Dubuque Ice & Recreation Center_Development Agreement and ExhibitsDEVELOPMENT AGREEMENT
BETWEEN AND AMONG
THE CITY OF DUBUQUE, IOWA,
DUBUQUE ICE & RECREATION CENTER, INC.,
DUBUQUE RACING ASSOCIATION,
AND
BATTLEFIELD DUBUQUE, LLC
This DEVELOPMENT AGREEMENT (the Agreement), dated for reference
purposes the 5th day of October , 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
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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.
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(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:
Lease.
(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
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1.8 Real Estate Taxes. DICE shall pay all real estate taxes pursuant to the Lease
Agreement, if any.
SECTION 2. DEVELOPMENT 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
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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. COVENANTS 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 a decision-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.
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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. DRA/Mystique Casino shall be
shown as presenting partner/sponsor on all Arena marketing materials in any media.
DRA/Mystique Casino shall be shown as a presenting partner/sponsor on team
marketing materials pursuant to a plan mutually agreed to by Battlefield and
DRA/Mystique Casino.
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
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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.
7.3. 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 with Southwood Management, LLC (Southwood Management)
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.
Southwood Management will conduct a master scheduling meeting each year on or
about August 1st. Southwood Management's role is the role of coordinator of the
meeting only. At this meeting representatives from all interested ice user groups will
select dates and times for their activities.
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Once the schedule is completed, Southwood Management will forward the schedule to
the Arena Advisory Committee for approval. Southwood Management will publish the
approved schedule and maintain said schedule for all parties involved.
If an organization wishes to use the facility for a special event, be it ice or non-ice use,
the organization will be required to complete an event request form. This form will be
forwarded to the Arena Advisory Committee for their approval a minimum of 60 days
prior to the event. The 60 day minimum can only be waived by the affected group.
Before approving any changes in the facility master schedule the Arena Advisory
Committee will consult with the user that is being displaced to determine if a hardship
will occur. Special events are defined as any event that necessitates the covering of the
ice surface, installing a stage or utilizing the ice surface for a professional performance
similar in nature to a Disney on Ice type production. Special Events will be limited to no
more than 6 times per year.
SECTION 9. INDEMNIFICATION
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.
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(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
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.
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SECTION 10. EVENTS OF DEFAULT AND REMEDIES
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.
(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 law;
(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.
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(7) Failure by DICE, DRA, 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:
(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. GENERAL TERMS AND 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
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(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 Jests Avi les, 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
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 City 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
13
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 Agreement 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.
11.8 Entire Agreement. Other than that certain Future Funds Agreement, dated as of
April 30, 2007 (as may be further amended, restated or otherwise modified) by and
between DICE and DRA, this Agreement, including the exhibits hereto, and the other
Transaction Documents (as defined below) constitute the entire agreement between the
parties hereto and supersede any prior understandings, agreements, or representations
by or between such parties, written or oral, that relate in any way to the subject matter
hereof. For purposes of this Section 11.8, "Transaction Documents" means this
Agreement, including exhibits attached hereto, the Ice Usage Agreement, the Lease,
the Battlefield Escrow Agreement and any other agreements and other documents
contemplated to be delivered or executed in connection herewith or therewith.
CITY OF DUBUQUE, IOWA
By:
Roy D
BY.
Je
( / anne F. Schneider, City Clerk
uol, Mayor
14
October 5, 2009
Dated
DUBUQUE ICE 64 RECREATION CENTER, INC.
By:
F. Robert Woodward, III, President
PO Box 1816
Dubuque, IA 52004
15
DUBUQUE RACING ASSOCIATION, LTD., only as to paragraphs: 1.5, 1.6, 5.1, 7.2,
7.3, 8.2, 10.1(7), .2, 11.4, and 11.5.
By
Jestils A ;des
Presc\ien
1855 Greyhound Park Rd.
Dubuque IA 5001
16
10-/-cP7
Dated
BATTLEFIELD DUBUQUE, LLC, only as to 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.
/ 9
nan choenborn Dated
Vice President
17
EXHIBIT 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 1 Five Flags Ice Equipment
Exhibit J Fund Drawdown Schedule
EXHIBIT B
LEASE
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DUBUQUE COMMUNITY 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
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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 IMPROVEMENTS AND TRADE 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 no right,
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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. ENCUMBRANCE 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
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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
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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 OF 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
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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.
SECTION 11. INSURANCE
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 insureds with respect
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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 insured'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 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
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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 455B, 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
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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.
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(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 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 ( "Condemning
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. Each of
Lessee and Battlefield shall have the right to make claims for whatever damages it may
be entitled to as its interests may appear and each such party shall keep for its own
account whatever award, if any, is determined to be owing to such party. 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
100209balFinal
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(regarding the meeting and entertainment center) or Section 24.5 (regarding the hotel)
shall not be applicable.
SECTION 15. ASSIGNMENT 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.
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)
100209balFinal
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 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
100209ba1Final
-12-
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 DEFAULTS
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 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 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 ENJOYMENT
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. WAIVER
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.
100209ba1Final
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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. MEMORANDUM 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
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:
TO LESSEE:
100209ba1Final
City Manager
City of Dubuque, Iowa
50 West 13th Street
Dubuque, Iowa 52001
F. Robert Woodward, III,
PO Box 1816
Dubuque, IA 52004
-14-
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.
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
100209balFinal
-15-
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.
[SEAL]
Attest:
LESSOR:
CITY OF DUBUQUE, IOWA
By:
Jeanne F. Schneider, City Clerk Roy D. Buol, Mayor
100209balFinal
-16-
LESSEE:
DUBUQUE COMMUNITY ICE & RECREATION CENTER, INC.
By:
F. Robert Woodward, III, President
EXHIBIT LIST
Ex. A The Demised Premises
Ex. A -1
Insurance Schedule
Ex. B Minimum Improvements
EXHIBIT A
THE DEMISED PREMISES
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, as shown on the attached Exhibit A -1.
EXHIBIT A -1
-20-
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.
-22-
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
c) UMBRELLA EXCESS LIABILITY
LIQUOR OR DRAM SHOP LIABILITY
Coverage to be determined on a case by case basis by Finance Director.
Completion Checklist
❑ Certificate of Liability Insurance (2 pages)
❑ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages)
❑ Additional Insured 20 26 07 04
❑ Governmental Immunities Endorsement
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees
and states that the purchase of this policy and the including of the City of Dubuque,
Iowa as an Additional Insured does not waive any of the defenses of governmental
immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it
is now exists and as it may be amended from time to time.
2. Claims Coverage. The insurance carrier further agrees that this policy of
insurance shall cover only those claims not subject to the defense of governmental
immunity under the Code of Iowa Section 670.4 as it now exists and as it may be
amended from time to time. Those claims not subject to Code of Iowa Section 670.4
shall be covered by the terms and conditions of this insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be
responsible for asserting any defense of governmental immunity, and may do so at any
time and shall do so upon the timely written request of the insurance carrier.
4. Non - Denial of Coverage. The insurance carrier shall not deny coverage under
this policy and the insurance carrier shall not deny any of the rights and benefits
accruing to the City of Dubuque, Iowa under this policy for reasons of governmental
immunity unless and until a court of competent jurisdiction has ruled in favor of the
defense(s) of governmental immunity asserted by the City of Dubuque, Iowa.
No Other Change in Policy. The above preservation of governmental immunities shall
not otherwise change or alter the coverage available under the policy.
SPECIMEN
POLICY Numern
COMMERCIAL GENERAL LABILITY
Ce2026OTOt
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL. INSURED - DESIGNATED
PERSON OR ORGANIZATION
This endorsement modifies insurance provided under the folloviing:
OOMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Peraon(s) Or Organisation {s}
The City of Dubuque, including all its ele :tee and appointed
officials, all its eiipIoyees and volunteers, all its boards,
commissions and /or authorities and their board members,
employees and volunteers.
Information mound d 10 con q to this Schedule. E not shawl above, w ll be n in the Declarations.
.action 11 — Who Is An Insured is amended 10 in-
clude as an edditione insurod tho person(*) or organi
xation(s) shown in the Schedule, but only with respect
to bablbty for tarlily injury". "prupe-ly damage" or
"personal and advarrtsirg injury caused, in whole or
in part, by your eras or omissions or the acts or omii-
sions of those acting on your behalf
A. In the performance of your ongoing operations: or
B. in connection wlIn your premises owned by or
rtinlerl In yeg i
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7% OT ns
P
el ISO Properties. Inc.. 2004 Page 1 of 1
-25-
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LIABILITY
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POLICIES
CITY OF DUBUQUE
CITY HALL
50 W. 13TH STREET
UODUME. IA 52001
ACORD 281211011061
$011101.1.111100
SNOW) "CAW THEABDYE DEI CNUED MUMS CC CIFCCLLCD err r we nit
ERPIBATlON DATE T4E1E10F, THE MOANS U RIM IMI T✓fiLL ITNIODODDI ova
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AACORD CORPORATION 1865
IMPORTANT
If the oartiricatet holder Is an ADDII ICNAL INSURED. they puli yfr c) roust be ertJu gel. A statement
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If SUBROGATION 15 WAIVED. subject to the term and wndituna of lire p livy, ++mein policies may
require itt encbrserrent. A statement on this certiitvte does rrti metre etre r iyIih It Ihes eai+tifwale
holder in lieu of suet endorsemertt(s).
