Usage Agreement with Stone Cliff Winery_Amphitheater 2012-2015 THE CITY OF 41 % *****
Dubuque
DUBB E All erica City
Masterpiece on the Mississippi
2012
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: License Agreement with Stone Cliff Winery for Section of Amphitheater
DATE: July 30, 2012
In 2009 Stone Cliff Winery requested permission to use a section of the amphitheater to
have weekly outdoor movies and jam sessions. The City Council approved a three-year
License Agreement, which expires August 31, 2012.
Leisure Services Manager Marie Ware recommends City Council approval to renew the
License Agreement with Stone Cliff Winery through August 31, 2015.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Michael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Marie L. Ware, Leisure Services Manager
Masterpiece on the Mississippi
TO Michael C Van Milligen, City Manager
FROM Marie L Ware, Leisure Services Manager
DATE July 23, 2012
SUBJECT License Agreement with Stone Cliff Winery for Section of Amphitheater
Dubuque
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INTROD UCTION
The purpose of this memorandum is to request City Council approval to renew the License Agreement with Stone Cliff
Winery for a section of the Amphitheater
DISCUSSION
In 2009 Stone Cliff Winery requested permission to use a section of the amphitheater to have weekly outdoor movies and
jam sessions The City Council approved a three -year License Agreement, which expires August 31, 2012 Stone Cliff would
like to renew the agreement
Legal Department reviewed the current agreement and there were no changes except dates and current insurance
The agreement is for $900 per year and has the following restrictions
• All Stone Cliff events will be scheduled through our office and regularly held events (like the Irish Hooley) will have
priority
• Traffic in the non - licensed area cannot be restricted during Stone Cliff events
• The type of fencing used for the usage area will be approved by the City
• Events held at the Amphitheater cannot be required to allow Stone Cliff to sell food or drinks in the usage area
ACTION TO BE TAKEN
The action requested is for the City Council to renew the attached License Agreement with Stone Cliff Winery for a section of
the Amphitheater
Prepared by
MLW et
ORIGINAL
LICENSE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
STONE CLIFF WINERY, INC.
THIS LICENSE AG EEME (the "AGREEMENT ") dated for reference
purposes the co day of , 2012, is made and entered into between
the City of Dubuque, Iowa, a m nicipal corporation (City) and Stone Cliff Winery, Inc.
an Iowa Corporation (SCW).
SECTION 1. LICENSED PREMISES AND TERM
1.1. In consideration of the fee hereinafter reserved and the terms, covenants,
conditions and agreements set forth in this Agreement, City hereby permits SCW to use
the real property shown on Exhibit A, attached hereto, together with any and all
easements and appurtenances thereto and subject to any easements and restrictions
of record (the Licensed Premises "), for a term of three (3) years commencing on
September 1, 2012 and terminating at 11:59 p.m. on August 31, 2015 subject to all of
the terms, covenants, conditions and agreements contained herein.
1.2. Termination. Either party may terminate this Agreement for any reason with or
without cause upon thirty -days' written notice to the other party. Upon termination, City
shall have the right to enter the Licensed Premises and to assume exclusive use and
control of the Licensed Premises. Upon termination of this Agreement, SCW agrees to
surrender possession of the Licensed Premises in its condition as when first permitted
use or to restore the Licensed Premises to substantially the same condition, ordinary
wear and tear excepted.
1.3. Condition of Property. City shall deliver the Licensed Premises in its "as is"
condition.
SECTION 2. FEE
2.1 SCW shall pay City a fee for the use of the Licensed Premises of Nine Hundred
Dollars ($900.00) per year.
SECTION 3. IMPROVEMENTS
3.1 SCW Improvements. SCW shall not construct any improvements on the
Licensed Premises other than the placement of sleeves in the ground for fence posts to
be placed in. City at its option may require SCW to remove the sleeves from the
Licensed Premises at SCW's sole expense and SCW shall have ninety (90) days after
the termination of this Agreement to complete such removal. If SCW fails to remove the
sleeves within such ninety day period, City may cause the sleeves to be removed and
SCW shall pay the costs of such removal within thirty (30) days of receipt of a
statement therefore from City.
