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County Historical Society & Audubon School D~~~E ~ck~ MEMORANDUM June 16, 2004 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Sublease Between Dubuque County Historical Society and National Audubon Society Dubuque County Historical Society Executive Director Jerry Enzler has requested approval of a Sublease with the National Audubon Society for use of the Society's dock. I respectfully recommend approval of the Sublease. M C¡~AL Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Jerry Enzler, Executive Director, Dubuque County Historical Society a ". c ~:: -..J .. , c=; c.> ~ ~ NATIONAL MISSISSIPPI RIVER MUSEUM & AQUARIUM IN ASSOCIATION WITH THE SM'THSONIAN INSTITUTION '~J June 13, 2004 i The Honorable Mayor and City Council City of Dubuque City Hall Dubuque, Iowa 52001 . , re: sublease between Dubuque County Historical Society and National Audubon Society Dear Mayor and Members of the City Council The Dubuque County Historical Society currently leases from the City of Dubuque most of the land and all of the docking space for the National Mississippi River Museum & Aquarium. The Society wishes to enter into a sublease with the National Audubon Society for the docking of the Audubon Ark (the Lily Belle), and the Society's lease with the City of Dubuque requires City approval for that sublease. During the development of the Museum & Aquarium, the Society worked with Audubon to secure two Federal grants, one for $240,000 from HUD and one for $389,000 from the Institute of Museum and Library Services. These federal funds were used jointly by Audubon and the Society to create exhibits and to create the Museum's floating dock which provides space for the Audubon Ark and also Museum vessels. The Audubon Ark is a national program whereby the Audubon's boat travels throughout the Upper Mississippi River providing educational programs. When the Audubon Ark is not travelling the river, it is docked at the Museum dock at the Ice Harbor. The Audubon Ark is typically docked in Dubuque for several week during the summer and most of the winter. This is an exemplary program, and the Museum is proud to be a partner with Audubon in this nationally recognized educational program. In order to secure its right of docking for the Audubon Ark, the National Audubon Society requests a sublease from the Society so that it can dock the Audubon Ark. We have agreed upon the terms of this proposed sublease with the National Audubon Society's attorney, the Dubuque County Historical Society's attorney, and City of 350 East 3rd Street Dubuque, Iowa 52001 563.557.9545 Fax 563.583.1241 www.riYermuseum,com A property o(the Dubuque County Historicol Society Dubuque attorney Barry Lindahl. Mr. Lindahl provided valuable review and comment, and all of Mr. Lindahl's recommendations were incorporated into the agreement. Therefore, the Society requests approval of the City of Dubuque for the sublease between the Dubuque County Historical Society and the National Audubon Society, tfully submitted DRAFT ~/t426/04 DOCK SUBLEASE AND OPERATIONS AGREEMENT THIS DOCK SUBLEASE AND OPERATIONS AGREEMENT (this "Agreement") made as of , 2004 by and between ilie DUBUQUE COUNTY HISTORICAL SOCIETY, INC., an Iowa not-for-profit corporation organized nnder Section 501(c)(3) ofilie Internal Revenue Code ("Sublessor"), having an address at 400 East Third Street, Dubuque, Iowa 52001, and NATIONAL AUDUBON SOCIETY, INC., a New York not-for-profit corporation organized nnder Section 501(c)(3) ofilie Internal Revenue Code, having an address at 700 Broadway, New York, New York 10003 ("Sublessee"). WITNESSETH: WHEREAS, Sublessor has entered into a certain lease, dated as of Inne 5, 2000, as tenant willi ilie City of Dubuque as landlord ("Landlord") for ilie Mississippi River National Mnseum and Aquatium, having an address of 400 East Third Street, Dubuque, Iowa 52001 (ilie "Premises"), and a copy of such lease is attached hereto as Exhibit A and incorporated herein by reference (ilie "Lease"); and WHEREAS, Sublessee desires to lease ftom Sublessor a portion of ilie Premises on ilie terms and conditions set forfu below. NOW, THEREFORE, in consideration of ilie mutual premises, covenants and conditions hereinafter set forfu, it is mutually agreed as follows: 1. Subleased Premises: Sublessor hereby leases to Sublessee, and Sublessee hereby [leases ftom Sublessor, ilie portion ofilie Premises being ilie souilieasterlv slip ofilie dock space and measuring 104 feet in lengili and 22 feet in widili as finilier described in Exhibit B IMCSEU!