Diamond Jo Devel Agreement POD Parking Ramp'THE CITY OF
DUB E
~-~~
MEMORANDUM
February 1, 2007
TO: The Honorable Mayor and City Council Members '-
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Development Agreement with Diamond Jo, LLC for the Financing and
Construction of a Public Parking Ramp in the Port of Dubuque
The City of Dubuque has committed to build a 750-car public parking ramp at an
estimated cost of approximately $13 million in the Port of Dubuque. This commitment
appears in the Development Agreement with Wayne Briggs to construct his $63 million
mixed-use project and the City has made the same commitment to the Vision Iowa
Board to help the Dubuque County Historical Society leverage a State grant to expand
the National Mississippi River Museum and Aquarium. The City has a Capital
Improvement Project budget item for this project and is prepared to perform should this
Development Agreement not be approved.
The Diamond Jo approached the City asking that consideration be given to a larger
parking ramp on a quicker construction schedule that would have no fee charged to the
public for parking. The request is fora 1,200-car parking ramp by August 1, 2008.
The City and the Diamond Jo have negotiated a Development Agreement that includes:
• The City will design and construct a 1,200-car public parking ramp by August 1,
2008, at an estimated cost of approximately $23 million.
• Consistent with a previous agreement with the Diamond Jo, they will place $6.35
million in an escrow account towards the cost of the public parking ramp. With a
construction contingency and depending on the construction bids, additional
dollars will need to be escrowed.
• The City will issue 30-year tax increment financing bonds for the remaining cost
of the public parking ramp, with the repayment revenue stream coming from a
Minimum Property Tax Assessment Agreement signed by the Diamond Jo on
their new casino complex.
• Any costs over approximately 110% of the construction contract must be
approved by the Diamond Jo.
• To achieve the Diamond Jo goal of customers of the public parking ramp not
being charged for parking, the Diamond Jo agreed to the following:
o The Diamond Jo agrees to pay for the costs of all operations,
maintenance, repair and security of the public parking ramp.
o The Diamond Jo agrees to contribute $80 per year per space (estimated
at $96,000) to a sinking fund to cover capital repairs and maintenance.
This will be a public parking ramp owned and operated by the City for use by the
general public. The total value of development that will occur with these multiple Port of
Dubuque projects, including Wayne Briggs, Durrant, Diamond Jo, Dubuque County
Historical Society and the parking ramp is estimated at $163 million.
Economic Development Director Dave Heiar is recommending approval of this
Development Agreement.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
~~ L
Michael C. Van Mi ligen
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
_.~°~
THE CITY OF ~ `
-., _...
-~-~ ~~ =~-s._~~ MEMORANDUM
~~°~-~-~
January 30, 2007
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director
SUBJECT: Development Agreement with Diamond Jo, LLC or the Financing and
Construction of a Public Parking Ramp in the Port of Dubuque
INTRODUCTION
This memorandum provides for Council consideration a development agreement to
finance and construct a public parking ramp in the Port of Dubuque which would be
located between the proposed Diamond Jo building and the mixed use construction
proposed by Wayne Briggs (see attached map). A resolution is attached to approve the
development agreement.
BACKGROUND
Staff has been working with Diamond Jo, LLC to negotiate the financing and
construction of a 1,200-1,300 space parking ramp.
The attached Development Agreement establishes the proposed terms. The key
elements of this agreement include the following;
1. Diamond Jo, LLC has agreed to construct a casino with a minimum 140,000
sq foot of floor space at an approximate cost of $45 million. Construction shall
begin within 6 months following final approval of the design and be completed
no later than 18 months from commencement of construction.
2. The City agrees to design and construct a public parking facility at a cost of
approximately $23 million. The City shall hire either Durrant or YWS
Architects to design the facility by March 1, 2007 or Diamond Jo, LLC has the
right to terminate the agreement. The City also agrees to conduct weekly
meetings during the design and construction phases to allow for review and
input from Diamond Jo, LLC.
3. Diamond Jo, LLC will place $6.35 million into an escrow account for designing
and construction of the public parking facility. This escrow satisfies the
obligations under section 32 of the June 1, 2005 lease agreement with the
City. Additional dollars will need to be escrowed for a construction
contingency and to cover the contractor's bid for construction.
4. The City agrees to issue 30 year tax increment financing bonds to finance the
remaining costs of the public parking facility not covered by the escrow
account.
5. Diamond Jo, LLC agrees to a minimum assessment agreement in an amount
designed to repay the tax increment financing bonds over 30 years. All costs
associated with design, construction or maintenance of this project must be
paid for from the escrow account for from proceeds of the sale of tax
increment financing bonds as secured by the minimum assessment
agreement.
6. Diamond Jo, LLC agrees to pay the cost for security, operating, repairs and
maintenance of the public parking facility. Initially the City agrees to contract
for $1 with Diamond Jo, LLC to provide maintenance and security for the
parking facility as detailed in exhibit J. However, the City may at its sole
discretion terminate this contract at any time.
7. Diamond Jo, LLC also agrees to pay to the City $80 annually per parking
space. These funds shall be placed into a sinking fund to cover capital repairs
and expenditures. This figure shall be adjusted annually by the Consumer
Price Index.
8. Diamond Jo, LLC agrees to pay the rental and compensation for parking
privileges in other parts of the Port of Dubuque as provided by the June 1,
2005 lease agreement.
9. The City agrees that so long as Diamond Jo, LLC is not in default of this
agreement, the public parking facility shall remain open 24/7 free of charge
for the shared parking needs of the Port of Dubuque (the exception will be for
condo parking which will pay a parking fee for restricted spaces).
10. Should the bids for the public parking facility exceed the costs that can be
financially supported by the minimum assessment agreement, Diamond Jo,
LLC has the right to terminate this agreement prior to an award of a
construction contract.
11. If construction of the facility is not complete by August 1, 2008, the City will
pay Diamond Jo, LLC $100 a day damages and the contractor will pay $1,000
per day liquidated damages.
12. The parent company, Peninsula Gaming, LLC has provided a guarantee for
the property tax payment.
Additional terms and conditions of the sale of the property are included within the
attached Development Agreement.
RECOMMENDATION
I recommend that the City Council approve the development agreement with Diamond
Jo, LLC for the construction and financing of a public parking ramp in the Port of
Dubuque. This action supports the Council's objectives to redevelop the Port of
Dubuque and to provide for the parking needs of said development.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
F:\USERS\DHeiar\Diamond Jo\Memo for the parking ramp DA with Diamond Jo, LLC.doc
RESOLUTION NO. 70-07
ACCEPTING THE PROPOSAL FROM DIAMOND JO, L.L.C. FOR THE FINANCING OF
THE DESIGN, CONSTRUCTION, AND THE COST OF ON-GOING OPERATIONS AND
MAINTENANCE OF A PUBLIC PARKING FACILITY IN THE GREATER DOWNTOWN
URBAN RENEWAL DISTRICT IN THE PORT OF DUBUQUE tN THE CITY OF
DUBUQUE, IOWA AND APPROVING THE PORT OF DUBUQUE PUBLIC PARKING
FACILITY DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA
AND DIAMOND JO, L.L.C.
Whereas, it is determined that the City is interested in providing additional public
parking opportunities in the Port of Dubuque; and
Whereas, there is insufficient property in the Port of Dubuque to provide ample
surface parking; and
Whereas, parking ramps provide the most efficient use of space in the Port of
Dubuque; and
Whereas, the Diamond Jo, LLC has submitted a proposal to finance the design,
construction, and on-going operations and maintenance of a public parking ramp in the
Port of Dubuque; and
Whereas, it is the determination of the City Council that approval of the Port of
Dubuque Public Parking Facility Development Agreement Between the City of Dubuque,
Iowa and Diamond Jo, L.L.C. is in the public interest of the citizens of the City of Dubuque,
and is consistent with the City's Urban Renewal Plan for the Greater Downtown Urban
Renewal District.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the Port of Dubuque Public Parking Facility Development
Agreement Between the. City of Dubuque, Iowa and Diamond Jo, LLC is in the public
interest of the citizens of the City of Dubuque and in furtherance of the City's Urban
Renewal Plan, and is hereby approved.
Section 2. That the Mayor is hereby authorized and directed to execute said
Development Agreement on behalf of the City of Dubuque and the City Clerk is authorized
and directed to attest to his signature.
Section 3. That the City Manager is authorized to take such actions as are
necessary to implement the terms of the Development Agreement as herein approved.
Passed, approved and adopted this 5th day of February, 2007.'
Roy D. Buol, Mayor
Attest:
Jeanne F. Schneider
City Clerk
F:\USERS1DHeiar\Diamond Jo\Diamond Jo LLC Development Proposal Acceptance Resolution.doc
1
PORT OF DUBUQUE PUBLIC PARKING FACILITY
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DIAMOND JO, LLC
This Devel ment Agreement (the Agreement) is made as of this _ ~~~ day of
~-~~~ , 2007 by and between the City of Dubuque, a municipal corporation of
the State of I ~a (City), and Diamond Jo, LLC (f/k/a DJ Gaming Company, LLC), a
Delaware limit d liability company (DJDJ).
' WHEREAS, DJ intends to develop a new casino in the Port of Dubuque of the Cityof
Dubuque, Iowa, (the DJ Development) on real estate legally described on attached Exhibit A
(the DJ Real Estate); and
WHEREAS, in conjunction with the DJ Development, the parties believe that it is in
both of their interests that City design, develop, finance and construct a public multi-level
public parking facility to be owned and operated by City on real estate owned by City located
adjacent to the DJ Real Estate and legally described on attached Exhibit B (the Public
Parking Facility Real Estate) and as conceptually described on attached Exhibit C (the
Public Parking Facility).
NOW, TH EREFORE, in return for good and valuable consideration of the matters set
forth in the above and foregoing recitals it is hereby agreed as follows:
SECTION 1. DJ OBLIGATIONS.
1.1. DJ Development. DJ hereby agrees to construct on the DJ Real Estate a casino
development of not less than one hundred forty thousand (140,000) square feet of floor
space along with necessary site work at a cost of approximately $45,000,000.00.
(1) DJ agrees that the design of the DJ Development shall be subject to the prior
written approval of sightlines by Port of Dubuque Adams, L.L.C.
(2) DJ hereby agrees that construction of DJ Development shall be commenced
by no later than six months following the final approval of the design by the City
Manager after review by the Design Review Committee and shall be substantially
completed no later than eighteen months from the commencement of construction.
(3) The time frames for the performance of this obligation shall be suspended due
to unavoidable delays meaning delays, outside the control of DJ, which are the direct
result of strikes, other labor troubles, unusual shortages of materials or labor,
unusually severe or prolonged bad weather, acts of God, fire or other casualty to the
DJ Development, litigation commenced by third parties which, by injunction or other
similar judicial action or by the exercise of reasonable discretion directly results in
020107ba1
dela s, or acts of an federal, state or local overnment which direct) result in
Y Y 9 Y
' extraordinary delays. The time for performance of such obligations shall be
extended only for the period of such delay.
1.2. DJ Financial Commitment. In consideration of the benefits to DJ provided in this
Agreement, DJ agrees to pay into an escrow account (the "Escrow Account") administered
by the City as provided in the Escrow Agreement, Exhibit M, the sum of $6.35 million (the
' "Initial Advance"), provided that DJ shall be allowed, at its sole discretion, to increase the
amount of the Initial Advance and receive a corresponding reduction in the minimum
assessment provided under Section 1.4 so that the aggregate amount of the Initial Advance
' and the Bond proceeds under Section 2.3 remains unchanged.
(1) The Initial Advance shall be applied by City toward the cost of designing and
1 constructing the Public Parking Facility. DJ shall pay such Initial Advance as costs
and expenses are incurred by City within thirty (30) days of receipt of a statement
and accompanying documentation therefor from City as such costs and expenses
' are incurred by City during the design of the Public Parking Facility.
(2) If not sooner paid, the balance of the Initial Advance shall be paid by DJ to
' City prior to and as a condition of the award by City of the construction contract for
the Public Parking Facility.
(3) In the event the Public Parking Facility is not completed, for any reason other
than due to DJ's material breach of this Agreement, in accordance in all material
respects with the design plans or budget as provided in this Agreement, City shall be
obligated to reimburse DJ for the portion of the Initial Advance DJ paid by it pursuant
to this Agreement. Such reimbursement shall be payable by City over time from
amounts City receives from the State of Iowa for City's one-half percent ('/2%) share
of the adjusted gross receipts paid by DJ under Iowa Code Section 99F.11 and from
no other source of City funds.
' (4) It is agreed that this Agreement satisfies DJ's and City's obligations under
Section 32 of the Lease Agreement between City and DJ.
(5) The parties agree that all contracts entered into by City for the design and
construction of the Public Parking Facility shall be for a fixed price or a guaranteed
maximum price (GMP), so as to allow for the establishment of a maximum total cost
' for the design and construction of the Public Parking Facility.
