Dubuque Community Ice and Recreation, Nothern Lights_License AgreementMasterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Approve License Agreement Between Dubuque Community Ice &
Recreation Center, Inc. (DICE) and Northern Lights Hockey, LLC
DATE: August 13, 2010
Leisure Services Manager Marie Ware is requesting for the City Council to approve the
License Agreement between DICE, Northern Lights and the City.
concur with the recommendation and respectfully request Mayor and City Council
approval.
MCVM:Iw
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Marie Ware, Leisure Service Manager
Michael C. Van Milligen
Dubuque
bitil
All- AmeticaCAU
1111 I
2007
Masterpiece on the Mississippi
TO: Michael C. Van Milligen, City Manager
FROM: Marie L. Ware, Leisure Services Manager
SUBJECT: Approve License Agreement Between Dubuque Community Ice
& Recreation Center, Inc. (DICE) and Northern Lights Hockey, LLC
DATE: August 4, 2010
INTRODUCTION
The purpose of this memo is to request City Council approval of the License Agreement
between Dubuque Community Ice & Recreation Center (DICE), Northern Lights Hockey
and the City of Dubuque.
BACKGROUND
Dubuque
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An- knedcaCity
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2007
The City of Dubuque and DICE entered into a lease agreement for the ice arena now
known as The Mystique Community Ice Arena on October 30, 2009. DICE has been
working with Northern Lights Hockey LLC to develop an agreement between the two
parties. The License Agreement takes a specific area of the ice arena and licenses
from DICE to Northern Lights for use during their games. In return, Northern Lights is
providing funds for improvements to the area.
DISCUSSION / RECOMMENDATION
The attached License Agreement has been approved by DICE and Northern Lights. I
recommend the City's approval of this agreement. It has been reviewed and is
acceptable to Barry Lindahl, City Attorney.
ACTION REQUESTED
The action requested is that the City Council approve the License Agreement between
DICE, Northern Lights and the City.
MLW:et
attachment
LICENSE AGREEMENT
T
,Pis License Agreement. (the: "Llo6rise!') is made and -entered into as. of the 1 6V
day of: iv__,V�Is�_ 2040, by Ahd between DUBUQUECOMMUNITY ICE & RECREATION
CENTER, 14 C_._CV1c0bs6r`), and NORTHERN LIGHTS -HOCKEY, LLC, alimited ffafbilit r
company, having its
7a principal place of business at Dubuqqo-, Dubuque County, Iowa
:("Licensee'
Whereas, the UY of Dubuque., -Iowa {'Lessor''), -as owner, and Dubuque
CommUn.1ty Ice and Recreation Center,- Inc., as lessee: ' entered into a :Lease: Agreement
dated for reference. October 30,. 20.09. '(the "LeasO"), acopy of w'kich"' Lease Is - attached
hereto, mihereby Lessor leased to Licensor the entire ice arena - located in Dubuque, Iowa
kwwh as. The Mystique Community Ice Arena {tho'Arena"); and
Whereas Licensor, desires to .license -a part of *the Arena to Northern 'Lighfs Hockey,
LLC, for use at certain times. durihg the Term hereof upon the terrins - Aho c6h ditiont, set
forth herein; and
Whereas, the Lease roquires the bUns0f of :Lessor to any subleaso br license of
the Arena, and
Whereas, Lessor will consent to this License but only on the terms and conditions
aetforth herein,
Now, therefore, it is agreed by. and betweeft Licensor and Lice.'sea-Q
follows:
ARTICLE I
LIGENSED PREMISES - TERM OF LICENSE
Section 1.01, Licensed Premises. Licensor does i r revocably license - and rqht t6
Licensee .,. and Licensee. F6;; _Geby take and irrevocably license from Licensor, upon
acid subjeO to the conditions and limitations set forth herein, thesecond floor lounge area
at The Mystique. Community Ice. Arena hereinafter referred to as the "Lioensed Premises."
as- more particularly shown in APPENDIX A, for Licensee's exclusive use - AW o6cuphcy
thorb-of at the times and for the periods set forth in Section 17.01 hereof (th "Permifted
Ute Periods").
Section .02. Term. of License. The term V License �ense .("Term") shall commence
on Commencement Date (as defined below), and shall end at Midnight on the last day of
the month in which the sixth anniversaY of the Commenoement Date shall occur., unless
extended or sooner terminated as hereinafter provided. Foe purposes hereof, the
"Commencement Date 0011 mean the d ate on which the Licensor's Work (6t defined
below) has been completed by Licensor and the fully operational Licensed Premises is
avalla ble for use by Licensee, Licensor shall give Licensee at :least 5 days . prior written
C0717-70103 f0036/1595608.5"
notice of the Odcurrence of the COMmeheement Date. Licensor agrees to cause the
Commencement Date to occur by no later than September T, 2010.
Section 1.03 Agreement This License is made upon the following terms
covenants, agreements, provisions, conditions and limitations, all of' which- the Licensor
and Licensee, with respect to the same or their respective parts are to be accepted, kept,
observed and performed, This License. is in addition to all o t her agreements between the:
parties. AR income generated from the Liconsed Premises during the Permitted Use
Periods shall belong to and remain the property of Licensee. Any income generated by
Licensor from the Licensed Premises when not being used by Licensee during non.
Permitted Use periods, shall rsrriain the property - of "Licensor
Seotibh 1:1).4. The Licenses This: License is subordinate to the Lease and ail the
Provisions ; terms., covenants, and conditions of the Lease. Accordingly, Lessor, by its
consent hereto, hereby that in the event the Lease is terminated for any reasori,
Lessor will not disturb Licensee hereunder and will recognize Licensee as a :direct .licensee
of the Licensed Premises hereunder pursuant fo. the terms and provisions of this
irrevocable License. Licensor agrees to comply with all of the obligations of the Licensee
under the Lease (whi.ch are not otherwise to be performed hereunder by. Licensee).,
including without limitation, the obligation to at all times keep in full'force and effect-the fire
and casualty Insurance with respect to ithe. entire. Arena required of Licensor, as Lessee
under the Lease.
With respect to Licensee's use and occupancy of the Licensed Premises during the
Permitted Use; Periods, (i) Licensee agrees that it will not, by its act or omission tor act-(bf-a
non - monetary nature, provided Licensee.-has a duty to so act under this License.), cause a
default under the Lease, and (ii) Licensee agrees: to refrain from performing any act on fir
With respect to the Licensed .Premises which is prohibited by the Lease. (where: the
obligation to perform or refrain from performing is by its nature imposed upon the .party in
possession of :the premises). Licensee. shall have no right to exercise any of the rights
a'nd options available to Licensor under the Lease as. all the same are retained by
Licensor and may be exercised. exclusively by Licensor. Notwithstanding the license of.the
Licensed Premises to-:Licerisee. hereunder, Licensor agrees to remain fully responsible to
Lessor for the timely performance of all of Licensoe's duties and obligations under the
Lease. Licensor shall not amend (or agree to an amendment oo the Lease Which might
have an adverse effect on Licensee's occupancy of the Licensed Premises or its use
thereof for their intended purpose -, unless Licensor shall first obtain Licensee's priorwritten
approval thereof, which. consent shall not be unreasonably withheld or delayed.. A copy of
any amendment, to or modification of the Lease between Lessor and Licensor :shall be
promptly furnished by Licensor to Licensee,
ARTICLE 11
RENT
Sect iQn 2.01. Rent As more particularly set forth in Section 3.01 below;, upon
completion of Licenser's Work (as efefined below), Licensee shall pay Licensor a one time
Ean776 /01 003611.58M68.5 2
license fee (the "Licente Fee") of up to $76,000.00 (net after credit for replacement of
exig(log pl4n$) for the performance :of Licenisoft - Work. E'kcep.t for the one time License
Fee set forth above - and tho, Licensee's obligation to reimburse Licensor for 'services
.PerfQrMed by Licensor as more particlularly'set forth in -Section 1.02 below, Licensee shall
have no - obligation to pay Licensor: any t.orits or other charges hereunder.
