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Scales Mound Packet Co., d/b/a River Cruises Docking Agreement_Twilight Copyrighted February 5, 2018 City of Dubuque Consent Items # 8. ITEM TITLE: Scales Mound Packet Co., d/b/a River Cruises Docking License Agreement SUMMARY: City Manager recommending approval of a docking License Agreement between the City of Dubuque and Scales Mound Packet Co., d/b/a River Cruises. RESOLUTION Approving a Docking License Agreement between the City of Dubuque, lowa (City)and Scales Mound Packet Co. d/b/a River Cruises (River Cruises) SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt Resolution(s) ATTACHMENTS: Description Type River Cruises Docking Agreement-NNM Memo City Manager Memo Staff Memo Staff Memo Resolution Approving Agreement Resolutions Docking License Agreement Supporting Documentation THE CITY OF Dubuque � AIFA�erlwGh UB E '�� III► Masterpiece on the Mississippi Z°°'�w'2 7A13 2017 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Docking License Agreement between the City of Dubuque and Scales Mound Packet Co. d/b/a River Cruises DATE: January 19, 2018 Senior Counsel Barry Lindahl recommends City Council approval of a docking License Agreement between the City of Dubuque and Scales Mound Packet Co., d/b/a River Cruises. The significant elements of the Agreement include: • Three-year term; • Requirement of not less than six day-cruises during each year; and • Docking fee of$1 .00 per full-paying passenger, not less than $5,000 per year. I concur with the recommendation and respectfully request Mayor and City Council approval. �� Mic ael C. Van Milligen �� MCVM:jh Attachment cc: Crenna Brumwell, City Attorney Teri Goodmann, Assistant City Manager Cori Burbach, Assistant City Manager Barry Lindahl, Senior Counsel THE CTTY OF Dubuque �" ui��eNe�ary DUB E '�I}Ijl� Masterpiece on the Mississippi �°' Z°'Z 2013 2017 BARRY A. LINDAHL, ESQ. SENIOR COUNSEL To: Michael C. Van Milligen City Manager Dare: January 16, 2018 Re: Docking License Agreement between the City of Dubuque and Scales Mound Packet Co d/b/a River Cruises Scales Mound Packet Co d/b/a River Cruises (River Cruises) desires a docking license for docking of vessels and other business activities upon the terms set forth in the attached Docking License Agreement between the City and River Cruises. The City and River Cruises have tentatively agreed to the terms of the Docking License Agreement, which among other things, provides for a term through November 30, 2020. This is part of the area in the Ice Harbor formerly used by Dubuque River Rides for its vessels. Significant elements of the Agreement include the following: • Three-year term; • Requirement of not less than six day-cruises during each year; and • Docking fee of$1.00 per full-paying passenger, not less than $5,000 per year. I recommend that the attached Resolution Approving a Docking License Agreement between the City of Dubuque, lowa and Scales Mound Packet Co d/b/a River Cruises be submitted to the City Council for consideration and approval. BAL:tIs Attachment cc: Crenna M. Brumwell, City Attorney Gus Psihoyos, City Engineer Bob Schiesl, Assistant City Engineer Steve Brown, Project Manager F:\Users\tsteckle\Lindahl\Twilight-Scales Mound Packet Co Rivercruises\MVM_ResolutionApprovingAgreement_011618.docx OFFICE OF THE CITYATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563)583-4113/Fnx (563)583-1040/Ennni� balesq@cityofdubuque.org Kevin Firnstahl From:Kevin Firnstahl Sent:Wednesday, February 07, 2018 11:27 AM To:Tracey Stecklein; Carrie Stier Cc:Bob Schiesl; Kerry Bradley Subject:RE: Riverboat Twilight lease agreement - Executed Attachments:Scales Mound Pkt. Co. River Cruises-Twilight Docking Agreement 2 5 18.pdf Hi Carrie, Attached is an executed copy of the Scales Mound Packet, Co., Docking License Agreement with the City of Dubuque and a copy of the approving Resolution. I’ll retain the original with my Resolution in the City Clerk’s Office unless directed otherwise. Please contact me if you have questions or difficulty with the attachment. Thank you. Kevin S. Firnstahl, City Clerk City of Dubuque th 50 W. 13 Street Dubuque, IA 52001 563-589-4100 kfirnsta@cityofdubuque.org From: Tracey Stecklein Sent: Monday, February 05, 2018 1:48 PM To: Carrie Stier <carrie.stier@riverboattwilight.com> Cc: Kevin Firnstahl <Kfirnsta@cityofdubuque.org> Subject: RE: Riverboat Twilight lease agreement Carrie, I just wanted to let you know that the Docking License Agreement for tonight’s City Council meeting is a consent item which is considered non-controversial. However, if you feel like you would like to say something to the council relating to this item but are unable to attend tonight’s meeting due to the weather, you can certainly send an email to City Clerk Kevin Firnstahl, cc’d on this email, and he can relay that message to the City Council tonight. Thank you. Tracey Stecklein City Attorney's Office Suite 330, Harbor View Place 300 Main Street Dubuque, IA 52001-6944 Phone: 563.583.4113 Fax: 563.583.1040 From: Carrie Stier \[mailto:carrie.stier@riverboattwilight.com\] Sent: Monday, February 05, 2018 10:00 AM 1 To: Tracey Stecklein <Tsteckle@cityofdubuque.org> Subject: RE: Riverboat Twilight lease agreement Tracey, I was planning on attending the meeting this evening. Do council meetings get canceled very often due to weather? Where could I find out if tonight’s meeting gets cancelled? Thanks for your help. Carrie Stier, Owner Riverboat Twilight 800-331-1467 Carrie.stier@riverboattwilight.com www.riverboattwilight.com Looking for photos to help promote your tour? Check out our Facebook Page Watch the latest video in our series “From the Twilight” Riverboat Twilight YouTube Channel From: Tracey Stecklein \[mailto:Tsteckle@cityofdubuque.org\] Sent: Monday, January 22, 2018 3:03 PM To: Carrie Stier <carrie.stier@riverboattwilight.com> Cc: Barry Lindahl <balesq@cityofdubuque.org> Subject: RE: Riverboat Twilight lease agreement ? Thank you. Tracey Stecklein City