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3.2. Sionaoe. SCW shall not place any signage on the Licensed Premises without
the prior written approval of City's City Manager in the City Manager's sole discretion.
SECTION 4. TAXES AND UTILITIES
4.1. SCW agrees to pay to City any real estate taxes upon the Licensed Premises
that may be assessed against the Licensed Premises as a result of the use of the
Licensed Premises pursuant to this Agreement.
4.2. SCW agrees to timely pay all taxes, assessments or other public charges levied
or assessed by lawful authority (but reasonably preserving SCW's rights of appeal)
against its personal property on the premises, during the term of this Agreement.
4.3. SCW shall at all times have the right to contest in good faith, in any proper
proceedings, in the name of City if necessary, the payment or satisfaction of any such
taxes, assessments, rates, charges or levies so agreed to be paid by SCW, if the
validity thereof, or the right to assess or levy the same against or collect the same from
said Licensed Premises or improvements, shall be disputed. Upon the conclusion of
any such suit or proceedings, or not less than three (3) months prior to the date when
the right to redeem therefrom expires, whichever will be the earlier, SCW 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.
4.4. SCW shall pay all utilities for the use of the Licensed Premises.
SECTION 5. REPAIRS / MAINTENANCE
5.1. SCW shall at all times during the term of this Agreement, at SCW's own costs
and expense, keep the Licensed Premises free of liter, in good order, condition and
repair, and shall be responsible for any damage done as of result of the use of the
Licensed Premises.
SECTION 6. COMPLIANCE WITH LAW
6.1. During the term of this Agreement, SCW shall comply with all applicable laws
applicable to SCW's use of the Licensed Premises, the breach of which might result in
any penalty on City or forfeiture of City's title to the Licensed Premises.
SECTION 7. USE OF LICENSED PREMISES
7.1. SCW agrees that during the term of this Agreement, the use of the Licensed
Premises shall be exclusively for outdoor entertainment events. Outdoor entertainment
includes, but is not limited to; music, movies, the serving of food and alcohol, cooking
and serving food, and placement of lawn furniture. SCW shall observe the following
conditions:
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1) All events shall be scheduled through City's Leisure Services Department; non -
SCW reservations shall take precedent over SCW events.
2) Traffic in or use of Alliant Amphitheater area not covered in this Agreement shall
not be restricted by or during SCW events or at any other time.
3) No fencing for the Licensed Premises shall be allowed unless with the approval
of City.
4) SCW shall not require any non -SWC event sponsor using the Alliant
Amphitheater to purchase food or drinks from SCW or in the Licensed Premises.
If a non -SCW event sponsor chooses to be the sole provider of food and drink
SCW shall cancel its liquor license for the period of such event.
SECTION 8. INSURANCE
8.1. SCW shall at all times during the term of this Agreement maintain insurance as
set forth in the City's standard Insurance Schedule for Lessors of City Property, as such
uniform, standardized schedule may from time to time be amended. The current
Insurance Schedule is attached to this Agreement.
8.2. SCW shall deliver to City promptly after the execution and delivery of this
Agreement the original or duplicate policies or certificates of insurers satisfactory to City
evidencing all the insurance which is then required to be maintained by SCW
hereunder, and SCW shall, within 30 days prior to the expiration of any such insurance,
deliver other original or duplicate policies or other certificates of the insurers evidencing
the renewal of such insurance.
