Dubuque Racing Association Lease Extention 2004
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MEMORANDUM
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May 28, 2004
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TO:
The Honorable Mayor and City Council Members
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FROM:
Michael C. Van Milligen, City Manager
SUBJECT: DRA Lease
The Dubuque Racing Association lease for the Dubuque Greyhound Park & Casino
expired March 31, 2004, the end of the original 20-year term. This has been 20 years of
community growth, much of it supported by the Dubuque Racing Association directly
and indirectly.
In the 1980's, the City of Dubuque averaged almost 9% unemployment, with the highest
year being 14.2% in 1982. The community was in a state of crisis and at a turning
point. Did the community accept its fate or work to create a better future? The answer
of those that came together in partnership with the City of Dubuque to form the
Dubuque Racing Association was to take control of their destiny.
The citizens of the City of Dubuque voted to risk millions of dollars of taxpayer money to
build Dubuque Greyhound Park, a facility to be leased by the Dubuque Racing
Association.
The DRA Board of Directors has respected the risk the taxpayers of the City of
Dubuque took, paid off the debt with gaming revenues, and then gone on to contribute
millions of dollars to the City and charities. But more important than the money, the
DRA helped Dubuquers believe in themselves again. The DRA helped keep the lights
on in Dubuque.
The Iowa Supreme Court decision lowering the state gaming tax and subsequent State
legislation presents a perfect opportunity for the DRA to do a major expansion, increase
distributions, have more than sufficient funds to meet the capital and operating needs of
the DRA, and pay a lease payment to the City that recognizes the value of the current
facility, respects the risk the taxpayers took to build the facility, and helps the City avoid
property tax increases and have sufficient funds to appropriately respond to citizen
requests for increased services and meet the community's capital improvement needs.
The DRA Board of Directors has approved a new 1 O-year lease with the City for the
Dubuque Greyhound Park and Casino. The Lease is similar to the previous lease with
the following changes:
1.
The annual lease payment increases from % of 1 % of gambling games coin-in to
1% of gambling games coin-in.
2.
Should the DRA install table games, the lease payment will also include 1 % of
unadjusted drop.
3.
The distribution formula would be modified from the current 50% City, 25%
charity, 25% DRA to 40% City, 30% charity, 30% DRA.
4.
The insurance requirements are modified to meet current City standards. Flood
insurance becomes optional.
5.
The language restricting the City's use of lease payments has been added and
the restriction on the City's use of distribution funds has been modified to match
the lease payment restrictions.
6.
The City would no longer approve the DRA annual capital improvement budget,
but any facility improvements to real estate over $10,000 or capital improvements
financed with debt still require City approval.
This lease, along with the facility expansion, will positively impact the City. Over the last
year, under the old lease, the City received almost $3.5 million in lease payments from
the DRA. Over the next year, with the new lease, the City is projected to receive $5.3
million in lease payments.
This year the City received approximately $6 million in distributions from the DRA and
charities received almost $3 million. Under the new lease, within three years, the City
will receive a $4 million distribution and the charities will receive a distribution of over $3
million, breaking this year's record charitable distribution.
Over the last eight years, since slot machines were legalized, charities have averaged
$2.2 million per year in distributions from the DRA. Under this new lease, charities are
projected to average approximately $3.5 million per year over the 1 O-year life of the
lease.
I respectfully request that the City Council approve the lease agreement with the
Dubuque Racing Association.
Atvt{ t~ /vti~ -
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
AMENDED AND RESTATED
LEASE AGREEMENT
This LEASE AGREEMENT is made and entered inte this 2S"',day4
February, 1990, between the CITY OF DUBUQUE, IO'!"^, a municipal Gerperation,
(hereinafter referred to as the 'City") and DUBUQUE RACING J'.SSOCI",TIOÞI,
¡';¡:¡;¡"BETWEEN
THE CITY OF DUBUQUE. IOWA
AND
DUBUQUE RACING ASSOCIATION, LTD.
This Amended and Restated Lease AQreement (Lease AQreement) is dated for
reference purposes this 31" day of March. 2004. and is between the City of Dubuque,
Iowa, a municipal corporation (Citv) and Dubuque RacinQ Association. LTD. (Association).
an Iowa nonprofit corporation, (hereinafter rerorrea to a£ the .".c£Ociation").
RECITf.LS:
Whereas on September 4. 1984. City and Association entered into a Lease
AQreement under which City as Lessor. leased to Association. as Lessee. a parcel of land
on Chaplain Schmitt Memorial Island which has been operated bv Association as Dubuque
Grevhound Park and Casino: and
" . The City'c ongoing goal i£ 10 promote £ommtlnily de'ælopment Gnd lotlricm in
Graer Ie further the CO£i31 "'elfare of Ihe CiÞ¡ of DtlBtlE¡tle ana itc citizen£.
Whereas. on February 28 1990. City, as Lessor. and Association. as Lessee.
entered into a Lease for certain real property in the Ice Harbor coverinG the dock site and
portions of the surroundinG area to be used for parkinG for a GamblinG boat: and
B. On SeptemBer 1,1084, tho City and the P,cseciation entema into a leace
Agreement undorwhi£h the City, oc lessor, leaecd to tho Acceeiotion, o£ Le£EDe, 0 porc-el
of long on Chopl3in Schmitt Momoriallcland '.vhieh has Beon operated by the ",B£oeiotion
a£ a §rej'hetlna FOce tr:Jcl< fucility. /\n f,ddena~m te eald le06G 'Nas ci§ned September 24,
1084, ona 3 Secend "edendum te leaE9 wac cigned 9" Ihe parties on Jtll,. 21, 1985.
Whereas. the leases for DubuGue Grevhound Park and Casino and the Riverboat
GamblinG Facility were incorporated into a Lease AGreement which Lease AGreement has
been amended bv seven amendments: and
C. Choßter 99F at the le"'a Cede, together "'ith r~lec and rogulatiGRS ef the
le"'a Racing ane Goming Cernmi£sien, authorize m(c~F£ien bO:Jt gamblin§ (hereinof.ter
reforr-od to ac "ri"erbeGt €¡Gmblín§") in the State ef le",'a and pra"idec fGr tho icc~anoe of
liconsoc to qualified nonprefit orgGniwtionc.
Whereas. Part A of the Lease AGreement has expired and the parties desire to
renew Part A of the Lease AGreement accordinG to the terms set forth herein: and
D. The City hac determinea that riverboat §amblín§, tegother with dog racing at
Dubuquo Groyhetlna Porl{, would promete eomm~nity do¥olepmont Gnd. touricm.
l\ccordin§ly, the Civ/ hac docignatoa tho ^sseciation ac the "ehiclo and moons to
accomplich Œch p~blic purpoco, and tho f,ceeciatien hac applied te the Iowa Racing and
Gamin§ CommiccioR for G licence to conduct rivorbeat §ambling tlRdor Chopter99F of the
Iowa Coda.
Whereas. Part C of the Lease AGreement contains provisions that relate to Part A of
the Lease Aqreement which must be amended in coniunction with the amendments to Part
A of the Lease AGreement: and
E. Tho City has deEignatod the Ice þ arBer GS the dock cito location 3nd tho araa
frem ":hich riverbeot §amblin§ operationB will be CenalJcted. Tho do'/olopment ef mid mea
to m:-commodato ri'/erboat gamblin§ will reqtliro Rumerouc puBlic impro'/ementc to be
financed, in port, by tho City.
Whereas. City and Association desire to amend Parts A and C of the Lease
AQreement and to restate the Lease AQreement containinG the amended Parts A and C.
and incorporatinG the prior amendments to Part B of the Lease AGreement without makinG
substantive chanGes to Part B of the Lease AQreement.
F. Tho CiÞ/, as loss or, has o§reod to enter inte a Greund Leam with the
^sceciotien, ac Lecmo, covering the aoel~ cite and portionc of tho clJrrelJnding araa to be
~cea for parking.
NOW THEREFORE. City and Association, in consideration of the mutual covenants
and conditions hereinafter set forth. aGree as follows:
G. The partiDa doem it desirable to incorporate ".thin this I\graoment the tormc
of the Dtlb~qtle Greyhound Parl< leace and æco the terrAc of the new Cretlnd leoce for
the ri'/erbeat §ambIiR§ fucility. Part,ll of thic I\graement choll be a restatement of the
curront leoso eepl/eon the Civ/ ona the ^scociation coverin§ the §royhound racing facílity.
Port B of thic /\greement shall be the ne'^, Gratlna leoco for the A¥orbeat §omblin§ fucility.
Part C ef thic "§reement chall eonBict of thoee tormc and pro' 'iciens which arB common to
and apply to both Loasos.
PART A- DUBUQUE GREYHOUND PARK AND CASINO LEASE
NO'.^', THEREFORE, the City ana the Acsociatien, in eensiaeFOtion of the mutual
eovenanlÐ ,md conditienc hereinafter cet forth, o§ree ac felle"/s:
1. Term of Lease. The term of this Lease shall commence on the 1" day of April.
2004 and terminate on the 31" dav of March 2014.
PART i\ DUBUQUE GREYHOUND PARK LEJ'.SE
2. Leased Premises. City aGrees to lease to Association and Association aGrees to
lease from City. the followinG described real estate (Dubuaue Grevhound Park and
Casino):
+efffiA parcel of Le::¡se. The term efthic ^greementcholl commence
Jtlne 1, 1 9g5,land containinG 43.73 acres more or at such other date
that conctructienless located on Chapiain Schmitt Memorial Island.
lyinG immediately north of the race track facility is cubctantially
~Iowa-Wisconsin Bridae as set forth on Exhibit A attached
hereto and poccesEion ic surrenaorBa in writing by the Citymade a
part hereof and subiect to a utility and roadway easement located on
and about the southerly property line. a roadway easement located on
and about the /\œociation. Such terrn chall m(\end te ami terminate
on March :31,2094, or ot cuch earlier date, ateasterlv property line.
and a roadway easement on and about the eption of either party, in
the event that the debt eviaeneed BY tho Ceneral Obligation Bonds
dated Octeeor 1, 1981 hac been fully paid ¡¡rier to March :31,
2QQ4...westerlv property line.
2. leases Premicec. City a§rBes to ieoce te the f£cQciation, and "csociation agrees
to leoce teern the City, the follo"'ing aescribed real ectate:
/\ parcclof Ion a cenIGining 1d.n aerBB, mere er IeeE, 10Gatod on
Chaplain Schmitt '1emerial Island, lying immediately nerth of the
10'110 '.^/iEConcin Brid§e oc cet forth on the plat atlachos her-eto and
made a part horeef and subject to a tltility ona roOS'NOY easement
lecated on and about the so~therly property line, 0 r-eod"'oy 03sement
leeotea en and abotlt the eacteFly pr-eperty line, and 0 rooaway
eacoment en and aeotlt tho \"ecterly property line. Improvements to
and maintenance of the easement areas, including snow removal and
weed control, shall be the responsibility of the City.
The City shall be responcible fer a cecuritylenee with appropriate
§ates or an alternate methea ef ceeHrity caticfuctor¡ to the
.'\sceciatien for the roadv'ay casoment atthe wosterly ciae of the FOGO
track facility.
Tho loaced promisee includes a par-eol ef land ou'nod by the City but
loased to a Ihird party containing H'/e aerBS, more er less, located at
the southeacterJy comer of the leGGed property and which parcel ic
weject Ie eminent derT13in ¡;rcceedings.
The Association may grant utility easements, including an easement
to the television cable company, for the purpose of obtaining utility
services to the race track facility. Such easements shall only be
granted with the written consent of the City.
3. Rental. +I1e-Association shall pay the-City aB-aRRtIa!monthly rent fef-IRe
leased premises in the sumeaual to one percent (1 %) of Forty Thotlsana Dollars
($40,000). Such rental shall be paid in the form~ross receipts from all ~amblin¡¡
¡¡ames (including but not limited to slot machines and video machines which
simulate table ~ames of a chock made payable te the City chance) and one per cent
(1 %) of the unadiusted drop for table games of chance, conducted at Dubuque anG
moilea or aeliveroa to the City Treas~rer, Cilj' 19011, Dubuque, Iowa 52001, on or before
the due dalo in the following manner.Greyhound Park and Casino for each month
such games are conducted. Such payments shall be due on the tenth day of the
following month. City shall expend such funds for capital expenditures, including
but not limited to, street lighting, street improvements, the Civic Center, parks &
recreation, the replacement of motor vehicles and operating equipment, economic
and tourism development proiects, In the event rent payments under this
paragraph exceed the budgetary needs enumerated for the foregoing capital
expenditures in City's general fund capital improvements bud¡¡et, then the City shall
use remaining rents for funding of police, fire, and other public safety departments.
City shall use any rent payments remaining after exhausting the foregoing
purposes, if any, for mass transit and library budgets. Notwithstanding the
foregoing, however, Citv shall not be limited in any manner from the issuance of
debt to fund capital improvements or for other purposes or from using other
revenue sources, required to be dedicated to capital improvements, to fund the
capital improvement budget. All rent payments shall be used by City exclusively for
the promotion of social welfare under IRC §501 (c}(4).
4. Depreciation and Improvement Fund. Association shall pav an additional sum of
$10.000 per month for the establishment bv the City of a Depreciation and Improvement
Fund, Association shall at all times maintain a balance in the Fund of not less than
$250.000.00.
Monies deposited to the Fund shall be used on Iv to pay extraordinarv costs of
maintenance and/or repair of Dubuque Grevhound Park and Casino. the costs of
construction of additional improvements to Dubuque Grevhound Park and Casino or the
costs of replacement of maior equipment. Decisions for expenditures from the
Depreciation and Improvement shall be made solely bv Association's Board of Directors.
Monies deposited in the Depreciation and Improvement Fund are the sale property of
Association.
Anv interest accruinG on the balance in the Fund shall be deposited to the Fund and
shall be available only for the purpose for which the Fund was established.
10813,1086 and 199y
$10,000 on or before l\Ugust 1
$10,000 on er Befere O£tober 1
$20,000 en er before DGcemBor 1
5. Sufficiency of Payments. City's acceptance of rent and Depreciation and
Improvement Fund payments shall not be an admission of the sufficiency of any such
payments nor the accuracy of any statement furnished bv Association. All such payments
shall be received subiect to the audit to be provided bv City as provided in this Lease
Aareement.
1988 and thereafter
$20,000 en or befere f.pril15
$20,000 on er before .J~ly 113
6. Nontransferability of Lease. This Lease shall be a privileGe to be held for the benefit
of the public bv Association. This Lease shall not. in any event be transferred assiGned.
sold. leased or disposed of in whole or in part, bv any means without the prior written
consent of City expressed bv a resolution duly adopted bv the City Council of the City of
Dubuaue and then only under such conditions as the City Council may establish.
I In the D"ent th3t the f,cseciatien eond~ctc §ambling §amec at the facility ac
permitteè in Por. 11, then in liDU of the annual fOnt the f.Bsoeiotien chall poy the City
menlhly rent equal te % ef one percent ef gresc roooipts fr-om cu£h §ombling §omec for
each month stich gambling gamec ore cendtlotod. S~ch payments choll be dtle en tha
tenth day of tho foilc)'//ing month beginnin§ on the tenth oJay ef the flrct full month aFtGr tho
commoncoment efctlch gamblin§ §Jmec. In no e"ont, ho'.'Je'/or, chailthe payment for any
month be IeEE theIR $¿,3ðð.:n
7. Use of Facilitv. Association warrants that it is validlY existinG and in Good standinQ
under the laws of the State of Iowa as a nonprofitoraanization. Association warrants that it
has the necessarv authority to operate Dubuaue Grevhound Park and Casino in the State
of Iowa.
4. Bona Debt "eriee ftlnd. The City hac iSSLlOd ile General Obligation Bonds in the
aggregate ßrineipal amoHnt of $7,900,000 to be doted October 1, 1984 (the "Bondc"). /\
portion ef the proceedc from the saiD ef the Benec will ee Hsed to finanee a pGlrt ef tho
£enstruction of the dog track racing fu£ility. Tho remaining praceedc from the Bale of tho
Bena" 'viii be Hsee to finance oil or part of certain other City fueilítiec. The ."-ccociation
agrBec te be roBponciblo for deBt coNiee ßoyments, including beth principGlI and intorest,
until the Bends have been f-ully retirBa.
Dubuaue Grevhound Park and Casino shall be used bv Association for the sole
purpose of conductinG doa racinG and GamblinG Games in accordance with the terms and
conditions of the license Granted Association bv the Iowa Racina and Gamina Commission
unless prior to the use of the facility bv Association for any other purpose. Association
obtains the written consent of City with respect to such alternate use. Citvacknowledaes
and consents to Association's use of Dubuaue Grevhound Park and Casino for banquets.
Use for the purpose of this paraGraph shall not mean individual events associated with a
particular type of use. In any event. the use of Dubuaue Grevhound Park and Casino bv
Association for any purpose other than doe racinG and aamblinaaames shall not constitute
more than five percent (5%) of the total use of Dubuaue Grevhound Park and Casino,
measured bv the qreater of either the amount of revenues Generated bv the alternate use
compared to the total revenues Generated bv Dubuaue Grevhound Park and Casino or the
amount of time used bv the alternate use compared to the total amount of time Dubuaue
Grevhound Park and Casino is used.
