avoid conflicting use of Lessor's parking lot and shall notify Lessor in advance of any anticipated high use of the parking lot. 10.3 Recognition Agreement. In the event of cancellation or termination of the Lease or of the surrender or rejection thereof (other than in connection with any action, inaction or default of Battlefield Dubuque, LLC ("Battlefield") under that certain Ice Usage Agreement, dated as of August 5, 2009 ("Ice Usage Agreement") by and between Lessee and Battlefield), whether voluntary or involuntary or by operation of law, prior to the expiration or earlier termination of the Ice Usage Agreement including any extensions or, renewals of the Ice Usage Agreement, then Lessor agrees, and agrees to cause any new lessee of the Demised Premises, to enter into a written agreement recognizing all of the rights that Battlefield has under the Ice Usage Agreement on the same terms, covenants and conditions provided in the Ice Usage Agreement as in effect immediately prior to such cancellation or termination, for so long as the Ice Usage Agreement has not been terminated. SC1'I®N 11. INSlJR,4NCE 11.1. Lessee shall at all times during the term of this Lease maintain insurance on the Demised Premises of the following character: (1) Insurance against loss or damage by fire and other risks and perils from time to time included under standard extended coverage endorsements in an amount equal to not less than ninety percent (90%) of the replacement value of the Demised Premises and the Lessee Improvements. (2) Insurance as set forth in the Lessor's standard Insurance Schedule for Lessees of City Property, as such uniform, standardized schedule may from time to time be amended. The current Insurance Schedule is attached to this Lease Agreement as Insurance Schedule A. 11.2. Such insurance shall be written by companies legally qualified to issue such insurance in the State of Iowa and such insurance shall include as an additional insured, Lessor, or its assigns, as their interests may appear. Such insurance, shall also name Battlefield Dubuque, LLC and its respective officers, directors, employees and agents as additional insureds. The insurance afforded to the additional insureds must be primary insurance over any other valid or collectible insurance which the additional insureds may have with respect to loss under the listed policy as described herein. Such insurance policy naming Battlefield Dubuque, LLC as an additional insured shall be endorsed to include a waiver of subrogation against the additional 092209ba1 _6_ insureds with respect to all claims arising from the use or operation of the Demised Premises or of the operation of Battlefield Dubuque, LLC while in the Demised Premises on behalf of the additional insureds. Lessor shall not be required to prosecute any claim against any insurer or to contest any settlement proposed by any insurer, provided that Lessee or any additional insured may, at its cost and expense, prosecute any such claim or contest any such settlement, and in such event Lessee may bring any such prosecution or contest in the name of Lessor, Lessee, or both, or in the name of either, and/or an additional insured, and Lessor shall cooperate with Lessee, or any additional insured, and will join therein at Lessee's, or such additional insureds, written request upon receipt by Lessor of an indemnity from Lessee against all costs, liabilities, and expenses in connection with such cooperation, prosecution, or contest. 11.3. Lessee shall deliver to Lessor and the additional insureds promptly after the execution and delivery of this Lease the original or duplicate policies or certificates of insurers satisfactory to Lessor evidencing all the insurance which is then required to be maintained by Lessee hereunder, and Lessee shall, within 30 days prior to the expiration of any such insurance, deliver other original or duplicate policies or other certificates of the insurers evidencing the renewal of such insurance. Should Lessee fail to effect, maintain, or renew any insurance provided for herein, or to pay the premium therefor, or to deliver to Lessor any of such policies or certificates, Lessor or the additional insureds, at their option, but without obligation so to do, may procure such insurance, and any sums expended by it to procure such insurance shall be additional rent hereunder and shall be repaid by Lessee within 30 days following the date on which demand therefor shall be made by Lessor or shall be a reimbursable expense to the additional insureds to be repaid within 30 days following the date on which demand therefor shall be made by the additional insureds. Such insurance policy(ies) shall contain a provision that such policy(ies) shall not be canceled or reduced in scope without thirty (30) days prior written notice to Lessor. 