DISCLAIMER
The Certificate of insurance on the reverse side of tits form dorm not cunstilt& a crurdrad tattieerr
the issuing insurer(sl, aulhotized representative or peoduoer. and the oartllicatra bolder., rem Jets it
atlrnrativety or negatively attend, extend or atter the coverage afforded by the polities listed they ri el
SPECIMEN
*CORD 25 (2001fell
-27-
FOLICY NUMBER:
COMMERCIAL GENERAL LIABILITY
CG 2504 03 9?
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ n- CAREFULLY.
DESIGNATED LOCATION(S)
GENERAL. AGGREGATE LIMIT
This endorsement modd'res irsuranre provided under the knowing:
COMMERCIAL GENERAL LIARIE ITV COVERAGE PART
SCHEDULE
Designated Location{s}:
SPECIMEN
If no entre appears above. i'formaticn required to complete this endorsement wit he thc vn in the Declarations
as amicable to this encarsenent.l
A. For all rums which the ireu -ed bernmes legally
obligated to pay as damages caused
"occurrences" uncles C..OVERAGE A (SECTION
lj. and fo- all medical expenses caused try acc-
denis under COVERAGE C (SECTION I), whir
can be attributed only to operations at a single
designated location" shown in the Scicduro
above:
1, A se0arate Designated Location General
Aggregate Limit applies to each designated
location', and that knit is equal to the
*mount of the General Aggregate Lim t
ahcavn in the Declarations
2. The Designated Location Generar Aggregate
limit iu the must we will pay for the sum of all
damages under COVCRAGC A, except dam-
ages because 01 'bodily injury' or "p operty
damage` included in the 'products.compleled
operaions hazard". and for medical exFerees
under COVERcGE C regardless of the num-
ber of
a. insureds.
b. Claims made or *suns' tauugl,l, ra
c. Persons or organizarir ns makieg claims
or bringing' sults'.
3. Any payments made under COVERAGE A
ler damps or under COVERAGE C for
medical expenses shall recluse tte Desig-
nated Location Geienil Aggregate Lirnit for
it designated 'location ". th payments
shall not reduce the General Aggregte limit
shown in the f arelirxia nor stall they re-
duce any other Designated Location General
Aggregate Limit for any other designated
location' shown in the Schedure above,
A. The limits shown in the Declarations for Each
Occurrence Fire Damage and Medical Ex-
perse continue to apply. However, instead of
being subject to the General Aggregate Limit
shaver in the Declarations, such limns wd be
subject to the iipplicatie Designated Location
Carlene! Aggregate 1. in* it
B.Fci all suns which the iit r 1 becomes iegaltyr
obligated to pay as demagea caused by
`occurrences'' under COVERAGE A ;SECTION
1). and for all medical expenses caused by �acri-
dents under COVERAGE C (SECTION 1). which
cannot be attributed only to operators at a sin-
gle designated 'location` shown in the Schedule
above.
1. My payments made urxfer COVERAGE A
for darters or .ender COVERAGE C 'or
medical expenses shall reduce the amount
available under tha General al Aggregate Limit
Of the Praduccs- Gurtpltt d Operations Ag-
wregate Limit whichever is applicable; and
Z ut.ch paynrerte shelf not reds, any Designated
Locaripe General Aggregate Limit.
C. When coverage fur liaaility► arising ow cf the
°praduotc completed operations hazard' ie pro-
viced, any payments for damages because of
'bodiry injury" or ..properly damage" ncluded in
the "products-completed operations hazard' will
reduce the Products-Completed Operations Ag-
gregate Limit . and not reduce the General Ag-
gregate Lent nor the Designated Location Gen-
eral Aggregate Limit.
Q. For the purposes of IW endorsement. the Defi-
nitions Section is rimed by the addition of
the following definition:
- Localicrt" means premises invoivng the sane
or connecting tats, or premises wlosis connec-
tion Is trite-ruoted only by a street. roadway. W-d-
terway or right -cif -way of a railroad.
E. 1 he proviscons of Limits Of Insuran a (SECTION
of) not otterwlse modified by this endorsement
shall within to apply as aiipulabce.
SPECIMEN
EXHIBIT B
MINIMUM IMPROVEMENTS
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.).
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EXHIBIT C
OPINION OF COUNSEL TO DICE
Stephen W. Scott
Darin S. Harmont
Dean J. Konrardy*
Cory R. Thein
Brian W. Peters
Hillary J. Friedmann
Douglas Q. Davis, 11
Of Counsel
Arnold J. Van Etten
David F. Setter
KINTZINGER LAW FIRM, P.L.C.
An Iowa Professional Limited Company
Established in 1897
ATTORNEYS AT LAW
DUBUQUE OFFICE
100 West 12* Street '
P. O. Box 703
Dubuque, Iowa 52004 -0703
Telephone
563- 588 -0547
Facsimile
563 -588 -1981
Website
kintzlaw.com
*Also licensed in Illinois Charles A. Kintzinger
tAiso licensed in Wisconsin (1925 -1999)
Thursday, September 17, 2009
Mayor and City Councilmembers
City Hall
13th and Central Avenue
Dubuque, IA 52001
Re: Development Agreement Between and Among the City of Dubuque, Iowa, Dubuque
Ice & Recreation Centdr, Inc., Dubuque Racing Association, and Battlefield
Ventures, LLC.
Dear Mayor 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 identified to our
satisfaction as being true copies, of the Development Agreement and such other documents and
records as wehave deemed relevant and necessary as a basis for the opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries as we have
deemed appropriate, we are of the opinion that:
1. To the best of our knowledge DICE is a nonprofit corporation organized and existing
under the laws of the State of Iowa and has full power and authority to execute, deliver and perform
in full the Development Agreement. Development Agreement has been duly and validly 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 of trust, indebtedness, agreement, judgment, decree, order, 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 or 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
By:
DSH/lmb
L•WSeraINOSEY`Oelin NmnmWkwm$yurll
GER LAW FIRM, P.L.C.
Darin S. Harmon
Hannon @kintzlaw.com
EXHIBIT D
MINIMUM IMPROVEMENTS
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 Tess 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.).
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EXHIBIT E
MEMORANDUM OF DEVELOPMENT AGREEMENT
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583 -4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583 -4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
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 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, as shown on the attached Exhibit A -1.
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 DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
By:
Jeanne F. Schneider, City Clerk
STATE OF IOWA
ss:
DUBUQUE COUNTY
On this day of , 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
EXHIBIT F
MANAGEMENT AGREEMENT
• FACILITY MANAGEMENT AGREEMENT
THIS FACILITY MANAGEMENT AGREEMENT (the "Agreement ") is made and entered
into as of this October 1, 2009 by and between Dubuque Community Ice & 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:
1. Retention of Manager. DICE 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 forth 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 following 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.
1
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
and/or 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 for approval.
5. Scheduling Responsibilities. 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, tearn to skate, youth hockey, figure skating, broomball, adult
hockey, birthday parties and similar ice - related activities.
Southwood Management will conduct a master scheduling meeting each year on
or about August 1st. Southwood Management's role is the role of coordinator of
the meeting only. At this meeting representatives from all interested ice user
groups will select dates and times for their activities.
Once the schedule is completed, Southwood Management will forward the
schedule to the Arena Advisory Committee for approval. , Southwood
Management will publish the approved schedule and maintain said schedule for
all parties involved.
If an organization wishes to use the facility for a special event, be it ice or non -ice
use, the organization will be required to complete an event request form. This
form will be forwarded to the Arena Advisory Committee for their approval a
minimum of 60 days prior to the event. The 60 day minimum can only be waived
by the affected group. Before approving any changes in the facility master
schedule the Arena Advisory Committee will consult with the user that is being
displaced to determine if a hardship will occur. Special events are defined as
any event that necessitates the covering of the ice surface, installing a stage or
utilizing the ice surface for a professional performance similar in nature to a
Disney on Ice type production. Special Events will be limited to no more than 6
times per year.
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, control 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.
2
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.
1. 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 for
selected events at the Facility.
7. Expenses. During the term of this Agreement, SM shall bill and DICE shall
reimburse him for all reasonable and approved out-of-pocket 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"). This agreement
may be extended by mutuel agreement of the parties. Either party shall have the
right to terminate this Agreement upon sixty (60) days notice. Upon termination,
all obligations of the parties hereunder shall cease. SM shall 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 failure 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 Facility. 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 DICE 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.
3
a. The SM shall not use or permit to be used any property of DICE other than
for its intended purpose.
b. This Agreement and the Exhibits attached hereto embodies the entire
Agreement between DICE and SM, and there are no other
representations, promises, agreements, conditions or understandings,
either oral or written, between DICE 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 shall 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 or 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 fully 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 not 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. All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or 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
4
Agreement, or the application of such provision to persons or
circumstances other than those as to which it is held invalid, shall not be
affected thereby.