The ",ccociotien agreec to pay to the City, net later than Augtlst 29, 108(3, on
amount of $720,294 representing the interest payment en the $7,000,000 General
Obligotien Bend isctle duG September 1,1985.
Association aGrees that it will at all times hold Dubuque Greyhound Park and Casino
available for use bv the General public without reGard to race. color aGe. disability. creed
reliGion national oriGin or sex: provided. however that Association may prepare and
promulGate rules for the purpose of reGulatinG the admission of persons into Dubuaue
Grevhound Park and Casino and for the further purpose of reGulatinG the conduct of
persons admitted to Dubuaue Grevhound Park and Casino. which rules shall be consistent
with the reGulations of the Iowa Racina and Gamina Commission.
The "sEOciation ogroec to pay to the City, net later than Febru3r/ 28, 1986, an
arne~nt of $392,888 ropresenting tho intoroct payment aHe on March 1, 1989. Beginning
in 198ê, the ^ cceGÍation agmoc Ie pay to the CiÞ¡ rnenthly ßaymentc, commencing en tho
lact éay of May and centin~ing themafter on the last aay ef each month thFO~gh and
ineitléin§ Octobor of oach of tho yearB 1989 threH§h 2003, in the amountc sot forth
eppocite each of the calendar y¡¡arc in the fBllo'Nin§ cehed~le:
8. License to Operate. Association shall maintain a valid pari-mutuel license to
conduct doe racinG as lone as such license is required bv the Iowa Racina and Gamina
Commission to conduct GamblinG Games and a valid license to conduct GamblinG Games as
issued bv the Iowa RacinG and Gamina Commission and shall make timelY application
toaetherwith the appropriate documentation, for the renewal of any such licenses as they
expire from time to time. City shall provide. on a timely basis any and all information within
its control necessarv to sustain the licenses or to secure renewals thereof.
Ga!eRáaf
¥oaf
Monthly Poymonts
May throuah Octeber
+eta!
~
.:¡.ggg ~ ~
.:t-9&7 +ê4,1+7 9êê;+OO
.wgg ~ 944,900
.u¡gg ~ 948,+00
+99Q ~ 948,á+§
4W:J. ~ ~
~ ~ ~
'1-OOð ~ 9ðê,9á9
.:!W4 +w,4OO 9W,4OO
4Wá ~ ~
4Wá ~ 9á8,á§G .
4W;': 4OO;W+ 9êá,8OO
'IW@ ~ ~
+99Q ~ 9ê4,9éG
2GOO ~ 98'1-;+W
2004- ~ 9êá,OOG
~ ~ W7,áOO
:!GW 4OOM+ 9ê;?,WG
9. Inspection of Premises. An authorized representative of City. as desiGnated in
writinG bv its City Manaaer shall have the riGht to enter and have access to Dubuaue
Grevhound Park and Casino whether or not events are in operation at all reasonable
times and for any reasonable purposes. In furtherance of City's responsibility to the public
for the operation of Dubuaue Grevhound Park and Casino as lone as such entrances do
not unreasonably interfere with Association's riGht to quiet occupancy. Such entrances
shall be subject to the rules of the Iowa Racina and Gamina Commission. The authorized
representative shall advise the General Manaaer upon arrival at the track.
1\11 paymentc by the I\cwciation chall be depecitod by tho City into a dobt corvice
fund and chall tJe ~£Od exeluci"ely for payin§ ¡¡rincipal ef and interact on the Bondc.
Interact accruing on amount£ on dopocit in the debt ser'ice fund shall be credited to the
fund ona bo uÐod for tho payment of principal of onoJ interaBt en tho Bondc. With tho
rrltlttlGI concent of the City ana the "seacioticn, intorect oarningc on amotlntc on deposit in
the aebt cer 'ice fund may be tlcea te redtlee 0 f~t~m paymont req~ired to be maoJe by the
,^.ÐÐociation ptlrs~ont to thiÐ paragraph 1 or may eo tranBferrod to tho dopreciation and
imßrovement fund provJded for in ßoragraph 5 hereof.
10. Maintenance of Facility. Association aGrees thaI. at all times durinG the Leaseterrn.
Association shall, at its own expense maintain preserve and keep Dubuaue Grevhound
Park and Casino in Good repair. workinG order and condition.
In tho event the net race track f(WenuOÐ are in£uffieiont to pOj' ony of the menthly
poymenlÐ oJ~e p~r.¡;~ont te thic parawaph 4, the ome~nt of Ðuch dolicienc-y chall be paid by
the .'\sÐociation from lIE fir£t available revenues or other rewurces, The payment ef cueh
deficiency chall be in addition to all other monthly paymentc reqtlirad e)' thic paFO§FOph 4
and chall boor interact en theamc~nt of c~ch aefieienGY from the date the payment wac
originally due until the date of payment at the rate of twelve percent (12%) per anntlm.
11.Alldritt Lure Svstem. The construction of Dubuaue Grevhound Park and Casino
reauired the installation of a lure system purchased bv City. Association shall pav as
required bv the supplier, rental payments for the use of the lure system and all costs
associated with the maintenance and repair of the lure system.
By reacen ef the oJefeacance ef a portion ef eoioJ GeneFOI Obligation Bondc, the
remoinin§ tlnf3aioJ BenoJ indebtoElneec ac of the date ef thic Leose /\mendment ic in the
c~m ef $;;,028,000. Þlotwithctanding the foregoin§ f3rB'Qcionc ef thic poF:J§raph 1,
. tJo§innin§ with the year 1990, the I\csoaiation a§rees te f3oy the CiÞj monthly f3aymcntc,
commenein§ on the lact day of May and contintling thereofter on the lact oJoy ef eaeh
month through and includin§ O£tober ef each ef the yeam 1990 through 1998, in the
ametintG Bet forth opposite oach of the calendar years in the follo'.'.'ing seheEltlle:
12. Property Taxes. Association shall pay all property taxes. both real and personal
before they shall become delinquent and which may be levied and assessed aGainst
Dubuque Grevhound Park and Casino. City shall not oppose any application filed bv
Association for exemption from the payment of property taxes, both real and personal.
Ga!en8af
¥eaf
Monthly Paymontc
May thrBUQh Oc.\ober
+eta!
~
.woo $90,804.17 ~
4994 ~ ~
~ ~ áð+,êOO
4-9W ~ ~
4W4 ~ ~
.w9á ~ á42,4OO
4Wê ~ é54;OO()
4-997 ~ ~
~ ~ ~
In the event Association pays real estate taxes levied and assessed aGainst the leased
property the amount of the reai estate taxes so paid are deductible from the next due
rental payments as set forth in paraGraph 3 of this Lease Aareement.
6. Doprociatien and Improvoment Fund. Tho f'ccoeiatien, be§inning with the monthly
aebtservice paymentc duo in May1ggê, chall pay an additional cum of $20,000 permenth
(May thr.el/§h Octeber) for tho ectabliehment by the City ef a deg tracJ( EJepreciation and
im¡¡ro"ement fund.
13. Alterations. Association shall not commence alterations to any structure or
structures or make additions to any existinG structures or facilities in an amount exceedinG
Ten Thousand Dollars ($10 OOO) without the prior written approval of the plans and
specifications bv City.
Moniec depesited to thic fund chall be tlsaG! enly to pay mŒraordinmy mcte of
maintenam:e and/or repair of the dog track complex or Ie ¡¡OJ' the eoet of conctruclion of
additional improvements 10 the deg tr-Gci( complQ)( er for tAe replacoment ef rnojer
equipment. Meniec so aeposi!eoJ choll be expended by mutual eoncont of tho City and the
ì' cceGÍation.
Anv improvements. modifications or additions to Dubuaue Grevhound Park and
Casino wheresoever located or however financed shall become part of the real estate and
owned bv City. City consent is not required for any items in Association's CIP budGet
except for improvements to real estate costinG $10000.00 or more. or for capital
improvements to be purchased bv incurrinG debt. City consent is not required for
Association expenditures for onGoinG replacement of slot machines and other video
qames. or for equipment replacement in the normal course of business. Association shall
expend all funds in the Depreciation and Improvement Fund, and all of its reserve
funds (except for a five percent (5%%) operations reserve in the reserve fund) prior to
usinq any other funds for capital improvements.
.".ny intorost accruing on the balance in tho doprBeiatien ona impro':emont funEi chall
be eepesitod to caid fund and sholl be o"oilable for the purpoco for 'I'hich the fund was
oBtablichod.
14.Security and Traffic Control. Association shall provide an internal security force
sufficient in numbers to maintain the inteGrity of Dubuaue Grevhound Park and Casino and
all of its operations, Additionallv. Association shall have on duty durinG the hours of
operations not less than one (1) City of Dubuaue uniformed police officer. or Dubuaue
County Sheriff's Deputy if a City officer is not available for which City shall be reimbursed
at the rate established bv mutual aGreement of City and Association. City shall be
responsible for all bíllinas and payments to Deputies. Selection and responsibilities of such
officers shall be bv mutual consent of City and Association.
ê. Debt Service Rocor¡o Fund. Tho /\ssociation, boginnin§ 'Nith the monthly debt
cor'ice pG'fmentc due in May 198ê, shall pay an oaditional amount of $19,999 per month
(May through October) fer the ectablichment by the City of a do§ trDGI~ aebt cerviee roserle
fHRG...
Association shall reimburse City for any and all expenses incurred bv City to
maintain traffic control for the safe inGress and eGress of the public to Dubuaue Grevhound
Park and Casino includinG but not limited to the salaries and traffic lane control devices
but excludinG any traffic siGnal installation. Decisions concerninG traffic control measures
needed to comply with the intent of this paraGraph shall be bv mutual consent of City and
Association.
Monies def'ocitod to thic fund shall be tleed for the payment of FOce Irael( bona iCEUe
debt cer,ice 'vhenever, for ::my reason, the fundc on depocit in the debt service fund aro
incufficient te f'ay principal one interoct "'hen due. Thû $19,900 monthly pGymentc shall
£ontinue until the balance in the oJebt eer/ico r-oscrvo funoJ totolB $899,009.
15. Liability Insurance and Indemnification. Association shall defend. indemnify
and hold City. its officers, employees and aGents. harmless from and aQainst any
and all claims, suits actions. penalties. damaQes and causes of action of any kind
arisinG durinG the term of this Lease. includinq but not limited to costs, reasonable
attorney fees, expenses and liabilitiesincurred bv City in and about such claim,
suit, action, penalty, dama¡¡e or cause of action, the investi¡¡ation thereof, or the
defense of any action or proceedin¡¡ brou¡¡ht thereon, as a result of the operation
of Dubuque Grevhound Park and Casino: arisinG out of any violation of the license
Granted bv the Iowa Racina and Gamina Commission: for the failure bv
Association to keep, maintain and abide bv each and every covenant of this
Lease on its part to be kePt and performed; or as a resuit of any neGliGence, act.
error or omission of Association, its employees oraaents or third party contractors:
."ny and ail intorÐet accruing enthe balance in the debtser'ice reeor'o fund ehall be
depoeitee to £aid funa ane £hail ee Q'¡ailablc for the purpo£oe fer which the reeerve fund
wac e£t:Jbli£hoa. The balance in this fund may be ol3plied te the final principal and inlerect
J38YfB8f!h
Association shall maintain. throuGhout the term of this Lease liability insurance as
set forth in City's standard Insurance Schedule for Lessees of City Property as such
schedule may from time to time be amended. provided, however, that such increases in
required limits of coveraGe shall not exceed five percent (5%) for'each succeedinG year
durinG the term of this Lease Aareement. unless Association aGrees to a Greater increase.
Attached hereto is City's current Insurance Schedule.
Aåvanee16. Other Insurance. Durina the term of FundB. In the eventthis Lease.
Association shall purchase and maintain property insurance coveraGes in companies
licensed to do business in the City advaneee fun<Je eetimatod 10 be in the amountState of
$70,00Q to financo the ceellowa. and maintaininG an A.M. Best ratinG of certain en eilo
utíliÞ¡ '.York, tho h,seeiatien shall repay the City as foilows:"A" or better, with a financial size
cateaorv ratinG of "FSC VIII". The City of Dubuaue shall be included as a named insured.
CoveraGe shall be provided on the followinG basis:
$35,00Q I3IHS 10% intofOet September 1,19813
Balance pltle 10% interest September 1, 1987
a) Blanket coveraGe for buildinGs and contents with an amount equal to at
least 90% of the insurable replacement value. Such insurable vaiue shall
be determined annually bv a qualified appraiser.
8. Centrietltion by ",££ociatien. The /\seociatien sholl make a"ai!ablo te the City to aid
in the financing of the een£lruction ef the race tFOck facility net loBE than $1 ,300,00Q. Sych
funds sholl ee mado a"Oilaele at eHch timec and in eych amoyntc ae needed 10 eomplote
the Genetrue~ien ef the race lFacl~ foeility. It is fyrther a§reea that stich $1 ,3QO,OOO ",ill not
be dfGWfl ypon until the $6,800,000 authorizea ey Ihe electorate ot the ^pri! 24, 1984
electien has boon o)(pended one/or oneHmeerBa by firm contraetc. !õvidence ef the
availaBility of such fundB will ee in tho form ef an escrow account at 0 mytyaily acceptable
leAding iRetitution lemtea in the CiÞf of DlJl3uque. é)~enclituroe from the eeor{)'" account
chall ee eubje£t Ie tho joint appro'/ol et tho City and the .'\eeociation.
1) For purposes of this paraGraph additions, improvements, fixtures,
trade fixtures machinerv, and equipment attached or unattached to a
buiidina shall be included in deterrnininQ the total insurable value.
There ehall be no ol3li§ation of the City to repay the .".œeciatien for such funds.
b) CoveraGe shall be provided on an "all risk" coveraGe that is at least as
broad as is provided bv the ISO "Special Causes of Loss Form".
9. Sufficioncy of Poymonte. Tho CiÞ/e acceptance of renI:Jle, 130nd aol3t eervico
payments, aopmciation ona imprG"oment fund paymentc, emd paymonte to the dobt
eervice receIve fuRd shall net be an admiesion of the euffieiency of any euch paymenlB nor
the occuracy of any sI:Jtomont furnished by tho .".sceciation. .",11 euch poymontB sholl 130
roceivod subject Ie the audit tG bo provided by city ae pro"iaea in thiB leaee.
c) All coveraGes should be provided on a replacement cost basis.
10. NontraReforabilitv of leaBo. This loose ehall be a pFÌ'lÍlege to be hela for the eenefit
ef tho public by the '\ÐEociatien. ThiG Leaee chall net, in any ovent, ee traneferred,
acsigned, cold, leasod or diÐpoeea ef, in "'hole or iA part, ey any meane, witheut tho prior
written coneont ef the City e)(preseea by a roeeltltion auly adapted by the City Council of
the City of Dtleuque and then ani)' under such conditiene oe the City FAay eÐbbliÐh.
d) An Aareed Value Endorsement shall be attached to the policy. subiect to
annual aGreed statements of values. The Aareed Value Endorsement
shall waive the coinsurance.
.:J+e) 1Jseln the event of FacfHtv. Tho '\ceeciation wmmnte that it is validly
existing ànd in good etemding tinder the la"'£ ef the State ef lowanew
construction. coveraGes shall be provided on as broad. or a ReHpf9fít
or.ganization. The ^eeociation '.v::JrrantB that it hasbroader basis than
those indicated above. with the amount of insurance to be equal to the
neCeBSar¡ authority to eperate 0 §royhouna FOce track fucility in
completed value of the State of 1000\'onew construction.
The greyhound race tracl~ fucility shall l3e l1eea by the ^eeoeiation fer the £010
pl1rpeee of cenaucting de§ racing and §ombling §ames in accerdanco with the terms and
cenaitionB et tho liconse gmntea tho P.seeciation ey tho Iowa Racing and Gaming
Commieeien unloce, prier to the use ef the fucilíty by the ^ eeociatien for any other purpose,
the "Beeciation ebI:Jins the writton coneent of the City 'vith mepec{ te euch olternate use.
U£G lor the ptlrposo of thic par:1§raßh ehall not meGA indi"idtlal eventc aeeociated with :1
particular typo of uee. In any event, the UED 01 the §reyhound FOce track facility by the
Aseoeiotien for any PUrpOEC other than dog racing and gambling gamoc choll not con £liMe
mere than ¡¡vo percent (5) ofthe te\::¡l use of the greyhouna race tracl( facility, meaeured by
the gmoter of eithor the amount of re"onuec generated by the alternatB uce compared to
the tetal revenuec generated by the §reyhound raco track fucility or the ametlnt et timo
ueed by the alternate uce compared to the tetal amount of time the §reyhound race tracl<
fucility ic uced.
f) All policies shall be endorsed to provide a thirty day advanced notice of
cancellation, material chanGe. or non-renewal of any coveraGe.