11.4. Each party shall look first to any insurance in its favor before making any claim against the other party for recovery for loss or damage resulting from fire or other casualty, and to the extent that such insurance is in force and collectible and to the extent permitted by law, Lessor, Lessee and the additional insureds each hereby releases and waives all right of recovery against the other or anyone claiming through or under each of them by way of subrogation or otherwise. The foregoing release and waiver shall be in force only if all releasors' insurance policies contain a clause providing that such a release or waiver shall not invalidate the insurance, and also provided that such policies can be obtained without additional premiums. Lessee acknowledges that Lessor will not carry insurance on Lessee's furniture and/or furnishings or any trade fixtures or equipment, improvements, or appurtenances removable by Lessee or Lessee's leasehold improvements and agrees that Lessor will not be obligated to repair any damage thereto or replace the same. 11.5. Lessee shall notify Lessor immediately in the case of damage exceeding $10,000.00 in amount to, or destruction of, any Lessee Improvements or any portion thereof resulting from fire or other casualty. Net proceeds of any such insurance (Net 092209ba1 -7- Proceeds), shall be paid directly to Lessee and/or the additional insureds as their interests may appear, and Lessee shall forthwith repair, reconstruct and restore the Lessee Improvements to substantially the same or an improved condition or value as they existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restoration, Lessee shall apply the Net Proceeds of any insurance relating to such damage received by Lessee to the payment or reimbursement of the costs thereof, subject, however, to the terms of any mortgage encumbering title to the Demised Premises (as its interests may appear). Lessee shall complete the repair, reconstruction and restoration of the Lessee Improvements whether or not the Net Proceeds of insurance received by Lessee for such purposes are sufficient. SECTION 12. LESSOR'S WARRANTIES AND REPRESENTATIONS 12.1. Lessor's Representation Of Good Title. Lessor covenants and warrants that its is lawfully seized in fee simple of the Demised Premises, and that it has full right and authority to enter into this Lease for the full term hereof, and covenants and agrees that upon paying the rent provided for herein, and upon Lessee's performing the covenants and agreements of this Lease required to be performed by said Lessee, that it will have, hold and enjoy quiet possession of the Demised Premises. Lessor warrants to Lessee that the Demised Premises are properly zoned for the conduct of the operation of Lessee's business. 12.2. Lessor covenants and agrees that Lessee shall have no responsibility for or liability arising from any Hazardous Substance which was in, on or about the Demised Premises prior to the commencement date of this Lease ("Prior Hazardous Substances") or which leach or migrate upon the Demised Premises from any property owned by Lessor or their affiliates ("Lessor Hazardous Substances"). 12.3. For the purposes of this Lease, "Hazardous Substance" or "Hazardous Substances" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local government, the State of Iowa or the United States Government. It includes, without limitation, any material or substance that is (i) defined as a "hazardous substance" or "hazardous waste" under Chapter 4556, Iowa Code, (ii) petroleum and petroleum products, (iii) asbestos, (iv) designated as a "hazardous substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. §1321), (v) defined as a "hazardous waste pursuant to §1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi) defined as a "hazardous substance" pursuant to §101 of the Comprehensive Environmental Response, Compensation and Liability Act, U.S.C. §9601 et seq., or (vii) defined as a "regulated substance" pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. §6991 et seq. SECTION 13. INDEMNIFICATION 092209ba1 _g_ 13.1. Indemnification of Lessor. Except as otherwise provided herein, Lessee shall protect, indemnify, and save harmless Lessor from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessor by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Demised Premises during the term of this Lease and resulting from any act or omission of Lessee or anyone claiming by, through, or under Lessee during the term of the Lease; and (b) any failure on the part of Lessee to perform or comply with any of the terms of this Lease. In case any action, suit, or proceeding is brought against Lessor by reason of such occurrence, Lessee will, at Lessee's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by Lessor. 13.2. Indemnification of Lessor. Except as otherwise provided herein, Lessor shall protect, indemnify, and save harmless Lessee. from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessee by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Demised Premises during the term of this Lease and resulting from any act or omission of Lessor or anyone claiming by, through, or under Lessor during the term of the Lease; and (b) any failure on the part of Lessor to perform or comply with any of the terms of this Lease. In case any action, suit, or proceeding is brought against Lessee by reason of such occurrence, Lessor will, at Lessor's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by Lessee. SECTION 14. CONDEMNATION 14.1. Entire Condemnation. If at any time during the term of this Lease all or substantially all of the Demised Premises or the improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality, or other public or private authority, then this Lease shall terminate on the date of vesting of title in such taking and any prepaid rent shall be apportioned as of said date. Substantially all of the Demised Premises and the improvements thereon shall be deemed to have been taken if the remaining portion of the Demised Premises shall not be of sufficient size to permit Lessee and/or Battlefield Dubuque, LLC to operate its business thereon in a manner similar to that prior to such taking. 