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Diamond Jo Lease Agreement & Liquor LicenseMEMORANDUM April 17, 2003 TO:The Honorable Mayor and City Council Members FROM:Michael C. Van Milligen, City Manager SUBJECT:Lease Agreement Between the City of Dubuque and Peninsula Gaming Company, LLC Corporation Counsel Barry Lindahl is recommending adoption of a one-year lease for $25,000 of the patio area south of the Portside Building to allow the Diamond Jo to provide outdoor entertainment this summer. The intent of the Diamond Jo is to erect stadium seating on the east end of the patio, fixed seating in the center of the patio and a stage and large tent on the west end of the patio (Attachment 2). The Diamond Jo has agreed to continue to negotiate a long-term lease that includes the parking area, as requested by the City. I concur with the recommendation and respectfully request Mayor and City Council approval. ____________________ Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager April 16, 2003 Mr. Michael C. Van Milligen, City Manager City Hall - City Manager's Office 50 West 13th Street Dubuque, IA 52001 RE: Lease Agreement Between The City Of Dubuque And Peninsula Gaming Company, LLC Dear Mike: Attached is the lease that has been negotiated with Peninsula Gaming Company, LLC for the "patio area" which is the area between the Portside Building and the Diamond Jo Riverboat Casino. The essential terms of the lease are as follows: · The lease term is from May 1, 2003 through October 15, 2003 for a rental of $25,000.00; · The lease will allow Peninsula Gaming Company to hold approximately 30 events during this coming season; · Peninsula is authorized to construct temporary seating and to erect a temporary tent and stage area on the patio as shown on Exhibit B attached to the lease; · The parties have agreed to negotiate in good faith for a long-term lease for the patio and the parking lot shown on Exhibit A with the intent that such long-term lease may be finalized in June, 2003. I believe the lease is consistent with our requirements for the short-term use of the area. I recommend that it be submitted to the City Council for consideration. Very sincerely, Barry A. Lindahl, Esq. Corporation Counsel BAL:tls Enclosure RESOLUTION NO. 133-03 Whereas, applications for Liquor Licenses have been submitted to this Council for approval and the same have been examined and approved; and Whereas, the premises to be occupied by such applicants were inspected and found to comply with the State Laws and all City Ordinances relevant thereto and they have filed proper bonds. ~: NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: That the Manager be authorized to cause to be issued the following named applicants a Liquor License. ~;~_A~S "C" BEER/LIQUOR LICENSF Peninsula Gaming Company LLC Diamond Jo Casino (Outdoor Sale) 400 W. 3r~ St Passed, approved and adopted this day 21st of April 2003. Terrance M. Duggan, Mayor Attest; Jeanne F. Schneider, CMC City Clerk LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND PENINSULA GAMING COMPANY, LLC. THIS LEASE AGREEMENT (hereinafter called the" ase") executed in duplicate, made and entered into this LL/r.v day of , 2003 by and between THE CITY OF DUBUQUE, IOWA (er after called the "Landlord") whose address for the purpose of this Lease is City Hall, 50 West 13th Street, Dubuque, Iowa 52001 and PENINSULA GAMING COMPANY, L.L.C. (hereinafter called the "Tenant") whose address for the purpose of this Lease is 3rd Street - Ice Harbor, Dubuque, Iowa 52001. 1. PREMISES AND TERM. The Landlord, in consideration of the rents herein reserved and of the agreements and conditions herein contained, on the part of the Tenant to be kept and performed, leases unto the Tenant and Tenant, in consideration of the agreements, representations and conditions herein contained, hereby rents and leases from Landlord, according to the terms and provisions herein, the following described real estate, situated in Dubuque County, Iowa, to wit: The patio area (Parcel B) as shown on Exhibit A attached hereto and by this reference made a part hereof (the Leased Premises), legally described as a part of Lot 6 of Ice Harbor Development, according to the recorded plat thereof, with the improvements thereon and all rights, easements and appurtenances thereto belonging (hereinafter called "Demised Premises"), for a term commencing at midnight of the day previous to the first day of the lease term, which shall be on the 1 st day of May, 2003, and ending at midnight on the last day of the lease term, which shall be on the 15th day of October, 2003, upon the condition that the Tenant pays rent therefore, and otherwise performs as in this Lease provides. Tenant acknowledges that Landlord claims a non-exclusive, perpetual walkway easement over and across Lot 7 for itself and for public pedestrian access to and from Lot 6 in Ice Harbor Development. Landlord agrees that during the term of this Lease, Landlord shall not enforce said easement and Tenant shall have all of the rights and responsibilities with respect to the easement as if it were a part of the Demised Premises. The Landlord reserves unto itself a non-exclusive, perpetual Public Access Easement, to run with the land, as shown on Exhibit A, for itself and for public pedestrian access, said access to remain open, clear and unobstructed at all times except as may be otherwise agreed to in writing by the Landlord. 