Peninsula Gaming Co. Patio Lease
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MEMORANDUM
April 1, 2004
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Peninsula Gaming Company, LLC Lease of the Patio for the 2004 Season
Corporation Counsel Barry Lindahl is recommending execution of a lease with
Peninsula Gaming Company for their use of the patio at the Portside Building for the
2004 summer season.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
(YL ~JJ/ ~ If iL
Michael C. Van Milligen ------
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Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Natalie Schramm, General Manager, Diamond Jo Casino
March 31,2003
Mr. Michael C. Van Milligen, City Manager
City Hall - City Manager's Office
50 West 13th Street
Dubuque, IA 52001
RE:
Peninsula Gaming Company, LLC Lease of the Patio for the 2004 Season
Dear Mike:
Enclosed is the proposed Lease Agreement between the City of Dubuque and
Peninsula Gaming Company, LLC for the lease of the patio area adjacent to the
Portside Building for the 2004 season.
The lease is virtually identical to the lease approved by the City Council for the 2003
season. The term of the lease is from April 1, 2004 through October 31, 2004.
Peninsula Gaming will pay rent in the amount of $25,000 in advance upon execution of
the lease. The use of the leased premises is for concerts, entertainment and food
service to its customers and other members of the public. Peninsula Gaming is also
required to pay any real estate taxes for the term of the lease and to provide appropriate
insurance.
The City and Peninsula Gaming also agree to negotiate in good faith for a long-term
lease for the patio and the parking lot with the intent that a long-term lease will be
finalized by June 3, 2004.
I would recommend that the proposed Lease Agreement be submitted to the Mayor and
City Council for approval at the April 5, 2004 City Council meeting.
Very sincerely,
Barry A. Lindahl, Esq.
Corporation Counsel
BAL:tls
Enclosure
cc: Cindy Steinhauser, Assistant City Manager
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
PENINSULA GAMING COMPANY, L.L.C.
THIS LEASE AGREEMENT (hereinafter called the "Lease"), executed in
duplicate, made and entered into this - day of ,
2004 by and between THE CITY OF DUBUQUE, IOWA (hereinafter called the
"Landlord") whose address for the purpose of this Lease is City Hall, 50 West
13th Street, Dubuque, Iowa 52001 and PENINSULA GAMING COMPANY,
L.L.C. (hereinafter called the "Tenant") whose address for the purpose of this
Lease is 3rd Street - Ice Harbor, Dubuque, Iowa 52001.
1. PREMISES AND TERM. The Landlord, in consideration of the rents
herein reserved and of the agreements and conditions herein contained, on the
part of the Tenant to be kept and performed, leases unto the Tenant and Tenant,
in consideration of the agreements, representations and conditions herein
contained, hereby rents and leases from Landlord, according to the terms and
provisions herein, the following described real estate, situated in Dubuque
County, Iowa, to wit:
The patio area (Parcel B) as shown on Exhibit A attached hereto
and by this reference made a part hereof (the Leased Premises),
legally described as a part of Lot 6 of Ice Harbor Development,
according to the recorded plat thereof,
with the improvements thereon and all rights, easements and appurtenances
thereto belonging (hereinafter called "Leased Premises"), for a term commencing
at midnight of the day previous to the first day of the lease term, which shall be
on the 1st day of April, 2004, and ending at midnight on the last day of the lease
term, which shall be on the 31st day of October, 2004, upon the condition that the
Tenant pays rent therefore, and otherwise performs as in this Lease provides.
Tenant acknowledges that Landlord claims a non-exclusive, perpetual
walkway easement over and across Lot 7 for itself and for public pedestrian
access to and from Lot 6 in Ice Harbor Development. Landlord agrees that
during the term of this Lease, Landlord shall not enforce said easement and
Tenant shall have all of the rights and responsibilities with respect to the
easement as if it were a part of the Leased Premises.
The Landlord reserves unto itself a non-exclusive, perpetual Public
Access Easement, to run with the land, as shown on Exhibit A, for itself and for
public pedestrian access, said access to remain open, clear and unobstructed at
all times except as may be otherwise agreed to in writing by the Landlord.
2. RENTAL. Tenant agrees to pay to Landlord as rental for said term, as
follows: $ 25,000.00 in advance, upon full execution of this Lease.
All sums shall be paid at the address of Landlord, as above designated, or
at such other place in Iowa, or elsewhere, as the Landlord may, from time to
time, designate in writing.