14.2. Allocation of Award. Any award for such taking of all or substantially all of the Demised Premises shall be paid to the parties hereto in accordance with the following: (1) To Lessor, the amount of the award attributable to the Demised Premises, determined as if this Lease was not in effect at the time of such award, excluding therefrom the amount of the award attributable to the improvements, and all other sums not directly attributable to the value of the Land constituting the Demised Premises. 092209ba1 -9- (2) To Lessee, the entire award except that portion allocated to Lessor above, including but not limited to, the value of the improvements plus any other amount assessed for Lessee. Lessee hereby assigns one-half of its rights to any such condemnation or taking awards or proceeds to Battlefield Dubuque, LLC. 14.3. Partial Condemnation. (1) If less than all or substantially all of the Demised Premises or the improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality, or other public or private authority, then Lessee and Battlefield Dubuque, LLC, at their option upon mutual agreement, may elect to continue this Lease in full force and effect or terminate this Lease. If Lessee shall elect to maintain this Lease in full force and effect, the entire award for such partial condemnation shall be paid over jointly to Lessee and Battlefield Dubuque, LLC, and Lessee shall proceed with reasonable diligence to carry out any necessary repair and restoration so that the remaining improvements and appurtenances shall constitute a complete structural unit or units which can be operated on an economically feasible basis under the provisions of this Lease. In the event Lessee elects to continue this Lease in full force and effect after a partial condemnation, there shall be no abatement in the Basic Rent Lessee is required to pay hereunder. (2) Should Lessee elect to terminate this Lease upon a partial condemnation, Lessee shall provide Lessor with written notice of such election within thirty (30) days after the date of vesting of title for such taking. Lessee shall specify in such written notice the date on which this Lease shall terminate, which date shall be not less than 60 days nor more than 360 days after delivery of such notice to Lessor (the Termination Date). In the event Lessee terminates this Lease, as provided for in this Section 13.3, Lessee shall be entitled to the entire award for such partial taking, and Lessee hereby assigns any such award to Battlefield Dubuque, LLC. 14.4. Temporary Taking. If the temporary use of the whole or any part of the Demised Premises or the Lessee or Battlefield Dubuque, LLC Improvements thereon or the appurtenances thereto shall be taken at any time during the term of this Lease in the exercise of the power of eminent domain by any sovereign, municipality, or other authority, the term of this Lease shall not be reduced or affected in any way, and Lessee shall continue to pay in full the rent, additional rent, and other sum or sums of money and charges herein reserved and provided to be paid by Lessee, and the entire award for such temporary taking shall be paid to Lessee and Lessee hereby assigns any such award to Battlefield Dubuque, LLC. Lessee shall repair and restore any and all damage to the Demised Premises and the improvements as soon as reasonably practicable after such temporary taking. 14.5. Effect of Taking. If any taking renders the construction of the meeting and entertainment center or hotel impossible, any financial penalties set forth in Section 1.3 092209ba1 _ 1 p_ (regarding the meeting and entertainment center) or Section 24.5 (regarding the hotel) shall not be applicable. SECTION 15. ASSIGfViVIENT AND SUBLETTING 15.1. Lessee shall not assign or transfer this Lease or sublease the whole or any part of the Demised Premises without the prior written consent of Lessor and Battlefield. 15.2. In the event that the the Lease is assigned, transferred or the whole or any part of the Demised Premises is sub-leased to a third party other than Battlefield prior to the expiration or earlier termination of the Ice Usage Agreement including any extensions or renewals of the Ice Usage Agreement, then the Lessor shall require such new lessee to enter into a written agreement recognizing all of the rights that Battlefield has under the Ice Usage Agreement on the same terms, covenants and conditions provided in the Ice Usage Agreement as in effect immediately prior to such assignment, transfer or sublease. SECTION 16. DEFAULT 16.1. Lessor's Rights in the Event of Lessee's Default. Subject to Sections 10.3 and 16.2, if Lessee shall fail or neglect to observe, keep, or perform any of the. covenants, terms, or conditions contained in this Lease on its