Casino Hotel Parking Agreement
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MEMORANDUM
July 27, 2005
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Dubuque Casino Hotel, LLC
Corporation Counsel Barry Lindahl is recommending approval of an assignment of the
Parking Use Agreement between DRA, Dubuque Casino Hotel and the City of
Dubuque, and an assignment of the Lease Agreement between Dubuque Casino Hotel
and the City of Dubuque to Dubuque Bank and Trust as security for a loan to Dubuque
Casino Hotel LLC.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
~ t{~~Jl~
Mi6hael . Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
BAR R Y A. L I N D A H L, ESQ.
CORPORATION COUNSEL, CITY OF DUBUQUE
MEMO
To:
Michael C. Van Milligen
City Manager
DATE:
July 21, 2005
RE:
Dubuque Casino Hotel, LLC
Mike:
Dubuque Casino Hotel, LLC is requesting approval of an Assignment of the Parking
Use Agreement between DRA, Dubuque Casino Hotel and the City of Dubuque and an
Assignment of the Lease Agreement between Dubuque Casino Hotel and the City of
Dubuque to Dubuque Bank & Trust as security for a loan that Dubuque Bank & Trust
has made to Dubuque Casino Hotel LLC. These assignments are identical to the
assignments the City Council approved for Dubuque Racing Association as security for
a loan by American Trust & Savings Bank to DRA for the casino expansion.
I would recommend that the Assignment of Parking Use Agreement and Assignment of
Lease Agreement be submitted to the City Council at its August 1st meeting for
consideration.
cc: Jeffrey Walters, Esq. (w/out enc.)
Brian Kane, Esq. (w/out enc.)
Steve Krumpe, Esq. (w/out enc.)
Enclosure
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113/ FAX (563) 583-1040/ EMAIL balesq@cityofdubuque.org
Prepared by: Jeffrey L. Walters, 2080 Southpark Court, Dubuque, IA 52003 (563) 582-2926
SPACE ABOVE THlS LINE
FOR RECORDER
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE
READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY
BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY
ANOTHER WRITTEN AGREEMENT.
Re: A parcel of land containing 43.73 acres, more or less, located on Chaplain Schmitt
Memorial Island lying immediately north of the Iowa-Wisconsin Bridge as set forth
on the plat attached hereto and made a part hereof and subject to a utility and
roadway easement located on and about the southerly property line, a roadway
easement located on or about the easterly property line, and a roadway easement on
and about the westerly property line (the "Real Estate").
ASSIGNMENT OF PARKING USE AGREEMENT
This Assignment of Parking Use Agreement ("Agreement") is effective
,2005, among DUBUQUE RACING ASSOCIATION, LTD., an Iowa non-
profit corporation ("ORA"), DUBUQUE CASINO HOTEL, LLC, an Iowa limited liability company,
Lessee, ( "Borrower"), CITY OF DUBUQUE, Iowa, an Iowa municipal corporation ("Lessor") and
DUBUQUE BANK & TRUST, an Iowa banking corporation, ("Bank").
1. Recitals. Borrower has entered into a Parking Use Agreement with ORA and Lessor
under a Parking Use Agreement dated July 6, 2004, as amended by the First Amendment to
Parking Use Agreement dated May 2, 2005, a copy of which is attached as Exhibit "A".
The Bank has authorized the making a loan to the Borrower by virtue of a Loan Agreement
executed by the Borrower and the Bank of even date CLoan"). The Loan is for the benefit of
Borrower insofar as funds from the Loan will be used for the benefit of the business conducted on
the leased premises. In consideration of the promises contained in this Agreement, and of the
disbursement of part or all of the Loan by Bank, Borrower, with the consent of Lessor and ORA,
upon an uncured default under the Loan Agreement, assigns to Bank the Parking Use Agreement
referred to above during the remainder of its term, including all extensions and renewals. Upon
payment of the loan in full, Bank shall provide to Borrower, ORA and to City in recordable form a
cancellation of this Assignment.
Page 1 of 5
2. Borrower and Lessor Further Covenant and Agree:
2.1. Borrower is not now in default in the performance of the Parking Use Agreement;
Borrower, Lessor and DRA will each perform the covenants and conditions required
of it by the Parking Use Agreement for the term of the loan and any extensions or
renewals.