Attorney's Office Suite 330, Harbor View Place 300 Main Street Dubuque, IA 52001-6944 Phone: 563.583.4113 Fax: 563.583.1040 From: Carrie Stier \[mailto:carrie.stier@riverboattwilight.com\] Sent: Monday, January 22, 2018 2:45 PM To: Tracey Stecklein <Tsteckle@cityofdubuque.org> Subject: RE: Riverboat Twilight lease agreement No problem! Carrie Stier, Owner Riverboat Twilight 800-331-1467 Carrie.stier@riverboattwilight.com www.riverboattwilight.com 2 From: Tracey Stecklein \[mailto:Tsteckle@cityofdubuque.org\] Sent: Monday, January 22, 2018 2:38 PM To: carrie.stier@riverboattwilight.com Cc: Barry Lindahl <balesq@cityofdubuque.org> Subject: RE: Riverboat Twilight lease agreement Good afternoon Carrie: Would you mind mailing the original signed agreement to our office so that we can submit that original agreement for the February 5, 2018 City Council agenda? Please feel free to contact me if you have any questions regarding this matter. Thank you. Tracey Stecklein City Attorney's Office Suite 330, Harbor View Place 300 Main Street Dubuque, IA 52001-6944 Phone: 563.583.4113 Fax: 563.583.1040 From: Barry Lindahl Sent: Monday, January 22, 2018 2:29 PM To: Tracey Stecklein <Tsteckle@cityofdubuque.org> Subject: Fwd: Riverboat Twilight lease agreement Sent from my iPhone Begin forwarded message: From: "Carrie Stier" <carrie.stier@riverboattwilight.com> Date: January 22, 2018 at 2:19:53 PM CST To: <balesq@cityofdubuque.org> Cc: "Kevin Stier" <captainstier@riverboattwilight.com> Dear Barry, Subject: Riverboat Twilight lease agreement 3 Attached is the signed copy of the lease agreement. We will forward the necessary insurance information when available. Thank you. We look forward to our 2018 season! Carrie Stier, Owner Riverboat Twilight 800-331-1467 Carrie.stier@riverboattwilight.com www.riverboattwilight.com Click here to report this email as spam. 4 RESOLUTION NO. 22-18 APPROVING A DOCKING LICENSE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA (CITY) AND SCALES MOUND PACKET CO d/b/a RIVER CRUISES (RIVER CRUISES) Whereas, the City of Dubuque, Iowa (City) is the owner of the property shown on the attached Exhibits A and B attached hereto and by this reference made a part hereof; and Whereas, Scales Mound Packet Co d/b/a River Cruises (River Cruises) desires a docking license for part of the property shown on Exhibits A and B for docking of vessels and other business activities upon the terms set forth in the attached Docking License Agreement between the City and River Cruises; and Whereas, City and River Cruises have tentatively agreed to the terms of the Docking License Agreement, which among other things, provides for a term through November 30, 2020; and Whereas, the City Council believes it is in the best interest of the City of Dubuque to approve the Docking License Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: 1. The Docking License Agreement between the City of Dubuque, Iowa and Scales Mound Packet Co d/b/a River Cruises is hereby approved. 2. Mayor is hereby authorized and directed to execute the Agreement on behalf of the City of Dubuque. Passed, approved and adopted this 5th day of Febary, 2018. Roy D. Bel, Mayor Attest: Kevin �. Firnstahl, Cit"Clerk F:\USERS\tsteckle\Lindahl\Twilight-Scales Mound Packet Co Rivercruises\ResolutionApprovingAgreement_011618.docx 1 EXHIBITS A AND B LICENSED PREMISES 2 .L /INDS CMITER .111.N.44„. t *.t S\\\\\\ NIT41i.\\\\\\\I\G & I ltilo ibilftp, 1 -- i et Ciamo te. 4 Ilk A:0> \ I\ arm N. oo, MARINA ...a Liji Ego simatamirs?-1L": ' ••••\ New. • A PORT OF DUBUQUE MARINA —6 01+/ - EXHIBIT A ICE HARBOR 0 30' 60' SCALE 1' = 60' FEET 120' FLOOD CONTROL GATES Dubuque CITY OF DUBUQUE ENGINEERING DEPARTMENT env ftra-t., se voltam BMA Illt011terr DUal 'QUE. IA 1112001.44A4 491r)(99 (943) 555-47,o 9,44 )943) 91111.4904 Dun IBB [OMB AlIppowA Bp LAWS INS: NoASP I BCT OF DUBUQUE RIVERBOAT TVVILIQHT DOCKING LICENSE AGREEMENT EXHIBIT Women,: 1 imemac 1 e 2 • 7.17)fil1 QT 2 ONSSeSSSO flflflflflflflr \\\\\NN \%\ PARKING LOT 2 PARKING "•••• LOT 6 /////////////J ///////// "t\\\ \V\ ',\\*;\ \\\ PARKING LOT #,‘ SV,Z\\\AMV\VA\s4 4 C.(17:// /M40/7#7112 •"644.1.4jivi 11;41:. ./'•11 -- 2 r ICE HARBOR EXHIBIT B HL PORT OF DUBUQUE MARINA 11111111111111111111 0 50 100' SCALE V= 100' FEET 200' Dubuque 206.7 FLOOD CONTROL GATES CITY OF DUBUQUE CNOINECRING DCPARTMENT CitY r-4At , bW -Imre-I rut -soar DUBS ICILJE IA 5,2001-449A4 , ("As) menus.** ro.xIra” Elmwsits C.,:rptS n w PC3 olitgewAS 1st tur.,AN OsSrsst,to s OUBUOUB RIVERBOAT TWILIGHT DOCKING LICENSE AGREEMENT EXHIBIT 1 t...o.ors«: elf,4.ecor2 • 2 DOCKING LICENSE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND SCALES MOUND PACKET CO. dba RIVER CRUISES THIS GREEMENT ( he Agreement), executed in duplicate, made and entered into this eriVi day of -, 2018 by and between THE CITY OF DUBUQUE, IOWA (City whose address for the purpose of this Agreement is City Hall, 50 West 13th Street, Dubuque, Iowa 52001 and SCALES MOUND PACKET CO., dba RIVER CRUISES (River Cruises), an Illinois corporation which operates Riverboat Twilight, whose address for the purpose of this Agreement is 406 Franklin Street, Scales Mound, Illinois, 61075. SECTION 1. DOCKING PRIVILEGE; TERM. 1.1. City, in consideration of the agreements and conditions herein contained, on the part of River Cruises to be kept and performed, grants unto River Cruises, the privilege of docking its vessels, according to the terms and provisions herein, in the following described real estate, situated in Dubuque County, Iowa: See Exhibits A and B attached hereto and by this reference made a part hereof with the improvements thereon and all rights, and appurtenances thereto belonging (the Licensed Premises), for a Term commencing at midnight of the day previous to the first day of the Term, which shall be on the 1st day of December, 2017, and ending at midnight on the last day of the Term, which shall be on the 30th day of November, 2020, upon the condition that River Cruises pays the Docking Fee described below, and otherwise performs as required by this Agreement. River Cruises shall conduct not less than six (6) day cruises during each year of the Term. 1.2. During the Term, City reserves the right in its sole discretion to reconfigure the Licensed Premises and any relocation of River Cruises' assets required by the relocation shall be at River Cruises cost and expense. 