The .^£E9ciotion ogreoc that it '",ill at all times hold the greyhouna race tFOck f3eility
available for tlee by the §eneral pubiic without rЧar.e to race, color, age, disabilitj', creed,
religion, national ori§in er ee)(; provided, however, that the Association may preßare and
promulgate rules for the purpew of regul3ting the admiecien of perEene inte the greyhound
race t,oel( faeiliÞ¡ and for the furthor purpe£G ef re§uioting the conatlct ef perconc admitted
to the greyhound raco track facility, "'hich rulec chall eo consictent '.'/ith the r-ogtllatione ef
the low;) Racing and Gaming CommiBeion.
g) CoveraGe should include Ordinance/Law CoveraGe (the equivalent of ISO
endorsement CPO405). which covers:
12.licenEC to Oper;)te. The,^ ececiation shall maintain a "alid pori mutuelliconee to
conduct dog racing ana a valid liCGnee te conduct gamblin§ gomee ac iscued by tho Iowa
Racin§ and Gaming Commicsien and chall make timely application, together "lith tho
appropriate documentatien, for the rene"'ol of any ouch liceneee ae they expire from time
to lime. The City chall provide, on a timely baeie, anj' and all infol'rrJotien "'ithin itc control
neceeeor¡ to sustain tho licensos or to (¡(Jcurc renewals thereof.
1) Increased cost ef construction from operation of buildinG codes.
2) Demolition costs. and
3) ContinGent liability from operation of buildinG codes.
1 a.lnBPoc4ion of Premiees. .",n authorizea repreeen\::¡tive of the Civj, as aeeignatea in
"'ritin§ by itc City Manager, chall have the right to enter and ho"e aceecc to the FOce track
fucilitj, whether or not events are in opoFDtien, at 011 reasonable time(e) ana lor any
reasenable purßeee(s), in further-once el the City'c reeßeneibili1y te the public for the
operation of the race Ir-oek facility, oe long ae cueh enlroncoe do not tlnreosenobly interfere
,..~th the ^seociation'e right to quiet occußanc'j. Stich entrances sholl be eubjeet te the
rulee of the le"'o Rocin§ and Gamin§ Cemmi£cion. The atltherized repreeentative chall
oeviee the General Manger, er hie doei§nee, upen hi£iher orrl"al 31 the tracl(.
h) CoveraGe should also include:
44-.1 ) ~ 4aintonanceBack-up of ~ The /\cEOclQtion agreec that, at QII
timee aHrin§ the le:JÐo term, the /\oooclation ohall, at ile own expenoe,
maintain, preoor'osewers and l(Oep the race traci~ fucility ana groundo in
good repair, 'IIorkin§ eroJer and eendition.drains.
2) Personal property of employees.
3) Property in transit.
4) Computer equipment. inciudinQ data and media.
5) Eauipment Breakdown (Boiler & Machinerv).
15,!'lIdrilt lme S'¡otem. The conctruction of the ra£o tracl< fucility requiros tho
im;tallation of Q lure oyctem which will be ptlrchaoed by the City from the Greyhound
Equipment CompQny Inc., a cole oource otlpplier. The ."£BOeiation chell pay ao roquircd by
the etlpplier, rental ¡¡aymontc for the uce of the luro oyotom and 311 eeste aesociated with
the maintonance ana repair of the luro cyctem.
i) Business Income and Extra Expense
1ê.Property Taxec. The .^eGeciatien ohall pay all preporP/ t::¡)(ee, beth real and
pGroonal, before! they ohall beeomo oJelinquent ana "¡hiGh may be le"ied and oeeeesed
a§ainet the leaBea prapertj'. The Cil'¡ shall not oppose any applieatien filod by the
J\cEOciation from exemptioR from the pa'fFRent of property taxes, beth real oml peroonal.
In the event the J'.oeeeiation pays roal eot::¡te taJCeo levied and aosessed ageinG! the
leased property, the amount of the real eetoto to)(ee co paid are dodtlG4ibie frem the next
due rental payment 3e set ferth in paFO§raph ð of thic leaE9.
17.J',lteFOtiene. The /\sEOciation ehall not cemmence alteratione to any etructtlre! or
ctrueturec or maim additione te 3ny mdetin§ etrtlcture!s erfacilitiee in on omeunt exceeding
Ten Thetlsand Dollam ($10,OOQ) "'ithetlt the wier written ap¡¡r.o"al ef eaia planc and
epecifiealjgno by the City.
1) The business income limit shall be:
a) Net income (net profit or loss before income taxes) that would have been
earned or incurred: and continuinG normal operatinG expenses incurred.
includinG payroll.
b) Extra Expense limit shall be: the necessarv expenses incurred durinG
the period of restoration that would not have been incurred if there
had been no physical loss to the insured property caused bv a
covered loss.
2) CoveraGe shall include an uniimited extended period of indemnity.
3) CoveraGe shall be on an aGreed amount basis.
4) Durina any period of business interruption and to the extent of the amounts
and limits of coveraGe afforded bv Association's business interruption
coveraQes Association shall continue to make all payments required bv this
Lease Aareement based upon the averaGe monthly rentals for the six-month
period prior to the commencement of the interruption. inciudinQ but not
limited to rent taxes. Depreciation and Improvement Fund payments and
distributions.
A cancellation or lapse of such policy without an immediate approved replacement shall
be a material violation of this Lease.
17. Waiver of SubroQation. City and Association mutuallvrelease the otherfrom liability
and waive all riGht of recoverv aGainst the other for any loss of or damaGe to the property of
each. includinG earninGs derived therefrom caused bv or resultinG from fire. casualty or
any other peril insured aQainst and for which proceeds are payable under any insurance
policies maintained bv the parties hereto. reGardless of the cause of such loss or damaGe
and even thoUGh it results from some act or neGliGence of either party hereto. or one of the
party's aGents. employees. customers or representatives. All fire and extended coveraQe
insurance policies shall carrv an endorsement wherein the insurance company waives any
and all riGht of subroQation aGainst either party to this Lease bv reason of any such fire
casualty or other peril insured aGainst and for which proceeds are payable.
e)(eltloJea fram the r-equir-ement of thic paragraph 'aro the following etructures or
f3cilitiec previously deieted from tho original eenstruction planc and spocifically identified
as: eanopy f-or tho front public enlFonee, haroJ eHrfasin§ parking arooe, Bedding and
landeeapin§ the infield, and ÐOnclruc'¡¡on of a maintenance building.
18.Termination. Either City or Association may terminate this Lease whenever the
other party has failed to comply with a material condition of this Lease.
/\ny impro\'emenlÐ, meoJificatiene er ooJoJitione te the greyhoHnoJ roee (rack facility
wherecoevor located er he"'e"er financed shall boeome part ef the real ect:Jto and owned
by the City.
18. Sectlrit\' aAd Traffic Control. The l\sEOci:Jtion shall provide an internal eectiFityfor-ce
sufficiont in ntlmber-Ð te maintain tho intogrity of the track and all of ilÐ opeFOtiens.
Additionally, the I\csociatien ehall have on duÞ¡ during the hourc of track or gaming
operationc not less than one (1) City ef Dubuque uniformed police officer, or DHbHqtlO
County Sheriff's Depur¡ if a City officer ie not available, for "<hich the City eholl ee
roimetlree9 ot the FOte eBtoeliehed ey mutual agroement of the Cir¡ and the AcEOciation.
Tho City of Dubuque chall bo rocponsible for all billíngs and payments te Dep~tiee.
Selection and rosponsibilities of such officers shall be by m~tual ceneent ef the City and
the AcEOciation.
The ,",Œociation chell reimb~rÐe the Cir¡ for any and all expensee incurred by the
City t.o maint:Jin traffic control lor the £ole ingress and e§ress ef the public to the
greyhound race track fucility, including but not limiteoJ to the ealariee and traffic lane control
devices, btlt exGi~din§ any traffic cignal inct:Jllation. Decicions concerning traffic control
meam,roe needed to comßlywith the intent ofthic paragraph ehall be by mutual concontof
the Cir¡ and the J'sceciotien.
The written notice of default delivered to the defaultinG party shall specify the default
and state that this Lease shall be terminated and forfeited sixty (60) days after the date of
such notice unless such default is remedied within that sixty (60) day period.
Upon receipt of notice of termination bv either party. neither party shall incur new
obiiaations for the terminated portion of the Lease after the effective date of the termination
and shall cancel as many outstandinG obliGations as possible.
19. Records. Reports and Filinas. Association shall maintain. or cause to be
maintained. accurate and proper books of record showinG complete and current entries of
all transactions relatinG to the operation of Dubuaue Grevhound Park and Casino. Such
records shall be fully substantiated with documentation sufficient to satisfy standards for
certified audits.
19.1iaaility Insurance and Indemnification. Tho /\ssociation shall indemnify and sa'/e
the City harmless from and against any onoJ 011 claime, euite, actions, penalties, domogee
and cayeee ef action oriein§ dtlring the term of thie lease. Fer any beaily injtlry, loss ef lilo,
or damage to preperty sustoineoJ by any ßeffi9R, firm, eorperalien, other btleiness ontity er
the-GiIy;
Copies of all petitions. applications or communications submitted bv Association to
any state reaulatorv commission or aGency havinG iurisdiction in respect to any matters
affectinG Dubuaue Grevhound Park and Casino operations or the financial records thereof
shall be submitted simultaneously to the City Manaaer.
a) ae 0 restllt of the operation of the race !rae!, lacility by tho Association;
Representatives of City shall have the riGht to inspect such records. accounts and
books upon written request bv the City Manaaer.
b) oRsin§ etlt ef violation of the license gronted 8Y the 10"'0 Racing and
Gaming Commieeion;
20. Annual Reports. Association shall file no later than March 31 of each year, with the
City Clerk. two copies of an audit of the financial records of Association and Dubuaue
Grevhound Park and Casino operation, prepared bv an independent certified public
accountant. showinG all receipts and disbursements. toGether with the comments of the
auditor concerninG whether the books and records are beinG kept in compliance with this
Lease. reGulations of the State of Iowa. and in accordance with recoGnized accountinG
practices.
c) forthe lailuro by the ,",cweiation to keep, maintain and abide by each and
e'{ery covenant of thic leaee en itc part to be kopt and performed;
21. Conflict of Interest. City aGrees that no officer employee of City. or member ofthe
aovemina body of City who exercises or has exercised any functions of responsibility with
respect to Dubuaue Grevhound Park and Casino shall have any interest. direct or indirect.
in any contract or subcontract or the proceeds thereof. for work to be performed in
connection with Dubuaue Grevhound Park and Casino or in any activity or benefit
therefrom which is part of this project at any time durinG such person's tenure or for a
period of one year thereafter.
d) as a restllt ef any negli§ence, o~t, error or omiceion Qf the
_Association, its employeec or a§ents, er third party contmctorc;
e) for the COEtC, attorney foec, exponses aGrees that no member or officer
who exercises or has exercised any functions of responsibility with
respect to Dubuaue Grevhound Park and liabilitiee inctlrred by tho City
ffiCasino shall have any interest direct or indirect, in any contract or
subcontract or the proceeds thereof, in connection with any contracts
awarded bv Association or Citvforwork to be performed or services to be
provided to Association or City in connection with Dubuaue Grevhound
Park and ¡¡betlt etiGh claim, s~it, o£tion, ponalty, damage or CQUEO of
action, tho in"eeti§otien theroof, or tho defonce of ony oetion or
prec-ceding 8ro~gAt thereon, ona !Fem and againct any ordor£, judgmentc
er doemee 'vhich may be impeeea therein er in tho rosult theroof. The
.",cwciation chall cpecifieally dof{)nd or ctlbre§atG, ot the CiÞ/e eplien,
ony ac{ien er proeeedîng brought againet tAG City as a romJlt of any of thG
mattors enumeJ'OteoJ in thie leoee, ot tAo I'.eeooiation'e eelo CûÐt and
~
The! .",££Ociation chail maintain, thmu§he~tthe tarm ofthic leaee, liabilit)' ine~rance
inwring 80th the City ami the ^seeciation with r-egard te ail damagec mentioned in thi£
paragraph, in the minimtlm ameunlc of:
f) Fi"e Hundred Thoucand Dollam ($500,000) for bedily injury or death to
any ene percen;
g) One Million Fiyo Hundred Thoueana Dollars ($1 ,áOO,OOO) for boaily injury
er deoth reculting Irem any ono accident;
h) Five Hundr-ed Thouwnd Doilme ($áOO,OOO) for property oJomo§ee
reeuiting from anyone accident; ona
i) Fi"e Millien Dollor£ ($5,000,000) umbreila policy.
Upon the effocth, date ef thie leaee, the ^£eociation shail ftlmieh proÐfte the City
Manager of the City of Dubuque that 0 wtiefoeter¡ insurance policy hac been i£G~ed by a
cempany acceptable to the City Manager, autherized and qtlolilied to do bucinecc in the
State ef lov'o. Such insurance pelley
j) Shoil be eubject to the approval of the Cip¡ Mano§er;
k) eMii name the City ae an ooJditienol inemed;
I) ehail contain 3 provicion that a "ritten notice ef canceilatien or material
change in the policy chall be deliverea to the CiÞ¡ '10nagor thirÞ¡ (30)
daye in advance et the effecti"o date thereof; and
m) shail bo filod with the City '1anogor on the effective a,J!e ef this Leace.
^ wRGeilation er lapee of etleh policy "qtheut an immediate appro'ied replacement
ehall be 0 motorial vielatien ef thie leoeo.
20. Other Insurance. During the term of this Lease, the ,",cseciatien chail:
a) Carry liro and ())(lcnded eeveFOgo and vandali£m ana molieietle miBchiet
insurance en each £tructure in on amount eqtlQI to ot least eighty percent
(80%) of the incur::¡ble value. Such incuFO81e 'ialtle ehoil bo dotermined
,
~nnually by a qualified appraicor. ." ny pr-eceeds from Ihie instlrance ehall
be uDed to rBpoir and/or roplace the property loec or damage. /\ny
proeeedc net £e Heed £hall be depe£iteGi oe an adGlilienal payment in the
depreciation and improvement funGI oJeecl'ibeoJ elcowhero in this Lease.
b) Carry a btlcinecc interruptien incumnce en etructural fucilitieB in an
omeunteuffiGient to pay not less than fifty percent (50%) ofthe estimated
net rovenues therofrom fDr a perieGi of one year. Pmcoeac from thic
inetiFOnce £hall be troated ae net ro'lOnue.
^ mncellation or lapee ef such pelicY'l'ithout aR immediate appmved roplacement
shall be a material .qolation of t-his leaee.
21. "'-'aiver ef SuBroaation. The City and the Mcociation mutually release the other
from liability and wai' 'e all right ef recovery ogoinet tho ether for any loBE of or damo§e 10
the property of each, ineltlding earninge derived therofr-em, eatleed by or rBculting ffem firB,
cQCuall'/ er anj' other peril ineumd a§ainet and for which proceeds are payaBle tinder any
inctlffince pelicios maintained by the parnee hereto, regardlees efthe cauce of euch 10ÐS or
damage and even thou§h it meultc from £Ome oct er ne§ligenee ef either party hereto, or
one of the party'B agent<:;, employeec, custom ere er mprBeentolivee. ,^.II fim and extended
coverDge instlK'mce peliciee ehall cany an enoJercoment wherein eaid ineuFance cempany
'"'ai"Bc any and 311 right of subrogation :¡gainst either porty te thie leaee 8Y macon ef any
etlch fire, caeualty or other peril ineured ag:¡inst anoJ for which proceeds oro payable.
22. T errninotion. Either the City or the I\eso£iation may terminate thie leaeo whenever
it ie aelerrninea that either party hac failed to cernply with the conaitionc of thic le:Jee,
ineltloJin§ the fuilure of the ,^,eeociation to retain er renew itD license f.rom the Iowa Racin§
and Gaming Cemmieeion to opor-ate a aeg racing facility in the City ef Dtl8uqtle.
The "¡rilteR notice ef dofuult to either the City er the ,".seeciatioR by the ether party
chall specify the aefuult(e) and elato that thie lease shall be terminated and ferfoit(Jd cixty
(60) days after gHn§ of etlch notice unless euch defuult(s) are remedieoJ 'vithin that eixty
(êO) oJay period.
Upon roceipt ef notice of terrninotien by either paw¡, neither port 'I sholl inwr Re"l
obligotiene for the terminated portion of the lease after the effocti'/e datB of the teFmination
and Bholl cancel os many outÐtanding obligatiene as pessible.
23. ReeoroJe, RoBerts anoJ FílinQe. Tho I'csociation shall maintain, or CQuee te 80
mainI:Jinod, OCCUFOtG and proper booke ef meoroJ chowing complete and ctlrrent ontriee of
all tranwc'¡¡onc relating te the oper::Jtion of the race track fucility. Such recordc shall be
fully cubstantiateoJ with dee~montation sufficiont to satiety standards for cortifiooJ a~dits.
Copioe of all potitione, applimlions or eomm~niCQtione £ubmi!ted by tho." seociation
to any stato regtllatery commission or agoncy havin§ jurisdiction in respect te any mattofB
affecting greyhound race tracl< operationc er tho financial recorde thereof choll be
cubmitted cimultaneo~c¡y te tho City '4anoger of tho Cit¡ ef D~b~qtle.
Reprosentati"ee of the Cir¡ chall have the ri§ht to inepoct etlcF! rocordB, aeeo~nte
and beoke ~pen "'ritten requeet of the City '1anager.
