Lease Agreement Peninsula Gaming 2nd Amendment
~~~JE
~~~
MEMORANDUM
n
..--)
( .
~
, .
..,..1
June 1, 2005
j"..J
.~
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Dubuque Racing Association/Peninsula Gaming (Diamond Jo)/City of
Dubuque Agreements
The State of Iowa set a June 1,2005 deadline for the Dubuque Racing Association
(DRA) and Peninsula Gaming to agree that the Dubuque Greyhound Park and Casino
could have table games and the Diamond Jo could become a barge facility. On June 1,
2005, the two parties approved an agreement and the DRA made application to the
Iowa Racing and Gaming Commission to install table games.
The Operating Agreement between the DRA and Peninsula Gaming and the Sub-Lease
for certain City-owned properties in the Port of Dubuque between DRA and Peninsula
that are leased by the City to the DRA had an expiration date of December 31,2008.
Pursuant to amendments also approved June 1, 2005, the Operating Agreement and
Sub-Lease will extend the terms of those agreements through December 31, 2018.
The Lease Agreement between the City and the DRA for these certain parcels in the
Port of Dubuque, including the parcel along the north shore of the Ice Harbor that
provides the Diamond Jo docking facilities, also expires December 31,2008.
Corporation Counsel Barry Lindahl and I have renegotiated an amendment to this
Lease Agreement between the DRA and the City that also extends the term through
December 31,2018.
In the Lease Agreement negotiated between the City and Peninsula, Peninsula will
lease the patio area south of the Portside building from the City from June 1, 2005, until
December 31,2018, for a rental of $25,000 per year, adjusted by the Consumer Price
Index annually, beginning in 2010.
Under the current Ice Harbor Parking Agreement, Peninsula Gaming also has the right
under the Lease Agreement to use Port of Dubuque City-owned parking lots #1 and #2
through December 31,2008. For a payment of $250,000 per year beginning in 2009,
Peninsula is also granted the privilege of allowing its management employees and
customers to park in Lots 1 and 2 through December 31, 2018. Should the Diamond Jo
facility be expanded by becoming a barge, as defined in the new DRAlPeninsula
Gaming Operating Agreement, then this parking use fee increases to $500,000 per
year. In the event of such expansion, Peninsula also has the option to lease additional
space in the Ice Harbor to locate the barge, through 2018, extending up to 150 feet into
the Ice Harbor. The barge facility may be no greater than two stories and no higher
than the Portside building.
The City and Peninsula have also agreed to a land exchange to assist with the future
construction of a parking garage. Should the City need up to one acre of the
approximately 4.5 acres Peninsula Gaming owns west of Bell Street, the City will trade
an equal amount of land owned by the City to the north of Peninsula's property.
Regardless of whether or not the City needs any of the Peninsula property for the
parking garage, if Peninsula expands its gaming operations and the parking garage is
built on property contiguous to Peninsula property, Peninsula has agreed to financially
contribute to the cost of the parking garage construction.
The City will be applying for a federal grant of 80% of the cost of an intermodal
transportation facility, which includes parking. Should the City receive this grant,
Peninsula will provide the 20% required match, estimated at $2,540,000. Should the
City not receive a grant, Peninsula will provide 50% of the cost of the facility, estimated
at $6,350,000.
Finally, a revised Settlement Agreement has been negotiated related to the lawsuit filed
by Peninsula against the City challenging the design standards in the Ice Harbor Urban
Renewal District.
The new Operating Agreement between the DRA and Peninsula Gaming means that
under the most likely scenario, the DRA will have a $285,000 increase in net cash flows
over the next 3.5 years. The best case scenario is that the DRA will have a $3.3 million
increase in net cash flows over the next 3.5 years. After the 3.5 years and until 2018,
when the agreement expires, the DRA will be getting between $1.1 million and $2
million per year in additional net cash flows. On top of all these revenue gains, which
40% goes to the City and 30% goes to charity; the Dubuque Greyhound Park will be a
full-service casino.
With the distribution by the DRA, the City could realize an additional $4.5 to $9.3 million
and charities an additional $3.4 to $7 million through 2018. The direct payments to the
City for the leases in the Port of Dubuque will be approximately $88,000 over the next
3.5 years and between $2.5 million and $5 million from 2009 to 2018, depending on
when the Diamond Jo expands.
This is a good deal for the City of Dubuque, the State of Iowa, the DRA, the Diamond Jo
Casino and especially local charities.
I respectfully request Mayor and City Council approval of the Settlement Agreement, the
Second Amendment to the Dubuque Racing Association Lease and the Lease
Agreement with Peninsula Gaming after a public hearing to be held on June 20, 2005.
(nJ~M
Mic~ael C. Van Milligen
-----
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Prepared by Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
RESOLUTION NO. 248-05
INTENT TO DISPOSE OF AN INTEREST IN REAL PROPERTY BY AMENDMENT TO
LEASE WITH DUBUQUE RACING ASSOCIATION, LTD.
WHEREAS, the City of Dubuque, Iowa (City) owns certain real property shown on
Exhibit AA attached hereto, specifically Lots C and D, which is leased to Dubuque
Racing Association, L TD (Association), pursuant to an Amended and Restated Lease
Agreement dated March 31, 2004, which includes PART B - GROUND LEASE FOR
PARKING AND DOCK FACILITIES IN ICE HARBOR FOR RIVERBOAT GAMBLING;
and
WHEREAS, City and Association now desire to amend the Amended and Restated
Lease Agreement as set forth in the attached Second Amendment, which among other
matters, extends the term of the Lease for Parking and Dock Facilities from December
31,2008 to December 31,2018; and
WHEREAS, the City Council believes it is in the best interests of the City of
Dubuque to approve the Second Amendment to Amended and Restated Lease
Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City Council of the City of Dubuque, Iowa, intends to dispose of the
City's interest in the foregoing-described real property pursuant to the Second
Amendment to Amended and Restated Lease Agreement between City and Association.
Section 2. The City Clerk is hereby authorized and directed to cause this
Resolution and a Notice to be published as prescribed by Iowa Code Section 364.7 of a
public hearing on the City's intent to dispose of the foregoing-described real property, to
be held on the 20th day of June, 2005, at 6:30 o'clock p.m. at the public library auditorium,
11th & Locust, Dubuque, Iowa.
Passed, approved and adopted this 6th day of June 2005.
Joyce E. Connors, Mayor Pro-Tem
Karen M. Chesterman, Deputy City Clerk
Prepared by: Barry A. Lindahl, Esq., Suite 330, 300 Main Street, Dubuque, IA 52001-6944,563.583-4113
RESOLUTION NO. 249-05
RESOLUTION OF INTENT TO DISPOSE OF AN INTEREST IN REAL PROPERTY BY
LEASE AGREEMENT WITH PENINSULA GAMING COMPANY, L.L.C.
WHEREAS, the City of Dubuque, Iowa (City) owns certain real property in the Ice
Harbor, described as follows:
The patio area (Parcel B) as shown on Exhibit A attached hereto, legally
described as a part of Lot 6 of Ice Harbor Development, according to the
recorded plat thereof;
And
WHEREAS, City has negotiated a Lease Agreement for such property with
Peninsula Gaming Company, L.L.C. (Peninsula), a copy of which Lease Agreement is
now on file at the Office of City Clerk, City Hall, 50 West 13th Street, Dubuque IA 52001-
4864; and
WHEREAS, the Lease Agreement also grants certain parking privileges to
Peninsula for Parking Lots 1 and 2 shown on Exhibit A; and
WHEREAS, the Lease Agreement also provides for the future disposition of the
City's interest in Lot 2 of Adams Company 2nd Addition pursuant to an exchange of real
property with Peninsula; and
WHEREAS, the City Council has determined that it is in the best interests of the
City of Dubuque to approve the Lease Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City of Dubuque, Iowa, intends to dispose of its interest in the
foregoing-described real property by Lease Agreement between City and Peninsula.
Section 2. The City Clerk is hereby authorized and directed to cause this
Resolution and a notice to be published as prescribed by Iowa Code Section 364.7 of a
public hearing on the City's intent to dispose of the foregoing-described real property, to
be held on the 20th day of June, 2005, at 6:30 o'clock p.m. at the public library
auditorium, 11 th & Locust, Dubuque, Iowa.
#
Passed, approved and adopted this 6th day of June, 2005.
Karen M. Chesterman, Deputy City Clerk
J yce E. Connors, Mayor Pro-Tern
~/ 1/
.~'V.
r
.0: .
..00:... .
.. .. <(
.'.: <(.. ....
&+--
~. .-'
~. .:9
'..c
"", . ><
w
ell I
'~. : >~Illl
!~.. r
Q
/
g;.
~.
$"
~
&
'S:
Q)
ell
U.
o
.~..
SECOND AMENDMENT
TO
AMENDED AND RESTATED
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DUBUQUE RACING ASSOCIATION, LTD.
This SECOND AMENDMENT TO LEASE AGREEMENT is dated for
reference purposes this _ day of ,2005.
Whereas, the City of Dubuque (City) and Dubuque Racing Association,
LTD. (Association) are parties to an Amended and Restated Lease Agreement
dated for reference purposes the 31st day of March, 2004; and
Whereas, the parties now desire to further amend the Amended and
Restated Lease Agreement as set forth herein.
NOW, THEREFORE, City and Association, agree as follows:
1. Par. 22 of the Amended and Restated Lease Agreement is amended to
read as follows:
22. Term of Lease. The term of this Agreement commences
on the 1st day of March, 1991 and shall terminate at 11 :59 p.m. on
December 31,2018.
2. Par. 23 is amended by adding the following:
The Association shall sublease Lot C to Peninsula Gaming Company,
L.L.C. only for non-exclusive parking by Peninsula Gaming Company's
management employees and patrons and the general public.
3. Par. 24 is amended by adding thereto the following:
If for any reason the formula for the calculation of the rental under Par. 3
and/or the distribution to the City under Par. 41 is changed and results in a
reduction of the rental and/or the distribution to the City or the City's ability to use
such revenues, the City and the Association agree to renegotiate Par. 24.
4. The Association hereby agrees that it is no longer a party to nor has
any rights under the Revised Ice Harbor Parking Agreement for Urban Renewal
District.
CITY OF DUBUQUE, IOWA
By:
Terrance M. Duggan, Mayor
DUBUQUE RACING ASSOCIATION, LTD.
