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Dubuque River Rides Lease i5(;~~E ~~~ MEMORANDUM April 22, 2005 c-': ...;, TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Dubuque River Rides Lease Attached is a proposed lease between the City of Dubuque and Dubuque River Rides. The terms of the lease are as follows: 1. Lease term is for five years; 2. Lease rate of $9,000 for year one and for years 2-5 the rate shall be the base adjusted by the Consumer Price Index (CPI); 3. Lessee shall limit the number of vessels to five and to the layout as shown on Exhibit A; 4. In the event that the City requires relocation of the vessels on the leased premises, the City shall be responsible for the cost to relocate utilities; 5. Lessee shall be permitted to include catering service as part of the restaurant operation to the list of allowable uses on the premises; and 6. Patrons of Dubuque River Rides can park in the City lot at the southeast corner of the North Port of Dubuque and if the City displaces these spaces, 82 alternate parking spaces must be provided within 1,200 feet. I concur with the recommendation and respectfully request Mayor and City Council approval. fltj c~/lL MIchael C. Van Milligen MCVM/cs Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Gus Psi hoyos, City Engineer Ken TeKippe, Finance Director LICENSE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND DUBUQUE RIVER RIDES, INC. THIS LICENSE AGREEMENT (hereinafter called the "License"), executed in duplicate, made and entered into this dS*l day of Afro' r , 2005 by and between THE CITY OF DUBUQUE, IOWA (hereinafter called the "City") whose address for the purpose of this License is City Hall, 50 West 13th Street, Dubuque, Iowa 52001 and DUBUQUE RIVER RIDES, INC., (hereinafter called the "River Rides") whose address for the purpose of this License is P.O.&ox l.l'7ln, Dubuque, Iowa 52001. 1. PREMISES AND TERM. The City, in consideration of the rents herein reserved and of the agreements and conditions herein contained, on the part of the River Rides to be kept and performed, Licenses unto the River Rides and River Rides, in consideration of the agreements, representations and conditions herein contained, hereby rents and Licenses from City, according to the terms and provisions herein, the following described real estate, situated in Dubuque County, Iowa: See Exhibit A attached hereto and by this reference made a part hereof (the Licensed Premises) with the improvements thereon and all rights, easements and appurtenances thereto belonging (hereinafter called "Licensed Premises"), for a term commencing at midnight of the day previous to the first day of the License term, which shall be on the 1 st day of , 2005, and ending at midnight on the last day of the License term, which shall be on the _ day of , 2010, upon the condition that the River Rides pays rent therefore, and otherwise performs as in this License provides. During the License Term, City reserves the right in its sole discretion to reconfigure the Licensed Premises. In the event City reconfigures the Licensed Premises requiring the relocation of River Rides' facilities, such relocation shall be at City's cost. City grants to River Rides during the License Term an easement for ingress and egress to the Licensed Premises as shown on Exhibit A. City grants to River Rides during the License Term permission to install one sign approved by City as shown on Exhibit A. 2. RENTAL. River Rides agrees to pay to City as rental for said Term, as follows: First Year of License term (2005-2006): $ 9,000.00 Second Year of License Term (2006-2007): $ 9,000.00 x CPI Index CPllndex .2006 ,2005 Third Year of License Term (2007-2008): $ 9,000.00 x CPllndex CPI Index .2007 ,2005 Fourth Year of License Term (2008-2009): $ 9,000.00 x CPI Index CPI Index .2008 ,2005 Fifth Year of License Term (2009-2010): $ 9,000.00 x CPI Index CPllndex .2009 ,2005 CPI Index means the Consumer Price Index for All Urban Consumers - U.S. City Average, published by the U.S. Department of Labor, Bureau of Labor Statistics. All sums shall be paid in advance beginning on the _ of 2005, and not later than the first day of of each year thereafter at the address of City, as above designated, or at such other place in Iowa, or elsewhere, as the City may, from time to time, designate in writing. 