2.2. Borrower, Lessor and ORA will not modify or terminate the Parking Use Agreement
without the prior written consent of Bank which shall not unreasonably be withheld.
2.3. [Intentionally left blank.]
2.4. If Borrower defaults in the performance of any of its obligations under the Loans,
any renewals or extensions, or of any related agreement, then Bank, at its option,
may, without notice except as may be required under the Loan Agreement, using
such force as may be necessary, enter said leased premises and do anyone or
more of the following: (1) Remove all personal property of Borrower that is pledged
as collateral for the Loans; (2) Sell such personal property; (3) Transfer and assign
the Parking Use Agreement and Borrower's rights in it to parties satisfactory to
Bank, Lessor, ORA and the Iowa Racing and Gaming Commission, and upon
assignment the obligations of the Parking Use Agreement shall be binding on such
transferees. In the event that Bank undertakes the options provided in Subsections
(1) or (2), it shall have no obligation other than payment of rent accruing during the
period of its possession of the premises. In the event that Bank transfers the
Parking Use Agreement as provided in Subsection (3), Bank will cure all defaults
in said Parking Use Agreement.
3. Subordination. Lessor and DRA subordinate any lien they have or may have on the
personal property of Borrower that is or may be security for the Loans to Bank's liens on
Borrower's or DRA property, and to Bank's rights under this Agreement. This subordination
shall be effective regardless of whether or not the collateral constitutes fixtures. For the
purposes of this Agreement, the term "liens" specifically includes any Landlord's lien under
Chapter 570, Code of Iowa, as amended, to which the Lessor or DRA may be entitled.
4 Warranty of Title. Lessor warrants that title to the leased premises is held by it in fee
simple subject to a lease with DRA. Lessor and DRA each has full power and authority to
enter into this Agreement.
5. Notices. All notices under this Agreement shall be in writing and shall be deemed
delivered if delivered in person, if sent by certified mail (postage prepaid, return receipt
requested), telegraph or facsimile, as follows:
If to Bank:
Oubuque Bank & Trust Company
1398 Central Avenue
Dubuque, IA 52001
Page 2 of 5
If to Borrower:
Oubuque Casino Hotel, LLC
CIO Mr. Wayne A. Briggs, President
137Main Street, Suite 400
Dubuque, IA 52001
If to DRA:
Dubuque Racing Association, Ltd.
Post Office Box 3190
Dubuque, IA 52004-3190
Attn: Bruce Wentworth, General Manager
If to Lessor:
City of Dubuque
City Hall
50 West 13th Street
Oubuque, IA 52001
Attn.: Michael C. Van Milligen, City Manager
6. Applicable Law; Severability. This Agreement shall be subject to, construed and enforced
in accordance with the laws of the State of Iowa. If any provision of this Agreement is held
invalid under applicable Law, such invalidity shall not affect any other provision of this
Agreement that can be given effect without the invalid provision, and to this end, the
provisions hereof are severable.
7. Binding Effect; Assignment. This Agreement shall inure to the benefit of and be binding
upon the successors and permitted assigns of the parties. Neither Borrower nor Lessor
shall assign any of its rights or obligations hereunder without the prior written consent of
Bank.
8. Interpretation; Headings. Words and phrases herein shall be interpreted and understood
according to the context in which they are used. The headings in this Agreement are
intended solely for convenience of reference, and shall be given no effect in the
construction or interpretation of this Agreement.
9. Entire Agreement; Counterparts; Remedies Cumulative. This Agreement, including any
Exhibits, all of which are incorporated by this reference, and the documents executed and
delivered pursuant hereto, constitute the entire agreement between the parties, and may
be amended only by a writing signed by each party. All agreements, instruments and
documents referred to in this Agreement are by this reference made a part of this
Agreement for all purposes. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which together
shall constitute but one and the same instrument. The parties shall have, in addition to the
rights and remedies provided by this Agreement, all those allowed by all applicable laws,
all of which shall be in extension of and not in limitation of those provided hereunder.
10. Waivers. Except as herein expressly provided, no waiver by either party of any breach of
this Agreement, or of any warranty or representation hereunder, shall be deemed to be a
waiver by the same party of any other breach of any kind or nature (whether preceding or
succeeding the breach in question, and whether or not of the same or similar nature).