3. POSSESSION. Tenant shall be entitled to possession on the first day
of the term of this Lease, and shall yield possession to the Landlord at the time
and date of the close of this lease term, except as herein otherwise expressly
provided. Should Landlord be unable to give possession on said date, Tenant's
only damages shall be a rebating of the pro rata rental
4. USE OF PREMISES.
It is contemplated between the parties that the Leased Premises shall be
used by Tenant for concerts (primarily but not limited to Wednesdays and
Fridays), entertainment and food service to the customers of Tenant and other
members of the public and that attendance at some of the events will require an
admission fee or other charge and some will be without charge. Tenant shall
have the right, at its option, during the term of this Lease, to use the
Improvements (as identified below) and the Leased Premises in any reasonable
and lawful manner consistent with Tenant's then current business practices.
5. QUIET ENJOYMENT. Landlord covenants that its estate in said
premises is fee simple; and that the Tenant on paying the rent herein reserved
and performing all the agreements by the Tenant to be performed as provided in
this Lease, shall and may peaceably have, hold and enjoy the Leased Premises
for the term of this Lease free from molestation, eviction or disturbance by the
Landlord or any other persons or legal entity whatsoever.
6. CARE AND MAINTENANCE OF PREMISES. (a) Tenant takes said
premises in their present condition except for any environmental hazard or
condition existing on the Leased Premises.
(b) LANDLORD'S DUTY OF CARE AND MAINTENANCE. Landlord
shall have no duty of care or maintenance, except for any and all underground
utilities with regard to the Leased Premises and any environmental hazard or
condition existing on the Leased Premises.
(c) TENANT'S DUTY OF CARE AND MAINTENANCE. Tenant shall at
all times during the term of this Lease, at Tenant's own costs and expense, keep
and maintain the Leased Premises and all improvements in a condition
consistent with other similarly classed operations. Upon reasonable notice to
Tenant, Landlord may, at its discretion, upon reasonable notice to Tenant,
conduct an inspection of the Leased Premises to determine Tenant's compliance
with this Article 6.
Tenant shall, after taking possession of said premises and until the
termination of this Lease and the actual removal from the premises, at its own
expens~, care for and maintain the surface of the Leased Premises in a
reasonably safe and serviceable condition including snow removal. Tenant will
not permit or allow said premises to be damaged or depreciated in value by any
act or negligence of the Tenant, its agents or employees. Tenant may repair and
replace any portion or all of the Leased Premises. The Tenant's maintenance
obligation hereunder shall include snow removal and other general maintenance.
(d) Tenant will make no unlawful use of said premises and agrees to
comply with all city ordinances, and the laws of the State of Iowa and the Federal
government.
7. IMPROVEMENTS. On delivery of possession of the Leased Premises
to Tenant, Tenant shall not construct on the Leased Premises any structures,
buildings or other improvements except as herein provided or subsequently
agreed upon by the Landlord and Tenant (the "Improvements"). Landlord shall
have the right, in its reasonable discretion, to approve the design, appearance
and quality of any such Improvements, which approval shall not be unreasonably
withheld or delayed.
Tenant has constructed on the Leased Premises the following temporary
structures: a grandstand and a temporary stage; a stage cover; production
requirements that necessitated Tenant core boring underground with a
temporary transformer located on the Leased Premises; and a fence to control
access to the grandstand area. Such Improvements and all temporary
Improvements hereafter constructed on the Leased Premises are and shall be
the property of Tenant during the continuance of the term of this Lease and shall
be removed by the Tenant upon the termination of this Lease except the
installation of concealed electrical improvements; at the termination of this
Lease, Tenant shall be responsible for replacement of the three light poles
removed during the term of this lease. Tenant shall at its expense replace or
repair any bricks or concrete or other Landlord property damaged by Tenant
during its construction process; however, installation of not more than 48 metal
sleeves referenced in the following paragraph shall not be considered to have
damaged the bricks or concrete if capped by Tenant as set forth in the following
paragraph.
Landlord has installed48 metal sleeves in the concrete on the Leased
Premises in locations designated by Tenant for purposes of the erection of
Tenant's tent. The sleeves shall include a protective cap to be installed over the
metal sleeve that is level with the existing concrete surface. The caps shall be
installed by Tenant at any time the tent is removed from the Leased Premises.
The location of the tent and stage area as they exist as of the date of this
Lease shall not be changed without the prior written consent of the Landlord.
The tent shall be designed and installed in such a manner that the north and
west sides of the tent are enclosed so as to minimize noise from the north and
west sides of the tent.
Tenant shall not encumber by mortgage, deed of trust, or other
instrument, its leasehold interest and estate in the Leased Premises.
8. ICE HABOR URBAN RENEWAL DISTRICT DESIGN STANDARDS.
Landlord agrees that it shall be responsible for compliance with and payment for
any changes to the Leased Premises necessary to comply with the Ice Harbor
Urban Renewal District Design Standards as it currently exists or might hereafter
be amended and Tenant shall have no responsibility or liability therefore.