Section 2.02 Additional.0har-ges. In addition to. said one time License Fee set
forth. above, Licensee shall pay to Licensor the following amounts within 16 days after
receipt of an invoice therefore. from Licensor' evidencing the actual cost and expenses
incurred. by L[donsor as follows
W The parties have agreed that Licensor nsor will be providing all beverages - used
during -the Permitted .Use Periods in the Licensed Premises. by Licensee and :its patrons
(an d all staffing necessary to serve all of'suoh beverages). Lj proVidd, without
dir charge to! Licensee's authorized prepaid patrons, u . p to two {2 beverages (from .a
menu of beverages which shall include an assortment of wine, beer, mixed liquor/rail
drinks and based on a voucliedstub system instituted by Licensee
(herein the "Repaid Patron Drinks"). Licensee w1.11're1rnbUrsL-. Licensor for Propaid PgOro.n
DNnks served to UcEin&e&§ patron's in the Licensed Premises at the flat rate of $1.50* per
beverage .(Tegardfess. of the type of beverage requested: by Licensee's patron) based on
the: number of stubs /vouchers collected by Licensor from such prepaid 'pAtroh6'during each -
Perm !fled Use Period. Licensee's patr6ns in the Licensed Premises will also be permitted'
to purchase additional' beverages from,and. in the Licensed Premises (above and beyond
the 2 POfrari Prepaid Drinks) (herein the "AddltibhAl Beverages ") at prices to 'be
established by the parties (:ranging from between $4.00 to- $4,66 per beverage- for wine,
beer and mixed liquodra.il drinks, - and - from'betvveen:$2-.50 and $3,00 all other drinks),
and Licensee shall receive -55% of all revenues received by Licensor on account df'the
sale of such Additional DOMS intho'LicensedPremises. Each party shall use,goodfafth in.
negotiating the. prices charged Licensee's. patrons for the Additional Beverages (within the
parameters set froth above), provided that. such prices-.(1) -shall be the same. prices as
those being .charged by Licensor in the; other concessions in the Arena (outside of
the Licensed Premises
and (2) may be adjusted annually by mutual agreement of'the
parties commencing on Aw9pst 1, 2011 and each August I thereafter. Licensor shall
immediately provide Licensee, after each Permitted Use Period, with an accounting of the
Prepaid Patron D and the Addition;al Beverages provided to Licensee's patrons in the
Licepsed Premises together ..with an invoice of the charges payable by Licensee for
providing Licensee's patrons with the Prepaid Patron Drinks (which shall be calculated by
(1) Multiplying $1.,50 b collected by Licensor
the number of vouchers/stubs coil '
Licensee's patron[ from
T for Prepaid Patron Drinks, and deducting therefrom fii�.. 55% of the
revenue that Licensor received from Licensee!t patron for the. Additional Drinks -sold Wthe
Licensed Premises). If the amount payable to Litensor for . the Prepaid Pair Drinks . n Drinks.
d etermined pursuant to clause (1) above) for any Permitted Use Period, exceeds 55% of
the revenue received by Licensor for the Additional Dri nks during such Permitted Use
Period, then the Licensee shall pay Licensor such excess. within ten . (10).Oays of its receipt
of said invoice, If the amount payable by Licensor to . Licensee for the Additional Drin
ks
purchased during any Permitted Use Period (i.e., 55% of the Additional Drink revenue, as
C071770/031D0361158
determined pursuant to clause '(ii) above), exceeds the amount payable by Licensee to
Licensor for the Prepaid Patron Drinks (as determined pursuant to clause (.i)'. abbue }, then
Licensor shall pay to Licensee the amount of such excess within leri (10) days .of'
Licensee's: receipt of said invoice.
("I) If requested by Licensee Licensor- agrees to: make available to Licensee (fqr
Licensee's: use in the .Licensed premises) . additonal. special and unusual services —such
as linen services, and Licensee shall pay Licensor for the cost -of providing such special
services that .shall be requested by Licensee at the prices established by the parties (in
good faith) for such services.
ARTICLE Ill
LICENSORS WORK/ COMMENCEMENT DATE
Section 3.01 Lieensor'.s Work Obli ations The parties acknowledge that the
Licensed Premises is currently in shell condition, and. will require Licensor to build .out the
space so that it can be used as .a lounge suitable for serving patrons catered meals
(including, without limitation, the build out of restro=q (replacing :suite rebUbbins },
installation of suite food prep ( replacing corner arena suite flood prep). and installation of
HVAC.,. plumbing, oarpefng, dry wail and furnishings In - and serving the Licensed
Premises) all as more. particularly set forth on Exhibt A attached hereto and made part
hereof (herein "Licensor'.s Work") Upon completion of the Licensors'1Nor* Licensee has
agreed to reimburse Licensor far th.e cost of performing 'said Licenser's Work up. for a
maximum .of $76,000 the "License Fee ") within ten , (10:) days of Ucensor's delivery
of invoices evidencing the actual costs associated with the performance of Licensor's Work
(provided, however, that =in no event Ucerisee ever be responsible for any amounts. In
excess of $75,000 on account of Licensor's Work). The. furnishings to be provided by
Licensor under this license shall not iiTClude basic tables and chairs. for the. seating of
License patron's in the Licensed Premises, unless Mystique Casino agrees to
contribute said tables and chairs to Licensor, in its sole and absolute discretion (in which
event Licensor will make such tables and chairs available to Licensee for use In the
Licensed Premises).
Within. sixty (60) days after the Licensor' Work is completed., Licensee may famish
Licensor with one or more notices identifying certain punch list items that remain to be
perfbnned. Withlo thirty. (30) days after its receipt of any such notice, Licensor shall
complete, repair or otherwise remedy all such punch. list items listed thereon; provided,
however, :if Licensor using due diligence, is unable to install, complete, repair or otherwise
remedy all such punch list items within such thirty (30) .day time period, then such period
shall be extended for such. additional reasonable time that it would take someone diligently
pursuing the remedy of same to complete.�such items. If at. any time during. the term of this
License., the Arena or any of Licensor's Work is found to be defective in its original
construction, or requires. repair on account of any latent defects, Licensor shall,. at its sole
cost and expense; correct such defect within a reasonable period of time after receipt- of
written notice fram Licensee.
C071770/0 10036/1585608.-S
Section .3..02. Nothing herein contained shall require Licensee to pay municipal.,
state or federal income or gross receipts or excess.p.rofits or rental taxes assessed against
Licensor, or municipal, state or .federal capital levy, estate succession, inheritanl a or
transfer taxes of Licensor , or corporation franchise taxes imposed upon any :corporate
owner of the fee of said Licensed Premises.
ARTICLE IV
SURRENDER
Section 4..01. Delivery b Licensee . Licensee shall and will on the last day of the
original Term (or any extended term of this License If this. License is so extended) or upon
any earlief termination of this License, or upon any entry or re -entry by Licensor upon: the
Licensed Premises, pursuant to Article Wfl hereof, surrender the Licensed Premises and
shall: no longer have any rights to utilize the Licensed Premises in' accordance with the
':terms heroof.
. Section 4.02 _Trade Fixtures and Equipment Any trade fixtures, equipment and
other property installed on or attached to the Licensed Premises by and at the expense: of
Licensee. as well as furniture (herein collectivEly "Licensee's Property ") shall remain the
property of Licensee, and Licensee shall have the right at any time, and from time *to time.,
to remove any of the same so installed or- attached in the. Licensed Premises including, but
not limited to, televisions, chairs tables arid movable equipment. If Licensee shall not
remove said Licenseeis Property at:thel termination of°thls License, Then .Licensor shall give
Licensee notice thereof and request that. same be removed, and. in the event :Licensee
continues to fail :to remove such Licensee's Property from the Li e erised Premises within
fifteen (15) days after said notice from Licensor; then Licensee shall be deemed to have
relinquished -its right in such Licensee's Property but same shall not be a ground for
claiming a renewal or extension of this License . 'Licensee shall repair all damage to. the
Licensed Premises caused by the removal by Licensee of such Licensee's Property,
except for necessary holes and other-openings and unavoidable :damage - to. plaster and
paintoo. surfaces resulting therefrom. Licensor shall, upon the request of Licensee,
execute any document necessary to subordinate .Licensor's right of distraint or execution
to any perfected seourify interest held by a secured party in any of Licensee's: trade
fixtures; furnishings and equipment located - within or about the Licensed Premises. Any
trade fixtures, equipment or property installed on or attached to the Licensed Premises by
and at the expense of Licensor or at. its direction shall remain the property of Licensor.
ARTICLE V
INSURANCE
Section 5.01. Liability Insurance During the term of this License., Licensee shall
provide and maintain general Lability insurance for bodily injury, death or property damage,
occurring in, on or about the. Licensed Premises during any Permitted Use Period, in the
07 L770/0316036/15 85608.5
amounts and containirfg the provisions set forth on Schedule A attached hereto. Lessor
and Licensor shall be named as additional insureds in all such liability insurance policies...