2. RENTAL. Tenant agrees to pay to Landlord as rental for said term, as follows: $ 25,000.00 in advance, upon full execution of this Lease and receipt of appropriate permits to construct the temporary improvements as identified in Paragraph 7 below and Exhibit B attached hereto and receipt of all necessary permits (including beer permits) for Tenant to hold at least 30 events pursuant to requests for permits to be submitted by Tenant on or before April 15, 2003. . All sums shall be paid at the address of Landlord, as above designated, or at such other place in Iowa, or elsewhere, as the Landlord may, from time to time, designate in writing. 3. POSSESSION. Tenant shall be entitled to possession on the first day of the term of this Lease, and shall yield possession to the Landlord at the time and date of the close of this lease term, except as herein otherwise expressly provided. Should Landlord be unable to give possession on said date, Tenant's only damages shall be a rebating of the pro rata rental 4. USE OF PREMISES. It is contemplated between the parties that the Demised Premises shall be used by Tenant for concerts (primarily but not limited to Wednesdays and Fridays), entertainment and food service to the customers of Tenant and other members of the public and that attendance at some of the events will require an admission fee or other charge and some will be without charge. Tenant shall have the right, at its option, during the term of this Lease, to use the Improvements (as identified below) and the Demised Premises in any reasonable and lawful manner consistent with Tenant's then current business practices. 5. QUIET ENJOYMENT. Landlord covenants that its estate in said premises is fee simple; and that the Tenant on paying the rent herein reserved and performing all the agreements by the Tenant to be performed as provided in this Lease, shall and may peaceably have, hold and enjoy the Demised Premises for the term of this Lease free from molestation, eviction or disturbance by the Landlord or any other persons or legal entity whatsoever. 6. CARE AND MAINTENANCE OF PREMISES. (a) Tenant takes said premises in their present condition except for such repairs and alterations as may be expressly herein provided specifically including removing and replacing the sealer on the sidewalk in front of the entryway on the northwesterly side of the Portside Building which shall be completed within a reasonable time following execution of this lease at the expense of Landlord and any environmental hazard or condition existing on the Demised Premises. (b) LANDLORD'S DUTY OF CARE AND MAINTENANCE. Landlord shall have no duty of care or maintenance, except for any and all underground utilities with regard to the Leased Premises, removing and replacing the sealer on the sidewalk in front of the entryway on the northwesterly side of the Portside Building which shall be completed within a reasonable time following execution of this Lease at the expenses of Landlord and any environmental hazard or condition existing on the Demised Premises. (c) TENANT'S DUTY OF CARE AND MAINTENANCE. Tenant shall at all times during the term of this Lease, at Tenant's own costs and expense, keep and maintain the Demised Premises and all improvements in a condition consistent with other similarly classed operations. Upon reasonable notice to Tenant, Landlord may, at its discretion, upon reasonable notice to Tenant, conduct an inspection of the Leased Premises to determine Tenant's compliance with this Article 6. Tenant shall, after taking possession of said premises and until the termination of this Lease and the actual removal from the premises, at its own expense, care for and maintain the surface of the Leased Premises in a reasonably safe and serviceable condition including snow removal. Tenant will not permit or allow said premises to be damaged or depreciated in value by any act or negligence of the Tenant, its agents or employees. Tenant may repair and replace any portion or all of the Leased Premises. The Tenant's maintenance obligation hereunder shall include snow removal and other general maintenance. Notwithstanding other provisions in this Lease, Landlord hereby grants to Tenant the ability to resolve any dispute with the contractor(s) originally installing or repairing the same on its behalf during the term of this Lease. Tenant shall not be responsible for any repair or replacement of concrete required as a result of poor, improper or negligent installation or repair of the concrete prior to the inception of this Lease or for any such repair or replacement that is otherwise covered by warranty or contractual or legal liability of the contractor(s) originally installing or repairing the same. (d) Tenant 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. 