9. UTILITIES AND SERVICES. Tenant, during the term of this Lease,
shall pay, before delinquency, all charges for all utilities and services, including
garbage disposal and trash disposal.
10. SURRENDER OF PREMISES AT END OF TERM - REMOVAL OF
FIXTURES. (a) Tenant shall, on the last day of the term of this Lease or upon
any termination of this Lease hereof, surrender and deliver up the Leased
Premises without fraud or delay and in good order, condition, and repair, free
and clear of all lettings and occupancies, free and clear of all liens and Tenant
shall remove any or all of the Improvements erected by Tenant located on the
Leased Premises and restore the Leased Premises to the condition it was in
immediately prior to the commencement of the term of this Lease, other than the
sleeves described in Par. 7
(b) HOLDING OVER. Continued possession, beyond the expiratory date
of the term of this Lease, by the Tenant, coupled with the acceptance of the
specified rental by the Landlord and a written agreement by Landlord for an
extension of this Lease shall constitute a month to month extension of this
Lease.
11. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned
nor the Leased Premises sublet by the Tenant without the prior written consent
of the Landlord. Tenant understands and agrees that Landlord's consent is at
Landlord's sole option and complete discretion and that such consent may be
withheld or may be granted with any conditions or requirements that Landlord
deems appropriate.
12. TAXES. (a) Tenant agrees to pay to landlord as additional rent at the
time of the payment of the Rental in Par. 2 an amount equal to real estate taxes
upon the real estate of the Leased Premises for the term of this Lease.
(b) The Tenant further agrees to pay all other lawful taxes, rates, charges,
levies and assessments, general and special, of every name, nature and kind,
whether now known or hereafter created which may be taxed, charged,
assessed, levied or imposed upon said real estate, any buildings or
improvements thereon which may be taxed, charged, assessed, levied or
imposed upon the leasehold estate hereby created during the term hereof, and
all such taxes, rates, charges, levies and assessments shall be paid by Tenant
as they become due and before they become delinquent, subject, however, to
the limitations and obligations of Landlord set forth in this Lease.
(c) Tenant agrees to timely pay all taxes, assessments or other public
charges levied or assessed by lawful authority (but reasonably preserving
Tenant's rights of appeal) against its personal property on the premises, during
the term of this Lease.
(d) Nothing herein shall require Tenant to pay any of Landlord's income
taxes, surtaxes, excess profit taxes or any taxes on the rents reserved to
Landlord hereunder.
(e) Tenant shall at all times have the right to contest in good faith, in any
proper proceedings, in the name of Landlord if necessary, the payment or
satisfaction of any such taxes, assessments, rates, charges or levies so agreed
to be paid by Tenant, if the validity thereof, or the right to assess or levy the
same against or collect the same from said Leased Premises or improvements,
shall be disputed. Upon the conclusion of any such suit or proceedings, or not
less than three (3) months prior to the date when the right to redeem therefrom
expires, whichever will be the earlier, Tenant will promptly pay and satisfy such
disputed tax, assessment or other charge as finally determined, together with all
expenses, costs and attorneys' fees whatsoever incurred in connection
therewith.
13. INSURANCE. (a) Landlord and Tenant will each keep its respective
property interests in the premises and its liability in regard thereto, and the
personal property on the premises, reasonably insured against hazards and
casualties; that is, fire and those items usually covered by extended coverage;
and Tenant will procure and deliver to the Landlord a certification from the
respective insurance companies to that effect. Such insurance shall be made
payable to the parties hereto as their interests may appear, except that the
Tenant's share of such insurance proceeds are hereby assigned and made
payable to the Landlord to secure rent or other obligations then due and owing
Landlord by Tenant.
(b) Neither Landlord nor Tenant will not do or omit the doing of any act
which would vitiate any insurance, or increase the insurance rates in force upon
the real estate improvements on the premises or upon any personal property of
the Tenant upon which the Landlord by law or by the terms of this Lease, has or
shall have a lien.
(c) WAIVER OF SUBROGATION. Notwithstanding any other provision in
this Lease to the contrary, both Landlord and Tenant herein hereby waive any
and all rights of recovery, claim, action or causes of action against each other,
their agents, officers and employees, for any loss or damage that may occur to
the Leased Premises, including improvements thereon, or to any property of
either party maintained on the Leased Premises by reason of fire, casualty, the
elements, or any other cause of physical damage which could be insured against
under the terms of standard fire and extended overage insurance policies,
regardless of cause or origin and regardless of the negligence of the parties
hereto, their agents, officers, invitees and employees. Each of the parties hereto
shall secure such a waiver of subrogation endorsement from its respective
insurance carriers and provide, upon request, a copy of such insurance
endorsement to the other party.