By:
Its President
CONSENT TO AMENDMENT
American Trust & Savings Bank consents to the foregoing Second
Amendment to Amended and Restated Lease Agreement this _ day of
,2005.
AMERICAN TRUST & SAVINGS BANK
By:
Victoria J. Richter
Second Senior Vice President
!w '"
~l
".0 ~
':~ ~
i\CDO I
'.:. \J\
F
~
-
-
\-
-
co
-
~
uJ
c;;-
-0
'?
in
S
?:
::;
~
\I-
~
o
o
I-
Z
uJ
~
uJ
(j)
<{
uJ
(j)
(j)
uJ
o
o~
<{ (l)
v
Z .-
4,?
OCcD
1-:::"
ill 0
or-
wO
0..-'
I'
tt
o
~
4:
:J:
UI
Q
/~\
~\
fFJ\
Prepared by: Barry A. Lindahl, Esq., Suite 330, 300 Main Street, Dubuque, IA 52001-6944, 563-583-4113
MEMORANDUM OF LEASE AGREEMENT
This Memorandum of Lease Agreement ("Memorandum") is made and entered
into effective the 1st day of June, 2005, by THE CITY OF DUBUQUE, IOWA, an Iowa
Municipal Corporation ("Landlord") whose address for the purpose of this Lease is City
Hall, 50 West 13th Street, Dubuque, Iowa 52001 and PENINSULA GAMING
COMPANY, L.L.C., a Delaware Limited Liability Company, ("Tenant") whose address
for the purpose of this Lease is 3rd Street- Ice Harbor, Dubuque, Iowa 52001.
FOR VALUABLE CONSIDERATION, the receipt of which is acknowledged by
Landlord, Landlord has leased to Tenant and Tenant has leased, upon and subject to
the terms and conditions set forth in one certain Lease Agreement effective the 1 st day
of June, 2005, the following described real estate:
The patio area (Parcel B) as shown on Exhibit A attached hereto (but
specifically excluding the hydraulic lift located on Lot B) and by this
reference made a part hereof (the Leased Premises), legally described as
a part of Lot 6 of Ice Harbor Development, according to the recorded plat
thereof,
The terms, covenants and conditions of the aforesaid Lease Agreement by and
between the parties are hereby referred to and made a part hereof, the same as though
fully set forth herein.
This Memorandum is a form thereof for the purpose of notice. In the event of a
conflict between the provisions of this Memorandum and the longer form of the Lease
Agreement executed by the parties, the terms and provisions of the longer form of the
Lease Agreement shall prevail.
day of June, 2005.
Dated th is
LANDLORD, CITY OF DUBUQUE, IOWA
By
Terrance M. Duggan, Mayor
By
-1-
Jeanne F. Schneider, City Clerk
TENANT, PENINSULA GAMING COMPANY, L.L.C.
By
Its
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this _ day of , 2005, before me, ,
a Notary Public in and for the State of Iowa, personally appeared Terrance M. Duggan
and Jeanne F. Schneider, to me personally known, and, who, being by me duly sworn,
did say that they are the Mayor and City Clerk, respectively, of the City of Dubuque,
Iowa; that the seal affixed to the foregoing instrument is the corporate seal of the
corporation, and that the instrument was signed and sealed on behalf of the corporation,
by authority of its City Council, as contained in Resolution No. adopted
by the City Council of the City of Dubuque, Iowa, on the day of
, 2005, and that they acknowledged the execution of the instrument to
be their voluntary act and deed and the voluntary act and deed of the corporation, by it
voluntarily executed.
Notary Public in and for State of Iowa
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this _ day of , 2005, before me, a Notary Public in and
for the State of Iowa, personally appeared , to me
personally known, who being by me duly sworn did say that is the Managing
Member of said limited liability company, that (the seal affixed hereto is the seal of
said)(no seal has been procured by the said) limited liability company and that said
instrument was signed (and sealed) on behalf of said limited liability company by
authority of its managers and the said acknowledged the execution of said instrument to
be the voluntary act and deed of said limited liability company, by it voluntarily executed.
Notary Public in and for State of Iowa
-2-
EXHIBIT A
-3-
-
CJ \
4: -0
~
It>
....
- -'
- l-
e z
w
~
w
cD 2
w
- lJ)
:c ~ lJ)
w
)( .-1 0
~ 0'-
<( Q)
Ul 11- -0
\ -,(. z .-
0 <e?
0 ~<f)
0 I-S
\?so
01-
wO
n...J
"
/!l
~
<II
'\
<t'
o.
It
o
~
:I:
\U
9
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
PENINSULA GAMING COMPANY, L.L.C.
THIS LEASE AGREEMENT, executed in duplicate, made and entered into this
1 stday of June, 2005 by and between THE CITY OF DUBUQUE, IOWA (hereinafter called
the "Landlord") whose address for the purpose of this Lease Agreement is City Hall, 50
West 13th Street, Dubuque, Iowa 52001 and PENINSULA GAMING COMPANY, L.L.C.
(hereinafter called the "T enant") whose address for the purpose of this Lease Agreement
is 3rd Street - Ice Harbor, Dubuque, Iowa 52001.
1. PREMISES AND TERM. The Landlord, in consideration of the rents herein
reserved and ofthe agreements and conditions herein contained, on the part ofthe Tenant
to be kept and performed, leases unto the Tenant and Tenant hereby rents and leases
from Landlord, according to the terms and provisions herein, the following described real
estate, situated in Dubuque County, Iowa, to wit:
The patio area (Parcel B) as shown on Exhibit A attached hereto (but
specifically excluding the hydraulic lift located on Lot B) and by this reference
made a part hereof (the Leased Premises), legally described as a part of Lot
6 of Ice Harbor Development, according to the recorded plat thereof,
with the improvements thereon and all rights, easements and appurtenances thereto
belonging, for a term commencing at midnight of the day previous to the first day of the
lease term, which shall be on the 1 sl day of June, 2005, and ending at midnight on the last
day of the lease term, which shall be on the 31st day of December, 2018, upon the
condition that the Tenant pays rent therefore, and otherwise performs as in this Lease
Agreement provides.
The Landlord reserves unto itself a non-exclusive, perpetual Public Access
Easement, to run with the land, as shown on Exhibit A, for itself and for public pedestrian
access, said access to remain open, clear and unobstructed at all times except as may be
otherwise agreed to in writing by the Landlord.
Tenant agrees that its rights under the Revised Ice Harbor Parking Agreement for
Ice Harbor Urban Renewal District are terminated upon execution of this Agreement.
Landlord hereby grants to Tenant, its management employees and patrons during the term
of this Agreement the non-exclusive privilege to park in Parking Lots 1 and 2 shown on
Exhibit A at no additional charge (other than the rent herein) to Tenant, its management
employees or patrons. Tenant agrees that Tenant will require that all of its employees shall
park only in parking Jots owned by Tenant or in a city-owned parking garage.
Page 1 of 25
Landlord hereby grants to Tenant permission, subject to such other permission as
may be required by any other governmental entity, to construct a two-story (not to exceed
the height of the existing portside facility) barge (as defined by Iowa Code Chapter 99F
(2005) to extend not more than the maximum permitted by the United States Coast Guard
and/or the United States Army Corps of Engineers but in no event more than 150 feet from
Tenant's current dock facility into the Ice Harbor. Landlord agrees to cooperate with and
support Tenant's application to other governmental entities for any required permission for
such barge. In the event Tenant constructs such barge, the area upon which such barge
is located shall become a part of the Leased Premises.
2. RENTAL AND COMPENSATION FOR PARKING PRIVILEGES IN LOTS 1 AND
2. Tenant agrees to pay to Landlord as rental and compensation for the non-exclusive
parking privileges for Lots 1 and 2 for said term, as follows:
(a) Rental. $ 25,000.00 per year in advance, upon full execution of this Lease
Agreement, and $25,000.00 on the first day of June of each year thereafter,
adjusted as follows:
First Year of Lease term (2005-2006):
Second Year of Lease Term (2006-2007):
Third Year of Lease Term (2007-2008):
Fourth Year of Lease Term (2008-2009):
Fifth Year of Lease Term (2009-2010):
Sixth Year of Lease Term (2010-2011):
$ 25,000.00 x COL Index June 1,2010
COL Index June 1, 2009
Seventh Year of Lease Term (2011-2012):
$ 25,000.00 x COL Index June 1,2011
COL Index June 1, 2009
Eighth Year of Lease Term (2012-2013):
$ 25,000.00 x COL Index June 1, 2012
COL Index June 1, 2009
Page 2 of 25
$ 25,000.00
$25,000.00
$25,000.00
$25,000.00
$25,000.00
Ninth Year of Lease Term (2013-2014):
$ 25,000.00 x GOL Index June 1, 2013
GOL Index June 1, 2009
Tenth Year of Lease Term (2014-2015):
$ 25,000.00 x GOL Index June 1,2014
GOL Index June 1, 2009
Eleventh Year of Lease Term (2015-2016):
$ 25,000.00 x GOL Index June 1, 2015
GOL Index June 1, 2009
Twelfth Year of Lease Term (2016-2017):
$ 25,000.00 x GOL Index June 1, 2016
GOL Index June 1, 2009
Thirteenth Year of Lease Term (2017-2018):
$ 25,000.00 x GOL Index June 1, 2017
GOL Index June 1,2009
Fourteenth Year of Lease Term (June 1, 2018 - December 31, 2018):
$ 25,000.00 x GOL Index June 1,2018 (prorated)
GOL Index June 1,2009
GOL Index means the Gonsumer Price Index for all items for All Urban
Consumers-U.S. Gity Average, published by the U.S. Department of Labor, Bureau of
Labor Statistics.
(b) Parking. $225,000.00 per year atthe rate of$18,750.00 per month beginning on the
1 sl day of January 2009, and on the first day of each month thereafter, adjusted as
follows:
First Year of Lease Term (2005-2006): $ 0
Page 3 of 25
Second Year of lease Term (2006-2007):
$0
$0
$0
Third Year of lease Term (2007-2008):
Fourth Year of lease Term (2008-2009):
Fifth Year of lease Term (2009-2010):
$225,000.00
Sixth Year of lease Term (2010-2011):
$ 225,000.00 x COl Index June 1,2010
COl Index June 1, 2009 (base year)
Subsequent years of the lease Term shall be adjusted by the COl Index in the
same manner, using 2009 as the base year.