Page 3 of 5
10.1. No acceptance by a party of payment or performance after any such breach shall
be deemed to be a waiver of any breach of this Agreement or of any representation
or warranty hereunder, whether or not the party knows of the breach when it
accepts such payment or performance.
10.2. No failure by a party to exercise any right it may have under this Agreement or
under law upon another party's default, and no delay in the exercise of that right,
shall prevent it from exercising the right whenever the other party continues to be
in default. No such failure or delay shall operate as a waiver of any default or as a
modification of the provisions of this Agreement.
11. Attorney's Fees. If any action at law or in equity, including an action for declaratory relief,
is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall
be entitled to recover reasonable attorney's fees and costs of litigation from the other party.
Such fees and costs of litigation may be set by the court in the trial of such action or by the
arbitrator, as the case may be, or may be enforced in a separate action brought for that
purpose. Such fees and costs of litigation shall be in addition to any other relief which may
be awarded.
Effective as of the date first written above.
City of Dubuque
By
Terrance M. Duggan, Mayor
By
Jeanne F. Schneider, City Clerk
Dubuque Bank & Trust Company
DRA
By
STATE OF IOWA, DUBUQUE COUNTY) ss:
By
On this _ day of , 2005. before me, the undersigned, a Notary Public
in and for the State of Iowa, personally appeared and
to me personally known, who, being by me duly sworn, did say that
they are the President and Secretary, respectively, of Dubuque Racing Association, Ltd., executing
the within and foregoing instrument, that no seal has been procured by the corporation; that said
instrument was signed on behalf of the corporation by authority of its Board of Directors; and that
as President and as Secretary,
Page 4 of 5
acknowledged the execution of the foregoing instrument to be the voluntary act and deed of the
corporation, by it and by them voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this /3 day of d tv '--7 ,2005, before me, a Notary Public in and
for the State of Iowa, personally appeared Wayne Briggs, to me personally known, who
being by me duly sworn did say that he is the Managing Member of said limited liability
company, that no seal has been procured by the said limited liability company and that said
instrument was signed on behalf of said limited liability company by authority of its
managers and the said Wayne Briggs acknowledged the execution of said instrument to
be the voluntary act and deed of said limited liabili omp y, b it voluntarily executed.
\
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$ BAlAN J. KANe
. "F ... 1/' - .......12seoa
* .. IIfIXMUII&lDNE>>'lRES
.-uARV 12.1DI11
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this _ day of I 2005, before me, the undersigned, a Notary Public
in and for the State of Iowa, personally appeared Terrance M. Duggan and Jeanne F. Schneider,
to me personally known, who, being by me duly sworn, did say that they are the Mayor and City
Clerk, respectively, of the City of Dubuque, Iowa, executing the within and foregoing instrument,
that no seal has been procured by the City; that said instrument was signed an behalf of the City
by authority ofthe City Council; and that Terrance M. Duggan and Jeanne F. Schneider, as Mayor
and City Clerk, acknowledged the execution of the foregoing instrument to be the voluntary act
and deed of the City, by it and by them voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this _ day of , 2005, before me, the undersigned, a Notary Public
in and far the State of Iowa, personally appeared , to me personally
known, who, being by me duly sworn, did say that _ is a of Dubuque
Bank & Trust Company executing the within and foregoing instrument, that the seal which appears
below is the seal of the corporation; that said instrument was signed on behalf of the corporation
by authority of its Board of Directors; and that as
acknowledged the execution of the foregoing instrument to be the voluntary act and deed of the
corporation, by it and by _ voluntarily executed.
Notary Public, State of Iowa
Page 5 of 5
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Prepared by: Brian J. Kane, Kane, Norby & Reddick, P.C., 2100 Asbury Rd., Ste. 2 Dubuque, lA 52001563-582-7980
PARKING USE AGREEMENT
THIS P ~G USE AGREEMENT ("Agreement") is made and entered into effective the
~ day o~004, by and between the DUBUQUE RACING AS SOCIA nON, LTD, an Iowa
nonprofit corporation ("DRA"), and DUBUQUE CASINO HOTEL, L.L.C., an Iowa limited liability
company ("DCH") and The City of Dubuque, an Iowa municipal corporation ("CITY").
