Dubuque River Rides Lease
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MEMORANDUM
April 22, 2005
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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.
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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.
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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.
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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
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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
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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
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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.
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(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
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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.
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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.
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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
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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
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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
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