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Dubuque Ice and Recreational Center LeaseTHE CITY C7F ~, DLTB E Masterpiece on the Mississippi MEMORANDUM July 12, 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Lease with Dubuque Community Ice and Recreational Center Leisure Services Manager Gil Spence is recommending approval of a lease with Dubuque Community Ice and Recreational Center of 2.25 acres of land in the McAleece Park and Recreation Complex to build an indoor ice rink. The main points of the lease are: • Twenty-five year term. • If the City terminates the lease, the City shall pay the appraised value of the improvements. • Prior to construction, the Lessee must furnish to the City evidence that funds have been raised or pledged to pay the cost of construction. Lease must also provide evidence that the Lessee will be able to operate the arena. • Rent is $1.00 per year. • If the lease is terminated, the arena becomes the property of the City. If the City so chooses, they can require the arena to be removed. • The public rest rooms now present on this site will remain or new ones constructed. • Lessee will be responsible for relocating the two soccer/rugby fields. • The City must approve all plans and specifications, including the exterior appearance of the building. • Lessee shall be responsible for all maintenance including snow removal from the parking lot. • Lessee shall provide and maintain lighting for the parking lot. There was a slight wording change from the lease that was set for public hearing. Having evidence that funds are available are now a condition to be met prior to construction, not prior to closing. I concur with the recommendation and respectfully request Mayor and City Council approval. ~ ~ !l °~~,., ~ i Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Gil D. Spence, Leisure Services Manager THE CITY OF Dui ~E Masterpiece crrr the Mississippi MEMORANDUM July 10, 2007 TO: Michael C. Van Milligen, City Manager FROM: Gil D. Spence, Leisure Services Manager SUBJECT: Lease with Dubuque Community Ice and Recreational Center INTRODUCTION The purpose of this memorandum is to request that the City Council approve the Lease Agreement with Dubuque Community Ice and Recreational Center for 2.25 acres of the McAleece Park and Recreation Complex to build an indoor ice rink. DISCUSSION Dubuque Community Ice and Recreational Center is interested in leasing a section of the McAleece Park and Recreation Complex to construct an indoor ice arena. The 2.25 acre leased area is a part of the present soccer fields. Main points of the lease include: • Twenty-five year term. • If the City terminates the lease, the City shall pay the appraised value of the improvements. • Prior to construction, the Lessee must furnish to the City evidence that funds have been raised or pledged to pay the cost of construction. Lease must also provide evidence that the Lessee will be able to operate the arena. • Rent is $1.00 per year. • If the lease is terminated, the arena becomes the property of the City. If the City so chooses, they can require the arena to be removed. • The public rest rooms now present on this site will remain or new ones constructed. continued Dubuque Ice & Recreational Center, page two • Lessee will be responsible for relocating the two soccer/rugby fields. • The City must approve all plans and specifications, including the exterior appearance of the building. • Lessee shall be responsible for all maintenance including snow removal from the parking lot. • Lessee shall provide and maintain lighting for the parking lot. ACTION STEP The action requested is that the City Council approve the lease agreement with Dubuque Community Ice and Recreational Center. GDS:jIr attachments 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 396 RESOLUTION NO. -07 DISPOSING OF AN INTEREST IN REAL PROPERTY BY LEASE AGREEMENT WITH DUBUQUE COMMUNITY ICE & RECREATIONAL CENTER WHEREAS, the City of Dubuque, Iowa (City) is the owner of the following described real estate (the Property): A part of an unplatted slough and parts of Mineral Lots 298 and 299 south and west of Admiral Sheehy Drive in the Northwest Quarter of the Northeast Quarter of Fractional Section 19, Township 89 North, Range 3 East of the 5th Principal Meridian in the City of Dubuque, Dubuque County, Iowa shown on Exhibit A-1 attached hereto and WHEREAS, Dubuque Community Ice & Recreational Center, an Iowa Corporation desires to lease the Property for the construction and operation of an ice rink as set forth in the Lease Agreement attached hereto; and WHEREAS, on July 16, 2007, the City Council pursuant to notice published as required by law held a public hearing on its intent to dispose of the foregoing interest in the Property and overruled all objections thereto; and WHEREAS, the City Council finds that it is in the best interest of the City to approve the disposition of such interest in the Property. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The City Council of the City of Dubuque approves the disposition of the City's interest in the foregoing-described Property by lease to Dubuque Community Ice & Recreational Center Section 2. The Mayor is hereby authorized and directed to sign this Resolution and the Lease Agreement. Passed, approved and adopted this 16~' day of July, 2007. ~ ~f Roy D uol, Mayor ,c'~ ttest: Jeanne F. Schneider, City Clerk ~ ,~o~a~~r~ ~.~~.~~ ~~u~r~Y ~~~u ~r~t~~~~~tx LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND DUBUQUE COMMUNITY ICE & RECREATIONAL CENTER THIS LEASE AGREEMENT (the "Lease") dated for reference purposes the day of , 2007, between the City of Dubuque, Iowa, a municipal corporation (Lessor) and Dubuque Community Ice & Recreational Center, an Iowa Corporation (Lessee). SECTION 1. DEMISE AND TERM 1.1. In consideration of the rents hereinafter reserved and the terms, covenants, conditions and agreements set forth in this Lease, Lessor hereby leases to Lessee the real property shown on Exhibit A-1, attached hereto, together with any and all easements and appurtenances thereto and subject to any easements and restrictions of record (the "Demised Premises"), to have and to hold for a term of twenty-five (25) years commencing on August 1, 2007 and terminating at 11:59 p.m. on July 31, 2032, subject to all of the terms, covenants, conditions and agreements contained herein. 1.2. Termination. (1) Notwithstanding Sec. 1.1, City may at any time for any reason or for no reason terminate this Lease upon twenty-four (24) months written notice to Lessee specifying the date when the Lease shall terminate (the Termination Date). In the event of such termination, Lessor shall pay Lessee for the termination of the Lease the appraised value of the Lessee Improvements (but not including the value of this Lease or any real property) as follows, and such payment shall constitute full compensation to Lessee for all of Lessee's damages and losses of any kind arising out of such termination: Within 180 days prior to the Termination Date, Lessor and Lessee shall have prepared an appraisal of the Lessee Improvements (but not including the value of this Lease or any real property) thereon by a certified appraiser experienced and specialized in appraising similar types of properties in the Midwest Region mutually selected by Lessor and Lessee. If either party is dissatisfied with the appraisal or the parties cannot agree on an appraiser, each shall, not later than 90 days prior to the Termination Date appoint its own appraiser, each of which shall be experienced in appraising similar types of properties in the Midwest Region and the two appraisers appointed by the parties shall select a third similarly experienced appraiser. The average appraised values of the three appraisers 071207tao _ 1 _ shall be the appraised value of the Lessee Improvements for the purposes of this 1.2. (2) If Lessor exercises its right to terminate this Lease and subsequently operates the Demised Premises as an ice rink within two years after this Lease is terminated, Lessee shall be entitled to 1.5 times the amount that Lessee is entitled to recover as determined in (1 ). 1.3. Closing Date. On the Closing Date, Lessor shall transfer possession of the Demised Premises pursuant to this Lease. 1.4. Condition of Property. Lessor shall deliver the Demised Premises in its "as is" condition. 1.5. Conditions to Closing. The closing of the transaction contemplated by this Lease and all the obligations of Lessee under this Lease are subject to fulfillment, on or before the Closing Date, of the following contingencies: (1) Lessee shall have obtained any and all necessary governmental approvals, including without limitation approval of zoning, subdivision or platting, and of the Construction Plans pursuant to Section 3.2 below that are necessary or desirable in connection with the Lease and development of the Demised Premises. Lessor shall cooperate with Lessee in attempting to obtain any such approvals, provided that Lessor shall bear no expense in connection therewith. (2) Lessee shall be in compliance with all the material terms and provisions of this Lease. (3) Lessee shall have furnished Lessor with evidence, in a form satisfactory to Lessor as Lessor shall determine in the reasonable exercise of its discretion, that Lessee will be able to operate the Tenant Improvements for the Term of this Lease on a sound financial and managerial basis (4) Lessee shall at its cost have caused a survey and plat of the Demised Premises to be prepared and recorded. 1.6 Closing. The closing shall take place on or before August 1, 2007 (the Closing Date), or such other date as the parties may agree in writing. Exclusive possession of the Property shall be delivered to Lessee on the Closing Date in its current condition and in compliance with this Lease. Consummation of the closing shall be deemed an agreement of the parties to this Lease that the conditions of closing have been satisfied or waived. SECTION 2. CONSTRUCTION Before Lessee commences construction, Lessee shall furnish to Lessor evidence, in a form satisfactory to the Lessor as Lessor shall determine in the reasonable exercise of 071207tao _2_ its discretion (such as evidence of cash on hand or a letter of commitment from a bank or other lending institution for funds to cover the cost of construction and furnishings), that Lessee has firm financial commitments sufficient in amount to complete construction of the Lessee Improvements (as defined herein) to the Demised Premises in conformance with Construction Plans (as defined herein), or Lessor shall have received such other evidence of Lessee's financial ability as in the reasonable judgment of Lessor is required to complete such Improvements. SECTION 3. RENT Lessee shall pay Lessor (in addition to taxes, assessments, and other charges required to be paid under this Lease by Lessee) rent for the Demised Premises of One Dollar ($1.00) a year in advance upon execution of this Lease and on the same date each year of the term. Lessee shall not be in default of rent unless and until thirty (30) days after Lessor delivers written notice to the Board of Directors of the Lessee (or its lawful successor or assign) that rent is past due. Lessor acknowledges receipt of the rent for the first year. SECTION 4. TITLE TO IMPROVEMENTS AND TRADE FIXTURES 4.1. Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean all of Lessee's personal property located on the Demised Premises used in Lessee's business. Title to Lessee's trade fixtures (the "Trade Fixtures") are and shall be the sole and exclusive property of Lessee during the term of this Lease and shall remain the sole and exclusive property of Lessee after the expiration or termination of this Lease, for whatever reason. Lessor acknowledges and understands that it shall have no right, title, or interest in or to Lessee's Trade Fixtures either during the term of this Lease, or thereafter (except as hereinafter provided). Lessor acknowledges and agrees that Lessee shall have the right to encumber, sell, or hypothecate Lessee's Trade Fixtures, to remove them from the Demised Premises, or to otherwise deal with all or any portion of such Lessee's Trade Fixtures, at Lessee's sole discretion. Provided further, that upon ten (10) days' prior written notice to Lessor, Lessor shall prepare and deliver to Lessee a certificate in recordable form stating that Lessor has no interest or right in or to Lessee's Trade Fixtures, as well as any other or further document which Lessee may reasonably request from Lessor. 