\'!: PLK'.SE DESCRIBE DOCKL'fC SP.'.CEj (ilie "Subleased Premises"), togeilier willi ilie right in common willi Sublessor to use ilie dock on which ilie Subleased Premises is located (ilie "Dock") and access to ilie Dock over iliat portion I of ilie Premises as described in Exhibit GB. IMT!SELl\1: PLE,'.SE PROVIDE ACCESS ~HP,j 2. Term: (a) The initial term (ilie "Initial Term", and togeilier willi any renewal term, the "Term") of iliis Agreement shall commence on r 1, 2004 (ilie "Commencement Date") and shall expire on r ~, 2014 (ilie "Expiration Date"). SHble"sce "hall ¡'e ætitled te -ew fuis /.gn3emæt for one additional If) ~ear term. Rene'::al fer SHea additional 10 year term shall bo ffiHOmatic BlIDjoet la tho "andition that £'*'I.soo., at the end of ilie Initial Teffi1, sliall be aeeup:;ing and ""ing the £Hblcased Promises for at least on. af tho HSOS set foJ11¡ in gectioR 1. The Parties agree iliat iliev will negotiate in good faiili regarding ilie possibility of a renewal of this Agreement. (b) If Sublessee remains in possession of ilie Subleased Premises after expiration of ilie Term, such possession by Sublessee shall be deemed to be a monili-to- monili tenancy terminable on iliirty (30) days prior written notice given at any time by eiilier party. All provisions ofiliis Agreement, except Section 2(a), shall apply to ilie monili-to-monili tenancy. 3. Rental Pavrnents: Sublessee shall pay rent in respect ofilie Subleased Premises in ilie amonnt of One Dollar ($1.00) per annum, payable on ilie Commencement Date and on each anniversary ofilie Commencement Date iliereafter during ilie Tenn. 4. Use: The Subleased Premises shall be used by Sublessee for (i) docking space for ilie 1958 Stemwheeler water vessel, Hull Identification No. 500545, named ilie "Lilly Belle" and a pontoon deck barge measuring 42 feet by 22 feet (such water vessel and barge, ilie "Lilly Belle"), and (ii) charitable, educational, cultural, scientific and research purposes, including, wiiliout limitation, providing environmental education and promoting conservation action ilirough programs, classes and oilier activities, togeilier willi uses incidenta1iliereto, consisting of office space, storage, exhibits, and fnndraising I events. Notwiilistanding anything else contained herein. Sublessee shall not erect anv permanent structures on ilie Subleased Premises. and anv office space, storage or exhibits maintained bv Sublessee shall be onboard ilie Lillv Belle or other vessels owned bv Sublessee. 5. Representations: Sublessor hereby warrants and represents iliat; ill.ilie Lease is in full force and effect;JiiL -al'!à-iliat it has fu11 right, power and auiliority nnder ilie Lease and oilierwise to enter into iliis Agreement: (iii1 it has provided Sublessee wiili true and complete copies of the Lease and all amendments iliereto: and liv) it shall provide Snblessee with kevs for Sublessee's access routes to the Subleased Premises.. 6. Landlord's Consent: The cousent of Landlord to this Agreement is attached I hereto as Exhibit C:}. 7. Utilities: Upon Sublessee's reQuest. Sublessor shall at Sublessor's expense, provide for telephone and cable service at the Subleased Premises. and Sublessee shall be responsible for paving for ilie use of such services. Sublessor shall be responsible for arranging and paying for alt-ilie utility services required by Sublessee in connection wiili battery power and bike pumPing on ilie Subleased Premises, iRel!llling, bHllimi1ed to, eloe!rieityan¡1 t<JI"I'hoRe service. All other utilities. including. but not limited to. heating, cooling. humidification. lighting and all oilier needs shall be ilie responsibility of Sublessee. 