(a) Any change orders or modifications to such contracts that will result in
the fixed price or the GMP, together with all previous change orders or
modifications, exceeding 110% of the fixed price or the GMP, shall require the
written consent of both City and DJ.
' (b) DJ agrees that in the event it so consents to such a change order or
other modification to a contract that will result in the fixed price or the GMP,
together with all previous change orders or modifications, exceeding 110% of
' 020107ba1 2
the fixed rice or the GMP, it shall a to Cit within thi 30 da s of recei t
P P Y Y ~Y () Y P
' of a statement from City the amount by which such costs exceed 110% of the
fixed price or the GMP.
(c) If the amount by which such costs exceed the sum of the Initial
Advance and the proceeds of the Bonds described in Section 2.3 are
determined prior to the award by City of a contract for the construction of the
Public Parking Facility and DJ does not terminate this Agreement as provided
in Section 3.1, DJ shall pay such amount ,together with a contingency
amount of ten per cent (10%) of the amount of the construction contract, to
City prior to the award by City of the construction contract.
(d) Upon acceptance of the Public Parking Facility by the City Council and
' after payment by City of all costs for the design and construction of the Public
Parking Facility, City shall refund to DJ any balance of the contingency
amount remaining, if any, and all interest earned on the Initial Advance
' remaining in the Escrow Account.
1.3. Operating Costs of Public Parking Facility Following the opening of the Public
Parking Facility and continuing for the life of the Public Parking Facility, DJ agrees to pay the
reasonable and necessary actual operating costs incurred by City for the operation,
security, repair and maintenance of the Public Parking Facility. Such operating costs shall
include those listed on attached Exhibit K.
(1) Any costs that exceed $1,100 during the first year of operation of the Public
Parking Facility (after the first year of operation of the Public Parking Facility, the
amount of such costs shall be adjusted annually by the increase, if any, from the
previous year in the Consumer Price Index for all items for All Urban Consumers-
U.S. City Average, published by the U.S. Department of Labor, Bureau of Labor
Statistics) and that have a useful life of 3 years or more shall be considered capital
items and paid for pursuant to Section 1.5 below.
' (2) DJ shall reimburse City for such costs within thirty (30) days of receipt of a
statement therefor from City providing reasonable documentation to support such
' amount.
(3) Following the opening of the Public Parking Facility, City will contract with DJ
' at a total cost of $1.00 per year, for the maintenance and security requirements of the
Public Parking Facility pursuant to the Maintenance Services Agreement attached
hereto as Exhibit J. Notwithstanding any provision in the Agreement to the contrary,
DJ agrees that City may in its sole discretion, with or without cause, terminate the
Agreement and provide such reasonable and customary services with its own staff or
contract with a third party for such services, all costs for which DJ shall reimburse
City as provided in this Agreement. If City terminates the Agreement, City shall
purchase from DJ any equipment at its depreciated value purchased by DJ for its
maintenance and security requirements under the Agreement.
' 020107ba1 3
' (4) Failure of DJ to make any payment required by this Section shall constitute an
Event of Default under Section 3.3 of this Agreement.
' 1.4. Minimum Assessment. The parties shall execute the Minimum Assessment
Agreement attached hereto as Exhibit D. DJ shall provide City with a guaranty in the form of
' Exhibit F for DJ's obligation to pay real estate taxes on the DJ Development.
1.5. Sinking Fund. DJ agrees to pay to City each year during the life of the Public Parking
Facility, commencing on the date of the opening of the Public Parking Facility, and on
anniversary of such date each year thereafter, an amount equal to $80 per parking space in
' the Public Parking Facility adjusted annually by the increase, if any, from the previous year
in the Consumer Price Index for all items for All Urban Consumers-U.S. City Average,
published by the U.S. Department of Labor, Bureau of Labor Statistics.
(1) Such amount shall be separately accounted for by City and shall be drawn
upon by City from time to time to be used solely to satisfy the capital maintenance
1 requirements of the Public Parking Facility determined necessary by City in its sole
discretion.
' (2) For the purposes of this Agreement, "capital maintenance" shall mean any
expenditure, or related series of expenditures, in excess of $1,100 during the first
year of operation of the Public Parking Facility (after the first year of operation of the
Public Parking Facility, the amount of such costs shall be adjusted annually by the
increase, if any, from the previous year in the Consumer Price Index for all items for
All Urban Consumers-U.S. City Average, published by the U.S. Department of Labor,
Bureau of Labor Statistics) and that has a useful life of three years or more.
(3) Failure of DJ to make any payment required by this Section shall constitute
an Event of Default under Section 3.3 of this Agreement.
1.6. Rental and Compensation for Parking Privileaes. DJ agrees to pay to City the rental
' and compensation for parking privileges as provided in Par. 2 of the Lease Agreement
Between the City of Dubuque, Iowa and DJ Gaming Company, LLC, Exhibit G attached
hereto, for the Term of the Lease Agreement and thereafter for so long as Lots 1 and 2
' described therein may remain available to DJ at City's sole discretion on the same basis as
provided in the Lease Agreement. Failure of DJ to make any payment required by this
Section constitutes a default of this Agreement and in addition to any other remedy, City
' shall upon such default have the right to impose such fees as City determines in its sole
discretion for use of the Public Parking Facility.
1 1.7. DJ acknowledges that City has the right in its sole discretion to install parking meters
on the streets in the Port of Dubuque.
1.8. Real Estate Taxes. DJ shall pay or cause to be paid during the Term of this
Agreement, when due, all real property taxes and assessments payable with respect to all
and any parts of the DJ Development. Failure of DJ to make any payment required by this
' Section shall constitute an Event of Default under Section 3.3 of this Agreement.
' 020107ba1 4
1
SECTION 2. CITY OBLIGATIONS.
2.1. Design and Construction of the Public Parking Facility. Subject to the conditions set
forth in this Agreement, City agrees to design and construct the Public Parking Facility at a
cost estimated to be approximately $23,043,800.00 on the Public Parking Facility Real
Estate.
(1) The footprint of the Public Parking Facility shall be consistent with the concept
shown on Exhibit I, and in harmony with the DJ Development and the Port of Dubuque
' Adams Development, L.L.C., and The Durrant Group, L.L.C. Development in appearance
and function.
(2) City shall retain either YV1IS Architects or The Durrant Group, Inc., based on
whichever architect comes in with the lower bid, to design the Public Parking Facility
on terms acceptable to City in its sole discretion (the "Project Architect").
(3) City shall hold weekly progress meetings with the Project Architect, DJ and its
representatives during the design and construction of the Public Parking Facility.
' City agrees to allow DJ to provide input and comments on the design of the Public
Parking Facility, including but not limited to providing DJ timely copies of all design
documents and correspondence regarding design and providing timely notice to DJ
of any meetings regarding the design of the Public Parking Facility and allowing DJ
to attend such meetings.
(4) In the event City fails to retain the Project Architect by March 1, 2007, DJ may
at its option terminate this Agreement by written notice to City. Termination of this
Agreement shall be DJ's sole remedy for failure of City to retain the Project Architect.
' DJ shall not be entitled to reimbursement of any costs or damages incurred by DJ in
connection with this Agreement.
(5) City shall retain as a cost of the design of the Public Parking Facility an
architecture firm to provide such design review as City determines necessary of the
Project Architect's design.
1
1
2.2. Use of Parking Lot by DJ. City agrees that for so long as DJ is not in default (as
defined under Section 3.3 below), and subject to City's right to limit access to the Public
Parking Facility during emergencies, severe weather conditions, maintenance or other
similar circumstances, the Public Parking Facility shall remain open 24 hours per day, 7
days per week to the general public, including but not limited to DJ's patrons (but excluding
DJ's employees who DJ agrees to prohibit from parking in the Public Parking Facility), in
each case free of charge and without any unreasonable restrictions, but subject to the terms
of the Development Agreement between City, Port of Dubuque Adams Development, L.L.C.,
and The Durrant Group, L.L.C., and the Development Agreement between City and The
McGraw-Hill Companies.
City agrees no future development project in the Port of Dubuque over which City has
' 020107ba1 5
1
control or is able to exercise influence shall be approved by City unless such development
project contemplates and provides for parking sufficient to accommodate the reasonable
parking needs of such development for the foreseeable future as determined by City in its
sole discretion. It is acknowledged by DJ that the Public Parking Facility is intended to be
utilized for the shared parking needs of the Port of Dubuque, including but not limited to the
development contemplated by Port of Dubuque Adams, L.L.C. and The Durrant Group,
L.L.C., as described in Exhibit E, the DJ Development, Dubuque County Historical Society
projects, and McGraw-Hill for employee parking as provided in Par. 12 of the Development
Agreement Between the City of Dubuque and The McGraw-Hill Companies, Inc., Exhibit L
attached hereto.
2.3. City Financing Obligations. City agrees, subject to the conditions set forth in Section
2.4 below, to issue tax increment financing bonds (the Bonds) for the remaining costs
associated with the design and construction of the Public Parking Facility in such amount as
to allow for the Bonds to be paid off over a period of thirty (30) years utilizing the
Incremental Property Tax Revenues (as defined below), in whole, or in part should the
Incremental Property Tax Revenues exceed the Bond payment obligations from the DJ
Development and assuming a minimum assessment amount as provided in Exhibit D.
(1) Interest and principal shall be paid from Incremental Property Tax Revenues
generated by the DJ Development, as provided in Exhibit D.
(2) DJ recognizes and agrees that Incremental Property Tax Revenues are solely
and only the incremental taxes collected by City in respect to the DJ Development,
which does not include property taxes collected for the payment of bonds and
' interest of each taxing district, and taxes for the regular and voter-approved physical
plant and equipment levy, and any other portion required to be excluded by Iowa law.
Accordingly, the parties understand that due to the amounts that are legally required
to be excluded from the Incremental Property Tax Revenues, such incremental taxes
will not include all amounts paid by DJ as regular property taxes.
' (3) DJ acknowledges and agrees that it shall identify for City a purchaser for the
Bonds (the Purchaser) and City agrees to negotiate in good faith with the Purchaser
with respect to the terms of the Bonds. Except as specifically set forth herein, DJ
further acknowledges and agrees that the Bonds shall be sold on such terms and
conditions, bear such interest rates, have such reserve funding requirements, mature
at such times and in such amounts as City, in its sole but reasonable, good faith
discretion, shall determine to be acceptable to it and the Purchaser and shall be
payable from and secured solely and only by a pledge of the Incremental Property
Tax Revenues to be collected by City in respect of the DJ Development during a
period not to exceed thirty (30) years.
(4) Proceeds of the Bonds shall be applied only to the payment of capitalized
' interest thereon (if necessary), debt service reserve funding, costs of issuance and
the payment of the costs of the design and construction of the Public Parking Facility.
020107ba1 6
' 5 Cit shall have no obli ation to fund the costs of h
() y g t e design and construction
' of the Public Parking Facility to be paid hereunder from any source other than the
proceeds of the Bonds.
' (6) City's obligation to issue the Bonds and undertake its obligations hereunder
shall be subject in all respects to unavoidable delays, the provisions of this Section
and Section 2.4, and to the satisfaction of all conditions required (in the reasonable
judgment of bond counsel for City) by Chapter 403 of the Code of Iowa, as amended,
with respect to the issuance of the Bonds.
1
2.4. Limitations on Financial Undertakings of City Notwithstanding any other provisions
of this Agreement, City shall have no obligation to DJ under this Agreement to issue the
Bonds or to fund the design or construction of the Public Parking Facility, if any of the
following conditions exist as of June 30, 2007:
(1) City is unable to complete the sale of the Bonds on such terms and conditions
as it shall deem necessary or desirable in its sole discretion; or
(2) City is entitled (or, with the passage of time or giving of notice, or both, would
be entitled) under this Agreement to exercise any remedies set forth therein as a
result of any Event of Default;
(3) DJ fails to sign the Minimum Assessment Agreement and provide Citywith the
guaranty required by Section 1.4; or
(4) There has been, or there occurs, a material adverse change in the financial
condition of DJ, which change(s) make it substantially more likely, in the reasonable
judgment of City, that DJ will be unable to fulfill its covenants and obligations under
this Agreement.
2.5. Use of Tax Increments. DJ recognizes that City intends to utilize the Incremental
Property Tax Revenues collected each year in respect of the DJ Development to pay debt
service on the Bonds. Notwithstanding the foregoing, City shall be free to use any excess
Incremental Property Tax Revenues not required for the satisfaction of the principal and
interest payments on the Bond collected each year in respect of the DJ Development for any
purpose for which the Incremental Property Tax Revenues may lawfully be used pursuant to
the provisions of the Urban Renewal Act, and City shall have no obligation to DJ with
respect to use thereof.