4.2 Lessee Improvements. All Lessee Improvements hereafter constructed on the Demised Premises are and shall be the property of Lessee during the term of this Lease and no longer. Upon any termination of this Lease, by reason of any cause whatsoever, if the Lessee Improvements or any part thereof shall then be on the Demised Premises, all of Lessee's right, title, and interest therein shall cease and terminate, and title to the Lessee Improvements shall vest in Lessor, and the Improvements or the part thereof then within the Demised Premises shall be surrendered by Lessee to Lessor. No further deed or other instrument shall be necessary to confirm the vesting in Lessor of title to the Lessee Improvements. However, upon any termination of this Lease, Lessee, upon request of Lessor, shall 071207tao _3_ execute, acknowledge and deliver to Lessor a quitclaim deed confirming that all of Lessee's right, title and interest in or to the Lessee Improvements and that title to the Lessee Improvements has vested in Lessor. Notwithstanding the foregoing, Lessor at its option may require Lessee to remove the Lessee Improvements from the Demised Premises at Lessee's sole expense upon 120 days' written notice to Lessee, and Lessee shall have ninety (90) days after the termination of this Lease to complete such removal. If Lessee fails to remove the Lessee Improvements within such ninety day period, Lessor may cause the Lessee Improvements to be removed and Lessee shall pay the costs of such removal within thirty (30) days of receipt of a statement therefore from Lessor. 4.3. Lessee Improvements. (1) Required Lessee Improvements. Lessee hereby agrees to construct on the Demised Premises including, but not limited to, an ice rink with a concession area which may include alcohol of approximately 50,000 square feet of floor space along with necessary site work at a cost of approximately $ 3.5 Million Dollars (the Lessee Improvements). The Lessee Improvements shall include separate facility public restrooms with not less than three (3) toilets for men and three (3) toilets for women. If the restroom building on the Demised Premises as of the date of this Lease remains, it shall be accessible from the soccer field area and the parking lot area. If a new restroom is constructed, it shall be constructed at a location approved by Lessor. Lessor shall be responsible for the maintenance of the restrooms. Lessee shall be responsible for relocating the two (2) soccer/rugby fields, including necessary grading, layout, irrigation equipment, landscaping, and seeding. Lessee shall restore atl landscaping and seeding surrounding the Demised Premises after construction. (2) Plans for Construction of Lessee Improvements. Plans and specifications with respect to the construction of the Lessee Improvements (the Construction Plans) shall be submitted to Lessor for approval in its sole discretion, provided they are in conformity with all applicable state and local laws and regulations, including but not limited to the Americans with Disabilities Act. Thirty (30) days prior to commencing construction, Lessee shall submit to Lessor, for approval by Lessor, the Construction Plans and such additional documents as Lessor may reasonably request with respect to the Lessee Improvements to be constructed by Lessee on the Demised Premises. All work with respect to the Lessee Improvements shall be in conformity with the Construction Plans as approved by Lessor. It is agreed that approval of the Construction Plans by Lessor is a condition to closing under Section 1.4 above, and unless such approval shall be given by Lessor on or before the Closing Date, this Lease shall be null and void. (3) Timing of Lessee Improvements. Lessee hereby agrees that construction of the Lessee Improvements on the Demised Premises shall be commenced within eighteen (18) months after the Closing Date, and shall be substantially completed within eighteen (18) months after the commencement of construction. The time for performance of such obligations shall be suspended during the period of any delays 071207tao _4_ caused by acts of God or other matters not within the control of Lessee including, but not limited to, extreme weather conditions and/or other natural causes, casualty, labor problems (including, but not limited to, strikes, walk-outs, picketing, boycotts and shutdowns), governmental restriction upon the availability or use of labor or materials, or insurrection, embargoes, or delays in providing necessary consents or approvals unless otherwise agreed upon in writing by Lessor and Lessee. The time for performance of such obligations shall be extended only for the period of such delay. (4) Certificate of Completion. Promptly upon completion of the Lessee Improvements in accordance with those provisions of this Lease relating solely to the obligations of Lessee to construct the Lessee Improvements, including the dates for beginning and completion thereof, Lessor shall furnish Lessee with an appropriate instrument so certifying. Such certification shall be a conclusive determination of the satisfaction and termination of the agreements and covenants in this Lease with respect to the obligations of Lessee to construct the Lessee Improvements. (5) Lessor covenants and agrees to keep and maintain the Demised Premises in good repair and any Lessee Improvements shall be made at the Lessee's expense. Lessor shall have the right, in its sole discretion, to approve the design, appearance and quality of any such Lessee Improvements. All improvements presently on the Demised Premises and all Lessee Improvements hereafter constructed on the Demised Premises are and shall be the property of Lessee during the continuance of the term of this Lease and no longer. Upon any termination of this Lease, by reason of any cause whatsoever, if the Lessee Improvements or any part thereof shall then be on the Demised Premises, all of Lessee's right, title, and interest therein shall cease and terminate, and title to the Lessee Improvements shall vest in Lessor, and the Lessee Improvements or the part thereof then within the Demised Premises shall be surrendered by Lessee to Lessor. No further deed or other instrument shall be necessary to confirm the vesting in Lessor of title to the Lessee Improvements. However, upon any termination of this Lease, Lessee, upon request of Lessor, shall execute, acknowledge, and deliver to Lessor a Bill of Sale confirming that all of Lessee's right, title, and interest in or to the Lessee Improvements has expired, and that title to the Lessee Improvements has vested in Lessor. Provided, however, that Lessor may at its option and upon thirty days' written notice to Lessee require Lessee to remove any or all of the Lessee Improvements from the Demised Premises at Lessee's sole expense, and in the event Lessor exercises such option, Lessee shall remove the Lessee Improvements within thirty days after receipt of such notice. 4.4. Signage. All proposed signage must be reviewed and approved by the City Manager in the City Manager's sole discretion prior to Lessee obtaining a sign permit. Notwithstanding the foregoing, prior to and during construction of the ice rink, Lessee may display one or more signs of major contributions, such as the Dubuque Greyhound Park & Casino, financial institutions providing monitary assistance to Lessee and companies working at the site. No single sign shall be larger than 8 feet by 8 feet. 071207tao _5_ SECTION 5. ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST 5.1. Lessee's right to encumber leasehold interest. Lessee shall not encumber by mortgage, deed of trust, or any other instrument, its leasehold interest and estate in the Demised Premises. SECTION 6. TAXES 6.1. Lessee agrees to pay as additional rent an amount equal to real estate taxes upon the real estate of the Demised Premises that become payable during the term hereof. Lessee shall further provide to Lessor official receipts of the appropriate taxing authority or other evidence satisfactory to Lessor evidencing payment thereof. 6.2. The Lessee further agrees to pay all other taxes, rates, charges, levies and assessments, general and special, of every name, nature and kind, whether now known to the law or hereafter created which may be taxed, charged, assessed, levied or imposed upon said real estate, any buildings or improvements thereon which may be taxed, charged, assessed, levied or imposed upon the leasehold estate hereby created and upon the reversionary estate in said real estate during the term hereof, and all such other taxes, rates, charges, levies and assessments shall be paid by Lessee as they become due and before they become delinquent. 6.3. Lessee agrees to timely pay all taxes, assessments or other public charges levied or assessed by lawful authority (but reasonably preserving Lessee's rights of appeal) against its personal property on the premises, during the term of this Lease. 6.4. Nothing herein shall require Lessee to pay any of Lessor's income taxes, surtaxes, excess profit taxes or any taxes on the rents reserved to Lessor hereunder. 6.5. Lessee shall at all times have the right to contest in good faith, in any proper proceedings, in the name of Lessor if necessary, the payment or satisfaction of any such taxes, assessments, rates, charges or levies so agreed to be paid by Lessee, if the validity thereof, or the right to assess or levy the same against or collect the same from said Demised Premises or improvements, shall be disputed. Upon the conclusion of any such suit or proceedings, or not less than three (3) months prior to the date when the right to redeem therefrom expires, whichever will be the earlier, Lessee will promptly pay and satisfy such disputed tax, assessment or other charge as finally determined, together with all expenses, costs and attorneys' fees whatsoever incurred in connection therewith. SECTION 7. REPAIRS Lessee shall at all times during the term of this Lease, at Lessee's own costs and expense, keep the Demised Premises and the Lessee Improvements thereon, and appurtenances to the Demised Premises, in good order, condition, and repair, casualties and ordinary wear and tear excepted. Lessee shall at all times during the 071207tao _(_ term of this Lease, at Lessee's own costs and expenses, keep the side walks and curbs of the Demised Premises in good order, condition and repair. Lessee shall keep and maintain the Demised Premises, including lanscaping, and all improvements in superior condition, consistent with other similarly classed operations. Lessee shall keep the Demised Premises in such condition as may be required by law and by the terms of the insurance policies furnished pursuant to this Lease, whether or not such repair shall be interior or exterior, and whether or not such repair shall be of a structural nature. Upon reasonable notice to Lessee, Lessor may, at its discretion, conduct an annual inspection of the Demised Premises to determine Lessee's compliance with this Article VI. Lessor shall maintain Lessor's parking lot but shall have no obligation to plow snow in the parking lot. Snow plowing of the parking lot shall be Lessee's responsibility at its expense if Lessee intends to use the parking lot. Lessee shall provide, at its cost, adequate lighting for the parking lot and shall be responsible for the maintenance of said lights. SECTION 8. COMPLIANCE WITH LAW 8.1. During the term of this Lease, Lessee shall comply with all applicable laws applicable to Lessee's use of the Demised Premises, the breach of which might result in any penalty on Lessor or forfeiture of Lessor's title to the Demised Premises. 