8. Trademark License Granted: Sublessor acknowledges iliat Sublessee is ilie owner of, in and to ilie corporate and trade name National Audubon Society, ilie trademark I AUDUBON, and ilie boat name "Lilly Belle", attached as Exhibit",D (collectively, ilie 2 "Licensed Marks"). Subject to ilie terms and conditions of this Agreement, Sublessee grants to Sublessor a nonexclusive Norili American license (ilie "License") to use ilie Licensed Marks solely in connection willi ilie operation of Sublessor's business on ilie Premises (ilie "Business"). The term of such License as granted above shall be forilie Term ofiliis Agreement, unless iliis Agreement shall oilierwise be terminated prior iliereto. Sublessor acknowledges iliat Sublessee retains all rights not expressly conveyed herennder, Sublessor may not grant sub-licenses, and ilie License granted herein is not transferable by operation oflaw or oilierwise, is indivisible and non-assignable and may not be encumbered wiiliout Sublessee's prior written approval. Sublessor shall not sell, assign, or oilierwise transfer any of its rights herennder wiiliout ilie prior written approval of Sublessee. Sublessor acknowledges iliat it shall not have ilie right to use ilie Licensed Marks except as specifically provided for herein, 9. Use Of Licensed Marks: Sublessor will submit to Sublessee's Director ofilie Upper Mississippi River Campaign or such Director's designee for approval all promotional, advertising or oilier uses ofilie Licensed Marks (ilie "Promotional Materials") prior to any public use. Following written approval by Sublessee, Sublessor may not make any material change to ilie Promotional Materials wiiliout Sublessee's prior written consent. Sublessor will not use ilie Licensed Marks or any mark similar iliereto, including but not limited to "National Audubon", "Audubon Society", or any oilier mark incorporating ilie word "Audubon" (sometimes collectively referred to herein as "Similar Marks") oilier 1han in connection willi ilie promotion, advertising, and operation ofilie Business pursuant to and during ilie term ofiliis Agreement. Sublessor is prohibited from using ilie Licensed Marks or any Similar Marks after ilie term of this Agreement. Sublessor will not in any manner represent iliat it has any interest in ilie Licensed Marks except as a licensee of Sublessee. Use ofilie Licensed Marks by Sublessor shall not confer upon Sublessor any right, title or interest in or to ilie Licensed Marks, but all such use by Sublessor shall inure to ilie benefit of Snblessee. The following legend shall appear on all advertising, sales and promotional materials or ilie like which bear eiilier or boili of ilie Licensed Marks, as applicable: "Audubon is a trademark of National Audubon Society, Inc." Whenever ilie Licensed Marks appear on such advertising, sales and promotional materials or ilie like, each such use ofilie Licensed Marks shall be followed by a TM; provided, however, iliat in ilie case ofilie use ofilie boat name "Lilly Belle" in all written materials and on any signage, such use shall always identify Sublessee as ilie owner of ilie Lilly Belle. Sublessor agrees iliat it will not advertise iliat ilie purchase of entry to ilie Premises or of Sublessee's merchandise in Sublessor's gift shop, if any, will benefit Sublessee. 10. Onerations on ilie Subleased Premises. Sublessee shall provide to Sublessor, on an annual basis willi weekly updates, a schedule (ilie "Schedule") ofilie Lilly Belle's operations, showing iliose dates and times during which ilie Lilly Belle will and will not be docked at ilie Subleased Premises, and, when ilie Lilly Belle is docked at ilie Subleased Premises, those dates and times during Sublessor's regular business hours on 3 which ilie Lilly Belle shall be open for tollS of its interior. Sublessor nnderstands and agrees iliat ilie schedule for tours ofilie Lilly Belle's interior shall be based on ilie availability of Sublessee's staff. Sublessor and Sublessee agree iliat ilie Lilly Belle is contemplated to be a stationary exhibit on ilie Subleased Premises, and iliat Sublessee is nnderno obligation to conduct trips forilie benefit of Sublessor's visitors on ilie Lilly Belle to and/or from ilie Subleased Premises. Sublessee agrees iliat Sublessor may use ilie Subleased Premises as docking space for oilier boats when ilie Lilly Belle is not located on ilie Subleased