2.6. Limitation on City Funding, DJ acknowledges and agrees that it is the intent of the
parties that City shall not incur any costs related in any way to the design, construction, or
operation of the Public Parking Facility which are not paid for or reimbursed by DJ or
financed with the Bonds. Anything in this Agreement to the contrary notwithstanding, DJ's
obligation to pay costs and expenses in the event this Agreement is terminated prior to the
award of a construction contract and the Public Parking Facility is not completed, shall be
limited to the amount of City's contract with the Project Architect and City's contract with a
review architect as provided in Par. 2.1.
020107ba1 7
' SECTION 3. GENERAL TERMS AND CONDITIONS.
3.1. Conditions Precedent. If any of the following conditions has not occurred prior to the
later of June 30, 2007, or the date set by the City Council for the award of a construction
contract for the Public Parking Facility, but in no event later than December 31, 2007, either
party may terminate this Agreement upon written notice to the other party. DJ's termination
of this Agreement shall be its sole remedy. DJ shall not be entitled to reimbursement of any
costs or damages incurred by DJ in connection with this Agreement. In the event DJ elects
to terminate this Agreement, DJ shall reimburse City for all reasonable out-of-pocket costs
' incurred by City in connection with this Agreement and DJ shall reimburse City for all such
costs within thirty days of receipt by DJ of City's statement of such costs, including
appropriate documentation thereof.
' (1) City shall have obtained all required design approvals from the Design Review
Committee for the Public Parking Facility and DJ shall have consented to such
design, which consent shall not be unreasonably withheld.
(2) DJ and the City shall have received all necessary approvals from any
governmental agency, utility, lender, security holder or other party whose approval is
required for the undertakings and obligations under this Agreement, specifically
including, but not limited to approval of this Agreement by the Iowa Racing and
Gaming Commission and a firm commitment from the Purchaser regarding its
purchase of the Bonds on terms satisfactory to City and DJ.
' (3) City shall have received and DJ shall have approved, bids pursuant to which it
can be determined that the Public Parking Facility can be designed and constructed
for an amount equal to or less than the sum of the amounts to be provided by DJ
' under Section 1.2 and financed by City under Section 2.3. Additionally, all such
costs of design and construction shall be supported by agreements with the
contractors and other vendors that include a fixed price or have a guaranteed
' maximum price (GMP) that permits the Public Parking Facility to be constructed
within the budget provided for herein, taking into consideration a 10% contingency
for the costs of construction of the Public Parking Facility. The parties acknowledge
that such fixed price or GMP shall be subject to change modifications or orders
approved by City, provided that any change orders or modifications to such contracts
that will result in the fixed price or the GMP, together with all previous change orders
or modifications, exceeding 110% of the fixed price or the GMP, shall require the
written consent of both City and DJ.
(4) City and DJ shall have agreed upon the construction cost and timing of the
construction of the Public Parking Facility.
' (5) DJ shall have signed the Minimum Assessment Agreement and provided City
with a guaranty in a form acceptable to City for DJ's obligation to pay real estate
taxes on the DJ Development.
' 020107ba1 g
(6) Both parties are obligated to pursue all required approvals as expeditiously as
possible and to negotiate in good faith to complete the execution of the agreements
identified and required as conditions precedent to the other obligations set forth
herein.
3.2. Cooperation by the Parties. City and DJ agree to cooperate in good faith in
connection with the performance of all of the activities contemplated herein and to use all
commercially reasonable efforts and diligence to promptly respond and perform the
obligations provided for directly or indirectly by this Agreement. The parties agree and
understand that it is their intent that the timing of the design and construction of the Public
Parking Facility will be such that the completion and opening of the Public Parking Facility
will coincide with the completion and opening of the DJ Development. The parties agree to
use all reasonable effort and resources to assure that construction of the Public Parking
Facility commences on or before August 1, 2007 and that the Public Parking Facility be
completed and ready for use on or before, the later of August 1, 2008 or the opening of the
DJ Development. In the event the Public Parking Facility is not substantiallycompleted and
ready for use on such date, and such delay is due to a breach by the City of its obligations
under this Agreement, the City shall pay to DJ an amount equal to $100 per day that the
Public Parking Facility remains incomplete and unopened as liquidated damages for its
breach of this Agreement. Additionally, the parties agree that the construction contract(s)
shall include a liquidated damages provision that provides for the contractor to payto DJ the
amount of $1,000 for each day the Public Parking Facility remains unfinished after the later
of August 1, 2008 or the opening of the DJ Development.
3.3. Events of Default Defined. The following shall be Events of Default under this
' Agreement and the term Event of Default shall mean, whenever it is used in this Agreement,
any one or more of the following events:
' (1) Failure by DJ to pay or cause to be paid, before delinquency, all real property
taxes assessed with respect to the DJ Development.
(2) Failure by DJ to cause the construction of the DJ Development to be
commenced and completed pursuant to the terms, conditions and limitations of this
Agreement.
(3) Failure by DJ to substantially observe or perform anyother material covenant,
condition, obligation or agreement on its part to be observed or performed under this
' Agreement.
(4) Any default provided for under Sections 1.3, 1.5, and 1.6 above.
' 3.4. Remedies on Default by DJ. Whenever any Event of Default referred to in Section
3.3 of this Agreement occurs and is continuing, City, as specified below, may take any one
or more of the following actions after the giving of written notice by City to DJ of the Event of
Default, but only if the Event of Default has not been cured within sixty (60) days following
such notice, or if the Event of Default cannot be cured within sixty (60) days and DJ does not
' 020107ba1 g
provide assurances to City that the Event of Default will be cured as soon as reasonably
possible thereafter:
(1) City may suspend its performance under this Agreement until it receives
assurances from DJ deemed adequate by City, that DJ will cure its default and
continue its performance under this Agreement;
(2) Until June 30, 2007, City may cancel and rescind this Agreement;
(3) City shall be entitled to recover from DJ the sum of all amounts expended by
City in connection with this Agreement, and City may take any action, including any
legal action it deems necessary, to recover such amounts from DJ;
(4) City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable to collect any payments due under this
Agreement or to enforce performance and observance of any obligation, agreement,
or covenant under this Agreement;
(5) City shall have the right to impose such fees as City determines in its sole
discretion for use of the Public Parking Facility.
3.5. No Remedy Exclusive. No remedy herein conferred upon or reserved to City is
intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given under
this Agreement or now or hereafter existing at law or in equity or by statute. No delay or
omission to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be deemed expedient.
3.6. No Implied Waiver. In the event any agreement contained in this Agreement should
be breached by any party and thereafter waived by any other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any other
concurrent, previous or subsequent breach hereunder.
' 3.7. Additional Agreements. From time to time hereafter without further consideration,
the parties agree to execute and deliver, or cause to be executed and delivered, such
further agreements and instruments, and shall take such other actions, as any party may
' reasonably request in order to more effectively memorialize, confirm and effectuate the
intentions, undertakings and obligations contemplated by this Agreement.
3.8. Counterparts. This Agreement maybe executed in any number of counterparts with
the same effect as if the parties hereto had signed the same document. All such
counterparts shall constitute one instrument.
' 3.9. Term. This Agreement shall continue in effect during the life of the Public Parking
Facility.
' 020107ba1 10
' 3.10. Additional Provisions.
(1) It is hereby agreed and acknowledged that failure or performance of breach of
agreement by any party hereto could result in irreparable harm to another party
' hereto. An action in equity and the relief of specific performance is therefore
reserved to all parties hereto.
' (2) All exhibits attached to this Agreement are incorporated herein and made a
part hereof by this reference.
' (3) Whenever the singular number is used in this Agreement, the same shall
include the plural where appropriate and words of any gender shall include any other
gender where appropriate.
' (4) All notices, demands, requests or other communications required or permitted
by this Agreement shall be in writing and shall be deemed to be received when
actually received by any person at the intended address if personally served or sent
by courier or telex, or whether actually received or not, twenty-four (24) hours after
the date and time of delivery to anationally-recognized courier, address as follows:
' To the City: City Manager
City Hall
50 W . 13th Street
Dubuque, IA 52001
Copies to: City Attorney
' City Hall
50 W. 13th Street
Dubuque, IA 52001
To DJ:Attn. Natalie Schramm
Diamond Jo, LLC
400 E. 3~d Street
Dubuque, IA 52001
'
With copies to: Curtis E. Beason
Lane & Waterman LLP
' 220 N. Main St., Ste. 600
Davenport,lA 52801
' Any party may, in substitution of the foregoing, designate a different address or
addresses within the continental United States for purposes of this section by written
notice delivered to the other party in the manner prescribed, at least ten (10) days in
' advance of the date on which such change of address is to be effective.
' 020107ba1 11
(5) This Agreement embodies the entire agreement between and among the
parties and may be amended or supplemented only by an instrument in writing
executed by the parties hereto.
(6) This Agreement may not be assigned without the written consent of all other
parties hereto, which consent shall not be unreasonably withheld. Subject to the
foregoing, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective successors and assigns.
(7) Time is of the essence in this Agreement and each and every provision
contained herein.
(8) In the event of a dispute arising between or among the parties hereto, each
party shall be responsible for paying its own attorney's fees and court costs, if any,
incurred in connection with such dispute.
1 (9) This Agreement shall be governed by the laws of the State of Iowa and shall
be construed in accordance therewith and all of the rights and obligations hereunder
shall be determined in accordance with the laws of the State of Iowa. All parties
' acknowledge that they have negotiated this Agreement in the City of Dubuque, Iowa
and that the property at issue is located in the City of Dubuque, Iowa.
(10) The parties hereto represent to each other that each has the full right, power
and authority to enter into this Agreement and to fully perform its obligations. The
persons executing this Agreement warrant and represent that each has the authority
to execute in the capacity stated and to bind the parties herein.
(11) No failure by any party hereto, at any time, to require the performance of any
other party or any term of this Agreement, shall in any way affect the right of any
party to enforce such terms, nor shall any waiver by any party of any term hereof be
taken or held to be a waiver of any other provision of this Agreement. No waiver of
' any term or provision of this Agreement shall be effective unless the same is in
writing, signed by the parties hereto.
(12) City and DJ shall promptly record a Memorandum of Agreement in the form
attached hereto as Exhibit H in the office of the Recorder of Dubuque County, Iowa.
CITY OF DUBUQUE, IOWA
~,
By:
Roy D. ol, Mayor
,~~'
eanne F. Schneider, City Clerk
020107ba1 12
' DIAMOND J
By: _
' 020107ba1 13
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020107ba1
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EXHIBIT LIST
Exhibit A DJ Real Estate Legal Description
Exhibit B Public Parking Facility Real Estate Legal
Description
Exhibit C Conceptual Description of Public Parking
Facility
Exhibit D Minimum Assessment Agreement
Exhibit E Port of Dubuque Adams Development, L.L.C.
and The Durrant Group, L.L.C. Proposal
Exhibit F Guaranty
Exhibit G Lease Agreement Between the City of
Dubuque, Iowa and DJ Gaming Company, LLC,
Exhibit H Memorandum of Agreement
Exhibit I Public Parking Facility Concept
Exhibit J Maintenance Services Agreement
Exhibit K Operating Costs
Exhibit L Par. 12 of the Development Agreement
Between the City of Dubuque and The
McGraw-Hill Companies, Inc.
Exhibit M Escrow Agreement
020107ba1 15
1 Exhibit A
' DJ Real Estate Legal Description
Lot 1 of Adams Company's 1St Addition, Lot 3 of Adam's Company 2"d Addition, and Lots
1 2, 3, and 4 of Adams Company 3~d Addition, in Dubuque County, Iowa.
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020107ba1 16
1 Exhibit B
Public Parking Facility Real Estate Legal Description
Part of Lots 1 and 2 of Adams Com an 's 2"d Addition, in the Cit of Dubu ue Iowa
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020107ba1 17
' Exhibit C
Conceptual Description of Public Parking Facility
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020107ba1 18
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Exhibit D
Minimum Assessment Agreement
Prepared by Barry A. Lindahl, Esq. 300 Main Street Suite 330 Dubuque IA 52001 563.583.4113
Return to Barry A. Lindahl, Esq. 300 Main Street Suite 330 Dubuque IA 52001 563.583.4113
MINIMUM ASSESSMENT AGREEMENT
CITY OF DUBUQUE, IOWA
City of Dubuque, Iowa
THIS AGREEMENT, dated for reference purposes the day o1
2007, by and among the City of Dubuque, Iowa (City), Diamond Jo,
LLC (DJ), and the City Assessor of the City of Dubuque (Assessor).