24.I'.nn~al Roportc. Tho AsBociatien ehall file annually, no later than March 31 ef oach
ye:¡r, 'Nith the City Clori, of the City of Dubuque, Þ"o cepiGe ef an audit of the financial
rocordc of tho I'eeeeiotion and ilE track oporatien, preporea ey on independent cortilieoJ
public aceo~nt or cGrtified accountant, ehCY"in§ the reeeiptc and di£bureomonte ef e~ch
fuGilir¡, together with the commonte of eoid auditor concerning whGther the beoke and
r-ecordc ore being ¡(Opt in compliance with thic leaeo, re§tllatiene efthe Stole of 10'110, and
in accordanco with reeo§nized accounting pRJ£tieee.
25. Conflict ef Intereet. Tho City ogreae that ne officer, emploYGe of the Gir¡, er
member of the go'lemin§ body of tho Cir¡ ",he eJ<ereieee er hac m(erciced any fun£liene of
rosponsibiliiy',"ith reepect to tho de§ track facility ehaJi have any interest, diroct erindirect,
in any contr:¡ct or cubcontracl, or tho prBceedc thereof, lor wori< to bo pori'ormed in
sennection with the dog troc¡< facility or in any acti'JÍty er benefit thoref-rom which ie part ef
thic projoctCasino at any time, in line with the lewa SI:Jto Code Chapter 362,5 during such
person's tenure er for a peried ef ene year thereafter.
The .^sceciatien agreoc that ne memBer or officer who 9)(9rcicoc er has mŒr-cieed
any functions of rospeneibility with respect to the oJe§ tr-acl< facility shall ha'le Gny interact,
direct or indirect, in any contract or e~bcontract, or the proceodc thereof, in connection with
any contracts a','m.eod by the Ascociatien and/or the Citj lor work to be pori'ermed or
sor\'icoc to be proviaed to tho ^ Beeciotien and/or tho City in connoc4ion with the dog tracl,
fucílity at any time during ctleh percen'e tenure, OJ<cluoJin§ eontr:¡GIE let prior te this leo£9.
PART B - GROUND LEASE FOR PARKING AND DOCK
FACILITIES IN ICE HARBOR FOR RIVERBOAT GAMBLING
I 2&-.22. Term of Lease. The term of this Agreement commences on the 1st day of
March ~1991 and shall terminate at 11:59 p.m. on December 31,2008.
2+-.23. The City agrees to lease to the Association, and the Association agrees to
lease from the City, the real estate illustrated (not to scale) on ExhibitAA attached hereto
and by this reference made a Part hereof, specifically Lots C and D, together with any and
all easements and appurtenant rights, and subject to easements, restrictions and
appurtenant rights of record. The parties mutually agree that an accurate legal description
of the leased premises will be set forth in ExhibitAAas soon as possible and, if necessary,
a survey will be made for this purpose.
Lot D shall consist of a strip of land extending fifteen feet from the high water line of
the Ice Harbor area adjacent to Lots A and B (as shown on Exhibit AA) to the water line,
subject to lease rights of Spirit of Dubuque, Inc. in existence on the effective date of this
Amendment and during any extension of the iease rights of the Spirit of Dubuque, Inc., to
and including December 31,2008. Lot D shall further include the dock facilities currently in
existence and subleased by the Association to Greater Dubuque Riverboat Entertainment
Co., LLC. and its successors and assigns (hereinafter referred to as "GDREC") on the
effective date of this Amendment The intent of this provision is to lease to the Association
the Ice Harbor frontage and all riparian rights along Lots A and B, so that the Association is
the lessee of any land, and the sole possessor of any riparian rights, which would be
required in order to construct or provide any docking facility on the Ice Harbor frontage
adjoining Lot A or Lot B. The City shall insert provisions in any leases or conveyances of
LotAorLot B or portions thereof to protect the Association's rights and to provide notice to
the City's lessees or purchasers of the Association's rights as set forth herein, and to
affirmatively prohibit GDREC from constructing or providing any docking facility on Ice
Harbor frontage adjoining Lot A or Lot B during the term of this Agreement
Notwithstanding the lease of Parcel D by Association, City reserves unto itself and
on behalf of the general public the right to construct on all or part of Parcel D a walkway for
the use ofthe general public, which walkway when constructed shall be open at all times to
the general public, as well as a right of access over and across Parcel D for the ingress
and egress of passengers of pleasure craft to and from the Ice Harbor to and from the
public waikway. City further reserves unto itself a right of access over and across Parcel D
to the Ice Harbor and fioodwall for the purpose of the inspection, repair and maintenance
of the Ice Harbor and floodwall.
The Association may grant utility easements as may be necessary to provide utility
services to the premises. Any such easements shall be granted only with the written
consent of the City.
:1<h24. Rental. The Association shall pay the City an annual rent for the leased
premises in the sum of $1.00. Such rental payment shall be paid in the form of a check
payable to the City of Dubuque, Iowa, and shall be mailed or delivered to the City
Treasurer, City Hall, Dubuque, Iowa 52001, on or before May 1 of each year, beginning
May1,1990.
29-.25. Construction of Improvements. The City will make such improvements to the
leased premises as the parties mutually agree are necessary to accommodate a riverboat
gambling dock site facility. Such improvements shall include, but not be limited to, parking
areas, dock facilities, and general site improvements, and which improvements will be
substantially completed by the City by no laterthan April 1, 1991. It is mutually recognized,
however, that Dubuque casino Belle, Inc. shall be responsible for all costs of construction
of the building improvement to he constructed at the dock site and on real estate which is
not the subject of this Lease.
The City agrees to borrow, by not later than tile 31st day of July, 1990, the sum of
Four Miilion Dollars ($4,000,000) (including capitalized interest), which borrowed funds
shall be evidenced by the City's issuance of Urban Renewal Tax Increment Revenue
Bonds and shall be the partial source of financing the improvements to be made by the
City as set forth above. Interest only payments shall be required during the initial 18
months from the issuance of the Urban Renewal Tax increment Revenue Bonds and
thereafter Principal and interest shall be amortized over a period of 10 years. City, as
borrower, shall have the right to prepay said revenue bonds at any time without penalty.
ðG-.26. Loan Repayment Service Fund. The Association shall be responsible for and
assumes all debt service payments on the funds borrowed by the City under the terms of
paragraph 29 above, including all principal and interest, until said City loan has been fully
repaid. All such debt service payments shall be remitted by the Association to the City and
deposited by the City to an interest-bearing loan repayment service fund and shall be used
solely to pay when due principal and interest payments on the loan indebtedness incurred
by the City under the provisions of paragraph 29 above. In addition, all excess principal (if
any) and interest earnings on amounts on deposit in the loan repayment service fund shall
be paid and applied no less frequently than each six months, in addition to regularly
scheduled debt service payments, as a prepayment on the loan indebtedness incurred by
the City under the provisions of paragraph 29 above, which prepayments shall be applied
in inverse maturity order.
In the event the revenues from riverboat gambling are insufficient to pay when due
any of the debt service payments required under the Urban Renewal Tax Increment
Revenue Bonds referred to in paragraph 29 above, the amount of any such deficiency shall
be paid by the Association from its available revenues or other resources.
The termination of this Lease for any reason prior to March 31, 2004 shall not
relieve Association from its duty and obligation to make said debt service payments.
;>.:1-.27.
[Reserved for future usel.
ðb28.
Deleted - Reserved for Future Use.
ð<>-.29. Conditions Precedent to Lease. The Ground Lease as set forth in this Part B
shall be effective only if all of following conditions are satisfied:
a) Issuance by the Iowa Racing and Gaming Commission to the Association and
Dubuque Casino Belle, Inc. of the required licenses to conduct riverboat
gambling but only if the license terms and conditions are acceptable to the
Association.
b) Compliance with all conditions set forth in paragraph 3 of that certain Agreement
between the Association and Dubuque Casino Belle, Inc., dated November 20,
1989.
c) Finai approval and adoption of Resolution No.- -90 of the City of Dubuque,
Iowa, which resolution approves this Lease Agreement
If any of the foregoing conditions are not satisfied, this Lease Agreement shall be
null and void unless the unsatisfied condition is waived in writing by both the City and the
Association.
34,30. Limited Transferability of Lease Aareement It is understood and agreed by
the parties that the Association may sublease all or any portion of the ieased premises to
GDREC, for use as parking and dock facilities incidental to the operation of an excursion
gambling boat pursuant to the Operating Agreement between GDREC and Dubuque
Racing Association, Ltd. Any such sublease in favor of GDREC shall be subject to the
consent of the City, which consent shall not be unreasonably withheld. Such sublease
shall be solely for the benefit of GDREC and shall remain in force and effect only for as
iong as GDREC is the excursion gambling boat operator designated by the Association
and licensed by the Iowa Racing and Gaming Commission.
Except as set forth above, this Agreement shall not, in any event, be transferred,
assigned, sold, leased or otherwise disposed of, in whole or in part, by any means without
the prior written consent of the City as evidenced by a resolution duly adopted by the City
Council of the City of Dubuque and then only under such conditions as the City may
establish. This Agreement shall be a privilege to be held for the benefit of the public by the
Association.
The parties acknowledge that City has or may lease or otherwise dispose of Lots A
and B or portions thereof, subject to the rights of the Association as established herein, to
GDREC or other third parties, and that any interest of the Association in Lots A and B,
other than the fifteen-foot strip and riparian rights provided in this 7th Amendment, is hereby
terminated. The City shall require that GDREC or such other third party indemnify and hold
harmless the Association from any and claims, damages, causes of action or demands that
may arise as a consequence of GDREC's occupancy, use, or operation of Lots A and B or
portions thereof.
The City shall have the right to negotiate leases on or otherwise dispose of Lots A or
B, subject to the rights ofthe Association under this Seventh Amendment without approval
by the Association. City shall indemnify and hold harmless the Association for any and all
obligations that the Association may owe to any of its sublessees which the Association is
prevented from satisfying or executing as a result of the City's execution of any leases or
other disposition affecting Lots A or B or portions thereof. Additionally, the City shall
require that any such lessee or other grantee of the City as to Lots A or B or portions
thereof shall indemnify and hold harmless the Association from any and claims, damages,
causes of action or demands that may arise as a consequence of such lessee's or other
grantee's occupancy, use, or operation of Lots A or B or portions thereof.
ðã-.31. License to Operate. It is intended that the Association shall maintein a valid
license issued by the Iowa Racing and Gaming Commission to conduct gambling games
under Chapter 99F of the Iowa Code or under any amendment to said statute. Nothing
herein, however, shall obligate the Association to maintein or renew any such license in the
event the Association's Agreement with GDREC dated February 22, 1993, including all
amendments thereto, is terminated for any reason.
&32. Use of Faciiitv. The Association warrants that it is validly existing and in good
standing under the laws of the State of Iowa as a nonprofit organization. The Association
warrants that, subject to the conditions set forth in paragraph 33 herein, it has the
necessary authority to conduct gambling games on an excursion riverboat as authorized
under Chapter 99F of the Iowa Code.
The leased premises and facilities thereon shall be used by the Association for the
sole purpose of conducting operations related to riverboat gambling and in accordance with
the terms and conditions of any license to be granted to the Association and by the Iowa
Racing and Gaming Commission unless the City consents in writing to any altemative use.
The Association agrees that it and any sublessee will at all times conduct operations
on the ieased premises for use by the general public without regard to race, color, age,
disability, creed, religion, national origin, or sex; provided, however, that the Association
may prepare and promulgate rules for the purpose of regulating the admission of persons
onto any excursion gambling boat and for the further purpose of regulating the conducting
of gambling games upon a riverboat consistent with regulations of the Iowa Racing and
Gaming Commission.
3+-.33. Inspection of Premises. An authorized representative of the City, as
designated in writing by the City Manager, shall have the right to enter and shall have
access to all parking and dock facilities, whether or not events are in operation, at all
reasonable times and for all reasonable purposes, in furtherance of the City's responsibility
to the public for the operation of the excursion gambling boat and riverboat gambling
operations, but only as long as any such entry does not unreasonably interfere with the
Association's right to quiet occupancy. The City's right to entry and access shall be subject
to any applicable rules and regulations of the Iowa Racing and Gaming Commission.
~. Maintenance of Facility. The Association agrees that, at all times during the
lease term, the Association shall, at its own expense, maintain, preserve and keep Lots C
and D in good repair and in good working order and condition, including but not limited to
snow removal, mowing, landscaping, sweeping of parking areas, lighting, cleaning, removal
of litter, and repair and replacement of surfaces The assumption by GDREC under a
sublease of the premises of any such obligation imposed on the Association in this
paragraph shall not relieve the Association of its obligation to the City hereunder.
ð9-.35. Improvements. The Association shall not make any betterments or
improvements (excluding maintenance-type matters) to the parking and dock facilities in an
amount exceeding $10,000 without the prior written approval of the City. Notwithstanding
the foregoing, the City agrees and consents to the construction by the Association and
GDREC of a temporary facility and a permanent building facility for ticket sales upon the
leased premises; provided, however, that the location, size, and design of any such
temporary and permanent facilities, including related improvements, shall be subject to the
written consent of the City and shall be constructed and maintained at no expense to the
City.
<m-.36. Liability. Insurance and indemnification. The Association shall indemnify and
save the City harmless from and against any and all ciaims, suits, actions, penalties,
damages and causes of action arising during the term of this Lease, for any bodily injury,
loss of life, or damage to property sustained by any person, firm, corporation, other
business entity or the City:
a) as a result of the operation of the parking and dock facilities by the Association
or any sublessee;
b) arising out of violation of the license granted by the Iowa Racing and Gaming
Commission;
c) for the failure by the Association to keep, maintain and abide by each and every
covenant of this Lease on its part to be kept and performed;
d) as a result of any negligence, act, error or omission of the Association, its
employees or agents, or third party contractors;
e) for the costs, attorney fees, expenses and liabilities incurred by the City in and
about such claim, suit, action, penalty, damage or cause of action, the
investigation thereof, or the defense of any action or proceeding brought
thereon, and from and against any orders, judgments or decrees which may be
imposed therein or in the result thereof. The Association shall specifically
defend or subrogate, at the City's option, any action or proceeding brought
against the City as the result of any of the matters enumerated in this Lease at
the Association's sole cost and expense.
The Association or , as sublessee, shall maintain, throughout the term of
this Lease, liability insurance insuring both the City and the Association with regard to all
damages mentioned in this paragraph, in the minimum amounts of:
f) Five Hundred Thousand Dollars ($500,000) for bodily injury or death to anyone
person;
g) One Million Five Hundred Thousand Dollars ($1,500,000) for bodily injury or
death resulting from anyone accident;
h) Five Hundred Thousand Dollars ($500,000) for property damages resulting from
anyone accident; and
i) Five Million Dollars ($5,000,000) umbrella policy.
Upon the effective date of this Lease, the Association shall furnish proof to the City
Manager of the City of Dubuque that a satisfactory insurance policy has been issued by a
company acceptabie to the City Manager. authorized and qualified to do business in the
State of Iowa. Such insurance policy:
j) shall be subject to the approval of the City Manager;
k) shall name the City as an additional insured;
I) shall contain a provision that a written notice of cancellation or material change
in the policy shall be delivered to the City Manager thirty (30) days in advance of
the effective date thereof; and
m) shall be filed with the City Manager on the effective date of this Lease.
A cancellation or lapse of such policy without immediate approved replacement shall
be a material violation of this Agreement.
437. Waiver of SubroGation, The City and the Association mutually release the
other from liability and waive all right of recovery against the other for any loss of or
damage to the property of each, including earnings derived therefrom, caused by or
resulting from fire, casualty or any other or any other peril insured against and for which
proceeds are payable under any insurance policies maintained by the parties hereto,
regardless of the cause of such loss or damage and even though it results from some act
or negligence of either party hereto, or one of the party's agents, employees, customers or
representatives. All fire and extended coverage insurance policies shall carry an
endorsement wherein said insurance company waives any and all right of subrogation
against either party to this Lease by reason of any such fire, casualty or other peril insured
against and for which proceeds are payable.
4a;N. Termination. Either the City or the Association may terminate this Lease
whenever it is determined that the other party has failed to comply with the conditions of
this Lease.
A written notice of termination by the City or the Association to the other party shall
specify the default and shall state that this Agreement shall be terminated and forfeited
sixty (60) days after the giving of such notice unless the default is remedied within said 60-
day period.
Upon receipt of a notice of termination by either party, neither party shall incur new
obligations for the terminated portion of the Lease after the effective date of the termination
and.shall cancel as many outstanding obligations as possible.
Notwithstanding the foregoing, it is agreed that either party may terminate this Lease
Agreement upon thirty (30) days advance written notice in the event (a) the Association
fails to maintain or renew its license from the Iowa Racing and Gaming Commission to
conduct gambling games on an excursion gambling boat or (b) the Agreement between the
Association and GDREC dated February 22, 1993, including all amendments thereto, is
terminated for any reason.
433-.ß. Records Reports. and Filinas. The Association shall prepare and fiie all
reports, including financial reports, as required by Iowa law and the rules and regulations of
the Iowa Racing and Gaming Commission. In addition, the Association shall keep and
maintain such books and records and have such audits performed as required by Iowa law
and the Iowa Racing and Gaming Commission. All such reports, financial records, books
and audit information shall be furnished or provided for inspection, upon request, to the
City. In addition, the Association shall procure and maintain any surety bonds which may
be required of it by Iowa law or by the Iowa Racing and Gaming Commission.