(d) INSURANCE PROCEEDS. Landlord shall settle and adjust any claim
against any insurance company under its said policies of insurance for the
premises, and said insurance monies shall be paid to and held by the Landlord
to be used in payment for cost of repairs or restoration of damaged building, if
the destruction is only partial.
14. INDEMNITY AND LIABILITY INSURANCE. Tenant will protect,
indemnify, and save harmless Landlord from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) imposed
upon or incurred by or asserted against Landlord by reason of (a) any accident,
injury to, or death of persons or loss of or damage to property occurring on or
about the Leased Premises during the term of this Lease and resulting from any
act or omission of Tenant or anyone claiming by, through, or under Tenant
during the term of the Lease; and (b) any failure on the part of Tenant to perform
or comply with any of the terms of this Lease. In case any action, suit, or
proceeding is brought against Landlord by reason of such occurrence, Tenant
will, at Tenant's expense, resist and defend such action, suit, or proceeding, or
cause the same to be resisted and defended by counsel approved by Landlord.
The Tenant further covenants and agrees that it will at its own expense
procure and maintain insurance as set forth in the attached Insurance Schedule.
Landlord will protect, indemnify, and save harmless Tenant from and
against all liabilities, obligations, claims, damages, penalties, causes of action,
costs and expenses (including, without limitation, reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted against Tenant by reason of
(a) any accident, injury to, or death of persons or loss of or damage to property
occurring on or about the Leased Premises during the term of this Lease and
resulting from any act or omission of Landlord or anyone claiming by, through, or
under Landlord during the term of the Lease; and (b) any failure on the part of
Landlord to perform or comply with any of the terms of this Lease. In case any
action, suit, or proceeding is brought against Tenant by reason of such
occurrence, Landlord will, at Landlord's expense, resist and defend such action,
suit, or proceeding, or cause the same to be resisted and defended by counsel
approved by Tenant.
15. FIRE AND CASUALTY. PARTIAL DESTRUCTION OF PREMISES.
(a) In the event of a partial destruction or damage of the Leased Premises,
which is a business interference, that is, which prevents the conducting of a
normal business operation of Tenant or the purposes identified above and which
damage is reasonably repairable within sixty (60) days after its occurrence, this
Lease shall not terminate but the rent for the Leased Premises shall abate during
the time of such business interference or be refunded if previously paid. In the
event of partial destruction, Tenant shall repair such damages within sixty (60)
days of its occurrence unless prevented from so doing by acts of God, the
elements, the public enemy, strikes, riots, insurrection, government regulations,
city ordinances, labor, material or transportation shortages, or other causes
beyond Tenant's reasonable control.
(b) ZONING. Should the zoning ordinance or any other action of the City
make it impossible for Tenant, using diligent and timely effort to obtain necessary
permits and to repair and/or rebuild so that Tenant is not able to conduct its
business on these premises, then such partial destruction shall be treated as a
total destruction as in the next paragraph provided.
(c) TOTAL DESTRUCTION OF BUSINESS USE. In the event of a
destruction or damage of the Leased Premises so that Tenant is not able to
conduct normal business operations, specifically including the purposes
identified above on the Leased Premises or the then current legal use for which
the premises are being used and which damages cannot be repaired within sixty
(60) days this Lease may be terminated at the option of Tenant. Such
termination in such event shall be effected by written notice of Tenant to
Landlord, within twenty (20) days after such destruction. Tenant shall surrender
possession within ten (10) days after such notice issues, and each party shall be
released from all future obligations hereunder, Landlord shall promptly refund
rental pro rata to the date of such destruction.
16. CONDEMNATION. (a) Entire Condemnation. If at any time during
the term of this Lease all or substantially all of the Leased Premises or the
improvements thereon shall be taken in the exercise of the power of eminent
domain by any sovereign, municipality, or other public or private authority other
than Landlord, then this Lease shall terminate on the date of vesting of title in
such taking and any prepaid rent shall be apportioned based upon the value of
the property taken and the damages actually sustained taking into consideration
any contractual liability incurred by Tenant as a result thereof as of said date.
Substantially all of the Leased Premises and the improvements thereon shall be
deemed to have been taken if the remaining portion of the Leased shall not be of
sufficient size to permit Tenant to operate its business thereon in a manner
similar to that prior to such taking.