WHEREAS, on or before the date hereof City and DJ have entered into the Dubuque
Port of Dubuque Public Parking Facility Development Agreement (the Agreement) regarding
certain real property (the DJ Development Real Estate) described in Exhibit A attached
hereto, located within the City of Dubuque; and
WHEREAS, it is contemplated that DJ will undertake the development of an area (the
DJ Development) within the Port of Dubuque by the construction of a new casino facility on
the DJ Development Real Estate as provided in the Agreement; and
WHEREAS, pursuant to Section 403.06 of the Iowa Code, as amended, City and DJ
desire to establish a minimum market value for the DJ Development and the DJ
Development Real Estate, which shall be effective upon substantial completion and from
then until this Agreement is terminated pursuant to the terms herein and which is intended
to reflect the minimum market value of the DJ Development and the DJ Development Real
Estate; and
' WHEREAS, City and Assessor have reviewed the preliminary plans and the
specifications for the DJ Development and the DJ Development Real Estate which it is
contemplated will be erected.
' 020107ba1 25
NOW, THEREFORE, the parties to this Agreement, in consideration of the promises,
covenants and agreements made by each other, do hereby agree as follows:
1) Upon substantial completion of construction by DJ of the DJ Development and the
DJ Development Real Estate, the minimum market value which shall be fixed for
assessment purposes for the DJ Development and the DJ Development Real Estate
Property described in Exhibit A attached hereto, together with the Minimum Improvements to
be constructed thereon by Developer shall be not less than dollars
($ ), until termination of this Agreement. The parties hereto expect that the
construction of the DJ Development will be substantially completed on or before the day
of , 20_.
2) The minimum market value herein established shall be of no further force and
effect and this Agreement shall terminate on the day of , 20_, the final date
of the City's obligation to pay interest or principal with respect to the indebtedness incurred
in support of the project. In the event said indebtedness had not been fully paid as to
principal and interest as of . 20 ,this Agreement shall continue in effect for
such additional time as shall be required therefore, but not later than , 20
3) This Agreement shall be promptly recorded by City and DJ prior to the recording
of any mortgage on the DJ Development Real Estate. DJ shall pay all costs of recording.
4) Neither the preambles nor provisions of this Agreement are intended to, nor shall
be construed as, modifying the terms of the Dubuque Port of Dubuque Public Parking
Facility Development Agreement between City and DJ.
' 5) This Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the parties.
020107ba1 26
THE CITY O
sy:
Roy C
ATTEST
By. ,
DIA
By:
UBUQ E, IOWA
~~
aol, Mayor
F. Schneider, City Clerk
The undersigned assessor, being legally responsible for the assessment of the above
described property upon completion of the improvements to be made on it, certifies that the
actual value assigned to that land and improvements upon completion shall not be less than
Richard Engelken, City Assessor
020107ba1
27
Exhibit E
Port of Dubuque Adams Development, L.L.C.
and
The Durrant Group, L.L.C. Proposal
[Separate document not inserted here]
' 020107ba1 28
' 020107ba1
Exhibit F
29
1 Prepared by Barry A. Lindahl, Esq. 300 Main Street Suite 330 Dubuque IA 52001 563.583.4113
Return to Barry A. Lindahl, Esq. 300 Main Street Suite 330 Dubuque IA 52001 563.583.4113
GUARANTY
THIS GUARANTY is given this day of , 2007, by Peninsula
Gaming, LLC (hereinafter referred to as "Guarantor").
W ITNESSETH:
WHEREAS, Guarantor owns all of the issued and outstandin membershi interests
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of Diamond Jo, LLC ("DJ");
WHEREAS, DJ has entered into the Port of Dubuque Public Parking Facility
Development Agreement (the "Development Agreement") between the City of Dubuque,
Iowa ("City") and DJ;
WHEREAS, as part of the Development Agreement, DJ is agreeing to a minimum
assessment agreement on the DJ Real Estate, including the DJ Development (as those
terms are defined in the Development Agreement) and has agreed to pay all propertytaxes
I assessed against the DJ Real Estate; and
WHEREAS, pursuant to section 1.4 of the Development Agreement and in
consideration for the City entering into the Development Agreement, Guarantor is required
to guaranty the payment of all property taxes assessed against the DJ Real Estate.
NOW, THEREFORE, the Guarantor hereby agrees as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF GUARANTOR.
Guarantor hereby represents and warrants that:
1.1 It is not in violation of any provision of the laws of the States of Iowa or any other
State in which it currently conducts business.
1.2 It has the power and authority to execute, deliver and perform this Guaranty and
1 enter into and carry out the transactions contemplated herein which are not in contravention
of, and do not and will not constitute a default under or conflict with or violate any indenture,
mortgage, deed of trust, guaranty, lease, agreement or other instrument to which the
Guarantor or DJ are a party or by which they or their property is bound or any law,
administrative regulation, court order or consent decree.
1.3 This Guaranty has been duly authorized, executed and delivered by the Guarantor
and all steps necessary have been taken to constitute this Guaranty, when duly executed
and delivered, a legal, valid and binding obligation of the Guarantor.
020107ba1 30
1 1.4 This Guaranty is made in furtherance of the purposes of the Guarantor and that the
assumption by the Guarantor of the obligations of DJ hereunder will result in direct financial
benefits to the Guarantor.
SECTION 2. COVENANTS AND AGREEMENTS.
2.1 Unconditional Guarant Guarantor hereb unconditional) and irrevocabl
~ v Y v
1 guarantees to the City the prompt and complete payment of all real property taxes and
assessments payable by DJ in accordance with the terms of Section 1.8 of the Development
Agreement and the Minimum Assessment Agreement as and when said payments are
therein required to be made.
2.2 Guaranty to Remain in Force Until Bonds are Paid. The obligations of Guarantor
under this Guaranty shall be absolute, unconditional and irrevocable and shall remain in full
force and effect until the Bonds described in Section 2.3 of the Development Agreement are
paid in full, and such obligations shall not be affected, modified or impaired upon the
happening from time to time of any event, including without limitation any of the following,
whether or not with notice to, or the consent of, Guarantor:
(a) the compromise, settlement, release or termination of any or all of the
obligations, covenants or agreements of City under the Development Agreement;
(b) the failure to give notice to Guarantor of the occurrence of an event of default
under the terms and provisions of this Guaranty or the Development Agreement;
(c) the waiver of the payment, performance or observance by City or Guarantor of
any of the obligations, covenants or agreements of them contained in the
Development Agreement or this Guaranty;
(d) the extension of the time for performance of any obligation, covenant or
agreement under or arising out of the Development Agreement or this Guaranty or
1 the extension or the renewal of either thereof;
(e) the modification or amendment (whether material or otherwise) of any
obligation, covenant or agreement set forth in the Development Agreement;
(f) the taking or the omission of any of the actions referred to in the Development
Agreement and any actions under this Guaranty;
(g) any failure, omission, delay or lack on the part of City to enforce, assert or
' exercise any right, power or remedy conferred on the City in this Guaranty or the
Development Agreement, or any other act or acts on the part of City;
' (h) the voluntary or involuntary liquidation, dissolution, sale or other disposition of
all or substantially all the assets, marshaling of assets and liabilities, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors or readjustment of, or other similar
020107ba1 31
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proceedings affecting DJ or City or any of the assets of them, or any allegation or
contest of the validity of the Development Agreement in any such proceeding;
(i) to the extent permitted bylaw, the release or discharge of Guarantor from the
performance or observance of any obligation, covenant or agreement contained in
this Guaranty by operation of law;
(j) any merger or consolidation involving the Guarantor or the transfer by the
Guarantor of all or substantially all of its assets;
(k) the default or failure of Guarantor fully to perform any of his obligations set
forth in this Guaranty, provided that the specific enumeration of the above-mentioned
acts, failures or omissions shall not be deemed to exclude any other acts, failures or
omissions, though not specifically mentioned above, it being the purpose and intent
of this paragraph that the obligation of Guarantor shall be absolute, unconditional
and irrevocable to the extent herein specified and shall not be discharged, impaired
or varied until the Bonds described in the Development Agreement are paid in full.
Without limiting any of the other terms or provisions hereof, it is understood
hereunder, there shall be no obligation on the part of the City to resort in any manner
to any other person, firm or corporation, their properties or estates.
2.3 Liability Not Affected by Bankruptcy. Without limiting the foregoing, it is specifically
understood that any modification, limitation, or discharge of the liability of DJ under the
Development Agreement or of the liability of the Guarantor hereunder arising out of or by
virtue of any bankruptcy, arrangement, reorganization or similar proceeding for relief of
debtors under Federal or State law hereafter initiated byor against the Guarantor or DJ shall
not affect, modify, limit, or discharge the liability of the Guarantor hereunder in any manner
whatsoever and this Guaranty shall remain and continue in full force and effect and shall be
enforceable against the Guarantor to the same extent and with the same force and effect as
if any such proceedings had not been instituted; and it is the intent and purpose of this
Guaranty and the Guarantor shall and does hereby waive all rights and benefits which might
accrue to it by reason of any such proceeding and the Guarantor agrees that it shall be
liable to the City as provided herein, irrespective and without regard to any modification,
limitation, or discharge of the liability of the Guarantor that may result from any such
proceeding.
2.4. Right to Proceed Against Guarantor. In the event of a default under Section 3.3(1) of
the Development Agreement, the City, in its sole discretion, shall have the right to proceed
first and directly against Guarantor under this Guaranty without proceeding against or
exhausting any other remedies which it may have under the Development Agreement or
otherwise and without resorting to any other security held by the City.
2.5. Waiver of Notice and Reliance on Guaranty. Guarantor expresslywaives notice from
the City of its acceptance and reliance on this Guaranty. Guarantor agrees to pay all costs,
expenses and fees, including all reasonable attorneys' fees, which may be incurred in
enforcing or attempting to enforce this Guaranty following any default on the part of
Guarantor hereunder, whether the same shall be enforced by suit or otherwise.
020107ba1 32
SECTION 3. MISCELLANEOUS.
1 3.1 This Guarant shall be construed in accordance with and overned b the laws of the
Y 9 Y
State of Iowa.
3.2 This Guaranty is entered into pursuant to the Section 1.4 of the Development
Agreement. Capitalized terms not otherwise defined herein shall have the meanings
provided in the Development Agreement.
1 3.3 In the event of a default by DJ under its obligation to pay property taxes under the
Development Agreement for which the Guarantor has provided this Guaranty, the Guarantor
expressly reserves and shall be entitled to all defenses, claims and other rights of DJ
1 against the City or any other party.
3.4 Nonexclusive Remedy: Notice: Waiver; Amendment. No remedy herein conferred
' upon or reserved to the City is intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Guaranty or now or hereafter existing at law or in
equity. No delay or omission to exercise any right or power accruing upon any default,
omission or failure of performance hereunder shall impair any such right or power or shall
be construed to be a waiver thereof; but any such right and power may be exercised from
time to time and as often as may be deemed expedient. In order to entitle the City to
exercise any remedy reserved to it in this Guaranty, it shall not be necessary to give any
notice, other than such notice as may be herein expressly required. In the event any
provision contained in this Guaranty should be breached by Guarantor and thereafter duly
waived by the City, such waiver shall be limited to the particular breach so waived and shall
not be deemed to waive any other breach hereunder. No waiver, amendment, release or
' modification of this Guaranty shall be established by conduct, custom or course of dealing,
but solely by an instrument in writing duly executed by the City.
3.5 Entire Agreement. This Guaranty constitutes the entire agreement and supersedes
all prior agreements between the parties with respect to the subject matter hereof and may
be executed simultaneously in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same instrument.
3.6 Severabilitv. The invalidity or unenforceability of any one or more phrases,
sentences, clauses or Sections in this Guaranty shall not affect the validity or enforceability
of the remaining portions of this Guaranty, or any part thereof.
1 3.7 Release. Following the final payment of the Bonds, this Guaranty shall by its terms
terminate and, upon request by Guarantor, the City shall release Guarantor from the
provisions of this Guaranty in writing.
IN WITNESS WHEREOF, the Guarantor has executed this Guarantyon the dayand
year first above written.
020107ba1 33
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GUARANTOR:
PENINSULA GAMING, LLC
By:
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
On this day of , 2007, before me the undersigned, a
Notary Public in and for said County, in said State, personally appeared
to me personally known, who, being by me duly sworn,
did say that said person is the Guarantor, that the instrument was signed on behalf of the
Guarantor, and that he acknowledged the execution of the instrument to be the voluntary act
and deed of the Guarantor, by it and by voluntarily executed.
Notary Public in and for said County and State
020107ba1
Notary Public in and for said County and State
34
' Exhibit G
Lease Agreement
' Between
the City of Dubuque, Iowa
and
' Peninsula Gaming Company, LLC,
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020107ba1 35
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~• ~~ ..
LEASE AGREEMENT
BETWEEN
THE CITY OE 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 Ctty Nall, 50
West 13th Street, Dubuque, Iowa 52001 and PENINSULA GAMING COMPANY, L.L.C.
(hereinafter called the "Tenant"} whose address for the purpose of this Lease Agreement
is 3rd Street -Ice Harbor, Dubuque, kriva 52001.