8.2. Lessee shall not commit waste on the Demised Premises except as necessary for the removal or construction of any buildings and Lessee Improvements on the Demised Premises. SECTION 9. ALTERATIONS Lessee shall not during the term of this Lease make any alteration, addition, or modification to the exterior of the Demised Premises or the improvements thereon without the prior written approval of Lessor in Lessor's sole discretion. Lessee shall not during the term of this Lease make any alteration, addition, or modification to the interior of the Demised Premises or the improvements therein in excess of $10,000 without the prior written approval of Lessor in Lessor's sole discretion. SECTION 10. USE OF DEMISED PREMISES 10.1. Lessee shall use the Demised Premises primarily for an ice rink and shall not use or allow the Demised Premises or any buildings or Lessee Improvements thereon or any appurtenances thereto, to be used or occupied for any unlawful purpose or in violation of any certificate of occupancy. Lessee may use the Demised Premises occasionally for other uses when it is not being used as an ice rink, without notice to Lessor. Lessee will not suffer any act to be done or any condition to exist within the Demised Premises or in any Lessee Improvement thereon, or permit any article to be brought therein, which may be dangerous, unless safeguarded as required by law, or which may, in law, constitute a nuisance, public or private, or which may make void or voidable any insurance in force with respect thereto. o~ 12o7tao -7- 10.2. Parking. All other recreational uses, including but not limited to baseball, softball, skate boarding, fishing, soccer and rugby, shall have precedence over Lessee with respect to the use of Lessor's parking lot. Lessee shall cooperate with Lessor to avoid conflicting use of Lessor's parking lot and shall notify Lessor in advance of any anticipated high use of the parking lot. SECTION 11. INSURANCE 11.1. Lessee shall at all times during the term of this Lease maintain insurance on the Demised Premises of the following character: (1) Insurance against loss or damage by fire and other risks and perils from time to time included under standard extended coverage endorsements in an amount equal to not less than ninety percent (90%) of the replacement value of the Demised Premises and the Lessee Improvements. (2) Insurance as set forth in the Lessor's standard Insurance Schedule for Lessees of City Property, as such uniform, standardized schedule may from time to time be amended. The current Insurance Schedule is attached to this Lease Agreement as Insurance Schedule A. 11.2. Such insurance shall be written by companies legally qualified to issue such insurance in the State of Iowa and such insurance shall name as the insured parties thereunder, Lessor, or its assigns, and Lessee, as their interests may appear. Lessor shall not be required to prosecute any claim against any insurer or to contest any settlement proposed by any insurer, provided that Lessee may, at its cost and expense, prosecute any such claim or contest any such settlement, and in such event Lessee may bring any such prosecution or contest in the name of Lessor, Lessee, or both, and Lessor shall cooperate with Lessee and will join therein at Lessee's written request upon receipt by Lessor of an indemnity from Lessee against all costs, liabilities, and expenses in connection with such cooperation, prosecution, or contest. 11.3. Lessee shall deliver to Lessor promptly after the execution and delivery of this Lease the original or duplicate policies or certificates of insurers satisfactory to Lessor evidencing all the insurance which is then required to be maintained by Lessee hereunder, and Lessee shall, within 30 days prior to the expiration of any such insurance, deliver other original or duplicate policies or other certificates of the insurers evidencing the renewal of such insurance. Should Lessee fail to effect, maintain, or renew any insurance provided for herein, or to pay the premium therefor, or to deliver to Lessor any of such policies or certificates, Lessor, at its option, but without obligation so to do, may procure such insurance, and any sums expended by it to procure such insurance shall be additional rent hereunder and shall be repaid by Lessee within 30 days following the date on which demand therefor shall be made by Lessor. Such insurance policy(ies) shall contain a provision that such policy(ies) shall not be canceled or reduced in scope without thirty (30) days prior written notice to Lessor. 071207tao _g_ 11.4. Each party shall look first to any insurance in its favor before making any claim against the other party for recovery for loss or damage resulting from fire or other casualty, and to the extent that such insurance is in force and collectible and to the extent permitted by law, Lessor and Lessee each hereby releases and waives all right of recovery against the other or anyone claiming through or under each of them by way of subrogation or otherwise. The foregoing release and waiver shall be in force only if both releasors' insurance policies contain a clause providing that such a release or waiver shall not invalidate the insurance, and also provided that such policies can be obtained without additional premiums. Lessee acknowledges that Lessor will not carry insurance on Lessee's furniture and/or furnishings or any trade fixtures or equipment, improvements, or appurtenances removable by Lessee or Lessee's leasehold improvements and agrees that Lessor will not be obligated to repair any damage thereto or replace the same. 11.5. Lessee shall notify Lessor immediately in the case of damage exceeding $10,000.00 in amount to, or destruction of, any Lessee Improvements or any portion thereof resulting from fire or other casualty. Net proceeds of any such insurance (Net Proceeds), shall be paid directly to Lessee as its interests may appear, and Lessee shall forthwith repair, reconstruct and restore the Lessee Improvements to substantially the same or an improved condition or value as they existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restoration, Lessee shall apply the Net Proceeds of any insurance relating to such damage received by Lessee to the payment or reimbursement of the costs thereof, subject, however, to the terms of any mortgage encumbering title to the Demised Premises (as its interests may appear). Lessee shall complete the repair, reconstruction and restoration of the Lessee Improvements whether or not the Net Proceeds of insurance received by Lessee for such purposes are sufficient. SECTION 12. LESSOR'S WARRANTIES AND REPRESENTATIONS 12.1. Lessor's Representation Of Good Title. Lessor covenants and warrants that its is lawfully seized in fee simple of the Demised Premises, and that it has full right and authority to enter into this Lease for the full term hereof, and covenants and agrees that upon paying the rent provided for herein, and upon Lessee's performing the covenants and agreements of this Lease required to be performed by said Lessee, that it will have, hold and enjoy quiet possession of the Demised Premises. Lessor warrants to Lessee that the Demised Premises are properly zoned for the conduct of the operation of Lessee's business. 12.2. Lessor covenants and agrees that Lessee shall have no responsibility for or liability arising from any Hazardous Substance which was in, on or about the Demised Premises prior to the commencement date of this Lease ("Prior Hazardous Substances") or which leach or migrate upon the Demised Premises from any property owned by Lessor or their affiliates ("Lessor Hazardous Substances"). 071207tao _g_ 12.3. For the purposes of this Lease, "Hazardous Substance" or "Hazardous Substances" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local government, the State of Iowa or the United States Government. It includes, without limitation, any material or substance that is (i) defined as a "hazardous substance" or "hazardous waste" under Chapter 4556, Iowa Code, (ii) petroleum and petroleum products, (iii) asbestos, (iv) designated as a "hazardous substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. §1321), (v) defined as a "hazardous waste pursuant to §1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi) defined as a "hazardous substance" pursuant to §101 of the Comprehensive Environmental Response, Compensation and Liability Act, U.S.C. §9601 et seq., or (vii) defined as a "regulated substance" pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. §6991 et seq. SECTION 13. INDEMNIFICATION 13.1. Indemnification of Lessor. Except as otherwise provided herein, Lessee shall protect, indemnify, and save harmless Lessor from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessor by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Demised Premises during the term of this Lease and resulting from any act or omission of Lessee or anyone claiming by, through, or under Lessee during the term of the Lease; and (b) any failure on the part of Lessee to perform or comply with any of the terms of this Lease. In case any action, suit, or proceeding is brought against Lessor by reason of such occurrence, Lessee will, at Lessee's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by Lessor. 13.2. Indemnification of Lessor. Except as otherwise provided herein, Lessor shall protect, indemnify, and save harmless Lessee from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessee by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Demised Premises during the term of this Lease and resulting from any act or omission of Lessor or anyone claiming by, through, or under Lessor during the term of the Lease; and (b) any failure on the part of Lessor to perform or comply with any of the terms of this Lease. In case any action, suit, or proceeding is brought against Lessee by reason of such occurrence, Lessor will, at Lessor's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by Lessee. SECTION 14. CONDEMNATION 071207tao -10- 14.1. Entire Condemnation. If at any time during the term of this Lease all or substantially all of the Demised Premises or the improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality, or other public or private authority, then this Lease shall terminate on the date of vesting of title in such taking and any prepaid rent shall be apportioned as of said date. Substantially all of the Demised Premises and the improvements thereon shall be deemed to have been taken if the remaining portion of the Demised Premises shall not be of sufficient size to permit Lessee to operate its business thereon in a manner similar to that prior to such taking. 14.2. Allocation of Award. Any award for such taking of all or substantially all of the Demised Premises shall be paid to the parties hereto in accordance with the following: (1) To Lessor, the amount of the award attributable to the Demised Premises, determined as if this Lease was not in effect at the time of such award, excluding therefrom the amount of the award attributable to the improvements, and all other sums not directly attributable to the value of the Land constituting the Demised Premises. (2) To Lessee, the entire award except that portion allocated to Lessor above, including but not limited to, the value of the improvements plus any other amount assessed for Lessee. 14.3. Partial Condemnation. (1) If less than all or substantially all of the Demised Premises or the improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality, or other public or private authority, then Lessee, at its option, may elect to continue this Lease in full force and effect or terminate this Lease. If Lessee shall elect to maintain this Lease in full force and effect, the entire award for such partial condemnation shall be paid over to Lessee, and Lessee shall proceed with reasonable diligence to carry out any necessary repair and restoration so that the remaining improvements and appurtenances shall constitute a complete structural unit or units which can be operated on an economically feasible basis under the provisions of this Lease. In the event Lessee elects to continue this Lease in full force and effect after a partial condemnation, there shall be no abatement in the Basic Rent Lessee is required to pay hereunder. (2) Should Lessee elect to terminate this Lease upon a partial condemnation, Lessee shall provide Lessor with written notice of such election within thirty (30) days after the date of vesting of title for such taking. Lessee shall specify in such written notice the date on which this Lease shall terminate, which date shall be not less than 60 days nor more than 360 days after delivery of such notice to Lessor (the Termination Date). In the event Lessee terminates this Lease, as provided for in this Section 13.3, Lessee shall be entitled to the entire award for such partial taking. 071207tao -11- 14.4. Temporary Taking. If the temporary use of the whole or any part of the Demised Premises or the Lessee Improvements thereon or the appurtenances thereto shall be taken at any time during the term of this Lease in the exercise of the power of eminent domain by any sovereign, municipality, or other authority, the term of this Lease shall not be reduced or affected in any way, and Lessee shall continue to pay in full the rent, additional rent, and other sum or sums of money and charges herein reserved and provided to be paid by Lessee, and the entire award for such temporary taking shall be paid to Lessee. Lessee shall repair and restore any and all damage to the Demised Premises and the improvements as soon as reasonably practicable after such temporary taking. 