1.3. City grants to River Cruises during the Term permission to maintain one sign approved by City as shown on Exhibit A. City will cooperate with River Cruises to maintain a location for a wayfinding sign with directions to Riverboat Twilight to be installed at City's cost. SECTION 2. DOCKING FEE. 2.1. Docking Fee. 011618ba1 (1) River Cruises agrees to pay to City a monthly docking fee (the Docking Fee) during the Term $1.00 per full -paying passenger. (2) The Docking Fee shall be paid monthly by not later than the 10th day of the following month beginning on the 10th day of December, 2017, and not later than the 10th day of each month thereafter at the address of City, as above designated, or at such other place as the City may, from time to time, designate in writing. (3) In the event the total Docking Fee on November 30 of each year of the Term is less than $5000.00 for the previous twelve-month period, River Cruises shall pay the difference between $5000.00 and the Docking Fee for such previous twelve-month period. Such payment shall be made not later than thirty (30) days after September 30 of each year of the Term. 2.2. River Cruises shall submit to City with each monthly payment of the Docking Fee a report showing the number of all passengers for that month including paying passengers, nonpaying passengers and passengers with vouchers. SECTION 3. POSSESSION. Twilight shall be entitled to possession on the first day of the Term, and shall yield possession to the City at the time and date of the close of the Term, except as herein otherwise expressly provided. City has no obligation for any costs or expenses incurred by Twilight in connection with this Agreement. SECTION 4. USE OF PREMISES. 4.1. The Licensed Premises shall be used by Twilight for the following uses only: riverboat rides; serving of meals and/or beverages on Twilight's riverboats. 4.2. The following vessels as shown on Exhibit A and no other others without the prior written consent of the City Manager shall be permitted in the Licensed Premises: Riverboat Twilight and accessory barge. 4.3 If the vessel identified in Section 4.2 be sold or damaged, a replacement boat, subject to City's approval, which approval shall not be unreasonably withheld, may be substituted and River Cruises shall notify City in writing of said proposed substitution at the earliest practicable time. 4.4 River Cruises shall not broadcast announcements over a public address system more often than every 5 minutes and not prior to 30 minutes before any cruise departs the dock. River Cruises shall not broadcast music over a public address system more than 15 minutes before any cruise departs the dock. Broadcasting from a public address system from land or while a cruise boat is located inside the Ice Harbor is not allowed at any other time. SECTION 5. QUIET ENJOYMENT. City covenants that its estate in said premises is fee simple; and that River Cruises on paying the rent herein reserved and performing all 2 the agreements by River Cruises to be performed as provided in this Agreement, shall and may peaceably have, hold and enjoy the Licensed Premises for the Term of this Agreement free from molestation, eviction or disturbance by the City or any other persons or legal entity whatsoever. SECTION 6. CARE AND MAINTENANCE OF PREMISES. 6.1. River Cruises takes said premises in their, present condition except for any environmental hazard or condition existing on the Licensed Premises. 6.2. Citv's Duty Of Care And Maintenance. City shall have no duty of care or maintenance, including no duty to dredge the Licensed Premises or the Ice Harbor, except any environmental hazard or condition existing on the Licensed Premises. When City does dredge, however, River Cruises agrees to cooperate with City to accommodate such dredging. 6.3. River Cruises' Dutv Of Care And Maintenance. River Cruises shall at all times during the term of this Agreement, at River Cruises' own costs and expense, keep and maintain the Licensed Premises and all improvements and vessels in a condition consistent with other similarly classed operations and other businesses in the Port of Dubuque as determined by the City Manager in the City Manager's sole discretion, including but not limited to not permitting broken windows, deterioration of the exterior of vessels or structures, and peeling paint. City may, at its discretion, upon reasonable notice to River Cruises, conduct an inspection of the Licensed Premises to determine River Cruises' compliance with this Article 6. River Cruises on a once per week basis shall remove all dead wood and floating weeds in and around the Licensed Premises and remove all weeds growing in the rip rap slopes on the Licensed Premises. River Cruises shall remove all trash and debris from the Licensed Premises on every day that a riverboat ride is scheduled or that the restaurant is open. In no case shall trash removal be less than once per week. 6.4. River Cruises will make no unlawful use of said premises and agrees to comply with all city ordinances, and the laws of the State of Iowa and the Federal government. 6.5. River Cruises acknowledges that it may be necessary for City to close the Ice Harbor flood gates based on river and weather conditions and River Cruises waives any and all objections to the closing of the flood gates and releases City from any and all claims it may have arising out of the closing of the flood gates. SECTION 7. IMPROVEMENTS. 7.1. On delivery of possession of the Licensed Premises to River Cruises, River Cruises shall not construct on the Licensed Premises any structures, buildings or other improvements except as agreed upon in advance, in writing by City. City shall have the right in its sole discretion to approve the design, appearance and quality of any such Improvements. 