(c) Parking. In the event, however, that Tenant expands its facilities as provided in the
Eleventh Amendment to the Operating Agreement between the Dubuque Racing
Association and Tenant, dated the 3151 day of May, 2005, Tenant's payment to landlord
under this Par. 2(b) shall be as follows:
$475,000.00 per year at the rate of $39,583.33 per month beginning on the 181 day of the
operation of such new facilities, and on the first day of each month thereafter, adjusted by
the COl Index in the manner provided in (a) and (b) using the year prior to the first year
of the operation of the new facilities as the base year.
All sums shall be paid at the address of landlord, as above designated, or at such
other place in Iowa, or elsewhere, as the landlord may, from time to time, designate in
writing.
3. POSSESSION. Tenant shall be entitled to possession on the first day of the
term of this lease Agreement, and shall yield possession to the landlord at the time and
date of the close of this lease term, except as herein otherwise expressly provided. Should
landlord be unable to give possession on said date, Tenant's only damages shall be a
rebating of the pro rata rental.
4. USE OF PREMISES.
It is contemplated between the parties that the Demised Premises shall be used by
lessee for concerts (primarily but not limited to Wednesdays and Fridays), entertainment
and food service to the customers of lessee and other members of the public and that
attendance at some of the events will require an admission fee or other charge and some
will be without charge. lessee shall have the right, at its option, during the term of this
lease, to use the Improvements (as defined below) and the Demised Premises in any
Page 4 of 25
reasonable and lawful manner consistent with Lessee's then current business practices
contemplated by this Lease. Further, Lessor consents to Lessee's anticipated
Improvements (as defined below and contained in Exhibit B attached hereto and made a
party of this Lease) and acknowledges that the same will result in a blockage of the
easement of Lessor through a portion of the Demised Premises and adjacent premises.
5. QUIET ENJOYMENT. Landlord covenants that its estate in said premises is fee
simple; and that the Tenant on paying the rent herein reserved and performing all the
agreements by the Tenant to be performed as provided in this Lease Agreement, shall and
may peaceably have, hold and enjoy the Leased Premises for the term of this Lease
Agreement free from molestation, eviction or disturbance by the Landlord or any other
persons or legal entity whatsoever.
Tenant acknowledges that the Landlord is or will be conducting environmental
remediation on the Leased Premises. Tenant hereby grants to Landlord the right to enter
upon the Leased Premises for such remediation. Landlord agrees to conduct such
remediation in an expeditious manner that will not unreasonably interfere with Tenant's use
of the Leased Premises.
Landlord shall have the right to mortgage all of its right, title, and interest in said
premises at any time without notice, subject to this Lease Agreement.
6. CARE AND MAINTENANCE OF PREMISES. (a) Tenant takes said premises
in their present condition except for such repairs and alterations as may be expressly
herein provided.
(b) LANDLORD'S DUTY OF CARE AND MAINTENANCE. Landlord shall have no
duty of care or maintenance, except for any and all underground utilities with regard to the
Leased Premises.
(c) TENANT'S DUTY OF CARE AND MAINTENANCE. Tenant shall at all times
during the term of this Lease Agreement, at Tenant's own costs and expense, keep the
Leased Premises and the Improvements thereon, and all sidewalks, curbs, and all
appurtenances to the Leased Premises, in good order, condition, and repair, casualties
and ordinary wear and tear excepted. Tenant shall keep and maintain the Leased
Premises and all improvements in superior condition, consistent with othersimilarlyclassed
operations. Tenant shall keep the Leased Premises in such condition as may be required
by law and by the terms of the insurance policies furnished pursuant to this Lease
Agreement, whether or not such repair shall be interior or exterior, and whether or not such
repair shall be of a structural nature. Upon reasonable notice to Tenant, Landlord may, at
its discretion, conduct an annual inspection of the Leased Premises to determine Tenant's
compliance with this Article VI.
Tenant shaH, after taking possession of said premises and until the termination of
Page 5 of 25
this Lease Agreement and the actual removal from the premises, at its own expense, care
for and maintain the surface of the Leased Premises in a reasonably safe and serviceable
condition including snow removal. Tenant will not permit or allow said premises to be
damaged or depreciated in value by any act or negligence of the Tenant, its agents or
employees. Tenant may repair and replace any portion or all of the Leased Premises. The
Tenant's maintenance obligation hereunder shall include snow removal, landscaping and
other general maintenance.
(d) Tenant will make no unlawful use of said premises and agrees to comply with
all city ordinances, and the laws of the State of Iowa and the Federal government.
7. IMPROVEMENTS. On delivery of possession of the Leased Premises to Tenant,
Tenant shall not construct on the Leased Premises any structures, buildings or other
improvements except as agreed upon by the Landlord and Tenant (the "Improvements").
Landlord shall have the right, in its reasonable discretion, to approve the design,
appearance and quality of any such Improvements, which approval shall not be
unreasonably withheld or delayed.
On delivery of possession of the Demised Premises to Tenant, Tenant shall be
entitled to construct on the Demised Premises the following temporary structures: a
grandstand with seating for up to one thousand two hundred fifty (1,250) people facing
approximately 303 degrees West by Northwest which construction will require Tenant to
remove three light poles currently located on the Demised Premises; a temporary stage
of not less than 28 feet by 24 feet not including sound wings; a stage cover; production
requirements that will necessitate Tenant to core bore underground with a temporary
transformer located on the Demised Premises; and a fence to control access to the
grandstand area. Subject to applicable law and the obligations imposed on Landlord as
a governmental entity, Landlord agrees to process and issue as expeditiously as possible
(within seven days of application) all permits, variances and approvals reasonably required
to develop and construct the proposed temporary improvements on the Demised Premises.
All temporary I mprovements hereafter constructed on the Demised Premises are and shall
be the property of Tenant during the continuance of the term of this Lease and shall be
removed by the Tenant upon the termination of this Lease Agreement except the
installation of concealed electrical improvements; at the termination of this Lease
Agreement, Tenant shall be responsible for replacement of the three light poles removed
during the term of this lease. Tenant shall replace or repair any bricks or concrete
damaged during the construction process.
All Improvements (excluding the barge which Tenant may remove upon termination
ofthis Lease) hereafter constructed on the Leased Premises and all Trade Fixtures located
on the Leased Premises are and shall be the property of Tenant during the term of this
Lease and no longer. Subject to the payment obligations of Tenant, upon any termination
of this Lease, by reason of any cause whatsoever, if the Improvements (excluding the
barge) or any part thereof shall then be on the Leased Premises, all of Tenant's right, title,
and interest therein shall cease and terminate, and title to the Improvements shall vest in
Lessor, and the
Page 6 of 25
Improvements or the part thereof then within the Leased Premises and all Trade Fixtures
shall be surrendered by Tenant to Lessor (excluding furniture, fixtures, and equipment in
the offices and barge). No further deed or other instrument shall be necessary to confirm
the vesting in Lessor of title to the Improvements or Trade Fixtures. However, upon any
termination of this Lease, Tenant, upon request of Lessor, shall execute, acknowledge and
deliver to Lessor a quitclaim deed confirming that all of Tenant's right, title and interest in
or to the Improvements (excluding the barge) or Trade Fixtures has expired, and that title
to the Improvements and Trade Fixtures has vested in Lessor.
Tenant shall not encumber by mortgage, deed of trust, or other instrument, its
leasehold interest and estate in the Leased Premises, or any Improvements placed by
Tenant on the Leased Premises.
8. ICE HARBOR URBAN RENEWAL DISTRICT DESIGN STANDARDS. Tenant
agrees that it shall at all times comply with the Ice Harbor Urban Renewal District Design
Standards with respect to the Leased Premises and Tenant's other property in the Ice
Harbor.
In the event, however, that Tenant expands its facilities as provided in the Eleventh
Amendment to the Operating Agreement between the Dubuque Racing Association and
Tenant, dated the 31st day of May, 2005, and/or constructs a barge or pier facility,
Landlord and Tenant shall negotiate reasonable design standards acceptable to both
Landlord and Tenant.
9. UTILITIES AND SERVICES. Tenant, during the term of this Lease Agreement,
shall pay, before delinquency, all charges for all utilities and services, including garbage
disposal and trash disposal.
10. SURRENDER OF PREMISES AT END OF TERM - REMOVAL OF FIXTURES.
(a) Tenant shall, on the last day of the term of this Lease Agreement or upon any
termination of this Lease Agreement hereof, surrender and deliver up the Leased
Premises, with the improvements (excluding the barge which Tenant may remove) then
located thereon into the possession and use of Landlord, without fraud or delay and in
good order, condition, and repair, free and clear of alllettings and occupancies, free and
clear of all liens and encumbrances other than those existing on the date of this Lease
Agreement and those, if any, created by Landlord, without (except as otherwise provided
herein) any payment or allowance whatever by Landlord on account of or for any buildings
and improvements erected or maintained on the Leased Premises at the time of the
surrender, or for the contents thereof or appurtenances thereto. At Landlord's option,
Landlord and Tenant shall agree to jointly remove any or all of the Improvements
(excluding the barge which Tenant may remove upon the termination of this Lease) located
on the Leased Premises.
(b) HOLDING OVER. Continued possession, beyond the expiratory date of the
Page 7 of 25
term of this Lease Agreement, by the Tenant, coupled with the acceptance ofthe specified
rental by the Landlord (and absent a written agreement by both parties for an extension
of this Lease Agreement, or for a new lease) shall constitute a month to month extension
of this Lease Agreement.
11. ASSIGNMENT AND SUBLETTING. This Lease Agreement may not be
assigned nor the Leased Premises sublet by the Tenant without the prior written consent
of the Landlord, which consent shall not be unreasonably withheld.
12. TAXES. (a) Tenant agrees to pay by the due date, subject to proration and
payment of final taxes at termination of this Lease Agreement, as additional rent an
amount equal to real estate taxes upon the real estate of the Leased Premises that accrue
during the term hereof. Tenant shall further provide to Landlord official receipts of the
appropriate taxing authority or other evidence satisfactory to Landlord evidencing payment
thereof.