1. PREMISES AND TERM.- The Landiorrl, in consideration of the rents herein
reserved and bf the agreements and conditions herein contained; on the part of the 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 Exhbit 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
8 of Ice Harbor Development, according to the recorded plat thereof,
j .
with the improvements thereon and ail rights, easements and appurtenances fhereto
belonging, far a 'term commencing at midnight of the day previous to the fist day of the
lease term, which shall be on the 1 ~ 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-exdusive, perpetual Public Access -
Easement, to run with the land, as shown on Exhibit A, far itself anal for public pedestrian
access, said access to remain opals, 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.
Landord hereby grants to Tenant; its managementemployees and patrons during the term
of this Agreement tl~e non-exGusive 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 shaA
park only in parking lots awned by Tenant or in a chy-owned parking garage.
Page 1 of 25
020107ba1 36
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. Landlord hereby grants to Tenant permission, subject to such otherpermissivn as
maybe required by any other governmental entity, tp construct a two-story {not to exceed
the. height of the existing portside facility) barge {as defined by Iowa Code Chapter 99F
(20Q5} 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 facili#y into the Ice Harbor. Landlord agrees to cooperate with and
support Tenant's application to.othergovemmental 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. RENTALAND COMPENSATION FORPARKlN~G 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 #or said term, as follows:
{a) Rental. $ 25,000.00 per year in. advance, upon full execution- of this lease
Agreement, and $25,OODAO on the first day of June of each year thereafter,
adjusted as follows:
First Year of Lease term {2005-2006): $ 25,000.00
Second Year of Lease Term (200fi-2007): $25,000.00
~ ~ 1 Third Year of Lease Term (2007-2008}: $25,000.00
' Fourth Year of Lease Terra (2008-2009): $25,000.00
Fifth Year of Lease Term. (2009-2010}: $25,000.00
' 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
Ei
hth Year of L
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2012
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ease
erm (
-
}:
' $ 25,000.00 x COL Index June 1, 2012
COL I
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200
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une
;
9
Page 2 of 25
' 020107ba1 37
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! Nin#h Year of Lease Term. (2013-2014}:
$ 25,x00.00 x COL Index June 1, 2013
COL Index June 'I, 2009
Tenth Year of Lease Term (2014-2015}:
$ 25,000.00 x COL index June 1, 2014
COL Index June 1, 2009
Eleventh Year of Lease Term (2015-2016): ,__
$ 25,000.00 x COL Index June 1; 2015
.COL index June 1, 2009
Twelfth Year of Lease Term (2016-2017):
$ 25,000.00 x COL Index June 1, 2016
COL Index June 1, 2009
Thirteenth Year of Lease Term (2017-2018):
$ 25,000.00 x COL Index June f, 20'17
COL Index June 1, 2009
Fourteenth Year of Lease Term (June i:, 2018 -December 31, 2018):
$ 25,000.00 x COL index June 1, 2018 (prorated}
COL Index June 1,2009
COL Index means the Consumer Price Index for •a!1 items. for All Urban
Consumers-U.S. City Average, published by the U.S. Department of Labor, Bureau of
Labor Statistics.
(b} Parking. $225,000.00 per year at the rate of $18,750.00 per month beginning on the
1" day of January 2009, and. on the first day of each month thereafter, adjusted as
follows:
First Year of Lease Term (2005-2008): $ 0
Page 3 of 25
020107ba1
38
i Second Year of Lease Term (2006-2007): $ 0
Third Year of Lease Term (2007-2008): $ 0
Fourth Year of Lease Term (2008-2009): $ 0
Fifth Year of Lease Term (2009-2010): $225,000.00
Sixth Year of Lease Term (2t)10-2011):
$ 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. Fn 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 31~ day of May, 2005, Tenants payment to Landlord
under this Par. 2(b) shall be as follows:
5475,000,00 peg year at the rate of $39,583:33 per month beginning on the 1 ~ day of the
operation of such new facilities, and on the fret day of each. month thereafter, adjusted by
the COL Index in the manner provided in (a} and (b) using the year priorto the first year
of the operation of the new facilities as the base year.
' -Ali 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 b possession on the first day of the
tens of this Lease Agreement, and shall yield possession to the Landlord at the time and
date of the dose of this lease term, except as herein otherwise expressly provided. Should
Landlord be unable to give possessbn on said data, Tenants only damages sha[I be a
rebating of the pro rata rental.
4. USE OF PRE~AISES.
It is contemplated between the parties that the Demised Premises shall be used by
Lessee far 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 tha#
attendance at some of the events wilt 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
' 020107ba1 39
' Exhibit H
Memorandum of Agreement
020107ba1 40
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
The PORT OF DUBUQUE PUBLIC PARKING FACILITY DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF DUBUQUE, IOWA AND DIAMOND JO, LLC (the Development
Agreement) was made regarding the following described premises:
The Development Agreement is dated for reference purposes the day of
' , 20_, and contains covenants, conditions, and restrictions concerning the sale
and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this Memorandum
and the Development Agreement itself, executed by the parties, the terms and provisions of
the Development Agreement shall prevail. A complete counterpart of the Development
Agreement, together with any amendments thereto, is in the possession of the City of
Dubuque and may be examined at its offices as above provided.
Dated this day of , 20_
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
By:
Jeanne F. Schneider, City Clerk
' 020107ba1 41
' STATE OF IOWA
' ss:
DUBUQUE COUNTY
' On this day of , 20_, before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Roy D. Buol 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, a Municipal Corporation, created and existing
under the laws of the State of Iowa, and that the seal affixed to said instrument is the seal of
' said Municipal Corporation and that said instrument was signed and sealed on behalf of
said Municipal corporation by authority and resolution of its City Council and said Mayor and
City Clerk acknowledged said instrument to be the free act and deed of said Municipal
' Corporation by it voluntarily executed.
Notary Public, State of Iowa
' 020107ba1 42
' Exhibit I
Public Parking Facility Concept
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1 Exhibit J
Maintenance Services Agreement
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1
MAINTENANCE SERVICES AGREEMENT
1 BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DIAMOND JO, LLC
This Agreement is made this day of 2007, between the City
Of Dubuque, Iowa (City), and Diamond Jo, LLC, (DJ).
Whereas, City and DJ have entered into the Port of Dubuque Public Parking Facility
1 Development Agreement (the "Development Agreement") dated ,
which in part provides for City to design, develop, finance, construct, own, and operate a
parking ramp (the Public Parking Facility); and
Whereas, City will design, develop, finance, construct, own, and operate the multi-
level Public Parking Facility; and
Whereas, DJ has agreed to pay the reasonable and necessary operating costs
incurred by City for the operation, security, repair, and maintenance of the Public Parking
Facility; and
Whereas, Paragraph 1.3(3) of the Development Agreement provides that following
the opening of the Public Parking Facility, City will contract with DJ at a total cost of $1.00
per year, for the maintenance and security requirements of the Public Parking Facility and
DJ agrees that City may in its sole discretion, with or without cause, terminate this
Agreement and provide such reasonable and customary services with its own staff or
contract with a third party for such services, all costs for which DJ shall reimburse City as
provided in this Agreement and the Development Agreement; and that if Cityterminates the
Agreement, City shall purchase from DJ any equipment at its depreciated value purchased
Whereas, pursuant to the Development Agreement the DJ has requested to provide
the maintenance and security requirements for the Public Parking Facility as further
provided herein.
1 IT IS AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:
SECTION 1. PURPOSE AND DESCRIPTION. DJherebyagreestoprovidethemaintenance
and security for the Public Parking Facility according to the terms and provisions of this Agreement.
SECTION 2. TERM OF AGREEMENT. The term of this Agreement shall commence upon
the opening of the Public Parking Facility and shall continue for a five (5) year period unless either
party provides the other with notice of termination not less than one hundred eight (180) days prior to
the end of the then current term; provided that, the City may terminate this Agreement at its sole
discretion, with or without cause or the occurrence of an event of default at any time on not less than
thirty (30) days written notice to DJ.
1 020107ba1 46
by DJ for its maintenance and security requirements under the Agreement; and
1 SECTION 3. COMPENSATION. As compensation for the services performed hereunder,
DJ shall be paid $1.00 per year.
1 SECTION 4. MAINTENANCE AND OPERATION.
4.1. Maintenance. DJ shall perform the following maintenance on the Public Parking
Facility:
(1) Regular and routine maintenance of the Public Parking Facility shall be
' performed, which shall include, but not be limited to, daily pickup of trash and
debris, daily cleaning of lobbies on all floors, all stairs, landings, elevators,
and restrooms, replacing of lamps and restroom supplies (lamps, disposable
restroom supplies, general lawn care, maintenance, and replacement of
landscaping, and cleaning supplies shall be furnished by DJ) and other routine
care of the Public Parking Facility.
t (2) Necessary special maintenance operations as circumstances require shall
be performed, including, but not limited to, removal of snow, ice and slush from
entrances, exits, steps and sidewalks, general lawn care and maintenance of
the landscaping. Snow and ice removal is to be completed by 8:00 a.m. each
day and as soon as precipitation ends at other times of the day. The top
parking level, including all exposed parking areas, is to be cleared after
precipitation ends. All snow piles shall be removed from the Public Parking
Facility within twenty-four (24) hours after snowfall ends
j (3) Sweeping and cleaning of the Public Parking Facilityon an as needed basis
but not less than monthly.
(4) All preventive maintenance described on the attached Exhibit A
at the times indicated therein.
(5) DJ shall purchase or lease all equipment necessary to provide the
services herein.
4.2. Services. DJ shall provide and perform the following services for the Public Parking
Facility:
(1) All necessary utilities shall be maintained at control levels as approved
by City and shall be paid by the DJ.
(2) Security services including, but not limited to as follows: (i) providing
assistance to Public Parking Facility tenants with problems in entering and eating
the Public Parking Facility; (ii) monitoring and responding to all security equipment;
(iii) maintaining an emergency plan covering emergencies occurring in the
I Public Parking Facility (iv) routine patroling of the Public Parking Facility by security
1 020107ba1 47
I ersonel; v) monitorin of securi cameras (which shall also be monitored at the
P ( 9 tY
911 Emergency Communications Center); and (vi) such other security measures as
the City shall reasonably require.
(3) Such other services as City may reasonably require from time to time
that are necessary to maintain and operate the Public Parking Facility in a
manner consistent with the standards of operation of other parking Public
Parking Facilityfacilities in the City of Dubuque.
SECTION 5. RIGHT TO INSPECT AND MAKE REPAIRS.
5.1. City shall have the right any time to:
' (1) Inspect the Public Parking Facility.
(2) Perform maintenance and make repairs and replacements in anycase where DJ is
obligated to do hereunder and where DJ has failed, after reasonable notice, to do so, in which event
DJ shall reimburse City for the cost thereof, promptly upon demand.
(3) Perform maintenance and make repairs and replacements in anycase where City
determines that it is necessary or desirable, to do so, in order to preserve the safetyof the faalities orto
correct any condition likely to cause injury or damage to persons or property.
r SECTION 6. STANDARDS OF SERVICE. It is the policy of City that the Public Parking Facility
shall be operated in an efficient manner, giving the best possible service to the public. DJ agrees to
cooperate at all times in support of this policy and to manage and operate the Public Parking
Facility in-accordance with the terms and conditions of this Agreement.
SECTION 7. INSURANCE REQUIREMENTS
7.1. DJ shall acquire and maintain at its own expense insurance as set forth in the attached
' Insurance Schedule as such schedule may from time to time be amended by City.
7.2 Before assuming operation of the Public Parking Facility, DJ shall submit to City
certificates of insurance required under this Section.
7.3 City shall provide general liability insurance coverage for City, its officers and
employees, and fire and casualty insurance coverage forthe Public Parking Facility, which shall
be included as operating costs paid by DJ.
SECTION 8. PAYMENT OF EXPENSES. All operating costs for the Public Parking Facilityshall
be paid by DJ as provided in Section 1.3 of the Development Agreement. Capital maintenance items
shall be paid from the Sinking Fund described in Section 1.5 of the Development Agreement.
SECTION 9. ASSIGNMENT. DJ shall not, at any time, assign this Agreement or any part
hereof, without the prior written consent of City.
020107ba1 48
SECTION 10. GENERAL PROVISIONS.
j 10.1. Compliance With Law. DJ shall comply, at all times during the term of this Agreement,
with all applicable ordinances and laws of the City of Dubuque, county, or state govemment or of
the United States Govemment, and of any political division or subdivision or agency authority or
commission thereof that may have jurisdiction to pass laws or ordinances with respect to the Public
Parking Facility.
10.2. Reservation Of Rights. Any and all rights and privileges not granted to DJ by this
Agreement are hereby reserved for and to City.
t 10.3. GovemingLaw.ThisAgreementandalldisputesarisinghereundershall be governed
by the laws of the State of Iowa.