(b) Partial Condemnation. If less than all or substantially all of the
Leased Premises or the improvements thereon shall be taken in the exercise of
the power of eminent domain by any sovereign, municipality, or other public or
private authority other than Landlord, then Tenant, at its option, may elect to
continue this Lease in full force and effect or terminate this Lease. If Tenant
shall elect to maintain this Lease in full force and effect, the entire award for such
partial condemnation shall be paid over to Tenant, and Tenant shall proceed with
reasonable diligence to carry out any necessary repair and restoration so that
the remaining improvements and appurtenances shall constitute a complete
structural unit or units which can be operated on an economically feasible basis
under the provisions of this Lease. In the event Tenant elects to continue this
Lease in full force and effect after a partial condemnation, there shall be no
abatement in or refund of the rent Tenant is required to pay hereunder.
Should Tenant elect to terminate this Lease upon a partial condemnation
by any entity other than Landlord, Tenant shall provide Landlord with written
notice of such election within thirty (30) days after the date of vesting of title for
such taking. Tenant shall specify in such written notice the date on which this
Lease shall terminate, which date shall be not less than 60 days or more than
360 days after delivery of such notice to Landlord (the Termination Date). In the
event Tenant terminates this Lease, as provided for in this Paragraph 16(b),
Tenant shall be entitled to the entire award for such partial taking.
(c) Temporary Takina. If the temporary use of the whole or any part of
the Leased Premises or the Improvements thereon or the appurtenances thereto
shall be taken at any time during the term of this Lease in the exercise of the
power of eminent domain by any sovereign, municipality, or other authority other
than Landlord, the term of this Lease shall not be reduced or affected in any
way, and Tenant shall continue to pay in full the rent, additional rent, and other
sum or sums of money and charges herein reserved and provided to be paid by
Tenant, and the entire award for such temporary taking shall be paid to Tenant.
Tenant shall repair and restore any and all damage to the Leased Premises and
the improvements as soon as reasonably practicable after such temporary
taking.
(e) BANKRUPTCY OR INSOLVENCY OF TENANT. In the event Tenant
is adjudicated a bankrupt or in the event of a judicial sale or other transfer of
Tenant's leasehold interest by reason by any bankruptcy or insolvency
proceedings or by other operation of law, but not by death, and such bankruptcy,
judicial sale or transfer has not been vacated or set aside within ten (10) days
from the giving of notice thereof by Landlord to Tenant, then and in any such
events, Landlord may, at its option, immediately terminate this Lease, re-enter
said premises, upon giving of ten (10) days' written notice by Landlord to Tenant,
all to the extent permitted by applicable law.
17. DEFAULT. If Tenant shall fail or neglect to observe, keep, or perform
any of the material covenants, terms, or conditions contained in this Lease on its
part to be observed, kept, or performed, and the default shall continue for a
period of thirty (30) days after written notice from Landlord setting forth the
nature of Tenant's default (it being intended that in connection with a default not
susceptible of being cured with diligence within thirty (30) days, the time within
which Tenant has to cure the same shall be extended for such period as may be
necessary to complete the same with all due diligence), then and in any such
event, Landlord shall have the right at its option, on written notice to Tenant, to
terminate this Lease and all rights of Tenant under this Lease shall then cease.
Landlord, without further notice to Tenant, shall have the right immediately to
enter and take possession of the Leased Premises with or without process of law
and to remove all personal property from the Leased Premises and all persons
occupying the Leased Premises and to use all necessary force therefore and in
all respects to take the actual, full, and exclusive possession of the Leased
Premises and every part of the Leased Premises as of Landlord's original estate,
without incurring any liability to Tenant or to any persons occupying or using the
Leased Premises for any damage caused or sustained by reason of such entry
on the Leased Premises or the removal of persons or property from the Leased
Premises.
18. RIGHT OF EITHER PARTY TO MAKE GOOD ANY DEFAULT OF
THE OTHER. If default shall be made by either party in the performance of, or
compliance with, any of the terms, covenants or conditions of this Lease, and
such default shall have continued for thirty (30) days after written notice thereof
from one party to the other, the person aggrieved, in addition to all other
remedies now or hereafter provided by law, may, but need not, perform such
term, covenant or condition, or make good such default and any amount
advanced shall be repaid forthwith on demand, together with interest at the rate
of 9% per annum, from date of advance.
19. SIGNS. (a) Tenant shall have the right and privilege of attaching,
affixing, painting or exhibiting signs on the Leased Premises, provided (1) that
any and all signs shall comply with the ordinances of the city of Dubuque and the
laws of the State of Iowa and the Ice Harbor Urban Renewal District Design
Standards; (2) such signs shall not change the structure of any building or the
premises; (3) such signs if and when taken down shall not damage any building
or the premises or such damage shall be repaired; and (4) such signs shall be
subject to the prior written approval of the Landlord, which approval shall not be
unreasonably withheld. Notwithstanding the foregoing, no signs shall be attached
to or attached to in Landlord's property or the Leased Premises, including any
concrete surface of the Leased Premises.