RECITALS
A. CITY and DRA entered into that certain lease dated March 31,2004 with regard to
certain real estate (described on Exhibit "A" attached hereto and by this reference made a part
hereof), (the "Prior Lease");
. h~ ~
B. CITY and DCH are parties to a lease date~fJlme' v . 2004 (the "Lease") located
upon real estate fonnerly leased by DRA pursuant to the Prior Lease. upon which DCH shall
develop and construct a hotel, restaurant. and other improvement (the "Project"); and,
C. For the purpose oflessening the burden of the City's duties with respect to providing
parking areas and parking area maintenance for the Project pursuant to the City-DCH Lease, DRA
agrees to enter into this Parking Use Agreement with the City and DCH.
D. The parties have entered into this Agreement to provide for parking for the Project.
THEREFORE, for good and valuable consideration, the receipt and sufficiency ofwmch is
hereb~ acknowledged, the parties agree upon the following mutual terms and conditions:
1. Term of Agreement. The term of this Agreement (the "Term" shall commence on
the date thirty (30) days immediately prior to the anticipated date of the issuance of the Certificate
of Completion (as defined the Lease), and shall terminate upon the expiration or termination oithe
Lease. This Agreement shall be transferable, without further consent, with the Lease.
2. Parking and Lel!al Description. During the Term of this Agreement, the DRA shall
provide to DCH sufficient space on the real estate leased by DRA under the Prior Lease such that
DCH can construct a surface lot for vehicular parking, sidewalks,landscaping, and lighting for such
parking area, in the areas designated Phase I parking and legally described on Exhibit A attached
hereto (the "Phase I Parking Area") for the non-exclusive use by DCH, and its guests, vendors,
suppliers and employees. The Phase I Parking Area shall include pedestrian access and vehicular
access to the Phase I Parking Area from, among other things, the Project. DRA and DCH agree that
the Phase I Parking Area shall include a minimum of 400 parking spaces for the benefit of the Phase
1
I Improvements (as defined in the Lease). DRA shall pay to DCH the first $220,000.00 in cost
related to construction of the Phase I Parking Area. Such payment shall be made in a manner as to
allow the funds to be available to DCH when DCH is required to pay its contractors related to such
construction. In the event that the DCH constructs the Phase IT Improvements (as defmed in the
Lease), DRA shall provide sufficient space on the real estate leased by DRA under the Prior Lease
such that DCH can construct a surface lot for vehicular parking in the areas designated Phase IT
parking or as described on Exhibit A (the "Phase IT Parking Area") for the non-exclusive use by
DCH and its guests, vendors, suppliers and employees. The Phase II Parking Area shall include
pedestrian access and vehicular access to the Phase II Parking Area from, among other things, the
Project. DRA and DCH agree that the Phase II Parking Area shall include a minimum of an
additional 100 parking spaces for the Phase II Improvements (a minimum of 500 parking spaces
combined for both Phase I and Phase IT projects). DCH shall be responsible for all costs associated
with construction of the Phase II Parking Area. For purposes of this Agreement, Phase I Parking
Area and Phase II Parking Area shall collectively be referred to as the "Parking Area" The parties
shall mutually agree to the specifications of construction of the Parking Area.
During the term of the Prior Lease or any extension thereof, DRA shall be responsible for
all routine day to day custodial maintenance of the Parking Area during the Term of this Agreement,
including, without limitation, lighting, sweeping, trash collection, landscape trimming, snow
removal and clearing of ice from the Parking Area. DRA shall be responsible, at no cost to DCH,
for the replacement, repair and other maintenance associated with the Parking Area, including,
without limitation, the repair, replacement and maintenance of lighting, surface potholes, surface
reconstruction and restoration, landscape replacements, parking space striping and re-caulking of
the parking area. DCH, and its guests, vendors, suppliers and employees, shall at all times have
reasonable access to the Parking Area and DRA and/or CITY shall keep the Parking Area reasonably
clear at all times in order that DCH, and its guests, vendors, suppliers and employees, may use the
Parking Area. DRA shall be responsible for obtaining and maintaining all necessary permits for the
construction and operation of the Parking Area, including all necessary permits to allow the
collection, retention and discharge of stormwater. Prior to construction of the Parking Area, DRA
shall be responsible for security in the Parking Area, DRA and DCH shall meet to discuss and agree
on the layout of the Parking Area. The Parking Area and aU streets leading to the Parking Area shall
be constructed in a manner to allow heavy truck access. However, in the event of a termination of
the Prior Lease for any reason, DCB shall assume and perform for all of DRA's duties and
responsibilities as set forth in this paragraph.