11. 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. D10E's sole remedy for 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:
Dubuque Community Ice &
Recreation Center, Inc.
By: . G,/ C
Name: F. Robert Woodward, III
SM:
Southwood Management, I:,I,C.
Name: Brian D. Southwood
Title: President Title: Managing Men-
5
Exhibit A
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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.
7
EXHIBIT G
ICE USAGE AGREEMENT
DUBUQUE COMMUNITY ICE & RECREATION CENTER, INC.
ICE USAGE AGREEMENT
THIS ICE USAGE AGREEMENT ( "Agreement ") is hereby made and entered
into by and between Battlefield Dubuque, LLC, its successors or assigns, a Minnesota
limited liability company authorized to do business in Iowa ( "Battlefield ") and Dubuque
Community Ice & Recreation Center, Inc. ( "DICE "). As used herein, the term Battlefield
shall include all owners, players, employees and agents of Battlefield.
WHEREAS, DICE is constructing an arena on land located on Schmitt Island,
Dubuque, Iowa (the "Arena "); and
WHEREAS, the City of Dubuque is leasing to DICE the land for the Arena and
the Dubuque Racing Association has pledged One Million Dollars ($1,000,000) to assist
DICE in the building of the Arena; _
WHEREAS, Battlefield owns a United States Hockey League, Inc. ( "USHL ")
member team and desires to locate and operate such member team in Dubuque, Iowa,
where the team name of such franchise will be "The Fighting Saints"; and
WHEREAS, DICE and Battlefield have agreed to the terms associated with the
occupancy and use of the Arena for business operations, team administration, practices
and games by Battlefield subject to certain terms and conditions set forth herein; and
WHEREAS, Battlefield and DICE wish to document herein the terms and
conditions associated with Battlefield's use and occupancy of the Arena.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained the sufficiency and receipt of which are acknowledged, the parties do
hereby mutually undertake, promise, agree and contract each for itself and its successors
and assigns as follows:
1. Ice Usage Agreement. Subject to the agreements, conditions and provisions
contained in this Agreement, and subject to the City of Dubuque and DICE entering
into a lease for the Arena upon terms 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, conducting practices, potentially presenting the USHL All Star Game
and USHL Fall Classic, operating the business and hockey operations and perforining
activities directly incidental thereto (the "Intended Purposes "). DICE agrees to allow
Battlefield to use such portions of the Arena that are necessary for the Intended
Purpose, including but not limited to the ice arena, home team and visiting teani
locker rooms, seating (except as otherwise provided herein), concession space, office
space, common areas and any other areas reasonably necessary to carry out the
Intended Purpose. Upon compliance with the terms and conditions of this Agreement,
Final 03/04/09
DICE shall permit Battlefield to have, hold and enjoy peaceably and quietly the use
of' the Arena for the Intended Purposes and for the term set forth below. Battlefield
shall quit and surrender the Arena (including the office space provided herein) at the
end of the Term as provided in this Agreement in the same condition as at the date of
the commencement of such use, ordinary wear and tear excepted. "Battlefield Ice
Hockey Game(s)" shall be defined for purposes of this Agreement to include all
Battlefield home ice hockey exhibition pre- season, regular season or playoff games as
well as USHL All Star and USHL Fall Classic games. Battlefield Ice Hockey Games
shall not exceed 42 in any given season without the express written consent of DICE.
Battlefield will play all Battlefield Ice Hockey Games at the Arena, unless both
parties hereto agree otherwise.
2. Term. The term of this Agreement shall comrnence upon execution of this
Agreement and terminate on May 31, 2030 the Tenn). One year prior to the
termination of this Agreement, the parties shall negotiate in good faith for a new Ice
Usage Agreement. This new Ice Usage Agreement may include any and all
amendments that exist at the time of negotiation. Any new Ice Usage Agreement will
attempt to be true to the past and include, wherever possible, similar terms and overall
structure to this Agreement. .
3. Rent. Battlefield shall pay DICE rent for the Arena in the amounts and manner as set
forth in this Section 3 during the Term. Additionally, DICE shall also be responsible
for providing equipment needed to operate the Arena and conduct Battlefield Ice
Hockey Games as set forth in this Section 3 during the Term.
3.1. Base Rent. Battlefield shall pay to DICE for the use of the Arena base rent equal
to the amounts and at the times set forth in the table below ( "Base Rent ").
RENT
'avment Due Date -
$500,000.00
On or before November 20, 2009
$500,000.00
On or before January 15, 2010
On or before May 15, 2010
$1,100,000.00
$1,100,000.00
On or Before August 15, 2010
Battlefield has placed $100,000.00 in escrow with Dubuque Bank & Trust as
evidence of its commitment to move its USHL membership to Dubuque and
occupy the Arena. To secure the payment of the Base Rent, no later than
Noon on September 3, 2009, Battlefield shall provide funds equaling $3.2
million. These funds may be in the form of escrowed funds, cash, an
irrevocable letter of credit in a form acceptable to City and DICE from a
United States bank, or a combination of them. The irrevocable letter of credit
will be in force until such time as the $3,200,000 of rent is paid in full.
If this timeline is not met, this agreement is terminated. The termination of
this agreement 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.
Final 08/04/09 2
Upon receipt by DICE, DICE shall instruct Dubuque Bank & Trust to return
the $100,000.00 escrow funds and accrued interest to Battlefield. As set
forth in the Escrow Agreement between DICE, Battlefield- and Dubuque
Bank & Trust, the escrow funds will become DICE's property in the event
this Agreement is not finalized by August 15, 2009, due to the action or
inaction of Battlefield.
Battlefield and its individual members shall have the right to substitute
charitable contributions to DICE for Base Rent payments as set forth herein.
The substitution shall in no way affect the amount or timing of payments.
3.2. Additional Rent. Battlefield shall also pay to DICE $25,000.00 per year as
additional rent for years 6 to 20 of the Term ( "Additional Rent "). Additional
Rent shall be paid at the end of each season (deemed herein as June 1st)
commencing at the end of the 2015 -2016 season, and ending at the end of the
2029 -2030 season.
3.3. Capital Improvement Funding. DICE shall contribute a minimum of
$10,000.00 and a maximum $25,000.00 per year in Arena capital improvement
funding to be allocated as DICE deems in its sole and absolute discretion for
years 11 to 20 of the Term ( "Capital Improvement Funding ") paid (and
improvements completed) prior to the start of each season. Battlefield agrees to
match DICE's Capital Improvement Funding up to a maximum of $25,000.00
per year. For example, in any particular year, DICE's contribution of $25,000
would lead to an equal contribution from Battlefield, for a total of $50,000 in
Capital Improvement Funding. Improvements are based on a list of
improvements suggested by the Arena Advisory Board. DICE and Battlefield's
payments shall be made on or before August 15 of the respective year.
4. Scheduled Dates
4.1. Rome Games. The parties agree that all horn Battlefield Ice Hockey Games
shall be played. at the Arena, unless otherwise approved by the parties in writing.
Such games shall generally be scheduled between September 1'l and June 1st
each year during the Term (the "Hockey Season "). For ice scheduling purposes,
Battlefield shall be considered a significant user of the Arena and shall have first
priority for the dates and times of its Ice Hockey Games. Not later than May Ist
of each year, the Arena Advisory Board shall provide Battlefield with
confirmation of the dates Battlefield has selected so it may submit those dates to
the USHL for compilation of the USHL's master schedule. Battlefield shall
provide the Arena Advisory Board with written notification of the USHL's final
master schedule immediately upon release and therefore allow the Arena
Advisory Board to release held dates to other users that were not used in
compilation of the USIIL schedule. Any Battlefield Ice Hockey Games that must
be rescheduled after the master USHL schedule is released is subject to written
approval of the Arena Advisory Board.
Final 08!04 /09 3
4.2. Playoff Games. Notwithstanding the foregoing Battlefield shall notify the Arena
Advisory Board as soon as practicable if Battlefield shall require use of the Arena
for any playoff games occurring after the completion of the regular Hockey
Season ( "Playoff Games "). The Arena Advisory Board shall make the Arena and
leased premises available for such Playoff Games, and shall work to move or
reschedule other activities that may be scheduled on proposed Playoff Game
dates, especially Friday or Saturday nights. Upon elimination from playoff
contention, Battlefield and the Arena Advisory Board shall release any dates
previously scheduled for Playoff Games.
4.3. Tryout Camp. For a period of five (5) consecutive days during the last week of
May through June 21st during each year of the Term, except for the final year of
this Agreement, Battlefield shall be entitled to access to the Arena between the
hours of 8 am and 10 p.m, for the purpose of hosting a USHL Tryout Camp
( "Tryouts "). The exact dates and times of the Tryouts shall be .provided to the
Arena Advisory Board no later than the April 151 immediately preceding such
Tryouts. Battlefield shall be entitled to access to the ice surface, penalty boxes,
media room and player benches as well as to all locker rooms during this period
of tune. No additional rental fee will be payable by Battlefield for this access.