20. MECHANIC'S LIENS. Neither the Tenant nor anyone claiming by,
through, or under the Tenant, shall have the right to file or place any mechanic's
lien or other lien of any kind or character whatsoever, upon said premises or
upon any building or improvement thereon, or upon the leasehold interest of the
Tenant therein, and notice is hereby given that no contractor, sub-contractor, or
anyone else who may furnish any material, service or labor for any building,
improvements, alteration, repairs or any part thereof, shall at any time be or
become entitled to any lien thereon, and for the further security of the Landlord,
the Tenant covenants and agrees to give actual notice thereof in advance, to any
and all contractors and sub-contractors who may furnish or agree to furnish any
such material, service or labor.
21. RIGHTS CUMULATIVE. The various rights, powers, options,
elections and remedies of either party, provided in this Lease, shall be construed
as cumulative and no one of them as exclusive of the others, or exclusive of any
rights, remedies or priorities allowed either party by law, and shall in no way
affect or impair the right of either party to pursue any other equitable or legal
remedy to which either party may be entitled as long as any default remains in
any way unremedied, unsatisfied or undischarged.
22. PROVISIONS TO BIND AND BENEFIT SUCCESSORS, ASSIGNS,
ETC. Each and every covenant and agreement herein contained shall extend to
and be binding upon the respective successors, heirs, administrators, executors
and assigns of the parties hereto.
23. CONSTRUCTION. Words and phrases herein, including
acknowledgment hereof, shall be construed as in the singular or plural number,
and as masculine, feminine or neuter gender according to the context.
24. ENVIRONMENTAL.
A. Landlord. Landlord shall assume liability and shall indemnify and
hold Tenant harmless against all liability or expense arising from any
condition which existed, whether known or unknown, at the time of
execution of the Lease which condition is not a result of actions of the
Tenant or which condition arises after date of execution but which is not a
result of actions of the Tenant.
B. Tenant. Tenant expressly represents and agrees:
1. During the lease term, Tenant's use of the property will not
include the use of any hazardous substance without Tenant first obtaining
the written consent of Landlord. Tenant understands and agrees that
Landlord's consent is at Landlord's sole option and complete discretion
and that such consent may be withheld or may be granted with any
conditions or requirements that Landlord deems appropriate.
2. During the lease term, Tenant shall be fully liable for all costs
and expenses related to the use, storage, removal and disposal of
hazardous substances used or kept on the property by Tenant, and
Tenant shall give immediate notice to Landlord of any violation or any
potential violation of any environmental regulation, rule, statute or
ordinance relating to the use, storage or disposal of any hazardous
substance.
3. Tenant, at its sole cost and expense, agrees to remediate,
correct or remove from the premises any contamination of the property
caused by any hazardous substances which have been used or permitted
by Tenant on the premises during any term of this Lease. Remediation,
correction or removal shall be in a safe and reasonable manner, and in
conformance with all applicable laws, rules and regulations. Tenant
reserves all rights allowed by law to seek indemnity or contribution from
any person, other than Landlord, who is or may be liable for any such cost
and expense.
4. Tenant agrees to indemnify and hold Landlord harmless from
and against all claims, causes of action, damages, loss, costs, expense,
penalties, fines, lawsuit, liabilities, attorney fees, engineering and
consulting fees, arising out of or in any manner connected with hazardous
substances, which are caused or created by Tenant during the term of this
Lease including, but not limited to, injury or death to persons or damage to
property, and including any diminution of the value of any Leased
Premises which may result from the foregoing. This indemnity shall
survive the cessation, termination, abandonment or expiration of this
Lease for a period of five years.
25. AMERICAN'S WITH DISABILITIES ACT. Landlord shall be solely
responsible for, and agrees to indemnify and hold Tenant harmless from, any
and all repairs, additions, claims, fines, penalties, fees or any other costs or
obligation in any way imposed by or required by or related to the American's with
Disabilities Act in connection with the Leased Premises during the term of this
Lease, but not included any Improvements constructed by the Tenant.
Notwithstanding the foregoing, if Tenant, with Landlord's consent, makes any
alterations or improvements to the Leased Premises in addition to those set forth
elsewhere in this Lease, then Tenant shall be responsible for the compliance of
such alterations or improvements with the Americans With Disabilities Act.