Premises; provided, however, Sublessor shall ensure iliat ilie Subleased Premises is available for use as docking space for ilie Lilly Belle at iliose times specified in ilie Schedule. In ilie event ilie Lilly Belle returns to ilie Subleased Premises I in advance ofilie dates or times specified in ilie Schedule, Sublessor shall use i!s-Ðest reasonable efforts to remove any boats occupying ilie Subleased Premises, and shall, in ilie interim, use reasonable effons to provide docking space for ilie Lilly Belle in a dock space iliat offers comparable dimensions, availability and visibility to ilie visitors to ilie Premises, and proximity to ilie teaching wetland area. 11. Management and Staff. The Lilly Belle will be managed on a day-to-day basis by Sublessee's staff. Sublessee's staff shall be employees of Sublessee and shall be subject to all of Sublessee's personnel policies and procedures and applicable laws and regnlatious. Sublessee will not be obligated to employ any employees of Sublessor presently employed at ilie Premises. 12. Programming: Special Events: Fees. (a) All progrannning on ilie Lilly Belle or on ilie Subleased Premises will be developed and implemented by Sublessee's staff. Programming will include enviromnental education programs, volunteer training, seminars and workshops, native plant demonstratious, habitat restoration projects and wildlife monitoring. Sublessor and Sublessee acknowledge ilieir intent to jointly develop programming iliat is consistent willi each party's mission and does not conflict willi eiilier party's own programming, special events, and operating schedule, including, but not limited to, ilie Schedule. (b) Sublessee may conduct special events ("Special Events") on ilie Subleased Premises, including, wiiliout limitation, fnndraising events for ilie benefit of Sublessee, provided iliat Sublessee shall give Sublessor 30 days prior written notice of any such Special Event and Sublessee shall provide for and assmne all costs and expenses for any permits required by government auiliorities, or additional personnel or facilities necessary to accommodate such Special Event. Sublessor shall not have any right to any income derived from such Special Events. The dispensing of alcohol shall not be pennitted on ilie Subleased Premises except in connection willi such Special Events. If alcohol is dispensed. Sublessee shall be solelv res1?onsible for obtaining all licenses and pennits in connection ilierewiili. and shall obtain dram shop insurance iliat names Sublessor and ilie City as additional insureds. Sublessor shall deliver to Sublessee a list of pre-approved caterers, and, in ilie event food is served at Sublessee's Special 4 Events, Sublessee shall use a caterer from Sublessor's pre-approved list. Sublessor agrees iliat Sublessee may utilize ilie Subleased Premises for ilie placement of temporary structures in connection willi such Special Events, including, but not limited to, tents. (c) Sublessee shall not have any right to income collected by Sublessor from entrance fees paid by visitors to the Premises, and Sublessee shall not charge visitors to ilie Premises iliat pay an entrance fee to Sublessor any fees for Sublessee's programming and events on ilie Subleased Premises; provided, however, iliat: (i) any individual attending Sublessee's Special Events shall not be charged any entrance or oilier fees by Sublessor; and (ii) Sublessee may, in its discretion and during iliose times when ilie Lilly Belle is not docked at ilie Subleased Premises, offer and charge a fee for programming, including tours and trips on ilie Lilly Belle iliat do not originate nor terminate at ilie Subleased Premises, and Sublessor shall not have any right to any income derived ftom such programming. (d) All programming on ilie Lilly Belle orilie Subleased Premises will be offered during Sublessor's regular business hours, except for any of Sublessee's Special Events, which may be offered outside ofilie regular business hours for ilie Premises. 