10.4. Nonwaiver Of Rights. No waiver of default by either party of any of the terms, covenants,
and conditions hereof to be performed, kept, and observed bythe other partyshall be construed as, or
shall operate as, a waiver of any subsequent default of any of the terms, covenants, or conditions
herein contained, to be performed, kept, and observed by the other party.
10.5. Severability. If one or more clauses, sections, or provisions of this Agreement, or the
application thereof, shall be held to be unlawful, invalid, or unenforceable, the remainder and
application hereof of such provision shall not be affected thereby, provided, however, that if
' any provisions herein allowing termination of this Agreement by City in its sole discretion
shall be held to be unlawful, invalid, or unenforceable, then this entire Agreement shall be
void.
10.6. Paragraph Headings. The paragraph headings contained herein are for convenience in
reference and are not intended to define or limit the scope of any provision of this Agreement.
t 10.7. Force Maieure. Neither partywill be liable for delays in performance caused byacts of God
or govemment authority, strikes, or labor disputes, or othercause beyond the reasonable control of
1 that party.
10.8. Entire Agreement. This Agreement, together with all the Development Agreement and
exhibits attached hereto and thereto, constitute the entire Agreement between the parties hereto, and
all other representations or statements heretofore made, vernal, or written, are merged herein, and this
Agreement may be amended only in writing, and executed by d u I y authorized representatives of the
parties hereto.
10.9. Partnership Disclaimer. It is mutuallyunderstood that nothing in this Agreement is intended
or shall be construed as in any way creating or establishing the relationship of partners between
the parties hereto.
10.11. Agreement Construction. Words and phrases herein shall be construed as in the singular
or plural, number, and a masculine, feminine, or neuter gender, according to the context.
020107ba1 49
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
CITY OFD BUQU , IOWA
By:
Its
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Its
1 EXHIBIT A
j MAINTENANCE SCHEDULE
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EXHIBIT A
1 PREVENTATIVE MAIN
TENANCE REQUIREMENTS
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' INTRODUCTION
This plan is intended to assist those involved in establishing and funding an operating maintenance
program for the Port of Dubuque ramp.
The maintenance program is divided into three categories:
Operational: Most maintenance is provided by onsfte daily employee(s). Some maintenance
is provided by professionals, usually under a maintenance contract. This work
maintains the routine operation of the facility.
Aesthetics: Partially provided by onsite daily employee(s) and partially by an outside professional.
This work addresses primarily the appearance of the facility.
Structural: Initial observations provided by onsite daily employee(s) augmented by professional
i
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nspec
on and maintenance. This work addresses the long tenn structural integrity
of the facility.
A chart establishing a maintenance schedule with required daily, weekly, monthly, quarterly,
semi-annual, and annual maintenance tasks is provided.
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' PREVENTATIVE MAINTENANCE PROGRAM
Operational and aesthetic maintenance is ongoing and must be planned for in the operational
budget. With good operational maintenace, electrical, mechanical, and structural repairs should
be required less often. Good preventative maintenance reduces major repairs and therefore should
be planned for.
Operational maintenance must tie in the daily routine of the onsite personnel. Poor operational
maintenance can lead to costly repairs, can cause unsafe and unsightly conditions, and can even
' close the facility. Operational maintenance involves all building systems: cleaning floors, walls,
windows, lobbies, etc., door and hardware operation, electrical and mechanical systems, parking
control systems, plumbing and drainage systems, roofing and waterproofing, safety equipment, and
ice or snow removal.
' One of the most overlooked and least scheduled operations is cleaning. Proper cleaning not
l
k
on
y
eeps the facility aesthetically pleasing, it reduces future structural repairs. In the winter,
chlorides, or salt, are brought into the facility from the snow on the streets and sidewalks. This
chloride will produce future corrosion of embedded reinforcing and post tensioning steel. Simple
floor washing minimizes the amount of chloride absorbed into the concrete, thus reducing future
deterioration caused by the corrosion of the steel. Critipl areas, such as flat areas, entrance
ramps and drive aisles must be flushed regularly. Full sized power washing equipment works best
and should be scheduled at least quarteriy. Routine floor sweeping also reduces future damage
by unblocking drains and allowing water to freely flow to the drains and evaporate as quickly as
' possible.
A solid plan for snow and ice removal is paramount. Improper application of de-icing chemicals
can cause extensive structural damage, damage to metal doors and frames, and even damage
' to the landscaping.
It is important to minimize the use of any de-icing chemicals during the first two years of a structure
until is has obtained its full durability, however, use of sand is prohibited. De-icing products must be
' approved by the Parking System Supervisor.
Expansion joints can be damaged by snow plows, shovels, and ice scraping tools. The snow plow
operator must be familiar with the facility and must raise his plow at the exposed expansion joint.
The plow should approach the joint at an angle rather than straight on. This will reduce the chance
of catching the joint on the edge of the plow. It may be helpful to place a colored flag or wall marking
adjacent to the joint for easy indentification.
Snow and ice removal around drains is of utmost importance. Daily observation and cleaning should
' be scheduled as the ice and snow melt to prevent drain blockage.
Snow plowing must be carefully controlled on the top deck of the ramp. It is common for snow plow
operators to pile the snow on one side or in one comer. Piled snow will overload the structure. A
plowing pattern and a plan of removal must be developed to prevent overloading. This may inGude
side ch
t
' u
es, an open area for dumping the snow over the side of the ramp, the use of an open bed
truck for removal, or Dosing the top deck during heavy snow.
Operational maintenance and regularly scheduled professional preventative maintenance on
' electrical, elevator, mechanical and plumbing systems, parking control, and security systems will
reduce unexpected breakdowns. Routine plans for proper oiling, greasing, belt replacement, etc.
should be carried out in accordance with manufacturer's recommendations. All equipment requiring
professional preventative maintenance should be on contrect for services. Before the onset of winter,
' 020107ba1 54
water pipes, sprinklers, hosebibs, and drain lines must be either drained of water or their heating
' systems must be checked for good operation. Heat tapes, if used, must be checked regularly
during continuous operation.
Aesthetic maintenance is necessary for an attractive, well maintained appearance. Some
operational maintenance, such as regular sweeping and Leaning also become aesthetic
' maintenance. Signs, graphics, and paint quality should be routinely examined for good appearance.
Choosing the correct paint for painted concrete surfaces is essential for long lasting paint and for
the protection of the concrete. Water based latex paints should always be chosen to be applied to
concrete. Latex paints remain breathable in service. Paints such as polymer paints are not
breathable and will peal off when moisture evaporates out of the concrete. Oit based paints are
somewhat breathable, however the natural alkalinity of concrete tends to deteriorete the paint more
rapidly than latex paint. Metal surfaces should be painted with enamel paints or zinc-rich paints.
Enamel paints are the best general purpose paints for metal surfaces while zinc-rich paints are
' best for high humidity areas or as a primer on exposed steel surtaces.
Good surface preparation inGuding removal of dirt, oil, grease, and surface contaminants must always
be done before any paint is applied. For metal surtaces, existing rust should be scraped to clean
metal and primed before final coating. All paints should be applied above 50 degrees. Paint should
not be applied late in the day when conditions would allow condensation to occur at night, or when
rain is expected.
Structural examination begins with routine observation by the onsite personnel and is augmented by
a structural engineer if deterioration is noticed. Biennial examination by a structural engineer is
recommended until the structure is appoximatety 10 to 15 years old. After that, annual examination
is recommended due to the higher incidence of deterioration.
' Onsite personnel should be made aware of how to recognize structural deterioration and should
notify property management if any is observed. Property management personnel should know
whom to contact if deterioration is observed.
Life expectancy of materials must also be accounted for when considering long maintenance
budgeting. The life expectancy of most of the equipment will be in order of 20 years, at which time
equipment must be replaced; the I'rfe of roofing and plaza waterproof membranes will also be 20
years; the life of the traffic bearing membrane will be approximately 10 years; the life of window
' sealants will be approximately 20 years; the life of the building sealants, i.e. caulking, will be
approximately 8 to 10 years; and the life of the concrete floor sealer is 5 years.
The following chart shows the frequency of performing the required maintenance. In the chart,
"R" denotes the recommended frequency, "M" denotes the bare minimum frequency, "P" denotes a
required professional inspection. For those tasks with "M" only, the minimum frequency is also the
recommended frequency.
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Maintenance task F uenc D W M Q S A N
Daly, Weekly, Monthly. Quarterly, Semiannually, Annualy, Note number
OPERATIONAL
1. Cleanin
Swee in local areas R M
Com late ram swee down R M
Swee debris that collects in ex ansion 'Dints R M
Em trash cans R M
Clean restrooms M
Cashier booths -floors, fixtures R M
walls, windows R M
Elevators -floors, door tracks R M
windows R M
Stairs -floors, door tracks R M
walls, windows R M
Lobb M
Com lets ram floor wash down with ower wash R M 1
Parkin conVOl ui ment -directional si na e R M
Remove ondin water 2
Ice and snow removal 2
2. Doors and Hardware
Doors Gose and mechanisms work ro erl R M
Lubrication - ad'ustment R M
3. Electrical S stem
Check li ht fixtures, switches and o eretion R M
Relam li ht fixtures 2
Distribution anels R P
Fire control s stem, if a livable R M P 3
Eme en eneretor, if a livable M
4. Elevators
Check for normal o eratfon R M
Check indicator anels and li hts R M
Preventative maintenance service P 3
5. Heatin Ventilation and Air Conditionin HVAC
Check for ro er o eretion R M
Preventative maintenance service M P 3
8. Parkin Control S stem
Check for ro er o oration R M
Preventative maintenance service P 3
' 020107ba1 56
Maintenance task F uen D W M Q S A N
Daffy, Weeny, Monthy, lluerteAy, Semiannualy, Annualy, Nate number
7. Plumbin and drains e s toms
Check for ro r o oration
Sanita faalities R M
Irri anon, if a livable R M
Floor drains M
Flush floor drain s stem eve s rin M
Sum um R M
Fire rotection s stem, if a livable M
Drain waters stem for winter ~q
8. Roofin and Wate roofln
Check for leaks
Roofin R M
Joint sealant in floors R M
Ex ansion 'oints R M
Windows, doors and walls R M
Floor membrane areas R M
Check for deterioration R M
9. Safe Checks
Carbon monoxide monitor, if a livable R M
Handrails and uardrails R M
Exit li hts R M
Emer env li hts R M
Tri in hazards R M
10. Securi S stem
Check for ro er o ration M P 3
AESTHETICS
1. Si ns and ra hics
Check for ro er o oration
In lace R M
Clean R M
L ible R M
Illuminated R M
2. Paintin
Check for rusts ots R M
Doors and door frames R M
Handrails and uardrails R M
Pi uards, a osed i sand conduits R M
Other metal R M
Check fora earance
Stri in R M
Si ns R M
Walls R M
Curbs R M
Touch u int R M
Re aint 2
020107ba1 57
t
Maintenance task Fr uen D W M Q S A N
DaNy, Weeky, Monthy, quarterly, Semiannualy, Mnualy, Note number
3. Landsca in ,sidewalks
Remove trash R M
Planted areas M
STRUCTURAL EXAMINATION AND EVALUATION
Concrete deterioration R M P
Concrete aackin R M P
Post tension anchors p
Water leak a and netration R M P
ansion 'oints R M P
Guard rails and wires R M P
Stair tower structure R M P
Concrete membranes and coatin s R M
Notes:
1. Wash down with power washing equipment is recommended on a quarterly schedule. If performed
less often, at a minimum, power washing should be pertonned in the spring. The work may be
perforated by the onsite employee if trained in equipment operation. Otherwise, professional
cleaners may be required.
2. Perform as needed.
3. This equipment should be under a service contract for regular preventative maintenance and
emergency service. The equipment manufacturer's recommendations for inspection and
preventative maintenance should be followed.
' 020107ba1 58
' INSURANCE SCHEDULE
j
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020107ba1 59
'
CITY OF DUBUQUE, IOWA
1 GOVERNMENTAL IMMUNITIES ENDORSEMENT
Nonwaiver of Governmental Immunit .The insurance carrier ex ressl a rees and
y p Y 9
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.
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
1 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.
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.
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
1 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 in Policy The above preservation of governmental immunities shall
not otherwise change or alter the coverage available under the policy.
~ SPECIMEN
020107ba1 60
1
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
1. All olicies of insurance re uired hereunder shall be with an insurer authorized to do
p q
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 of Insurance 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 $2,000,000
Products-Completed Operations Aggregate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence Limit $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
I Medical Payments $ 5,000
This coverage shall be written on an occurrence, not a claims made form. Form CG
25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be included.
All deviations or exclusions from the standard ISO commercial general liability form
CG 0001, or Business Owners form BP 0002, shall be clearly identified.