Section 5..02. Licehsorltessor's Insurance. In addition to the dram insurance
required pur s uant to.'Sectlon 't 1.02(a) below, Licensor (I ) at its sole cost and expense, shall
provide and :maintain during the term of this License., comprehensive bodily injury and
property damage liability insurance against claims for bodily injury, death or property
damage, occurring in, on or about the Arena, and (11) shall cause the Arena (including the
Licensed Pemises) to he insured against loss or damage by fire and against loss or
damage by such -other risks now or hereafter embraced 'by so-called "standard extended
coverage;" insurance (herain. "Casualty insurance"), (by either carrying such Casualty
Insurance by itself or causing the: Lessor under the Lease to carry such insurance on its
befalQ all as more particularly described in the tease, Licensor nor Lessor, - as the ease
may be, may effect such fire insurance coverage under a so- called "l5.lanket insurance"
method. Throughout the Term.,. Licensor or Lessor (as the case. may be) agrees to include
in the Casualty insuranae policy a waiver of the insurer's right of subrogation. against the
Licensee, or if such °waiver should be unobtainable or unenfortA§dbl2, an' express
agreement, if available, that such policy shall not be invalidated if. the :insured waives or
has Waived before the. casualty the right of recovery against: any party responsible for a
casualty covered by the policy;. if such waiver or agreement shall not be obtainable without additional charge, the Licensor (or Lessor, as the case.may be) shall so notlfy
Licensee and if Licensee shall pay the insurer's additional charge therefor, such waiver or
agreement shall be lhetuded in the policy.. Licensor .and Lessor hereby releases Licensee -
from any .liability .on account of any damage to the Arena aris out of any .casualty or
other foss included or covered under a standard form of "extended coverage" Property
insurance policy, even if such damage is the result of the fault of the Licensee or the
Licensee's employees, contractors, ,agents or invitees W the extent same is covered under
its Casualty Insurance (or would have been under the Casualty Insurance had Licensor or
Lessor carried the required insurance).
ARTICLE CLE V1
LICEN.SO.R`S RiGHT TO PERFORM LICENSEE'S' COVENANTS
Section .6:01. If Licensee shall -at any time .fail to take out, pay for., maintain and.
deliver the insurance. policy provided for in Article 5.01 hereof, or shall fail to perform any
other act on its part .to be made or performed hereunder,. and such failure shall continue
beyond the applicable notice and cure period, then Licensor, after ten (10) days' notice to
Licensee. (or without notice in: case of amergency) and without releasing License from any
obligation of Licensee contained in this License, may, but shall be under.no.obligation:to:
(a) Take out, pay for and maintain any of the insurance policies provided for in
Article V hereof; or
C 6
(b) Perform such act on Licensee 's part to be made or performed as in this
License provided; :and may .enter upon the Licensed Premises for.any such
purpose, anal take ail such action thereon, as maybe necessary therefor.
ARTIGLE VII
REPAIR8AIyD-MAINTENANCE OF THE LICENSED PREMISES
. Section 7,01 Licensor's Obligations Throughout- the term: of this License,
Licensor , at its sole cost and expense,, shall take good care of the Licensed Premises and
shall keep the same in good order and condition, ordinary. wear and fear .excepted, and
make all necessary. repairs thereto, interior and exterior, structural and .non - structural.
When used in this: ArtieN VII., the term "repairs" shall include all necessary replacements
renewal§ and alterations. The cost of damage caused during the use. -of the Licensed
Premises by the Licensee or its guests during the Permitted. Use Periods. shall .be the
responsibility of the Licensee, subject. however, to the waiver of subrogation provisions set
forth herein.
Section 7,02 Licensee to Have no Obligation Licensor shall put, keep and
maintain all .portions of the Lieensod Premises and the .Arena, including - the sidewalks,
curbs and entrances, in a clean and orderly condition •, free - Of -dirt, rubbish, snow, ice, and
unlawful-obstructions. Licensee shall not be. required :to furnish any services or facilities or
to. make any repairs or alterations in or to the Licensed Premises.
' Section 7g8..Shared Use Licensor acknowledges that: Licensee interids to. install
a significant amount of Licensee's Property. (such as television monitors, ear stools,
movable equipment, etc.). which will 'be permltted. to remain in -the Licensed Premises
:during the Term hereof (even at times which are not .Permitted Use POri' ads). Licensor
agrees that in connection with Licensor's use of the Licensed Premises during non
Permitted Use Periods, Licensor will take special care to .prevent any damage .to or loss of
any such Licensee's Property, it be understood And agreed that Licensor will be
responsible fof any damage to such Licensee's Property caused by or arising from
Licensoe's use of the .Licensed Premises during non- Permitted Use. Periods.
ARTICLE VI
COMPLIANCE WITH LAWS ORDINANCES AND REOULATiONS
�eetion 8:g1 Throughout the term of this License., Licensor,. at .. its sole cost :and
expense, shall promptly remove. any violation relating to the Licensed Premises -and shall
promptly cornp.ly with all present and future laws, ordinances, orders, rules, regulations.
and requirements of all federal, state - and municipal .governments courts, departments,
commissions, or any other body exercising functions similar to those :of any of the
foregoing, which may be applicable to the Licensed Premises, or any part thereof. In
connection with the actual uses made by Licensee of the Licensed Premises- during the
C07177070110036/1585608.5
Permitted Use Periods, Licensee agrees to Comply with any laws pertaining to. the manner
in which Licensee may utilize the Licensed Premises.
ARTICLE IX
DISCHARGE OF LIENS
Section 9.01 No Liens Permitted Licensee shall not create or permit to be
created or to remain, and shall discharge, any lien, encumbrance or charge (levied on
adcouAt of any :mechanic's laborer's or materialman's lien) create by Licensee: with
respect to the Licensed Premises, which might be or become a lien encumbrance or
charge Upon th'e Licensed Premises of any part thereof or the income therefrom, having
any priority-or preference over or ranking on a parity with the estate., rights. and I itorest of
Licensor In the Lieensed Premises or any part thereof or the i0conie therefrom; and
Licensee shall not suffer any other matter or tliing whereby the estate, rights and interest
of Licensor in the .Licensed I?rerriises or any part thereof or the income -therefrom Might lie
impaired.
Section 9:02 Removal of Liens If any mechanic's, laborer's or materialman's llen
shall .at any time: be filed against the Licensed Premises or any part thereof on account of
any :action done .solely by Licensee, Licensee , within thirty (30) days after notice -of the
filing thereof, shall cause the same to be discharged of record by payment, deposit, bond,
order of a court -of competent jurisdiction or otherwise. if Licensee shall fail to cause such.
lien to be discharged within the period aforesaid, then in addition to any other right or
remedy, Licensor may; but shall' n¢t be - obligated to, discharge the same. either by paying
the amount claimed to be due or by procuring the discharge _of such lien by .deposit or by
bonding proceedings, and in any such event, Licensor shall be entitled, if Licensor so
elects to compel the prosecution :of an action for the enforcement of such. Ilen by the
lienor and to pay the amount of the judgment in favor of the lienor with interest, costs and
allowances. Licensee agrees to reimburse and to pay to the Licensor on demand any
amount. so paid .by. licensor and all costs and expenses, including reasonable attorneys
flees, incurred by Licensor in connection therewith, together with interest thereon .at the
rate of. ten percent (1.011) per annum from the respective dates of Li"censor's notice to
Licensee of the making of the payment or the incurring. of the cost and expense, Including
such attorneys' fees.
Section 3.0.3. No Authorization to Lienors Nothing in this License contained. shall
be deemed or construed in any. way as constituting the consent or request 'of Lessor or
Licensor, express or implied by inference or otherwise, to any contractor, laborer �r
materialman for the performance of any labor or furnishing of any materials for any specific
improvement, alteration to, or repair of the Licensed Premises: or any part thereof or for the
clem.olitiQn
or the replacement of the Licensed Premises or -any part thereof.
ARTICLE X
Nom
047177031003 6%15 85608.5
Section 1.0.01. Licensee shall not do or suffer any waste or datnag0, d'isfigorement
pr injury tp the Licensed Premises: or any part thereof during .any Permitted Use Period.
Licensor shall not. do .or suffer :any waste or -damage., Asfiguremenf :or injury to -the
LI'cerised Premises or any part thereof during the Term hereof.
ARVCLE XL
USE OF LICENSED PREMiSESILiCENS.OR'S SERVICES
Section 11.0:1 Licensee shall have the use the Licensed .Premises .Oh all: .Dubuque
.Fighting Saints home game days, commencing 3 (three) hours prior to game start time
- and continuing until 1 (one) hour following completion of the: game or for such longer
period after the completion of such game as shall be mutually agreed between the parties.
- in . to Dubuque Fighting Saints-games Licensee may the Li.cerised Premises
as follows:
{a} Licensee shall have priority to use (and shall have the right to
reserve) the Licensed Premises 1 (one) day per week for up to 3
.(three-) hours (or such Longer period 0: is rnutualty agreed between
the parties) for any lawful purpose; and
{b) Lice=nsee may use the Licensed Premises on a non - priority basis as
requested by Licen=see, subject, however to the::approval raf Licensor
in its sole an:d:absolute discretion.
The foregoing periods of time where Licensee shall be permitted to utilize the
License Promises 'is herein referred to as the "Permitted Use Periods ".
Section 11..02 In connection with Licensee's use of the: Lioe.nsed Premises
hereunder, Llceirsor agrees to provide Licensee with .the'following rights and services.