14.5. Effect of Taking. If any taking renders the construction of the meeting and entertainment center or hotel impossible, any financial penalties set forth in Section 1.3 (regarding the meeting and entertainment center) or Section 24.5 (regarding the hotel) shall not be applicable. SECTION 15. ASSIGNMENT AND SUBLETTING Lessee shall not assign or transfer this Lease or sublease the whole or any part of the Demised Premises without the prior written consent of Lessor. SECTION 16. DEFAULT 16.1. Lessor's Rights in the Event of Lessee's Default. If Lessee shall fail or neglect to observe, keep, or perform any of the covenants, terms, or conditions contained in this Lease on its part to be observed, kept, or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessor setting forth the nature of Lessee's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessee has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence), then and in any such event, Lessor shall have the right at its option, on written notice to Lessee, to terminate this Lease and all rights of Lessee under this Lease shall then cease. Lessor, without further notice to Lessee, shall have the right immediately to enter and take possession of the Demised Premises with or without process of law and to remove all personal property from the Demised Premises and all persons occupying the Demised Premises and to use all necessary force therefor and in all respects to take the actual, full, and exclusive possession of the Demised Premises and every part of the Demised Premises as of Lessor's original estate, without incurring any liability to Lessee or to any persons occupying or using the Demised Premises for any damage caused or sustained by reason of such entry on the Demised Premises or the removal of persons or property from the Demised Premises. 16.2. Rights of Holder of Encumbrance in Event Lessee Defaults. If Lessee fails or neglects to observe, keep, or perform any of the covenants, terms, or conditions contained in this Lease on its part to be observed, kept, or performed, the Holder of any indebtedness secured by an encumbrance on the leasehold estate under this Lease 071207tao _ j 2_ shall have thirty (30) days after receipt of written notice from Lessor setting forth the nature of Lessee's default and a reasonable time thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature thereof within such thirty (30) days and is diligently prosecuting such proceedings, within which to endeavor to make good or remove the default or cause for termination of the Lease. All right of Lessor to terminate this Lease on the failure or neglect of Lessee to observe, keep, and perform the covenants, terms, and conditions of this Lease, is, and shall continue to be, at all times prior to payment in full of the indebtedness to the Holder of Lessee, subject to, and conditioned on, Lessor's having first given the Holder written notice thereof and the Holder having failed to cause the default or cause for termination to be made good or removed within thirty (30) days after receiving written notice of default or cause for termination or within a reasonable time thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature of foreclosure within such thirty (30) days and is diligently prosecuting such proceedings. In the event that the Lease is terminated due to the Lessee's bankruptcy, insolvency or other proceedings, and in the event the Holder has complied with the terms of this Section 15.2, then Lessor at Holder's option, shall enter into a new lease with Holder or the successful bidder at foreclosure on the same terms as this Lease, for the term then remaining, and specifically preserving all unexercised options. 16.3 Lessee's Rights in the Event of Lessor's Default. If Lessor shall fail or neglect to observe, keep or perform any of the material covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessee setting forth the nature of Lessor's default, it being intended that in connection wtih a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessor has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence, but in no event longer than ninety (90) days, then and in any such event, Lessee shall have all rights available to it provided by law or equity. SECTION 17. RIGHT TO CURE OTHER'S DEFAULTS Whenever and as often as a party shall fail or neglect to comply with and perform any term, covenant, condition, or agreement to be complied with or performed by such party hereunder, then, upon thirty (30) days' prior written notice to such defaulting party, the other party, at such other party's option, in addition to all other remedies available to such other party, may perform, or cause to be performed, such work, labor, services, acts, or things, and take such other steps, including entry onto the Demised Premises and the Lessee Improvements thereon, as such other party may deem advisable, to comply with and perform any such term, covenant, condition, or agreement which is in default, in which event such defaulting party shall reimburse such other party upon demand, and from time to time, for all costs and expenses suffered or incurred by such other party in so complying with or performing such term, covenant, condition, or agreement. The commencement of any work or the taking of any other steps or performance of any other act by such other party pursuant to the immediately preceding 071207tao -13 - sentence shall not be deemed to obligate such other party to complete the curing of any term, covenant, condition, or agreement which is in default. SECTION 18. QUIET ENJOYMENT Lessor covenants that at all times during the term of this Lease, so long as Lessee is not in default hereunder, Lessee's quiet enjoyment of the Demised Premises or any part thereof shall not be disturbed by any act of Lessor, or of anyone acting by, through, or under Lessor. SECTION 19. WAIVER No waiver by Lessor of any breach by Lessee of any term, covenant, condition, or agreement herein and no failure by Lessor to exercise any right or remedy in respect of any breach hereunder, shall constitute a waiver or relinquishment for the future of any such term, covenant, condition, or agreement or of any subsequent breach of any such term, covenant, condition, or agreement, nor bar any right or remedy of Lessor in respect of any such subsequent breach, nor shall the receipt of any rent, or any portion thereof, by Lessor, operate as a waiver of the rights of Lessor to enforce the payment of any other rent then or thereafter in default, or to terminate this Lease, or to recover the Demised Premises, or to invoke any other appropriate remedy which Lessor may select as herein or by law provided. SECTION 20. SURRENDER Unless otherwise agreed, Lessee shall, on the last day of the term of this Lease or upon any termination of this Lease hereof, surrender and deliver up the Demised Premises, with the improvements then located thereon into the possession and use of Lessor, without fraud or delay and in good order, condition, and repair, free and clear of all lettings and occupancies, free and clear of all liens and encumbrances other than those existing on the date of this Lease and those, if any, created by Lessor, without (except as otherwise provided herein) any payment or allowance whatever by Lessor on account of or for any buildings and improvements erected or maintained on the Demised Premises at the time of the surrender, or for the contents thereof or appurtenances thereto. At Lessor's option, Lessee shall remove any or all of the Lessee Improvements located on the Demised Premises. Provided, however, that Lessee's Trade Fixtures, personal property, and other belongings of Lessee or of any sublessee or other occupant of space in the Demised Premises shall be and remain the property of Lessee, and Lessee shall have a reasonable time after the expiration of the term of this Lease to remove the same. SECTION 21. MEMORANDUM OF LEASE Each of the parties hereto will, promptly upon request of the other, execute a memorandum of this Lease in form suitable for recording setting forth the names of the parties hereto and the term of this Lease, identifying the Demised Premises, and also 071207tao -14- including such other clauses therein as either party may desire, except the amounts of Basic Rent payable hereunder. SECTION 22. NOTICES 22.1. All notices, demands, or other writings in this Lease provided to be given or made or sent, or which may be given or made or sent, by either party to the other, shall be deemed to have been fully given or made or sent when made in writing and deposited in the United States mail, registered and postage prepaid, and addressed as follows: TO LESSOR: City Manager City of Dubuque, Iowa 50 West 13th Street Dubuque, Iowa 52001 TO LESSEE: James E. Goodman, Jr. 700 Locust Street, Suite 200 P.O. Box 599 Dubuque, IA 52004-0599 22.2. The address to which any notice, demand, or other writing may be given or made or sent to any party as above provided may be changed by written notice given by the party as above provided. SECTION 23. MISCELLANEOUS 23.1. Time of the Essence. Time is of the essence of this Lease and all of its provisions. 23.2. Governing Law. It is agreed that this Lease shall be governed by, construed, and enforced in accordance with the laws of the State of Iowa. 23.3. Attorney Fees. In the event that any action is filed in relation to this Lease, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees. 23.4. Paragraph Headings. The titles to the paragraphs of this Lease are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this Lease. 23.5. Modification of Agreement. Any modification of this Lease or additional obligation assumed by either party in connection with this Lease shall be binding only if 071207tao -15- evidenced in a writing signed by each party or an authorized representative of each party. 23.6. Parties Bound. This Lease shall be binding on and shall inure to the benefit of and shall apply to the respective successors and assigns of Lessor and Lessee. All references in this Lease to "Lessor" or "Lessee" shall be deemed to refer to and include successors and assigns of Lessor or Lessee without specific mention of such successors or assigns. 23.7. Force Maieure. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, unavailability or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, chemical explosions, hazardous conditions, fire, weather or acts of God, or by reason of any other cause beyond the exclusive and reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. 23.8. Use of Tobacco Products. The use of tobacco products in any building on the Demised Premises is prohibited and Lessee shall use its best efforts to enforce such prohibition. The use of tobacco products outside of any buildings on the Demised Premises shall be allowed only in areas designed by Lessee and Lessee shall use its best efforts to enforce such restriction. 23.9. Nondiscrimination. Lessee shall not discriminate against any person for employment or use of the Demised Premises or Improvements thereon because of race, religion, color, sex, sexual orientation, national origin, age or disability. LESSOR: [SEAL] Attest: Jeanne F. Schneider, City Clerk Attest: CITY OF DUBUQUE, IOWA By: Roy D. Buol, Mayor LESSEE: DUBUQUE COMMUNITY ICE & RECREATIONAL CENTER, AN IOWA CORPORATION By: 071207tao -16- EXHIBIT A The Demised Premises are located in the following described real property: A part of an unplatted slough and parts of Mineral Lots 298 and 299 south and west of Admiral Sheehy Drive in the Northwest Quarter of the Northeast Quarter of Fractional Section 19, Township 89 North, Range 3 East of the 5th Principal Meridian in the City of Dubuque, Dubuque County, Iowa. o~ i 2o~tao _ 1 ~_ EXHIBIT A-1 The Demised Premises 071207tao _ 1 g_ r r t re Hart eaM II ~ ~ ~~ ~~ ~ ~ ~ ~~ ~~ ~. ~ ex~stin~ c~iw LMK FEW.E ~~XI3T111fi I FA4F BOUNDR~ ai ~~ + ~Fd4F ,~IRFA -~~ ++ ~ 223 AC~~ i~ ~+ '~ ~ ~~~ ~ ~~ ~ ~'~` . 1~\~ r r~ ~OFb5~R IG~ RINK J.GG141'I~hl ~ I ~ ~' '''~ ~ exisri~ 1~sE ~ e~Yaesr ~euoo ~ ~, v ~ .3~ ~~"S ~J d `~eeh ~r¢s ~~~ o ~ ; QUBUQiJE rC~ ~R~NA ~~ 11 a; PROPDS~~ ~~~5~ 6OUN~Y P~~.N ~ L1lf;Fl`,~1t ~ k~St~G1P~'~ acxe~ i~ . iaiv~ ,tan ~ ~yretyrta~iS ~ N_ O INSURANCE REQUIREMENTS FOR LESSEES AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE 1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A or better in the current A.M. Best Rating Guide. 2. All policies of insurance shall be endorsed to provide a thirty (30) day advance notice of cancellation to the City of Dubuque, except for 10 day notice for non-payment, if cancellation is prior to the expiration date. This endorsement supersedes the standard cancellation statement on the Certificate of Insurance. 3. Lessee 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. Lessee 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 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. 