4440. Conflict of Interest. The City agrees that no officer or employee ofthe City, or
member of the goveming body of the City who exercises or has exercised any function of
responsibility with respect to the excursion gambling boat operation and conducting "of
gambling games, shall have any interest, direct or indirect, in any contract or subcontract,
or the proceeds thereof, for work to be performed in connection with the riverboat gambling
operation or in any activity or benefit therefrom which is part of the project at any time, all
as provided in Iowa Code Section 362.5, during such person's employment or tenure and
for a period of one year thereafter.
The Association agrees that no member or officer of the Association who exercises
or has exercised any function of responsibility with respect to the excursion gambling boat
operation and conducting of gambling games shall have any interest, direct or indirect, in
any contract or subcontract, or the proceeds thereof, in connection with any contract
awarded by the Association and/or the City for work to be performed or services to be
provided to the Association and/or the City in connection with the parking and dock
facilities, excluding contracts let prior to this Agreement, at any time during such person's
membership or tenure with the Association.
PART C - PROVISION COMMON TO BOTH LEASES
I The following provisions shall be applicable to each of the bease
l\groomonteLeases set forth in Part A and Part B above.
4é4--1,. Distribution of Net easf¡Cash Proceeds. +he-Association shall, at the end of
each of its fiscal years, distribute its net cash remaining after payment of the
following expenses:
a) expenses for normal replacement items;
b) required payments to the Depreciation and Improvement Fund under the
Dubuque Grevhound Park and Casino Lease (Part A) above;
cJ required payments to the Depreciation and Improvement Fund under the
Parking and Dock Facility Lease (Part BJ above;
d) provision for operating funds for Dubuaue Grevhound Park and Casino;
eJ required debt service payments, if any, for debt incurred with the consent
of City and for activities pursuant to Iowa Code Chapters 99D and 99F;
f) funds which Association is required to provide as collateral or otherwise
for purposes of obtaining and securing any bond required bV the Iowa Racing
and Gaming Commission pursuant to Iowa Code Section 99D.10 (1995). as
follows:
forty percent (40%) to City; thirty percent (30%) to charity; and
thirty percent (30%) to a reserve fund established bv
Association. Upon termination of this Lease Aç¡reement or
dissolution of the Association. seventy-five percent (75%) of
such reserve fund shall be distributed to City and the balence to
charity.
City shall use funds distributed to City under this paraç¡raph in
the same manner and for the same purposes that City is
authorized to use rent payments under paraç¡raph 3 of this
Aç¡reement.
Decisions for expenditures from Association's reserve fund shall be
made solely bv AsSociation's Board of Directors, Monies deposited
in the Association's reserve fund are the sole property of
Association.
Anv interest accruinQ on the balance in the reserve fund shall be
deposited to the reserve fund.
42. Representation. Association shall reserve three positions on its Board of Directors
for City Council members as appointed bv the City Council in consultation with Association
and one position on its Board of Directors for the City Manaaer or the City Manaaer's
desiGnee. Each of the appointments is subiect to removal bv Association in the event of
failure to comply with the resolutions and bylaws of Association.
Association shall reserve on its Executive Committee, or its GoverninG committee bv
whatever name such committee is desiGnated. one position for the City Manaaer.
43. Public Purpose. City has determined that the operation of Dubuaue Grevhound
Park and Casino and riverboat GamblinG accomplish a public purpose bv promotinG
community development and tourism for the civic betterment and social welfare of the City
of Dubuaue. Association has been desiGnated bv City as an appropriate nonprofit entity to
further and advance such purpose. Both parties acknowledGe that Association's primarv
purpose in the operation of Dubuque Grevhound Park and Casino and riverboat Gamblina
is to promote such community development. tourism civic betterment and social welfare
for the benefit of the City of Dubuaue and its citizens.
44. Nature of Relationship. The relationship created in this Lease Aareement is a
landlord-tenant relationship and each party shall be liable for its own action and shall hold
the other harmless from any liability arisinG from the action of it or its aGents or employees.
30
45.Compliance with Local and State Laws. Association; in the operation and
manaGement of Dubuaue Grevhound Park and Casino and in the operation of riverboat
GamblinG shall comply with all applicable federal. state and local laws. ordinances and
reGulations.
46. Protection of Association Property. City acknowledGes that property both real and
personal. owned or under the control of Association is entitled to all protection provided for
bv law for the protection of private property even if located on public land unless otherwise
specified herein.
47. Notice. Both City and Association shall Qive prompt notice in writinQ to the other
party of any adverse development. financial or otherwise, which would materially affect the
operation of Dubuque Grevhound Park and Casino or riverboat GamblinG.
48. RiQht of Intervention. City and Association shall have the riGht of intervention in any
suit or iudicial or reaulatorv proceedinG to which the other is a party and which may affect
the riGhts of either party. Neither City nor Association shall oppose any such intervention.
49. Discrimination. In carryinG out all of its activities, Association shall not discriminate
aGainst any employee or applicant for employment because of race, creed color sex. aGe.
national oriGin, reliGion or disability. Association shall take affirmative action to assure that
applicants for employment are employed and that employees are treated durinG
employment without reGard to their race, creed, color. sex. aGe. national oriGin, reliGion or
disability. Such action shall include but not be limited to, the followinq: employment
uPGradinG. demotion or transfer: rates of pav or other forrns of compensation; and selection
for traininG. inciudinQ apprenticeships. Association shall post notices settinG forth the
provisions of this nondiscrimination clause on employee bulletin boards. The notices shall
state that all Qualified applicants will receive consideration for employment without reQard
to race, creed, color, sex. aGe, national oriGin. reliGion or disability.
Association aqrees and will undertake whatever affirmative measures are necessarv
so that no person shall. on the Qrounds of race. creed color, sex. aGe. national oriGin,
reliGion deQree of disability, be excluded from participation in denied the benefits of. or be
subjected to discrimination under any proqram or activity associated with operation of
Dubuaue Grevhound Park and Casino.
Association further aGrees that these nondiscrimination provisions shall be
incorporated into any and all third party contracts.
50. Amendments. City or Association may request an amendment to this Lease
Aareement for the followinG purposes:
31
a) to take advantaGe of advancements in technoloGY or methods which shall result
in the more effective or efficient operation of Greyhound racinG or riverboat
GamblinG:
b) to serve the public interest:
c) to chanGe a provision for the better bv removino or correctinG a fault: or
d) to conform with a chanGe in federal or state law or reQulation. administrative
rulinG or iudicial decision:
b) requirod paymente te tho depreciation anoJ improvement Itlne tinder the
Dubuq~e Greyhe~ne Part, lease (Part I'.) ::¡bove
c) roq~irea payments to the deprociation and improvement fund under the PaÃ<in§
and Doc!, Facility Leaeo (Port B) abe"o
e) to comply with any requirements of Iowa law and the Iowa Racina and Gamino
Commission, includinG all matters required in order to obtain. maintain and
renew the appropriate licenses required bv state law.
The period of this Lease Aareement shall be extended or renewed only in an
extension or renewal mutually acceptable to both City and Association.
d) pro"icien for eporalin§ fundc for the §reyhound raco track facility
51.Severabilitv. Ifanv provisions of this Lease Aareement or anv application thereof to
any person or circumstance shall be held invalid bv judicial decision the invalidity shall not
affect other provisions or applications of this Lease Aareement which can be Given effect
without the invalid provision or application, and to this end and extent. the provisions of the
Lease Aareement are severable. In addition the separate Leases set forth in Part A and
Part B shall be deemed severable and the invalidity. cancellation or termination of either
Lease shall not affect the other Lease.
e) required dobteer'ice payments, if any, for debt incurred with tho con cent of the
City and for activitiee p~r.¡;~ont to Iowa Code (Chapterc 99D and 99F) as follows:
If any provision of this Lease Aareement becomes invalid and results in a siGnificant
loss of benefit to City or Association or both. as determined bv either party the partv
c!aiminQ the loss may demand reneGotiation. Such demand for reneGotiation must be
made and delivered to the other party within one year after the date both City and
Association have received notice of the invalidity. Within fifteen (15) days of receipt of
such a demand, City and Association shall meet and beGin reneGotiations. The
reneGotiations shall be limited to reforminG the Lease Aareement and restorinG the party
sufferinG the loss to its former position with equivalent benefits. The reformed Lease
Aareement shall be effective from the date the invalidity took place even if such
reformation is retroactive and involves a settlement for loss of past benefits.
32
fifty percent (50%) to tho City and the City "hall dopO£it eHeh
dictributionc of nat GOGh te itc c:Jpital impro"ement fund; Þ"anty five
parcant (25%) te charity; anoJ p:Janty flva parcont (25~q to a rawrvo
fund oetabliehod by tho /\£ÐOciation. Moniec dapocitod in tha rewrva
fund "hall be expended only by mutual con"ont ef the City and tho
I'eseeiatien. Upon termination efthie looee ^greamont or disselution
of the /\8seeiation, seventy five porcont (7§~C) of "uch roBervo ftlnd
chall ba distributed to tho City and the balance te charity.
The purpose of this paraGraph is to maintain the continuity of the Lease Aareement
and conformity with the expressed intentions of the party when the Lease Aoreement was
formed.
f) funoJe 'I'hich tho I'ecoeiatien ie roquirad to provide os collateral or other"iw for
ßurpO"O" of obtainin§ and "aeuring any bond roquiroa by tho Iowa Racin§ and
Gaming Cemmiesion purcuant to lo"'a Coda So¡;{ion 99D.1 g (1995).
Roprocontation. The /\880ciation chall rOBer..e thrDO poeition" on iIG Boar-d of Dircctom
for City Cotlneil member" oe appointed by 52. Mailina Addresses. Notices to the City and
to the Association shall be sent by certified mail as follows:
If to the ~City Council in eoneultation with the .",££eeiotion ana one peBition
on il£ Board of Diroe{orc for tho: City Manager-e4Ae
City of Dubuque, or his or her aesigneÐ. ¡¡och ef caid
appointmantc is eubjoe{ to removal by
City Hall- 50 West 13th
Dubuaue IA 52001
with a copy to:
Corporation Counsel
City of Dubuaue
City Hall- 50 West 13th
Dubuaue IA 52001
!UQ..the Association in the e"ent of fuiltlre to comply: President
Dubuque RacinQ Association. Ltd.
P. O. Box 3190
Dubuaue, IA 52001
4å-.with tho reeolHtione and byla'.vs of the /\eÐOeiation.
Tho .^,sBoeiation ehall rceerve on its Exoctltivo Committea, or iIG go'Jeming
committea by "'f1atavÐr nome euch committee ie oJeeignatod, one positien for the City a
copy to: General Manager~
33
47.Public Pursoce. The City Aae determined that the
operation of Dubuque Greyhound Park and A"erbeat §amblín§ accomplich a plJlJlíc
purpOEG by pmmoting eemmunity dc"elepment oneJ touricm for tho civic betterment and
social welbm of the City of Dtlbtlqtle. The ^,£eeciation has been aecignated by the City a£
an appropriate nonprofit entity to further ana ad"ance eaid purpOEe. Beth particc
oclmowledge that the ^.scociatien'e primar¡ purpoee in the eperotion of Dubuqtle
Groyhotlnd Parl< ana ri"erboat §Gmbling is te promote such community development,
touriem, ci'/ic betterment ana social welfare for the benefit of the City ef DlJbuqlJe and itG
€ÌIiiæHS-.
48. Natme ef Relationship. The relotionehip created in thiB Leoee is a landlord tenant
mlGtienehip, and eacA party ehall be liaBle for itc ewn action and chall hold tAe other
harmlees from any liability arieing from the actien of it or itG a§entc er empleyeec.
49. Complíanco with Lecal and St::¡te laws. The ,^,Bsooiatien, in the oporation and
management of the do§ track fueility and in the eperation ef riverbeat §ambling, ehall
oomply "'ith all applicable pro"ieionc of the Code of Ordin:mcee ef the City of DulJtlque,
Iowa, ana the ,^,dministratiye Coae of the State of lewa.
50. Prote&tien of I',Gcociation ProperP,'. The City aekno"'ledgec that proporty, both mal
and personal, e¥'ned or under the control ef the ^.ssociatien is ontitled te all protPction
pro"iaed fer bylaw for tho pretectien of private proporty ovon if leGated Gn ptlblis land
unlace ether....iEC cpocified herein.
P. O. Box 3190
Dubuaue. IA 52001
or to such other address as either party shall bv written notice, request.
53. Entire Aareement. This Lease Aareement contains the entire aGreement between
City and Association. and any statements, inducements or promises not conteined herein
shall not be bindinG upon the parties.
51. Notice. Both the City and the I'eeeciation shall §i'<e prompt neti£e in writin¡j to the
ether pGrty of any aaverce development, financial or otherwiee, which w<Juld materially
GfI'-oo-l the eperation of the ae¡j tFOGk fuciliþ¡ or riverboat §amblin¡j.
52.Riaht ef Inter'entien. The City and the P£seciotion choll hG"e the right ef
inter:ention in any euit er jtldieiGI er re§ulotery preceedin§ to 'Nhi£h either the City or the
!\eE9GiGtien ie 0 party and whioh mGY affect the ri¡jhts of either party. Neither the City nor
the l',sEDciatien shall oppose any etlch intBrventien,
53. DieeAminotion. In carryin§ etlt all ef its aeti'lÌtiee, the !\esoGiatien shall not
diBeriminGte against :my employee er applimnt for employment becalJee of race, creed,
egler, sex, Gge, national eA§in, religion or aicaeility. The .'\eeeciation shall take ::¡ffirmati,'e
34
action to assure that applicants for employment aro employed and that omployeee me
troatoa oJuring employment vitheut regard to their race, er-ced, color, sex, age, national
origin, religion er dieability. Such action chall include, but not be limited to, the following:
employment, up§FOElin§, oJemetien er tFOnefor; ratee of payer ether foFrrJe of compenwtion:
and seleGtien fer training, including apprenticeehips. The :\ssociation chall poct noticoc
EDiting forth the previeione of thie nondiBcrimino!icn clauE9 on employee bulletin beordc.
The netices chall c!.::¡te that all qualified applioantc will receivB concidoration for
employment withotlt regard te row, creed, color, sox, age, nalional origin, religion or
8isaèiIity-.
The ^sEOciation agrooe and will undertake 'Nhate'ler affirmative measuroe are
neeeeeory se that ne peffien chall, en the greundc of raee, creed, color, cox, a§o, notienal
origin, religion, de§ree ef handieap er aieability, bo exaluded from partieipatien in, denieoJ
the benoms of, or bo cubjectcd to diccrimination under any program or acti'/ity acEOciated
with oporation of tho racc tracl~ facility.
The /\cEOciation further agreec that thoee nendicerimination pre'/icionc shall be
incorporated into any and all third party contr::¡¡::~e.
51.J\mendmente. The City ortho .".esociation may mqtleetan amendment to the Lease
for the following ptirpoEDe:
a) to take advantage of ad'¡ancemenlB in iochnele§y er methods which chall reeult
in the mere effccti"e er efficient oporation of groyhound racing er ri"erbeat
§ambling; or
b) to eerIe tho puBlic intereet; or
e) to eh:JA§e 0 pre'tieion for the seiter by remO'.<ing or correcting a fauit; or
d) to conform with a £hange in foderal or etate lower regtllatien, adrninietrati"e
ruling or judicial aeeieion; er
e) te comply ",ith any requiremente ef lo"'a law and the Iowa Racing and Gaming
Commiesien, including all rmttere required in order to obtain, maintain and
renO'll tho appropriate licences reqtlired ey stcte law.
The period ef thie leoee ehall be extended or rBnewed only in an måeneien or
renewal mtlttlally acceptaBle to seth the City and the 'IcGOciation.
54. Memorandum for Recordina. The parties mutually aGree that this Lease Aareement
shall not be recorded but that if necessarv or desirable for title purposes a Memorandum
of Lease Aareement shall be executed and filed of record.
WITNESSES:
CITY OF DUBUQUE. IOWA
35
BY:
DUBUQUE RACING ASSOCIATION L TO.
BY:
36
Exhibit A
37
Exhibit AA
38
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS 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 authorized to
do business in Iowa. All insurers shall have a ratinG of A of better in the current
AM. Best Ratinq Guide.
55.Se'/erabilitv. If any ¡¡rovioiono ofthio Lease or any application thoroefte any person
or circumet;:mce ehall be held in"3lid by judicial decision, the iA"olidiÞ¡ shall net offec-t other
pro"icionc or opplicationc of thic leoee "I!1ich can De gi'Æn df-oct v'ithout the in"alid
previcion or oppliGGtion, end to thie end ona o)Œent, the pre"ieiono of the loaee arc
ee"oroble. In addition, the eeparato leacoG set forth in Part 1\ and Port B Dba\'0 eholl bo
deemed £evorable. and the invalidiÞj, GGnceliation or termination of aithor ef eaid Leosee
sholl net affec-t t-ho other Leaee.
2. All policies of insurance shall be endorsed to provide a thirty (30) day advance
notice of cancellation to the City of Dubuaue if cancellation is prior to the
expiration date. This endorsement supersedes the standard cancellation
statement on the Certificate of Insurance.