SECTION 9. INDEMNIFICATION
9.1. Indemnification of City. Except as otherwise provided herein, SCW shall
protect, indemnify, and save harmless City from and against all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or
asserted against City by reason of (a) any accident, injury to, or death of persons or
loss of or damage to property occurring on or about the Licensed Premises during the
term of this Agreement and resulting from any act or omission of SCW or anyone
claiming by, through, or under SCW during the term of the Agreement; and (b) any
failure on the part of SCW to perform or comply with any of the terms of this
Agreement. In case any action, suit, or proceeding is brought against City by reason of
such occurrence, SCW will, at SCW's expense, resist and defend such action, suit, or
proceeding, or cause the same to be resisted and defended by counsel approved by
City.
9.2. Indemnification of City. Except as otherwise provided herein, City shall protect,
indemnify, and save harmless SCW 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
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against SCW by reason of (a) any accident, injury to, or death of persons or loss of or
damage to property occurring on or about the Licensed Premises during the term of this
Agreement and resulting from any act or omission of City or anyone claiming by,
through, or under City during the term of the Agreement; and (b) any failure on the part
of City to perform or comply with any of the terms of this Agreement. In case any
action, suit, or proceeding is brought against SCW by reason of such occurrence, City
will, at City's expense, resist and defend such action, suit, or proceeding, or cause the
same to be resisted and defended by counsel approved by SCW.
SECTION 10. ASSIGNMENT AND SUBLETTING
10.1. SCW shall not assign or transfer this Agreement without the prior written consent
of City.
SECTION 11. NOTICES
11.1. All notices, demands, or other writings in this 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 CITY:
TO SCW:
City Manager
City of Dubuque, Iowa
50 West 13th Street
Dubuque, Iowa 52001
Stone Cliff Winery
600 Star Brewery Drive
Dubuque, IA 52001
11.2. 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.
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CITY OF DUBUQUE, IOWA
STONE CLIFF WINERY
By: By:
Kevi S. Firnstahl, ity
F:\ USERS\ tstecklelLindahl\AgreementslStoneCliffLicenseAgreement _072809.docx
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1.
INSURANCE SCHEDULE
Insurance Schedule A
'`C II furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the
coverage requirdd in Exhibit I prior to contract inception and at the end of the contract if the term of
contract is longer than 60 days. Each Certificate shall be prepared on the most current ACORD form
approved by the Iowa Department of Insurance or an equivalent.
2. All policies of insurance required hereunder shall be with a carrier authorized to do business in Iowa and
all carriers shall have a rating of A or better in the current A.M. Best's Rating Guide.
3. Each Certificate shall be furnished to the contracting department of the City of Dubuque.
4. 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.
5. All required endorsements to various policies shall be attached to Certificate of insurance.
6. Whenever a specific 150 form is listed, an equivalent form may be substituted subject to the provider
identifying and listing in writing all deviations and exclusions that differ from the 150 form.
7. Provider shall be required to carry the minimum coverage /limits, or greater if required by law or other
legal agreement, in Exhibit I.
Insurance Schedule A (continued)
Exhibit 1
A) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000
Products - Completed Operations Aggregate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
a) Coverage shall be written on an occurrence, not claims made, form. All deviations from
the standard I50 commercial general liability form CG 0001, or Business owners form BP
0002, shall be clearly identified.
b) Include I50 endorsement form CG 25 04 "Designated Location(s) General Aggregate
Limit."
c) Include endorsement indicating that coverage is primary and non - contributory.
d) Include endorsement to preserve Governmental Immunity. (Sample attached).
e) Include additional insured endorsement for:
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.
using I50 form CG 2026.
B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Coverage A
Coverage B
Statutory —State of Iowa
Employers Liability
Each Accident $100,000
Each Employee- Disease $100,000
Policy Limit - Disease $500,000
a) Policy shall include an endorsement providing a waiver of subrogation to the
City of Dubuque.
Preservation of 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 671) 4
as it is now exists and as it may be amended from time to time
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 671) 4 as it now exists and
as it may be amended from time to time Those claims not subject to Code of Iowa Section 671) 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
No Other Change m Policy The above preservation of governmental immunities shall not otherwise change or alter
the coverage available under the policy
SPECIMEN
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