part to be observed, kept, or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessor setting forth the nature of Lessee's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessee has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence), then and in any such event, Lessor shall have the right at its option, on written notice to Lessee, to terminate this Lease and all rights of Lessee under this Lease shall then cease. Lessor, without further notice to Lessee, shall have the right immediately to enter and take possession of the Demised Premises with or without process of law and to remove all personal property from the Demised Premises and all persons occupying the Demised Premises and to use all necessary force therefor and in all respects to take the actual; full, and exclusive possession of the Demised Premises and every part of the Demised Premises as of Lessor's original estate, without incurring any liability to Lessee or to any persons occupying or using the Demised Premises for any damage caused or sustained by reason of such entry on the Demised Premises or the removal of persons or property from the Demised Premises. Notwithstanding the foregoing, In the event the Lease terminated prior to the Termination Date for any reason, this Agreement and the rights and obligations of the parties hereunder, and the Management Agreement and the Ice Usage Agreement, shall terminate, unless within sixty (60) days after the termination, City enters into an agreement with DRA or Battlefield to continue the occupancy of the Demised Premises under the terms of the Lease, with such modifications to the Lease as may be set out in the agreement. City may in its sole discretion upon written notice to DRA and Battlefield 092209ba1 -11- not more than thirty (30) days after such termination offer first to DRA the continued occupancy of the Demised Premises, and DRA shall have thirty (30) days after receipt of such notice to accept such offer by written notice to City and Battlefield delivered within such thirty-day period. In the event DRA fails to accept such offer within such thirty-day period, Battlefield shall have thirty (30) days thereafter to accept such offer by written notice to City. If either DRA or Battlefield accepts such offer, then the Lease, the Management Agreement and the Ice Usage Agreement shall continue in effect, with such modifications as may be set out in the agreement. 16.2. Rights of Holder of Encumbrance in Event Lessee Defaults. If Lessee fails or neglects to observe, keep, or perform any of the covenants, terms, or conditions contained in this Lease on its part to be observed, kept, or performed, the Holder of any indebtedness secured by an encumbrance on the leasehold estate under this Lease shall have thirty (30) days after receipt of written notice from Lessor setting forth the nature of Lessee's default and a reasonable time thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature thereof within such thirty (30) days and is diligently prosecuting such proceedings, within which to endeavor to make good or remove the default or cause for termination of the Lease. All right of Lessor to terminate this Lease on the failure or neglect of Lessee to observe, keep,, and perform the covenants, terms, and conditions of this Lease, is, and shall continue to be, at all times prior to payment in full of the indebtedness to the Holder of Lessee, subject to, and conditioned on, Lessor's having first given the Holder written notice thereof and the Holder having failed to cause the default or cause for termination to be made good or removed within thirty (30) days after receiving written notice of default or cause for termination or within a reasonable time thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature of foreclosure within such thirty (30) days and is diligently prosecuting such proceedings. In the event that the Lease is terminated due to the Lessee's bankruptcy, insolvency or other proceedings, and in the event the Holder has complied with the terms of this Section 15.2, then Lessor at Holder's option, shall enter into a new lease with Holder or the successful bidder at foreclosure on the same terms as this Lease, for the term then remaining, and specifically preserving all unexercised options. In the event that Holder or a successful bidder enters into a new lease pursuant to the foregoing sentence, such Holder or such successful bidder shall enter into a written agreement recognizing all of the rights that Battlefield has under the Ice Usage Agreement on the same terms, covenants and conditions provided in the Ice Usage Agreement as in effect immediately prior to such termination. 16.3 Lessee's Rights in the Event of Lessor's Default. If Lessor shall fail or neglect to observe, keep or perform any of the material covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessee setting forth the nature of Lessor's default, it being intended that in connection wtih a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessor has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence, but in no event longer than. 092209ba1 _ j 2_ ninety (90) days, then and in any such event, Lessee shall have all rights available to it provided by law or equity. 