5. Settlement, Box Office, Services and Fees
5.1. Ticket Sales. Battlefield shall provide and operate the ticketing system used in
the Arena for Battlefield Ice Hockey Games during normal Arena business hours.
Battlefield shall perform all duties normally associated with the Arena box office
function for the sale of all single game tickets for Battlefield Ice Hockey Games.
Such activities shall include, but not be Iimited to, the sale of single game tickets,
accounting procedures associated with Battlefield Ice Hockey Gaines, the
settlement of ticket sales and other revenues from garde expenses and other
similar functions.
5.2. Complirnentary Tickets. Battlefield shall provide DICE ten (10) complimentary
tickets for each Battlefield home Ice Hockey Game and any USHL playoff
games or other USHL sanctioned games played at the Arena ("the Battlefield
Complimentary Tickets "). In the event DICE does not use some or all of the
Battlefield Complimentary Tickets for a given Ice Hockey Game, DICE shall
notify Battlefield and Battlefield may sell such unused Battlefield
Complimentary Tickets.
5.3. Concession Revenue. Battlefield shall receive 55% of the gross concession
revenue from food and beverages sold in the Arena at all Battlefield Ice Hockey
Games. All remaining revenue at all Battlefield Ice Hockey Ganges shall be the
property of DICE or DICE's manager.
Final 08/04/09 4
Battlefield shall not receive any concession revenue from any non Battlefield Ice
Hockey Games. In the event Battlefield is asked to assist with the promotion or
coordination of other events, the parties shall negotiate a reasonable cornmission
or other consideration to compensate Battlefield for its assistance.
6. Seating. The ticketing capacity of the Arena is approximately 3,200. Battlefield shall
not add or sell tickets exceeding such capacity without the express written consent of
the DICE or Arena Manager.
7. Sponsorship
7.1. Scoreboard and other Signage. Battlefield and DICE shall work together to
obtain all scoreboards. DICE agrees to maintain, in good and proper operating
condition, a center - hung - scoreboard within the Arena. Except as set forth in
Exhibit "7.1" hereto, Battlefield shall have the sole _turd exclusive right to sell
sponsorships on or related to scoreboards and other indoor and outdoor
permanent and temporary signage and reader boards, and receive all proceeds
there from subject to DICE's approval which will not be unreasonable withheld.
Furthermore, Battlefield shall have the right to meet with and solicit the sponsors
listed on Exhibit "7.1" with any increase in sponsorship or support going entirely
to Battlefield. Such amounts paid to DICE will be remitted to Battlefield within
ten (10) days of receipt by DICE. Battlefield shall have the right to solicit and
sell sponsorships other marketing and advertising opportunities and inventory for
signage located within the Arena (other than inventory identified in Exhibit
"7.1 ") (subject, however, to DICE's approval which will not be unreasonable
withheld). All proceeds derived from the sale of such sponsorships shall be paid
directly from the sponsors to Battlefield. Additionally, upon expiration of the
naming and sponsorship opportunities set forth on Exhibit "7.1 ", those
opportunities and that inventory shall become the sole property of Battlefield and
may be sold by Battlefield for whatever amount and for whatever duration it
wishes with all proceeds there from going to Battlefield. Battlefield agrees that
during the Term of the Agreement that it shall not sell sponsorships or
advertisement to the Diamond Jo Casino or its successors or assigns. Battlefield
has the right to sell all the sponsorships it can, however and wherever possible.
DICE or its designee will work with its primary beverage vendors (soda and
beer) to secure favorable pricing and amenities for the Arena, including securing
the physical scoreboards themselves.
7.2. Dasher boards, Ice Surface and Bench boards. Except as set forth in Ex. 7.1
hereto, Battlefield shall have the right to solicit and sell dasher board
sponsorships, imbedded ice promotions and bench board sponsorships (subject,
however, to DICE's approval which will not be unreasonable withheld), and to
retain all revenue from same; provided, however, that in the event DICE sells
these advertisements, subject to advance written approval from Battlefield, not to
be unreasonably withheld, DICE shall be entitled to a ten percent (10%)
commission on the net proceeds after expenses. In the event a sponsor pays for a
Final 08/04109 5
sponsorship in installments, the deduction of the commission shall be calculated
as ten percent (10 %) of the installment amount and not the aggregate sponsorship
amount.
7.3. Ice Resurfacing Machine. DICE has already solicited and sold the sponsorship
in perpetuity for one ice resurfacing machine, Battlefield shall have the right to
solicit and sell sponsorship on any other ice resurfacing machine(s). In the event
DICE sells such sponsorship rights, subject to advance written approval from
Battlefield, not to be unreasonably withheld, DICE shall be entitled to a ten
percent (10 %) commission of net proceeds after expenses. In the event a sponsor
pays for a sponsorship in installments, the deduction of the commission shall be
calculated as ten percent (10 %) of the installment amount and not the aggregate
sponsorship amount. If a 2" d Ice Resurfacing machine is used, the machines shall
be alternated to ensure both sponsors receive credit.
7.4. Cooperation. DICE and Battlefield agree to work together to maximize
sponsorship revenue by potentially packaging the sponsorship opportunities
described above whenever possible. Is this enforceable?
8. Novelties. DICE grants Battlefield the right to sell novelties and souvenir items
immediately prior to, during and immediately after Battlefield Ice Hockey Games in
areas designated by the Arena Manager. Novelties shall include, but not be limited to,
shirts, sweatshirts, hats, t- shirts, team jerseys and other similar clothing, and pucks,
sticks, pennants and other articles ( "Novelties "). Battlefield shall, at its expense,
provide all such Novelties and all sales people necessary to carry out such sales.
Battlefield is entitled to all revenue generated from the sale of Novelties.
9. Food and Beverage Revenue. DICE's management designee shall have the
exclusive right to operate and control, all food and beverage sales, including alcoholic
beverage sales, during Battlefield Ice Hockey Gaines and collect all revenue there
from. Battlefield shall receive 55% of the gross revenue from all food and beverage
sales during Battlefield Ice Hockey Games. DICE'S management designee shall
obtain a liquor license from the City of Dubuque to sell alcoholic beverages at its sole
expense, including obtaining the appropriate dram shop insurance. DICE or its
management designee shall have the exclusive right to sell alcoholic beverages in the
Arena. All concession furniture, fixtures and equipment shall be provided by DICE,
or its management designee. DICE shall be required to turn off all vending machines
and close all lobby and other non -Arena food and beverage operations one hour
before, during and one hour after the conclusion of all Battlefield Ice Hockey Games
held in the Arena..
10. Use of Arena. Battlefield agrees to conduct its activities in the Arena so as not to
endanger any person therein. Battlefield's use of the Arena shall at all times be
consistent with the Intended Purposes.
Final 08/04/09
10.1. Removal Rights. Battlefield reserves the right 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 hereby waives any right
and all claims for damages during the Battlefield Ice Hockey Games.
At all other times, DICE reserves the right to eject any objectionable person or
persons from the Arena or leased areas thereof, and, upon the exercise of this
authority through DICE's agents or police officers, Battlefield hereby waives
any right and all claims for damages during non-Ice Hockey Games.
10.2. No Use of Machinery. Battlefield shall not, without the written consent of
DICE, put up or operate any engine or machinery or motor in the Arena or use
oils, burning fluids, camphene, kerosene, naphtha or gasoline for either
mechanical or other purposes or any agent, other than gas or electricity, for
illuminating the Arena thereof.
10.3. Facility Rules and Regulations. Battlefield further covenants and agrees to
observe and abide by the rules and regulations governing the use of the Arena
promulgated by the Arena Manager and Arena Advisory Board and amended
from time to time (the "Facility Rules and Regulations"), incorporated herein
by this reference, so long as those Facility Rules and Regulations are
reasonable. Battlefield shall act in cooperation with the Arena Manager to
cause its servants, agents, employees, players, licensees, patrons, invitees and
guests to abide by the then current Facility Rules and Regulations. No Facility
Rule or Regulation shall be promulgated that restricts the sale and
consumption of alcoholic beverages during Battlefield Ice Hockey Games,
beyond those general restrictions contained in the ordinances of the City of
Dubuque, Iowa. In the event of any conflict between this Agreement and the
Facility Rules and Regulations, the terms of this Agreement shall control.
10.4. Arena Use. The Arena and the keys thereto shall at all times remain under the
charge and control of both DICE and Battlefield or their designees. Battlefield
shall not permit the Arena to be used for lodging rooms or for any illegal,
improper, immoral or objectionable purpose or as DICE shall determine in its
sole discretion. Battlefield shall not obstruct or interfere with the rights of
other Arena tenants or injure or annoy them or as DICE shall determine in its
sole discretion. All keys shall remain the property of DICE and shall not be
duplicated and shall be returned at the tennination of the Agreement.
10.5. Laws. Battlefield will comply with all laws of the United States and the State
of Iowa, and with respect to this Agreement and the use of the Arena,
Battlefield will comply with all ordinances of the City of Dubuque and all
rules and requirements of the police and fire departments or other municipal
authorities of Dubuque. Battlefield will obtain and pay for all necessary
permits and licenses and will not do or suffer to be done anything in the Arena
or leased areas thereof during the Tenn of this Agreement in violation of any
Final 08l04f09 7
such laws, ordinances, rules or requirements, and, if the attention of
Battlefield is called to any such violation on the part of Battlefield or of any
person employed by or admitted to the Arena or leased areas thereof by
Battlefield, Battlefield will immediately desist from or correct such violation.