3. POSSESSION. River Rides shall be entitled to possession on the first day of the term of this License, and shall yield possession to the City at the time and date of the close of this License term, except as herein otherwise expressly provided. Should City be unable to give possession on said date, River Rides' only damages shall be a rebating of the pro rata rental 4. USE OF PREMISES. It is contemplated between the parties that the Licensed Premises shall be used by River Rides for the following uses only: riverboat rides; serving of meals and/or beverages on River Rides' riverboats; River Rides' offices and training; and a restaurant with bar, including catering service but only as a part of the operation of the full-service restaurant, on the barge and a gift shop on the barge, both shown on Exhibit A. 2 The following vessels as shown on Exhibit A and no other others without the prior written consent of the City Manager shall be permitted in the Licensed Premises: . Miss Dubuque . Spirit of Dubuque . Offices and Training Barge . Docking Barge . Restaurant and gift shop barge 5. QUIET ENJOYMENT. City covenants that its estate in said premises is fee simple; and that the River Rides on paying the rent herein reserved and performing all the agreements by the River Rides to be performed as provided in this License, shall and may peaceably have, hold and enjoy the Licensed Premises for the term of this License free from molestation, eviction or disturbance by the City or any other persons or legal entity whatsoever. 6. CARE AND MAINTENANCE OF PREMISES. (a) River Rides takes said premises in their present condition except for any environmental hazard or condition existing on the Licensed Premises. (b) CITY'S DUTY OF CARE AND MAINTENANCE. City shall have no duty of care or maintenance, including no duty to dredge the Licensed Premises or the Ice Harbor, except any environmental hazard or condition existing on the Licensed Premises. (c) RIVER RIDES' DUTY OF CARE AND MAINTENANCE. River Rides shall at all times during the term of this License, at River Rides' own costs and expense, keep and maintain the Licensed Premises and all improvements and vessels in a condition consistent with other similarly classed operations, including but not limited to not permitting broken windows, deterioration of the exterior of vessels or structures, and peeling paint. City may, at its discretion, upon reasonable notice to River Rides, conduct an inspection of the Licensed Premises to determine River Rides's compliance with this Article 6. (d) River Rides will make no unlawful use of said premises and agrees to comply with all city ordinances, and the laws of the State of Iowa and the Federal government. 7. IMPROVEMENTS. On delivery of possession of the Licensed Premises to River Rides, River Rides shall not construct on the Licensed Premises any structures, buildings or other improvements except as agreed upon in writing by City. City shall have the right in its sole discretion to approve the design, appearance and quality of any such Improvements. 3 River Rides shall not encumber by mortgage, deed of trust, or other instrument, its Licensehold interest and estate in the Licensed Premises. 8. ICE HARBOR URBAN RENEWAL DISTRICT DESIGN STANDARDS. River Rides agrees to comply in all respects with the Ice Harbor Urban Renewal District Design Standards as it currently exists or might hereafter be amended as such Standards apply to the Licensed Premises. 9. UTILITIES AND SERVICES. River Rides, during the term of this License, shall pay, before delinquency, all charges for all utilities and services, including garbage disposal and trash disposal. 10. SURRENDER OF PREMISES AT END OF TERM - REMOVAL OF FIXTURES. (a) River Rides shall, on the last day of the term of this License or upon any termination of this License hereof, surrender and deliver up the Licensed Premises without fraud or delay and in good order, condition, and repair, free and clear of all lettings and occupancies, free and clear of all liens and River Rides shall remove any or all of the Improvements erected by River Rides located on the Licensed Premises and restore the Licensed Premises to the condition it was in immediately prior to the commencement of the term of this License. (b) HOLDING OVER. Continued possession, beyond the expiratory date of the term of this License, by the River Rides, coupled with the acceptance of the specified rental by the City and a written agreement by City for an extension of this License shall constitute a month to month extension of this License. 11. ASSIGNMENT AND SUBLETTING. This License may not be assigned nor the Licensed Premises sublet by the River Rides without the prior written consent of City, which consent shall not be unreasonably withheld. River Rides shall provide City with a copy of any such assignment or sublease at the time of requesting City's consent and such assignment or sublease shall contain a provision that the assignee or sublessee assumes all of the obligations in this License Agreement and agrees to be bound by the terms hereof. 