Signed Contract_Scales Mound Packet CO. dba River CruisesDOCKING LICENSE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
SCALES MOUND PACKET CO. dba RIVER CRUISES
THIS AGREEMENT (the Agreement), executed in duplicate, made and entered
into this _ day of 7 2021 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
(Twilight), whose address forthe 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 real estate,
situated in Dubuque County, Iowa, as shown on 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 on the
1 st day of October, 2020, and ending at midnight on the 30th day of September, 2023 (the
Term), 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 Twilight to be installed at City's cost.
SECTION 2. DOCKING FEE.
2.1. Docking Fee.
A. River Cruises agrees to pay to City a monthly docking fee (the Docking Fee)
during the Term $1.00 per full -paying passenger.
B. The Docking Fee shall be paid monthly by not later than the 1 oth day of the
following month beginning on the 1 oth day of December, 2021, and not later than
the 1 oth day of each month thereafter at the address of City, as above designated,
or at such other place as City may, from time to time, designate in writing.
C. In the event the total Docking Fee on November 30 of each year of the Term
is less than $5,000.00 for the previous twelve-month period, River Cruises shall
pay the difference between $5,000.00 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. River Cruises shall be entitled to possession on the first
day of the Term and shall yield possession to City at the time and date at the end of the
Term, except as herein otherwise expressly provided. City has no obligation for any costs
or expenses incurred by River Cruises in connection with this Agreement.
SECTION 4. USE OF PREMISES.
4.1. The Licensed Premises shall be used by River Cruises for the following uses only:
riverboat rides; serving of meals and/or beverages on Twilight.
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: Twilight
and accessory barge.
4.3 If the vessel identified in Section 4.2 is 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 the proposed substitution at
the earliest practicable time.
4.4 River Cruises shall not broadcast announcements over a public-address system
more often than every five (5) minutes and not prior to thirty (30) minutes before any
cruise departs the dock. River Cruises shall not broadcast music over a public-address
system more than fifteen (115) 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 fee herein reserved and performing all
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 City or any other persons or
legal entity whatsoever.
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SECTION 6. CARE AND MAINTENANCE OF PREMISES.
6.1. River Cruises takes the Licensed Premises in its present condition except for any
environmental hazard or condition existing on the Licensed Premises.
6.2. City'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' Duty 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 Section 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 the Licensed 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.
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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 exist 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. River Cruises shall, on the last day of the Term of this Agreement or upon
any termination of this Agreement, surrender and deliver up the Licensed Premises, with
the Improvements then located thereon into the possession and use of City, without fraud
or delay and in good order, condition and repair, reasonable wear and tear excepted, free
and clear of all lettings and occupancies, free and clear of all liens and encumbrances
other than those existing on the date of this Agreement and those, if any, created by City,
without (except as otherwise provided herein) any payment or allowance whatsoever by
City on account of or for any buildings and Improvements erected or maintained on the
Licensed Premises at the time of the surrender, or for the contents thereof or
appurtenances thereto. River Cruises Trade Fixtures, personal property, equipment
materials and other belongings of River Cruises or of any sublicensee or other occupant
of space at the Licensed Premises shall be and remain the property of River Cruises, and
River Cruises shall have a reasonable time after the expiration of the Term of this
Agreement (not to exceed thirty (30) days) to remove the same. If River Cruises fails to
remove any River Cruises' Trade Fixtures, personal property, equipment, materials or
other belongings from the Licensed Premises within thirty (30) days of the expiration date
of this Agreement, they will immediately become property of City. Any costs incurred by
City having to remove, relocate, handle, store, sell or dispose of River Cruises' items
described in this Section shall be paid for by River Cruises.
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 City, which consent shall not be unreasonably withheld.
SECTION 12. TAXES.
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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,
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.
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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 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
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
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improvements on the premises or upon any personal property of River Cruises upon
which City by law or by the terms of this Agreement, has or shall have a lien.
13.3. Waiver of Subrogation. 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
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 policies of insurance for the Licensed Premises, and all insurance
monies shall be paid to and held by City to be used in payment for cost of repairs or
restoration of damaged building, if the destruction is only partial.
SECTION14. 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 Agreement; and (b) any failure on the part of River Cruises to perform or comply with
any of the terms of this Agreement. 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
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Premises during the Term of this Agreement and resulting from any act or 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
reasonably repairable within sixty (60) days after its occurrence, this Agreement shall not
terminate but the fee 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 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 affected 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 fees 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 fees shall be apportioned based upon the value of the
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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 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 fees, additional fees, 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
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 InsolvencV 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 (110) 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.