071207tao _20_ INSURANCE SCHEDULE A (Continued) INSURANCE REQUIREMENTS FOR LESSEES AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE Governmental Immunity Endorsement identical or equivalent to form attached. Additional Insured Requirement: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers shall be named as an additional insured on General Liability Policies using ISO endorsement CG 20 26 0704 "Additional Insured -Designated Person or Organization," or it's equivalent. -See Specimen b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY Statutory for Coverage A Employers Liability: Each Accident $100,000 Each Employee -Disease $100,000 Policy Limit -Disease $500,000 c) UMBRELLA EXCESS LIABILITY LIQUOR OR DRAM SHOP LIABILITY Coverage to be determined on a case by case basis by Finance Director. Completion Checklist ^ Certificate of Liability Insurance (2 pages) ^ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages) ^ Additional Insured 20 26 07 04 ^ Governmental Immunities Endorsement 071207tao -21- CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coverage. The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. 4. Non-Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN 071207tao _22_ R~!_~~ rartrrr~rrt~ Co~ne~RC~a~..+Gi~niirta~ uAr3rtlrv C{3 2D 26 UT U4 TH3S ENDORSE~AENT CHANGES THE Pi3LI~Y. F'I..EI~,SE READ AT CAREFUL.~.Y. ADC~ITIL~~lAL, tt~SURED - ~Eat~1~A7EC} i~E~St3hl CSR 4~RGANI,~1T1CEN This endcxssm~ent modif~s ia19L1rance orays~nci un,ieu Ehe ~oll~mng,: DDPAM~~CIAL GENER+~I. ltt+,~1t ITY CO''JEf~4.riE PART t ___ ,. if nat snav,~ above, va~p me sncrwrr i the peCk'rrsticrrv-s. $actruri 1{ - Wlrsr ~ J1at In;sursd is atrendcd ie in- cluck ae an Qcl,idana insstrad the pp-,nr+$.!rar r)rr~n zstion(ai shr;tvn +n tha ~h~oA,te, but r}rety wirtr re~gr~c+. b~ ti~iiltty fnr "haul,, inj„ry" "~rr;,e~ty darn:~rt" fir "pen~nrsl sard advartsirg ir-urY' ca~s~ed, rn svhCb? rar in grad,. 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I E:!.. _,u;h aral^:clrr ~_.._ _1~-Q.rl uw t t I tt Fl F( F rFSiEY"cl7JTME 1111 axcl:tt t .a!~t `LL Ct5US[-G~'CF"rtCiYli $ Z(M?~I 1 r t.., r _._._.... ~l .a. aa.FR`~7.I t -.V-- t EL PIhe1+SiE F+aAl-`'LiJll ~ a'~?(1,1 _.._ _...___...... , . ~. _... __ ___ k _ _..: CYI !felt ^ClN:11M'TRIN 1]I`IMtlAilllJMY!!Lil'3111UN5L4hIMC-t-tii r>6[G1 HOC®$Y'iRI6M811llM7itl1'lyUll l'11.7M8KN~ fHE CITY ©F DUBUQiIE IS LISTEQ A5 A'N~ITIONAL INtSURED {]~ GEEIEBAL LIABILITY PCIi iCTF.S tISINC ISil ESE- VENT FfIRK CG 20 26 07 f)4 TTIiJNAt. 1N5UBEi1-DE5IGNkTED PER~fIN flit ORGA^IIZATIO~i" OR TTS fQUIYiLANT. GENERAL LIABILITY POLICY L4 PRSMAitY AND Ntlhi-flONiRIEUTIPIG. #~R14 CG Z5 {J~t E-3 97 "[lE~IC~17E11 LOC,ITE~#IS° GENERAL LIA&ILITY A4GNECAT£ UNIT SHALL BE INCLiIDEO. G04ER,'VM[NTAL TMMUN[ilES E~7fSitSEI1ENT IS INCUaED. 4LL POLICIES SH11LL BE ERi)gRSrn m Piit?YIDE 3f1 DYIY .AiWANt~ NOTICE t1F Ci1NCELL4'tION TD CITY OF DUBUQUE 91CI]I.l_Q AMYOF TitEABU'~ RE~Rf@GD PC3L~R:3 0w~ r/slcil. art# teu tale rncT EXPIRATION GATE Tt1EAIBDF; THEiSSUtN6 rISLIR3RTlt4:a ~l11t71M. C.TIY f)E ~~U~£ _~~._. CAVE /IRRI&N AlOIi;E TTJ TiEGFR'IF2tTF lm nrw r.wrn 2n ;rle acr r, clfY ruiLL a x 50 W. 13TH STREET 1~741ooN1lc11KNN~t~f?Lx7txx'XX~fX% Uldi~IDrpat, to 521dt71 }uaa!rr~>:c~ernreeraTwnYe - -- . -- AGGR[.+ 2fi t30tY1.1061 071207tao -24- 6+ACA~2D t?dRPflRA.T19Pi 1886 INlPOR7/41+iIT If Ihh c t; [;f~,~[=.; h~~lttigr I° 3n ftl?Ut t !C?trU4L INStIFtEG. t€sr3 {~utiwy{itrs irr,~S k~e er.sdu~~sc~f. A ~1:~2erii~ii! t7n dl;i~~ ~, _r lfn .J%r. tdCtOg ni3d COMA r!]h15 t9. th8 ctittifiC~ctr ttUlrtrr iri tirii ut !a~~l rrutatr~5serileiitl~~- It SU$R!;Jr~1T1C7M IS YAtMet7, assnp~z duttia errs aa~d caairdidiurr~ Ut U!~ltcti+~Zr, rret~irtt,uti~ies may igquird "sd9 a~rlG'Merrgrn. ,~ sTater~ent on Chia c~rrditx art +dciexc rrnd r~xifr,.r ri~litx Ix: Itm txitt(-iixila hddr~ in lid t)f Ste?' endrx>ercaenTRS~. gISCL/>LIMER I he Ci3r'afrrat~ ~# tn~rx~darr? nn the ~a±ti+rsree side arf tt>IS fsrm docas rent uxrstitzrdc a cxrnt~r:~ut t~twGe„ tha >ssuirr~ insurrir(sl, ~rdt'K)r12d:Q reprr-a~frt~ilVe nr pgarsutxt, and th«3 ~xt~cat~s hub=, iii Jsa~ it a"AtirttiBdlrPelY or nrrgdtiwely Sri:.", £?rtentf oradter tt'e coverage atdorder! trE ttrc guli;hs li~tr~.t tlrr;r.;.ur SPECIMEN 071207tao _25_ ~~t~1~Y` Nu+ae~ra ~CIMMER~IAt_ GEt+tEiAl. L.tA81LtlY ~c~ as os ez 7M15 EIVQOR3EMENT CHANGES TM~ POLICY, PLEASE REACH R ~GARE~UL.LY. DESIGPIATE© LC?CAiT1i~P~{~~ GENERAL AIGI~~tE~ATE Lt1~IT Tltts endCrser~ertt modiFes romance ~rnvlrtr_.ct utar th@ ~Ikruing: ~CQMC4IERCIA.L G~N~RAI Llla~lt t^d"Y C,.CP~p,G~ p,4f'iT ~ ~~~, SGHr'CNJLE Lt~lgr7at~ Laceteon{s}: ~ d if E~ 'd appaar~ et5ove irfnmtaticn t`$gtlfit'8d tt~ Complete this enticxsem,ent wil hr~ >~fx~.vn in tl~a Cueclsratbr±s as appCcabE to ~h ~ encnme~-iertt;l A, Fcir all sums ~t•hich the nsu~ad t5aexxrrr~ leclttlbtr rztsiigateci tee F*aY as dsm3ge~ caueed 4y "occurrences' urt~iPi t:{7L"FRAt; A t'~t=CTIt7Pt ii, anti it7• all mc:ttir;al ex~n3ea Mused bd aC.~- dents under Ci3V~ZA(E C t;SECTION Il. which inn b~ attributed only tc, caperatiens at a sing' r~sigrtatsd "Itx,~tion" shcr~vn in the Sc~dut ata,ne: 1, A Sr_~rr [}ssi~'tat~ L~ncation General Ag~regat~ ..imit apcl~es ~ each des~{jnated `tacatx7n', ar-d that unit ~ duel ro me rinnuanl ~~! tFrc +:~w=neral l~regate Limt shown in the Oeciaratlor 2 Tho Gcsignazed ;ration t:~rwr~ +a[,~;r~r8g81e I irsvl iy Uri next ~xc -vill Pas? for tare sum of all damages under Cti`,tt~6tr'~iC A, except dam- eges becaues od °taadity injury" or "~aoportj ~IdPnaga' included ir; the 'praducts«cvmpleded oRetativns hazar-CT, _arw;f ftsr medical ex~erc~s under ~OR4GE C res7ardless at the rrurrr- t af: a, ' nsu~e~;. b. Claims made or `suits" laraxayt:t, u+ G. k'el'SUnE rx brgar~izarinng making maims tarlnc~~t~''suls'. 3, r~lrry vasnnents made under S;C?'1fERAt=,E J~ roc clarrtag,~s or urxle~ Ct~VFfiAGE C fr~r rnetiir~J e,~enseg ,shall rertuce tre Desig- nated LacatiUn GG+m~eel ,4yyieayate Unit irx iha: dk7slgn8teed `bcatr~n", :~WcM pzrYments SiIte11 tfGt d6~~rrc~a the ~enara's fgcretg,~xte t iniit shr~uwn in tfu= 1'3~^.G-ars~tirms +inr mil they re- dr,ace arty ogre-~ [)esi~lnat~d Dian Gener9t Aggnegata Limit for ~y ?tier dE7rr~ate0 'kxatiart' shrfwn in the Sr:hedrle abave. ~. The timit'a attxnvn in tt•te Gt~ciatations trx Each dccutres, Fire Carnage ~ro-1 tut~,d~ aaI IEx- pera~e ccniSnue to apply. lirnvsver. +nsteaci of tteidg sutyj~'t to the rTar~el Ryigrragat~ Limp ShK7AYr irl tt~ EDEeclaratlpns, tiUCn !I(T1R5 wtti lam au~gex:t ttl the rpplrcatJl(S ~e5lgnaie!t t.#;SitiCln Gcanerel Rggrer~hta t.Jrrrit 071207tao _2C_ 9.F~ dll auaa~s wta:h the ii"-.,~r~s ~~}mes ley~tty ottigat~d f~ t~a4' demu~es causal tay 'nixiurrarrcee" under "~G1f£R"4GE A ;S~Git{?t~t 1_t, and feir all nnaCcal ~xEw~r+s~c+~ r~.~ii~+~i ht~ acri, dams unr~ir Cfl'w'EtA.GE t; (SECTIt7N 1} wt-ch r~nraot 4~ at4titi~.aterl Anh~ to cp~r-atixts ~t a slrt_ qle clzsi~r'lated `tocaticn` shown in Ette Sc~tedut~ atxrva: 1. 3-'ty t~Jrr+ made under COVERAGE A for darw2ges na .indler GOZJERAGJ~ ~ or t1i641i~ expenses shall reduce the zanicunt atailabie uszded th3 Gersewal A~re~ate LII>tl1 tx the Fraducss-Crx•i~lai Q~rattai~ R"~- greg*_rtc Li-ntt whirr is epplicabla; acrd Z ~a.s~1 paynt~ts Shalt not redur..rs any Designa4etl LaQ~tsan Gsaiaral A~7~r~ydt~ L~sit[. G. '+^lhorr c~~ra+~+e fur t <-~i~ q ~ r~r%irx~ csifl? cfi she 'prasfuCi„ CgmPleted r~p~r iion~ herd" i>? Pro- vi~ed, arry~ psument3 irsr daraac~es t~e~:~vs~ ~# "hadiP'yr iryury' ~r °preperty da:rnape° ncl~.rded in the '~~reselucts-completes o~eraGans haaard" will redurae die Prs>ditacis~nP9E+~d 4:)psr~iar~ Ag- 9~9ete t_~tr4tr aid not re~itt~ 4he ~erteral g ate Lasntt nai; the L~esm,~natzd let+~n fen- er~{ Aa~gregaie Limet. ©. Eor the ¢~.rpases afi Iht~ enci4r;,etr~rtt, the 17efi- flitt8sl~ SeGtlan t9 wed k>`j the e3ddii?ort ~f the (n#lawing derinticn: 't.r.~eal~"' means prtxnises ~rva€+r ng irrx Sartre [M' rxXsrteGtdlg Mtn, e}r pr~m~.es w'~g5e s~anine~ sAn Is into r~at~ anti ky a s?ree~t raactwa~•. wv-a- tanvay ~nr ~Ft-cf-vrary of a t~ilr~bad. E. 4 he {1CC~MI314tt~t ai lirnettr Cl# Inslxran~ ~S~TION 1141 ty7t ptt`erwisF maiified by huts endnise3uzwrst shall ~txeinure tc aPPtY as siiputateat. SPECIMEN 071207tao _2']_ LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND DUBUQUE COMMUNITY ICE & RECREATIONAL CENTER THIS LEASE AGREEMENT (the "Lease") dated for reference purposes the day of , 2047, between the City of Dubuque, Iowa, a municipal corporation (Lessor) and Dubuque Community Ice & Recreational Center, an Iowa Corporation (Lessee). SECTION 1. DEMISE AND TERM 1.1. In consideration of the rents hereinafter reserved and the terms, covenants, conditions and agreements set forth in this Lease, Lessor hereby leases to Lessee the real property shown on Exhibit A-1, attached hereto, together with any and all easements and appurtenances thereto and subject to any easements and restrictions of record (the "Demised Premises"), to have and to hold for a term of twenty-five (25) years commencing on August 1, 2007 and terminating at 11:59 p.m. on July 31, 2032, subject to all of the terms, covenants, conditions and agreements contained herein. 1.2. Termination. (1) Notwithstanding Sec. 1.1, City may at any time for any reason or for no reason terminate this Lease upon twenty-four (24) months written notice to Lessee specifying the date when the Lease shall terminate (the Termination Date). In the event of such termination, Lessor shall pay Lessee for the termination of the Lease the appraised value of the Lessee Improvements (but not including the value of this Lease or any real property) as follows, and such payment shall constitute full compensation to Lessee for all of Lessee's damages and losses of any kind arising out of such termination: Within 180 days prior to the Termination Date, Lessor and Lessee shall have prepared an appraisal of the Lessee Improvements (but not including the value of this Lease or any real property) thereon by a certified appraiser experienced and specialized in appraising similar types of properties in the Midwest Region mutually selected by Lessor and Lessee. If either party is dissatisfied with the appraisal or the parties cannot agree on an appraiser, each shall, not later than 90 days prior to the Termination Date appoint its own appraiser, each of which shall be experienced in appraising similar types of properties in the Midwest Region and the two appraisers appointed by the parties shall select a third similarly experienced appraiser. The average appraised values of the three appraisers nn<,,,~i0712(37cao 1_ shall be the appraised value of the Lessee Improvements for the purposes of this 1.2. (2) If Lessor exercises its right to terminate this Lease and subsequently operates the Demised Premises as an ice rink within two years after this Lease is terminated, Lessee shall be entitled to 1.5 times the amount that Lessee is entitled to recover as determined in (1 ). 1.3. Closing Date. On the Closing Date, Lessor shall transfer possession of the Demised Premises pursuant to this Lease. 1.4. Condition of Property. Lessor shall deliver the Demised Premises in its "as is" condition. 1.5. Conditions to Closing. The closing of the transaction contemplated by this Lease and all the obligations of Lessee under this Lease are subject to fulfillment, on or before the Closing Date, of the following contingencies: (1) Lessee shall have obtained any and all necessary governmental approvals, including without limitation approval of zoning, subdivision or platting, and of the Construction Plans pursuant to Section 3.2 below that are necessary or desirable in connection with the Lease and development of the Demised Premises. Lessor shall cooperate with Lessee in attempting to obtain any such approvals, provided that Lessor shall bear no expense in connection therewith. (2) Lessee shall be in compliance with all the material terms and provisions of this Lease. (3) ~ , .Lessee shall a~have furnished Lessor with evidence, in a form satisfactory to Lessor as Lessor shall determine in the reasonable exercise of its discretion, that Lessee will be able to operate the Tenant Improvements for the Term of this Lease on a sound financial and manaaerial basis- (4) Lessee shall at its cost have caused a survey and plat of the Demised Premises to be prepared and recorded. 