12. TAXES. (a) River Rides agrees to pay to City as additional rent at the time of the payment of the Rental in Par. 2 an amount equal to real estate taxes upon the real estate of the Licensed Premises for the term of this License. (b) River Rides further agrees to pay all other lawful taxes, rates, charges, levies and assessments, general and special, of every name, nature and kind, whether now known or hereafter created which may be taxed, charged, assessed, levied or imposed upon said real estate, any buildings or improvements thereon which may be taxed, charged, assessed, levied or imposed upon the Licensehold estate hereby created during the term hereof, and all such taxes, rates, charges, levies and assessments shall be paid by River 4 Rides as they become due and before they become delinquent, subject, however, to the limitations and obligations of City set forth in this License. (c) River Rides agrees to timely pay all taxes, assessments or other public charges levied or assessed by lawful authority (but reasonably preserving River Rides' rights of appeal) against its personal property on the premises, during the term of this License. (d) Nothing herein shall require River Rides to pay any of City's income taxes, surtaxes, excess profit taxes or any taxes on the rents reserved to City hereunder. (e) River Rides shall at all times have the right to contest in good faith, in any proper proceedings, in the name of City if necessary, the payment or satisfaction of any such taxes, assessments, rates, charges or levies so agreed to be paid by River Rides, if the validity thereof, or the right to assess or levy the same against or collect the same from said Licensed Premises or improvements, shall be disputed. Upon the conclusion of any such suit or proceedings, or not less than three (3) months prior to the date when the right to redeem therefrom expires, whichever will be the earlier, River Rides will promptly pay and satisfy such disputed tax, assessment or other charge as finally determined, together with all expenses, costs and attorneys' fees whatsoever incurred in connection therewith. 13. INSURANCE. (a) City and River Rides will each keep its respective property interests in the premises and its liability in regard thereto, and the personal property on the premises, reasonably insured against hazards and casualties; that is, fire and those items usually covered by extended coverage; and River Rides will procure and deliver to the City a certification from the respective insurance companies to that effect. Such insurance shall be made payable to the parties hereto as their interests may appear, except that the River Rides' share of such insurance proceeds are hereby assigned and made payable to the City to secure rent or other obligations then due and owing City by River Rides. (b) Neither City nor River Rides will do or omit the doing of any act which would vitiate any insurance, or increase the insurance rates in force upon the real estate improvements on the premises or upon any personal property of the River Rides upon which the City by law or by the terms of this License, has or shall have a lien. (c) WAIVER OF SUBROGATION. Notwithstanding any other provision in this License to the contrary, both City and River Rides hereby waive any and all rights of recovery, claim, action or causes of action against each other, their agents, officers and employees, for any loss or damage that may occur to the Licensed Premises, including improvements thereon, or to any property of either 5 party maintained on the Licensed Premises by reason of fire, casualty, the elements, or any other cause of physical damage which could be insured against under the terms of standard fire and extended overage insurance policies, regardless of cause or origin and regardless of the negligence of the parties hereto, their agents, officers, invitees and employees. Each of the parties hereto shall secure such a waiver of subrogation endorsement from its respective insurance carriers and provide, upon request, a copy of such insurance endorsement to the other party. (d) INSURANCE PROCEEDS. City shall settle and adjust any claim against any insurance company under its said policies of insurance for the premises, and said insurance monies shall be paid to and held by the City to be used in payment for cost of repairs or restoration of damaged building, if the destruction is only partial. 14. INDEMNITY AND LIABILITY INSURANCE. River Rides shall defend, indemnify, and save harmless City from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against City by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Licensed Premises during the term of this License and resulting from any act or omission of River Rides or anyone claiming by, through, or under River Rides during the term of the License; and (b) any failure on the part of River Rides to perform or comply with any of the terms of this License. In case any action, suit, or proceeding is brought against City by reason of such occurrence, River Rides will, at River Rides' expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by City. River Rides further covenants and agrees that it will at its own expense procure and maintain insurance as set forth in City's standard Insurance Schedule for Lessee's of City Property as such Schedule may from time to time be amended. City's current Insurance Schedule is attached hereto. City will defend, indemnify, and save harmless River Rides from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against River Rides by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Licensed Premises during the term of this License and resulting from any act or omission of City or anyone claiming by, through, or under City during the term of the License; and (b) any failure on the part of City to perform or comply with any of the terms of this License. In case any action, suit, or proceeding is brought against River Rides by reason of such occurrence, City will, at City's expense, resist and defend such action, suit, or 6 proceeding, or cause the same to be resisted and defended by counsel approved by River Rides. 