020107ba1 61
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ACOR~~ CERTIFICATE QF LIABILITY IN~UI~ANCE azrz•azuas
vrwu:~tr. [563)556-4472 FA7f S 563}SSfl~-i-4lS TFII,S CERT.FICATE IS 13SUED AS A MATTER OF INFORMATI{~N
1NS111L1N4t AItNLY bNLY ANC3 t.OF1FERS MO RIGHTS UPON THE CERTIFICATE
MQLDER. THIS CERTIFCATE 04E5 NOT AINEND, EXTEND OR
~ I Httk .4i11NtE55 ALTER. iME COVERAC;= aFFOf~ED BY iliE POLICIES BELOW.
---
C11Y, SIAIt, dIP COOT
INSURLRS AtTORDING CO',IERACE NAIC a
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.rc;..l•r.a a Lnsuran[
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City, 5[air_, 71p Crde rc:_I.I ~.:
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COyERAGES _
THE PITI If:IF4 []F Ih illP?M:c LI:iIE? CLCIV'! l h'vL bCL~J IS$UEQ TYT THE INSI IPt[] N:67tU,'.IY.]'vt FU?{ IH= •"JL14:Y 'LHIVU IR7;+L'111 L4. NL11•n I'1: I FNL"R:
ARV n[:~JI0.EMEVT TE?M J? GCYJUI I IUH r.~ti !5RY gC:dl ru.u:T (:6t fiT'FER E)Q7LIdENT VJ1TH P55PECi TO 'A}i1LH HCa !'6H i+-xtn rl;. L1nv (n- r.::. II"rl I iR
M:.Y P=R"IAA 7HL: IH^uUR,'•!ICC NCCRJ? 3Y-HE r'r5_I~:IE£ C]F::t:'•i'IHc:I HEREIN Is allflJECr TGJSLL 'llC TJ'7,15 [-71C'_1, 5111d$.•~NP C:7V(]InC!NS pF tlf.F
FUJ•~ES. 4Cf:P.F.;J.TFI If ITS i-IC7'i,N A64Y FA'rt l3LW I{LI:UC:.U JY 'PJI:',:1514L~
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TYPE AF NFIIRM~F . _ 1'i:ll~v ~G,',:'~, hf. i4 L`Y C[HR410Y~
rUJC1 xUMB6i , ', L~111!
GENETJSL LIAFUITr ax:x :f:!'J-nrY_t n ...._},4S14,O4r,
x.IIIY'M-11:141 it'1-.?I L~P.IIITI' '+~Aa.LIV °_t~cL' h sn,rlar.
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tl,_1.., ~ J t:J.lt z,onn EMIr
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4W Li•;"riRC~a47-LlJII TI9ll1• le {IJ .: _.1 'lN"~:J '.A:V ~ 400 ~[
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IRE CITY 8F DUBUDUE I5 L25TE0 A5 AN atlDITIDNAL INSURED ON GENERAL LTABIIZTY PI}IICttS uSINC ISO ENGORSE-
IEN i F7R1~ CG 20 2G 47 4~ "aDpTTTON41 . IN5[1RE0-DESIGNATED PERSON OR ORIGAYIZATIOti" OR ITS EQIIIVILANT.
;kN ERAL LIABILITY POLICY LS PRIMARY AND NON-CUNTRIBUTIAG. FORM CG 25 04 03 47 "UE5IGNATED LOCATIDIYS"
;EN ERAL LIABILITY At7GREG4TE LINZ'1 SI{QLL BE INCLUDED. Cil4ER,Y~NTAt. TMMUNtTttS tNU0It5E11ENT LS INCLUDED.
ILL POLICIES 5H4LL BC [NOORSrn r[- PId?VY11E 30 OV~Y ADVANCE NOTICE OF CANCELLATION TO CITY OF DUBUQUE
CITY OF OUBUQIIE
CITY HALL
SO W. 13TH STREET
LIUGU(}llt, lA 52401
acaRC~ xs Izaovos~
1
020107ba1
BIIOLLD JWYOF TMEABOYE UE9Gg0[D FOL GICS D-. CRVCn-Lro lYl-Wt Inc
EXrlx0.ndJ GATE 711EREOF, THE ISSL'IN6 wSUR3t 1MIL L. ~w NJVL
_~r~ anYarJF1TTENNOTrc^YOTaEGFR'TFYl.TrlxTO~l,.vrmran+_Ltrl,
ILbbR1i1~C109AChW01fd6'k3llml~A~tli%?HLM ~.k3~Lbf347CPSla1~{X1f
'AACORD CC+RPCIRATIOP11966
62
IMRORTANT
H me u,~rlircarc n!]IC.~r IS an RDUI I :UALAt ItU9i1kEU Ik!k: uulicyli~sl I~~.::sd l~ es:[i~•seJ. ~. ~IalernenR
Uf111115 C::1lfG~iP HOPS nUi COn1{?f ngrNS 441hB CE-~ILfl4'~llC~ Ilglilgr iri lira iaf v:~1:L rl~nlar aeine11115}.
li SU@nOt,~iTI~JN IS '.':RIVED, wCyeu to il1EY a?li-la d.nd wiitiitiu~ls ~f Ilea F:[.lic.-r, u~lair, pi,licies may
IIiQUIf4U c.Il S'r1~7f°P,.tl'Pni..~ 513[enYcnt 4n :hls CfAfrtI~IS:dRC d4r,Y ni;l r.~;nfri liyhls I[: Illy. ~rilili~ale
hdd~h Ifl li(xl Uf SIKa P,nf1CfSP.rY~F'Yi(Si.
DISCLAIMER
I he l:erifr~[e of nstxanre nn 1hp re'.t:raP side aF tit s fxm dues ntrl tzxtslilulc: a cunl+a[# I,r_I~x~el ~
the Issui~~g insurrtlrs;, auUP'ocLed rrprppelrt,~olve or Fraylr;er, and tha c?I ~t:aLre l irrdc; , IItJ~ Jsae-:: it
atlirn'aU•rc31y of neyaAixtaV ~Irwht, extend oraAter me cor?rage aKn[dc36 trf the P:tlil~ir~: lislri Ilerir~ni
SPECIMEN
k~CORD 25 (24D7rD8-
020107ba1 63
--
POLICY NUUB[fi:
1
t
GDMMERCIAL GENEI'tAL LIABILITY
Cl3 25 ~ p3 87
THIS ENDORSENPEN4 CHANGES THE PdLICY. PLEASE READ GT CAREFULLY.
DESIGNATEQ LGCATION,LS~
GENERAL AGGREGATE LIII~IIT
This erirtc:rber-,ant marfiFies irsur~nca nrnvir!~[t rrndtw the frllauing: ~~
COMMIERCIAL GENERAL LIARII 17Y t~C1VE~P.GE PAi?T
SCHEDULE
Desigl7ated Latativn(s}: - i
I
Ilf no CT-~tr; app=_ar shave. irfQrrYl3tlCn reguiratl to eamplr=te this endc~mFnt kill k~r rl~chVn in ifi? CrPclarations
as AopicaCle to :hs encorsenent.}
A. Fdr all sums ~•hieh the insu,ed berzsmra leg~lrv
abiigated I~~ FkS` as 'dam3ge6 caused b71
"occurrerr~s" .ur+tar f;f3t~FRAGE A fSECT10t,1
11. and in- all n-.eciiral expen~s caused bd aec-
dr:nts under L[}VF~{AGE C r:.SECTIgN I], tVhi~c~
tan be aHri4uted only' to aF:i:idtiC~nS al a surge
r~stgnated "location" shcw~ in the Sc~edu~r~
~OJe:
1. A separate Oasiyna~d l.aca;ion General
Aggregate _imik apafes td each. designated
'10Ca11+J11', 3rd that unit is erlr~l ko the
~trniunt of the Gcnmral Aggregate Lim t
shown in the CPCtaratlons
2 Tltc~ Dcsigna>Ed :-oration C~rroera: agr:regate
l u, iil ix ltra n rr..esl •,ac yvill pay For the sum aF all
derneges under CC,VCR?,GC A, exccpr. darn
ages barsuee at 'bodily mjur~' or "propart;
damage' moluded it the ' products-completed
~perdtians ha>zardT. arhl for medical exF:enses
under C(7VEFt4GE G regar~les~ of lttc rwrn-
GCr Cr(:
a. nsurecls
b. C iaims ma:Jc c]r"'suil~' lxtxyt 1, u
c. Nel^son~ ar Org3r¢a-inng rnakir,~ clalrns
nr hrlnn~ing' salts".
3- AnY Rents made under COVERAuc A
lar damar~es ar ureter Ct7VERACE C for
meyir;F,l e.~,pe~ses snap reduce tte Ueslg-
nat3d LirC:dti[an C,c~°a;ral Aygrriyate Lirntl fpr
the- dEaigneted `bcetrpn". :iuclt FaaYmenas
Shod not reduce the Genera: Rgcregalr: r rnut
ahrwn in tiso r7Hr`L-ai;align5 nor s~all they re-
duce any over D~esi9nated Laca'iUn General
Aggregale Limit fnr any ~t~er deQranated
'7nCeki~ri sha'wn in the SchedVe above.
+T. The limits shotivn in tfie C?Garailons itar Each
r3ccurrc•nce. Fire Qrsrnag~ and Uedi_21 Ex-
pPraa r,~~ntinue to apply- ilowever. nstead of
lteimg sutajert to IhE General Ryyregate Lir-it
sltOovr' in Itttr decrarationg, SUCK Iry1R5 t4t1 t}e
5uritc+:i icy lhC upFrlrr~fic~ Jesigiarr>:J Lnr.,=non
Canarel Aygrey:lr I unit
020107ba1 64
i
9.Fcu all Sums wfut;li ulna iii~~r~~t 6rwrnes IEgslty
oL^Ii~taMd tb pay es damm33ee csusC.d 6y
'fiu :~Jn'A.'YCE6`~ undar ~~GVER~.GE A :SEC;TtOf~
I:i, and fit all meaical axps±ru;~+s caucerl by arri-
dznts under CC~'~/ERAGE C {SECTION I} ~,vhct,
canr+ot be atiribut?rt only tG ~perat.ons al a sln-
qle desi3nated °locadtn` shown in the F,Cttedulp
atxrvd.
1. A•ry {~ryrcxvia mAde under CQUERAGC A
far damages as -order GOVERAGF C =or
medi::a! exFense3 shall ied11CE the amcant
~k~ll8t]IB under tha Gt+r:erdl Aggre~atie Llmli
ar Nhe ?rxiuc:s-Gix-iplClc~l UpBialrOi~: Ay-
g re;tatc L i'n it wh ii,hr~er is epplicsolo; and
2. 54Ch pa~,+rnerts 9nalt not rEdtua any GesignaDOd
Ltsration Genaral fsggrc:yute Lraiiil.
C- 'Nhon covoraye rur I r~:ad ily rn5i~~y o~.: rf iha
'produclB completed opar~tivne hazard' ie pro-
viced, ant paumeni9 for de.rr-ag?s becruse ~f
'bodi'y injury- ar 'preperty damage" ncludecirn
tlyd "prt:~uclacompleL~ec oaeratians haxaM~' will
(educe tfie Prodraet5~Umpleied oparatiur>r. A.g-
gregats Limit e-,d not roduoe the General Ag-
gregate l~mlt nor me L}eslgnatad l xFttinn C.Pn-
gral Aggregate Limit.
D. Far tho pw.rposes of lhls endorsement..he D~efi-
nltions Sec~on Is smg.rlPd t•,p the sddifian of
the fnilowing de~iniLcn:
'Locati^n" rncans prernlses nvdv ng tre same
4f CCttfteCU11Q loks, 4r Framispz •rr~ose C.OnneC-
Jon Is Inte'ru~ed only by a sreet re.~adw~a}~. 'rrd-
teroray ar rugl-t-cr~vray of a railroad.
E. I h6 pr4V1310r3 ni I.irrxfs CJf Insuran:,e (SECTIUPI
It1j not ottt~vrisE modified by this enrknsexnenL
shall cznt! nua tc appN as sEipulatec.
SPECIMEN
020107ba1
65
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Pl]LIC:Y NIIMTif"12 COMfNERCIat_GFJ'1ERALLIaf31LITY
CG 26 ~6 OT 04
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INS4~REI~ - QE$1GNATEb
PERSON ~F~ ORCANLZATION
Thls endorsement modifies insurance otcviaad unrkn thr~'rsll:ruing:
COPAhtER.{:IAL GENER0.L Ll%+.61t.ITY CGVERAGE PART
$~CHEOIrLE
- - - _.--~
Name Qf Additional rnsured Rargon(sy Or 171'gartlzation(e1_
ThF Ci-.~~ nF Dubuque, inclueling all ItS r?I?..t~rt and appninted
o~`iri~ls} all i,s e~pl~~reys ~tnd r'ol~.trtte'rs, sill i'4 h~~ards,
conlrnissions and.+'or authorities and t`leir bo~rrl mr`mtte'rs,
employees r_nd volunteers,
r-------. __. - _ -
Intormahcrt ieauined :n crlr~ptFte trig Schedule.rf not <_haurt abou~. •~nll ye shown in the peclaratiors.