1.6 -Closing. The closing shall take place on or before August 1, 2007 (the Closing Date), or such other date as the parties may agree in writing. Exclusive possession of the Property shall be delivered to Lessee on the Closing Date in its current condition and in compliance with this Lease. Consummation of the closing shall be deemed an agreement of the parties to this Lease that the conditions of closing have been satisfied or waived. SECTION 2. CONSTRUCTION Before Lessee commences construction, Lessee shall furnish to Lessor evidence, in a form satisfactory to the Lessor as Lessor shall determine in the reasonable exercise of its discretion (such as evidence of cash on hand or a letter of commitment from a bank or other lending institution for funds to cover the cost of construction and furnishings), that Lessee has firm financial commitments sufficient in amount to complete construction of the Lessee Improvements {as defined herein) to the Demised Premises in conformance with Construction Plans (as defined herein), or Lessor shall have received such other evidence of Lessee's financial ability as in the reasonable judgment of Lessor is reauired to complete such Improvements. SECTION ~3. RENT Lessee shall pay Lessor (in addition to taxes, assessments, and other charges required to be paid under this Lease by Lessee) rent for the Demised Premises of One Dollar ($1.00) a year in advance upon execution of this Lease and on the same date each year of the term. Lessee shall not be in default of rent unless and until thirty (30) days after Lessor delivers written notice to the Board of Directors of the Lessee (or its lawful successor or assign) that rent is past due. Lessor acknowledges receipt of the rent for the first year. SECTION 34. TITLE TO IMPROVEMENTS AND TRADE FIXTURES X4.1. Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean all of Lessee's personal property located on the Demised Premises used in Lessee's business. Title to Lessee's trade fixtures (the "Trade Fixtures") are and shall be the sole and exclusive property of Lessee during the term of this Lease and shall remain the sole and exclusive property of Lessee after the expiration or termination of this Lease, for whatever reason. Lessor acknowledges and understands that it shall have no right, title, or interest in or to Lessee's Trade Fixtures either during the term of this Lease, or thereafter (except as hereinafter provided). Lessor acknowledges and agrees that Lessee shall have the right to encumber, sell, or hypothecate Lessee's Trade Fixtures, to remove them from the Demised Premises, or to otherwise deal with all or any portion of such Lessee's Trade Fixtures, at Lessee's sole discretion. Provided further, that upon ten (10} days' prior written notice to Lessor, Lessor shall prepare and deliver to Lessee a certificate in recordable form stating that Lessor has no interest or right in or to Lessee's Trade Fixtures, as well as any other or further document which Lessee may reasonably request from Lessor. ~4.~2 Lessee Improvements. All Lessee Improvements hereafter constructed on c~~r,~.,,p712~.7taq 3- the Demised Premises are and shall be the property of Lessee during the term of this Lease and no longer. Upon any termination of this Lease, by reason of any cause whatsoever, if the Lessee Improvements or any part thereof shall then be on the Demised Premises, all of Lessee's right, title, and interest therein shall cease and terminate, and title to the Lessee Improvements shall vest in Lessor, and the Improvements or the part thereof then within the Demised Premises shall be surrendered by Lessee to Lessor. No further deed or other instrument shall be necessary to confirm the vesting in Lessor of title to the Lessee Improvements. However, upon any termination of this Lease, Lessee, upon request of Lessor, shall execute, acknowledge and deliver to Lessor a quitclaim deed confirming that all of Lessee's right, title and interest in or to the Lessee Improvements and that title to the Lessee Improvements has vested in Lessor. Notwithstanding the foregoing, Lessor at its option may require Lessee to remove the Lessee Improvements from the Demised Premises at Lessee's sole expense upon 120 days' written notice to Lessee, and Lessee shall have ninety (90) days after the termination of this Lease to complete such removal. If Lessee fails to remove the Lessee Improvements within such ninety day period, Lessor may cause the Lessee Improvements to be removed and Lessee shall pay the costs of such removal within thirty (30) days of receipt of a statement therefore from Lessor. ~4.~3. Lessee Improvements. (1) Required Lessee Improvements. Lessee hereby agrees to construct on the Demised Premises including, but not limited to, an ice rink with a concession area which may include alcohol of approximately 50,000 square feet of floor space along with necessary site work at a cost of approximately $ 3.5 Million Dollars (the Lessee Improvements). The Lessee Improvements shall include separate facility public restrooms with not less than three (3) toilets for men and three (3) toilets for women. If the restroom building on the Demised Premises as of the date of this Lease remains, it shall be accessible from the soccer field area and the parking lot area. If a new restroom is constructed, it shall be constructed at a location approved by Lessor. Lessor shall be responsible for the maintenance- of the restrooms. Lessee shall be responsible for relocating the two (2) soccer/rugby fields, including necessary grading, layout, irrigation equipment, landscaping, and seeding. Lessee shall restore all landscaping and seeding surrounding the Demised Premises after construction. (2) Plans for Construction of Lessee Improvements. Plans and specifications with respect to the construction of the Lessee Improvements (the Construction Plans) shall be submitted to Lessor for approval in its sole discretion, provided they are in conformity with all applicable state and local laws and regulations, including but not limited to the Americans with Disabilities Act. Thirty (30) days prior to commencing construction, Lessee shall submit to Lessor, for approval by Lessor, the Construction Plans and such additional documents as Lessor may reasonably request with respect to the Lessee Improvements to be constructed by Lessee on the Demised Premises. All work with respect to the Lessee Improvements shall be in conformity with the Construction Plans as approved by Lessor. It is agreed that approval of the Construction Plans by Lessor is a condition to closing under Section 1.4 above, and unless such approval shall be given by Lessor on or before the Closing Date, this Lease shall be null and void. (3) Timing of Lessee Improvements. Lessee hereby agrees that construction of the Lessee Improvements on the Demised Premises shall be commenced within eighteen (18) months after the Closing Date, and shall be substantially completed within eighteen (18) months after the commencement of construction. The time for performance of such obligations shall be suspended during the period of any delays caused by acts of God or other matters not within the control of Lessee including, but not limited to, extreme weather conditions and/or other natural causes, casualty, labor problems (including, but not limited to, strikes, walk-outs, picketing, boycotts and shutdowns), governmental restriction upon the availability or use of labor or materials, or insurrection, embargoes, or delays in providing necessary consents or approvals unless otherwise agreed upon in writing by Lessor and Lessee. The time for performance of such obligations shall be extended only for the period of such delay. (4) Certificate of Completion. Promptly upon completion of the Lessee Improvements in accordance with those provisions of this Lease relating solely to the obligations of Lessee to construct the Lessee Improvements, including the dates for beginning and completion thereof, Lessor shall furnish Lessee with an appropriate instrument so certifying. Such certification shall be a conclusive determination of the satisfaction and termination of the agreements and covenants in this Lease with respect to the obligations of Lessee to construct the Lessee Improvements. (5) Lessor covenants and agrees to keep and maintain the Demised Premises in good repair and any Lessee Improvements shall be made at the Lessee's expense. Lessor shall have the right, in its sole discretion, to approve the design, appearance and quality of any such Lessee Improvements. All improvements presently on the Demised Premises and all Lessee Improvements hereafter constructed on the Demised Premises are and shall be the property of Lessee during the continuance of the term of this Lease and no longer. Upon any termination of this Lease, by reason of any cause whatsoever, if the Lessee Improvements or any part thereof shall then be on the Demised Premises, all of Lessee's right, title, and interest therein shall cease and terminate, and title to the Lessee Improvements shall vest in Lessor, and the Lessee Improvements or the part thereof then within the Demised Premises shall be surrendered by Lessee to Lessor. No further deed or other instrument shall be necessary to confirm the vesting in Lessor of title to the Lessee Improvements. However, upon any termination of this Lease, Lessee, upon request of Lessor, shall execute, acknowledge, and deliver to Lessor a Bill of Sale confirming that all of Lessee's right, title, and interest in or to the Lessee Improvements has expired, and that title to the Lessee Improvements has vested in Lessor. Provided, however, that Lessor may at its option and upon thirty days' written notice to Lessee require Lessee to remove any or all of the Lessee Improvements from the Demised Premises at Lessee's sole expense, and in the event Lessor exercises such option, Lessee shall remove the Lessee Improvements within thirty days after receipt of such notice. ~4.~4. Signage. All proposed signage must be reviewed and approved by the City Manager in the City Manager's sole discretion prior to Lessee obtaining a sign permit. Notwithstanding the foregoing, prior to and during construction of the ice rink, Lessee may display one or more signs of major contributions, such as the Dubuque Greyhound Park & Casino, financial institutions providing monitary assistance to Lessee and companies working at the site. No single sign shall be larger than 8 feet by 8 feet. SECTION 45. ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST 4:1-5.1. -Lessee's right to encumber leasehold interest. Lessee shall not encumber by mortgage, deed of trust, or any other instrument, its leasehold interest and estate in the Demised Premises. SECTION 56. TAXES 56.1. Lessee agrees to pay as additional rent an amount equal to real estate taxes upon the real estate of the Demised Premises that become payable during the term hereof. Lessee shall further provide to Lessor official receipts of the appropriate taxing authority or other evidence satisfactory to Lessor evidencing payment thereof. 56.2. The Lessee further agrees to pay all other taxes, rates, charges, levies and assessments, general and special, of every name, nature and kind, whether now known to the law or hereafter created which may be taxed, charged, assessed, levied or imposed upon said real estate, any buildings or improvements thereon which may be taxed, charged, assessed, levied or imposed upon the leasehold estate hereby created and upon the reversionary estate in said real estate during the term hereof, and all such other taxes, rates, charges, levies and assessments shall be paid by Lessee as they become due and before they become delinquent. 56.3. Lessee agrees to timely pay all taxes, assessments or other public charges levied or assessed by lawful authority (but reasonably preserving Lessee's rights of appeal) against its personal property on the premises, during the term of this Lease. 56.4. Nothing herein shall require Lessee to pay any of Lessor's income taxes, surtaxes, excess profit taxes or any taxes on the rents reserved to Lessor hereunder. 