3 7.2. River Cruises shall not encumber by mortgage, deed of trust, or other instrument, its interest in the Licensed Premises. SECTION 8. GREATER DOWNTOWN URBAN RENEWAL DISTRICT DESIGN STANDARDS. River Cruises agrees to comply in all respects with the Greater Downtown Urban Renewal District Design Standards as they currently exists or might hereafter be amended as such Standards apply to the Licensed Premises. SECTION 9. UTILITIES AND SERVICES. River Cruises, during the term of this Agreement, shall pay, before delinquency, all charges for all utilities and services, including garbage disposal and trash disposal. River Cruises shall be responsible for all operating and repair and maintenance costs related in any way whatsoever to the utilities serving the Licensed Premises. SECTION 10. SURRENDER OF PREMISES AT END OF TERM - REMOVAL OF FIXTURES. 10.1. River Cruises shall, on the last day of the term of this Agreement or upon any termination of this Agreement hereof, surrender and deliver up the Licensed Premises 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 River Cruises shall remove any or all of the Improvements erected by River Cruises located on the Licensed Premises, remove all utility connections as required by City Code, and restore the Licensed Premises to the condition it was in immediately prior to the commencement of the term of this License. 10.2. Holding Over. Continued possession, beyond the expiratory date of the term of this Agreement, by River Cruises, coupled with the acceptance of the specified rental by the City and a written agreement by City for an extension of this Agreement shall constitute a month to month extension of this Agreement. SECTION 11. ASSIGNMENT AND SUBLETTING. This Agreement may not be assigned nor the Licensed Premises sublet by River Cruises without the prior written consent of the City, which consent shall not be unreasonably withheld. SECTION 12. TAXES. 12.1. River Cruises agrees to pay to City as additional consideration at the time of the payment of the Annual Fee an amount equal to real estate taxes upon the real estate of the Licensed Premises that accrue during the Term of this Agreement, upon receipt of a statement from City for such accrued taxes. 12.2. River Cruises further agrees to pay all other lawful taxes, rates, charges, levies and assessments, general and special, of every name, nature and kind, whether now known 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, 4 charged, assessed, levied or imposed upon the Licensed Premises estate hereby created during the term hereof, and all such taxes, rates, charges, levies and assessments shall be paid by River Cruises as they become due and before they become delinquent, subject, however, to the limitations and obligations of City set forth in this Agreement. 12.3. River Cruises agrees to timely pay all taxes, assessments or other public charges levied or assessed by lawful authority (but reasonably preserving River Cruises' rights of appeal) against its personal property on the premises, during the term of this Agreement. 12.4. Nothing herein shall require River Cruises to pay any of City's income taxes, surtaxes, excess profit taxes or any taxes on the rents reserved to City hereunder. 12.5. River Cruises shall at all times have the right to contest in good faith, in any proper proceedings, in the name of City if necessary, the payment or satisfaction of any such taxes, assessments, rates, charges or levies so agreed to be paid by River Cruises, if the validity thereof, or the right to assess or levy the same against or collect the same from said Licensed 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, River Cruises 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. SECTION 13. INSURANCE. 13.1. City and River Cruises will each keep their respective property interests in the premises and its liability in regard thereto, and the personal property on the premises, reasonably insured against hazards and casualties; that is, fire and those items usually covered by extended coverage; and River Cruises will procure and deliver to the City a certification from the respective insurance companies to that effect. Such insurance shall be made payable to the parties hereto as their interests may appear, except that River Cruises' share of such insurance proceeds are hereby assigned and made payable to the City to secure rent or other obligations then due and owing City by River Cruises. 13.2. Neither City nor River Cruises will do or omit the, doing of any act which would vitiate any insurance, or increase the insurance rates in force upon the real estate improvements on the premises or upon any personal property of River Cruises upon which the City by law or by the terms of this Agreement, has or shall have a lien. 13.3. Waiver Of Subroaation. Notwithstanding any other provision in this Agreement to the contrary, both City and River Cruises hereby waive any and all rights of recovery, claim, action or causes of action against each other, their agents, officers and employees, for any loss or damage that may occur to the Licensed Premises, including improvements thereon, or to any property of either party maintained on the Licensed Premises by reason of fire, casualty, the elements, or any other cause of physical damage which could be insured against under the terms of standard fire and extended overage insurance policies, regardless of cause or origin and regardless of the negligence of the parties hereto, their 5 agents, officers, invitees and employees. Each of the parties hereto shall secure such a waiver of subrogation endorsement from its respective insurance carriers and provide, upon request, a copy of such insurance endorsement to the other party. 