If any provieion of thie leaso becornec in':alid and rccults in a eignificant 1000 of
benefit to tho City er the .",e£Ociotion er Both, as determined by either party, the p:JrP¡
claiming the loee may demand rene§otiatien. Stich demand for rcne§otiation must bo
moE!o onE! delivGred to the ether party ",thin eno Y°of after the date beth the City and the
l\cGOciatien ho"e roeei'/ed netiee ef the invDlidity. 'Nithin lifteen (15) days ef receipt of
ouch a demanoJ, beth the Cir¡ and the P,ssociation mtlBt meet and begin rene§etiÐtionG.
The renegotiatione sholl be limited te reforming the leaw and festering the party euffering
the 10EE to iw fermer position with equi';::¡lent bonelito. Tho roformed loase ehall bo
effective from the dote tho debilitating invalidity tool< ploeg, oven if SWòh reformation is
retmoGti"e one involves a cettlement for lees of pact benefiw.
3. Association shall fumish a Certificate of Insurance to the City of Dubuaue, Iowa
for the coveraGe required in ParaGraph 6 below, Such certificates shall include
copies of the followinG policy endorsements:
a) Thirtv day notice of cancellation to the City of Dubuaue.
b) Commercial General Liability policy is primarv and non-contributinG.
c) Commercial General Liability additional insured endorsement.
d) Governmentallmmunitv Endorsements.
e) Waiver of recoverv under workers compensation.
The p~rpO£e of thie paragraph ie to maintain tho continuity of the Lease and
conformiÞ¡ "lith the expreseed intentiens ef the party '."hen the leoee wac formed.
4. Each certificate shall be submitted to the contractinG department of the City of
Dubuaue.
39
56. MoilinG I'doJroœos. Neticec to the City anoJ to the ^ ecociatien shall bo cant by
certified ffi3i1 ac lolicy"s:
If to tho CiÞ/:
CiÞ¡ Mana§er
City of D~ÐUquo
City Hall 50 ~^!eet 1ðth
Dubuqtle, L', 82001
with a copy to:
Corporation CmmEDI
City of Dubuque
City Hall 8D Weet 1ðth
Dubuquo, I,'. 82001
If to tho /\£f;eoiatien:
PrBeident
Dubuqtle Racing P,eseciotion, Ltd.
p. D. gox 3190
DuEmque, I.', 82001
with a copy to:
Genoral Monoger
Dubuqtlo Groyheund P3rl<
P. O. Bex 3190
Dubtlque, 1.'\ 52001
or te suÐh othor addrese os either party sholl, by written netiÐe, roquest.
57. Entiro .',areement. This leaee contains the entiro agreemont botween the City and
the /\ESeÐiatien, and any ctatoments, inducoFAents er premicos net contained horoin ehall
net be binding upon the ßarties.
5. Failure to provide minimum coveraGe shall not be deemed a waiver of these
requirements bv the City of Dubuaue. Failure to obtain or maintain the required
insurance shall be considered a material breach of this aGreement.
6. Association shall be required to carry the followinG minimum coveraGe/limits or
Greater if required bv law or other leGal aGreement
a) COMMERCIAL GENERAL LIABILITY
General Aaareaate Limit
Products-Completed Operations Aaareaate Limit
Personal and Advertisina Iniurv Limit
Each Occurrence Limit
Fire Damaoe Limit (anv one occurrence)
Medical Payments
$2.000.000
$1,000.000
$1 000.000
$1.000.000
$ 50.000
$ 5000
40
This coveraGe shall be written on an occurrence. not claims made, form per
location. All deviations or exclusions from the standard ISO commercial General
liability form CG 0001 or Businessowners form BP 0002 shall be clearly identified.
Govemmental Immunity Endorsement identical or equivalent to form
attached.
An additional insured endorsement identical or equivalent to ISO Form
CG 2026 or CG 2011 and include as additional insureds: "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."
68. Memorandum for Rocordine. The ßortios mulually agree that thie Lease choll net be
roeerèee but that if ne£ecsory or deeirable for title purpecee, 0 memorandum ofthie LeoeD
shall be 9Jmeuted and filea ef re£erd.
'NITNESSES:
b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutorv for CoveraGe A
Emplovers Liabilitv:
$100.000 each accident
$100000 each employee-disease
$500.000 policy límit-disease
Policy shall include an endorsement waivinG riGht of recoverv
aGainst City of Dubuaue.
c) UMBRELLA/EXCESS LIABILITY $ 4,000,000
LIQUOR OR DRAM SHOP LIABILITY $ 1,000,000
Coveraqe to be determined on a case-by-case basis bv Finance Director.
41
POLICY NUMBER
COMMERCIAL GENERAL LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - DESIGNATED PERSON OR
ORGANIZATION
This endo"ement modifies Insmance orovlded under"'e fullowino'
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
Name of Person Or Orqanization:
The City of Dubuque. includino all its elected and aooointed officials all its emolovees and volunteers all
its boards commissions and/or authorities and their board members emplovees and volunteers.
(If no entry aooears above infoonation 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 oroanization shown
in the Schedule as an insured but onlv with respect to liability arisinq out of vour operations or premises
owned bv or rented to vou.
Coo""o"!. Insurance Se<v~es Offioe. Inc. 1994
CG20261185
43
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
BY: Nonwaiver of Governmental Immunity.
The insurance carrier expressly aGrees and states that the purchase of this policy
and the includinG of the City of Dubuaue. Iowa as an Additional Insured does not
waive any of the defenses of Governmental imrnunitv available to the City of
Dubuaue, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may
be amended from time to time.
DUBUQUE RACING ASSOCI.",TION, lTD.
BY:
_~Claims CoveraGe. The insurance
carrier further aGrees that this policy of insurance shali cover on Iv 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 subiect to Code of Iowa Section 670.4 shall be covered bv the terms and
conditions of this insurance policy.
Assertion of Govemment Immunity. The City of Dubuaue, Iowa shall be responsible
for assertina 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.
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 Dubuaue Iowa under this policy for reasons of Governmental
immunity unless and until a court of competent iurisdiction has ruled In favor of the
defense(s) of Qovernmental immunity asserted bv the City of Dubuaue. Iowa.
No Other ChanGe in Policy. The above preservation of Governmental immunities shall
not otherwise chanGe or alter the coveraGe available under the policy.
44
-
DUBUQUE RACING ASSOClAnON
HonorableMayor and City Council
Dubuque City Hall
50 West 13th Street
Dubuque, IA 52001-4864
Q
0'<
g~'
-',J ;.
~ö ~~.
>~
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è6
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-
May 25, 2004
f'.-O
en
-
--
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RE: DRAlCity Lease and DRA Loan Documents Approval
Dear Honorable Mayor and City Council:
Please consider this letter as a request from the Dubuque Racing Association
that the Dubuque City Council approve: '
1. A new DRA/City Lease with the tenn of April 1, 2004 through March
31,2014, and
2. Loan Documents necessary forthe financing of the IRGC-approved
DGP&C expansion project.
The Dubuque Racing Association approved both of these items at their
Board of Directors meeting on May 25, 2004.
Copies of both sets of documents are included with this letter. If! can be of
any assistance, please contact me at your convenience.
-3Y~
Bruce Wentworth
General Manager
Dubuque Racing Association
P.O. 80x 3 J 90 . DUBUOUE. fA 52004-3 J 90 . PHONE 563.582.3647 . FAX 563.582.9074
AMENDED AND RESTATED
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DUBUQUE RACING ASSOCIATION, LTD.
This Amended and Restated Lease Agreement (Lease Agreement) is dated for
reference purposes this 31st day of March, 2004, and is between the City of Dubuque,
Iowa, a municipal corporation (City) and Dubuque Racing Association, LTD. (Association),
an Iowa nonprofit corporation.
Whereas, on September 4, 1984, City and Association entered into a Lease
Agreement under which City, as Lessor, leased to Association, as Lessee, a parcel of land
on Chaplain Schmitt Memorial Island which has been operated by Association as Dubuque
Greyhound Park and Casino; and
Whereas, on February 28, 1990, City, as Lessor, and Association, as Lessee,
entered into a Lease for certain real property in the Ice Harbor covering the dock site and
portions of the surrounding area to be used for parking for a gambling boat; and
Whereas, the leases for Dubuque Greyhound Park and Casino and the Riverboat
Gambling Facility were incorporated into a Lease Agreement, which Lease Agreement has
been amended by seven amendments; and
Whereas, Part A of the Lease Agreement has expired and the parties desire to
renew Part A of the Lease Agreement according to the terms set forth herein; and
Whereas, Part C of the Lease Agreement contains provisions that relate to Part A of
the Lease Agreement which must be amended in conjunction with the amendments to Part
A of the Lease Agreement; and
Whereas, City and Association desire to amend Parts A and C of the Lease
Agreement, and to restate the Lease Agreement containing the amended Parts A and C,
and incorporating the prior amendments to Part B of the Lease Agreement without making
substantive changes to Part B of the Lease Agreement,
NOW, THEREFORE, City and Association, in consideration ofthe mutual covenants
and conditions hereinafter set forth, agree as follows:
PART A - DUBUQUE GREYHOUND PARK AND CASINO LEASE
1. Term of Lease. The term of this Lease shall commence on the 1st day of April,
2004, and terminate on the 31st day of March, 2014.
2. Leased Premises. City agrees to lease to Association, and Association agrees to
lease from City, the following described real estate (Dubuque Greyhound Park and
Casino):
A parcel of land containing 43.73 acres, more or less, located on
Chaplain Schmitt Memorial Island, lying immediately north of the
Iowa-Wisconsin Bridge as set forth on Exhibit A attached hereto and
made a part hereof and subject to a utility and roadway easement
located on and about the southerly property line, a roadway easement
located on and about the easterly property line, and a roadway
easement on and about the westerly property line.
Improvements to and maintenance of the easement areas, including
snow removal and weed control, shall be the responsibility ofthe City.
The Association may grant utility easements, including an easement
to the television cable company, for the purpose of obtaining utility
services to the race track facility. Such easements shall only be
granted with the written consent of the City.
3. Rental. Association shall pay City monthly rent equal to one percent (1 %) of
gross receipts from all gambling games (including but not limited to slot machines and
video machines which simulate table games of chance) and one per cent (1 %) of the
unadjusted drop for table games of chance, conducted at Dubuque Greyhound Park
and Casino for each month such games are conducted. Such payments shall be due
on the tenth day of the following month. City shall expend such funds for capital
expenditures, including but not limited to, street lighting, street improvements, the
Civic Center, parks & recreation, the replacement of motor vehicles and operating
equipment, economic and tourism development projects. In the event rent payments
under this paragraph exceed the budgetary needs enumerated for the foregoing capital
expenditures in City's general fund capital improvements budget, then the City shall
use remaining rents for funding of police, fire, and other public safety departments.
City shall use any rent payments remaining after exhausting the foregoing purposes, if
any, for mass transit and library budgets. Notwithstanding the foregoing, however,
City shall not be limited in any manner from the issuance of debt to fund capital
improvements or for other purposes or from using other revenue sources, required to
be dedicated to capital improvements, to fund the capital improvement budget. All rent
payments shall be used by City exclusively for the promotion of social welfare under
IRC §501 (c)(4).
4. Depreciation and Improvement Fund. Association shall pay an additional sum of
$10,000 per month for the establishment by the City of a Depreciation and Improvement
Fund. Association shall at all times maintain a balance in the Fund of not less than
$250,000.00.
Monies deposited to the Fund shall be used only to pay extraordinary costs of
maintenance and/or repair of Dubuque Greyhound Park and Casino, the costs of
construction of additional improvements to Dubuque Greyhound Park and Casino or the
costs of replacement of major equipment. Decisions for expenditures from the
Depreciation and Improvement shall be made solely by Association's Board of Directors.
Monies deposited in the Depreciation and Improvement Fund are the sole property of
Association.
Any interest accruing on the balance in the Fund shall be deposited to the Fund and
shall be available only for the purpose for which the Fund was established.
5. Sufficiency of Payments. City's acceptance of rent and Depreciation and
Improvement Fund payments shall not be an admission of the sufficiency of any such
payments nor the accuracy of any statementfurnished by Association. All such payments
shall be received subject to the audit to be provided by City as provided in this Lease
Agreement.
6. Nontransferabilitv of Lease. This Lease shall be a privilege to be held for the benefit
Of the public by Association. This Lease shall not, in any event, be transferred, assigned,
sold, leased or disposed of, in whole or in part, by any means, without the prior written
consent of City expressed by a resolution duly adopted by the City Council of the City of
Dubuque and then only under such conditions as the City Council may establish.
7. Use of Facilitv. Association warrants that it is validly existing and in good standing
under the laws ofthe State of Iowa as a nonprofit organization. Association warrants that it
has the necessary authority to operate Dubuque Greyhound Park and Casino in the State
of Iowa.
Dubuque Greyhound Park and Casino shall be used by Association for the sole
purpose of conducting dog racing and gambling games in accordance with the terms and
conditions of the license granted Association by the Iowa Racing and Gaming Commission
unless, prior to the use of the facility by Association for any other purpose, Association
obtains the written consent of City with respect to such alternate use. City acknowledges
and consents to Association's use of Dubuque Greyhound Park and Casino for banquets. ,
Use for the purpose of this paragraph shall not mean individual events associated with a
particular type of use. In any event, the use of Dubuque Greyhound Park and Casino by
Association for any purpose other than dog racing and gambling games shall not constitute
more than five percent (5%) of the total use of Dubuque Greyhound Park and Casino,
measured by the greater of either the amount of revenues generated by the alternate use
compared to the total revenues generated by Dubuque Greyhound Park and Casino orthe
amount of time used by the alternate use compared to the total amount of time Dubuque
Greyhound Park and Casino is used.
Association agrees that it will at all times hold Dubuque Greyhound Park and Casino
available for use by the general public without regard to race, color, age, disability, creed,
religion, national origin or sex; provided, however, that Association may prepare and
promulgate rules for the purpose of regulating the admission of persons into Dubuque
Greyhound Park and Casino and for the further purpose of regulating the conduct of
persons admitted to Dubuque Greyhound Park and Casino, which rules shall be consistent
with the regulations of the Iowa Racing and Gaming Commission.
8. License to Operate. Association shall maintain a valid pari-mutuel license to
conduct dog racing as long as such license is required by the Iowa Racing and Gaming
Commission to conduct gambling games and a valid license to conduct gambling games as
issued by the Iowa Racing and Gaming Commission and shall make timely application,
together with the appropriate documentation, for the renewal of any such licenses as they
expire from time to time. City shall provide, on a timely basis, any and all information within
its control necessary to sustain the licenses or to secure renewals thereof.
9. Inspection of Premises. An authorized representative of City, as designated in
writing by its City Manager, shall have the right to enter and have access to Dubuque
Greyhound Park and Casino, whether or not events are in operation, at all reasonable
times and for any reasonable purposes, in furtherance of City's responsibility to the public
for the operation of Dubuque Greyhound Park and Casino, as long as such entrances do
not unreasonably interfere with Association's right to quiet occupancy. Such entrances
shall be subject to the rules of the Iowa Racing and Gaming Commission. The authorized
representative shall advise the General Manager upon arrival at the track.
10. Maintenance of Facility. Association agrees that, at all times during the Lease term,
Association shall, at its own expense, maintain, preserve and keep Dubuque Greyhound
Park and Casino in good repair, working order and condition.
11.Alldritt Lure System. The construction of Dubuque Greyhound Park and Casino
required the installation of a lure system purchased by City. Association shall pay as
required by the supplier, rental payments for the use of the lure system and all costs
associated with the maintenance and repair of the lure system.
12. Property Taxes. Association shall pay all property taxes, both real and personal,
before they shall become delinquent and which may be levied and assessed against
Dubuque Greyhound Park and Casino. City shall not oppose any application filed by
Association for exemption from the payment of property taxes, both real and personal.
In the event Association pays real estate taxes levied and assessed against the leased
property, the amount of the real estate taxes so paid are deductible from the next due
rental payments as set forth in paragraph 3 of this Lease Agreement.
13.Alterations. Association shall not commence alterations to any structure or
structures or make additions to any existing structures or facilities in an amount exceeding
Ten Thousand Dollars ($10,000) without the prior written approval of the plans and
specifications by City.
Any improvements, modifications or additions to Dubuque Greyhound Park and
Casino wheresoever located or however financed shall become part of the real estate and
owned by City. City consent is not required for any items in Association's CIP budget
except for improvements to real estate costing $10,000.00 or more, or for capital
improvements to be purchased by incurring debt. City consent is not required for
Association expenditures for ongoing replacement of slot machines and other video
games, or for equipment replacement in the normal course of business. Association shall
expend all funds in the Depreciation and Improvement Fund, and all of its reserve
funds (except for a five percent (5%.%) operations reserve in the reserve fund) prior to
using any other funds for capital improvements.
14. Security and Traffic Control. Association shall provide an intemal security force
sufficient in numbers to maintain the integrity of Dubuque Greyhound Park and Casino and
all of its operations. Additionally, Association shall have on duty during the hours of
operations not less than one (1) City of Dubuque uniformed police officer, or Dubuque
County Sheriffs Deputy if a City officer is not available, for which City shall be reimbursed
at the rate established by mutual agreement of City and Association. City shall be
responsible for all billings and payments to Deputies. Selection and responsibilities of such
officers shall be by mutual consent of City and Association.