26. ACKNOWLEDGMENT OF RIGHTS OF OTHERS. The parties
acknowledge that this Lease Agreement is subject to a Lease Agreement, as
amended, and specifically that certain Seventh Amendment to Lease Agreement
made and entered into July 19,1999, by and between the City of Dubuque, Iowa
and Dubuque Racing Association, Ltd. (the Association), with respect to the
Leased Premises. The Tenant has been provided with a copy of such Lease
Agreement, as amended, and takes the Leased Premises subject to the rights of
the Association as set forth therein. Tenant shall indemnify and hold harmless
the Association from any and claims, damages, causes of action or demands
that may arise as a consequence of Tenant's occupancy, use, or operation of the
Leased Premises or portions thereof.
Tenant acknowledges that Landlord's execution of this Lease does not
obviate in any manner the requirement that Tenant comply with the terms and
conditions of the Revised Ice Harbor Parking Agreement. Tenant further
acknowledges that compliance with the Revised Ice Harbor Parking Agreement
with respect to Tenant's use of the Leased Premises is the sole responsibility of
Tenant.
27. MEMORANDUM OF LEASE. Each of the parties hereto will, promptly
upon request of the other, execute a memorandum of this Lease in form suitable
for recording setting forth the names of the parties hereto and the term of this
Lease, identifying the Leased Premises, and also including such other clauses
therein as either party may desire.
28. NOTICES. All notices, demands, or other writings in this Lease
provided to be given or made or sent, or which may be given or made or sent, by
either party to the other, shall be deemed to have been fully given or made or
sent when made in writing and deposited in the United States mail, registered
and postage prepaid, and addressed as follows:
TO LANDLORD:
City of Dubuque, Iowa
City Manager
Ci~Hall
13 and Central Avenue
Dubuque, Iowa 52001
TO TENANT:
Natalie Schramm
Peninsula Gaming Company, LLC.
3rd Street - Ice Harbor
Dubuque, Iowa 52001.
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.
29. MISCELLANEOUS
(a) Time of the Essence. Time is of the essence of this Lease and all of
its provisions.
(b) Governina Law. It is agreed that this Lease shall be governed by,
construed, and enforced in accordance with the laws of the State of Iowa.
(c) ParaQraph Headinas. The titles to the paragraphs of this Lease are
solely for the convenience of the parties and shall not be used to explain, modify,
simplify, or aid in the interpretation of the provisions of this Lease.
(d) Modification of AQreement. Any modification of this Lease or
additional obligation assumed by either party in connection with this Lease shall
be binding only if evidenced in a writing signed by each party or an authorized
representative of each party.
(e) Parties Bound. This Lease shall be binding on and shall inure to the
benefit of and shall apply to the respective successors and assigns of Landlord
and Tenant. All references in this Lease to "Landlord" or "Tenant" shall be
deemed to refer to and include successors and assigns of Landlord or Tenant
without specific mention of such successors or assigns.
(f) Force Maieure. In the event that either party hereto shall be delayed
or hindered in or prevented from the performance of any act required hereunder
by reason of strikes, lockouts, labor troubles, unavailability or excessive price of
fuel, power failure, riots, insurrection, war, terrorist activities, chemical
explosions, hazardous conditions, fire, weather or acts of God, or by reason of
any other cause beyond the exclusive and reasonable control of the party
delayed in performing work or doing acts required under the terms of this Lease,
then performance of such act shall be excused for the period of the delay and
the period for the performance of any such act shall be extended for a period
equivalent to the period of such delay.
30. Long-Term Lease. As additional consideration for this Lease, Tenant
and Landlord agree that they shall negotiate in good faith for a long-term lease
for the Leased Premises and for the parking lot showing on Exhibit A, with the
intent that such long-term lease shall be finalized by June 3, 2004.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Lease in duplicate the day and year first above written.
LANDLORD, CITY OF DUBUQUE, IOWA
By
Terrance M. Duggan, Mayor
By
Jeanne F. Schneider, City Clerk
TENANT, PENINSULA GAMING COMPANY, LL.C.
By
Its
STATE OF IOWA )
COUNTY OF DUBUQUE) ss:
On
this
day of , 2004, before me,
, a Notary Public in and for the State of Iowa, personally
appeared Terrance M. Duggan and Jeanne F. Schneider, to me personally
known, and, who, being by me duly sworn, did say that they are the Mayor and
City Clerk, respectively, of the City of Dubuque, Iowa; that the seal affixed to the
foregoing instrument is the corporate seal of the city, and that the instrument was
signed and sealed on behalf of the city, by authority of its City Council, approved
by the City Council of the City of Dubuque, Iowa, on the - day of
, 2004, and that they acknowledged the execution of the
instrument to be their voluntary act and deed and the voluntary act and deed of
the corporation, by it voluntarily executed.