{a) Licensor shall prouide Licensee with all beverages being sold by
Licensee 1n the Licensed. Premises at , prices set forth 'in Section
2,02. Licensor will refrain. from selling any alcoh.blic beverages to
minors or to any persons that appear to be ihebriated and will
otherwise comply with all Liquor Laws (and carry all necessary liquor
licenses.} pertaining to the serving of alcoholic Beverages ftorn. within
the License=d Premises. °Licensor agrees to .Garry dram shop liability
insurance, or similar liquor liability insurance, in such amounts as
Licensor shall reasonably determine but in no event less than One
Million Dollars per occurrence, and such insurance :shall specifically
name Licensee as an additional insured.
C071770/0310036/158560$.5
(b) Licensee may use outside food caterers, but not outside beverage
supp.(iers.. All revenues from both the food and beverage. services in
the Licensed Premises shall be retained by Licensee (subject 'to-
reimbursement by Licensee for the Prepaid Patron Drinks as set
forth *in Section 2 ;62 hereof).
{) Licensee may sell sponsorship of the - Licensed PrMs — es to
compatible sponsors. with the prior written consent of Licensor,
which approval may not be unreasonably withheld; conditioned or
delayed. Licensee. may install or place non- invas.iv& and non
offensive signage in the interior of the- Licensed Premises, the
exterior of the lounge wall (in the facing the ice surface:) and
adjoining restrooms,
(d) The Licensed Premises, at no charge to Licenses, shall be
thoroughly vacuumed. and cleaned by Licensor before and after
each Permitted Use Period by a competent janitorial staff and in .a
manner intended to keep the Licensed Premises: in a :neat clean anal:
safe condition. Licensor, at no charge to Licensee, shall also
provide dining tables and serving tables, as .required in the
Licensed Premises, to enable Licensee's patrons to- be served: in a
first class manner. The Licensed Premises. shall. be staffed by
Licensor at no addition charge to Licensee (.e.g., for beverage
service, cl.eaftg, etc.); provided that - if Licensee desires. any special
services., such as linen .services, -Licensee shall be 'charged
separately for said services subject to the :terms of - 8eotion 2:02
hereof.
(e)' Licensor at no charge to Licensee., shall provide proper HVAC in
and to the Licensed Premises for the comfortable occupancy
thereof, and shall furnish all utilities necessary for the operation of
the Licensed Premises (and the fond service being provided
therefrom).
(fJ Licensor, at no charge to Licensee, shall provide Licensee or
Licensee's designated :outside caterer with the use of a reasonably
sized storage area (as shown on Exhibit A with prep table and
warming cart) within the Arena (pt'eferably within the Licensed
Premises or adjacent to the Licensed Premises) where. Licensee (or
its designated "outside caterer) will be permitted to store its
equipment and other paraphernalia when the Licensed Premises is
not. being used by Licensee (i.e., during the portions of the Term that
are not Permitted Use Periods).
(g) Licensee shalt issue identifiable wrist bands to (or institute a
comparable non - transferable identification method for): all patrons of
10
C071770/6310035/1585608.5
Licensee who shall be permitted to enter the Licensed Premises
(and receive the service5lbeverages therefrom). Licensor shall. limit
access to. the Licensed Premises during the.Permitted Use Period: to
those, patron: who have the required iderifification _(In -accordance
With the identification method estabilshed by Licensee),
ARTICLE XH
Intentionally omitted
ARTICLE XII I
INDEMNIFICATION
Section 13.01, Licens'ee's Indemnification of :Lessor. ' -and Licensor,
Notwithstanding any provision to the. contrary contained in this License, Licensee shall
indemnify and save harmless Lessor and Licensor against - and from all liabilities,
obligatiorys, damages, penalties, claims, costs, charges and expenses,. including, but not
limited to, reasonable attorneys' fees, which may be imposed upon or incurred by. or
asserted agairist Lessor or Licensor by reason of any of the following occurring in the
Licensed Premises during any Permitted Use Period:
(a) Any negligence in the Licensed Premises on the .part of Licensee or any of
its agents, contractors, servants, employees,. licensees, or invitees in
connectio.ri with Licensee's -use of the Licensed' Premises; and
(b) Any accident, injury or :damage to any person or property occurring in, on or
about the Licensed Premises or any part thereof unless caused by the
'negligence of Lessor or Licensor, or theirrespectiye employees or
servants.,
In. case any :action or proceeding is brought against Lessor or Licensor py reaso
of any such di Licensee upon written notice from Lessor or Licensor, shall at
Licepsee's, sole cost -and expense, 'Including counsel fees, resist or defend.sucl action or
proceeding .by counsel approved by Lessor or Licensor in writing, such approval not to be
unreasonably withheld, but no approval of counsel shall be required in each and every
instance where the claim is resisted or defended by counsel. of Licensee's insurance
carrier or other insurance carrier obligated so to resist or defend such claim.
.Section 93.02 Licensor will carry any necessary liquor license and will fully comply
with all of the Iowa State Alcah Beverage Control Laws ( "Liquor Laws') and will not: act
or cause to act. in a manner that will cause a violation of any nature or extent Whatsoever
to be Issued against the Licensed Premises, any employees, agent or patron of - the
Licensee, that could .cause such liquor license to. be voided, rescinded, conceited., revoked
or otherwise not renewed. Licensor shall indemnify and hold harmless Licensee,
Lioensee's caterer, and its and their directors°, officers, agents and :employees. from and
C07177010340036/1585608;5 11
:against any and all claims, causes of action, damages, - loss or liability (including, :but .not
limited to, reasonable attorneys' fees and- court costs), :arising from or in connection with
{i
the- -sale of alcoholic beverages. in the Licensed Premises and Arena,. or (ii) the failure
by Tenant .to comply wi the Liquor Laws qr (iii) any act, omission or :negligence of
Licensor or. its agents or employees with respect to the -sale - of alcoholic beverages from
the- Libenseci Premises. Licensor shall also :indemnify and save harmless Lessor and
Licensee .against and from all liabilities; obligations, - damages, penalties, claims, costs,
charges: and expenses, including, but snot limited to, reasonable attorneys` fees, which
.may be Imposed upon or incurred by or asserted :against Lessor and Licensee by reason
Of any of the following occurring in the Licensed Premises .at .any time which ie not a
.Permitted Use Pe iod;
(a) Any negligence in the Licensed Premises on the part of Licensor or any of
Its agents, contractors, servants, employees licensees or invitees In
.connection with Licensoe's Use of the Licensed Premises;. and
(b): Any accident, injury or damage to any person or:propertyoccurring in, on or
about the Licensed Premises or any part. :thereof, unless caused by the
negligence.-of Lessor or Licensee (as the case may bo), or their -employees,
agents .or servants.
ARTICLE X1V
DAMAGE OR DESTRUCTION
Section 14.0:7. Restoration B X Licensor. In case of damage to or destruction of
the .improvements on the Licensed Premises by fire or other :casualty, Licensor,. at
Licensor's sole cost and expense, shall restore, repair; replace, rebuild or alter the same
(eklusive of Licensee's Property) as nearly as possible to its value„ Condition .and
character immediately prior to such damage or destruction, all in accordance with
Lice.nsor's obligations under the Lease. Such restoration, repairs, replacements,
rebuilding or alterations shall be commenced with..due diligence and In :good faith,
anav�idable dekays:excepted.
Section 14.02 Licensee acknowledges that Licensor will not be carrying. insurance
on Licensee's. Property and that in case of damage to or destruction of Licensee`s
Property in the Licensed Premises by fire or other casualty, Licensor will not. be
responsible to repair .or replace same, unless caused by the negligence or willful
Miscond Ott of :Licensor (ar its agents).
Sectio� � n 14,03 Substantial. Destruction. In the. event the building yr the Licensed
Premises is substantially destroyed, Licensee may, at its- option, either (i) terminate the
License, or (ii) elect not. to terminate, in which event the Term of this License shall be
extended for the number of games that the Licensee is unable to use the Licensed
Premises on account of such damage or destruction. Licensee must notify Licensor in
writing of its intent to terminate within thirty (30) days of the occurrence (and; if Licensee
C071770/0310036/1385608.$ 12
fails to so elect to terminate within such time, 'Licensee shall be deorried to have elected to
extend the Term and not terminate this License as aforesaid); provided., however in the
event .said building is substantially destroyed during the last year of the prirnary'terM of
this License, either Licensee or Licensor may, at their opf+.on, terminate the License upon
written notice. within thirty t3;d) days Of sold occurrence. lathe event Lk* sorshall elect to
terminate this License as aforesaid, - thon Licensor shall pay. to Licensee on account of
such termination for the then unamortized .amount of the one time License Fee paid by
Licensee to :Licensor hereunder, calculated on the basis of a 2.0 year straight line
amortization schedule, without interest.