7. IMPROVEMENTS. On delivery of possession of the Leased Premises to Tenant, Tenant shall not construct on the Leased Premises any structures, buildings or other improvements except as herein provided or subsequently agreed upon by the Landlord and Tenant (the "Improvements"). Landlord shall have the right, in its reasonable discretion, to approve the design, appearance and quality of any such Improvements, which approval shall not be unreasonably withheld or delayed. On delivery of possession of the Demised Premises to Tenant, and subject to Tenant obtaining all necessary permits or approvals, Tenant shall be entitled to construct on the Demised Premises the following temporary structures, as shown on Exhibit B: a grandstand and a temporary stage as shown on Exhibit B; a stage cover; production requirements that will necessitate Tenant to core bore underground with a temporary transformer located on the Demised Premises; and a fence to control access to the grandstand area. All temporary Improvements hereafter constructed on the Demised Premises are and shall be the property of Tenant during the continuance of the term of this Lease and shall be removed by the Tenant upon the termination of this Lease except the installation of concealed electrical improvements; at the termination of this Lease, Tenant shall be responsible for replacement of the three light poles removed during the term of this lease. Tenant shall at its expense replace or repair any bricks or concrete or other Landlord property damaged by Tenant during its construction process; however, installation of not more than 24 metal sleeves referenced in the following paragraph shall not be considered to have damaged the bricks or concrete if capped by Tenant as set forth in the following paragraph. Landlord shall, at Tenant's expense, install not more than 24 metal sleeves in the concrete on the Demised Premises in locations designated by Tenant for purposes of the erection of Tenant's tent. The sleeves shall include a protective cap to be installed over the metal sleeve that is level with the existing concrete surface. The caps shall be installed by Tenant at any time the tent is removed from the Demised Premises. The eastern edge of the tent and stage area when installed shall be no farther west than the western edge of the Portside Building as shown on Exhibit B. The tent shall be designed and installed in such a manner that the north and west sides of the tent are enclosed so as to minimize noise from the north and west sides of the tent. Tenant shall not encumber by mortgage, deed of trust, or other instrument, its leasehold interest and estate in the Leased Premises. 8. ICE HABOR URBAN RENEWAL DISTRICT DESIGN STANDARDS. Landlord agrees that it shall be responsible for compliance with and payment for any changes to the Demised Premises necessary to comply with the Ice Harbor Urban Renewal District Design Standards as it currently exists or might hereafter be amended and Tenant shall have no responsibility or liability therefore. 9. UTILITIES AND SERVICES. Tenant, during the term of this Lease, shall pay, before delinquency, all charges for all utilities and services, including garbage disposal and trash disposal. 10. SURRENDER OF PREMISES AT END OF TERM - REMOVAL OF FIXTURES. (a) Tenant 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 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 Tenant shall remove any or all of the Improvements erected by Tenant located on the Demised Premises and restore the Demised Premises to the condition it was in immediately prior to the commencement of the term of this Lease, other than the sleeves described in Par. 7 (b) HOLDING OVER. Continued possession, beyond the expiratory date of the term of this Lease, by the Tenant, coupled with the acceptance of the specified rental by the Landlord and a written agreement by Landlord for an extension of this Lease shall constitute a month to month extension of this Lease. 11. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned nor the Demised Premises sublet by the Tenant without the prior written consent of the Landlord. Tenant understands and agrees that Landlord's consent is at Landlord's sole option and complete discretion and that such consent may be withheld or may be granted with any conditions or requirements that Landlord deems appropriate. 12. TAXES. (a) Tenant agrees to pay to Landlord as additional rent at the time of the payment of the Rental in Par. 2 an amount equal to real estate taxes upon the real estate of the Leased Premises for the term of this Lease. (b) The Tenant 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, charged, assessed, levied or imposed upon the leasehold estate hereby created during the term hereof, and all such taxes, rates, charges, levies and assessments shall be paid by Tenant as they become due and before they become delinquent, subject, however, to the limitations and obligations of Landlord set forth in this Lease. (c) Tenant agrees to timely pay all taxes, assessments or other public charges levied or assessed by lawful authority (but reasonably preserving Tenant's rights of appeal) against its personal property on the premises, during the term of this Lease. (d) Nothing herein shall require Tenant to pay any of Landlord's income taxes, surtaxes, excess profit taxes or any taxes on the rents reserved to Landlord hereunder. (e) Tenant shall at all times have the right to contest in good faith, in any proper proceedings, in the name of Landlord if necessary, the payment or satisfaction of any such taxes, assessments, rates, charges or levies so agreed to be paid by Tenant, if the validity thereof, or the right to assess or levy the same against or collect the same from said Leased 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, Tenant 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. 