(b) The Tenant further agrees to pay all other taxes, rates, charges, levies and
assessments, general and special, of every name, nature and kind, whether now known
to the law or hereafter created which may be taxed, charged, assessed, levied or imposed
upon said real estate, any buildings or improvements thereon which may be taxed,
charged, assessed, levied or imposed upon the leasehold estate hereby created and upon
the reversionary estate in said real estate during the term hereof, and all such other taxes,
rates, charges, levies and assessments shall be paid by Tenant as they become due and
before they become delinquent.
(c) Tenant agrees to timely pay all taxes, assessments or other public charges levied
or assessed by lawful authority (but reasonably preserving Tenant's rights of appeal)
against its personal property on the premises, during the term of this Lease Agreement.
(d) Nothing herein shall require Tenant to pay any of Landlord's income taxes,
surtaxes, excess profit taxes or any taxes on the rents reserved to Landlord hereunder.
(e) Tenant shall at all times have the right to contest in good faith, in any proper
proceedings, in the name of Landlord if necessary, the payment or satisfaction of any such
taxes, assessments, rates, charges or levies so agreed to be paid by Tenant, if the validity
thereof, or the right to assess or levy the same against or collect the same from said
Leased Premises or improvements, shall be disputed. Upon the conclusion of any such
suit or proceedings, or not less than three (3) months prior to the date when the right to
redeem therefrom expires, whichever will be the earlier, Tenant will promptly pay and
satisfy such disputed tax, assessment or other charge as finally determined, together with
all expenses, costs and attorneys' fees whatsoever incurred in connection therewith.
13. INSURANCE. (a) Landlord and Tenant will each keep its respective property
interests in the premises and its liability in regard thereto, and the personal property on the
Page 8 of 25
premises, reasonably insured against hazards and casualties; that is, fire and those items
usually covered by extended coverage; and Tenant will procure and deliver to the Landlord
a certification from the respective insurance companies to that effect.
(b) [INTENTIONALLY LEFT BLANK.]
(c) WAIVER OF SUBROGATION. Notwithstanding any other provision in this
Lease Agreement to the contrary, both Landlord and Tenant herein hereby waive any and
all rights of recovery, claim, action or causes of action against each other, their agents,
officers and employees, for any loss or damage that may occur to the Leased Premises,
or to any property of either party maintained on the Leased Premises by reason of fire,
casualty, the elements, or any other cause 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) Tenant further agrees to comply with recommendations of Iowa Insurance
Service Bureau and to be liable for and to promptly pay, as if current rental, any increase
in insurance rates on said premises due to increased risks or hazards, resulting from
Tenant's use of the premises otherwise than as herein contemplated and agreed.
(e) [INTENTIONALLY LEFT BLANK.]
14. INDEMNITY AND LIABILITY INSURANCE. Tenant will protect, indemnify, and
save harmless Landlord from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) imposed upon or incurred by or asserted against Landlord
by reason of (a) any accident, injury to, or death of persons or loss of or damage to
property occurring on or about the Leased Premises during the term of this Lease
Agreement and resulting from any act or omission of Tenant or anyone claiming by,
through, or underTenant during the term of the Lease Agreement. In case any action, suit,
or proceeding is brought against Landlord by reason of such occurrence, Tenant will, at
Tenant's expense, resist and defend such action, suit, or proceeding.
The Tenant further covenants and agrees that it will at its own expense procure and
maintain liability insurance as set forth in the attached Insurance Schedule as such
schedule may from time to time be mutually agreed upon by Landlord and Tenant.
15. FIRE AND CASUALTY. PARTIAL DESTRUCTION OF PREMISES. (a) In the
event of a partial destruction or damage of the Leased Premises, which is a business
interference, that is, which prevents the conducting of a normal business (patio) operation
and which damage is reasonably repairable within sixty (60) days after its occurrence, this
Lease Agreement shall not terminate but the rent for the Leased Premises shall abate
Page 9 of 25
during the time of such business interference. In the event of partial destruction, Tenant
shall repair such damages within sixty (60) days of its occurrence unless prevented from
so doing by acts of God, the elements, the public enemy, strikes, riots, insurrection,
government regulations, city ordinances, labor, material or transportation shortages, or
other causes beyond Tenant's reasonable control.
(b) ZONING. Should the zoning ordinance of the city make it impossible for Tenant,
using diligent and timely effort to obtain necessary permits and to repair and/or rebuild so
that Tenant is not able to conduct its business on these premises, then such partial
destruction shall be treated as a total destruction as in the next paragraph provided.
(c) TOTAL DESTRUCTION OF BUSINESS USE. In the event of a destruction or
damage of the Leased Premises including the parking area so that Tenant is not able to
conduct parking lot operations on the premises or the then current legal use for which the
premises are being used and which damages cannot be repaired within sixty (60) days this
Lease Agreement may be terminated at the option of Tenant. Such termination in such
event shall be effected by written notice of Tenant to Landlord, within twenty (20) days after
such destruction. Tenant shall surrender possession within ten (10) days after such notice
issues, and each party shall be released from all future obligations hereunder, Tenant
paying rental pro rata only to the date of such destruction . Tenant may rebuild the parking
lot and continue under the terms of this Lease Agreement if Tenant so elects. In the event
of such termination of this Lease Agreement, Landlord at its option, may rebuild or not,
according to its own wishes and needs.
16. CONDEMNATION. (a) Entire Condemnation. If at any time during the term
of this Lease Agreement all or substantially all of the Leased Premises or the
improvements thereon shall be taken in the exercise of the power of eminent domain by
any sovereign, municipality, or other public or private authority, then this Lease
Agreement shall terminate on the date of vesting of title in such taking and any prepaid
rent shall be apportioned as of said date. Substantially all of the Leased Premises and
the improvements thereon shall be deemed to have been taken if the remaining portion
of the Leased Premises shall not be of sufficient size to permit Tenant to operate its
business thereon in a manner similar to that prior to such taking.
(b) Allocation of Award. Any award for such taking of all or substantially all of the
Leased Premises shall be paid to the parties hereto in accordance with the following:
1. To Landlord, the amount of the award attributable to the Leased
Premises, determined as if this Lease Agreement was not in effect at the time of such
award, excluding therefrom the amount of the award attributable to the improvements, and
all other sums not directly attributable to the value of the Land constituting the Leased
Premises.
2. To Tenant, the entire award except that portion allocated to Landlord
Page 10 of 25
above, including but not limited to, the value of the improvements plus any other amount
assessed for Tenant.
(c) Partial Condemnation. If less than all or substantially all of the Leased
Premises or the improvements thereon shall be taken in the exercise of the power of
eminent domain by any sovereign, municipality, or other public or private authority, then
Tenant, at its option, may elect to continue this Lease Agreement in full force and effect
or terminate this Lease Agreement. If Tenant shall elect to maintain this Lease Agreement
in full force and effect, the entire award for such partial condemnation shall be paid over
to Tenant, and Tenant shall proceed with reasonable diligence to carry out any necessary
repair and restoration so that the remaining improvements and appurtenances shall
constitute a complete structural unit or units which can be operated on an economically
feasible basis under the provisions of this Lease Agreement. In the event Tenant elects
to continue this Lease Agreement in full force and effect after a partial condemnation, there
shall be no abatement in the Basic Rent Tenant is required to pay hereunder.
Should Tenant elect to terminate this Lease Agreement upon a partial
condemnation, Tenant shall provide Landlord with written notice of such election within
thirty (30) days after the date of vesting oftiUe for such taking. Tenant shall specify in such
written notice the date on which this Lease Agreement shall terminate, which date shall be
not less than 60 days nor more than 360 days after delivery of such notice to Landlord (the
Termination Date). In the event Tenant terminates this Lease Agreement, as provided for
in this Article 13.3, Tenant shall be entitled to the entire award for such partial taking.
(d) Temporary Taking. If the temporary use of the whole or any part of the
Leased Premises or the Improvements thereon or the appurtenances thereto shall be
taken at any time during the term of this Lease Agreement in the exercise of the power of
eminent domain by any sovereign, municipality, or other authority, the term of this Lease
Agreement shall not be reduced or affected in any way, and Tenant shall continue to pay
in full the rent, additional rent, and other sum or sums of money and charges herein
reserved and provided to be paid by Tenant, and the entire award for such temporary
taking shall be paid to Tenant. Tenant shall repair and restore any and all damage to the
Leased Premises and the improvements as soon as reasonably practicable after such
temporary taking.
(e) BANKRUPTCY OR INSOLVENCY OF TENANT. In the event Tenant is
adjudicated a bankrupt or in the event of a judicial sale or other transfer of Tenant's
leasehold interest by reason by any bankruptcy or insolvency proceedings or by other
operation of law, but not by death, and such bankruptcy, judicial sale or transfer has not
been vacated or set aside within ten (10) days from the giving of notice thereof by Landlord
to Tenant, then and in any such events, Landlord may, at its option, immediately terminate
this Lease Agreement, re-enter said premises, upon giving of ten (10) days' written notice
by Landlord to Tenant, all to the extent permitted by applicable law.
Page 11 of 25
17. DEFAULT. If Tenant shall fail or neglect to observe, keep, or perform anyofthe
covenants, terms, or conditions contained in this Lease Agreement on its part to be
observed, kept, or performed, and the default shall continue for a period ofthirty (30) days
after written notice from Landlord setting forth the nature of Tenant's default (it being
intended that in connection with a default not susceptible of being cured with diligence within
thirty (30) days, the time within which Tenant has to cure the same shall be extended for such
period as may be necessary to complete the same with all due diligence), then and in any
such event, Landlord shall have the right at its option, on written notice to Tenant, to
terminate this Lease Agreement and all rights of Ten ant under this Lease Agreement shall
then cease. Landlord, without further notice to Tenant, shall have the right immediately to
enter and take possession of the Leased Premises with or without process of law and to
remove all personal property from the Leased Premises and all persons occupying the
Leased Premises and to use all necessary force therefor and in all respects to take the
actual, full, and exclusive possession of the Leased Premises and every part of the Leased
Premises as of Landlord's original estate, without incurring any liability to Tenant orto any
persons occupying or using the Leased Premises for any damage caused or sustained by
reason of such entry on the Leased Premises or the removal of persons or property from
the Leased Premises.