Section 14.0.4 No Abatement :of Rent, No destruction of, or .damage to, the
Lic sed Premises or any part. thereof by fire or other casualty shall permit Licensor or
Licensee to surrender this License or shall relieve Licensee or Licensor from its liability
to 'pay any amounts payable under this License, or from any of its other obligations
under this License, and Licensor and Licensee waives any rights now or hereafter
conferred upon it by statute or otherwise to quit, terminate or - surrender this License 'or
the Licensed Premises: or any: part thereof, or to any suspension, .diminution, abatement.
or rOuction of rent or> aecount'of any such destruction or'damage except for substantial
destruction as provided in Section 14,03.
ARTICLE. XV
CONDEMNATION
Section 15.01 akin . - if the whole 'or a. -material part of then Lrceneetl Premises
shall betaken under tho power 'of emirient domain or by agreement in lieu thereof"by any
public, quasi- public or private authority, then this License shall terminate anti expire as of
the elate of such taking. Licensee shall not .be entitled - to receive any proceeds, provided,
however, Licensee shall be entitle to make a separate .dlaini for tho unamort zed amount of
the License Fee (lie,. up to $75,0.00) initially paid by Licensee hereunder -for the
improvemen in the Licensed Premises.
ARTICLE XL
VI
ASSIGNMENTS SUBLEASESAND
TRANSFERS OF LESSEE'S INTEREST
Section.16.01 No Assignment —Generally Licensee may not assign'this'License,
either in whole .or in part, or sublease the Licensed Premises, or any part or parts thereof
without. the prior. written - consent .of Lessor and Licensor first had and obtained, which
Consent may be withheld for any reason.. Upon such approved assignment; or sublease,
Licensee. shall not be relieved from Licensee's obligations in. this License contained and
the assignee of ttansferee shaft, at the time of such assignment or transfer, assume, by
agreement in writing acceptable to Licensor, all the terms, 'covenants 'arid conditions of
this License hereafter to be performed by the Licensee and shall agree to be bound
thereby. Licensee. may not mortgage �or otherwise encumber 'its leasehold :interest (if any)
I3
C0717707031003611585608.5
without Lessor's and Licenso.r's prior written consent, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing Licensor acknowledges and
agrees that Licensee shall be permitted to enter into Q) concession /catering. agreements
With an outside food vendors providing the food service within the licensed Premises, and
01') sponsorship agreements pertaining. to the Licensed, premises, and same shall. in no
event be. deemed a sublease hereunder requiring the consent of Lessor or Licensor.
Section 1 6.02 Ass'r_ riment9 to Affiliates Anything. in this License to -the .contrary
notwithstanding, Licensee may, without the consent of Lessor or Licensor, assign this
License or sublet the entire premises to any affiliated corporation or entity or to any
corporatlon' resulting from the consolidation or merger of Licensee into or With any oth
business organization, or to any person, firm or corporation .acquiring a majority of
L issued and outstanding capital stock, Ora substantial portion of Licensee's.
Physical 'assets or business. Notwithstanding any such assignment or sublease, Licensee
shall remain fully liable on this: License. As used herein, the expression "affiliated
corporation or entity" means a person or business, entity, corporate or otherwise, directly
or indirectly, through one or more intermediaries, which controls or is controlled by, or is
under .common control with, Licensee. The word "control" means the right and power,
direct or indirect, tol direct or cause the direction of the management and policies of a
person or business entity, corporate or otherwise; through ownership of voting securities,
by contract, or otherwise. if .after the term of this License, Licensor assigns its rights
under the Lease to another party., the assignee shall fake ziubject to any agreement with
Licensee then in place.
A RTICLE XVIi
GO.NDITIONAL.LIMITATIONS — .DEFAULT PROVISIONS
Section 17.01 Events of Default, If any one or more. of the following. events (in
this License sometimes called ''events of default ") shall happen:
(a) If default shall be made in the due and punctual payment of any rent: payable
under this License , and such default shall continue for a. period ten (10)
after written: thereoffrom Licensor to'Lioensee ;
(b) If Licensee becomes insoivent, or makes an assignrnorit for the benefit: of
creditors, or if a .petition in bankruptcy is filed by or against I;ioenaee or a bill
in .equity -or other proceeding for the appointment of a receiver for the
Licensee is filed, or if proceedings for reorganization or for composition with.
creditors under any state or federal law be instituted by or against Licensee ,
or' if the real or personal property of !he .L:icensee shall be sold or levied upon
by any sheriff, marshal or constable; provided, however, "if any of the above
be involuntary,. -it shall not be an event of default unless not discharged or
removed of record within ninety (90) days, and.
0071P701031OQ3 oil 58560$;5 14
(c) If default shall be:rnade. by Licensee in keeping,. observing or 'performing any
of the terms., covenants, agreements, grovisrons, conditions or Ur iltatian.s
contained in this License on Licensee's part to be kept, obsorved or
performed, other than those referred to in the foregoing- subdivisions (a) and
(b) of this Section, and such default shall continue for a period of fifteen (15)
days after written notice thereof from Licensor to Licensee., provided,
However, in the case of such a default or a' contingency which cannot with
due diligence and in good faith be cured within fifteen t95) :days, if Licensee
commences to remedy such failure within such fifteen (15) days and
thereafter prosecutes the remedying of such failure with reasonable
diligence, the period of time after• the receipt of such notice by Licensee
within which such failure may be remedied shall be .extended .so long as
Licensee prosecutes-the remedying of such failure with reasonable - di(igence;.
rovided, further that if Licensee withlh fifteen: (15) days after the receipt of
such notice - notifies Licensor that Licensee. does not believe* that it has so
failed to perform or.comply with term of this License-the. matter, at either
party's option may be determined by arbitration in accordance rules of the
American Association, _and' if it shall be determined that Licensee has so
failed, the time within which such failure may be remedied shall be measured
from the date of such determination;
then in any such euerit Licensor at any time thereafter during the. continuance of
any such event of default may at its option give written notice to Licensee specifying
such event of. default or events of default ohd stating that this License and the term
hereby demised terminate on the date specified in such notice; - which shall be at
least. five (5). days after the giving of such notice, and upon the date specified in
such notice., this. License and the term hereby dafnised and.-all rights of Licensee
under this License-shall expire and terminate.
Section 17.02 Licensor's Rlght- of- Ro Upon ariy :expiration or termination of
this License, Licensee shall quit and peacefuily swrrender the Licensed Premises. (in the
planner and upon the terms and conditions set. forth in Article IV hereof) to Licensor, and
Licensor, upon or at any time after any such expiration or termination, may without further
notice., enter .upon and re -enter the Licensed Premises and possess and repossess itself
thereof, by summary proceedings or other legal. procedure, and may dispossess Licensee
and remove Licensee and all other persons and property. from the Licensed Premises -and
may have, hold -and enjoy the Licensed Premises and the right.to receive all .rahtal income
of and from: the same.
. Suction 17.03 Licensor's: Right to Relet At any time or from time to time after any
such expiration - or termination, Licensor may reset the Licensed Premises or any part
thereof; ih the name of Licensor or otherwise., for such term or terms (which may be
gtoafer.or less :than- the. period which would otherwise hake constituted the balance- of the.
term of this Llcensey-and an such conditions (which may include concession's or free rent)
as Licensor; in its reasonable discretion may determine and may collect and: receive the -
rents. therefor..Licensor shall; in no way be responsible or liable for any failure to relet the
i5
E071770l031003611585608.5
Licensed Premises or any part thereof, or for any failure to collect any rent dire upon any
such reletting, Licensor shall make a reasonable effort to relet the Licensed Premises as
well as collect any rent due:
Section 17:04. No Waivers No failure by Licensor or by Licensee to 'insist upon:
the-strict perforriiance of any term, covenant, agreement, provision, condition or limitation
of this License or to exercise any right or remedy consequent upon -a breach thereof, and
no acceptance by the Licensor of full or partial rent during the" continuance of any such
breach,- shall constitute. a waiver of any such breach or continued breach of such term,
covenant, agreement, provision, condition or limitation. No term, covenant, agreement,
provision or limitation of this License to be kept, observed or performed .by Licensor or
Licensee , and no. breach thereof, shall 'be waived, altered or modified except by a written
instrument executed by Licensor or by Licensee , as the ease may. be. No waiver of any
breach shall affect .or:alter this License, but each and every term,. covenant, agreement,
provision, condition and limitation of this.License shall continue. in full force and effecfwith
respect tot any other then existing or subsequent breach thereof.