13. INSURANCE. (a) Landlord and Tenant will each keep its 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 Tenant will procure and deliver to the Landlord 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 the Tenant's share of such insurance proceeds are hereby assigned and made payable to the Landlord to secure rent or other obligations then due and owing Landlord by Tenant. (b) Neither Landlord nor Tenant will not 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 the Tenant upon which the Landlord by law or by the terms of this Lease, has or shall have a lien. (c) WAIVER OF SUBROGATION. Notwithstanding any other provision in this Lease to the contrary, both Landlord and Tenant herein 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 Demised Premises, including improvements thereon, or to any property of either party maintained on the Demised 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 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. (d) INSURANCE PROCEEDS. Landlord 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 Landlord to be used in payment for cost of repairs or restoration of damaged building, if the destruction is only partial. 14. INDEMNITY AND LIABILITY INSURANCE. Tenant will protect, indemnify, and save harmless Landlord 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 Landlord 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 Tenant or anyone claiming by, through, or under Tenant during the term of the Lease; and (b) any failure on the part of Tenant to perform or comply with any of the terms of this Lease. In case any action, suit, or proceeding is brought against Landlord by reason of such occurrence, Tenant will, at Tenant's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by Landlord. The Tenant further covenants and agrees that it will at its own expense procure and maintain casualty and liability insurance as set forth in the attached Insurance Schedule. Landlord will protect, indemnify, and save harmless Tenant 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 Tenant 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 Landlord or anyone claiming by, through, or under Landlord during the term of the Lease; and (b) any failure on the part of Landlord to perform or comply with any of the terms of this Lease. In case any action, suit, or proceeding is brought against Tenant by reason of such occurrence, Landlord will, at Landlord's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by Tenant. 15. FIRE AND CASUALTY. PARTIAL DESTRUCTION OF PREMISES. (a) In the event of a partial destruction or damage of the Demised Premises, which is a business interference, that is, which prevents the conducting of a normal business operation of Tenant or the purposes identified above and which damage is reasonably repairable within sixty (60) days after its occurrence, this Lease shall not terminate but the rent for the Demised Premises shall abate during the time of such business interference or be refunded if previously paid. In the event of partial destruction, Tenant 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 Tenant's reasonable control. (b) ZONING. Should the zoning ordinance or any other action of the City make it impossible for Tenant, using diligent and timely effort to obtain necessary permits and to repair and/or rebuild so that Tenant 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. (c) TOTAL DESTRUCTION OF BUSINESS USE. In the event of a destruction or damage of the Demised Premises so that Tenant is not able to conduct normal business operations, specifically including the purposes identified above on the Demised 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 Lease may be terminated at the option of Tenant. Such termination in such event shall be effected by written notice of Tenant to Landlord, within twenty (20) days after such destruction. Tenant shall surrender possession within ten (10) days after such notice issues, and each party shall be released from all future obligations hereunder, Landlord shall promptly refund rental pro rata to the date of such destruction. 16. CONDEMNATION. (a) 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 other than Landlord, then this Lease 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 Tenant as a result thereof 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 Leased shall not be of sufficient size to permit Tenant to operate its business thereon in a manner similar to that prior to such taking. (b) Partial Condemnation. If less than all or substantially all of the Leased 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 Landlord, then Tenant, at its option, may elect to continue this Lease in full force and effect or terminate this Lease. If Tenant shall elect to maintain this Lease in full force and effect, the entire award for such partial condemnation shall be paid over to Tenant, and Tenant 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 Tenant elects to continue this Lease in full force and effect