18. RIGHT OF EITHER PARTY TO MAKE GOOD ANY DEFAULT OF THE
OTHER. If default shall be made by either party in the performance of, or compliance with,
any of the terms, covenants or conditions of this Lease Agreement, and such default shall
have continued for thirty (30) days after written notice thereof from one party to the other,
the person aggrieved, in addition to all other remedies now or hereafter provided by law,
may, but need not, perform such term, covenant or condition, or make good such default
and any amount advanced shall be repaid forthwith on demand, together with interest at
the rate of 9% per annum, from date of advance.
19. SIGNS. (a) Tenant shall have the right and privilege of attaching, affixing,
painting or exhibiting signs on the Leased Premises, provided (1) that any and all signs
shall comply with the ordinances of the city of Dubuque and the laws of the State of Iowa
and the Ice Harbor Urban Renewal District Design Standards; (2) such signs shall not
change the structure of any building or the premises; (3) such signs if and when taken
down shall not damage any building or the premises; and (4) such signs shall be subject
to the written approval of the Landlord, which approval shall not be unreasonably withheld.
20. MECHANIC'S LIENS. Neither the Tenant nor anyone claiming by, through, or
under the Tenant, shall have the right to file or place any mechanic's lien or other lien of
any kind or character whatsoever, upon said premises or upon any building or
improvement thereon, or upon the leasehold interest of the Tenant therein, and notice is
hereby given that no contractor, sub-contractor, or anyone else who may furnish any
material, service or labor for any building, improvements, alteration, repairs or any part
thereof, shall at any time be or become entitled to any lien thereon, and for the further
Page 12 of 25
security of the Landlord, the Tenant covenants and agrees to give actual notice thereof in
advance, to any and all contractors and sub-contractors who may furnish or agree to
furnish any such material, service or labor.
21. [INTENTIONALLY LEFT BLANK]
22. RIGHTS CUMULATIVE. The various rights, powers, options, elections and
remedies of either party, provided in this Lease Agreement, 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.
23. 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 ofthe parties
hereto.
24. 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.
25. ENVIRONMENTAL.
A. Landlord. Landlord shall assume liability and shall indemnify and hold
Tenant harmless against all liability or expense arising from any condition which
existed, whether known or unknown, at the time of execution of the Lease
Agreement which condition is not a result of actions of the Tenant or which
condition arises after date of execution but which is not a result of actions of the
Tenant.
Tenant acknowledges that the Landlord is or will be conducting remediation
on the Leased Premises and Tenant hereby grants to Landlord the right to enter the
Leased Premises forthe purposes oftesting, sampling, and conducting remediation
activities.
B. Tenant. Tenant expressly represents and agrees:
1. During the lease term, Tenant's use of the property will not include the use
of any hazardous substance without Tenant first obtaining the written consent of
Landlord. Tenant understands and agrees that Landlord's consent is at Landlord's
sole option and complete discretion and that such consent may be withheld or may
be granted with any conditions or requirements that Landlord deems appropriate.
Page 13 of 25
2. During the lease term, Tenant shall be fully liable for all costs and
expenses related to the use, storage, removal and disposal of hazardous
substances used or kept on the property by Tenant, and Tenant shall give
immediate notice to Landlord of any violation or any potential violation of any
environmental regulation, rule, statute or ordinance relating to the use, storage or
disposal of any hazardous substance.
3. Tenant, at its sole cost and expense, agrees to remediate, correct or
remove from the premises any contamination of the property caused by any
hazardous substances which have been used or permitted by Tenant on the
premises during any term of this Lease Agreement. Remediation, correction or
removal shall be in a safe and reasonable manner, and in conformance with all
applicable laws, rules and regulations. Tenant reserves all rights allowed by law to
seek indemnity or contribution from any person, other than Landlord, who is or may
be liable for any such cost and expense.
4. Tenant agrees to indemnify and hold Landlord harmless from and against
all claims, causes of action, damages, loss, costs, expense, penalties, fines, lawsuit,
liabilities, attorney fees, engineering and consulting fees, arising out of or in any
manner connected with hazardous substances, which are caused or created by
Tenant on or after the date of this Lease Agreement and during any term of this
Lease Agreement, including, but not limited to, injury or death to persons or damage
to property, and including any diminution of the value of any Leased Premises which
may result from the foregoing. This indemnity shall survive the cessation,
termination, abandonment or expiration of this Lease Agreement.
26. AMERICAN'S WITH DISABILITIES ACT. Landlord shall be solely responsible
for, and agrees to indemnify and hold Tenant harmless from, any and all repairs,
additions, claims, fines, penalties, fees or any other costs or obligation in any way imposed
by or required by or related to the American's with Disabilities Act in connection with the
Leased Premises during ht term of this Lease Agreement. Notwithstanding the foregoing,
if Tenant, with Landlord's consent, makes any alterations or improvements to the Leased
Premises, then Tenant shall be responsible for the compliance of such alterations or
improvements with the Americans With Disabilities Act.
27. ACKNOWLEDGMENT OF RIGHTS OF OTHERS. The parties acknowledge
that this Lease Agreement is subject to an Amended and Substituted Lease
Agreement, as amended, by and between the City of Dubuque, Iowa and Dubuque
Racing Association, Ltd. (the Association), with respect to the Leased Premises. The
Tenant has been provided with a copy of such Lease Agreement, as amended, and
takes the Leased Premises subject to the rights of the Association as set forth therein.
Tenant shall indemnify and hold harmless the Association from any and claims,
damages, causes of action or demands that may arise as a consequence of Tenant's
occupancy, use, or operation of the Leased Premises or portions thereof.
Page 14 of 25
28. MEMORANDUM OF LEASE AGREEMENT. Each of the parties hereto will,
promptly upon request of the other, execute a memorandum of this Lease Agreement in
form suitable for recording setting forth the names of the parties hereto and the term ofthis
Lease Agreement, identifying the Leased Premises, and also including such other clauses
therein as either party may desire.
29. NOTICES. All notices, demands, or other writings in this Lease Agreement
provided to be given or made or sent, or which may be given or made or sent, by either
party to the other, shall be deemed to have been fully given or made or sent when
made in writing and deposited in the United States mail, registered and postage
prepaid, and addressed as follows:
TO LANDLORD:
City of Dubuque, Iowa
City Manager
City Hall
13th and Central Avenue
Dubuque, Iowa 52001
TO TENANT:
Peninsula Gaming Company, L.L.C.
3rd Street - Ice Harbor
Dubuque, Iowa 52001.
The address to which any notice, demand, or other writing may be given or made
or sent to any party as above provided may be changed by written notice given by the party
as above provided.
31. MISCELLANEOUS
(a) Time of the Essence. Time is of the essence of this Lease Agreement and all
of its provisions.
(b) Governing Law. It is agreed that this Lease Agreement shall be governed by,
construed, and enforced in accordance with the laws of the State of Iowa.
(c) Paraqraph Headings. The titles to the paragraphs of this Lease Agreement are
solely for the convenience of the parties and shall not be used to explain, modify, simplify,
or aid in the interpretation of the provisions of this Lease Agreement.
(d) Modification of Agreement. Any modification of this Lease Agreement or
additional obligation assumed by either party in connection with this Lease Agreement shall
be binding only if evidenced in a writing signed by each party or an authorized
Page 15 of 25
representative of each party.
(e) Parties Bound. This Lease Agreement shall be binding on and shall inure to
the benefit of and shall apply to the respective successors and assigns of Landlord and
Tenant. All references in this Lease Agreement to "Landlord" or "Tenant" shall be deemed
to refer to and include successors and assigns of Landlord or Tenant without specific
mention of such successors or assigns.
(f) Force Maieure. In the event that either party hereto shall be delayed or hindered
in or prevented from the performance of any act required hereunder by reason of strikes,
lockouts, labor troubles, unavailability or excessive price of fuel, power failure, riots,
insurrection, war, terrorist activities, chemical explosions, hazardous conditions, fire,
weather or acts of God, or by reason of any other cause beyond the exclusive and
reasonable control of the party delayed in performing work or doing acts required under the
terms of this Lease Agreement, then performance of such act shall be excused for the
period of the delay and the period for the performance of any such act shall be extended
for a period equivalent to the period of such delay.
32. Parking Garage.
(a) Tenant agrees to provide Landlord up to one acre, as determined by Landlord,
of Tenant's property on the westerly boundary of Lot 1 of Adams Company 1 st Addition, Lot
1 of Adams Company 3rd Addition, and Lot 3 of Adams Company 2nd Addition for the
construction by Landlord of a parking garage in exchange for an equal amount of
Landlord's property in Lot 2 of Adams Company 2nd Addition fronting on Bell Street and
along the entire length of the northerly boundary of Lot 3 of Adams Company 2nd Addition.
A general drawing of the foregoing in attached as Exhibit C incorporated herein by
reference. Tenant and Landlord acknowledge that Landlord is negotiating with a developer
for the sale of Landlord's property and in the event that Landlord's property is sold to such
developer, then Tenant shall have no obligation to provide Landlord with its property as
provided in this paragraph.
(b) (i) If Landlord is successful in obtaining a federal grant that will pay 80% of the
cost of the construction of a 750-car intermodal parking facility/ramp, Tenant shall pay to
Landlord twenty percent (20%) of the cost of construction (estimated to be $2,540,000) of
the facility/ramp. (ii) If Landlord is not successful in obtaining such grant, then Tenant shall
pay to Landlord fifty percent (50%) of the cost of construction (estimated to be $6,350,000).
In either case, such amount shall be paid without interest over five (5) years. However, if
Tenant does not expand its facilities as provided in the Eleventh Amendment to the
Operating Agreement between the Dubuque Racing Association and Tenant, dated the 31 st
day of May, 2005, then Tenant shall have no obligation under this Par. 32(b) for the cost
of the construction of the parking facilitylramp. If Tenant does expand its facilities as
aforesaid, but the parking ramp/facility is constructed and not contiguous to any part of
Tenant's property, then Tenant shall have no obligation under this Par. 32(b) for the cost
of the construction of the parking facility/ramp. If, however, Tenant does expand its
Page 16 of25
Jun. 2. 2005 10:07AM .CITY OF DBQ LEGAL DEPT
. JU1'i-UJ-~uu:) ...~u u/.li09 Pn l\Hn~ NUrU:lY lit l'(t'.UlJJLiI\
FAX NO. 563 5B2 53~~' 3918 P. 6 P. 05
. .
facilities as aforesaid, Bl'ld the petrkln9 facility/ramp Is construoted contiguous to any part
of Tenant's property, then Tenant shall have the obligatIon under this Par. 32(b) for the
aforesaid cost of the parking facUlty/ramp on the aforesaid terms.