16.4 Third Party Rights in Termination. In the event that this Lease is terminated for any reason prior to the Lease Expiration Date, then Lessor shall, no more than thirty (30) days following the date of such termination, provide written notice to Dubuque Racing Association, LTD (DRA) and Battlefield that this Lease has terminated and offer to DRA the right to enter into a new lease, on the same terms and conditions as this Lease, for the term then remaining, and specifically preserving all unexercised options. DRA shall have thirty (30) days after receipt of such notice to accept such offer and enter into a new lease with Lessor. In the event DRA fails to accept such offer and enter into a new lease with Lessor within such thirty day period, Lessor shall provide written notice to Battlefield that DRA has failed to accept Lessor 's offer to enter into a new lease and shall offer to Battlefield the right to enter into a new lease, on the same terms as this Lease, for the term then remaining, and specifically preserving all unexercised options. Battlefield shall have thirty (30) days after receipt of such notice to accept such offer and enter into a new lease with Lessor. Without regard to whether Battlefield or DRA enters into a new lease with Lessor pursuant to this Section 16.4, Lessor shall, and shall cause any new lessee of the Demised Premises to, enter into a written agreement recognizing all of the rights that Battlefield and the parties to the Management Agreement (as defined in the Development Agreement) have under the Ice Usage Agreement and the Management Agreement, on the same terms, covenants and conditions provided in the Ice Usage Agreement and Management Agreement as in effect immediately prior to the termination of this Lease. SECTION 17. RIGHT TO CURE OTHER'S ®FAULTS Whenever and as often as a party shall fail or neglect to comply with and perform any term, covenant, condition, or agreement to be complied with or performed by such party hereunder, then, upon thirty (30) days' prior written notice to such defaulting party, the other party, at such other party's option, in addition to all other remedies available to such other party, may perform, or cause to be performed, such work, labor, services, acts, or things, and take such other steps, including entry onto the Demised Premises and the Lessee Improvements thereon, as such other party may deem advisable, to comply vvith and perform any such term, covenant, condition, or agreement which is in default, in which event such defaulting party shall reimburse such other party upon demand, and from time to time, for all costs and expenses suffered or incurred by such other party in so complying with or performing such term, covenant, condition, or agreement. The commencement of any work or the taking of any other steps or performance of any other act by such other party pursuant to the immediately preceding sentence shall not be deemed to obligate such other party to complete the curing of any term, covenant, condition, or agreement which is in default. SECTION 18. QUIET ENJO`fNIENT 092209ba1 -13- Lessor covenants that at all times during the term of this Lease, so long as Lessee is not in default hereunder, Lessee's quiet enjoyment of the Demised Premises or any part thereof shall not be disturbed by any act of Lessor, or of anyone acting by, through, or under Lessor. SECTION 19. 11VAIVER No waiver by Lessor of any breach by Lessee of any term, covenant, condition, or agreement herein and no failure by Lessor to exercise any right or remedy in respect of any breach hereunder, shall constitute a waiver or relinquishment for the future of any such term, covenant, condition, or agreement or of any subsequent breach of any such term, covenant, condition, or agreement, nor bar any right or remedy of Lessor in respect of any such subsequent breach, nor shall the receipt of any rent, or any portion thereof, by Lessor, operate as a waiver of the rights of Lessor to enforce the payment of any other rent then or thereafter in default, or to terminate this Lease, or to recover the Demised Premises, or to invoke any other appropriate remedy which Lessor may select as herein or by law provided. SECTION 20. SURRENDER Unless otherwise agreed, Lessee shall, on the last day of the term of this Lease or upon any termination of this Lease hereof, surrender and deliver up the Demised Premises, with the improvements then located thereon into the possession and use of Lessor, without fraud or delay and in good order, condition, and repair, free and clear of all lettings and occupancies, free and clear of all liens and encumbrances other than those existing on the date of this Lease and those, if any, created by Lessor, without (except as otherwise provided herein) any payment or allowance whatever by Lessor on account of or for any buildings and improvements erected or maintained on the Demised Premises at the time of the surrender, or for the contents thereof or appurtenances thereto. At Lessor's option, Lessee shall remove any or all of the Lessee Improvements located on the Demised Premises. Provided, however, that Lessee's Trade Fixtures, personal property, and other belongings~of Lessee or of any sublessee or other occupant of space in the Demised Premises