15. FIRE AND CASUAL TV. PARTIAL DESTRUCTION OF PREMISES. (a) In the event of a partial destruction or damage of the Licensed Premises, which is a business interference, that is, which prevents the conducting of a normal business operation of River Rides or the purposes identified above and which damage is reasonably repairable within sixty (60) days after its occurrence, this License shall not terminate but the rent for the Licensed Premises shall abate during the time of such business interference or be refunded if previously paid. In the event of partial destruction, River Rides shall repair such damages within sixty (60) days of its occurrence unless prevented from so doing by acts of God, the elements, the public enemy, strikes, riots, insurrection, government regulations, city ordinances, labor, material or transportation shortages, or other causes beyond River Rides' reasonable control. (b) ZONING. Should the zoning ordinance or any other action of the City make it impossible for River Rides, using diligent and timely effort to obtain necessary permits and to repair and/or rebuild so that River Rides is not able to conduct its business on these premises, then such partial destruction shall be treated as a total destruction as in the next paragraph provided. (c) TOTAL DESTRUCTION OF BUSINESS USE. In the event of a destruction or damage of the Licensed Premises so that River Rides is not able to conduct normal business operations, specifically including the purposes identified above on the Licensed Premises or the then current legal use for which the premises are being used and which damages cannot be repaired within sixty (60) days this License may be terminated at the option of River Rides. Such termination in such event shall be effected by written notice of River Rides to City, within twenty (20) days after such destruction. River Rides shall surrender possession within ten (10) days after such notice issues, and each party shall be released from all future obligations hereunder, City shall promptly refund rental pro rata to the date of such destruction. 16. CONDEMNATION. (a) If at any time during the term of this License all or substantially all of the Licensed Premises or the improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality, or other public or private authority other than City, then this License shall terminate on the date of vesting of title in such taking and any prepaid rent shall be apportioned based upon the value of the property taken and the damages actually sustained taking into consideration any contractual liability incurred by River Rides as a result thereof as of said date. Substantially all of the Licensed Premises and the improvements thereon shall be deemed to have been taken if the remaining portion of the Licensed shall not be of sufficient size to permit River Rides to operate its business thereon in a manner similar to that prior to such taking. 7 (b) TEMPORARV TAKING. If the temporary use of the whole or any part of the Licensed Premises or the Improvements thereon or the appurtenances thereto shall be taken at any time during the term of this License in the exercise of the power of eminent domain by any sovereign, municipality, or other authority other than City, the term of this License shall not be reduced or affected in any way, and River Rides shall continue to pay in full the rent, additional rent, and other sum or sums of money and charges herein reserved and provided to be paid by River Rides, and the entire award for such temporary taking shall be paid to River Rides. River Rides shall repair and restore any and all damage to the Licensed Premises and the improvements as soon as reasonably practicable after such temporary taking. (c) BANKRUPTCV OR INSOLVENCV OF RIVER RIDES. In the event River Rides is adjudicated a bankrupt or in the event of a judicial sale or other transfer of River Rides' License interest by reason by any bankruptcy or insolvency proceedings or by other operation of law, but not by death, and such bankruptcy, judicial sale or transfer has not been vacated or set aside within ten (10) days from the giving of notice thereof by City to River Rides, then and in any such events, City may, at its option, immediately terminate this License, re-enter said premises, upon giving of ten (10) days' written notice by City to River Rides, all to the extent permitted by applicable law. 17. DEFAULT. If River Rides shall fail or neglect to observe, keep, or perform any of the material covenants, terms, or conditions contained in this License on its part to be observed, kept, or performed, and the default shall continue for a period of thirty (30) days after written notice from City setting forth