13.4. Insurance Proceeds. City shall settle and adjust any claim against any insurance company under its said policies of insurance for the premises, and said insurance monies shall be paid to and held by the City to be used in payment for cost of repairs or restoration of damaged building, if the destruction is only partial. SECTION 14. INDEMNITY AND LIABILITY INSURANCE. 14.1. River Cruises shall defend, indemnify, and save harmless City 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 City by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Licensed Premises during the term of this Agreement and resulting from any act or omission of River Cruises or anyone claiming by, through, or under River Cruises during the term of the License; and (b) any failure on the part of River Cruises to perform or comply with any of the terms of this License. In case any action, suit, or proceeding is brought against City by reason of such occurrence, River Cruises will, at River Cruises' expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by City. 14.2. River Cruises further covenants and agrees that it will at its own expense procure and maintain insurance as set forth in City's standard Insurance Schedule S (Exhibit C) for Docking of Commercial Vessels as such Schedule may from time to time be amended. City's current Insurance Schedule is attached hereto. 14.3. City will defend, indemnify, and save harmless River Cruises 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 River Cruises by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Licensed Premises during the term of this Agreement and resulting from any actor omission of City or anyone claiming by, through, or under City during the term of the Agreement; and (b) any failure on the part of City to perform or comply with any of the terms of this Agreement. In case any action, suit, or proceeding is brought against River Cruises by reason of such occurrence, City will, at City's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by River Cruises. SECTION 15. FIRE AND CASUALTY. PARTIAL DESTRUCTION OF PREMISES. 15.1. In the event of a partial destruction or damage of the Licensed Premises, which is a business interference, that is, which prevents the conducting of a normal business operation of River Cruises or the purposes identified above and which damage is 6 reasonably repairable within sixty (60) days after its occurrence, this Agreement shall not terminate but the rent for the Licensed Premises shall abate during the time of such business interference or be refunded if previously paid. In the event of partial destruction, River Cruises shall repair such damages within sixty (60) days of its occurrence unless prevented from so doing by acts of God, the elements, the public enemy, strikes, riots, insurrection, government regulations, city ordinances, labor, material or transportation shortages, or other causes beyond River Cruises' reasonable control. 15.2. Zoning. Should the zoning ordinance or any other action of the City make it impossible for River Cruises, using diligent and timely effort to obtain necessary permits and to repair and/or rebuild so that River Cruises is not able to conduct its business on these premises, then such partial destruction shall be treated as a total destruction as in the next paragraph provided. 15.3. Total Destruction Of Business Use. In the event of a destruction or damage of the Licensed Premises so that River Cruises is not able to conduct normal business operations, specifically including the purposes identified above on the Licensed Premises or the then current legal use for which the premises are being used and which damages cannot be repaired within sixty (60) days this Agreement may be terminated at the option of River Cruises. Such termination in such event shall be effected by written notice of River Cruises to City, within twenty (20) days after such destruction. River Cruises shall surrender possession within ten (10) days after such notice issues, and each party shall be released from all future obligations hereunder, City shall promptly refund rental pro rata to the date of such destruction. SECTION 16. CONDEMNATION. 16.1. If at any time during the term of this Agreement all or substantially all of the Licensed 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 other than City, then this Agreement shall terminate on the date of vesting of title in such taking and any prepaid rent shall be apportioned based upon the value of the property taken and the damages actually sustained taking into consideration any contractual liability incurred by River Cruises as a result thereof as of said date. Substantially all of the Licensed Premises and the improvements thereon shall be deemed to have been taken if the remaining portion of the Licensed shall not be of sufficient size to permit River Cruises to operate its business thereon in a manner similar to that prior to such taking. 16.2. Temporary Taking. If the temporary use of the whole or any part of the Licensed Premises or the Improvements thereon or the appurtenances thereto shall be taken at any time during the term of this Agreement in the exercise of the power of eminent domain by any sovereign, municipality, or other authority other than City, the term of this Agreement shall not be reduced or affected in any way, and River Cruises 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 River Cruises, and the entire award for such 7 temporary taking shall be paid to River Cruises. River Cruises shall repair and restore any and all damage to the Licensed Premises and the improvements as soon as reasonably practicable after such temporary taking. 