shall be and remain the property of Lessee, and Lessee shall have a reasonable time after the expiration of the term of this Lease to remove the same. SECTION 21. IV1EN1ORANDUIVI OF LEASE Each of the parties hereto will, promptly upon request of the other, execute a memorandum of this Lease in form suitable for recording setting forth the names of the parties hereto and the term of this Lease, identifying the Demised Premises, and also including such other clauses therein as either party may desire, except the amounts of Basic Rent payable hereunder. SECTION 22. NOTICES 092209ba1 -14- 22.1. All notices, demands, or other writings in this Lease provided to be given or made or sent, or which may be given or made or sent, by either party to the other, shall be deemed to have been fully given or made or sent when made in writing and deposited in the United States mail, registered and postage prepaid, and addressed as follows: TO LESSOR: City Manager City of Dubuque, Iowa 50 West 13t" Street Dubuque, Iowa 52001 TO LESSEE: F. Robert Woodward, III, PO Box 1816 Dubuque, IA 52004 22.2. The address to which any notice, demand, or other writing may be given or made or sent to any party as above provided may be changed by written notice given by the party as above provided. SECTION 23. MISCELLANEOUS 23.1. Time of the Essence. Time is of the essence of this Lease and all of its provisions. 23.2. Governing Law. It is agreed that this Lease shall be governed by, construed, and enforced in accordance with the laws of the State of Iowa. 23.3. Attorney Fees. In the event that any action is filed in relation to this Lease, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees. 23.4. Paragraph Headings. The titles to the paragraphs of this Lease are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this Lease. 23.5. Modification of Agreement. Any modification of this Lease or additional obligation assumed by either party in connection with this Lease shall be binding only if evidenced in a writing signed by each party or an authorized representative of each party. 23.6. Parties Bound. This Lease shall be binding on and shall inure to the benefit of and shall apply to the respective successors and assigns of Lessor and Lessee. All references in this Lease to "Lessor" or "Lessee" shall be deemed to refer to and include successors and assigns of Lessor or Lessee without specific mention of such successors or assigns. 092209ba1 -15- 23.7. Force Majeure. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, unavailability or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, chemical explosions, hazardous conditions, fire, weather or acts of God, or by reason of any other cause beyond the exclusive and reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. 23.8. Use of Tobacco Products. The use of tobacco products in any building on the Demised Premises is prohibited and Lessee shall use its best efforts to enforce such prohibition. The use of tobacco products outside of any buildings on the Demised Premises shall be allowed only in areas designed by Lessee and Lessee shall use its best efforts to enforce such restriction. 23.9. Nondiscrimination. Lessee shall not discriminate against any person for employment or use of the Demised Premises or Improvements thereon because of race, religion, color, sex, sexual orientation, national origin, age or disability. 23.10. Battlefield Dubuque, LLC as Third-Party Beneficiary. It is the expressed intent of Lessor and Lessee that Battlefield Dubuque, LLC shall be a third-party beneficiary of Sections 11.2, 11.3, 11.4, 11.5, 14.1, 14.2, 14.3, 14.4, and 16.1 herein. LESSOR: [SEAL] Attest: Jeanne F CITY OF DtJEUQUE, IOWA By: Schneider, City Clerk Roy D. Buol, Mayor 092209ba1 -16- LESSEE: DUEUQUE COMMUNITY ICE ~ RCRA-TION CENTER, INC. gy: F. Robert Woodward, III, President -17- XFiI IT FIST Ex. A The Demised Premises Ex. A-1 Insurance Schedule Ex. B Minimum Improvements EXHIEIT A THE ®EIi~ISE® PREIViISES A part of 11~ineral Lots 298 and 299 in Fractional Section 19, TS91V, R3E, 5th P.tVI., in the City of ®ubuque, Iowa, containing 6.63 acres, more or less, subject to easements of record and not of record, as shown on the attached Exhibit A-1. LEASE, EXHIBIT A PARCEL OF LAND LYING WITHIN THE NORTHEAST QUARTER OF SECTION 19, TOWNSHIP 89 NORTH, RANGE 3 EAST OF THE 5TH PRINCIPAL MERIDIAN, DUBUQUE COUNTY IOWA S87•0014'W 2631.91' NE CORNER SEC, 19, T89N, R3E NORTH LINE OF THE NE 1/4 SEC. 19 \ I( f ‘ /' \ (7,) \ .. pso9s..0.0.‘e:i 1:0IS ,-, 4 ■ \ • ..• .0, <;• \ TO 141* CIP \ ‘ ‘4 "14 %.1 LARRISON & ASSOCIATES architects se.0 POINT OF BEGINNING L=73.33' =• DUBUQUE COMMUNITY ICE .& CS210415"E RECREATION, INC. 7328' R=570.0' 287,868 sq. ft. 6.61 ACRES 851°18'09'W 67.91' 16, S38°41'51E 35.23' N38°41'51"W '10" 44.00 Af4 s- o .A9J 44\ LEASE AREA C 0 100' 200' SCALE: 1" = 100'.-0" S38°30.01"E 161 44.00 45) S rsCP 45' orP 1.? 600' LEASE AREA B NOTE: THIS BOUNDRY HAS NOT BEEN SURVEYED. THIS IS A PROPOSED LEASE BOUNDRY AND IS SUBJECT TO CHANGE PROGRESS PRINT 01/13/200GI 4-V II9IHX9 i~su~~c~ sc~~®u~~ INSU NC REQUIREMENTS FOR LESSEES AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE 1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A or better in the current A.M. Best Rating Guide. 