3. Pedestrian Ingress/Egress. DRA shall provide a reasonably direct and convenient
means of public pedestrian ingress and egress to the Parking Area. Such pedestrian access shall
include a connection to the public sidewalk fronting and connecting the Project. Such pedestrian
access shall comply with the handicap accessibility standards applicable at the time the Parking Area
is constructed including, but not limited to, the Americans with Disabilities Act.
4. Outdoor Storage Prohibited. DCH shall not cause, allow or permit any outdoor
2
storage of any materials, objects or things of any kind, including refuse, trash or garbage, at any time
on the Demised Premises. Notwithstanding the foregoing, refuse storage is permissible in an
accessory storage enclosure if the City Manager determines that the structure is in character with
the principal building and constructed of the same quality permanent materials as the principal
building. The accessory structure shall be within close proximity to the principal structure. Where
the structure exceeds 200 square feet in area, at least 1/3 of the structures exterior perimeter shall
be landscaped with ornamental trees and shrubs.
5. Vehicular IngresslEgress. DRA shall provide a reasonably direct and convenient
means of public vehicular ingress and egress between the public streets adjoining the Parking Area
and the Parking Area. The vehicular access shall be sufficient to permit automobiles, sports utility
vehicles, vans and buses to be driven from the street to the Parking Area and back to the street
without being blocked by parked vehicles or other obstructions. DRA shall be responsible for cost,
maintenance, and repair of all non-public streets at no cost to neH, for all non-public streets,
landscaping and lighting for the Parking Area, such non-public streets, landscaping and lighting
shall be consistent with the character of the surrounding area.
6. Hold Over Vehicles. Any unauthorized vehicles using the Parking Area may be
removed by DRA at any time by any lawful means.
7. Rental. DCH shall pay $5,000.00 per year to DRA as of the commencement date and
each year annually hereunder for the use of the Parking Area pursuant to this Agreement. The
parties agree that full and adequate consideration for the obligations undertaken by DRA pursuant
to this Agreement has been provided by the obligations undertaken by DCH as Lessee pursuant to
the Lease.
8. Relationship Between Parties. It is mutually understood ~d agreed that nothing in
this Agreement shall be construed as establishing a relationship oflessor/lessee, principal/agent or
co-partners between DRA and DCE and CITY.
9. Reciprocal Covenants. DCH covenants and agrees that the DRA and CITY shall
have no responsibility for, or liability arising from, any release of Hazardous Substances (as defmed
in the Lease) on or under the Parking Area, which is caused by DCH, or its guests, vendors,
suppliers, or employees. CITY agrees that DCH shall not have any responsibility for any Hazardous
Substances existing or found on or under the Parking Area (except for Hazardous Substances
deposited by DCH or its agents or assigns). There shall be a rebuttable presumption that any
Hazardous Substances found on or under the Parking Area were not deposited by DCH. Except for
Hazardous Substances released or deposited by neH or its agents or assigns on the Parking Area,
CITY shall retain any legal responsibility or liability, subject to available defenses, CITY may have
under law for any Hazardous Substances existing, located or found on or under the Parking Area.
This retained responsibility and duty includes the duty to assess, remove and remediate any
Hazardous Substances on or affecting the Parking Area as ordered by a state or federal agency,
3
subject to the availability of a comfort letter. This provision shall not inure to the benefit of third
parties and shall not be interpreted to enlarge any liabilities owed by CITY or to require CITY to
absorb any duties, responsibilities or liabilities that it does not already have for Hazardous
Substances existing, located or found on or under the Parking Area. To the fullest extent allowed
by law, CITY agrees to indemnify DCH for reasonable costs and expenses associated with
responding to any legally enforceable order regarding Hazardous Substances from any governmental
agency or court with proper jurisdiction to the extent that CITY, after DCB has given reasonable
notice of the governmental order to CITY, does not timely and reasonably respond to said inquiry
or order and if CITY allows full access to the Parking Area as necessary, as provided herein. CITY's
right of appeal and negotiation are not waived by the foregoing and the filing of an appeal or
negotiation with the governmental agency are considered timely and reasonable responses. However,
CITY agrees to indemnify DCH for any penalties and fines DeB incurs as a result of any such
appeal or negotiation. CITY shall minimize any disruption and will not materially or unreasonably
restrict or interfere with the use of the Parking Area by DCH or its guests, vendors, suppliers or
employees. In the event CITY restricts or interferes with the use of any part of the Parking Area,
CITY shall provide DCH, and its guests, vendors, suppliers and employees, with access to
reasonably comparable parking within a close proximity ofthe Project for the period of time that
the portion of the Parking Area is not available.