13. Reoairs and Maintenance' SecuritY. Sublessor shall maintain ilie Subleased Premises and ilie Dock in good order and condition and shall be responsible for ilie cost and performance of all maintenance, service and repair willi respect to ilie Dock, including, any dredging iliat may be necessary. Sublessor shall maintain ilie current level of security for ilie Dock and ilie Lilly Belle at all times, including a fence surronnding ilie ¡land portion of ilie Premises and a seeurity person Ðfl duty 24-honrs-a-àay securitY svstem; provided, however, iliat Sublessee shall be responsible for any additional security for Sublessee's Special Events taking place outside ofilie regular business hours for ilie Premises, pursuant to Section 12. 14. Informational Kiosk. Sublessor shall install deaign, fer appro,'al by £ublcS5e-e--,an informational kiosk (ilie "Kiosk"), to be ¡eeated on ilie Premises in a place designated by Sublessee iliat shall be a central location in ilie paili of visitor foot traffic. Once approved by SHbleDsee, ~Hbl.SDer shall com!ruct the Kiosk in accordance with DHC.!J. àeDign and in conGHkatien "4th, anà ""bjeet te the appro ,al of, SHbleGsee. The Kiosk shall be dedicated to information specific to ilie Lilly Belle, including ilie Lilly Belle's Schedule, to Sublessee's Upper Mississippi River Campaign and to Sublessee's oilier business I operations. Sublessor shall be responsible -for maintaining ilie Kiosk in good condition and repair. All materials to be displayed on, or distributed to ilie public from ilie Kiosk including, but not limited to siguage, brochures, videos, and photographs, shall be supplied by Sublessee or, if supplied by Sublessor, shall be subject to ilie terms of Section 9. 5 15. Vending. Sublessee shall not sell any food or merchandise from ilie Subleased Premises or ilie Lilly Belle while ilie Lilly Belle is docked at ilie Subleased Premises. Sublessor agrees to consider, if requested by Sublessee, ilie selling of Sublessee's merchandise in Sublessor's gift shop, located on ilie Premises, according to tenns and conditions to be mutually agreed upon by Sublessor and Sublessee. When ilie Lilly Belle is not docked on ilie Subleased Premises or during any of Sublessee's Special Events, Sublessee may. in its discretion. sell æ¡y-food or merchandise æ its æseretioR and Sublessor shall not have any rights to any income derived iliereITomf: provided iliat anv sale of food or merchandise during Sublessee's Special Events while ilie Lillv Belle is located at ilie Subleased Premises shall occur onboard ilie Lillv Belle 1. [TO BE APPROVEDl 16. Relocation. In ilie event Sublessor is required by law to reconfigure ilie arrangement of boats on ilie dock at ilie Premises, Sublessor shall use its best efforts to provide relocated dock space offering comparable availability and visibility to visitors to ¡ilie Premises and proximity to ilie teaching wetland area. In additioR the parties mav. ITom time to time and as mutuallv agreed in writing. temporarilv relocate the dock space available for Sublessee's use. At its option, Sublessee may request an amendment of this Agreement to incorporate ilie relocated dock space. 17. Fnnding. Sublessor acknowledges iliat Sublessee has obtained ilie following federal appropriations: (a) $240,000 ITom ilie U.s. Department of Housing and Urban Development (ilie "HUD Grant") and (b) $389,000 ITom ilie Department ofHealili and Human Services, ilirough a grant ITom ilie Institute for Museum Services (ilie "DHHS Grant", and togeilierwiili ilie HUD Grant, ilie "Grants"). The terms and conditions ofilie I Grants, attached hereto as Exhibit El', are incorporated herein by reference. All funds nnder ilie Grants will be deposited into Sublessee's bank acconnt and will be held and applied by Sublessee in accordance willi ilie terms of ilie Grants. Sublessor acknowledges reimbursement of$120,000 nnder ilie HUD Grant for construction ofilie Dock and agrees iliat it shall apply any additional reimbursements under ilie Grants as follows: (a) willi respect to ilie HUD Grant, Sublessee shall reimburse Sublessor $10,000 forilie design and construction ofilie Kiosk by Sublessor; and (b) willi respect to ilie DHHS Grant, Sublessee shall reimburse Sublessor $194,500 for educational exhibits about migratory birds and waterfowl and ilieir habitat, such exhibits to be prepared by Sublessor and approved by Sublessee. Sublessor shall comply willi Articles I, II, III, and VII (C) ofilieHUD Grant and Sections 5, 6 (a)-(f) and (h), 8, 9, and 10 ofilieDHHS Grant and shall assist Sublessee in preparing ilie reports required nnder Articles IV and V ofilie HUD Grant and 6 (g) ofilie DHHS Grant. Sublessor shall cooperate willi and assist Sublessee to obtain funding nnder ilie Grants and, if necessary, to extend ilie Grants. 