Sp:G~in n - Wlta le An tttsurad is arnerdai io in-
clude as an edditiarte~ inaurcd the prx:;UF•ti ;1 r^ ~~rymi
zstionSs;l shatvn .n the Schedule, but anty wi±h respeci
da liabilrly rrx "hn^lily injurtr". "rympe-ly damage" Ui
"per~rol end ad',rartisirg iniur¢ caused, in whrle nr
in dart. by yrour acts ur umissior3 or the acts or ona~s-
siorts od tlt~se ~.ting On yqur E:ehalE:
A. in the pprf~ormance of youron~ang aaer.atiars: or
B. In c~nn8cliCn tbifn your aremises rnvned by nr
rrnlr~ri to ynii ,.~•• ~, -
1.;~R ... ~--
x j
r-a ~n ~a n~ oa a3 ISO f~:naeries I rrr:.. 20x4
020107ba1 66
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Exhibit K
Operating Expenses for the Public Parking Facility Include the Following:
• Staffing (Maint./Cleaning/Security/Customer Service)
• Utilities (Phone, electric, water, etc.)
• Insurance
-Property
-General Liability
• Snow/Ice Removal
• Maintenance Contracts
• Property Maintenance (General damage repair, painting, etc.)
• Supplies (Replacement lights, cleaning supplies, bathroom supplies, etc.)
• Striping and other painting
• Landscaping
• Administrative overhead, which shall be limited to $10,000 per year for any year
that DJ has the Maintenance Services Agreement with the City for the Public
Parking Facility or $21,610 per year for all years that DJ does not have such
Maintenance Services Agreement. Such amounts shall be adjusted annually by
the increase, if any, from the previous year in the Consumer Price Index for all
items for All Urban Consumers-U.S. City Average, published by the U.S.
Department of Labor, Bureau of Labor Statistics.
• Security
020107ba1
67
Exhibit L
Par. 12 of the Development Agreement Between the City of Dubuque and The
McGraw-Hill Companies, Inc.
t
' SECTION 12. PARKING. City owns the real estate (the Parking Property)
which adjoins the Property shown on Exhibit B and is intended for use for parking
' purposes. ln~ raonnectton therewith, the parties agree as follows:
12.1. Construction of Improvements by McGraw-Hill. IIIJithin th+a ttme frames
set ford in Section 10.3, McGraw-Hitt shall, at its sole expense. complete the
grading, paving. landscaping including islands, and lighting the Parking Property
according to plans and specifications approved by City and consistent with City
standards including the Port of Dubuque Design Standards. The Parking
Property shall be divided into Lot A and Lot B as set out on Exhibit B. AAcGraw-
HUI shall be responsible for obtaining of all necessary permits, and shall be
responsible for and pay for the cost pf drainage and storm water improvements
required by City standards and state and federal taw for the devebpment of the
Parking Property. City shall pay only those costs pre-approved by City for
1 transportation and disposal of fill required to be removed frvrn the Parking
1
020107ba1 68
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020107ba1
Property as a result of constnx~ion by McGraw-Hill of the Improvements
contemplated by this Sedlon 12. McGraw-HIII shall use all reasonable efforts in
its design and improvement of the Parking Property to limit the need tD remove
fill from the Parking Property. The City shall be provided with prompt notice of the
believed need to remove fill from the Parking Property so as to allow City to
make arrangements for sampling and analysis of such fill, and McGraw-Hill shall
allow such activities by City. City shall not be responsible for bringing any new till
to the Parking Property. In additbn, City shall not be .responsible .for
transportation and disposal of till placed on the Parking Property by McGraw-Hill,
its empbyees, agents or oontradors.
12.2 Construction of Improvements by City. City shall install .gates and
controls and underground servbes to those gates and controls to control acx:ess
to Lot B, so as to permit the type's of uses set aut bebw in this Section 12.4. The
installatbn of gates and controls and underground services to the gates and
contort shall be substantially completed. by eighteen (18) months -after the
Closing Date. City shall have the right to install, at City's expense and during the
construction of the Parking Lot by McGraw-Hill or at such later date as City
determines, additbnal electrk~l service, water, staging, and Ue downs.
123. Maintenance of Parking Property. Maintenance, repair and
replacement of the Parking Property shall be the sole responsibilfty and expense
of City, inducting but not limited to:
Snow removal on Parking Property and adjacent sidewalks completed by
7:00 a.m. and 3:00 p.m. each day;
Salting of Parking Properly and adjacent sidewalks completed by 7:00
a.m. and 3:00 p.m. each day;
Maintenance of the lawn sprinkler system;
Repladng bushes, trees, etc., as needed;
Lighting maintenance;
Parking bt spring dean-up; and
Monthly parking bt sweeping during non-winter'months.
124. Use of Parking Lots.
(1) Lot A shall consist of non-ass~ned spacers for McGraw-Hill's empbyees
at no cost to such empbyees for parking between the hours of 8:00 a.m. and
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1 5:00 p.m. or such later time for a spedflc day as the City Manager may upon
written request of McGraw-Hill agree, Monday through Sunday, fifty-iwo weeks
per year. Subject to Section 12.4(3), City shall have the right to albw parking in
Lot A by the public during such hours and at any other time. Notwithstanding the
foregoing, McGraw-Hill empbyees .who have already parked in Lot A prior to
' 5:00 p.m. may remain parked in Lot A until their workday is completed except on
a day that City has notified McGraw-Hill in writing seven days in advance that
empbyees may not .remain in Lot A after 5:00 p.m. on that day.
t (2) Lot B shall consist of non-assigned spaces for McGraw-Hill's employees
at no cost th such employees for parking beiween the hours of 8:00 a.m. and
-5:00 p.m. or such later time for a specific day as the City Manager may upon
written request of McGraw-Hill agree, Monday through Friday, fifty-two weeks per
year, except holidays. Subjed to Sedbn 12.4(3); City shall have the right to
alkniv parking in Lot B by the public during such hours and at any othertame-and
to use Lot B at any other time for such purposes as City determines appropriate.
Notwithstanding the foregoing; McGraw-Hill empbyees who have already parked
I in Lot B prior to 5:00 p.m. may remain parked in Lot B urrtil their workday Is
completed except on a day that City has notified McGraw-Hill in writing seven
days in advance that empbyees may not remain in Lot B after 5:00 p.m. on that
day.
(3) It is the intent of the parties under Sedbns 12.4(1 } .and (7) that all
McGraw-Hilt employees will be guaranteed a parking spate, but not to exceed
the 513 spaces shown on the attached Site Plan, in Lot A orLot B between the
1 hours of 6:00 a.m. and 5:00 p.m..Monday through Friday, fifty-two weeks per
year, except holidays, and public parking wiU be limited by C[ty to effectuate such
guaranteed parking. In order to assure that Clly makes sufticier~t parking spaces
available to McGraw-Hill for its empbyees and to effidentiy manage the krt,
McGraw-Hill will notify Cily upon its initial occupancy of the offioe building of the
average number of employees for the month who will work at the office building
between the hours of 6:00 a.m. and 5.'00 p.m. Monday through Friday and
then3after whenever there is any incxease or decrease in the average monthly
' number of such empbyees.
(4) For purposes of this paragraph, holkiays shall mean New Years. Day, ,
Memorial Day, 4"' of July, Labor Day, Thanksgiving and Christmas Day, and the
following Monday when any of fire foregoing named legal holklays fall on a
Sunday.
12.5. Parking Facility. If City oonstnrds a parking structure in the Port of
Dubuque north of Third Street, upon completion of the parking :structure, aU rights
of Mc~raw-Hill and its employees as provided in Par. 12.4(2) shall transfer to the
parking stnx:lure and such parking rights shall be exdusive to the parking
stnxxure. Such structure shall be constnrcted within 1,200 feet of the Property.
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' Exhibit M
t Escrow Agreement
' 020107ba1 72
ESCROW AGREEMENT
' BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
' DIAMOND JO, LLC
This Escrow Agreement, dated , 2007 (Escrow Agreement) is entered
into between Diamond Jo, LLC (DJ) and the City of Dubuque, Iowa (City).
WHEREAS, DJ and City entered into the Port of Dubuque Public Parking Facility
' Development Agreement dated even date herewith (the Development Agreement) whereby
DJ agreed to deposit funds with City to be held in escrow and to be disbursed as provided in
the Development Agreement.
NOW, THEREFORE, in consideration of the premises set forth above and other good
and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto
' agree as follows:
SECTION 1. DEPOSIT OF ESCROW FUNDS. As provided in Section 1.2 the
' Development Agreement, prior to and as a condition of award by City of the contract for the
construction of the Parking Facility (as that term is defined in the Development Agreement),
DJ will deliver to City the sum of Six Million Three Hundred Fifty Thousand Dollars
($6,350,000) less such amounts that have already been paid by DJ to City for the design
and construction of the Parking Facility (Escrow Funds) to be held by City in accordance
with the terms hereof. Subject to and in accordance with the terms and conditions hereof,
' City agrees that it shall receive, hold in escrow, invest and reinvest and release or distribute
the Escrow Funds. It is hereby expressly stipulated and agreed that all interest, dividends
and other earnings on the Escrow Funds shall become a part of the Escrow Funds, and
shall be held by City and disbursed as provided in the Development Agreement.
SECTION 2. INVESTMENT OF ESCROW FUNDS. City shall deposit the Escrow Funds
' received under this Escrow Agreement, including principal and interest, in a money market
fund account at Dubuque Bank & Trust Company, Dubuque, Iowa, and shall not move or
transfer the Escrow Funds except as provided herein or unless otherwise agreed upon in
' writing by DJ. The parties agree that, for tax reporting purposes, all interest or other taxable
income earned on the Escrow Funds in any tax year shall be taxable to DJ.
' SECTION 3. DISBURSEMENT OR WITHDRAWAL OF ESCROW FUNDS.
3.1. City is hereby authorized to make disbursements or withdrawals of the Escrow Funds
' as follows:
(a) Incompliance with the terms and provisions of the Development Agreement;
' or
' (b) According to written instructions signed by both City and DJ.
' 020107ba1 73
3.2. A copy of each withdrawal, including reasonable documentation thereof, shall be
' delivered to DJ at the time of withdrawal, but DJ's consent shall not be required to any such
withdrawal that is in compliance with the Development Agreement.
' SECTION 4. NOTICES. All notices, requests, demands, and other communications under
this Escrow Agreement shall be in writing and mailed or delivered to the party to whom
' notice is to be given, by first class mail, registered or certified, postage prepaid, and properly
addressed, return receipt requested, to the party at the address provided in the
Development Agreement or, to such other address as a party shall designate by written
notice to all other parties to the Escrow Agreement.
SECTION 5. TERMINATION OF ESCROW. This Escrow Agreement shall terminate upon
the disbursement, in accordance with the terms hereof, of the Escrow Funds in full.
SECTION 6. GOVERNING LAW; JURISDICTION. This Escrow Agreement shall be
' construed, performed, and enforced in accordance with, and governed by, the internal laws
of the State of Iowa, without giving effect to the principles of conflict of laws thereof.
' SECTION 7. AMENDMENTS; WAIVERS. This Escrow Agreement may be amended or
modified, and any of the terms, covenants, representations, warranties, or conditions hereof
maybe waived, only by a written instrument executed by the parties hereto, or in the case of
' a waiver, by the party waiving compliance. Any waiver by any party of any conditions, or of
the breach of any provision, term, covenant, representation, or warranty contained in this
Escrow Agreement, in any one or more instances, shall not be deemed to be nor construed
' as further or continuing waiver of any such conditions, or of the breach of any other
provision, term, covenant, representation, or warranty of this Escrow Agreement.
' SECTION 8. COUNTERPARTS. This Escrow Agreement maybe executed in two or more
counterparts, all of which taken together shall constitute one instrument.
' SECTION 9. ENTIRE AGREEMENT. This Escrow Agreement and the Development
Agreement contain the entire understanding among the parties hereto with respect to the
escrow contemplated hereby and supersedes and replaces all prior and contemporaneous
' agreements and understandings, oral or written, with regard to such escrow.
SECTION 10. SECTION HEADINGS. The section headings in this Escrow Agreement are
' for reference purposes only and shall not affect the meaning or interpretation of this Escrow
Agreement.
SECTION 11. SEVERABILITY. In the event that any part of this Escrow Agreement is
declared by any court or other judicial or administrative body to be null, void, or
unenforceable, said provision shall survive to the extent it is not so declared, and all of the
' other provisions of this Escrow Agreement shall remain in full force and effect.
' IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to
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be signed the day and year first above written.
DID
By:
Its:
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CITY OF DUBUQUE, IOWA
Bv:
Roy D. Buol, Mayor
Attest:
Jeanne F. Schneider,
City Clerk