10. Right of First Refusal. IfDRA desires to sell, lease, develop, assign or otherwise
transfer (collectively referred to herein as a "Transfer") all or any part of the Parking Area and/or
any property to be used for Phase n Improvements (as defmed in the Lease) during the term of this
agreement, DCH shall have an option and right of first refusal to purchase or lease such property,
as the case may be, or any part thereof to be transferred, as provided in this Section 10. IfDRA has
received a bona fide offer to purchase or lease such property as described in this Section 10 from
a third party which DRA desires to accept, DRA shall deliver to DCH a copy of such offer
specifying the name and address of the prospective transferee, the portion of the property hereunder,
as the case may be, to be transferred, the proposed purchase price or lease payment and all other
important terms of the proposed Transfer, and DRA shall offer to sell, transfer or lease such
property, as the case may be, to DCH on the exact terms contained in such bona fide offer. DeB
shall, within sixty (60) days after receipt ofa copy of such bona fide offer, by written notice toDRA,
elect either to: (a) exercise its rights offirst refusal to purchase or lease, as the case may be; or (b)
waive its right offirst refusal to purchase or lease pursuant to such notice with regard to the property
covered by this Section 10 proposed to be transferred. If DCH exercises its right of first refusal,
DRA shall transfer or lease, as the case may be, such property to DCH within ninety (90) days of
the exercise by DCB of this right of first refusal. If DCH waives its right of first refusal in the
manner set forth above, DRA shall have the right, for a period of one (l) year after the date of
DCH's waiver, to consummate the Transfer upon terms and conditions exactly the same as and no
less favorable to DRA than those contained in the bona fide third-party offer. Provided,
notwithstanding any waiver by DCH of its right of first refusal, the Transfer of the Property to any
third party shall be subject to the terms of this Agreement. If a proposed Transfer is not
consummated within the aforementioned one (1) year period following waiver by DCH, the Property
4
covered by this Section 10, as the case may be, shall not thereafter be released from the effect of this
Section 10.
11. Remedies. Except as otherwise provided in this Agreement, in the event of any
default in or breach of this Agreement, or any of its terms or conditions, by any party, or any
successors, such party (or successors) shall, upon written notice from the other party, proceed
promptly, and, in any event, within thirty (30) days after receipt of such notice, to cure or remedy
such default or breach. In case such action is not taken or not diligently pursued, or default or
breach shall not be cured or remedied within a reasonable time, the aggrieved party may institute
such proceedings as may be necessary or desirable in its opinion to cure and remedy such default
or breach, including, but not limited to, proceedings to compel specific performance by the party in
default or breach of its obligations. Notwithstanding anything herein to the contrary, either party
may, after the above 30-dayperiod, cure the default of the other party and seek recovery of the cost
for such cure from the other party. The prevailing party in any actions brought under this paragraph
shall be entitled to recover reasonable attorneys fees and court costs and interest on unpaid sums at
the rate of ten percent per annum from the date due.
12. Notices. A notice, demand or other communication under this Agreement by any
party to the other party(ies) shall be sufficiently given or delivered ifit is dispatched by registered
or certified mail, postage prepaid, return receipt requested, or delivered personally,
(a) In the case ofDRA, is addressed to Dubuque Racing Association, LTD, Attn: Mr.
Bruce Wentworth, 1855 Greyhound Park Rd., Dubuque, IA 52001;
(b) In the case ofDCH, is addressed to Dubuque Casino Hotel, LLC, Attn: Mr. Wayne
A. Briggs, 137 Main S1., Ste. 400, Dubuque, IA 52001;
(c) In the case of CITY, is addressed to City of Dubuque, Iowa, Attn: Mr. Michael C.
Van Milligen, 13th S1. & Central Ave., Dubuque, IA 52001;
or to such other person or address with respect to any party as that party may from time-to-time
designate by notice to the other party as provided in this Section. Any notice delivered hereunder
shall be deemed delivered upon the earlier of the actual receipt or two (2) business days after
posting.