after a partial condemnation, there shall be no abatement in or refund of the rent Tenant is required to pay hereunder. Should Tenant elect to terminate this Lease upon a partial condemnation by any entity other than Landlord, Tenant shall provide Landlord with written notice of such election within thirty (30) days after the date of vesting of title for such taking. Tenant shall specify in such written notice the date on which this Lease shall terminate, which date shall be not less than 60 days or more than 360 days after delivery of such notice to Landlord (the Termination Date). In the event Tenant terminates this Lease, as provided for in this Paragraph 16(b), Tenant shall be entitled to the entire award for such partial taking. (c) Temporary Takina. If the temporary use of the whole or any part of the Leased Premises or the 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 other than Landlord, the term of this Lease shall not be reduced or affected in any way, and Tenant 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 Tenant, and the entire award for such temporary taking shall be paid to Tenant. Tenant shall repair and restore any and all damage to the Leased Premises and the improvements as soon as reasonably practicable after such temporary taking. (e) BANKRUPTCY OR INSOLVENCY OF TENANT. In the event Tenant is adjudicated a bankrupt or in the event of a judicial sale or other transfer of Tenant's leasehold 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 Landlord to Tenant, then and in any such events, Landlord may, at its option, immediately terminate this Lease, re-enter said premises, upon giving of ten (10) days' written notice by Landlord to Tenant, all to the extent permitted by applicable law. 17. DEF AU LT. If Tenant 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 Landlord setting forth the nature of Tenant'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 Tenant 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, Landlord shall have the right at its option, on written notice to Tenant, to terminate this Lease and all rights of Tenant under this Lease shall then cease. Landlord, without further notice to Tenant, 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 therefore 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 Landlord's original estate, without incurring any liability to Tenant 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. 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 Lease, 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. 19. SIGNS. (a) Tenant shall have the right and privilege of attaching, affixing, painting or exhibiting signs on the Demised 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 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 Landlord, which approval shall not be unreasonably withheld. Notwithstanding the foregoing, no signs shall be attached to or attached to in Landlord's property or the Demised Premises, including any concrete surface of the Demised Premises. 20. MECHANIC'S LIENS. Neither the Tenant nor anyone claiming by, through, or under the Tenant, 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 leasehold interest of the Tenant therein, and notice is hereby given that no contractor, sub-contractor, or anyone else who may fumish 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 Landlord, the Tenant 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. 21. RIGHTS CUMULATIVE. The various rights, powers, options, elections and remedies of either party, provided in this Lease, 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. 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. 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. 24. ENVIRONMENTAL. A. Landlord. Landlord shall assume liability and shall indemnify and hold Tenant harmless against all liability or expense arising from any condition which existed, whether known or unknown, at the time of execution of the Lease which condition is not a result of actions of the Tenant or which condition arises after date of execution but which is not a result of actions of the Tenant. B. Tenant. Tenant expressly represents and agrees: 1. During the lease term, Tenant's use of the property will not include the use of any hazardous substance without Tenant first obtaining the written consent of Landlord. Tenant understands and agrees that Landlord's consent is at Landlord's sole option and complete discretion and that such consent may be withheld or may be granted with any conditions or requirements that Landlord deems appropriate. 2. During the lease term, Tenant shall be fully liable for all costs and expenses related to the use, storage, removal and disposal of hazardous substances used or kept on the property by Tenant, and Tenant shall give immediate notice to Landlord of any violation or any potential violation of any environmental regulation, rule, statute or ordinance relating to the use, storage or disposal of any hazardous substance. 3. Tenant, at its sole cost and expense, agrees to remediate, correct or remove from the premises any contamination of the property caused by any hazardous substances which have been used or permitted by Tenant on the premises during any term of this Lease. Remediation, correction or removal shall be in a safe and reasonable manner, and in conformance with all applicable laws, rules and regulations. Tenant reserves all rights allowed by law to seek indemnity or contribution from any person, other than Landlord, who is or may be liable for any such cost and expense. 