SECTION18. 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 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 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
orother 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 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.
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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 regards to the Demised Premises
and its use, occupancy and control of the Demised Premises.
24.2 Environmental Matters.
A. 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
any responsibility for any Hazardous Substance which leaches or migrates upon
the Dernised 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.
B. Lessee covenants and agrees to promptly notify Lessor of any release of
Hazardous Substance for which Lessee is responsible under this Section 12.2(l)
that exceeds permitted levels as defined by any local, state or federal laws
applicable to Lessee's use of the Dernised 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.
C. 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.
D. Except as necessary to conduct its operations and use the Dernised
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
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or allow the manufacture, treatment, or disposal of Hazardous Substances on the
Dernised Premises. Lessee shall use and store on the Dernised Premises only
those Hazardous Substances as are associated with its regular business activities,
and then only as allowed by applicable law.
E. 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
45513, 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
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.
F. 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.
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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 must 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 AGREEMENT. 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, 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
in writing and deposited in the United States mail, registered and postage prepaid, and
addressed as follows:
If to City:
If to River Cruises:
City Manager
50 W. 13 th Street
Dubuque, Iowa 52001
Scales Mound Packet Co.
Kevin Stier, President
PO Box 172
Scales Mound, Illinois 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.
12
29.2. Holdover. Should River Cruises remain in possession of the Licensed Premises
after the expiration of the Agreement, or any renewal thereof, without the execution of a
new License, such holding over in the absence of a written agreement to the contrary
shall be deemed, if City so elects, to have recreated and be construed to be a tenancy
from month to month, terminable upon thirty (30) days'written notice by City. Fees shall
be prorated on a monthly basis until a new agreement is executed. The prorated fees
are subject to a retroactive fee increase as agreed to by City and River Cruises as part of
executing a new agreement after the Term of this Agreement expires.
29.3. 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.
29.4. 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 Agreement.
29.5. 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.
29.6. 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.
29.7. Force Maueure. 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 SCALES MOUND PACKET CO.
13
B
4Mic —a�eAI�C.�Ilan illigen
City Manager
14
By:
Kevin Stier, Pre )d - t
7 ?
EXHIBITS A AND B
LICENSED PREMISES
15
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alVEAS CWM
MARINA
BUILOING
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Li
PORT OF DUBUQUE
MARINA
EXHIBIT A
ICE HARBOR
Firlor"Mr.
0 3(y 601
SCALE l' = 6V FEET
3t It
FLOOD CONTROL
GATES
Dubuque CITY OF DUBUQUE
ENGINEERING DEPARTMENT
�L. � �my i3� 5rmme r
DLJBLI.a UE. A 621>01-48-34
r-Lyon I ftw�w Lwq2pL 1�- D�I.ffl,
FOR7 C3F DUBUQUE
120' F;LIVFFtSC:OAT TWILMLI-17
D KING LICEr-4SE AGREEMENT EXHIBIT
ZD� I �r" 4� 1 a J
am
ICE HARBOR
EXHIBIT B
.-IF �
PARKING
LOT 6
1 4.
muU,dymeem
JOUE MARINA
-NOR11H
0 scy 100, .50
SOALE 1'= 100'FEET
nm
F LOOD C 0 N TROL
GATES
Dubuque
CITY OF DLJ13LJQLJE
EN GI N EER I NG 1) EFARTIVI E NT
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01TYNALL, 50WEUTi3khmrrRti i
DUBUMUE, IA 521301-4984
(Mal Bog-4271, rA-X J!P53) 3ag—Z"
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FOR7 CW DLFBLR�LPE
RIV19FRUQAT TWIL ll-.LHT
DOCKI NG I -I GENSE AGREEMENT EXHI B IT
CIP.04ow 1 �-M6-w 2 w Lj
19
EXHIBIT C
INSURANCE SCHEDULE S
20
City of 0 ubuque Insu rance Requireme rrts f Dr Dc�ckkng of Ccimmefcial Vesse Is
INSURANCE SCHEDULE S
Cipararof shal I fumish. a signed carLfisate oF i.nsura nc-e lo the C�ty of Dubuque, Iowa Mr
the coverage required in ExhM Ipe*ix to cx3ntrau inoeFfion and al the -arid cvf the ccnuad
if the Lerrn oF contract is Icnger than 613 6ays. Each ce i-bricaie sha H irwlude a stat-emeni
under lD-9!scF-iptiofi oF Operabons as to why issued. Eg - Project # i3r Laase of
pf emises at
2. AJI pol6das of insurance raq uir-ad here under shall ba wi 1h an i nSUTer auttKxized to dci
busimn2sr. i n lowa and all in sur-ers shall have a r ating c� A or bettgr in the currant A. M.