10.6. Arena Damage. Battlefield shall not injure, mar or in any manner deface the
Arena or cause or permit the same to be done, and will not drive or permit to
be driven nails, hooks, tacks or screws into any part of the building and will
not make or allow to be made any alterations of any kind therein without the
express written permission of DICE.
10.7. Arena Premises. Battlefield shall act to bar from admittance into the Arena
thereof a larger number of persons than can safely and freely move about and
in said rented areas, and the decision of Battlefield, or its designee, in this
respect shall be final. Battlefield shall not place any chair or movable object in
any passageways and will _keep passageways clear at all times. Battlefield
shall not obstruct or use for any purpose, other than ingress and egress of the
Arena, any portion of the sidewalks, entries, passages, vestibules, balls,
elevators or stairways, or access to public utilities of said building. Battlefield
shall not cover or obstruct the doors, stairways or openings that reflect or
admit light into any place in the building. Battlefield shall use the water
closets or other water apparatus only for the purpose which they were
constructed, 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 persons
attending any Ice Hockey Game or tournament game sponsored by Battlefield
held in the Arena, and Battlefield or any person in Battlefield's employ shall
not collect or interfere with the collection or custody of such articles.
10.9. Arena, Structural Changes. DICE is coordinating and causing the Arena to
be built 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 determined by DICE. Those plans are attached hereto as Exhibit
"10.9 ". Minor internal structure and cosmetic changes shall be allowed so
long as they do not increase the cost of the facility and jeopardize timelines.
Any cost increases to the $6.6 million budget would be borne by the party
responsible for the increase based on alterations not included in the agreed to
and final architecture drawings. Any cost savings under the six million six
hundred thousand dollars ($6.6 million) budget will be shared by the parties
pro rata based on contributions by Battlefield and DICE contributing in kind
contributions with the cost savings coming out of the rent payment(s)
immediately following the determination of the cost savings.
Finn! 08/04/09 8
11. Utilities and Maintenance. DICE shall provide, at its own expense, the following
utilities and maintenance services to the Arena:
11.1. Heat and Cooling. DICE shall provide adequate and mutually acceptable for
the Arena and leased premises, when required by the season and for the use of
the Arena for the Intended Purposes. It is the understanding of DICE and
Battlefield if the Arena needs air conditioning and /or additional electrical use
during the off season, DICE and/or DRA must provide same, as they shall
agree.
11.2. Lighting. DICE shall provide Iighting for use of the Arena in accordance with
the Intended Purposes;
11.3. Water. DICE shall provide water by means of the appliances installed for
ordinary water closet purposes, and for the making and maintaining of the ice
sheet, and for concession purposes; and
11.4. Cleaning. DICE or Arena Manager shall provide Arena cleaning, including
post -Ice Hockey Game cleaning, such as is necessary on account of the public,
to keep the Arena in a clean and usable condition.
12. Parking. Arena patrons shall not be charged for parking. In the event the parties
determine it to c be in their best interest to charge for parking, the fee must be
reasonable and the net proceeds there from shall be divided equally between the
parties. This Agreement is only for the Arena. Parking is not a part of the leased
premises.
13. Facilities. DICE shall provide or make available for use by Battlefield the following
facilities:
13.1. Locker Rooms. DICE shall make available to Battlefield the use of two
locker rooms throughout the Hockey Season. The locker room for Battlefield
shall consist of the basic facilities, including a training room, medical room,
player change room, coaches' office /dressing room, showers, sinks, toilets,
and benches. The locker room for the visiting team shall consist of the basic
facilities, including coaches' meeting area, showers, sinks, toilets, and
benches. Battlefield shall be responsible for all additional finishes, furnishings
and fixtures above the basic facilities provided by DICE as well as any special
equipment, including, but not limited to, furniture, whirlpools, hot tubs,
saunas, exercise equipment, video monitoring /editing equipment and similar
equipment. Battlefield shall have exclusive use of Battlefield home locker
room during each Hockey Season throughout the Tenn and shall maintain the
locker rooms in a professional manner. DICE shall have the right to use
Battlefield's exclusive home locker room on occasion upon permission by
Battlefield, which shall not be unreasonably withheld.
Finn! 08/04/09 9
13.2. Personal Property. Neither DICE nor Arena Manager shall not be
responsible for any lost, stolen, or damaged equipment, valuables, personal
effects or any other items ("Personal Property") stored, left or placed in the
locker rooms for any period of time. Battlefield shall remove its Personal
Property on or before the end of the Hockey Season or upon forty -eight (48)
hours prior written notice from DICE during the Hockey Season if the locker
rooms are needed for another event at the Arena. Battlefield shall defend,
indemnify and hold DICE and the City of Dubuque harmless from and against
any claim, demand, or action regarding the loss, theft, or damage to any
Personal Property in the locker rooms.
13.3. Ice Rink. DICE shall provide an ice rink complete with rink boards, penalty
boxes and player benches for all practices and Battlefield Ice Hockey Games
dining each Hockey Season throughout the Term. DICE shall maintain ice
from August 15 through the end of the Tryout Camp as. stated in Section 4.3
above.
13.4. Media Room. DICE shall provide a media room for use by the media and
visiting USHL representatives during training camps and immediately prior
to during and after Battlefield Ice Hockey Gaines during each Hockey Season
throughout the Term.
13.5. Office Space. During the Term, DICE shall provide, at no additional cost to
Battlefield, the exclusive use of office space at the Arena comprised of
approximately five hundred (500) square feet for the purpose of managing,
administering and operating the USHL member team. Battlefield will be
responsible for furnishing, equipping and supplying the office space. DICE
will work with Battlefield to establish a telephone system and internet access
for the office space, however all costs associated with the provision of these
services and equipment will be charged to Battlefield at DICE's standard
charge rates. Battlefield shall have full access to the office space.
13.6. USHL Guidelines. All facilities provided by DICE to Battlefield pursuant to
this Section shall be in a form and condition generally consistent with the
guidelines published by the USHL for the administration and operation of
USHL member teams. The parties recognize that Battlefield shall inspect all
such facilities at the Arena and confirm that all such facilities, in their as -built
condition, meet or exceed such. guidelines. Notwithstanding the foregoing, in
the event Battlefield provide DICE with written notification that any facility
identified above does not comply with the USHL guidelines, and if
modifications to the facility for compliance will not cause DICE to incur any
material capital expenditures, as determined in DICE's sole discretion, then
DICE shall make the necessary improvements for compliance. Battlefield
shall immediately serve DICE with the USHL guidelines. After construction
Final 06/04109 10
any changes to comply with USHL guidelines shall be at the cost of
Battlefield.
13.7. Luxury Boxes. Battlefield shall have the sole and exclusive right to sell suites
and luxury boxes for its Battlefield Ice Hockey Games and for all other events
at the Arena. Battlefield shall be responsible for all furniture, fixtures and
equipment in luxury boxes located at the Arena. Luxury boxes are available
for lease from Battlefield.
14. Practice Time. DICE shall provide Battlefield use of the Ice Rink at the Arena for
practice subject to other scheduled events (including, without limitation, scheduled
intercollegiate hockey games or practices), maintenance and operational needs as
determined in the Arena Manager's sole discretion. The Arena Manager shall
provide Battlefield use of the Ice Rink daily at no charge during normal business
hours (Sam- 3:30pm central time) Monday - Friday when the Arena is configured for
hockey and available as set forth in this Section 14 upon 48 hour notice. Once the
practice schedule is set, it may not be changed without the Arena Advisory Board's
approval. If practice occurs before 6:00 am or between 10:00 pm and 12 am,
Battlefield shall pay DICE for personnel standard rates required to accommodate such
practice at Arena's standard charge rates. In addition, if the Arena is not configured
for hockey on the day Battlefield wishes to practice, Battlefield shall pay DICE for all
costs incurred by DICE to convert the Arena to hockey configuration including, but
not limited to, personnel, equipment and utilities, all at DICE's standard charge rates.
The practice time for Battlefield will be set between the hours of 8:00 a.m. and 3:30
p.m., for a period of approximately two hours.
15. Personnel. Battlefield or the USHL shall provide, at no expense to DICE, the game
personnel for each Ice Hockey Game, including, but not limited to, referees,
scorekeeper, timekeeper and public address announcer. The party designated below,
or its agent or contractor shall, at that party's sole expense, provide the additional
personnel set forth below in a commercially reasonable manner for each Battlefield
Ice Hockey Game:
15.1. Event Staff. Battlefield shall provide event supervisors, event leads, ticket
takers, ticket sellers, ushers, guest services staff and concierge personnel as
reasonably determined by Battlefield.
15.2. Security Staff. Battlefield shall provide appropriate uniformed and/or non -
uniformed law enforcement personnel and crowd managers. Such security
personnel shall remain on duty until the Arena is cleared of the general public.