2. All policies of insurance shall be endorsed to provide a thirty (30) day advance notice of cancellation to the City of Dubuque, except for 10 day notice for non-payment, if cancellation is prior to the expiration date. This endorsement supersedes the standard cancellation statement on the Certificate of Insurance. 3. Lessee shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 6 below. Such certificates shall include copies of the following policy endorsements: a) Commercial General Liability policy is primary and non-contributing. b) Commercial General Liability additional insured endorsement. c) Governmental Immunity Endorsements. 4. Each certificate shall be submitted to the contracting department of the City of Dubuque. 5. -Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement. 6. Lessee shall be required to carry the following minimum coverage/limits or greater if required by law or other legal agreement: a) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products-Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence Limit $1,000,000 Fire Damage Limit (any one occurrence) $ 50,000 Medical Payments $ 5,000 This coverage shall be written on an occurrence, not a claims made form. Form CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be included. All deviations or exclusions from the standard ISO commercial general liability form CG 0001, or Business Owners form BP 0002, shall be clearly identified. INSU NCE SCHEDUL A (Continued) INSURANCE REQUIREMENTS FOR LESSEES AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE Governmental Immunity Endorsement identical or equivalent to form attached. Additional Insured Requirement: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers shall be named as an additional insured on General Liability Policies using ISO endorsement CG 20 26 0704 "Additional Insured -Designated Person or Organization," or it's equivalent. -See Specimen b) WORKERS' COMPENSATION EMPLOYERS LIABILITY Statutory for Coverage A Employers Liability: Each Accident $100,000 Each Employee -Disease $100,000 Policy Limit -Disease $500,000 c) UMBRELLA EXCESS LIABILITY LIQUOR OR D M SHOP LIABILITY Coverage to be determined on a case by case basis by Finance Director. Completion Checklist ^ Certificate of Liability Insurance (2 pages) ^ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages) ^ Additional Insured 20 26 07 04 ^ Governmental Immunities Endorsement CITY ®F ®UUQUE, I®1~J~- GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coverage. The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. 4. Non-Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. -~- P~II~Y NUMtit'tt r;.fJNIM~RCIAL'r,~~f~{~L LlAE~ILf`fV' GU 24 36 O7 Q4 'HIS ENQQRSEMiTNT CHAN{aE~ THE ~t.~;<..1~Y, ~~.EASl= R~AC-1T C~kF~EFI~LL.Y. `This eridai~r~~rt. niodibe5 i~~urance preci undfst tha 'ull;t'~irig: t~CiI~llkrtEhC:IAL GEIWEFiAI LE.,'~RI~1TY C`-t71~ERAG E PFtI'iT ~HEf]41LE r<e 4f Additional Irrseared Partt(sf +~r t~rg~r>Iz~ticn~s~ The t:iiy ~f Dubuque, >a~ludinr~ till Its PI~:•fiarl gird .~~~ninfi~r~ ~ ~t'~i~ials, alt ~.s e~Fitafes find Lrol~.arrte~r~, X11 iTS h~~af~ds, t•~rrmli5sions and,tor au,l:orities and t'iair ~~yrri osnlt5€!rs, emple;~1ees znd s~+~itra~~eers. e`3~:[isxtl tl - SMlio la An Insured is an~rdsxt io in- ~iude,sa~n ~dditicna insured#hr; ~r;:;CU^~sj rtt cir~irli ~stianlsf ~h~:sn In #hc ;;:~tz~ct~ic, }yut ~Rhr vih r~pec# t~ liabiltly Ica "hnrJit}~ injury" "~rcpeiy demape" Ui "6~is?arai end €d~~rEairg injury'' caused, i1 tivhe,?e nr in perl 6v pour acs ur mltiss~ai~.~ cr th< ~Gt~ Qr nrta<s- bior~ ~i itr~se a~sing #~n your F~h~i9: A, 9n the p~rfo~an,~? of yourongrlr~g caaratiors; B. In ~+~nnsdi~n tivi:h yu~~r premises ovmed k~~ ~r ~'~;nir~~ to ~rnr z~.r ~n ~a n' n~ i I abcr~, 'aril be sh~w~ iri 1h~ (~eelaratiors. 3 i~'~V ' ,~~ 1j_ ~' r l ] - a_.: ~ _ - t3lSil (~~aeries, I~ .. 2£474 -8- Page 1 ~f 9 I7 It~AP(~t~T~I~1T If 1h~ Ct;€t![CatC h~al4'r Ig ;tn At}pll iUtaar. INSt~FtEC), ttar3 RulisyfR;:} rlr.~i fay rr:s.°crycl.4. ak statement ern Ilris hc;rL~i,;;wtQ r9a~;ti np# canf~ ~3 to lire cattiFic~k: IraklGr in iie~r uf:c:,,~, rndur:xment(3}. If SUS riOGlkTlrJN IS Y:Ah+EI?, ~lr~U to ~tt~ rer rig ~ tad srortditis:r r~ +uf ll=e; E;s lira, rrr7airr pWioies rcray requiru `art ~tla`t',rrt_nt. fr statetrt?rst oh <hi3 u;r:ifcok+: +hr~s rui,atnfri ~iylds Ir; Ilry r.-aiiticxtd heid~ in fou cf crrct• r+,nrirr_aema:rds}. t11S~LAllIAEFt fhe Cdrtifi:atr3 Uf;[7~trr;trttH nn the rrtt~rse side of tfis f~srn does asst rur-rstitri![r a c[rnt+~[~ tt~taz:err She i~suir~ insurrarl;r7, 3rt1t's7$iZCS1 rCpn=_s=[s#.~ive ar ~ra~~r end jJre c~rt€tis:atu hv'r1c", ttn tl;arrs it ;~flrrma7ir~ly ar nrrg~iv[tty att'v:ttts, gxiend crater ttre corsrage ah'¢~risd txi rtu~ p;rli[irs litilq~f tlrr-rr.[rrr. 1-,~ ~ _ ~ 1 i ~~,~~ t-l ttt ~_. ACDRt? 2b [2?61f98F -10- FQLti;Y tIU41BEf:: GflMMERGlAL GEt+tEi`tAts i~lA81L17'Y ~t3 ~3 t}A 4~ 8T TullS ~hlt3~}I~SEM~NT Cl~(aIC+ES THE Rr~InICYt PI_~~E READ IT ~AitEFULLV, ~~N~l2~~ A+~C~~1~T~ L1~l~T T1t5 ~nrk;rsrsr~snt mcdifi~ ir_~uranr:~ ~rnvirt tlnr ~~ fiCU+xutn~~ r , ~ + ~ _~ ~ ~ ~ ~ 3 ~ i t~ ~~I CCat~iM~t€RClAL~ENi=.ft,4L LtAFtt#t"tY C~tfE~AGE PART f~ )] ~ i ~ ~ _J ~~ 1, ~_j t ., .