Section 17.05 Remedies Cumulative Each right or remedy of Licensor provided
for in this License Mall be cumulative. and shall be in .addition to every other right .or-
remedy provided for in this License or now !or hereafter existing at law or in equity or by
statute - or-otherwise, and. the exercise ar the beginning gf the - exercise: by Licensor ofany
one of more Qf the rights o.r remedies provided 'for in this License. or now -or hereafter
existing at law in. equity or by statute or otherwise shall' not preclude the sirnultane.ous:
or later exercise by Licensor of any or all: other rights or remedies provided for in this
License or now or hereafter existing at law or in equity or by'statute or Otherwise.
ARTICLE XVIII
INVALIDITY OF PARTICULAR PROVISIONS
Section 18.01. If any provisions of this License or the application thereof to any
person or situation shall, to any extent, be held irfvalid or unenforceable the remainder of
thi ,. s. License, and the application of such provision to persons or situations other than
those as to. which it shall have been held invalid or unenforceable, shal[ not be affected -
therOby, and shall continue to be valid and enforceable to the fullest extent. permitted by
law,
ARTI�IX
NOTICES
Section 19',09 Manner of.Givina All notices, demands or requests by Licensorto
.Licensee shall be ,
deemed to have been properly served or:given if sent by United. States
:registered or certified mail, return receipt:,requested, postage prepaid, addressed to
Licensee. at c/o Harbinger Capital Partners LLC, 450 Park. Avenue,O Floor, New York,
c071770/031003.611585608.5. 16
NY 10022, .Attn, Brad Kwong with a copy to the same. address, Attn: General Counsel, or
to such other address within the. oontinental limits- of the United States and to the attention
of such other party as Licensee may from time to time designate by written notice to.
Licensor.
All notices, demands or requests by Licensee to Licensor or by any party to Lioensor sl ail
be deemed to have been properly served or given if sent by United States registered or
oertifled mail, return receipt requested, postage prepaid., addressed to Licensor; c/o
Dubuque Community Ice and Recreation Center, Inc., d /b /a Mystique Community Ice
center, PO Box. 1816; Dubuque, IA 520041816, or to such other address within the
continental limits of the United .States and to the attention of such party. as Licensor may
from time to time designate by written notice to Licensee .
All notices, demands or requests by Lessor or by any party to Lessor shall be deemed to
have been properly served or ;given if sent by United States registered or certified mail,
return receipt requested, postage prepaid, addressed to. the City of Dubuque, Iowa, 131h
and Central, Dubuque, Iowa 52001, attn: City Manager, or to such other address as
Lessor may from time. to :time designate by written notice to :Licensee:
Section 19.02 Time of Delive Except for notices which change the. address of
either party hereto, .which notices shall be deemed delivered upon actual receipt thereof,
.all notices shall be: deer led to have beer- delivered* within: three (3). days after the same
have been deposited for delivery. with any branch office or postal mail drop Operated by-
the. United States Postal Service. In lieu of mailing, any such notice, demand or request
maybe personally delivered or sent by recognized overnight courier, in which event the
notice shall be deemed delivered upon actual receipt. ofdelivery.
ARTICLE XX
QUIET ENJOYMENT
Section 2D.01 Licensee, upon paying the minimum rent and all adtlitiotlal rent
herein. provided for and. in. keeping, observing and performing all .the, terms, -covenants,
agreements, provisions, conditions and limitations of this License on Licensee is po.. to
be kept, observed and performed. in each case prior to any applicable notice :and .cure
period-, s hall quietly have and enjoy the licensed Premises during the term of this- License
Without hindrance or molestation by artyone, The :breach of this covenant. resulting in
substantial and material interference with Licensee's use and enjoyment of the - Licensed
Premises, if not promptly cured, will entitle Licensee at its option, to- terminate this
License, and if Licensee. shall be made a party to :any legal proceeding arising out: of the -
foregoing, Licensor will reimbutse Licensee for its reasonable attorneys' fees. and to.sts
incurred In defending Ucensee.Is° rights.
ARTICLE. XXI.
SUBORDINATION ATTORNMENT AND ICON - DISTURBANCE
1.7
C0717701.03100*1585608.5.
Section 21.0:1 This License and -the estate hereby leased shall be and are hereby
declared to be subject. and are subordinate to any institutional mortgage now or hereafter
placed by Licensor upon tha .Licensed Premises or any property of which the: Licensed.
Premises is a part, provided that any such mortgagee shall agree. in writing as to
non- disturbance of Licensee , as follows:
(a) So long as Licensee. continues to pay the rent and other charges herein
reseive'd and .otherwise complies with the terms and provisions of this License
(prior to the expiration of any notice and cure period set forth herein)., the- right
of.possession. of Licensee shall not be: affected or disturbed by said mortgagee
in' the exercise of any of its rights under said mortgage or the bond or debt
secured thereby, or otherwise by law provided;
(b In the event the mortgagee conies into possession or- ownership. ofi the -
Licensed Premises by foreclosure of said mortgage, or by proceedings on said
bored or otherwise, this License and all rights of Licensee hereunder shall
continue in effect and shall not be termiinated'by any of said proceedings;
(c) In the event that said premises are -sold or otherwise disposed: of pursuant to
any right or any power contained in the said mortgage or the. bond, or as. a
resulk of proceedings thereon, the purchaser of :said premises, or any person
acquiring title through or by virtue of said sale, shall take title subject to this
License, and all rlghts:.of Licensee hereunder,
(d� If the Licensed Premises are damaged by fire or other casualty, for which under
any - of'the insurance policies therefor the loss is payable to the rriartgagee of
the fee, said mortgagee- agrees that such insurance: funds when payable to it,
will be made::avaitable for the purpose of repair or rebuilding of the Licensed
Premises.
Section 21.02 The word "mortgage," as used herein,. includes mortgages and
deeds of trust -and the obligations secured thereby, and all modifications, extensions,
renewals and` replacements thereof, and any and all advances thereunder. The term
"institutibn.ai shrill mean either a savings or commercial bank, .trust. or insurance
company, governmental agency or bureau, teacher's association or an educational.:
philanthropic institution regularly engaged in lending money secured by mortgages,
Section 21.03 Notwithstanding - the subordination of this License as aforesaid; and
provided that any such .mortgagee or purchaser shall agree in writing. as. to
non- disturbance of Licensee, Licensee hereby agrees this License .Will not terminaite in
the event of foreclosure of any ;suGh mortgage or similar proceedings with. respect. thereto
.and. Licensee :agrees to attorn to and to recognize the mortgagee or purchaser at, any
such. sale as the Licensor hereunder for the balance of the term ofthis License subject to
all ofthe terms and provision$ Hereof.
0071 770/0310036 /1585608.5- 18
Section 21.04 Said subordination and attornment provisions hereof shall be.
self - operative. In confirmation hereof.,. however, Licensee shall, upon request, execute
promptly any further reasonable agreements Licensor reasonably desires as further
evidence of'the same.
Section 21.05: It is contemplated that certain furniture, fixtures and equipment
presently installed or to - be hereafter installed by Licensee in the- Licensed Premises,
which furniture- or equipment are or may be either .leased by e or
purchased by Licensee from Licensor or oilier persons claiming a security interest
'therein. in this connection,. it is agreed that. all such furniture, fixtures and equipment
presently installed or to be hereafter installed by L'iWnsee -in of upon the Licensed
Premises the at all times be an.d remain Licensee's personal property regardless of the
method. in the property of Licermee. is-:attached or fixed to. the Llcen$ed Premises.
Licensor specifically agrees that. its rights, if any, in and to such furniture, fixtures and
equipment and the rights of any third party, if any, in and to such furniture, fiktwres. and
equipment shall at all: times be subject and subordinate to :the terms and conditions of this
License.
ARTICLE XXII
DEFINITIONS OF CERTAIN. TERMS ETC.
Section 22.01 Definitions For purposes of this License, unless the corYtext
otherwise requires.,
(a) Thor. term "Licensed Premises" shall be defined as set forth- in. Article i hereof.
(b) The terrn• "Licensor "'shall mean DUBUQUE COMMUNITY ICE & RECREATION
CENTER, INC. or its successors or assigns under the Lease,
(c The. term "Licensee" shall mean shall mean any party in possession of the
Licensed Premises, either physically or in legal effect, pursuant to the terms. of
this License and shall be deemed to include the plural, excluding; however;
srlblessees.
(d) The term "License" shall mean this License and the rights created. thereby.
(rr) The term. "fee mortgage" shall mean a mortgage. on. the .Arena or part thereof,
and. the term. 'fee mortgagee shall mean, any holder of such fee mortgage or
the beneticiary..of:any deed of trust and the successors or assigns thereof. The
term "mortgage" includes a deed of trust and the debt .or obligation secuted by
such mortgage. or deed of trust.
(f) Aiiy reference. herein to the termination of this License shall be deemed to
include any termination hereof by expiration, or pursuant to Article XU[I of this
License, or otherwise.