Association shall reimburse City for any and all expenses incurred by City to
maintain traffic control for the safe ingress and egress of the public to Dubuque Greyhound
Park and Casino, including but not limited to the salaries and traffic lane control devices,
but excluding any traffic signal installation. Decisions concerning traffic control measures
needed to comply with the intent of this paragraph shall be by mutual consent of City and
Association.
15. Liability Insurance and Indemnification. Association shall defend, indemnify
and hold City, its officers, employees and agents, harmless from and against any
and all claims, suits, actions, penalties, damages and causes of action of any kind
arising during the term of this Lease, including but not limited to costs, reasonable
attorney fees, expenses and liabilities incurred by City in and about such claim,
suit, action, penalty, damage or cause of action, the investigation thereof, or the
defense of any action or proceeding brought thereon, as a result of the operation
of Dubuque Greyhound Park and Casino; arising out of any violation of the license
granted by the Iowa Racing and Gaming Commission; for the failure by
Association to keep, maintain and abide by each and every covenant of this
Lease on its part to be kept and performed; or as a result of any negligence, act,
error or omission of Association, its employees or agents, or third party contractors;
Association shall maintain, throughout the term of this Lease, liability insurance as
set forth in City's standard Insurance Schedule for Lessees of City Property, as such
schedule may from time to time be amended, provided, however, that such increases in
required limits of coverage shall not exceed five percent (5%) for each succeeding year
during the term of this Lease Agreement, unless Association agrees to a greater increase.
Attached hereto is City's current Insurance Schedule.
16.0ther Insurance. During the term of this Lease, Association shall purchase and
maintain property insurance coverages in companies licensed to do business in the State
of Iowa, and maintaining an AM. Best rating of "A" or better, with a financial size category
rating of "FSC VIII". The City of Dubuque shall be included as a named insured. Coverage
shall be provided on the following basis:
a) Blanket coverage for buildings and contents, with an amount equal to at
least 90% of the insurable replacement value. Such insurable value shall
be determined annually by a qualified appraiser.
1) For purposes of this paragraph, additions, improvements, fixtures,
trade fixtures, machinery, and equipment attached or unattached to a
building shall be included in determining the total insurable value.
b) Coverage shall be provided on an "all risk" coverage that is at least as
broad as is provided by the ISO "Special Causes of Loss Form".
c) All coverages should be provided on a replacement cost basis.
d) An Agreed Value Endorsement shall be attached to the policy, subject to
annual agreed statements of values. The Agreed Value Endorsement
shall waive the coinsurance.
e) In the event of new construction, coverages shall be provided on as
broad, or a broader basis than those indicated above, with the amount of
insurance to be equal to the completed value of the new construction.
f) All policies shall be endorsed to provide a thirty day advanced notice of
cancellation, material change, or non-renewal of any coverage.
g) Coverage should include Ordinance/Law Coverage (the equivalent of ISO
endorsement CP0405), which covers:
1) Increased cost of construction from operation of building codes.
2) Demolition costs, and
3) Contingent liability from operation of building codes.
h) Coverage should also include:
1) Back-up of sewers and drains.
2) Personal property of employees.
3) Property in transit.
4) Computer equipment, including data and media.
5) Equipment Breakdown (Boiler & Machinery).
i) Business Income and Extra Expense
1) The business income limit shall be:
a) Net income (net profit or loss before income taxes) that would have been
earned or incurred; and continuing normal operating expenses incurred,
including payroll.
b) Extra Expense limit shall be: the necessary expenses incurred during
the period of restoration that would not have been incurred if there
had been no physical loss to the insured property caused by a
covered loss.
2) Coverage shall include an unlimited extended period of indemnity.
3) Coverage shall be on an agreed amount basis.
4) During any period of business interruption, and to the extent of the amounts
and limits of coverage afforded by Association's business interruption
coverages, Association shall continue to make all payments required by this
Lease Agreement based upon the average monthly rentals for the six-month
period prior to the commencement of the interruption, including but not
limited to rent, taxes, Depreciation and Improvement Fund payments, and
distributions.
A cancellation or lapse of such policy without an immediate approved replacement shall
be a material violation of this Lease.
17. Waiver of Subroqation. City and Association mutually release the other from liability
and waive all right of recovery against the other for any loss of or damage to the property of
each, including earnings derived therefrom, caused by or resulting from fire, casualty or
any other peril insured against and for which proceeds are payable under any insurance
policies maintained by the parties hereto, regardless of the cause of such loss or damage
and even though it results from some act or negligence of either party hereto, orone of the
party's agents, employees, customers or representatives. All fire and extended coverage
insurance policies shall carry an endorsement wherein the insurance company waives any
and all right of subrogation against either party to this Lease by reason of any such fire,
casualty or other peril insured against and for which proceeds are payable.
18. Termination. Either City or Association may terminate this Lease whenever the
other party has failed to comply with a material condition of this Lease.
The written notice of default delivered to the defaulting party shall specify the default
and state that this Lease shall be terminated and forfeited sixty (60) days after the date of
such notice unless such default is remedied within that sixty (60) day period.
Upon receipt of notice of termination by either party, neither party shall incur new
obligations for the terminated portion of the Lease after the effective date of the termination
and shall cancel as many outstanding obligations as possible.
19. Records, Reports and Filinqs. Association shall maintain, or cause to be
maintained, accurate and proper books of record showing complete and current entries of
all transactions relating to the operation of Dubuque Greyhound Park and Casino. Such
records shall be fully substantiated with documentation sufficient to satisfy standards for
certified audits.
Copies of all petitions, applications or communications submitted by Association to
any state regulatory commission or agency having jurisdiction in respect to any matters
affecting Dubuque Greyhound Park and Casino operations or the financial records thereof
shall be submitted simultaneously to the City Manager.
Representatives of City shall have the right to inspect such records, accounts and
books upon written request by the City Manager.
20.Annual Reports. Association shall file, no later than March 31 of each year, with the
City Clerk, two copies of an audit of the financial records of Association and Dubuque
Greyhound Park and Casino operation, prepared by an independent certified public
accountant, showing all receipts and disbursements, together with the comments of the
auditor concerning whether the books and records are being kept in compliance with this
Lease, regulations of the State of Iowa, and in accordance with recognized accounting
practices.
21.Conflict of Interest. City agrees that no officer, employee of City, or member of the
goveming body of City who exercises or has exercised any functions of responsibility with
respect to Dubuque Greyhound Park and Casino shall have any interest, direct or indirect,
in any contract or subcontract, or the proceeds thereof, for work to be performed in
connection with Dubuque Greyhound Park and Casino or in any activity or benefit
therefrom which is part of this project at any time during such person's tenure or for a
period of one year thereafter.
Association agrees that no member or officer who exercises or has exercised any
functions of responsibility with respect to Dubuque Greyhound Park and Casino shall have
any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, in
connection with any contracts awarded by Association or City for work to be performed or
services to be provided to Association or City in connection with Dubuque Greyhound Park
and Casino at any time during such person's tenure.
PART B - GROUND LEASE FOR PARKING AND DOCK
FACILITIES IN ICE HARBOR FOR RIVERBOAT GAMBLING
22. Term of Lease. The term of this Agreement commences on the 1 sl day of March
1991 and shall terminate at 11 :59 p.m. on December 31 , 2008.
23. The City agrees to lease to the Association, and the Association agrees to lease
from the City, the real estate illustrated (not to scale) on ExhibitAA attached hereto and by
this reference made a Part hereof, specifically Lots C and D, together with any and all
easements and appurtenant rights, and subject to easements, restrictions and appurtenant
rights of record. The parties mutually agree that an accurate legal description of the leased
premises will be set forth in ExhibitAA as soon as possible and, if necessary, a survey will
be made for this purpose.
Lot D shall consist of a strip of land extending fifteen feet from the high water line of
the Ice Harbor area adjacent to Lots A and B (as shown on Exhibit AA) to the water line,
subject to lease rights of Spirit of Dubuque, Inc. in existence on the effective date of this
Amendment and during any extension of the lease rights of the Spirit of Dubuque, Inc., to
and including' December 31,2008. Lot D shall further include the dock facilities currently in
existence and subleased by the Association to Greater Dubuque Riverboat Entertainment
Co., L.L.C. and its successors and assigns (hereinafter referred to as "GDREC") on the
effective date of this Amendment. The intent of this provision is to lease to the Association
the Ice Harbor frontage and all riparian rights along Lots A and B, so that the Association is
the lessee of any land, and the sole possessor of any riparian rights, which would be
required in order to construct or provide any docking facility on the Ice Harbor frontage
adjoining Lot A or Lot B. The City shall insert provisions in any leases or conveyances of
Lot A or Lot B or portions thereof to protect the Association's rights and to provide notice to
the City's lessees or purchasers of the Association's rights as set forth herein, and to
affirmatively prohibit GDREC from constructing or providing any docking facility on Ice
Harbor frontage adjoining Lot A or Lot B during the term of this Agreement.
Notwithstanding the lease of Parcel D by Association, City reserves unto itself and
on behalf of the general public the right to construct on all or part of Parcel D a walkway for
the use of the general public, which walkway when constructed shall be open at all times to
the general public, as well as a right of access over and across Parcel D for the ingress
and egress of passengers of pleasure craft to and from the Ice Harbor to and from the
public walkway. City further reserves unto itself a right of access over and across Parcel D
to the Ice Harbor and floodwall for the purpose of the inspection, repair and maintenance
of the Ice Harbor and floodwall. .
The Association may grant utility easements as may be necessary to provide utility
services to the premises. Any such easements shall be granted only with the written
consent of the City.
24. Rental. The Association shall pay the City an annual rent for the leased premises in
the sum of $1.00. Such rental payment shall be paid in the form of a check payable to the
City of Dubuque, Iowa, and shall be mailed or delivered to the City Treasurer, City Hall,
Dubuque, Iowa 52001, on or before May 1 of each year, beginning May 1, 1990.
25. Construction of Improvements. The City will make such improvements to the leased
premises as the parties mutually agree are necessary to accommodate a riverboat
gambling dock site facility. Such improvements shall include, but not be limited to, parking
areas, dock facilities, and general site improvements, and which improvements will be
substantially completed by the City by no later than April 1, 1991. It is mutually recognized,
however, that Dubuque casino Belle, Inc. shall be responsible for all costs of construction
of the building improvement to he constructed at the dock site and on real estate which is
not the subject of this Lease.
The City agrees to borrow, by not later than tile 31 st day of July, 1990, the sum of
Four Million Dollars ($4,000,000) (including capitalized interest), which borrowed funds
shall be evidenced by the City's issuance of Urban Renewal Tax Increment Revenue
Bonds and shall be the partial source of financing the improvements to be made by the
City as set forth above. Interest only payments shall be required during the initial 18
months from the issuance of the Urban Renewal Tax increment Revenue Bonds and
thereafter Principal and interest shall be amortized over a period of 10 years. City, as
borrower, shall have the right to prepay said revenue bonds at any time without penalty.
26. Loan Repayment Service Fund. The Association shall be responsible for and
assumes all debt service payments on the funds borrowed by the City under the terms of
paragraph 29 above, including all principal and interest, until said City loan has been fully
repaid. All such debt service payments shall be remitted by the Association to the City and
deposited by the City to an interest-bearing loan repayment service fund and shall be used
solely to pay when due principal and interest payments on the loan indebtedness incurred
by the City under the provisions of paragraph 29 above. In addition, all excess principal (if
any) and interest earnings on amounts on deposit in the loan repayment service fund shall
be paid and applied no less frequently than each six months, in addition to regularly
scheduled debt service payments, as a prepayment on the loan indebtedness incurred by
the City under the provisions of paragraph 29 above, which prepayments shall be applied
in inverse maturity order.
In the event the revenues from riverboat gambling are insufficient to pay when due
any of the debt service payments required un'der the Urban Renewal Tax Increment
Revenue Bonds referred to in paragraph 29 above, the amount of any such deficiency shall
be paid by the Association from its available revenues or other resources.
The termination of this Lease for any reason prior to March 31, 2004 shall not
relieve Association from its duty and obligation to make said debt service payments.
27.fReserved for future usel.
28. Deleted - Reserved for Future Use.
29. Conditions Precedent to Lease. The Ground Lease as set forth in this Part B shall
be effective only if all of following conditions are satisfied:
a) Issuance by the Iowa Racing and Gaming Commission to the Association and
Dubuque Casino Belle, Inc. of the required licenses to conduct riverboat
gambling but only if the license terms and conditions are acceptable to the
Association.
b) Compliance with all conditions set forth in paragraph 3 of that certain Agreement
between the Association and Dubuque Casino Belle, Inc., dated November 20,
1989.
c) Final approval and adoption of Resolution No. - - 90 of the City of Dubuque,
Iowa, which resolution approves this Lease Agreement.
If any of the foregoing conditions are not satisfied, this Lease Agreement shall be
null and void unless the unsatisfied condition is waived in writing by both the City and the
Association.
30. Limited Transferability of Lease Aqreement. It is understood and agreed by the
parties that the Association may sublease all or any portion of the leased premises to
GDREC, for use as parking and dock facilities incidental to the operation of an excursion
gambling boat pursuant to the Operating Agreement between GDREC and Dubuque
Racing Association, Ltd. Any such sublease in favor of GDREC shall be subject to the
consent of the City, which consent shall not be unreasonably withheld. Such sublease
shall be solely for the benefit of GDREC and shall remain in force and effect only for as
long as GDREC is the excursion gambling boat operator designated by the Association
and licensed by the Iowa Racing and Gaming Commission.
Except as set forth above, this Agreement shall not, in any event, be transferred,
assigned, sold, leased or otherwise disposed of, in whole or in part, by any means without
the prior written consent of the City as evidenced by a resolution duly adopted by the City
Council of the City of Dubuque and then only under such conditions as the City may
establish. This Agreement shall be a privilege to be held for the benefit of the public by the
Association.
The parties acknowledge that City has or may lease or otherwise dispose of Lots A
and B or portions thereof, subject to the rights of the Association as established herein, to
GDREC or other third parties, and that any interest of the Association in Lots A and B,
other than the fifteen-foot strip and riparian rights provided in this 7th Amendment, is hereby
terminated. The City shall require that GDREC or such other third party indemnify and hold
harmless the Association from any and claims, damages, causes of action or demands that
may arise as a consequence of GDREC's occupancy, use, or operation of Lots A and B or
portions thereof.
The City shall have the right to negotiate leases on or otherwise dispose ofLotsAor
B, subjectto the rights of the Association under this Seventh Amendment without approval
by the Association. City shall indemnify and hold harmless the Association for any and all
obligations that the Association may owe to any of its sublessees which the Association is
prevented from satisfying or executing as a result of the City's execution of any leases or
other disposition affecting Lots A or B or portions thereof. Additionally, the City shall
require that any such lessee or other grantee of the City as to Lots A or B or portions
thereof shall indemnify and hold harmless the Association from any and claims, damages,
causes of action or demands that may arise as a consequence of such lessee's or other
grantee's occupancy, use, or operation of Lots A or 8 or portions thereof.
31. License to Operate. It is intended that the Association shall maintain a valid license
issued by the Iowa Racing and Gaming Commission to conduct gambling games under
Chapter 99F of the Iowa Code or under any amendment to said statute. Nothing herein,
however, shall obligate the Association to maintain or renew any such license in the event
the Association's Agreement with GDREC dated February 22, 1993, including all
amendments thereto, is terminated for any reason.
32. Use of Facility. The Association warrants that it is validly existing and in good
standing under the laws of the State of Iowa as a nonprofit organization. The Association
warrants that, subject to the conditions set forth in paragraph 33 herein, it has the
necessary authority to conduct gambling games on an excursion riverboat as authorized
under Chapter 99F of the Iowa Code.
The leased premises and facilities thereon shall be used by the Association for the
sole purpose of conducting operations related to riverboat gambling and in accordance with
the terms and conditions of any license to be granted to the Association and by the Iowa
Racing and Gaming Commission unless the City consents in writing to any alternative use.
The Association agrees that it and any sublessee will at all times conduct operations
on the leased premises for use by the general public without regard to race, color, age,
disability, creed, religion, national origin, or sex; provided, however, that the Association
may prepare and promulgate rules for the purpose of regulating the admission of persons
onto any excursion gambling boat and for the further purpose of regulating the conducting
of gambling games upon a riverboat consistent with regulations of the Iowa Racing and
Gaming Commission.
33. Inspection of Premises. An authorized representative of the City, as designated in
writing by the City Manager, shall have the right to enter and shall have access to all
parking and dock facilities, whether or not events are in operation, at all reasonable times
and'for all reasonable purposes, in furtherance of the City's responsibility to the public for
the operation of the excursion gambling boat and riverboat gambling operations, but only
as long as any such entry does not unreasonably interfere with the Association's right to
quiet occupancy. The City's right to entry and access shall be subject to any applicable
rules and regulations of the Iowa Racing and Gaming Commission.
34. Maintenance of Facility. The Association agrees that, at all times during the lease
term, the Association shall, at its own expense, maintain, preserve and keep Lots C and D
in good repair and in good working order and condition, including but not limited to snow
removal, mowing, landscaping, sweeping of parking areas, lighting, cleaning, removal of
litter, and repair and replacement of surfaces The assumption by GDREC under a
sublease of the premises of any such obligation imposed on the Association in this
paragraph shall not relieve the Association of its obligation to the City hereunder.