Notary Public in and for State of Iowa
STATE OF IOWA )
COUNTY OF DUBUQUE) ss:
On this - day of , 2004, before me, a Notary
Public in and for the State of Iowa, personally appeared ,
to me personally known, who being by me duly sworn did say that is the
Managing Member of said limited liability company, that (the seal affixed hereto
is the seal of said)(no seal has been procured by the said) limited liability
company and that said instrument was signed (and sealed) on behalf of said
limited liability company by authority of its managers and the said
acknowledged the execution of said instrument to be the
voluntary act and deed of said limited liability company, by it voluntarily executed.
Notary Public in and for State of Iowa
EXHIBIT A
LEASED PREMISES
INSURANCE SCHEDULE
1.
All policies of insurance required hereunder shall be with an insurer
authorized to do business in Iowa. All insurers shall have a rating of A- or
better in the current A.M. Best Rating Guide.
All policies of insurance required hereunder shall be endorsed to provide
a thirty (30) day advanced notice to the City of Dubuque of any
cancellation of the policy prior to its expiration date. This endorsement
supersedes the standard cancellation statement on the Certificate of
Insurance.
Tenant shall furnish Certificates of Insurance to the City of Dubuque, Iowa
for the coverage required in Paragraph 7. Such certificates shall include
copies of the endorsements set forth in Paragraphs 2 and 5 to evidence
inclusion in the policy.
Each Certificate of Insurance shall be submitted to the City Manager's
Office within thirty days of commencement of the lease term.
All policies of insurance required in Paragraph 7 shall include the City of
Dubuque, Iowa under the attached Additional Insured Endorsement
(CG2026) and the attached Governmental Immunities Endorsement.
Failure to provide minimum coverage shall not be deemed a waiver of
these requirements by the City of Dubuque. Failure to obtain or maintain
the insurance required herein shall be considered a material breach of this
agreement.
Tenant shall be required to carry the following minimum insurance
coverages or greater if required by law or other legal agreement:
2.
3.
4.
5.
6.
7.
COMMERCIAL GENERAL LIABILITY:
General Aggregate Limit
Products-Completed Operation Aggregate Limit
Personal and Advertising Injury Limit
Each Occurrence Limit
Fire Damage Limit (anyone occurrence)
Medical Payments
$ 2,000,000
$ 1,000,000
$ 1,000,000
$ 1,000,000
$ 50,000
$ 5,000
Commercial general liability shall be written on an occurrence form, not a
claims made form. Coverage to include premises-operation-products-
completed operations, independent contractors' coverage, contractual
liability, broad form property damage, and personal injury.
LIQUOR OR DRAM
SHOP LIABILITY
$ 3,000,000
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
1.
Nonwaiver of Governmentallmmunitv. The insurance carrier expressly
agrees and states that the purchase of this policy and the including of the City
of Dubuque, Iowa as an Additional Insured does not waive any of the
defenses of governmental immunity available to the City of Dubuque, Iowa
under Code of Iowa Section 670.4 as it is now exists and as it may be
amended form time to time.
2.
Claims Coveraqe. The insurance carrier further agrees that this policy of
insurance shall cover only those claims not subject to the defense of
governmental immunity under the Code of Iowa Section 670.4 as it now
exists and as it may be amended from time to time. Those claims not subject
to Code of Iowa Section 670.4 shall be covered by the terms and conditions
of this insurance policy.
3.
Assertion of Government Immunity. The City of Dubuque, Iowa shall be
responsible for asserting any defense of governmental immunity, and may do
so at any time and shall do so upon the timely written request of the
insurance carrier.
4.
Non-Denial of Coveraqe. The insurance carrier shall not deny coverage under
this policy and the insurance carrier shall not deny any of the rights and
benefits accruing to the City of Dubuque, Iowa under this policy for reasons of
governmental immunity unless and until a court of competent jurisdiction has
ruled in favor of the defense(s) of governmental immunity asserted by the
City of Dubuque, Iowa.
No Other Chanqe in Policy. The above preservation of governmental immunities
shall not otherwise change or alter the coverage available under the policy.
POLICY NUMBER
COMMERCIAL GENERAL LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT
CAREFULLY.
ADDITIONAL INSURED - DESIGNATED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
Name of Person Or Organization:
The City of Dubuque, including all its elected and appointed officials, all its
employees and volunteers, all its boards, commissions and/or authorities and
their board members, employees, and volunteers.
(If no entry appears above, information required to complete this endorsement
will be shown in the Declarations as applicable to this endorsement.)
WHO IS AN INSURED (Section II) is amended to include as an insured the
person or organization shown in the Schedule as an insured but only with
respect to liability arising out of your operations or premises owned by or rented
to you.
Copvriqht. Insurance Services Office. Inc. 1994
CG 2026 11 85
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