the nature of River Rides' default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which River Rides has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence), then and in any such event, City shall have the right at its option, on written notice to River Rides, to terminate this License and all rights of River Rides under this License shall then cease. City, without further notice to River Rides, shall have the right immediately to enter and take possession of the Licensed Premises with or without process of law and to remove all personal property from the Licensed Premises and all persons occupying the Licensed Premises and to use all necessary force therefore and in all respects to take the actual, full, and exclusive possession of the Licensed Premises and every part of the Licensed Premises as of City's original estate, without incurring any liability to River Rides or to any persons occupying or using the Licensed Premises for any damage caused or sustained by reason of such entry on the Licensed Premises or the removal of persons or property from the Licensed Premises. 18. RIGHT OF EITHER PARTV TO MAKE GOOD ANV DEFAULT OF THE OTHER. If default shall be made by either party in the performance of, or 8 compliance with, any of the terms, covenants or conditions of this License, and such default shall have continued for thirty (30) days after written notice thereof from one party to the other, the person aggrieved, in addition to all other remedies now or hereafter provided by law, may, but need not, perform such term, covenant or condition, or make good such default and any amount advanced shall be repaid forthwith on demand, together with interest at the rate of 9% per annum, from date of advance. 19. SIGNS. (a) River Rides shall have the right and privilege of attaching, affixing, painting or exhibiting signs on the Licensed Premises, provided (1) that any and all signs shall comply with the ordinances of the city of Dubuque and the laws of the State of Iowa and the Ice Harbor Urban Renewal District Design Standards; (2) such signs shall not change the structure of any building or the premises; (3) such signs if and when taken down shall not damage any building or the premises or such damage shall be repaired; and (4) such signs shall be subject to the prior written approval of the City, which approval shall not be unreasonably withheld. 20. MECHANIC'S LIENS. Neither the River Rides nor anyone claiming by, through, or under the River Rides, shall have the right to file or place any mechanic's lien or other lien of any kind or character whatsoever, upon said premises or upon any building or improvement thereon, or upon the Licensehold interest of the River Rides therein, and notice is hereby given that no contractor, sub-contractor, or anyone else who may furnish any material, service or labor for any building, improvements, alteration, repairs or any part thereof, shall at any time be or become entitled to any lien thereon, and for the further security of the City, the River Rides covenants and agrees to give actual notice thereof in advance, to any and all contractors and sub-contractors who may furnish or agree to furnish any such material, service or labor. 21. RIGHTS CUMULATIVE. The various rights, powers, options, elections and remedies of either party, provided in this License, shall be construed as cumulative and no one of them as exclusive of the others, or exclusive of any rights, remedies or priorities allowed either party by law, and shall in no way affect or impair the right of either party to pursue any other equitable or legal remedy to which either party may be entitled as long as any default remains in any way unremedied, unsatisfied or undischarged. 22. PROVISIONS TO BIND AND BENEFIT SUCCESSORS, ASSIGNS, ETC. Each and every covenant and agreement herein contained shall extend to and be binding upon the respective successors, heirs, administrators, executors and assigns of the parties hereto. 23. CONSTRUCTION. Words and phrases herein, including acknowledgment hereof, shall be construed as in the singular or plural number, and as masculine, feminine or neuter gender according to the context. 9 24. ENVIRONMENTAL. (a) City. City shall assume liability and shall indemnify and hold River Rides harmless against all liability or expense arising from any condition which existed, whether known or unknown, at the time of execution of the License which condition is not a result of actions of the River Rides or which condition arises after date of execution but which is not a result of actions of the River Rides. (b) River Rides. River Rides expressly represents and agrees: 1. During the License term, River Rides' use of the property will not include the use of any hazardous substance without River Rides first obtaining the written consent of City. River Rides understands and agrees that City's consent is at City's sole option and complete discretion and that such consent may be withheld or may be granted with any conditions or requirements that City deems appropriate. 