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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. /7AAh kt1&1 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 had NI- America City 'I 1 1 I' 2007 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. 072809ba1 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: -2- 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 -3- 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. -4- CITY OF DUBUQUE, IOWA STONE CLIFF WINERY By: By: Kevi S. Firnstahl, ity F:\ USERS\ tstecklelLindahl\AgreementslStoneCliffLicenseAgreement _072809.docx 072809ba1 -5- 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 -9- M MU IR PI OM MI minin;;;;;;;;;;;ww■ginu jimmimatmoirmormsibitiv,i 011.111 NINE III NENE C 1I8IHX3