15.3. Maintenance Staff /Cleaning. DICE'S management designee shall provide all
staff reasonably necessary to maintain the physical support services of the
Arena during Battlefield Ice Hockey Games. This shall include, but not be
limited to, maintaining the ice surface, HVAC system and electrical system,
and providing an ice resurfacing machine operator for each ice resurfacing
Final 08/04/09 l 1
machine used by Battlefield. DICE'S management designee shall also provide
cleaning crews to maintain the Arena, public areas and private areas in a clean
condition such as is customary in public venues of this kind and reasonably
acceptable to DICE during and after all Battlefield Ice Hockey Games.
15.4. Pregame Setup/Post game Striking. Battlefield shall provide all staff and
related expenses incurred to provide for the set -up and tear down for all
Battlefield Ice Hockey Games (except that any removal or reinstallation of the
dasher boards or ice sheet shall be performed by DICE at DICE's expense).
15.5. Box Office Manager/Ticket Seller. Battlefield shall provide a box office
manager and staff to provide the services as set forth herein.
15.6. Emergency Medical Technicians ( "EMTs "). Battlefield shall provide EMTs
to serve spectators, employees and players participating in Battlefield Ice
Hockey Games.
15.7. Additional Services. Battlefield shall provide game technicians and spotlight
operators as required to operate any Arena sound, lighting or other operating
system.
16. Intellectual and Proprietary Rights
16.1. DICE Rights. DICE shall retain any and all rights, title and interest 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 grants to Battlefield a license to use the name of the Arena on any
novelty unless advised otherwise in writing by DICE.
16.2. Battlefield Rights. Battlefield hereby grants to DICE a non - exclusive
worldwide license and right to use the Battlefield and Dubuque Fighting
Saints name and logo in promotion of the Arena in all media. DICE shall have
the right to display Battlefield's name and logo, including any names or logos
associated with the USHL .team owned by Battlefield in any promotional
material regarding the Arena and any media advertising the Arena. Upon
request, DICE shall provide Battlefield with copies of such promotional
material for Battlefield's review. In the event Battlefield determines, in its
reasonable discretion, that there has been any deviation or distortion of
Battlefield's logo in any of these promotional materials, then DICE shall work
in. good faith with Battlefield to remedy such deviation or distortion on future
promotional materials. Battlefield retains all other rights, title and interest in
and to Battlefield's name and logo. Battlefield further grants DICE a non-
exclusive worldwide license and right to use photographs and video footage
from any Battlefield's Ice Hockey Games held at the Arena for promotional
materials. For the purposes of this Section 16.2, any rights obtained by DICE
Final 08104109 12
to utilize the name and logo of Battlefield shall also be applicable for any
successor name or logo of Battlefield.
17. Smoking. The Arena is a non - smoking building. Battlefield shall take reasonable
steps to ensure compliance by its staff, employees, invitees, guests, licensees, patrons
and agents with all federal, state or local laws and regulations and City policies
applicable to smoking in the Arena.
18. Broadcast Rights. Battlefield shall own all broadcast rights and revenues for
Battlefield's Ice Hockey Games. Any costs associated with the production of such
broadcasts shall be paid by Battlefield.
19. Hockey Configuration. DICE shall set up the Arena in Hockey Configuration prior
to an Ice Hockey Game. "Hockey Configuration" shall include, but not be limited to,
a suitable ice surface, floor and dasher boards, seating as defined herein, penalty and
team boxes, suites, and scoreboard with a minimum of one microphone and an online
input for musical presentation through the Arena's sound system. The sound system
will be provided by the facility. An attempt will be made -to secure a center hung 4-
sided scoreboard with video display capabilities.
20. Americans with Disabilities Act. DICE shall cause all permanent structures of the
Arena to comply with the requirements of the Americans with Disabilities Act dining
the Term. Battlefield acknowledges and agrees that its programs, activities and events
will comply with the requirements of the Americans with Disabilities Act during the
Term.
21. Damage or Destruction of the Arena.
21.1. Damage by Battlefield. If the Arena or areas thereof leased to Battlefield are
damaged during the Term by the act, default or negligence of Battlefield or its
agents, employees, patrons, guests, invitees, licensees or any person admitted
to the premises by Battlefield or during any event, operation or activity of
Battlefield if sponsored by Battlefield, Battlefield shall pay to DICE upon
demand such sums as shall be necessary to restore such premises to their
present condition; provided, however, that Battlefield shall not be liable for
the negligent, reckless or intentional misconduct of DICE, its employees or
agents. Battlefield hereby assumes fall responsibility for the character, acts
and conduct of all persons admitted to the premises or to any portion of the
premises by the consent of Battlefield, during any event, operation or activity
of Battlefield or with the consent of any person acting for and on behalf of
Battlefield.
21.2. Arena Becomes Unusable. In the event the Arena is wholly or partially
destroyed by fire or other casualty covered by the usual form of fire and
extended coverage insurance and are rendered untenable, DICE shall, to the
extent of insurance proceeds actually received by DICE or the City of
Final 08/04/09 13
Dubuque and not required to be paid to any mortgage or ground lessor,
rebuild, repair or restore the Arena and /or leased premises to substantially the
same condition as when the same were furnished to Battlefield and this
Agreement shall remain in effect during such period. Notwithstanding the
foregoing, the parties acknowledge that the City of Dubuque has the right to
determine what, if any, rebuilding, repair or restoration shall occur at the
Arena and/or leased premises in the event the same is wholly or partially
destroyed, and that DICE is bound by such determination. In the event of total
destruction, rent and all other charges incidental to Battlefield's use of the
Arena shall abate during the period of reconstruction, and in the event of
partial destruction, rent and all other charges incidental to Battlefield's use of
the Arena shall abate during the period of reconstruction in proportion to the
extent of Battlefield's loss of use of the Arena and/or leased premises;
provided, that there shall be no abatement of rent or any other charges
incidental to Battlefield's use of the Arena if the -fire or other casualty was
caused by the act of Battlefield or Battlefield's employees or invitees. In the
event that the Agreement is terminated pursuant to this Section 21.2, each
party hereby waives any claim for damages or compensation, provided,
however, that DICE shall not waive any claims in the event the Agreement is
terminated due to the act of Battlefield or Battlefield's employees or invitees.
21.3. .Battlefield Equipment and Improvements. Battlefield shall be responsible
for and shall provide its own. insurance coverage, and supply DICE with
reasonable evidence of such coverage, with respect to any furniture, fixtures,
improvements, betterments, equipment and personal property belonging to
Battlefield and placed by Battlefield in or upon the Arena and /or Leased
premises. Battlefield agrees and warrants to DICE that any fire insurance
policy, extended coverage policy, casualty and loss policy, or other policy or
policies carried by Battlefield in connection with this Agreement or the Arena
or insuring Battlefield's property or effects located therein shall contain a
provision whereby the insurance carrier waives any right of subrogation
against DICE and the City of Dubuque.
22. Insurance. Battlefield shall maintain, at its sole cost and expense, the insurance on or
in connection with the Arena, leased area and Battlefield Ice Hockey Games in the
manner set forth below. Battlefield shall furnish to DICE an Accord 25 Certificate of
Insurance no later than thirty (30) days after execution of this Agreement, but in no
event less than fourteen (14) days prior to occupying any portion of the Arena or
leased premises, evidencing that there is in effect for the Hockey Season, and will
remain in effect throughout the Term 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.
22.1. General Liability Insurance. Battlefield shall maintain general public
liability insurance against claims for bodily injury, death or property damage
Final 08/04109 14
occurring in or about the Arena, parking garage, grounds surrounding the
Arena and any other area necessary or used for the Intended Purpose in an
amount not less than $5,000,000 per occurrence for bodily injury or death,
liability insurance of $1,000,000 per person for any one person, and $500,000
for property damage. Battlefield's General Liability policy will name DICE
DRA and the City of Dubuque, their respective officers, directors, employees
and agents as Additional Insureds. The insurance afforded to the Additional
Insureds under the General Liability policy 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.
22.2. Workers' Compensation. Battlefield shall maintain workers' compensation
insurance covering all persons employed by Battlefield in connection with any
work done on or about -the Arena for which claims for death or bodily injury
could be asserted against DICE, Battlefield or the Arena. Such insurance shall
be in accordance with statutory limits and shall include Employer's Liability
insurance and a Waiver of Subrogation against DICE DRA and the City of
Dubuque, their respective officers, directors, employees and agents.
22.3. Other Insurance. Battlefield shall maintain such other insurance on or in
connection with the Arena as DICE may reasonably require and which at any
time is commonly obtained in connection with public event properties similar
to the Arena.
22.4. Authorized to Transact Business. All instruments required by this. Section
22 shall be written by companies of recognized financial standing and
authorized to do insurance business in the State of Iowa. If said insurance or
any part thereof shall expire, be withdrawn, become void or voidable,
Battlefield shall immediately obtain new insurance with the coverage set forth
herein.