~ , ~ ~~HECttIL:[ Drsign~irad Ltrcatinn{6}: i ~If rya rx~h°, app=_ars Attnrre, irfgrn'lgtiCrt r>a~ulr~i is~ cvvmp~tz this encfrr,ameni Yvtt t:t~ fih4ntgr in tn= Ltacl.raions as ~:tpt~ata~ to tt7s ~neors€v,r=nt.} A1. Far all gums ~vh.~h ~e itr u-ed 6sta~ma:3 lc~~lty ©l~ig~ie~t try pay as damages causeei by "ncnurrerr~s' uktr~ C'.~'rrF-;itAr~ t4 {$ECTIC~tV Ii~ ar~ri fo• all rr.~fir.Al ex~n3~s ~~used tx~ sue- ~tais under CC}VF_t2Ai_iE ii t:~E~Tt~dV #~, ~vhica can bs ~lfributed ~nly~ to u~ui8ticr-s ai a sing Ct:,Signatrnt "tccall4n" shcurn in th;; Ser'u?e ~iY,~e: 1. A s~~rata [l~sig~ra'~d Lr~s:asion {?erttrrsf hggraga~ t. unit a~apl+'tis to h des~rtat~d 'iOCptia0', and tt~t emit ~ ~l~t t0 the :;e~,ia„rrt ~f the Getr~ral Aggrsga#e Lima sharrn inthe i~err~r~t(riris ~ Tn~ 17~;signs'sd Lncakinrr C~r~~ ~r~~r~r~ai i i4'aiit ~~ itt~ mgt tvc will pay far the sum of all damages under 4t~~FP,~ts fi, cx~tx d;3m- sgae because ai "bc~dity irijtrr'~' ~ ,.ptc7pwriy d-~+tade' ncl~rded ire Ehe'pnaducts-~umplef~ aper~tions ha~ra', ant for medical experts un~r t~t~VFFL4UE ~ trdlcss at Cite rturrt- t1C2 Zr(: ~. nSU'SiIS. t). Gtaims lnc3~r {~, '~Uit;i' Lxsnc~t-t, ux c, t'r:l~S'ine rx ar~sr=izArinnR ez~aki~ claims ear firinr~lnc~ °sults'. ~. Any p;lsrtts made under C(l3fEti,4GE A tvr ~m~~ car uneier fit74FR~~E ~ irar nit~~ic~l ~~e~r3es shall reduce tt•e L7esiy~_ nateri I.u~.,atiu~ gel AyLareyats~ Limit fCSr the: dcaignrmCed 'tncst4rr", ~'.ach pavmsn+.s srt4tl nS7t t®~uce ihs Genera; Agcregate l itntik ahc+r~n in tip Ilrtr:taiealirms ri~r gall they ris- ttlt~e sry ©t!i@r [}esign~t:~ Ltre~'.is~n GeneraE M;tr~i~at~ t_imit #c~x a.~y ~t'~r ~ie~i~rtt'tt£d "kxattari sh+~vn ire th€t ~r<tt~dtle wave. The !imi#s sh~,vri in the C~cJaraticns five Each t~ccurrt~ttc~, tare Drsinsg~ rangy ~iedc~l Ex- pP.r._s~ cc~niinue i0 af~fiJY- ititlvUVr?r; nstead 4# heit~ :~utaa~;t tea tl~e Gsnvt~l #;prtjregata Lirrjt ~ItOtivt' in ifs dectaratians, aUCh ilS11R~H tl3 5u;3~~i tc~ thn erppl~at~fa Jasi~aied i ar.=.lcn Ganarel,~~res~r~e ! ittYit -11- 8. Fot III sums virrL:l~ tl±r irr~~rtci har~t+tes [~e{ty' t GIlCltvd t~~ G~Y sa damsgea cs•~rt~,~ key '~tu.unL~tce~' unr~=_r ~vG~Et~GE A :5E.G1ttJh: IY, and f>:€ a!I maciral axF~=:rLr=ti r~airsxl h}r ar~:i. ~nf; unc~r CtY'•iEErt:GE ~ t~EGTI~N !~. ~vh~`t ctrrrttt L° ~tlrihutr~f anhr td ::Para!+~r:a at ~ Siti- cle dasi3r,ated `1~csFicat` sha~'afl ir`~ [M°. Srhe.~ule at;aa•a. 1, Vim} {'~~'/n-a rn made t,r;der R;OVEki.~C k for derisrgcs r_f rn~~' C•G~1Fi~.~F C `cr tnt.iti~a! rr~il~nsBS Shall reduce the arr~atni ~:•all3ble ancar t:=ts taerr:tal r;gt)rc~ate Umli c•r t7c Prcduc:3-Ga-itdCl~;l Operatrat~s :.g- ,rc_-s,,xt:: l i-nd ~~dtirltrder i3 sf+Ftiasalc: FJnv; ~. ~LGh ~3ynv°t3 °'t~t" npt reduce any 6trsii~nii:~+7 i_c,^ati~n Gcnaral~ggrtrgzrke Li~rril. C. Ystiten cWV~r:age (:2r Ir.:~Ji±d'y' :~srrsin~ itt.', i.f 3h2 'tttrair~ty: Ccnnp.leted oFerc:ians ha~arrf' is pro- vieed, any ps~~menta fir ~:;ema;ss t~r:~u•.c iSt 'bcdi}• in;ury' or "ptep€:rty ~ta:rtta~~° nclu~Cl in tha "pt~,:du;it~-LdtttGlGttrc d:t~t=~klrlrl5 h:~ 3rtl" vrill r~d;ace k;te €'f~~dllii~-~cm~!r_ted QG=?rati-~rte Ata- cregaid Limit and rrCt tc,~iua ltl~ Gv.tieFal gre~ate Ltmlt rtrx ttt~ l)r±6~~nc~t?'1 Lr..r_.atinn i~a•t- Qr.=_lAGgrCga?~ Limii. a. Far tttu :t~r~c~s~s of th; ~nciar~;it~rt..he l~fi- i5itiutls `sev~=4n 13 ern=r~te;i by ?he sdditnn of the fn4iaaaing de?ini[ crt: `Ltr:sti~ort" tYCi:1t7~ ~r~";'irSE:; a't40iV n~ tf3 ~r.~tt1S 4(' Citlt'±3Gting 4Uk3, Ur f:r~mi=.FS •anr=,e cnnrteu- 'Inn i4 in±e-ru-rtedv-ily 6y a ~:reo> rtzatf+sc.}. ar~t- ':ertray ar rigs t-c =•aaay n_fa railroutj. E. [ Ilt~ Gri1VI8U71`:. c7t I Itnt5 41f Insutan :~= I ".L i IOt*I Ill! nn nr~r+;iss madifici by this cnilor~:ry-tr:rt :=hail cc•~t°'nua tc sc-p.y as ~ipulstvc. -12- Exe~IIaIT II~INII~tJNi Ii~PR®vE ENT Building Type: 2-Story Pre-Engineered & Conventional Building. Poured concrete grade beams on deep pile foundation. Pre-Engineered Building has steel frames with wall and roof purlins, metal roof and metal wall panels with some brick veneer. The second floor (concourse level) is precast deck on masonry walls. The conventional construction is masonry bearing with precast deck, brick and stone veneer and glass storefront., Includes Sitework Drives Walks and Seeding. The Minimum Improvements shall also include separate facility public restrooms with not less than three (3) toilets for men and three (3) toilets for women. If the restroom building on the Demised Premises as of the date of this Lease remains, it shall be accessible from the soccer field area and the parking lot area. If a new restroom is constructed, it shall be constructed at a location approved by Lessor. Lessor shall be responsible for the maintenance of the restrooms. Lessee shall restore all landscaping and seeding surrounding the Demised Premises after construction. Approximate Building Size: 62,340 s.f. Main Level 28,965 s.f. Concourse Level Approximate value: $6.276 million (excluding owner-supplied items, design costs and equipment like Zamboni, etc.). -13- LARRISON & ASSOCIATES architects Dubuque Community Ice & Recreation, Inc. i - -J IIL*i PIM sAIG91LL'\� ♦` � NM: A.e, \, ax1 emGnle a4R 1lawnu ="."-.e00211 KW. Spcb SEATS C -L NOM 511.1.4MINt Pocorrocnie axe STRIZIUC tlt0.T'USA LARRISON & ASSOCIATES architects 0 MN Dubuque Community Ice & Recreation, Inc. 1244 MOITC1114 FLOOR LEVEL