35. Improvements. The Association shall not make any betterments or improvements
(excluding maintenance-type matters) to the parking and dock facilities in an amount
exceeding $10,000 without the prior written approval of the City. Notwithstanding the
foregoing, the City agrees and consents to the construction by the Association and GDREC
of a temporary facility and a permanent building facility for ticket sales upon the leased
premises; provided, however, that the location, size, and design of any such temporary and
permanent facilities, including related improvements, shall be subject to the written consent
of the City and shall be constructed and maintained at no expense to the City.
36. Liability, Insurance and indemnification. The Association shall indemnify and save
the City harmless from and against any and all claims, suits, actions,.penalties, damages
and causes of action arising during the term of this Lease, for any bodily injury, loss of life,
or damage to property sustained by any person, firm, corporation, other business entity or
the City:
a) as a result of the operation of the parking and dock facilities by the Association
or any sublessee;
b) arising out of violation of the license granted by the Iowa Racing and Gaming
Commission;
c) for the failure by the Association to keep, maintain and abide by each and every
covenant of this Lease on its part to be kept and performed;
d) as a result of any negligence, act, error or omission of the Association, its
employees or agents, or third party contractors;
e) for the costs, attorney fees, expenses and liabilities incurred by the City in and
about such claim, suit, action, penalty, damage or cause of action, the
investigation thereof, or the defense of any action or proceeding brought
thereon, and from and against any orders, judgments or decrees which may be
imposed therein or in the result thereof. The Association shall specifically
defend or subrogate, at the City's option, any action or proceeding brought
against the City as the result of any of the matters enumerated in this Lease at
the Association's sole cost and expense.
The Association or , as sublessee, shall maintain, throughoutthe term of
this Lease, liability insurance insuring both the City and the Association with regard to all
damages mentioned in this paragraph, in the minimum amounts of:
f) Five Hundred Thousand Dollars ($500,000) for bodily injury or death to anyone
person;
g) One Million Five Hundred Thousand Dollars ($1,500,000) for bodily injury or
death resulting from anyone accident;
h) Five Hundred Thousand Dollars ($500,000) for property damages resulting from
anyone accident; and
i) Five Million Dollars ($5,000,000) umbrella policy.
Upon the effective date of this Lease, the Association shall fumish proof to the City
Manager of the City of Dubuque that a satisfactory insurance policy has been issued by a
company acceptable to the City Manager, authorized and qualified to do business in the
State of Iowa. Such insurance policy:
j) shaJl be subject to the approval of the City Manager;
k) shall name the City as an additional insured;
I) shall contain a provision that a written notice of cancellation or material change
in the policy shall be delivered to the City Manager thirty (30) days in advance of
the effective date thereof; and
m) shall be filed with the City Manager on the effective date of this Lease.
A cancellation or lapse of such policy without immediate approved replacement shall
be a material violation of this Agreement.
37. Waiver of Subroqation. The City and the Association mutually release the other
from liability and waive all right of recovery against the other for any loss of or damage to
the property of each, including earnings derived therefrom, caused by or resulting from fire,
casualty or any other or any other peril insured against and for which proceeds are payable
under any insurance policies maintained by the parties hereto, regardless of the cause of
such loss or damage and even though it results from some act or negligence of either party
hereto, or one of the party's agents, employees, customers or representatives. All fire and
extended coverage insurance policies shall carry an endorsement wherein said insurance
company waives any and all right of subrogation against either party to this Lease by
reason of any such fire, casualty or other peril insured against and for which proceeds are
payable.
38. Termination. Either the City or the Association may terminate this Lease whenever
it is determined that the other party has failed to comply with the conditions of this Lease.
A written notice of termination by the City or the Association to the other party shall
specify the default and shall state that this Agreement shall be terminated and forfeited
sixty (60) days after the giving of such notice unless the default is remedied within said 60-
day period.
Upon receipt of a notice of termination by either party, neither party shall incur new
obligations for the terminated portion of the Lease after the effective date ofthe termination
and shall cancel as many outstanding obligations as possible.
Notwithstanding the foregoing, it is agreed that either party may terminate this Lease
Agreement upon thirty (30) days advance written notice in the event (a) the Association
fails to maintain or renew its license from the Iowa Racing and Gaming Commission to
conduct gambling games on an excursion gambling boat or (b) the Agreement between the
Association and GDREC dated February 22, 1993, including all amendments thereto, is
terminated for any reason.
39. Records, Reports, and Filinqs. The Association shall prepare and file all reports,
including financial reports, as required by Iowa law and the rules and regulations of the
Iowa Racing and Gaming Commission. In addition, the Association shall keep and
maintain such books and records and have such audits performed as required by Iowa law
and the Iowa Racing and Gaming Commission. All such reports, financial records, books
and audit information shall be furnished or provided for inspection, upon request, to the
City. In addition, the Association shall procure and maintain any surety bonds which may
be required of it by Iowa law or by the Iowa Racing and Gaming Commission.
40. Conflict of Interest. The City agrees that no officer or employee of the City, or
member of the governing body of the City who exercises or has exercised any function of
responsibility with respect to the excursion gambling boat operation and conducting of
gambling games, shall have any interest, direct or indirect, in any contract or subcontract,
or the proceeds thereof, for work to be performed in connection with the riverboat gambling
operation or in any activity or benefit therefrom which is part of the project at any time, all
as provided in Iowa Code Section 362.5, during such person's employment or tenure and
for a period of one year thereafter.
The Association agrees that no member or officer of the Association who exercises
or has exercised any function of responsibility with respect to the excursion gambling boat
operation and conducting of gambling games shall have any interest, direct or indirect, in
any contract or subcontract, or the proceeds thereof, in connection with any contract
awarded by the Association and/or the City for work to be performed or services to be
provided to the Association and/or the City in connection with the parking and dock
facilities, excluding contracts let prior to this Agreement, at any time during such person's
membership or tenure with the Association. .
PART C . PROVISION COMMON TO BOTH LEASES
The following provisions shall be applicable to each of the Leases set forth in
Part A and Part B above.
41. Distribution of Net Cash Proceeds. Association shall, at the end of each of its
fiscal years, distribute its net cash remaining after payment of the following
expenses:
a) expenses for normal replacement items;
b) required payments to the Depreciation and Improvement Fund under the
Dubuque Greyhound Park and Casino Lease (Part A) above;
c) required payments to the Depreciation and Improvement Fund under the
Parking and Dock Facility Lease (Part B) above;
d) provision for operating funds for Dubuque Greyhound Park and Casino;
e) required debt service payments, if any, for debt incurred with the consent
of City and for activities pursuant to Iowa Code Chapters 990 and 99F;
f) funds which Association is required to provide as collateral or otherwise
for purposes of obtaining and securing any bond required by the Iowa Racing
and Gaming Commission pursuant to Iowa Code Section 990.10 (1995), as
follows:
forty percent (40%) to City; thirty percent (30%) to charity; and
thirty percent (30%) to a reserve fund established by
Association. Upon termination of this Lease Agreement or
dissolution of the Association, seventy-five percent (75%) of
such reserve fund shall be distributed to City and the balance to
charity.
City shall use funds distributed to City under this paragraph in
the same manner and for the same purposes that City is
authorized to use rent payments under paragraph 3 of this
Agreement.
Decisions for expenditures from Association's reserve fund shall be
made solely by Association's Board of Directors. Monies deposited
in the Association's reserve fund are the sole property of
Association.
Any interest accruing on the balance in the reserve fund shall be
deposited to the reserve fund.
42. Representation. Association shall reserve three positions on its Board of Directors
for City Council members as appointed by the City Council in consultation with Association
and one position on its Board of Directors for the City Manager or the City Manager's
designee. Each of the appointments is subject to removal by Association in the event of
failure to comply with the resolutions and bylaws of Association.
Association shall reserve on its Executive Committee, or its governing committee by
whatever name such committee is designated, one position for the City Manager.
43. Public Purpose. City has determined that the operation of Dubuque Greyhound
Park and Casino and riverboat gambling accomplish a public purpose by promoting
community development and tourism forthe civic betterment and social welfare of the City
19
of Dubuque. Association has been designated by City as an appropriate nonprofit entity to
further and advance such purpose. Both parties acknowledge that Association's primary
purpose in the operation of Dubuque Greyhound Park and Casino and riverboat gambling
is to promote such community development, tourism, civic betterment and social welfare
for the benefit of the City of Dubuque and its citizens.
44. Nature of Relationship. The relationship created in this Lease Agreement is a
landlord-tenant relationship, and each party shall be liable for its own action and shall hold
the other harmless from any liability arising from the action of it or its agents or employees.
45. Compliance with Local and State Laws. Association, in the operation and
management of Dubuque Greyhound Park and Casino and in the operation of riverboat
gambling, shall comply with all applicable federal, state and local laws, ordinances and
regulations.
46. Protection of Association Property. City acknowledges that property, both real and
personal, owned or under the control of Association is entitled to all protection provided for
by law for the protection of private property even if located on public land unless otherwise
specified herein.
47. Notice. Both City and Association shall give prompt notice in writing to the other
party of any adverse development, financial or otherwise, which would materially affect the
operation of Dubuque Greyhound Park and Casino or riverboat gambling.
48. Riqht of Intervention. City and Association shall have the right of intervention in any
suit or judicial or regulatory proceeding to which the other is a party and which may affect
the rights of either party. Neither City nor Association shall oppose any such intervention.
49. Discrimination. In carrying out all of its activities, Association shall not discriminate
against any employee or applicant for employment because of race, creed, color, sex, age,
national origin, religion or disability. Association shall take affirmative action to assure that
applicants for employment are employed and that employees are treated during
employment without regard to their race, creed, color, sex, age, national origin, religion or
disability. Such action shall include, but not be limited to, the following: employment,
upgrading, demotion ortransfer; rates of pay or other forms of compensation; and selection
for training, including apprenticeships. Association shall post notices setting forth the
provisions of this nondiscrimination clause on employee bulletin boards. The notices shall
state that all qualified applicants will receive consideration for employment without regard
to race, creed, color, sex, age, national origin, religion or disability.
20
Association agrees and will undertake whatever affirmative measures are necessary
so that no person shall, on the grounds of race, creed, color, sex, age, national origin,
religion, degree of disability, be excluded from participation in, denied the benefits of, or be
subjeéted to discrimination under any program or activity associated with operation of
Dubuque Greyhound Park and Casino.
Association further agrees that these nondiscrimination provisions shall be
incorporated into any and all third party contracts.
50. Amendments. City or Association may request an amendment to this Lease
Agreement for the following purposes:
a) to take advantage of advancements in technology or methods which shall result
in the more effective or efficient operation of greyhound racing or riverboat
gambling;
b) to serve the public interest;
c) to change a provision for the better by removing or correcting a fault; or
d) to conform with a change in federal or state law or regulation, administrative
ruling or judicial decision;
e) to comply with any requirements of Iowa law and the Iowa Racing and Gaming
Commission, including all matters required in order to obtain, maintain and
renew the appropriate licenses required by state law.
The period of this Lease Agreement shall be extended or renewed only in an
extension or renewal mutually acceptable to both City and Association.
51.Severability. If any provisions of this Lease Agreement or any application thereofto
any person or circumstance shall be held invalid by judicial decision, the invalidity shall not
affect other provisions or applications of this Lease Agreement which can be given effect
without the invalid provision or application, and to this end and extent, the provisions ofthe
Lease Agreement are severable. In addition, the separate Leases set forth in Part A and
Part B shall be deemed severable and the invalidity, cancellation or termination of either
Lease shall not affect the other Lease.
If any provision of this Lease Agreement becomes invalid and results in a significant
loss of benefit to City or Association or both, as determined by either party, the party
claiming the loss may demand renegotiation. Such demand for renegotiation must be
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made and delivered to the other party within one year after the date both City and
Association have received notice of the invalidity. Within fifteen (15) days of receipt of
such a demand, City and Association shall meet and begin renegotiations. The
renegotiations shall be limited to reforming the Lease Agreement and restoring the party
suffering the loss to its former position with equivalent benefits. The reformed Lease
Agreement shall be effective from the date the invalidity took place, even if such
reformation is retroactive and involves a settlement for loss of past benefits.
The purpose of this paragraph is to maintain the continuity of the Lease Agreement
and conformity with the expressed intentions of the party when the LeaseAgreement was
formed.
52. Mailinq Addresses. Notices to the City and to the Association shall be sent by
certified mail as follows:
If to the City:
City Manager
City of Dubuque
City Hall - 50 West 13th
Dubuque, IA 52001
with a copy to:
Corporation Counsel
City of Dubuque
City Hall - 50 West 13th
Dubuque, IA 52001
If to the Association:
President
Dubuque Racing Association, Ltd.
P. O. Box 3190
Dubuque, IA 52001
with a copy to:
General Manager
Dubuque Greyhound Park
P. O. Box 3190
Dubuque, IA 52001
or to such other address as either party shall, by written notice, request.
53. Entire Aqreement. This Lease Agreement contains the entire agreement between
City and Association, and any statements, inducements or promises not contained herein
shall not be binding upon the parties.
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54. Memorandum for Recordinq. The parties mutually agree that this Lease Agreement
shall not be recorded but that if necessary or desirable for title purposes, a Memorandum
of Lease Agreement shall be executed and filed of record.
WITNESSES:
CITY OF DUBUQUE, IOWA
BY:
DUBUQUE RACING ASSOCIATION, LTD.
BY:
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Exhibit A
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Exhibit AA
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INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS 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 authorized to
do business in Iowa. All insurers shall have a rating of A of better in the current
A.M. Best Rating Guide.
2. All policies of insurance shall be endorsed to provide a thirty (30) day advance
notice of cancellation to the City of Dubuque if cancellation is prior to the
expiration date. This endorsement supersedes the standard cancellation
statement on the Certificate of Insurance.
3. Association shall furnish a Certificate of Insurance to the City of Dubuque, Iowa
for the coverage required in Paragraph 6 below. Such certificates shall include
copies of the following policy endorsements:
a) Thirty day notice of cancellation to the City of Dubuque.
b) Commercial General Liability policy is primary and non-contributing.
c) Commercial General Liability additional insured endorsement.
d) Governmental Immunity Endorsements.
e) Waiver of recovery under workers compensation.
4. Each certificate shall be submitted to the contracting department of the City of
Dubuque.
5. Failure to provide minimum coverage shall not be deemed a waiver of these
requirements by the City of Dubuque. Failure to obtain or maintain the required
insurance shall be considered a material breach of this agreement.
6. Association shall be required to carry the following minimum coverage/limits or
greater if required by law or other legal agreement:
a) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit
Products-Completed Operations 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
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This coverage shall be written on an occurrence, not claims made, form per
location. All deviations or exclusions from the standard ISO commercial general
liability form CG 0001 or Businessowners form BP 0002 shall be clearly identified.
Governmental Immunity Endorsement identical or equivalent to form
attached.
An additional insured endorsement identical or equivalent to ISO Form
CG 2026 or CG 2011 and include as additional insureds: "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."
b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory for Coverage A
Employers Liability:
$100,000 each accident
$100,000 each employee-disease
$500,000 policy limit-disease
Policy shall include an endorsement waiving right of recovery
against City of Dubuque.
c) UMBRELLA/EXCESS LIABILITY $ 4,000,000
LIQUOR OR DRAM SHOP LIABILITY $ 1,000,000
Coverage to be determined on a case-by-case basis by Finance Director.
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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.
Copyrighllnsurance Services Office. Inc. 1994
CG20261185
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CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
1.
Nonwaiver of Governmental Immunity. 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 from time to time.
2.
Claims Coverage. The insurance carrier further agrees that this policy of insurance
shall cover only those claims not subject to the defense of govemmental 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 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 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 Change in Policy. The above preservation of governmental immunities shall
not otherwise change or alter the coverage available under the policy.
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Prepared by Barry A Undahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
RESOLUTION NO. 238-04
DISPOSING OF INTEREST IN REAL PROPERTY BY LEASE WITH DUBUQUE RACING
ASSOCIATION, LTD.
WHEREAS, the City of Dubuque, Iowa (City) owns certain real property known as
Dubuque Greyhound Park and Casino; and
WHEREAS, City and Dubuque Racing Association, LTD., an Iowa nonprofit corporation
(Association), have previously entered into a lease for the Dubuque Greyhound Park and Casino
which lease has now expired; and
WHEREAS, City and Association now desire to enter into an Amended and Restated
Lease Agreement for the Dubuque Greyhound Park and Casino, which provides among other
things for a term terminating on March 31,2014; and
WHEREAS, on June 7, 2004, the City Council pursuant to notice published as required by
law held a public hearing on its intent to dispose of the foregoing. interest in real property and
overruled all objections thereto;
WHEREAS, the City Council believes it is in the best interests of the City of Dubuque to
approve the Amended and Restated Lease Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. The City Council of the City of Dubuque, Iowa, approves the Amended and
Restated Lease Agreement between the City of Dubuque and Dubuque Racing Association,
LTD.
Section 2. Mayor is hereby authorized and directed to sign this Resolution and the
Amended and Restated Lease Agreement on behalf of the City of Dubuque.
Passed, approved and adopted this 7th day of June 2004.
Terrance M. Duggan, Mayor
Attest: Jeanne F. Schneider, City Clerk