Basi's Rating Guide.
3. Each cerli ficate shall be (u rnished tD the Firtance Depar-neni; & the City cif Dubuque.
4 Failuf Er lo provide mi nirnum coveFage sliall: not be dee mea a WaiVef i3f Lhasa
raq uirernan Is by IhE City DF Dubuque. Faiura ID oblain or mmi-man ql-m requireir
Lnswarrmr shal I be considered a rnatigrial breacti rA this agiree ment.
5. AJI required endDrsern ants qo vanou r. pDlicies r�ha 11 be altachad La Ce rtdicale of
insur ance.
6. Tha Operator shaN te irequtred ta c-wry the mininrikan oaverrageflimrits, ce greaLw if
irequirad by law cir crLher leg* agreerneni, in Exh imi 1. If Iha G�mrmcir's. Limms Df lobBily
af e higher tha n the required mi niFnurn MRS Lhe n the provider's IIMLIN Shan 158 11-US
agFus me nt's raquired limits.
7 Whenever an ISO lorm is rer-arenced lha currerni adilkyn Df the form musl be Lised
8 LAgssee, 11cense A perrninaes s haj I be rasponFiible FDr dedumble-9 wd sell-msured
ratanun for paymant of all pulwy premiums and otherr r-M I EISSOCLated WiLh the insurance
palicie�s requirad belaw.
9. AJI cm rtircajes cif insurance muss include agen is n ame phuna n umber, and i3nA
address
113. The Dty of Dubuque reserves Lhe righi. ID require COMI3101B. CM-bf �L-d C43pies of al� reCIM red
Lnsurainca pal icmn, including endcusarnan us. required by this Sc hadi-I ILL aL arry drine
11 The Cay of Dubuqufi reserwes the nght la m4adify Lhese requrems-niia. innuding limpts.
based an changes m the risk or other spamal circumstancos duiring the larm Df the
agiras me nt -suLH49LI bo mwfbLimW jjgmairirisril ol the pai lies.
A)
0)
C)
City of Dubuque insurance Requir-emerris. fair Dmilking DIF Giammericial Yes Eals
INSURANCE SCHEDULE S (continued)
PROTECTI OIN & INGEMN ITY ILLM111-11TY $2.(10101.13DO
I ) Coverage shal I be wriKen on an occurre nce, nol -r-Aaj ms made. fDf m.
2) End ud-8 E rid-arsoment indicating Lhat coverage is primary arnd nDn-c4mlributary.
3) Prid ude e ndoi-Eament tD preservu Gavernmentat Immuruty. (Sample aluched
4) Ind udi3 add iltiona I i naured andarsaman I for:
The Dt� Df DubUqUE, including all ils elected and a ppci- nted officials. all As
emplayeas and volunisius, all its bcwds. mrnmiEsion-s andfnr auffian4es and
their board mam bers. -employees and volunteens.
5) Rol icy 5hall ind ude Warver 13F Right tD Fleccwur f rorn 0 Llhai-5 i3ri-dorse men[.
YWORKERS'COMPENSATION. LHVVCA & EMPLOYERS LIA131LITY
-Stamory Mrmrits covering Al ernployses injured cin Ine job IDy acciClGnt or d mease aS
prescribed by Iciw3 Code C hapter .85.
Cowerage A Sta!!Wory—Stal.-s of tmwa
Coverage E Emp4oVers Liability
Each ALcident 1 N.1300
Each EiririplcWe-Ur�easa I M.13013
Pcilwcy Limit -Disease SIX1.1300
Pal wy shall Inchide Waiver of Righ L ID Racwar from Cithe rs -andorseme nt.
uoNshoreman and Harbor Workers Campensation Azi Gove ragE.
Coverage B liMLLS shal I be greater if ri3qui red bV the umbrelialwc-ess insurer.