06717.70/031003611585608.5 19
:(g) The term "unavoidable delays" shall mean .delays due to strikes, .acts of God,
unavailability of labor or materials enemy action, civil .commotion,
governmental restrictions relating thereto, fire, unavoidable casualty, the
elements or other causes beyond the reasonable control of Licensee, whether
similar or dissimilar to the foregoing.
(h) The term "Lessor" shall mean the City of Dubu
the Lease). que, laws (or its successor under
Section 22.02 Captions The captions of this License are for co.nvenie.nce and
reference only and in no way define, limit or describe the scope or intent of this License
nor in any way affect this License .
Section 22.03 Interpretation This. License shall ber construed and enforced in
accordance with the laws of the Mate - of Iowa-,
ARTICLE XXII
CERTIFICATE ELY LICENSOR AND LESSEE
Section 23.01. Either party agrees at any time and from time to time upon not
less than ten. .(1.0). days prior notice. by the other party to execute, acknowledge and
deliver to the other party a statement in writing certifying that this License is unmodified'
-and. in full force. and - effect (or if there have been modifioations), _and the dates to which
the net rent and the additional rent have been paid, :and stating whether or not the other
party is in default in- keeping, observing or performing any term, covenant, agreerhent,
provision,. condition or limitation contained in this License and, if in default, specifying
each such default, it being intended that any such: statement delivered putsuarit: to this
Section 23.01 may be relied upon by the other party or any prospective purchaser of the
fee or any rortgagee thereof or any assignee of any mortgagee upon :the fee. of the
Udensed Premises,
ARTICLE XXIV
NOWMERGER OF ESTATES
Section:24,.01 Intentionally omitted.
Section24.02 This License shall be superior, et all times, to all .other obligations of
even kind relating to the Licensed Premises, except the Lease and any other obligations
Mentioned in Article I of this License.
ARTICLE XXV
TIME FOR CONSENT OR APPROVAL
20
0071770/9310036 /1585(08.5
Section 25.01 Whenever the consent of a party hereto is requested or required,
such party agrees that such consent shall not :be unreasonably withheld or delayed. In
order that the parties may establish such consents have been granted, the parties
mutually -agree that within ten (10) days-.:after receipt of request therefor, they shall either
grant:such consents, acknowledge that the perforinanee of the other party is satisfactory,
or specify in writing and with particularity the reason for the.fallure.to do so. The failure of
any.' party to reply within such ten (10) day period shall be irrefutably presumed to be
consent by such party.
ARTICLE XX1/I
MISCELLA SOUS
Section 26.01 This License shall be strictly construed neither against Licensor nor
Licensee.
ARTICLE. XXUp
RENEWAL OPTION /FIRST RIGHTS
Section 27.01. Licensee shall have the option (`Renewal Option ") to extend the
Term for a renewal term of six (6) years ( ".Renewal Term ") on the same terms and.
conditions - contained in this License (except that Licensee shall not be required.- to pay arc
additional one time License Fee). Licensee may exercise the Renewal Option by.-
written-notice to Licensor given no later than the date which is one hundred and twenty (120).
days :prior to the last day of the scheduled expiration dale. If Licensee exercises the
Renewal Option,. the Renewal Term shall commence on the day after the scheduled
expiration .date set forth above and shall expire six years• thereafter. The Renewal Term -
shall bo upon the same covenants, terms and conditions as in - this License for the original
Term, (except that Licensee shall not be required to pay the one time License Fee set
forth in Section 2.01 hereof).
Section 27.02 In the event Licensee exercises the Renewal Option (or othenwise
wishes to: exercise 'the :renewal Option), but Licensor shall have agreed (Oy way of
binding term sheet. or other final agreement) with .a full time restaurant operator to
sublease �th.s Licensed Premises to such restaurateur in order to. operate a. full serdice.
food/catering business in the Licensed Premises (commencing from and after the end of
the initial Terris) .(the "Competing Food Operator"), then L foensor may nullify Licensee's
option to extend the Term hereof for the. Renewal- Term (if Licensee has already
exercised the Renewal .option) or otherwise prevent the .exercise: of such Renewal Option
(if Licensee has not yet exercised the. Renewal Option) by (i) giving Licensee written
riotlim thereof by no later than one. hundred and. oighty (1.50) days prior to. the fast day of
the scheduled expiration date (time being of the asse.nce), and (ii) submitting to Licensee
the actual agreement (or binding term sheet) between Licensor and such Competing
Food Operator containing all of the terms and conditions of such arrangement (iri.cluding-
21
C071770/0310036/1585G0$,5
without limitation, the rent pay0(e by the Competing Food Operator, .arty work being
performed by Licensor or othe ' r-free rent or concessions given by Licensor to such
Competing Food Operator). In such event, (i) Licensor shall pay Licensee (together with
Llcensd.r's, notice) the unamortii-ed amount of the one time License Fee - paid by Licensee
to Licensor hereunder,. calculated on the basis of a .20. year straight lime amortize
tion
schedule, without interest, and ffly. Licensee, in its Sole and absolute discretion, shall have
the 0 1 0ht of ; first refusal -to match the terms being made available to the Competing -Food
Operator, in which event,. Licensee and Licensor shall enter Into an a -9 rb0fio0t pertaining
to the food service operation in the Licensed Premises on the same terms and condition
-at that being provided to the Competing Food Operator. If Licensee shall not elect to
match the, terms of the agreement with the Competing :Food Operator, then from And after
the expiration of the: 'Term hereof, the Licensed Premises being operated
by - the
Gdmpotin
Food Operator shall be deemed one of the concessions being operated under
the terms of the Ice Usage Agreement between Licensor and Licensee, and Lid6nseO.
Shall be entitled to share in 55% of all: revenues earned therefrom .during Fighting Saints
games in accordance with the terms and provisions of said Usage Agreement..
Section 27.0a ' (a) fn the event Licensee exercises the renewal Option - (or
otherwise wishes to exercise the Renewal Option), but t Licensor itself wishes to operate
the Licensed Premises. as a. full I -service restaurant commending from and after the end of
the initial Term 'hereof, then Licensor may nullify 'Lladnseo't option to ext6hd the Term
hereof for the Renewal Term (if Licensee hag already exercised the - Renewal Option) or
.otherwise prevent the exercise of such Renewe Option (if Licensee has not yet exercised
the Renewal Option) by giving: Licensee written notice by no :later than ono hundred and
eighty (180): days prior to the last day of the scheduled expirafi6n date (time being of the
essence), certifying to Licensee that Licensor will'its6lf be taking. over the operation of the
Licensed Premises as a - full service restaurant/catering facility for patrons of the Arena
c0fiiMenci.ng from and after the Term hereof, and subMitting evidence of the .steps that it
has: taken in. order to itself operate such restaurant (including, luding, without limitation,
.identifying the commissary from which it will be cooking its food, providing the name of its
chef that it has hired to cooked the menu on its behalf and provide Licensee ee with the
menu of the food that it will be providing in the Licensed Premises). In such event,
Licensor- shall pay Licensee (together with Licensor's notice and as .a condition of such
nulliffeation) the onamortized.amount of the one time License Fee Wt in Section 2iQl
paid by Licensee to. Licensor hereunder,:calculated on the basis. of a.20 year straight line
amortization schedule, without into.ro4t Licensor specifically agrees and understands that
Licensor may not nullify (or prevent the exercise. by Licensee of) the Renewal Option
hereunder unless (a) Licensor itself will be cooking, preparing, operating, catering and
serving the. patrons within the Licensed Premises, (and: will not be hiring or otherwise
permitting another food vendor or caterer to utilize the facilities. or otherv0se provide the
fo6d being served from the Licensed Premises), ant (b) Licensor will be keeping all .
revenues generated from such* I,JdenSod . Premises .(subject to the provisions of the last.
sentence of this Section 27:03(a)), If Licensor shall elect to itself -operate the Licensed
Premises as a full service restaurant cornmehdigg from and after the and -of the initial
Term hereof as aforesaid then from and after the expiration of the- Term hereof, the
Licensed Premises being operated by Licensor shall be deemed one . of the concessions
22
t071170/03110036/1585608.5
bein operated under the 'terms of the tcb Usage Agreement: between Licensor 9nd
Licensee, and Licensee shall b6 entitled to share in 55%.of all revenues earned therefrom
during Fighting Saints games in accordance , with the terms and pro . v revenues
of' said Usage
.Agreement,
(b) ln the. event that Licensor shall :nullify Litensee's option to extend the Term
hereof for the. Renewal. Term. (or otherwise provent the -exercise , of such Renewal Option
by. Licensee.) pursuant to the provisions :of Section 2743(a) above, and if thereafter,
Licensor shall no longer itself operate the Licensed Premises as a full service restaurant
as -required hereunder, thpn Licensor shall -so notif
Lfc4nsee, and Licensee, in its sole
a nd: absolute discretion, shall have the right to once again exercise the Renewal Option to
license the Licensed Premises for an additional. period of six. (6) -years Under the sa
terms .and conditions as contained in this License of the ono: time License Fft
set f6rth. in -Section 2. 0.1 hereof)., Licensee may exercise such Renewal Option by written
notice to Licensor given no later than one hundred and eighty. (1'80) days after Licensor
'advises Licensee that it no longer will. be operating the Licensed Premises at a full
service restaurant; and 'if Licensee so exercises ft Renewal Option, then the Renewal
Term shall commenco on the day after the date. that Licensee exercises. such Renewal
Option and shall expire on the earlier of (i) the date that tha�.Fightlng Saints. hockey
(or its successor) are no longer playing their horne hockey games in the Arena, or .(ii) six
years after the exercise of such Renewal Option.