2. During the License term, River Rides shall be fully liable for all costs and expenses related to the use, storage, removal and disposal of hazardous substances used or kept on the property by River Rides, and River Rides shall give immediate notice to City of any violation or any potential violation of any environmental regulation, rule, statute or ordinance relating to the use, storage or disposal of any hazardous substance. 3. River Rides, at its sole cost and expense, agrees to remediate, correct or remove from the premises any contamination of the property caused by any hazardous substances which have been used or permitted by River Rides on the premises during any term of this License. Remediation, correction or removal shall be in a safe and reasonable manner, and in conformance with all applicable laws, rules and regulations. River Rides reserves all rights allowed by law to seek indemnity or contribution from any person, other than City, who is or may be liable for any such cost and expense. 4. River Rides agrees to defend, indemnify and hold City harmless from and against all claims, causes of action, damages, loss, costs, expense, penalties, fines, lawsuit, liabilities, attorney fees, engineering and consulting fees, arising out of or in any manner connected with hazardous substances, which are caused or created by River Rides during the term of this License including, but not limited to, injury or death to persons or damage to property, and including any diminution of the value of any Licensed Premises which may result from the foregoing. This indemnity shall survive the cessation, termination, abandonment or expiration of this License for a period of five years. 10 25. AMERICANS WITH DISABILITIES ACT. River Rides shall be solely responsible for, and agrees to indemnify and hold City harmless from, any and all repairs, additions, claims, fines, penalties, fees or any other costs or obligation in any way imposed by or required by or related to the American's with Disabilities Act in connection with the Licensed Premises during the term of this License. 26. ICE HARBOR PARKING AGREEMENT. (a) River Rides agrees and acknowledges that it is not a party to nor does it have any rights under the Revised Ice Harbor Parking Agreement for Ice Harbor Urban Renewal District, and further covenants that it will not during the Term of this License assert any claim or right of any kind under such Agreement. River Rides agrees that a breach of this covenant shall constitute a material breach of this License. (b) City agrees that River Rides' patrons and not more than three of River Rides' employees designated by River Rides may have the privilege during the Term of this License to park in Lot 1 but only upon such terms and conditions as City determines appropriate, including but not limited to the payment of a parking fee by users of Lot 1. City shall have the right in its sole discretion to terminate such parking privileges at any time. In the event City terminates such parking privileges in Lot 1, City shall provide eighty-two (82) alternate parking spaces for River Rides' patrons and employees on a nonexclusive, first-come, first-served basis within one thousand two hundred (1200) feet of Lot 1 within the Ice Harbor, North Port, as shown on Exhibit B attached hereto.. (c) River Rides shall use its best efforts to prohibit its employees from parking in Lots 1, 2, 3 or 6. 27. MEMORANDUM OF LICENSE. Each of the parties hereto will, promptly upon request of the other, execute a memorandum of this License in form suitable for recording setting forth the names of the parties hereto and the term of this License, identifying the Licensed Premises, and also including such other clauses therein as either party may desire. 28. NOTICES. All notices, demands, or other writings in this License provided to be given or made or sent, or which may be given or made or sent, by either party to the other, shall be deemed to have been fully given or made or sent when made in writing and deposited in the United States mail, registered and postage prepaid, and addressed as follows: TO CITY: City of Dubuque, Iowa City Manager City Hall 50 West 13th Street Dubuque, Iowa 52001 11 TO RIVER RIDES: Dubuque River Rides, Inc. The address to which any notice, demand, or other writing may be given or made or sent to any party as above provided may be changed by written notice given by the party as above provided. 29. MISCELLANEOUS (a) TIME OF THE ESSENCE. Time is of the essence of this License and all of its provisions. (b) GOVERNING LAW. It is agreed that this License shall be governed by, construed, and enforced in accordance with the laws of the State of Iowa. (c) PARAGRAPH HEADINGS. The titles to the paragraphs of this License are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this License. (d) MODIFICATION OF AGREEMENT. Any modification of this License or additional obligation assumed by either party in connection with this License shall be binding only if evidenced in a writing signed by each party or an authorized representative of each party. (e) PARTIES BOUND. This License shall be binding on and shall inure to the benefit of and shall apply to the respective successors and assigns of City and River Rides. All references in this License to "City" or "River Rides" shall be deemed to refer to and include successors and assigns of City or River Rides without specific mention of such successors or assigns. (f) FORCE MAJEURE. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, unavailability or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, chemical explosions, hazardous conditions, fire, weather or acts of God, or by reason of any other cause beyond the exclusive and reasonable control of the party delayed in performing work or doing acts required under the terms of this License, then performance of such act shall be excused for the period of the 12 delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. IN WITNESS WHEREOF, the parties hereto have duly executed this License in duplicate the day and year first above written. CITY, CITY OF DUBUQUE, IOWA B~ RIVER RIDES, DUBUQUE RIVER RIDES, INC. BY71~~A/p-- STATE OF IOWA ) COUNTY OF DUBUQUE ) ss: On this ~ day of 4~ ,2005, before me, , a Notary Public in an for the State of Iowa, personally appeared Terrance M. Duggan and Jeanne F. Schneider, to me personally known, and, who, being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Dubuque, Iowa; that the seal affixed to the foregoing instrument is the corporate seal of the city, and that the instrument was signed and sealed on behalf of the city, by authority of its City Council, qpproved ~e City Council of the City of Dubuque, Iowa, on the~/1td' day of ~ ' 2005, and that they acknowledged the execution of the instrument to e eir voluntary act and deed and the voluntary act and deed of the rorpor~::IQ;,1 tary Public in and f r State of Iowa ~""At ~__ SUSAN M. W'~TER : : 't COMMISSION 1\0.183274 . . MY COMMISSION EXPIRES '0";:- 2/14/08 13 " STATE OF IOWA ) COUNTY OF DUBUQUE ) ss: On this ~ day of ~ PT; I , 2005, before me, a Notary Public in and for the State of Iowa, personally appeared M, . , to me personally known, who being by me duly sworn did say th sho is the p~ tAe...J.. of said limited corporation, that (too sedl dffixed I U~leto Is tht::: st:::al "01 said7(no seal has been procured by the said) corporation and that said instrument was signed (-elld sea1ed1 on behalf of said corporation by authority of its managers and the said P~;J~J acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it voluntarily executed. f Iowa 14 EXHIBIT A LICENSED PREMISES 15 INSURANCE SCHEDULE 1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A- or better in the current A.M. Best Rating Guide. 2. All policies of insurance required hereunder shall be endorsed to provide a thirty (30) day advanced notice to the City of Dubuque of any cancellation of the policy prior to its expiration date. This endorsement supersedes the standard cancellation statement on the Certificate of Insurance. 3. River Rides shall furnish Certificates of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 7. Such certificates shall include copies of the endorsements set forth in Paragraphs 2 and 5 to evidence inclusion in the policy. 4. Each Certificate of Insurance shall be submitted to the City Manager's Office within thirty days of commencement of the License term. 5. All policies of insurance required in Paragraph 7 shall include the City of Dubuque, Iowa under the attached Additional Insured Endorsement (CG2026) and the attached Governmental Immunities Endorsement. 6. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the insurance required herein shall be considered a material breach of this agreement. 7. River Rides shall be required to carry the following minimum insurance coverages or greater if required by law or other legal agreement: COMMERCIAL GENERAL LIABILITY: General Aggregate Limit Products-Completed Operation Aggregate Limit Personal and Advertising Injury Limit Each Occurrence Limit Fire Damage Limit (anyone occurrence) Medical Payments $ 2,000,000 $ 1,000,000 $ 1,000,000 $ 1,000,000 $ 50,000 $ 5,000 Commercial general liability shall be written on an occurrence form, not a claims made form. Coverage to include premises-operation-products- completed operations, independent contractors' coverage, contractual liability, broad form property damage, and personal injury. LIQUOR OR DRAM SHOP LIABILITY $ 1,000,000 16 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 form time to time. 2. Claims Coveraqe. The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. 4. Non-Denial of Coveraqe. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Chanqe in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. 17 POLICY NUMBER COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULL Y. 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. Copyriqht. Insurance Services Office. Inc. 1994 CG 20 26 11 85 18 ~ ~ 8 OZ~ ~ ~Ow ! - ~" W b i:Q1/) 1/)'" ::J 0 ~ ~ ~I ~ 0 J ~ ::J o ~o lD i >-0 ::J , Q C) I/)N l!l ~ w" 0 ,. 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