13. Governing Law. It is agreed that this Agreement shall be governed by, construed and
enforced in accordance with the laws of the State ofIowa.
14. Amendments. Any amendment or modification of this Agreement shall be binding
only if evidenced in a writing signed by an authorized representative of each party.
15. Parties Bound. This Agreement (i) shall follow and run with the Lease between
5
CITY and DCH, and (ii) shall be transferable with the Lease, and (iii) shall remain in effect for the
length of the Lease (as defined therein) and the extension referred to in Par. 1.1 of the Lease. This
Agreement shall be binding on and shall inure to the benefit of the parties and their respective
successors in interest and assigns.
16. City Bound Upon Termination of Prior Lease. In the event the Prior Lease
terminates for any reason, prior to the end of the Term (or any extensions or renewals) provided
herein, CITY agrees that, except for the maintenance obligations described in Par. 2, it will continue
to be bound by the terms of this Parking Use Agreement and shall succeed to the rights and
obligations ofDRA herein. In the event that upon termination of the Prior Lease, City enters into
a subsequent lease of Dubuque Greyhound Park & Casino, City shall require that the lessee in such
lease shall be responsible for the maintenance obligations described in Par. 2 for the term of such
lease.
17. Limitation on City's Financial Obligations. Nothwithstanding any other provision
in this Agreement, the City shall have no fmancial obligation of any kind to DCH for any
improvements to the Demised Premises, the parking areas or otherwise.
18. Financing Condition. This Agreement is subject to DCH obtaining financing from
or through a local fmancial institution on prevailing terms for no less than eighty percent (80%) of
the cost of the Project (as depicted in the Lease). .
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
effective the day first above written.
DUBUQUE RACING ASSOCIATION, L TD
4-t'---~ ~~ ~~J-
By Its authonzed representatIve .
CITY OF DUBUQUE, IOWA
6
CITY.-GF DUBUQUE, lOW A
~ ~ /I
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y its City Clerk
[NOTARY BLOCKS TO BE ADDED ON PARKING USE AGREEMENT]
7
State of Iowa )
) ss:
County of Dubuque)
On this 1'.k~ day of tM , 20Q4, before me, a Notary Public in and
for said state, personally aPpeared L2,-e:- <: .~ , to me known to be
the person named in and who executed the foregoing instrument, and acknowledged
that he executed the same as h~S volu~ta act and. deed. ._/.~
"..'Oot 4'" vllSAN ~.. WINTER / 1
~"~4<".,. Cor,,:I~jSION NO. 183274 .
': ~:- AH .., .';-W.JiSSION EXPIRES .
10";;::- 2/14/05 A: ~
otary PUDlic in the State 'of Iowa
State of Iowa )
) ss:
County of Dubuque)
On this 1?t"'L day of at-A/~ ,2004, before me, a Notary Public in and
for said state, personally appecired // hZ U /../.c./?/ ~~ "7 to me known to be
the person named in and who executed thifforegoing instr nt, and acknowledged
that he executed the same as his voluntary act and deed.
State of Iowa )
) ss:
County of Dubuque )
On this c; ..-'-L. day of 1 ~ . ;:y;?i1-/ ,before me, the
undersigned, a Notary Publfe"in an or the State of Iowa, personally appeared Terrance
M. Duggan and Jeanne F. Schneider, to me personally known, who, being by me duly
sworn, did say that they are the Mayor and City Clerk, respectively, of the City of
Dubuque, Iowa; a municipal corporation; that the seal affixed to the foregoing
instrument is the corporate seal of the corporation, and that the instrument was signed
and sealed on beha~ 9f the corporation, by authority of its City Council ~ a passed by
ResolutJono- ??~t1 L of the City Council on the (/ ~~ day of ~ 1
.?I?1.Y~ , and Terrance M. Duggan and Jeanne F. Schneider, ac wledged 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.
.......IH e ~ ~;ut.MI M. WINTER
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low~ f 2./14/05
EXHIBIT A
PARKING AREAS
See attached.