4. Tenant agrees to indemnify and hold Landlord 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 Tenant during the term of this Lease including, but not limited to, injury or death to persons or damage to property, and including any diminution of the value of any Demised Premises which may result from the foregoing. This indemnity shall survive the cessation, termination, abandonment or expiration of this Lease for a period of five years. 25. AMERICAN'S WITH DISABILITIES ACT. Landlord shall be solely responsible for, and agrees to indemnify and hold Tenant 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 Demised Premises during the term of this Lease, but not included any Improvements constructed by the Tenant. Notwithstanding the foregoing, if Tenant, with Landlord's consent, makes any alterations or improvements to the Demised Premises in addition to those set forth elsewhere in this Lease, then Tenant shall be responsible for the compliance of such alterations or improvements with the Americans With Disabilities Act. 27. ACKNOWLEDGMENT OF RIGHTS OF OTHERS. The parties acknowledge that this Lease Agreement is subject to a Lease Agreement, as amended, and specifically that certain Seventh Amendment to Lease Agreement made and entered into July 19, 1999, by and between the City of Dubuque, Iowa and Dubuque Racing Association, Ltd. (the Association), with respect to the Leased Premises. The Tenant has been provided with a copy of such Lease Agreement, as amended, and takes the Leased Premises subject to the rights of the Association as set forth therein. Tenant shall indemnify and hold harmless the Association from any and claims, damages, causes of action or demands that may arise as a consequence of Tenant's occupancy, use, or operation of the Leased Premises or portions thereof. 26. 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. 27. NOTICES. 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 LANDLORD: City of Dubuque, Iowa City Manager Ci~Hall 13t and Central Avenue Dubuque, Iowa 52001 TO TENANT: Natalie Schramm Peninsula Gaming Company, L.L.C. 3rd Street - Ice Harbor Dubuque, Iowa 52001. And Lorraine J. May 2700 Grand Avenue, Suite, 111 Des Moines, Iowa 50309 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. 31. MISCELLANEOUS (a) Time of the Essence. Time is of the essence of this Lease and all of its provisions. (b) Governina Law. It is agreed that this Lease shall be governed by, construed, and enforced in accordance with the laws of the State of Iowa. (c) Paraaraph Headinas. 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. (d) Modification of Aareement. 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. (e) 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 Landlord and Tenant. All references in this Lease to "Landlord" or "Tenant" shall be deemed to refer to and include successors and assigns of Landlord or Tenant without specific mention of such successors or assigns. (f) 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. 32. Long-Term Lease. As additional consideration for this Lease, Tenant and Landlord agree that they shall negotiate in good faith for a long-term lease for the Demised Premises and for the parking lot showing on Exhibit A, with the intent that such long-term lease shall be finalized by June 3, 2003. IN WITNESS WHEREOF, the parties hereto have duly executed this Lease in duplicate the day and year first above written. TENANT, PENINSULA GAMING COMPANY, L.L.C. BY~", 1/ ç~.. ? p.,'Q.c.%, &f.. /lJ,4nr.¡~.~:..r STATE OF IOWA ) COUNTY OF DUBUQUE) ss: On this 22nd day of April, 2003, before me, Karen M. Chesterman, a Notary Public in and for the State of Iowa, personally appeared Terrance M. Duggan and Jeanne F. Schneider, to me personally known, and, who, being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Dubuque, Iowa; that the seal affixed to the foregoing instrument is the corporate seal of the city, and that the instrument was signed and sealed on behalf of the city, by authority of its City Council, approved by the City Council of the City of Dubuque, Iowa, on the 21st day of April, 2003, and that they acknowledged the execution of the instrument to be their voluntary act and deed and the voluntary act and deed Ofthe~ ~YAi~:~~aril~~xecu~e/d.- ti / "'~~\^"" KAREN M. CHESTERMAN ~ lit ~l-v1/hJ lA'r- COMMISSION NO. 108258 Notary Public in and for State of Iowa .