56.5. Lessee shall at all times have the right to contest in good faith, in any proper proceedings, in the name of Lessor if necessary, the payment or satisfaction of any such taxes, assessments, rates, charges or levies so agreed to be paid by Lessee, if the validity thereof, or the right to assess or levy the same against or collect the same from said Demised Premises or improvements, shall be disputed. Upon the conclusion of any such suit or proceedings, or not less than three (3) months prior to the date when the right to redeem therefrom expires, whichever will be the earlier, Lessee will promptly pay and satisfy such disputed tax, assessment or other charge as finally determined, together with all expenses, costs and attorneys' fees whatsoever incurred in connection therewith. SECTION 67. REPAIRS Lessee shall at all times during the term of this Lease, at Lessee's own costs and expense, keep the Demised Premises and the Lessee Improvements thereon, and appurtenances to the Demised Premises, in good order, condition, and repair, casualties and ordinary wear and tear excepted. Lessee shall at all times during the term of this Lease, at Lessee's own costs and expenses, keep the side walks and curbs of the Demised Premises in good order, condition and repair. Lessee shall keep and maintain the Demised Premises, including lanscaping, and all improvements in superior condition, consistent with other similarly classed operations. Lessee shall keep the Demised Premises in such condition as may be required by law and by the terms of the insurance policies furnished pursuant to this Lease, whether or not such repair shall be interior or exterior, and whether or not such repair shall be of a structural nature. Upon reasonable notice to Lessee, Lessor may, at its discretion, conduct an annual inspection of the Demised Premises to determine Lessee's compliance with this Article VI. Lessor shall maintain Lessor's parking lot but shall have no obligation to plow snow in the parking lot. Snow plowing of the parking lot shall be Lessee's responsibility at its expense if Lessee intends to use the parking lot. Lessee shall provide, at its cost, adequate lighting for the parking lot and shall be responsible for the maintenance of said lights. SECTION ~8. COMPLIANCE WITH LAW X8.1. During the term of this Lease, Lessee shall comply with all applicable laws applicable to Lessee's use of the Demised Premises, the breach of which might result in any penalty on Lessor or forfeiture of Lessor's title to the Demised Premises. X8.2. Lessee shall not commit waste on the Demised Premises except as necessary for the removal or construction of any buildings and Lessee Improvements on the Demised Premises. SECTION 89. ALTERATIONS Lessee shall not during the term of this Lease make any alteration, addition, or modification to the exterior of the Demised Premises or the improvements thereon without the prior written approval of Lessor in Lessor's sole discretion. Lessee shall not during the term of this Lease make any alteration, addition, or modification to the interior of the Demised Premises or the improvements therein in excess of $10,000 without the prior written approval of Lessor in Lessor's sole discretion. SECTION ~10.USE OF DEMISED PREMISES 910.1. Lessee shall use the Demised Premises primarily for an ice rink and shall not use or allow the Demised Premises or any buildings or Lessee Improvements thereon or any appurtenances thereto, to be used or occupied for any unlawful purpose or in violation of any certificate of occupancy. Lessee may use the Demised Premises occasionally for other uses when it is not being used as an ice rink, without notice to Lessor. Lessee will not suffer any act to be done or any condition to exist within the Demised Premises or in any Lessee Improvement thereon, or permit any article to be brought therein, which may be dangerous, unless safeguarded as required by law, or which may, in law, constitute a nuisance, public or private, or which may make void or voidable any insurance in force with respect thereto. 910.2. Parking. All other recreational uses, including but not limited to baseball, softball, skate boarding, fishing, soccer and rugby, shall have precedence over Lessee with respect to the use of Lessor's parking lot. Lessee shall cooperate with Lessor to avoid conflicting use of Lessor's parking lot and shall notify Lessor in advance of any anticipated high use of the parking lot. SECTION a-8'11. INSURANCE ~-911.1. Lessee shall at all times during the term of this Lease maintain insurance on the Demised Premises of the following character: (1) Insurance against loss or damage by fire and other risks and perils from time to time included under standard extended coverage endorsements in an amount equal to not less than ninety percent (90%) of the replacement value of the Demised Premises and the Lessee Improvements. (2) Insurance as set forth in the Lessor's standard Insurance Schedule for Lessees of City Property, as such uniform, standardized schedule may from time to time be amended. The current Insurance Schedule is attached to this Lease Agreement as Insurance Schedule A. ~-911.2. Such insurance shall be written by companies legally qualified to issue such insurance in the State of Iowa and such insurance shall name as the insured parties thereunder, Lessor, or its assigns, and Lessee, as their interests may appear. Lessor shall not be required to prosecute any claim against any insurer or to contest any settlement proposed by any insurer, provided that Lessee may, at its cost and expense, prosecute any such claim or contest any such settlement, and in such event Lessee may bring any such prosecution or contest in the name of Lessor, Lessee, or both, and Lessor shall cooperate with Lessee and will join therein at Lessee's written request upon receipt by Lessor of an indemnity from Lessee against all costs, liabilities, and expenses in connection with such cooperation, prosecution, or contest. ~-911.3. Lessee shall deliver to Lessor promptly after the execution and delivery of this Lease the original or duplicate policies or certificates of insurers satisfactory to Lessor evidencing all the insurance which is then required to be maintained by Lessee ~;~-u~~r~~o? i zo7~a<, -8- hereunder, and Lessee shall, within 30 days prior to the expiration of any such insurance, deliver other original or duplicate policies or other certificates of the insurers evidencing the renewal of such insurance. Should Lessee fail to effect, maintain, or renew any insurance provided for herein, or to pay the premium therefor, or to deliver to Lessor any of such policies or certificates, Lessor, at its option, but without obligation so to do, may procure such insurance, and any sums expended by it to procure such insurance shall be additional rent hereunder and shall be repaid by Lessee within 30 days following the date on which demand therefor shall be made by Lessor. Such insurance policy(ies) shall contain a provision that such policy(ies) shall not be canceled or reduced in scope without thirty (30) days prior written notice to Lessor. ~-811.4. Each party shall look first to any insurance in its favor before making any claim against the other party for recovery for loss or damage resulting from fire or other casualty, and to the extent that such insurance is in force and collectible and to the extent permitted by law, Lessor and Lessee each hereby releases and waives all right of recovery against the other or anyone claiming through or under each of them by way of subrogation or otherwise. The foregoing release and waiver shall be in force only if both releasors' insurance policies contain a clause providing that such a release or waiver shall not invalidate the insurance, and also provided that such policies can be obtained without additional premiums. Lessee acknowledges that Lessor will not carry insurance on Lessee's furniture and/or furnishings or any trade fixtures or equipment, improvements, or appurtenances removable by Lessee or Lessee's leasehold improvements and agrees that Lessor will not be obligated to repair any damage thereto or replace the same. ~-011.5. Lessee shall notify Lessor immediately in the case of damage exceeding $10,000.00 in amount to, or destruction of, any Lessee Improvements or any portion thereof resulting from fire or other casualty. Net proceeds of any such insurance (Net Proceeds), shall be paid directly to Lessee as its interests may appear, and Lessee shall forthwith repair, reconstruct and restore the Lessee Improvements to substantially the same or an improved condition or value as they existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restoration, Lessee shall apply the Net Proceeds of any insurance relating to such damage received by Lessee to the payment or reimbursement of the costs thereof, subject, however, to the terms of any mortgage encumbering title to the Demised Premises (as its interests may appear). Lessee shall complete the repair, reconstruction and restoration of the Lessee Improvements whether or not the Net Proceeds of insurance received by Lessee for such purposes are sufficient. SECTION ~-x-12. LESSOR'S WARRANTIES AND REPRESENTATIONS ~-1-12.1. Lessor's Representation Of Good Title. Lessor covenants and warrants that its is lawfully seized in fee simple of the Demised Premises, and that it has full right and authority to enter into this Lease for the full term hereof, and covenants and agrees that upon paying the rent provided for herein, and upon Lessee's performing the covenants and agreements of this Lease required to be performed by said Lessee, that it will have, hold and enjoy quiet possession of the Demised Premises. Lessor warrants to Lessee that the Demised Premises are properly zoned for the conduct of the operation of Lessee's business. ~-1-12.2. Lessor covenants and agrees that Lessee shall have no responsibility for or liability arising from any Hazardous Substance which was in, on or about the Demised Premises prior to the commencement date of this Lease ("Prior Hazardous Substances") or which leach or migrate upon the Demised Premises from any property owned by Lessor or their affiliates ("Lessor Hazardous Substances"). -X12.3. For the purposes of this Lease, "Hazardous Substance" or "Hazardous Substances" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local government, the State of Iowa or the United States Government. It includes, without limitation, any material or substance that is (i) defined as a "hazardous substance" or "hazardous waste" under Chapter 4556, Iowa Code, (ii) petroleum and petroleum products, (iii) asbestos, (iv) designated as a "hazardous substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. §1321), (v) defined as a "hazardous waste pursuant to §1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi) defined as a "hazardous substance" pursuant to §101 of the Comprehensive Environmental Response, Compensation and Liability Act, U.S.C. §9601 et seq., or (vii} defined as a "regulated substance" pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. §6991 et seq. SECTION X13. INDEMNIFICATION X13.1.= Indemnification of Lessor. Except as otherwise provided herein, Lessee shall protect, indemnify, and save harmless Lessor from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessor by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Demised Premises during the term of this Lease and resulting from any act or omission of Lessee or anyone claiming by, through, or under Lessee during the term of the Lease; and (b) any failure on the part of Lessee to perform or comply with any of the terms of this Lease. In case any action, suit, or proceeding is brought against Lessor by reason of such occurrence, Lessee will, at Lessee's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by Lessor. a-213.2. Indemnification of Lessor. Except as otherwise provided herein, Lessor shall protect, indemnify, and save harmless Lessee from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessee by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Demised Premises during the term of this Lease and resulting from any act or omission of Lessor ~4'~~z'-~~ n« m~071207tac~ 10- or anyone claiming by, through, or under Lessor during the term of the Lease; and (b) any failure on the part of Lessor to perform or comply with any of the terms of this Lease. In case any action, suit, or proceeding is brought against Lessee by reason of such occurrence, Lessor will, at Lessor's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by Lessee. SECTION ~-314. CONDEMNATION ~-314.1. Entire Condemnation. If at any time during the term of this Lease all or substantially all of the Demised Premises or the improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality, or other public or private authority, then this Lease shall terminate on the date of vesting of title in such taking and any prepaid rent shall be apportioned as of said date. Substantially all of the Demised Premises and the improvements thereon shall be deemed to have been taken if the remaining portion of the Demised Premises shall not be of sufficient size to permit Lessee to operate its business thereon in a manner similar to that prior to such taking. ~-314.2. Allocation of Award. Any award for such taking of all or substantially all of the Demised Premises shall be paid to the parties hereto in accordance with the following: (1) To Lessor, the amount of the award attributable to the Demised Premises, determined as if this Lease was not in effect at the time of such award, excluding therefrom the amount of the award attributable to the improvements, and all other sums not directly attributable to the value of the Land constituting the Demised Premises. (2) To Lessee, the entire award except that portion