.,
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Prepared by: Brian J. Kane, KANE, NORBY & REDDICK, P.c., 2]00 Asbury Rd., Ste. 2, Dubuque, IA 52001 563-582-7980
FIRST AMENDMENT TO PARKING USE AGREEMENT
This First Amendment to Parking Use Agreement ("Amendment") is made and entered into
effective this 2nd day of May , 2005, by and between DUBUQUE RACING
ASSOCIATION , LTD., an Iowa nonprofit corporation ("DRA"), and DUBUQUE CASINO HOTEL,
L.L.C., an Iowa limited liability company ("DCH"), and THE CITY OF DUBUQUE, an Iowa
municipal corporation ("CITY").
REelT ALS
(A) DRA, DCH, and CITY entered into that certain Parking Use Agreement effective
July 6,2004 (the "Agreement") which Agreement, among other things, granted DCH
use of certain real estate leased by DRA from CITY for the construction of a surface
lot for vehicular parking, sidewalks, landscaping, and lighting for such parking area,
with such construction to be in two phases, Phase I and Phase n, as provided under
the Agreement; and,
(B) Exhibit "A" to the Agreement showed the original Phase I and Phase II parking areas.
Since the date of the Agreement (i.e., July 6, 2004), there has been significant
engineering with regard to the subject matter of the Agreement, and the parties
recognize that certain changes or modifications to the Agreement should be made,
which the parties desire to reduce to writing, all pursuant to Section 14 of the
Agreement.
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. DCH shall construct a surface lot for vehicular parking, sidewalks, landscaping, and
lighting for the parking areas designated as Phase I and Phase n on the attached
Exhibit "AA," which exhibit replaces Exhibit "A" attached to the Agreement. The
parties acknowledge that Exhibit "AA" contemplates 450 parking spaces, more or
less, as opposed to the 500 parking spaces contemplated by Exhibit "A" to the
Agreement, because of engineering, internal roadways, landscaping islands, etc. In
consideration of the construction at this time by DCH with respect to Exhibit "AA,"
DRA agrees to pay DCH $76,397.50 on or before June 1,2005, or when the parking
lot and other aforesaid improvements thereto are substantially finished, whichever
first occurs. DCH agrees to repay to DRA $76,397.50 upon the earlier to happen of
the following:
(a) IfDCH sells its hotel and restaurant; or,
(b) Substantial completion ofthe expansion ofthe hotel as stated in Section 2 of
the Agreement; or,
(c) On June 1,2010.
Payment ofthe foregoing amount, without interest, shall be made within thirty (30)
days of any of the foregoing events.
2. DRA agrees to pay DCH $220,000.00, pursuant to Section 2 of the Agreement, by
NA ,2005.
3. In all other respects, the parties affirm and ratify the Agreement, except as
specifically amended by this Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
effective the day first above written.
DUBUQUE RACING ASSOCIATION, LTD.
.6~
By its authorized representative
DUBUQUE CASINO HOTEL, L.L.C.
F:\WPDOCS\Mrssy\DOCS\DBQ Racing Assn - Dubuque Casino Ho\elln Amendment to Parking Use Agrcemcnt.wpd
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
This instrument was acknowledged before me on the /'1 day of AI'/''' /
2005, by
r:~z.#.. KATHRYN MALONE
~ ~.!I! ~ Commission Hum ar 11 486
. 10';;:- My Comm. Ellp.
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NOTARY LIC IN AND
FOR THE STATE OF IOWA
STATE OF IOWA
DUBUQUE COUNTY
Ji
This instrument was acknowledged before me on the Cr day of ~/L
2005, by Wayne A. Briggs, as President of Dubuque Casino Hotel, L.L.c.
)
) ss:
~
.....
BRIAN J. KANE
QlmII1ISlIIOll Nun1b8r 1258113
t6f~~
STATE OF IOWA )
DUBUQUE COUNTY ) ss:
On thi~ day of '/ ,2005, before me, the undersigned, a Notary
Public in and for said State, persona lyap eared Terrance M. Duggan, to me personally known, who
being by me duly sworn, did say that he is the Mayor of The City of Dubuque; that no seal has been
procured by the said corporation that said instrument was signed on behalf of said corporation by
authority of its Board of Directors; and that the said Mayor, as such officer, acknowledged the
execution of said instrument to be the voluntary act and de f said corpora ion, by it and by him
voluntarily executed.
t-1l..'Al.... SUSAN M. WINTER
~ .: ~ COMMISSION NO.183274
I -' MY COMMISSION EXPIRES
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EXHIBIT "AA"
See attached drawing.
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