18. Insurance: Sublessee shall procure and maintain, during ilie Term ofiliis Agreement, insurance iliat complies ,viili ilie requirements set forili in Exhibit F. eomprohOflsive gellßffilliability æsur¡mee with a eombiBeà single limit 0[$1,000,000 per oeCCUIT{JOOe, aaà ",,"eDS liability insllfffilC€ '!,ith a limit of $1 ,GGG,GGO per oomm-€llC€ aar1 aggregate. Sublessee shall deliver to Sublessor certificates of insurance on standard 6 forms issued by Sublessee's insurers or auiliorized representatives of Sublessee's insurers, naming Sublessor and Landlord as additional insureds, and such certificates of insurance shall be sufficient to evidence coverage. In addition to ilie insurance coverages listed in Exhibit F, Sublessee shall maintain such oilier insurance coverages as Sublessor shall reasonablv deem advisable from time to time for protection against claims, liabilities and losses arising out of or connected willi Sublessee's use ofilie Subleased Premises. provided iliat such insurance coverages are available to Sublessee at connnerciallv reasonable rates. 19. Subordination: This Agreement is hereby expressly made subject and subordinate to ilie Lease and shall be upon ilie same terms, covenants and conditions provided in ilie Lease as applicable to ilie Subleased Premises, except for such terms as by ilieir nature are inapplicable to, contradicted by, or inconsistent willi iliis Agreement, and except for Articles V, VI and X ofilie Lease. Sublessee acknowledges receipt of a copy ofilie Lease. Sublessee acknowledges iliat its possession and use ofilie Subleased Premises shall at all times be subject to ilie rights of Landlord set forili in ilie Lease. Except as oilierwise expressly provided in this Agreement, ilie provisions of ilie Lease are deemed included herein and made a part hereof ("Sublessor" being substitnted for "Landlord" or "Lessor"; "Sublessee" being substitnted for "Tenant" or "Lessee"; "Subleased Premises" being substitnted for "Premises" or "Demised Premises"). In ilie event of any inconsistency between ilie provisions of this Agreement and ilie provisions of ilie Lease as incorporated herein, ilie provisions of this Agreement shall control as between Sublessor and Sublessee, 20. Obligations nnder Lease: For ilie purposes ofiliis Agreement only, Sublessee hereby assumes all ofilie responsibilities and obligations to be performed on ilie part of ilie Sublessor as tenant nnder ilie Lease willi respect to ilie Subleased Premises for ilie Term (oilier 1han iliose provisions of ilie Lease specifically excluded from this Agreement and ilie obligations to pay rent and oilier amonnts which are governed by this Agreement). Sublessee covenants and agrees not to do, permit or allow any act which would, might or does violate, or constitnte a breach of or a default nnder ilie Lease or which would, might, or does make Sublessor liable for any damages, claim or penalty nnder ilie Lease. 21. Default and Termination: Upon any breach of any ofilie terms, covenants, or agreements to be performed or observed nnder iliis Agreement by Sublessee or nnder ilie Grants by Sublessor, and continnance of such breach for 30 days after written notice from I ilie non-breaching party or Landlord explaining ilie nature of such breach, or, ifilie breach is of such a character as cannot be reasonably cured wiiliin such 30 day period, failure by ilie breaching party to take such action as reasonably can be taken toward I curing ilie same, ilien, (i) in ilie event of a breach nnder iliis Agreement, Sublessor ill: Landlord may exercise any of ilie rights given to ilie Landlord nnder ilie Lease, provided iliat if any such breach relates to a provision ofilie Lease, ilien Sublessee shall be entitled to ilie cure period provided in ilie Lease for such breach decreased by 25%; or (ii) in ilie event of a breach nnder ilie Grants, Sublessor shall refund to Sublessee any funds previously reimbursed to Sublessor by Sublessee, Sublessee may refuse any furfuer 7 reimbursements, and Sublessee shall have ilie option of terminating this Agreement. In ilie event ilie Lease is terminated pursnant to its terms prior to ilie expiration of the term of this Agreement, iliis Agreement shall automatically cease and terminate as ofilie date upon which ilie Lease is terminated. 