16.3. Bankruptcy Or Insolvency Of River Cruises. In the event River Cruises is adjudicated a bankrupt or in the event of a judicial sale or other transfer of River Cruises' Agreement interest by reason by any bankruptcy or insolvency proceedings or by other operation of law, but not by death, and such bankruptcy, judicial sale or transfer has not been vacated or set aside within ten (10) days from the giving of notice thereof by City to River Cruises, then and in any such events, City may, at its option, immediately terminate this Agreement, re-enter said premises, upon giving of ten (10) days' written notice by City to River Cruises, all to the extent permitted by applicable law. SECTION 17. DEFAULT. If River Cruises shall fail or neglect to observe, keep, or perform any of the material covenants, terms, or conditions contained in this Agreement 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 City setting forth the nature of River Cruises' 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 River Cruises 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, City shall have the right at its option, on written notice to River Cruises, to terminate this Agreement and all rights of River Cruises under this Agreement shall then cease. City, without further notice to River Cruises, shall have the right immediately to enter and take possession of the Licensed Premises with or without process of law and to remove all personal property from the Licensed Premises and all persons, occupying the Licensed Premises and to use all necessary force therefore and in all respects to take the actual, full, and exclusive possession of the Licensed Premises and every part of the Licensed Premises as of City's original estate, without incurring any liability to River Cruises or to any persons occupying or using the Licensed Premises for any damage caused or sustained by reason of such entry on the Licensed Premises or the removal of persons or property from the Licensed Premises. SECTION 18. RIGHT OF EITHER PARTY TO MAKE GOOD ANY DEFAULT OF THE OTHER. If default shall be made by either party in the performance of, or compliance with, any of the terms, covenants or conditions of this Agreement, and such default shall have continued for thirty (30) days after written notice thereof from one party to the other, the person aggrieved, in addition to all other remedies now or hereafter provided by law, may, but need not, perform such term, covenant or condition, or make good such default and any amount advanced shall be repaid forthwith on demand, together with interest at the rate of 9% per annum, from date of advance. SECTION 19. SIGNS. River Cruises shall have the right and privilege of attaching, affixing, painting or exhibiting signs on River Cruises' vessels and structures on the Licensed Premises, provided (1) that any and all signs shall comply with the ordinances of the city of Dubuque and the laws of the State of Iowa and the Ice Harbor Urban Renewal District Design Standards; (2) such signs shall not change the structure of any building or 8 the premises; (3) such signs if and when taken down shall not damage any building or the premises or such damage shall be repaired; and (4) such signs shall be subject to the prior written approval of the City, which approval shall not be unreasonably withheld. SECTION 20. MECHANIC'S LIENS. Neither River Cruises nor anyone claiming by, through, or under River Cruises, shall have the right to file or place any mechanic's lien or other lien of any kind or character whatsoever, upon said premises or upon any building or improvement thereon, or upon the interest of River Cruises therein, and notice is hereby given that no contractor, sub -contractor, or anyone else who may furnish any material, service or labor for any building, improvements, alteration, repairs or any part thereof, shall at any time be or become entitled to any lien thereon, and for the further security of the City, River Cruises covenants and agrees to give actual notice thereof in advance, to any and all contractors and sub -contractors who may furnish or agree to furnish any such material, service or labor. SECTION 21. RIGHTS CUMULATIVE. The various rights, powers, options, elections and remedies of either party, provided in this Agreement, shall be construed as cumulative and no one of them as exclusive of the others, or exclusive of any rights, remedies or priorities allowed either party by law, and shall in no way affect or impair the right of either party to pursue any other equitable or legal remedy to which either party may be entitled as long as any default remains in any way unremedied, unsatisfied or undischarged. SECTION 22. PROVISIONS TO BIND AND BENEFIT SUCCESSORS, ASSIGNS, ETC. Each and every covenant and agreement herein contained shall extend to and be binding upon the respective successors, heirs, administrators, executors and assigns of the parties hereto. SECTION 23. CONSTRUCTION. Words and phrases herein, including acknowledgment hereof, shall be construed as in the singular or plural number, and as masculine, feminine or neuter gender according to the context. SECTION 24. ENVIRONMENTAL. 24.1 Lessee Compliance With Law. Lessee shall comply with all applicable local, state and federal laws, rules, regulations and permits with regard to the Demised Premises and its use, occupancy and control of the Demised Premises. 24.2 Environmental Matters. (1) Lessee covenants and agrees that Lessor shall have no responsibility for or liability arising from any release of a Hazardous Substance which is caused by or results from Lessee, Lessee's use, occupancy or control of the Demised Premises, except for Lessor Hazardous Substances (any Hazardous Substance which leaches or migrates upon the Demised Premises from any property owned by Lessor). Notwithstanding any other provision of this Lease, Lessee shall not have 9 any responsibility for any Hazardous Substance which leaches or migrates upon the Demised Premises from any adjacent property or any release of a Hazardous Substances which is caused by Lessor or which pre-exists the date of this Lease, except as follows: (a) Lessee shall be responsible for known pre- existing releases for which Lessee fails to take due care and adequate precaution and/or for which Lessee's actions or inactions cause a worsening of the release, and (b) Lessee shall provide full cooperation, assistance, and access to Lessor