22.5. Cancellation of Insurance. Each insurance policy required in this Section 22
shall provide that it may not be canceled except after thirty (30) days prior
written notice to DICE which shall be noted on the policy. Each such policy
shall also provide that any loss otherwise payable there under shall be payable
notwithstanding:
(1) any act or omission of DICE which might, absent such provision, result in
the forfeiture of all or any part of such insurance payment,
(2) the occupation or use of the Arena for purposes more hazardous than those
permitted by provisions of such policy,
(3) the existence of other policies of insurance covering the Arena against the
peril involved, whether collectible or not.
22.6. Compliance with Policy. Battlefield shall pay as they become due all
premiums for the insurance required by this Section 22, shall renew or replace
Final 08/04/09 15
each policy, shall promptly comply with and conform to all provisions of each
insurance policy and shall not take 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 interruption
insurance it deems necessary.
All parties shall list the other party as an additional insured for all insurance
acquired herein.
23. Indemnity.
23.1. DICE hereby indemnifies and agrees to hold harmless and to defend
Battlefield's and its owners, directors, officers, employees, volunteers and
players, and each of them, from and against any and all claims, demands,
liens, judgments, or otherwise, resulting from or by reason of (i) any violation
of this Agreement by DICE and /or (ii) death of or injury to any person or
damage to any property whatsoever and all other claims, expenses, fines,
demands, actions and losses from any source that may happen or occur as a
result of DICE's or its employee's, contractors' or agents') negligence,
intentional acts or omissions.
23.2. Battlefield agrees to pay, protect, indemnify, save and hold harmless DICE, its
directors, officers and employees, their successors and assigns from and
against any and all liabilities, losses, damages, penalties, costs and expenses
(including all reasonable attorney fees and expenses), causes of action, suits,
claims, demands or judgments of any nature whatsoever, however caused,
arising from:
Final 08/0469
(1) any injury to or death of any official, player, participant, patron,
invitee, licensee, coach or staff at any Ice Hockey Game, Tryout
Canip or practice that results from or is related to the use of the
Arena for its Intended Purposes, including but not limited to,
injuries or death resulting from any object or person(s) leaving the
Ice Rink or any injury or death to person(s), player(s), coaches or
staff participating in the Ice Hockey Gaine;
(2) 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 Hockey Game
or other activity, operation or use of the Arena or leased premises
by Battlefield;
(3) any violation of any provision of this Agreement, or any contract
or agreement to which Battlefield is a party; or
(4) the deposit, storage, disposal, burial, dumping, injecting, spilling,
leaking or any other placement or release, or existence in or on the
leased premises or Arena of a hazardous or toxic substance, natter
or waste as defined in any law, rule, regulation, statute or
16
ordinance; except to the extent (1) - (4) arise from the negligence,
intentional act or omission of DICE.
Battlefield agrees to defend, indemnify, and hold harmless the City of
Dubuque, and its officers and employees from and against any and all claims
of any kind arising out of the negligence of Battlefield, its officers, and
employees, and anyone under the control of Battlefield or for whom
Battlefield is responsible, in the performance of this Agreement.
In case any action or proceeding is brought against either of the parties to this
Agreement or the City of Dubuque, their directors, officers or employees, by
reason of any such claim, the parties hereby covenant upon notice from the
other party or the City of Dubuque to competently resist or defend such action
or proceeding by coutisel of its choice, and to cooperate and assist in the
defense of such action or proceeding if reasonably requested to do so. The
obligations of the parties under this Section 23 shall survive any termination
of this Agreement, but shall apply only to obligations, events, matters or
causes which occur or arise prior to the expiration or termination of this
Agreement.
24. 'Independent Contractors. It is understood and agreed by and between Battlefield
and DICE that any and all acts that a party or its personnel, employees, agents,
contractors or servants perform pursuant to the terms of this Agreement shall be
undertaken as independent contractors and not as employees or agents of or joint
partners ventures the other party. Neither party shall. have the authority to bind the
other party by or with any contract or agreement or to impose any Iiability upon the
other party. All acts and contracts of a party shall be in its own name and not in the
name of the other party.
25. Default.
25.1. Battlefield Events of Default. The following acts or omissions by Battlefield
shall be deemed a default under this Agreement ( "Battlefield's Default "):
(t) Battlefield fails to maintain its membership in the USHL in good standing;
(2) Battlefield fails to make payment at times and in the amounts required
under this Agreement ;
(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 terms, provisions,
covenants or conditions contained in this Agreement;
(5) Battlefield fails to abide by all applicable laws, ordinance, rules and
regulations of the United States, State of Iowa, City of Dubuque or DICE
relating to Battlefield's use of the Arena and leased premises;
(6) Battlefield fails to pay any vendor for services or materials provided for
the benefit of Battlefield in the Arena or leased areas thereof if
Final 08/04)09 17
Battlefield are otherwise required hereunder to directly pay such vendors
or if any lien is placed on the Arena or leased premises thereof by reason
of any such failure by Battlefield; or
0) Battlefield fails to acquire and constantly maintain insurance as provided
in Section 22 during the Term of this Agreement.
25.2. DICE Events of Default. The following acts or omissions by DICE shall be
deemed a default under this Agreement ( "DICE's Default "):
(1) DICE fails to comply with all applicable laws, ordinances, rules and
regulations of the United States, State of Iowa, or City of Dubuque; or
(2) DICE fails to perform, keep or observe any term; provision, covenant or
condition contained in this Agreement.
25.3. Right to Cure. In the event of a Battlefield's Default or DICE'S Default, the
non - defaulting party shall provide the defaulting party with written notice of
such default and the defaulting party shall have thirty (30) days to cure such
default or if such default is not reasonably curable 'within thirty (30) days, to
provide the non- defaulting party with a plan to cure such default.
Notwithstanding the foregoing, (i) in the event of a Battlefield's Default , then
the aforementioned cure period shall be three (3) business days; and (ii) in the
event of DICE's default which completely prevents the playing eke Hockey
Games, then the aforementioned cure period shall be five (5) business days. If
the defaulting party has not cured such default or provided a plan to cure such
default within the time periods set forth herein, an agent of each party to this
Agreement shall meet within 5 business days to discuss how to best remedy
such default ( "Internal Mediation "). In the event that the parties are unable to
resolve such default through Internal Mediation, the parties may seek External
Mediation as set forth in Section 25.4.
25.4. External Mediation. Either party may, upon written notice and within 10
days after the conclusion of Internal Mediation, elect to utilize a non- binding
resolution procedure whereby each presents its case to a mutually acceptable
neutral mediation ( "Hearing "). If a party elects to utilize External Mediation,
the other party agrees to participate. The Hearing will occur no more than 10
days after a party serves written notice to use External Mediation. Each party
may be represented at the Hearing by lawyers. If the matter 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 in connection with this procedure, except
that they shall share equally the fees and expenses of the mediation and the
costs of the facility for the Hearing. The parties will retain all other rights and
remedies available to them at law or equity.
26. Force Majeure. Neither party shall be Liable to the other for damages if such party's
performance is delayed due to Acts of' God, including, but not limited to, fire, flood,
Final 08/04/09 18
famine, war, disaster, riot or similar event beyond such parties reasonable control
(herein each called a "Force Majeure ") except as provided by Section 21. In such
event, the affected party shall promptly notify the other of the delay and its likely
duration. Each party to this Agreement may secure, at its own expense, any business
interruption insurance it deems necessary.
27. Hockey Exclusivity. The use of the Arena by other tenants may not infringe upon the
rights of Battlefield and in no circumstances may another tenant cause Battlefield to
lose its priority status with regard to the scheduling of Battlefield Ice Hockey Games,
except for such special events as hosting the Iowa Games, Illinois and Iowa Special
Olympics and such other similar events. The parties agree to collaborate in bringing
the USHL Fall Classic, USHL All Star Games and other special events to the Arena.
28. Arena Advisory Board. The Arena Advisory Board is a select group of stakeholders
whose function shall be to advise and snake 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
29. General Provisions.
29.1. Captions. The paragraph headings in this Agreement are used only for
convenience in finding the subject matter and are not part of this Agreement
or to be used in determining the intent of the parties or otherwise interpreting
this Agreement.
29.2. Applicable Law. Parties to this Agreement shall conform to all existing and
applicable City ordinances, resolutions, state and federal laws and all existing
and future rules and regulations pertaining to the Arena. Iowa law will govern
the terms and the performance under this Agreement. Any court proceedings
shall occur in the Dubuque County District Court.
29.3. Merger. This Agreement constitutes the entire agreement between the parties
and supersedes all prior understandings and agreements, whether written or
oral, between the parties hereto relating to the Arena and the transaction
provided for herein. The parties have not relied upon any representations,
warranties or other promises, except those expressly set forth herein.
Final 08/04/09 19
29.4. Modifications. This Agreement may be modified, amended, discharged or
waived only by an agreement in writing signed by the party against whom
enforcement of such modification, amendment, discharge or waiver is sought.
29.5. Assignment. Battlefield shall have the right to assign this Agreement and its
obligations hereunder with the express written consent of DICE, which
consent shall not be unreasonably withheld, conditioned or delayed. All
covenants, stipulations and agreements in this Agreement shall extend to and
bind the legal representatives, permitted successors and assigns of the
respective parties hereto.