22. Indemnification: Each party hereto will protect, indemnify, and save harmless ilie oilier party (ilie "Indemnified party") ITom and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, wiiliout limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against ilie Indemnified party by reason of ( a) any accident, injury to, or deaili of persons or loss of or damage to property occurring on or about ilie Premises during ilie term of this Agreement and resulting ITom any act or omission of such party or anyone claiming by, ilirough or nnder such party during ilie Term of this Agreement; and (b) any failure on ilie part of such party to perform or comply willi any ofilie terms of this Agreement or iliose terms of ilie Lease or ilie Grants as incorporated herein. In case any action, suit, or proceeding is brought against an Indemnified Party by reason of such occurrence, such party will, at its expense, resist and defend such action, suit or proceeding or cause ilie I same to be resisted and defended by connsel approved by an Indemnifie. d. Party [onlv after first tendering said to partv ITom which indemnity is soughtl. [PLEASE CLARIFYl 24. Notices: All notices, demands, submissions and consents required herennder shall be in wtitingand shall be deemed given if sent by overnight courier, by facsimile, upon receipt of facsimile confirmation page indicating a successful transmission of ilie entire facsimile, or by certified mail, return receipt requested postage prepaid to ilie addresses shown above. 25. Waiver: One or more waivers of any covenant or condition by Sublessor shall not be constrned as a waiver of a subsequent breach ofilie same or any oilier covenant or condition, and ilie consent or approval by Sublessor to or of any act by Sublessee requiring Sublessor's consent or approval shall not be constrned to waive or render unnecessary Sublessor's consent or approval to or of any similar subsequent similar act by Sublessee. 26. Effect: This Agreement shall be binding upon ilie parties hereto, ilieir heirs, successors and permitted assigns, and may not be altered, amended, terminated or modified except by written instrument executed by each of ilie parties hereto. 27. No Assignment of Lease Created: Sublessor and Sublessee agree iliat iliis Agreement does not create any direct Lease between Landlord and Sublessee, iliat Sublessee's rights are derivative ITom ilie Sublessor ilirongh ilie Lease and iliat Sublessor remains fully liable to Landlord for all obligations and covenants contained in ilie Lease except as expressly modified by iliis Agreement. Wiiliout Sublessor's prior written consent, which consent shall not be unreasonably wiiliheld, Sublessee may not sublet all 8 or any part of ilie Subleased Premises or assign this Agreement or permit any oilier person or entity to use ilie Subleased Premises. [SIGNATURE PAGE FOLLOWS] 9 IN WITNESS WHEREOF, ilie parties have caused iliese presents to be executed ilie day and year first above written. SUBLESSOR: DUBUQUE COUNTY HISTORICAL SOCIETY, INC. By: ~Jerome Enzler ~Executive Director SUBLESSEE: NATIONAL AUDUBON SOCIETY, INC. By: Monique Quinn Chief Financial Officer 10 Exhibit A Lease 11 Exhibit B DeseriptiaB afSBbleaseå Premises 12 ExhiBit C Description of Access Route to Dock Access to ilie Subleased Premises for Sublessee shall be: (a) during business hours for ilie Premises. ilirough ilie norili (main) entry ofilie Premises: and (b) during iliose times outside ofilie business hours of the Premises and during events sponsored solelv bv Sublessee through the east access gate. 13 Exhibit CD Landlord Consent 14 Exhibit ED Licensed Marks 15 Exhibit Eli' Grants 16 Exhibit F Insnrance Requirements [To Be Attached: Insurance Schedule A [¡-om Museum Second Amendment to Lease. dated March 16 20041 17