~. MYCOM ISSIONEXPIRES '°'" 1:>'5 STATE OF IOWA ) COUNTY OF DUB,U~ ) ss: On this r4-ct{ day of , 2003, before me, a Notary Public in and fottKestate of Iowa, pers nally appeared i::F II jj¡j gr ' to me personally known, who being by e duly sworn did say that fit is the Managing Member of said limited liability company, that (the seal affixed hereto is the seal of said)(no seal has been procured by the said) limited liability company and that said instrument was signed (and sealed) on behalf of said limited liability company by authority of its managers and the said acknowledged the execution of said instrumen to be the voluntary act and deed of said limited liabili . compa , y it olun rily xecuted. EXHIBIT A LEASED PREMISES EXHIBIT B DESCRIPTION OF IMPROVEMENTS AND LAYOUT INSURANCE SCHEDULE 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 AM. Best Rating Guide. All policies of insurance required hereunder shall be endorsed to provide a thirty (30) day advanced notice to the City of Dubuque of any cancellation of the policy prior to its expiration date. This endorsement supersedes the standard cancellation statement on the Certificate of Insurance. Tenant shall furnish Certificates of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 7. Such certificates shall include copies of the endorsements set forth in Paragraphs 2 and 5 to evidence inclusion in the policy. Each Certificate of Insurance shall be submitted to the City Manager's Office within thirty days of commencement of the lease term. All policies of insurance required in Paragraph 7 shall include the City of Dubuque, Iowa under the attached Additional Insured Endorsement (CG2026) and the attached Governmental Immunities Endorsement. 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 insurance required herein shall be considered a material breach of this agreement. Tenant shall be required to carry the following minimum insurance coverages or greater if required by law or other legal agreement: 2. 3. 4. 5. 6. 7. COMMERCIAL GENERAL LIABILITY: General Aggregate Limit Products-Completed Operation Aggregate Limit Personal and Advertising Injury Limit Each Occurrence Limit Fire Damage Limit (anyone occurrence) Medical Payments $ 2,000,000 $ 1,000,000 $ 1,000,000 $ 1,000,000 $ 50,000 $ 5,000 Commercial general liability shall be written on an occurrence form, not a claims made form. Coverage to include premises-operation-products- completed operations, independent contractors' coverage, contractual liability, broad form property damage, and personal injury. LIQUOR OR DRAM SHOP LIABILITY $ 3,000,000 CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmentallmmunitv. 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 form time to time. 2. Claims Coveraqe. 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 Coveraqe. 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 Chanqe in Policv. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. POLICY NUMBER COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART. SCHEDULE Name of Person Or Organization: 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. (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you. Copvriqht. Insurance Services Office. Inc. 1994 CG 20 2611 85 F: \US ERS\leqalsec\Leqal\M iscella neous \E ndo rsement Form. doc ~ 1'" :J ~ ~ i ",~,,~'-l ~ ~ % / /,8/// 'l/~ : ~ '/~ :%;./$;///ß è\ riS ~w«:wÞ::;; ,.,. i .:iiö~:I;c/% i."" ;-,---- ¡ -~~ !~( ;;,~Ji@ß I : : L----- I I -- I ! . I I [ : I --Ii 0 0 /~ (¡; " CIJ Q) -0 ~ La ..- ~ 1: ( ) E ( ) CJ) Ct w CJ)~ CJ) W ~ 0 () - <{ S c: - .- L{') Ct ..- .... ~ 000 ( ) -01- ( ) 0 Il. --! I~ c:: 0 '" c:: « :I: w !;2 D~~~E ~ck~ MEMORANDUM April 17,2003 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Lease Agreement Between the City of Dubuque and Peninsula Gaming Company, LLC Corporation Counsel Barry Lindahl is recommending adoption of a one-year lease for $25,000 of the patio area south of the Portside Building to allow the Diamond Jo to provide outdoor entertainment this summer. The intent of the Diamond Jo is to erect stadium seating on the east end of the patio, fixed seating in the center of the patio and a stage and large tent on the west end of the patio (Attachment 2). The Diamond Jo has agreed to continue to negotiate a long-term lease that includes the parking area, as requested by the City. I concur with the recommendation and respectfully request Mayor and City Council approval. (l1AJJ ~ ~ Mi¿hael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager hO ..'- ~ èD a w is' April 16,2003 Mr. Michael C. Van Milligen, City Manager City Hall - City Manager's Office 50 West 13th Street Dubuque, IA 52001 RE: Lease Agreement Between The City Of Dubuque And Peninsula Gaming Company, LLC Dear Mike: Attached is the lease that has been negotiated with Peninsula Gaming Company, LLC for the "patio area" which is the area between the Portside Building and the Diamond Jo Riverboat Casino. The essential terms of the lease are as follows: . The lease term is from May 1, 2003 through October 15, 2003 for a rental of $25,000.00; . The lease will allow Peninsula Gaming Company to hold approximately 30 events during this coming season; . Peninsula is authorized to construct temporary seating and to erect a temporary tent and stage area on the patio as shown on Exhibit B attached to the lease; . The parties have agreed to negotiate in good faith for a long-term lease for the patio and the parking lot shown on Exhibit A with the intent that such long-term lease may be f~nalized in June, 2003. I believe the lease is consistent with our requirements for the short-term use of the area. I recommend that it be submitted to the City Council for consideration. Very sincerely, Barry A. Lindahl, Esq. Corporation Counsel BAL:tls Enclosure Scale: 1=100 EAST THIRD STREET LOT PORT SIDE BUILDING ~LOT EXHIBIT "A" ICE HARBOR m Pedestrain Access Easement (15' Wide) LOT D (15' WIDE)