33. Tenanfs performance hereunder Is subject to:
(a) Landlord, contemporaneous herewIth, extending Itsless9wlth Dubuque Racing
Association. L TO (ORA) for Parking Lot 2. Lot OJ a nd the docking facilities
shown on ExhibIt A though December 31,2018;
(b) ORA, contemporaneously herewith, subleasing to Tenant Parking Lot 2, I.ot 0,
and the docking facilitythmugh Oecember31 , 2018 for $1.00 per year rental.
IN WITNESS WHEREOF. the parties hereto have duly executed this Lease
Agreement In duplicate the day and year first above written.
LANDLORD, CITY OF DUBUQUE, IOWA
By
Terrance M. Duggan, Mayor
By
Jeanne F. Schneider, City Clerk
TeNANT, PENINSULA GAMING COMPANY, L.L.C.
By. x ~"~ir1r;J-n. fu~ rrf}h
Its .
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this day of June, 2005, before me, , a Notary
Public in and for the State of Iowa, personally appeared Terrance M, Duggan and Jeanne
F. Schneider, to me personally known, and, who, being by me duly sworn, did say thatthey
are the Mayor and City Clerk, respectively, of the City of Dubuque, Iowa; that the seal
aff(xed to the foregoing Instrument is the corporate seal of the corporation, and that the
instrument was signed and ~eeled on behalf of the corporatIon, by authority of its CIty
Council, as contained in Resolution No. adopted by the City Council ofth. City
of Dubuque, Iowa, on the _ day of , 2005, and that they acknowledged
the execution of the instrument to be their voluntary act and deed and the voluntary act and
deed of the corporation, by It vOluntarily executed.
Page 17 of 25
Jun. 2. 2005.10:08AM09 CITY OF DBQ LEGAL DEPT
JUN-UJ-~UUO w~u U~i Po ~N~ NUKtiT ~ ~UUlv~
FAX NO. 563 582 53r~. 3918
Notary Public In and for Stateoi towa
P. 7 P
I 06
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this J Ii day of June, 2005, before me, a Notary Public in and for the State
of Iowa, personally appeared tI(J-~/~ ~ ,to me personally known, who being
by me duly sworn did say that ~ Is the ManagIng Member of 8ald limited liability
company, that fths lell16ffixed "~leb.J ;0 the seal of saieJ.)(no seal has been procured by
the said) limited liability company and that said instrument Was signed (and ~eafed) <:In
behalf of said limited liability company by authority of Its managers and the said
/'I,Pt;J./d E" ~acknowledged the execution of said Instrument to be the voluntary
act and deed of said limited liability company. by It v. luntatil exe t ,
~\
* . 'lit'
BlUM J.IWII!
00.A . ,-.....1_
..~=-
I':\WPOOCSlMlcl;yIOOCSIO/amend JD Lel1lie OlAI. "",.Ion) rJNA1..'t1P4
Page 18 of 25
EXHIBIT A
LEASED PREMISES
Page 19 of 25
II
r-u
Om
-10
om
en
~-I
U;~
~-
-. z
Cl.}>
~o
o
m
en
en
m
}>
en
m
;s:
m
z
-I
~
CJ:!
~
a:
~
(')
m
I
:l>
;ll
l:lJ
o
;ll
en/'
'~ /9
i~
1:-;
o
o
C"l
^
"
:l>
C"l
;=
~
m
><
I
-
OJ
-
-I
-
~
-
EXHIBIT B
LESSEE'S IMPROVEMENTS
Page 20 of 25
.. -
}IlU'"
......
t"
~
~.
~
~
~
.....
"
.. --.
r- \1
~\ !1
- "l.l
..~->---l- ,
.: \- .\~,.~ ~
~1i1I
~~.
~~
~.~.
~~
.~~
~. -~
~~
\.
o
,-
Z-
~
::r-
~
o\J
l
j
i
~
EXHIBIT C
Page 21 of 25
..
~ '.!.
;-;! ~~
.'.r
, ~j'
z;. t,
i~D
,,~-
~.~
If
...
.-
~ it ~ 1/
!'). _. .-.
/~Z:',,"
. ,;:"1 ..-
Ii ~
I: ~
l
Y.
"\r. OJ.
...= .,.:t-l
"
.r
'!'>.~ ~
.~, ~ ~-~~~
.~~ '-~
~il ~!;
.;;
.~..':'f.~ ...'
,;:
;, '.;.
/"
./
y
'./
",.
"
.'-
""f, /::11
INSURANCE SCHEDULE
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS
(SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE
1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All
insurers shall have a rating of A or better in the current A.M. Best Rating Guide.
2. All policies of insurance shall be endorsed to provide a thirty (30) day advance notice of cancellation to the
City of Dubuque, except for 10 day notice for non-payment, if cancellation is prior to the expiration date.
This endorsement supersedes the standard cancellation statement on the Certificate of Insurance.
3. shall furnish a signed Certificate ofInsurance to the City of Dubuque, Iowa for the
coverage required in Paragraph 6 below. Such certificates shall include copies of the following policy
endorsements:
a) Commercial General Liability policy is primary and non-contributing.
b) Commercial General Liability additional insured endorsement.
c) Governmental Immunity Endorsements.
4. Each certificate shall be submitted to the contracting department of the City of Dubuque.
5. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of
Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this
agreement.
6. shall be required to carry the following minimum coverage/limits or greater if
required by law or other legal agreement:
a) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit
Products-Completed Operations Aggregate Limit
Personal and Advertising Injury Limit
Each Occurrence Limit
Fire Damage Limit (anyone occurrence)
$2,000,000
$1,000,000
$1,000,000
$1,000,000
$ 50,000
This coverage shall be written on an occurrence, not a claims made form.
Form CG 25040397 "Designated Location (s) General Aggregate Limit"
shall be included.
All deviations or exclusions from the standard ISO commercial general liability form CG 0001, or Businessowners
form BP 0002, shall be clearly identified.
(or equivalent forms)
Page 22 of 25
INSURANCE SCHEDULE A (Continued)
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS
(SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE
Governmental Immunity Endorsement identical or equivalent to form attached.
Additional Insured Requirements:
The City of Dubuque shall be named as an additional insured on General Liability Policies
Using ISO endorsement CG 20 26 0704 "Additional Insured - Designated Person or Organization,"
Or it's equivalent. - See Specimen
b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory for Coverage A
Employers Liability:
$100,000 each accident
$100,000 each employee - disease
$500,000 policy limit - disease
c) LIQUOR OR DRAM SHOP LIABILITY
$1,000,000
(or equivalent forms)
Page 23 of 25
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and
states that the purchase of this policy and the including of the City of Dubuque, Iowa
as an Additional Insured does not waive any of the defenses of governmental
immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4
as it is now exists and as it may be amended from time to time.
2. Claims Coverage. The insurance carrier further agrees that this policy of insurance
shall cover only those claims not subject to the defense of 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 Coverage. The insurance carrier shall not deny coverage under this
policy and the insurance carrier shall not deny any of the rights and benefits
accruing to the City of Dubuque, Iowa under this policy for reasons of governmental
immunity unless and until a court of competent jurisdiction has ruled in favor of the
defense(s) of governmental immunity asserted by the City of Dubuque, Iowa.
SPECIMEN
No Other Change in Policy. The above preservation of governmental immunities shall
not otherwise change or alter the coverage available under the policy.
Page 24 of 25
POLICY NUMBER
COMMERCIAL GENERAL LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - DESIGNATED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
Name of Person Or Organization:
The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its
boards, commissions and/or authorities and their board members, employees, and volunteers.
(If no entry appears above, information required to complete this endorsement will be shown in the Declarations as
applicable to this endorsement.)
WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the
Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or
rented to you.
Copyright. Insurance Services Office. Inc. 1994
CG 20 26 11 85
Page 25 of 25
Prepared by: Brian J. Kane, KANE, NORBY & REDDICK, P.C., 2100 Asbury Rd., Ste. 2, Dubuque, IA 52001 563-582-7980
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made and entered into this _ day of June,
2005, by and between PENINSULA GAMING COMPANY, L.L.c., a Delaware limited liability
company, d/b/a DIAMOND JO CASINO and DIAMOND JO, LLC (collectively "PGC") and THE
CITY OF DUBUQUE, IOWA, an Iowa municipal corporation ("City").
RECITALS
A. PGC is the owner of certain real estate generally located at the Port of Dubuque in the Ice
Harbor in Dubuque, Iowa, and legally described as shown on Exhibit" A" attached hereto and by this
reference made a part hereof (the "Real Estate"), which Real Estate is located within the Ice Harbor
Renewal District area ofthe City. PGC and its predecessor have used the Real Estate for many years
in a commercial and recreational fashion;
B. On March 4,2002, the City Council of the City of Dubuque, Iowa, adopted the Port of
Dubuque Master Plan which includes design standards for the Ice Harbor Renewal District (the
"Standards");
C. PGC has objected to the Standards and has filed suit in the Iowa District Court for
Dubuque County, Case No.: 01311 EQCV092947, generally challenging the applicability of the
Standards to the Real Estate via a writ of certiorari and declaratory judgment action (the
"Litigation");
D. The parties have reached an agreement with regard to the resolution of the Litigation and
the applicability ofthe Standards to the Real Estate and by this Agreement set out their agreement
in writing.