OR
If. by lawa. Code Section 65.1 A. thm Wssea. lica rise & parmitteas rs mil required ID
purchasei Workers' Compenselmn J".urancei, the lessee licensff & permiLtees shai I ha%m
a cA3py of �ha S Lars's Uanveaticn cif Workers' Compamiacon or Emp"ffs' LiBUIRV
Cowerege lum on f da with Lha laws: Wcw K-ars' CoWensatim lnsuFarv-e Commmsinner. a&
raq uired by I-owa Code Savicin 87.2�. Compl-etud rorm rnusl be wtachad
POWUTION LIABI LIT Y
11rcilwang iriansft)
Cowerage required. _ Yes _ No
Ga nief a] Aggr-egetff UMA
Each 0cwi-ircincm limit
S4.000-003
$2.000.000
1) Pchr�y shial inctuft an odd itionim tnuff ad andaraerrienj for -
The Cq of Quhuqua. Includmg all ItE abacbed and appernted -DiFiciais, SIL As
vrn*Vgw1 and volunilears, 0 its 0gar%. cmirii-irniss1Qris analcir authon-Ims and
theIr tpuard momDws. eiririoQyees anci. wcd4nWers
Page 2 of A Scoodwo S Docking Or Cammerical Vassals Apf il 2021
City of ;D ubuquEr Ins uraince Requir-eme ras f Dr Docking Df CGmmercia4 Vesisels
INSURANCE SCHEDULES (continued)
2) PrDvide -evidence of coverage Tcr 5 years aher completion c4 prujact.
3) Ind Lids PremrvabDn cif Gcivernmental� lmr-sunities endorsement. � Sample
aftached).
D) UMBRELLAdEXCESS LIABILFTY- 55.000,(100
The Genaral Liability, AulomDbHe Liability and 'Nark-ers Compensatran In rurancz
req uiremants nnay be satisried with a combinafion� of pn mary and Umbrella �w Excess
Liabil ity Insurance- If the U mbrella Dr Excess Insurance palicy does noL follcw the (ofm DF
the primary policies. R sha M ind ude the same endarsemems as requir-ed cif the prirnary
pal rnies i ncludi.ng Waiver oF Subrogaficn and Prffnary and Non-u:in Lributary i n favor ct the
oty.
City of D u bu que Ins u rance Requireme ras f or Do�ckiirtg D1 Comme-ii-clall Vontol:z
Please be aware Bat naming 1h.9 City c4 Dubuque as an addilional insured as is required by fts
In surance Schedide nriay result in [he waiver cA the Qty's govi3mman Lai im n-runites provided in Iowa Cc -de
sec. 670.4. 1 f you would like Lo prase rve those i mmuni bas. PL-EiSe LJSe [his E M-ors-Ement or an equiwaleril
JGfm
PRESERVATION OF GOVERNMENTAL IMMUNITtES ENDORSEMENT
11- Ncinwaivar Dr Governmema I Immunity. The rnsureir axpressly agrees and sLvus "I. the purchase
of th is policy and the induding D? the City ct Du buque. bawa as a n Add itional Insured does nal wa i%iu a ny
of 1he defenses of girwernme-mal immun ity avatlable kD Lhe City Df iDubuq ue, ICWa under Code C1 �miva
Sec Ucin 670.4 as it is now existy, and a-s il may be amended f rum LLme 1r, 4jrro
2. Clawm Cciveracia. The insurer �arffier agrees 1haq this policy of insurance sha.11 cover onIV Irlose
daims no4 su bjec;I: qD !he da,ense of goyernmenta-I immunity under Lhe Code D( lcwe Sec;bcn 6 711.4 as it
ncw exists and as. I L may be arn-anded f rDm U me W time Those cLairm not subjeCL W Code Gr Iowa
Sec Ucin 1570.4 sh-aU ba cav-Ered by LhH 1E rMS a nd condiltons 0 th is. insurance policy
3. Asseruan cif GovEirni-irmani. Immunity. The C rLy of Dubuque, Jowa shal-I be rasponsitAr Im aisnennq
anV def a nse of gDv-pr nmenial imm. Lin ity, and may do sD al. any flum and shal.1 cb s43 upon the tin-AsIV wrimen
rnquest of tha insuror.
4 N-pri-Denial of Coya[age The insurer stiall n(31 denV covaregs LEnder LN:5 -pc&V ELnd the insurar
shal I nol. dany any of the r ights and benef ii.r. accruing t4o tho Gity cd Dubuque, lcma lindef this p43Lc;y kK
n3asuns i3f goyernmenial immuiruty un less and Lin Lil a couril A competanI 1 urkscitction. �ms ruk3,d In ft�DF Of
this dafennM s) al govErnirmirTWI irnmu nily awserted 13y [he City cif Du buquis. ICWa
No GLI-er C riangs in PollcV. The a tovo pruservaticin of gimmmmanial immuniries. shEU I not otme rwise
change ar aller Lhe covairage avaira)ls undor th& paricy.
SPECIMEN
�Q EPARTU ENT MANAGE R: F I LL IN ALL JILANKS AND C-HEC-K BOXE S1
EXHIBITS A AND B
LICENSED PREMISES