29.6. Strict Compliance. All provisions of this Agreement and each and every
document that shall be attached hereto shall be strictly complied with as
written, and no substitution or change shall be made except upon written
direction from an authorized_representative of the parties..
29.7. Notice. All notices, demands, requests, approvals,•consents, offers, statements
and other instruments of communications required or permitted to be given
pursuant to the provisions of this Agreement, shall be in writing and shall be
deemed to have been given when delivered in person, by Federal Express or
deposited in the United States mail by certified mail, return receipt requested,
postage prepaid, addressed to the other party at its address set forth below
IF TO BATTLEFIELD: Battlefield Dubuque, LLC
c/o Brian J. Schoenborn
P.O. Box 817
St, Joseph, MN 56374
With a copy to: Brian J. Schoenborn.
Leonard, Street and Deinard, PA
3800 Eighth Street North, Suite 102
St. Cloud, MN 56303
IF TO DICE: Dubuque Community Ice &
Recreation Center, Inc.
c/o F. Robert Woodward, III
1450 Alta Vista
Dubuque, Iowa 52001
With a copy to: James E. Goodman, Jr.
O'Connor & Thomas P.C.
700 Locust Street, Suite 200
Dubuque, IA 52001
Final 08/04/09 20
29.8. U.S. DoIlars. All monetary amounts expressed in this Agreement are in
United States Dollars. Payments shall also be made in United States Dollars.
29.9. Late Payments. DICE shall received interest at a rate of 1 %2 % per month or
the highest rate permitted by law, whichever is less, on any outstanding
balance that is past due.
29.10. Invalid Provision. In the event any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
29.11. Execution In Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, and all of
such counterparts shall constitute one agreement. Also, to facilitate execution
of this agreement, the parties may execute and exchange by telephone
facsimile counterparts of the signature pages, which shall be deemed originals
for all purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the 5 "4day of Zell, 2099 (the "Effective Date ").
DICE:
Dubuque Community Ice &
Recreation Cent c. Battlefield �ltijitique, LLC
By: f / " "�' `�— by:
Name: Brian J. Schoenborn
Title: President
BATTLEFIELD:
Name: F. Robert Woodward, III
Title: President
Final 08/04/09 21
Final 08/04/09
Exhibit 7.1
22
1 1 1 1 1
Dubuque Ice Arena Sponsorship Inventory - Exhibit 7.1
Term
Partner
DICE Controlled Inventory - Per
?etual
Building 1
Perpetuity
DRA
Exterior Plaza
Perpetuity
Parking Lot (provided by DRA)
Perpetuity
Entry Way - Recreational
Perpetuity
Foyer 1 1
Perpetuity
Multi -Use Meeting Room
Perpetuity
Woodward Family Foundation
Equipment (Skate) rental
Perpetuity
Molo
Offices - recreational only
Perpetuity
Cottingham & Butler
Concessions Area - recreational only
Perpetuity
AY McDonald
Trophy Case - Recreational
- 10
Herrig - Herrig
Facility Ticket Booth 1
10
Union Hoerman /Randy & Cathy Sigmann
Men's Restroom - Recreational Only
Women's Restroom Recreational Only
Youth Hockey Bulletin Board
10
Spencer and Dee Smith
Figure Skating Bulletin Board
10
Public Skating Bulletins Board
10
Adult Hockey Buliiten Board
10
Dr Field
Broomball Bulletin Board
10
Concession Area Chairs - Recreational
1
10
Aquila
2
10
Aquila
3
10
4
10
-
Locker Rooms - Recreational
.
1
Perpetual
Lynn and Jack McCullough
2
Perpetual
Kristin WoodwardlTJ & Austin Frith
3
Perpetual
Longshadow Foundation
4
Perpetual
Conlon Construction
5
Perpetual
Epic Construction
6
HS Team
Perpetual
Pete & Diane Janecke
Building Windows - Recreational
1
Building Doors - Recreational
1
Donor Wall In front lobby
All Donors less than $10,000.
I
EVENT Related Inventory
Zambonl
Perpetual
WCI Telegraph Herald
Sound System
Perpetual
DB & T
I
4 Sided Center Hung Scoreboard
Scoreboard 1 -1/2 side, bottom
Perpetuity
Pepsi
Scoreboard 1 -1/2 side, Bottom
Perpetuity
Rainbo /Qurckshop
Scoreboard 2 -1/2 side, Bottom
Perpetuity
Pepsi 1
Scoreboard 2 -1/2 side, Bottom
Perpetuity
Giese Companies
Scoreboard 3 - Bottom
BATTLEFIELD
Space permitting
Scoreboard 4 - Bottom
BATTLEFIELD
Space permitting
Space permitting
Space permitting
Space permitting
Space permitting
Scoreboard 1 - Top
BATTLEFIELD
Scoreboard 2 - Top
BATTLEFIELD
Scoreboard 3 - Top
•
BATTLEFIELD
Scoreboard 4 - Top
BATTLEFIELD
I.
In Ice Logos
Center ice
10
Theisen
Nuetral Zone Left
10
American Trust and Savings
Nuetral Zone Left
10
DB & T
Nuetral Zone Right
10
Jeff and Diane Bertsch/FlexSteel
Nuetral Zone Right
10
American Trust and Savings
Zone 1- Right
10
Truck Country
Zone 1 - Left
10
Fischer Companies
Zone 2 - Right
- 10
Fischer Companies
Zone 2 - Left
10
Dupaco 1
Nuetral Zone Center
BATTLEFIELD
Nuetral Zone Center
BATTLEFIELD
Zone 1 Center
BATTLEFIELD
Zone 2 Center
BATTLEFIELD
Goal Line
BATTLEFIELD
Goal Line
BATTLEFIELD
Seating Areas
Top of Concourse stairs facing arena
Perpetuity
Kendall -Hunt Publishing
Top of Concourse stairs facing arena
Perpetuity
Kendall -Hunt Publishing
Stair Risers
BATTLEFIELD
Seat Backs
BATTLEFIELD
.
Cup Holders
BATTLEFIELD
Party Decks)
BATTLEFIELD
r
I
Scorer Table
10
Truck Company
Home Bench
10
Theisens 1
Away Bench
10
Dubuque New Car Dealers
Home Penalty
10
Anderson -Weber
Away Penalty
10
Steel Mart
4' x 8' Wail Signs
SE arena Stairwell 1
10
Family Beer •
SE arena Stairwell 2
10
US Bank
SE arena Stairwell 3
10
Dr Field
Zamboni riser
10
Richardsons
Above zamboni
entrance
Home team riser
10
Honkamp 1
Above team entrance
Visiting team riser
10
Premier Bank
Above team entrance
Official tunnel riser
10
Family Beer
Signage Above Suites
BATTLEFIELD
Concourse Signage
BATTLEFIELD
Entryway - Event
BATTLEFIEID
Dasher Boards
I
1
5
Amer Trust
Two on the left and
right of the
Home /Away benches
mentioned above.
2
5
Amer Trust
Two on the left and
right of the
Home /Away benches
mentioned above.
3
• 5
Herrig & Herrig
Two on the left and
right of the
Home /Away benches
mentioned above.
4
5
Herrig & Herrig '
•
Two on the left and
right of the
Home /Away benches
mentioned above.
#'s 5 -50
Eight Foot
BATTLEFIELD
i
Visiting Team Locker Room
BATTLEFIELD
Home Team Locker Room
BATTLEFIELD
Exercise Facility
BATTLEFIELD
Arena Roof Banners
BATTLEFIELD
With agreement of
Note: Youth Hockey Association will be encouraged to hang Championship Banners, etc.
Food & Beverage Rights - Events
D10E /BATTLEFIELD
•
Soda already agreed
to with Gantz Family
(Pepsi) and
Snack/drink machines
(Vendors Unlimited)
Battlefield pays for all costs associated with signage!recogntiian they sell
Exhibit 10.3
Final 08/04/09 23
111
1 11 111141111
lilt 11111 11 Ell
E'OI LIIHLL
Da
oaoDDDDD
ODDODODDDD
MHO
MGM
MD
00000110000
'ODDOODDDUO
EXHIBIT I
FIVE FLAGS ICE EQUIPMENT
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 Resurfacer 6 years old
7. Olympia ice edger 2 years old
8. Jet Ice line marking kit 4 years old
9. Rental Skates c@ 200 pair of Jackson figure and Flite hockey rental skates.
Like new condition
EXHIBIT J
FUND DRAWDOWN SCHEDULE
Fund Drawdown Schedule
DRA /DICE /Vision
Battlefield Iowa Fund Source
First Draw $ 1,000,000 DRA
Second Draw $ 500,000 Battlefield
Third Draw $ 750,000 DICE
Fourth Draw (pro rata) $ 500,000 $ 750,000 DICE /Battlefield
Fifth Draw $ 1,100,000 Battlefield
Final Draw (pro rata) $ 1,100,000 $ 675,000 Vision Iowa /Battlefield
$ 3,200,000 $ 3,175,000 Total