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree upon the following mutual terms and conditions:
1. Applicability of Standards. The parties acknowledge that the Standards affect the Real
Estate in two respects. Part I ofthe Standards applies to "Built Form" Standards affecting buildings
and other structures and Part II ofthe Standards affects "Public Realm" areas or improvements. PGC
agrees to comply with the Built Form provisions of the Standards according to the terms of the
Standards except: (i) it is agreed that the Built Form Standards except the Maintenance Standard do
not apply to the existing Portside Facility as it exists as of the date ofthis Agreement; (ii) it is agreed
Page 1 of 12
that the Built Form Standards except the Maintenance Standard do not apply to the existing Vessels
Diamond Jo or Diamond Jo II as they exist as ofthe date ofthis Agreement; (iii) it is agreed that the
Built Form Standards except the Maintenance Standard do not apply to the existing Boarding Ramp
Barge or the turnstile/security area attached to said Boarding Ramp Barge as it exists as of the date
of this Agreement; (iv) it is agreed that PGC does not have to comply with the requirement to screen
its rooftop equipment on the Portside facility as it exists as of the date of this Agreement; (v) it is
agreed that PGC does not have to comply with the requirement to screen its rooftop equipment on
the vessels, Diamond Jo and Diamond Jo II, as it exists as of the date of this Agreement; and, (vi)
it is agreed that the Built Form Standards except the Maintenance Standard shall not apply to any and
all improvements to be undertaken by PGC to achieve permanently moored status for the exiting
Vessels Diamond Jo or Diamond Jo II or any replacements thereof including, but not limited to, a
barge(s) or any permanently moored vessel or improvements thereto allowed by Iowa law. With
respect to the Public Realm aspect ofthe Standards as applicable to the Real Estate, the parties agree
to the following:
1. Sidewalks and Walkways
a. Pedestrian accessibility and continuity/continuous sidewalk minimum offive
(5) feet wide along all public street frontage. The parties agree that the
existing sidewalks and walkways meet the Standards. No other sidewalks will
be constructed by PGC from and after March 4,2002 (the "Effective Date"),
unless PGC (or its successor in interest) undertakes further Development of
the Real Estate. It is agreed that the City will be responsible for all costs
associated with ensuring that all sidewalks and walkways installed by the City
meet the Americans With Disabilities Act (ADA) standards for accessibility.
b. Clearly defined and lighted walkways from parking area to all building
entrances. See lea) above.
2. Sidewalk Landscaping
a. Street trees required 30 to 40 feet apart. PGC shall not be required to comply
with the foregoing, unless PGC or its successor in interest sooner undertakes
further Development of the Real Estate, subject to Appeal and then only
applicable to such further Development. Once completed, PGC shall be
responsible for maintaining, including replacing, the trees.
b. Requires use of CD structural soil, drip irrigation, etc. (" ...latest, most
advanced horticultural techniques... "); PGC shall not be required to comply
with the foregoing in PGC's paved lots, sidewalks and walkways as they exist
as of the date ofthis Agreement.
c. If building fronts sidewalk require planter pots, planter boxes or hanging
planter baskets. PGC shall not be required to comply with the foregoing,
Page 2 of 12
unless PGC or its successor in interest sooner undertakes further
Development of the Real Estate, subject to Appeal and then only applicable
to such further Development.
d. Front yard area must be landscaped with trees, shrubs, ground cover and turf
grass. PGC shall not be required to comply with the foregoing, unless PGC
or its successor in interest sooner undertakes further Development ofthe Real
Estate, subject to Appeal and then only applicable to such further
Development.
3. Sidewalks on Parkways - Required to be Minimum of eight (8) Feet Wide with
Colored Concrete and scoring, etc. Does not apply to PGC's sidewalks as they exist
as ofthe date ofthis Agreement. It is agreed that the City, at its expense, will do all
landscaping, fencing, sidewalks, plantings and anything else required to comply with
the Standards on the PGC property facing Bell Street. Once completed, the PGC will
be responsible for maintaining this area; however, the City warrants that all planting
shall survive 18 months from the date of planting. Any plantings that do not so
survive will be replaced by the City at City's expense ifthe City in its sole discretion
determines to replace such plantings. If the City does not so determine in its sole
discretion to replace such plantings within the foregoing eighteen (18) month period,
PGC shall have no obligation to do so.
4. Sidewalks on local streets - minimum of five (5) feet wide, four (4) inch thick
concrete over four (4) inch deep aggregate base, stiffbroom finish with steel trawled
edge bands, etc. PGC shall not be required to comply with the foregoing, unless PGC
or its successor in interest sooner undertakes further Development of the Real Estate,
subject to Appeal and then only applicable to such further Development.
5. Walkways. Walkways on private property shall be a minimum of four (4) feet wide
and constructed of either colored concrete or brick pavers. Bituminous walkways
prohibited. PGC shall not be required to comply with the foregoing, unless PGC or
its successor in interest sooner undertakes further Development of the Real Estate,
subject to Appeal and then only applicable to such further Development.
6. Accessibility and Curb Ramps. All sidewalks and walkways must meet ADA
standards. Curb ramps must use colored concrete scored in 1 foot grid pattern and
textured, etc. PGC shall not be required to comply with the foregoing, unless PGC or
its successor in interest sooner undertakes further Development of the Real Estate,
subject to Appeal and then only applicable to such further Development. It is agreed
that the City will be responsible for all costs associated with ensuring that all
sidewalks and walkways installed by the City meet the Americans With Disabilities
Act (ADA) standards for accessibility.
7. Streetscape Furnishings. Along streets, parking areas, parks and plazas there must be
Page 3 of 12
placed benches, litter receptacles, bike racks, directory kiosks and light fixtures, etc.
PGC shall not be required to comply with the foregoing, unless PGC or its successor
in interest sooner undertakes further Development of the Real Estate, subject to
Appeal and then only applicable to such further Development. It is agreed that the
PGC is not required to install any Streetscape Furnishings on the Real Estate or any
leased property, if the PGC; would choose to install Streetscape Furnishings, such
furnishings will be selected from the Standards.
8. Bike Parking. Bike loops for parking at least three (3) bicycles must be provided
within twenty (20) feet of the main entry of any commercial, mixed use or public
building. City shall provide and install such bike parking at City's expense. PGC shall
not be required to comply with the foregoing, unless PGC or its successor in interest
sooner undertakes further Development of the Real Estate, subject to Appeal and then
only applicable to such further Development. It is agreed that the PGC is not required
to install any Streetscape Furnishings on the Real Estate or any leased property. Ifthe
PGC would choose to install Streetscape Furnishings, such furnishings will be
selected from the Standards.
9. Sidewalk Lighting. Public and private walkways and sidewalks must be illuminated
with pedestrian scale light fixtures (12 feet tall). Fixtures must include metal halide
lamps and provide evenly distributive light levels of approximately 1 foot candle.
This provision shall not apply to the Real Estate. It is agreed that the City is not going
to require PGC to install any Sidewalk Lighting on City property or the Real Estate.
It is agreed that PGC is not required to install any Streetscape Furnishings on the Real
Estate or any leased property. IfPGC would choose to install Streetscape Furnishings,
such furnishings will be selected from the Standards.
10. Parking Lot Lighting.
It is agreed that the bases for the light fixtures in the PGC parking lot on the Real
Estate do not need to be changed to meet the Standards and that the City shall be
responsible for complying with the Standards with respect to City parking lots leased
to PGc. It is agreed that the parking lot landscaping in parking lot( s) on the Real
Estate may exceed the eleven (11) space requirement to line up with the existing light
poles (or consistent with other parking lots in the Ice Harbor Renewal District) and
hide the light pole bases with plantings at PGC's expense. Lighting shall provide for
a generally even illumination pattern with an average of 3-5 foot candles. The parties
acknowledge that the lighting on the Real Estate along the Third Street overpass and
along the northerly boundary of PGC's unimproved lot shown on Exhibit A. PGC
agrees to install such light fixtures along the Third Street overpass to meet the
lighting standard by December 31, 2007. However, PGC shall not be required to
install any lighting along the northerly boundary of the unimproved lot until any
property adjacent to the unimproved lot is Developed or December 31, 2007,
whichever first occurs.
Page 4 of 12
11. Parking Lot Landscaping.
It is agreed that PGC will not be required to install drip irrigation in any existing
parking lots PGC owns as ofthe date of this Agreement. It is agreed that the City will
be responsible for all requirements to meet the Standards in the City parking lots
(even ifleased to PGC as ofthe date ofthis Agreement) and on City property located
adjacent to the Real Estate. It is agreed that the PGC will remove the plastic fence
along the Third Street overpass. This fence will be replaced with one of, or a
combination of, the following items: landscaping, hedge, or fencing, at PGC's
expense. It is agreed that PGC is not required to plant a hedge or landscape any other
part of its parking lot(s) as they exist as of the date of this Agreement until any
property adjacent to it is Developed, except as stated herein.
PGC may maintain the existing parking lot lights until December 31, 2007.
Thereafter, the Standards, as applicable to PGC, are modified as provided in sections
10, 11 and 12 herein.
Parking lot landscaping in the PGC parking lot may exceed the eleven (11) space
requirement to line up with the existing light poles and hide the light pole bases with
plantings at PGC's expense. Lighting shall provide generally even illumination
pattern with an average of3-5 foot candles.
The bases for the new light fixtures in the PGC lot need not be changed to meet the
Standards.
PGC is not required to install drip irrigation in any PGC parking lot as it exists as of
the date of this Agreement or other property it owns.
Notwithstanding the above, PGC shall comply with the Standards for parking lots,
as modified herein, on or before December 31, 2007.
12. Surface Parking.
It is agreed that the bases for the light fixtures in the PGC parking lot do not need to
be changed to meet the Standards. It is agreed that the parking lot landscaping in the
PGC parking lot may exceed the eleven (11) space requirement to line up with the
existing light poles (or consistent with other parking lots) and hide the light pole
bases with plantings at PGC's expense The City acknowledges that PGC will lose
twenty-one (21) parking spaces in the PGC parking lot, as documented by PGC. It is
agreed that PGC will not be required to install drip irrigation in any PGC parking lot
as it exists as of the date of this Agreement. It is agreed that the City will be
responsible for all requirements to meet the Standards in the City parking lots (even
if leased to PGC as of the date of this Agreement) and on City property located
adjacent to the Real Estate. It is agreed that PGC will remove the plastic fence along
Page 5 of 12
the Third Street overpass. This fence will be replaced with one of, or a combination
of, the following items: landscaping, hedge, or fencing, at POC's expense. It is agreed
that PGC is not required to plant a hedge or landscape any other part of its parking
lot(s) as they exist as of the date of this Agreement until any property adjacent to it
is Developed, except as stated herein.
PGC may maintain the. existing parking lot lights until December 31, 2007.
Thereafter, the Standards, as applicable to POC, are modified as provided in sections
10, 11 and 12 herein.