Signed the day and year firstabove written,
DUBUQUE COMMUNITY ICE AND
RECREATION'GENTER, ING.,LICENSIOR
NORTHERN LIGHTS HOCKEY, LLC,
LICENSEE:
BV;
F Robert Woodward, III
Its President
By.
Brad Kwong
Its
The City of Dubuque, IOWA, hereby consents to this License Agreement and .by its
execution hereof, hereby agroes ( i) that in. the event the Lease is terminated for any
reason, it Will not disturb Licensee hereunder.and Will rdcoghiz6 Lice ' nsee as a licensee of
the Licensed Premises pursuant to the: terms and provisions of this License., and' (ii) to the
provisions.of Settion - 5,02, If the. lease Is amended require Lestorto carry. the -casualty
insurance andor.the Lease.
THE CITY OF IDMUOUE, IMA
23
C07117010310036/1585608.3*
.�.;v:
Michael C. Van Mlltgen
City Mghager
C071770/0310036/1585602.5
24
C071770/0310036/1585608.5
APPENDIX A
LICENSED PREMISES
25
C071770/0310036/1585608.5
Utility Room: 193 s.f.
Flocrinp - Concrete with Sealer
Ceiling - None (unpainted structure)
Walls - Ccncre:e Block (CMU), Unpainted
Solid Wood Door with hollow metal frame
EXHIBIT A
LICENSOR'S WORK
June 30, 2010
Narrative For 2' Floor Lounge Buildout.
Overall Space - 3,204 e.f. consisting of:
Typical All areas:
Fire Sprinklers as required per Coce
Electrical as required per Code (and as recto re:l for ecuiprrent In food prep a,ra)
Ughdrtg - 2x4 Fluorescent Fixtures
Lounge Space: 2,000 a.f.
Flooring - Carpet Tile
Coiling - 2x2 Lay -In Acoustical Calling
Walls - Concrete Block (CMU), Painted
Hand wash Sink near Food Prep area.
Food Preparation Area: 317 s.f.
Flooring - Concrete with Sealer
Ceihng - 2x4 Moistwe Resistant Cleanable lay -in
Was - 3 5/8" Metal Stud partitions with (1) layer 5 /B" gypsum board each face
3-Bin sink with drain boards.
Hand was sink
(2) Bang Doors
(') 4' -0" x 4' -0" rolling counter shutter
Plastic laminate counter pass through at rolling counter shutter location
Restrooms: 484 s.f,
Flooring - Concrete with Scaler
Ceiling 2x2 Lay -In Acoustical Celirg
Walls - Wa Is - Concrete Block (CMU), Pa nted
Phenolic plastic toile: partitions
(6) Tolet Fixtures
(2) Urhal Fixtures
(2) Plastic Laminate Vanities with (2) sinks each
(2) Solid Wood Doors with hollow metal frames
Circulation Space: 210 s.f.
Flooring - Carpet Trle
Ceiling -2x2 Lay -In Acoustical Ceiling
Walls Concrete Block (CMU), Painted/3 5+'er Metal Stud partitions wltr (1) layer 5!B'
gypsum board each (ace.
26
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LARRISON & ASSOCIATES
architects
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Dubuque Community
Ice & Recreation, Inc.
Ice Arena
Dubuque. lows
PROJECTOR
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PROERESS PRINT o6/23/2OIO
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P. 10525
Moot NO
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LARRISON & ASSOCIATES
architects
Dubuque Community
Ice & Recreation, Inc.
Ice Arena
Dubuque, Taws
LINO
RaiMona
hdoet Na 10525
Mast Contra
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C071770/0310036/1585608.5
SCHEDULE A
Insurance Requirements
INSURANCE REQUIREMENTS FOR LESSEES AND LESSEES
OF CITY PROPERTY OR VENDORS
{SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
1. All policies of insurance required hereunder shall be with an insurer authar¢ed to
do business ins Iowa. All insurers shall have a rating of A or better in the current AM,
Best Reding Guide.
2. Ali policies of insurance shall be endorsed to provide a thirty (30) day advance.
notice of cancellation to the City of Dubuque, except for 10 day notice for non - payment,
if cancellation is prior to the expiration date- This endorsement supersedes the standard
cancellation statement on the Certificate of Insurance.
3 - Lessee shall furnish a signed Cerlifcate of Insurance to the City of Dubuque,
Iowa for the coverage required in Paragraph 6 hekiw. Such certificates shall include
copies of the following policy andorsernerna:
a) Commercial General Liability policy is primary and non- contributing.
b) Commercial General Liability additional insured endorsement
c) Governmental Immunity Endorsements.
4. Each cer7tficate shall be submitted to the contracting department of the City of
Dubuque,
6. Fakir. to provide minimum coverage shall not be deemed a waiver of these
requirements by the City of Dubuque. Eaili.tre to obtain or maintain the required
insurance shall be considered a material breach of this agreement
6. Lessee shall be required to carry the following minimum coverage/limits or
greater if required by taw or other !seal agreement:
a) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000.
Products - Completed Operations Aggregate Limit $1 ,000,000
Pomona' and Advertising Injury Limit $1,000,000
Each Commence Lima $1.,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5440
This coverage shall be written on an occurrence. not a claims matte farm- Form CG 25
04 03 97 "Designated Location Is) General Aggregate Lfmlt" shall be included. All
deviations or exclusions front the Standard WO cOrnrrfercial general liability fart! CG
000 or Business Owners form BP 0002, shall be clearly identified.
29
C071770/0310036/1585608.5
Governmental Immunity Endorsement Identicaii or equivalent to form attached.
Additional Jnsured Requirement
The City of Dubuque, Including all its elected and appointed officials, all ils
employees and volunteers, all 'Its boards, commissions andfor authorities
and their board members, employees and volunteers shall be named as
an additional insured on General Liability Polities using ISO endorsement
CG 2.026 V704 ° Additional Insured — Designated Person or Organization,"
or its aquivalenL — See Specimen
b) WORKERS' COMP/MAW/4 & EMPLOYERS LIABILITY
Statutory for Coverage A
Employers Liability:
Each Accident $100,000
Each Employee Disease $100,000
Policy Lirrllt Disease $500,000
c)
Completion Checklist
INSURANCE SCHEDULE A (Continued)
INSURANCE REQUIREMENTS FOR LESSEES AND LESSEES
OF CITY PROPERTY OR VENDORS
(SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
d Certificate of Liability Insurance (2 page*
❑ Designated Location(s) General Aggregate Limit CO 25 04 03 97 (2 pages)
u Additional Insured 20 26 07 04
n Governmental Immunities Endorsement
-23-
30
C071770/0310036/1585608.5
CITY OF DUBUQUE, IOWA
GOVERNMENTAL JI1RMUl+IJT1ES ENDORSEMENT
1. fir of Qaverttrrlental Immunity. The rnsuranoe Daffier expressly agrees
and slates 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 avaiPable to the City of Dubuque, Irnw under Code of Iowa Section 870.4 as it
Is now exists and as It may be amended from time to time.
2. claim Covecgml, The insurance carrier further agrees that his policy of
Insurance shall over anly those claims not subject to the defense of goverrerrental
itrvnuntty under the Code of lows Section 1370.4 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 try the terms and conditions of this insurance policy.
3_ Assertion cf. Government Immunity, The City of Dubuque, Iowa shall be
responsible fora sertirlg any defense of governmental immunity, and may do so at any
time and shall do ao upon the timely written request of the insurance carrier.
4. Non-Denial of Coverage, The insurance carrier shall not deny coverage. under
this policy and the Insurance carrier shall not deny any of the rights. and benefits
accruing to the City of Dubuqule, lowa under this paltry 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, lowa_ -
t in Policy- The above preservatIon of governmentaI immunities shall
not otherwise change or alter the coverage available under the policy.
SPECIMEN
-24-
31
C071770/0310036/1585608.5
GQN►1£Rp1AL GEhIERAL LJAOILLTY
016!.61744
�11EC 1441DORBE!ENT C.1.4 %TNE3 p411CY. PLEA READ rT CAREFULLY.
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PERSON OttORGANIATION
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