or other parties investigating and/or responding to a threatened or actual release. (2) Lessee covenants and agrees to promptly notify Lessor of any release of Hazardous Substance for which Lessee is responsible under this Section 12.2(1) that exceeds permitted levels as defined by any local, state or federal laws applicable to Lessee's use of the Demised Premises originating after the effective date of this Lease ("Release") in, on or about the Demised Premises of which Lessee suspects or has actual knowledge. (3) Lessee covenants and agrees to promptly take any and all necessary and appropriate response to fully address any Release following the advance notice to Lessor required in Section 12.2(2) above. Such response shall include, without limitation, notification to appropriate governmental authorities, as may be required by applicable law. Lessee shall respond to such Release' to the full extent required by applicable law; however, in no event shall Lessee allow limitations or restrictions to be placed on the Demised Premises without the written consent of the Lessor. (4) Except as necessary to conduct its operations and use the Demised Premises as detailed in Section 1.6 and 1.7, Lessee covenants and agrees to not manufacture, treat or dispose of Hazardous Substances at the Demised Premises or allow the manufacture, treatment, or disposal of Hazardous Substances on the Demised Premises. Lessee shall use and store on the Demised Premises only those Hazardous Substances as are associated with its regular business activities, and then only as allowed by applicable law. (5) 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 containing materials in any form or condition, (iv) designated as a "hazardous substance" pursuant to 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, 42 U.S.0 § 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 10 seq.] The term "Hazardous Substance" shall not include any air emissions discharged into the atmosphere as allowed by a duly issued permit from the applicable governmental agency. (6) River Cruises agrees to defend, indemnify and hold City harmless from and against all claims, causes of action, damages, loss, costs, expense, penalties, fines, lawsuit, liabilities, attorney fees, engineering and consulting fees, arising out of or in any manner connected with hazardous substances, which are caused or created by River Cruises during the term of this Agreement including, but not limited to, injury or death to persons or damage to property, and including any diminution of the value of any Licensed Premises which may result from the foregoing. This indemnity shall survive the cessation, termination, abandonment or expiration of this Agreement for a period of five years. SECTION 25. AMERICANS WITH DISABILITIES ACT. River Cruises shall be solely responsible for, and agrees to indemnify and hold City harmless from, any and all repairs, additions, claims, fines, penalties, fees or any other costs or obligation in any way imposed by or required by or related to the American's with Disabilities Act in connection with the Licensed Premises during the term of this Agreement. SECTION 26. PARKING. 26.1. City agrees that River Cruises' patrons and not more than three of River Cruises' employees designated by River Cruises may have the privilege during the Term of this Agreement to park in Lot 1 but only upon such terms and conditions as City determines appropriate, including but not limited to the payment of a parking fee by users of Lot 1. City shall have the right in its sole discretion to terminate such parking privileges at any time. In the event City terminates such parking privileges in Lot 1, River Cruises acknowledges that the Port of Dubuque has other parking available for River Cruises' patrons and employees on a nonexclusive, first-come, first-served basis, subject to any agreements City has to provide parking to other users. River Cruises further acknowledges that City has the option to create other arrangements for River Cruises' patrons and employees on a nonexclusive, first-come, first-served basis. 26.2. River Cruises shall use its best efforts to prohibit its employees from parking in Lots 1, 2, or 6. SECTION 27. MEMORANDUM OF LICENSE. Each of the parties hereto will, promptly upon request of the other, execute a memorandum of this Agreement in form suitable for recording setting forth the names of the parties hereto and the term of this Agreement, identifying the Licensed Premises, and also including such other clauses therein as either party may desire. SECTION 28. NOTICES. All notices, demands, or other writings in this Agreement 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 11 in writing and deposited in the United States mail, registered and postage prepaid, and addressed as follows: TO CITY: City of Dubuque, Iowa City Manager City Hall 50 West 13th Street Dubuque, Iowa 52001 TO RIVER CRUISES: Scales Mound Packet Co. Kevin Stier, President PO Box 172 Scales Mound, IL 61075 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 29. MISCELLANEOUS. 29.1. Time Of The Essence. Time is of the essence of this Agreement and all of its provisions. 29.2. Governing Law. It is agreed that this Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Iowa. 29.3. Paragraph Headings. The titles to the paragraphs of this Agreement 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 License. 29.4. Modification Of Agreement. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if evidenced in a writing signed by each party or an authorized representative of each party. 29.5. Parties Bound. This Agreement shall be binding on and shall inure to the benefit of and shall apply to the respective successors and assigns of City and River Cruises. All references in this Agreement to "City" or "River Cruises" shall be deemed to refer to and include successors and assigns of City or River Cruises without specific mention of such successors or assigns. 12 29.6. Force Maieure. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, unavailability or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, chemical explosions, hazardous conditions, fire, weather or acts of God, or by reason of any other cause beyond the exclusive and reasonable control of the party delayed in performing work or doing acts required under the terms of this Agreement, 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. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement in duplicate the day and year first above written. CITY OF DUBUQUE, IOWA By: Michael C. Van Milligen City Manager SCALES MOUND PACKET CO. By Kevin Stier, President F:\Users\tsteckle\Lindahl\Twilight-Scales Mound Packet Co Rivercruises\Twilight-ScalesMoundPacketCoDockingLicenseAgreement_011618.docx 13 EXHIBITS A AND B LICENSED PREMISES 14 .L /INDS CMITER .111.N.44„. t *.t S\\\\\\ NIT41i.\\\\\\\I\G & I ltilo ibilftp, 1 -- i et Ciamo te. 4 Ilk A:0> \ I\ arm N. oo, MARINA ...a Liji Ego simatamirs?-1L": ' ••••\ New. • A PORT OF DUBUQUE MARINA —6 01+/ - EXHIBIT A ICE HARBOR 0 30' 60' SCALE 1' = 60' FEET 120' FLOOD CONTROL GATES Dubuque CITY OF DUBUQUE ENGINEERING DEPARTMENT env ftra-t., se voltam BMA Illt011terr DUal 'QUE. IA 1112001.44A4 491r)(99 (943) 555-47,o 9,44 )943) 91111.4904 Dun IBB [OMB AlIppowA Bp LAWS INS: NoASP I BCT OF DUBUQUE RIVERBOAT TVVILIQHT DOCKING LICENSE AGREEMENT EXHIBIT Women,: 1 imemac 1 e 2 • 7.17)fil1 QT 2 ONSSeSSSO flflflflflflflr \\\\\NN \%\ PARKING LOT 2 PARKING "•••• LOT 6 /////////////J ///////// "t\\\ \V\ ',\\*;\ \\\ PARKING LOT #,‘ SV,Z\\\AMV\VA\s4 4 C.(17:// /M40/7#7112 •"644.1.4jivi 11;41:. ./'•11 -- 2 r ICE HARBOR EXHIBIT B HL PORT OF DUBUQUE MARINA 11111111111111111111 0 50 100' SCALE V= 100' FEET 200' Dubuque 206.7 FLOOD CONTROL GATES CITY OF DUBUQUE CNOINECRING DCPARTMENT CitY r-4At , bW -Imre-I rut -soar DUBS ICILJE IA 5,2001-449A4 , ("As) menus.** ro.xIra” Elmwsits C.,:rptS n w PC3 olitgewAS 1st tur.,AN OsSrsst,to s OUBUOUB RIVERBOAT TWILIGHT DOCKING LICENSE AGREEMENT EXHIBIT 1 t...o.ors«: elf,4.ecor2 • 2 EXHIBIT C INSURANCE SCHEDULE S 17 City of Dubuque Insurance Requirements for Docking of Commercial Vessels INSURANCE SCHEDULE S 1. Operator shall furnish a signed certificate of insurance to the City of Dubuque, Iowa for the coverage required in Exhibit l prior to contract inception and at the end of the contract if the term of contract is longer than 60 days. Each certificate shall include a statement under Description of Operations as to why issued. Eg: Project # or Lease of premises at the Ice Harbor. 2. AH policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa and all insurers shall have a rating of A or better in the current A.M. Bests Rating Guide. 3. Each certificate shall be furnished to the Engineering Department of the City of Dubuque, attention Project Manager, 4. 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. 5. All required endorsements to various policies shall be attached to Certificate of insurance. 6_ The Operator shall be required to carry the minimum coverage/limits, or greater if required by law or other legal agreement, in Exhibit 1. If the Operator's limits of liability are higher than the required minimum limits then the provider's limits shall be this agreements required limits. 7, Whenever an ISO form is referenced the current edition of the form must be used. Page 1 of 3 Schedule S Docking Of Commerical Vessels July 2017 18 I City of Dubuque Insurance Requirements for Docking of Commercial Vessels INSURANCE SCHEDULE S (continued) Exhibit 1 A) PROTECTION & INDEMNITY LIABILITY $2,000,000 1) Coverage shall be written on an occurrence, not claims made, form, 2) Include endorsement indicating that coverage is primary and non-contributory. 3) Include endorsement to preserve Governmental Immunity. (Sample attached). 4) Include additional insured endorsement for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers. 5) Policy shall include Waiver of Right to Recover from Others endorsement. 8) WORKERS' COMPENSATION, LHWCA & EMPLOYERS LIABILITY Statutory benefits covering ail employees injured on the job by accident or disease as prescribed by Iowa Code Chapter 85 as amended. Coverage A Coverage 13 Statutory—State of Iowa Employers Liability Each Accident $100,000 Each Employee -Disease $100,000 Policy Limit -Disease $500,000 Policy shall include Waiver of Right to Recover from Others endorsement. Longshoreman and Harbor Workers Compensation Act Coverage. C) ENVIRONMENTAL IMPAIRMENT LIABILITY OR POLLUTION LIABILITY (including transit) Coverage required: X yes no General Aggregate Limit $4,000,000 Each Occurrence limit $2,000,000 1) Policy shall include an additional insured endorsement for 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, 2) Provide evidence of coverage for 5 years after completion of project_ 3) Include Preservation of Governmental Immunities endorsement. (Sample attached). D) UMBRELLA/EXCESS LIABILITY: $5,000,000 Page 2 of 3 Schedule 5 Docking Of Commerical Vessels July 2017 19 City of Dubuque Insurance Requirements for Docking of Commercial Vessels PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonbvaiver of Governmental Immunity. The insurer 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 its now exists and as it may be amended from time to time. 2. Claims Coveraae. The insurer further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670,4 as it now exists and as it may be amended from time to time. Those claims not subject to Cade of Iowa Section 670.4 shalt be covered by the temis and conditions of this Insurance policy, 3, Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurer. 4. Non -Denial of Coveratit The Insurer shall not deny coverage under this policy and the insurer shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court at 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 atter the coverage available under the policy. SPECIMEN (DEPARTMENT MANAGER.. FILL IN Att, BLANKS AND CHECK BOXES) Page 3 of 3 Schedule S Docking Of Commerical Vessels July 2017 20