Parking lot landscaping in the POC parking lot may exceed the eleven (11) space
requirement to line up with the existing light poles and hide the light pole bases with
plantings at POC's expense. Light fixtures in the PGC parking lot will be changed to
meet the Standards with twenty-five (25) foot poles. Lighting shall provide generally
even illumination of 3-5 pattern with an average foot candles.
The bases for the new light fixtures in the PGC lot need not be changed to meet the
Standards.
POC is not required to install drip irrigation in any PGC parking lot as it exists as of
the date of this Agreement.
Notwithstanding the above, PGC shall comply with the Standards for parking lots,
as modified herein, on or before December 31, 2007.
13. Refuse. It is agreed that the City will allow continued placement ofPGC's existing
dumpster in its current location for the purpose oftrash collection until PGC builds
a storage building on its own property by December 31,2008. POC shall screen the
dumpster with fencing approved by the Design Review Committee. It is agreed that
PGC will pay BFI or any other company of its choosing for said trash removal from
said location. It is agreed that PGC will be able to haul trash to the dumpster location
in a clean, well-maintained pick-up truck, in a discreet manner, as the temporary
storage described in section 15 below becomes full. See also Section 15 below.
14. Vending Machines.
a. No outdoor vending machines. PGC agrees to this Standard as of the
Effective Date.
15. Outdoor Storage. PGC shall be allowed to store its vehicles, trailers and skid steers
on the Real Estate in the screened area described in Par. 13 until such time as the
accessory structure/building referred to below is constructed. PGC shall construct by
December 31, 2008, at its expense (or move out of the Ice Harbor Renewal District
area its existing outdoor storage), an accessory structure/building in accordance with
Page 6 of 12
the Standards on a site in the Ice Harbor Renewal District area to be approved by City
and located on the Real Estate as shown on Exhibit "A." Once the storage building
is constructed on the Real Estate, the refuse dumpsters shall be relocated to such
storage building. Temporary storage of trash (i.e. prior to transport to the dumpsters)
for the Diamond Jo vessel shall be at the stern of the vessel and shall be screened year
round by plantings in planters; such trash storage shall be emptied in a discreet
manner as needed and indicated in Par. 13 only and washed out every twelve (12)
hours and shall continue to be so emptied and washed out during the term hereof.
16. Outdoor Audio. Outdoor audio is discouraged and sound must be contained within
site boundaries. PGC agrees to this Standard as of the Effective Date and City
acknowledges that PGC has outdoor audio which as ofthe date of this Agreement has
only been heard within PGC's site boundaries and has not been in violation of the
Standards. When associated with special events, outdoor audio shall be governed by
the City's regulations for special events.
17. Fences and Screen Walls. Except as otherwise stated in this Agreement, PGC is in
compliance with these provisions and shall comply with such Standards for
Development of the Real Estate by PGC or its successor in interest subj ect to Appeal.
However, it is agreed that PGC will remove the plastic fence along the Third Street
overpass. This fence will be replaced with one of, or a combination of, the following
items: landscaping, hedge, or fencing, at PGC's expense by December 31,2006.
18. Signs. Attached hereto and by this reference made a part hereofis Exhibit "B" which
contains a signage plan agreed upon by the parties. The sign plan referred to in
Exhibit "B" shall be completed by December 31, 2007.
(a) It is agreed that the Diamond Jo will be allowed a total of 550 square feet of
wall signage on the Portside Building. This 550 square feet may be used in
a combination of signs on all sides of the Portside Building. The foregoing
550 square feet does not include the yellow casino sign on the easterly side
ofthe Portside Building and such yellow casino sign shall be removed by no
later than December 31, 2006;
(b) Free-standing main sign and directional sign will not be erected until after the
required submission by PGC and approval of a design that conforms to the
Standards;
(c) The pole sign in parking lot will be removed at the time ground sign referred
to in section 18(b) is placed;
(d) PGC will be allowed 850 square feet of vessel signs and signs as shown on
Exhibit "B";
Page 7 of 12
( e) The cards, dice, and rainbow on the vessel are permitted, shall be allowed to
remain and shall not be included in sign square footage allowable under
section 18(d);
(f) The yellow casino sign will not be removed from the stem ofthe vessel.
The changes described in sections l8(b) and (c) will be completed on or before December
31,2007. Except as provided herein, the existing signage on the Diamond Jo and Diamond Jo n is
acceptable.
a. Signs must be architecturally compatible with style of building and be part
of building and site design;
b. Signs for one location should be compatible with each other;
c. Signs must be located on a "sign band" on the building (except as shown on
Exhibit "B");
d. Sign materials must be compatible with the construction materials and
architectural style of building;
e. The following signs are prohibited: PGC agrees to this Standard as of the
Effective Date.
Pole or pylon signs
Billboards
Internally illuminated awnings (no further internally illuminated awnings; the
existing internally illuminated awning shall be removed at PGC's expense by
December 31, 2008, unless there is an unforeseen act of God or earlier
termination of useful life of such existing internally illuminated awnings, at
which time PGC shall pursue a sealed and air conditioned and heated area
accepted in accordance with the Standards
Flashing and rotating signs
Portable signs
Search lights
Audible or musical signs
Roof signs
Page 8 of12
Jun. 2. 2005 10: 07AM- CITY OF DBQ LEGAL DEPT
\I Ul'f-U I-~UU:> ~r.1I u..:U8 Ph l\""r. Nvno [ CIc nr.vv I vl\
FAX NO. 563 582 53JNt 3918 p, 3 p, 03
f. LimiLations on size, window coverag(l, ctl;:. PGC qrees to this Standard as of
tho Effective Date.
II. Dismissal of Litig.ation. In consideration of this Agreement, PGC shall dismiss the
Litigation with prej u.dice onee this ~eemellt is approved by the City COWlCU and the Managers of
PGC.
m. Mil;cellaneo.u~ This Agreement shall be binding upon the parties hereto and their
r=specti ve successors in interest and asslgr1l1, Thb Aareemmt constitutes the entire agrocmcnt ofthQ
parties with rcprd to the subject mattCl hereof and shal1 not be amended except by an insnumeIlt in
writing signed by aU arrha parties l1ereto. 'rhis Agreement shaIl be governed by and constnled in
accordance with the laws of the State ofIowa. This Agreement shall not, in any respect, restrict or
impair the ab11ity of PGC to improve. develop. sell or convey tho Real Estate. subjeot to the tC1m5
and conditions hereof. PGC is now known as Diamond J o. LLC tor all purposes of this Agreement.
lV. Appeal. POC may avait itself ofthc Appeal process set out in the Standards at any time
fTom and after tho Ellectivc Date (i.e, MaJ.'(i}] 4. 2002) without any prejudice bceauso of this
Agreement with regard to any or all matters, except as agreed herein, contained in the Standards
(including "Built Form" and "Public Realm").
V. ~ve:lopmC11t. Dev~lopmcl1t (or "developsll or "improved") forpurposes oftbis Agreement
shall mean improving the Real Bst.ate:
(1) consistent with the existing PUD dUtriot wIth a planned commereial designation. or.
(ii) any improvement or consftuction upon the Real Estate. at which time all ofthc Standards
5hall ~pply to that portion of the R~ Blrtatl: bmg developed, mbject to Appeal, except as
specitlc:ally permitted herein.
VI. IfPGC acquires or leases the portsid& building from th~ Dubuque County Historical
Society which is adjace.nr to POC's Portsfde Buildini. such acquired or leased portslde building as
it exists as of the date ot this Agreement shall be treated the same pursuant to this Agreement as
PGC's existing Ports ide FacilityfBuilding,
IN WITNESS WHEREOF, the parties have signed this Agreement the dat~ ~ yeat first
above: written.
PENINSULA GAMING COMPANY,
LLC, ^ Delaware Limited Liability
Company ("PGC")
~7L1a~
By its il\lthorized representative
~
Ptl.go 9 of12
Jun. 2. 2005 10:07AM CITY OF DBQ LEGAL DEPT
JUI'i-U I-~UU:) WW Uli. 09 Ph Mtrtr. l'turm I l'a ItI:IJV I vI\.
FAX NO. 583 582 531N~. 3918 P. 4 P. 04
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
tL:
On this I da.y of Juno. 2005. before me, a Notary Public in and for the State of Iowa,
personally appcarc(~~1 € ~ tornepmonallyknoWD, who bcingbymeduly
sworn did say that ~ Mtlf". b~f said limIted Iiabf1ity eompanYt that (~ !eat
aif!Xetl herete-4s4he et2d IJ f "&I~dHnO" seal has boen procured by the said) limited liability COl1'lpany
and that said instrument was signcd~d ~c.dt:..i)-on behalf of said limited liahility company by
QuLhorily of its J1Wlagcrs and the said acknowledged tho execution of said j trument to be the
voluntary act and deed 0 f said limited liability company, by it v hmbriJ cxe' t .
"
_____efIAN J. KANII
___1aIl NIIIlIillIr 1~
l1l'i COMMI6S1ON &)QIjREJ
JMIUIRY 12.1001'
THE CITY OF DUBUQUE, IOWA,
An Iowa Municipal CorpomtiQn rCity")
By its authorized representative
STATE OF JOWA )
COUNTY OF DtJl:lUQUE ) Y:
On this ,day of . 200S, beforemo, tho undersigned, aNotary
pubUc in and for the State ofIowa, personally appeared , to me
personally known, who being by me duly sworn. did say that hclshe is .
of the City of Dubuque, Iowa, the municipal cOJ'POtation executing th~ within and foteiQin&
instrument; that the instrument was signed on behalf of the colporation by authonty of its City
Council and lhat acknowlodscd the execution of the foregoing
instTUment to be the voluntary act and deed of the corporation, by it and by hitnlher \lolunlarily
executed.
NOTARY PUBLIC IN AND
FOR THE STATE OF IOWA
'.\WPDOCSIMIl.s,.IDOC.sIDIo'l1OIlIi Jo . elly ~Ulllnle"" ^Il M.y 30 dl)' C11~ftIQ "''''lo~ a fINAl. ~oo~. wpd
PAge 10 of 12
EXHIBIT" A"
See attached legal description and drawing.
Page 11 of 12
PL'
f$I:U.BIT A
290
"\55'
p!. -002
\
EXHIBIT "B"
See attached sign plan.
Page 12 of 12
I
~
I
01
'J
"
~
L_
.
r
.
.
~
,
-~ -:--
-~ 'f'" ....-.
"
(!)!
I