allocated to Lessor above, including but not limited to, the value of the improvements plus any other amount assessed for Lessee. ~-314.3. Partial Condemnation. (1) If less than all or substantially all of the Demised Premises or the improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality, or other public or private authority, then Lessee, at its option, may elect to continue this Lease in full force and effect or terminate this Lease. If Lessee shall elect to maintain this Lease in full force and effect, the entire award for such partial condemnation shall be paid over to Lessee, and Lessee shall proceed with reasonable diligence to carry out any necessary repair and restoration so that the remaining improvements and appurtenances shall constitute a complete structural unit or units which can be operated on an economically feasible basis under the provisions of this Lease. In the event Lessee elects to continue this Lease in full force and effect after a partial condemnation, there shall be no abatement in the Basic Rent Lessee is required to pay hereunder. (2) Should Lessee elect to terminate this Lease upon a partial condemnation, Lessee shall provide Lessor with written notice of such election within thirty (30) days after the date of vesting of title for such taking. Lessee shall specify in such written notice the date on which this Lease shall terminate, which date shall be not less than 60 days nor more than 360 days after delivery of such notice to Lessor (the Termination Date). In the event Lessee terminates this Lease, as provided for in this Section 13.3, Lessee shall be entitled to the entire award for such partial taking. ~-314.4. Temporary Takinq. If the temporary use of the whole or any part of the Demised Premises or the Lessee Improvements thereon or the appurtenances thereto shall be taken at any time during the term of this Lease in the exercise of the power of eminent domain by any sovereign, municipality, or other authority, the term of this Lease shall not be reduced or affected in any way, and Lessee shall continue to pay in full the rent, additional rent, and other sum or sums of money and charges herein reserved and provided to be paid by Lessee, and the entire award for such temporary taking shall be paid to Lessee. Lessee shall repair and restore any and all damage to the Demised Premises and the improvements as soon as reasonably practicable after such temporary taking. a-314.5. Effect of Takinq. If any taking renders the construction of the meeting and entertainment center or hotel impossible, any financial penalties set forth in Section 1.3 (regarding the meeting and entertainment center) or Section 24.5 (regarding the hotel) shall not be applicable. SECTION ~-415. ASSIGNMENT AND SUBLETTING Lessee shall not assign or transfer this Lease or sublease the whole or any part of the Demised Premises without the prior written consent of Lessor. SECTION -1-516. DEFAULT ~-516.1. Lessor's Rights in the Event of Lessee's Default. If Lessee shall fail or neglect to observe, keep, or perform any of the covenants, terms, or conditions contained in this Lease on its part to be observed, kept, or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessor setting forth the nature of Lessee's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessee has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence), then and in any such event, Lessor shall have the right at its option, on written notice to Lessee, to terminate this Lease and all rights of Lessee under this Lease shall then cease. Lessor, without further notice to Lessee, shall have the right immediately to enter and take possession of the Demised Premises with or without process of law and to remove all personal property from the Demised Premises and all persons occupying the Demised Premises and to use all necessary force therefor and in all respects to take the actual, full, and exclusive possession of the Demised Premises and every part of the Demised Premises as of Lessor's original ~'"~ '~~a~071207tao 12- estate, without incurring any liability to Lessee or to any persons occupying or using the Demised Premises for any damage caused or sustained by reason of such entry on the Demised Premises or the removal of persons or property from the Demised Premises. ~516.2. Riqhts of Holder of Encumbrance in Event Lessee Defaults. If Lessee fails or neglects to observe, keep, or perform any of the covenants, terms, or conditions contained in this Lease on its part to be observed, kept, or performed, the Holder of any indebtedness secured by an encumbrance on the leasehold estate under this Lease shall have thirty (30) days after receipt of written notice from Lessor setting forth the nature of Lessee's default and a reasonable time thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature thereof within such thirty (30) days and is diligently prosecuting such proceedings, within which to endeavor to make good or remove the default or cause for termination of the Lease. All right of Lessor to terminate this Lease on the failure or neglect of Lessee to observe, keep, and perform the covenants, terms, and conditions of this Lease, is, and shall. continue to be, at all times prior to payment in full of the indebtedness to the Holder of Lessee, subject to, and conditioned on, Lessor's having first given the Holder written notice thereof and the Holder having failed to cause the default or cause for termination to be made good or removed within thirty (30) days after receiving written notice of default or cause for termination or within a reasonable time thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature of foreclosure within such thirty (30) days and is diligently prosecuting such proceedings. In the event that the Lease is terminated due to the Lessee's bankruptcy, insolvency or other proceedings, and in the event the Holder has complied with the terms of this Section 15.2, then Lessor at Holder's option, shall enter into a new lease with Holder or the successful bidder at foreclosure on the same terms as this Lease, for the term then remaining, and specifically preserving all unexercised options. ~-516.3 Lessee's Riqhts in the Event of Lessor's Default. If Lessor shall fail or neglect to observe, keep or perform any of the material covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessee setting forth the nature of Lessor's default, it being intended that in connection wtih a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessor has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence, but in no event longer than ninety (90) days, then and in any such event, Lessee shall have all rights available to it provided by law or equity. SECTION X17. RIGHT TO CURE OTHER'S DEFAULTS Whenever and as often as a party shall fail or neglect to comply with and perform any term, covenant, condition, or agreement to be complied with or performed by such party hereunder, then, upon thirty (30) days' prior written notice to such defaulting party, the other party, at such other party's option, in addition to all other remedies available to such other party, may perform, or cause to be performed, such work, labor, services, ~ ~~~o~ ~ zo7~~< 13- acts, or things, and take such other steps, including entry onto the Demised Premises and the Lessee Improvements thereon, as such other party may deem advisable, to comply with and perform any such term, covenant, condition, or agreement which is in default, in which event such defaulting party shall reimburse such other party upon demand, and from time to time, for all costs and expenses suffered or incurred by such other party in so complying with or performing such term, covenant, condition, or agreement. The commencement of any work or the taking of any other steps or performance of any other act by such other party pursuant to the immediately preceding sentence shall not be deemed to obligate such other party to complete the curing of any term, covenant, condition, or agreement which is in default. SECTION X18. QUIET ENJOYMENT Lessor covenants that at all times during the term of this Lease, so long as Lessee is not in default hereunder, Lessee's quiet enjoyment of the Demised Premises or any part thereof shall not be disturbed by any act of Lessor, or of anyone acting by, through, or under Lessor. SECTION X19. WAIVER No waiver by Lessor of any breach by Lessee of any term, covenant, condition, or agreement herein and no failure by Lessor to exercise any right or remedy in respect of any breach hereunder, shall constitute a waiver or relinquishment for the future of any such term, covenant, condition, or agreement or of any subsequent breach of any such term, covenant, condition, or agreement, nor bar any right or remedy of Lessor in respect of any such subsequent breach, nor shall the receipt of any rent, or any portion thereof, by Lessor, operate as a waiver of the rights of Lessor to enforce the payment of any other rent then or thereafter in default, or to terminate this Lease, or to recover the Demised Premises, or to invoke any other appropriate remedy which Lessor may select as herein or by law provided. SECTION ~--920. SURRENDER Unless otherwise agreed, Lessee shall, on the last day of the term of this Lease or upon any termination of this Lease hereof, surrender and deliver up the Demised Premises, with the improvements then located thereon into the possession and use of Lessor, without fraud or delay and in good order, condition, and repair, free and clear of all lettings and occupancies, free and clear of all liens and encumbrances other than those existing on the date of this Lease and those, if any, created by Lessor, without (except as otherwise provided herein) any payment or allowance whatever by Lessor on account of or for any buildings and improvements erected or maintained on the Demised Premises at the time of the surrender, or for the contents thereof or appurtenances thereto. At Lessor's option, Lessee shall remove any or all of the Lessee Improvements located on the Demised Premises. Provided, however, that Lessee's Trade Fixtures, personal property, and other belongings of Lessee or of any sublessee or other occupant of space in the Demised Premises shall be and remain the -1 O~t~a X07„ 1207 tao -14- property of Lessee, and Lessee shall have a reasonable time after the expiration of the term of this Lease to remove the same. SECTION A21. MEMORANDUM OF LEASE Each of the parties hereto will, promptly upon request of the other, execute a memorandum of this Lease in form suitable for recording setting forth the names of the parties hereto and the term of this Lease, identifying the Demised Premises, and also including such other clauses therein as either party may desire, except the amounts of Basic Rent payable hereunder. SECTION 2x-22. NOTICES X22.1. All notices, demands, or other writings in this Lease provided to be given or made or sent, or which may be given or made or sent, by either party to the other, shall be deemed to have been fully given or made or sent when made in writing and deposited in the United States mail, registered and postage prepaid, and addressed as follows: TO LESSOR: City Manager City of Dubuque, Iowa 50 West 13th Street Dubuque, Iowa 52001 TO LESSEE: James E. Goodman, Jr. 700 Locust Street, Suite 200 P.O. Box 599 Dubuque, IA 52004-0599 ~1-22.2. The address to which any notice, demand, or other writing may be given or made or sent to any party as above provided may be changed by written notice given by the party as above provided. SECTION 223. MISCELLANEOUS X23.1. Time of the Essence. Time is of the essence of this Lease and all of its provisions. X23.2. Governing Law. It is agreed that this Lease shall be governed by, construed, and enforced in accordance with the laws of the State of Iowa. X23.3. Attorney Fees. In the event that any action is filed in relation to this Lease, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees. "~~'~7I207_tap 15- 2223.4. Paragraph Headings. The titles to the paragraphs of this Lease are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this Lease. 2-223.5. Modification of Agreement. Any modification of this Lease or additional obligation assumed by either party in connection with this Lease shall be binding only if evidenced in a writing signed by each party or an authorized representative of each party. X223.6. Parties Bound. This Lease shall be binding on and shall inure to the benefit of and shall apply to the respective successors and assigns of Lessor and Lessee. All references in this Lease to "Lessor" or "Lessee" shall be deemed to refer to and include successors and assigns of Lessor or Lessee without specific mention of such successors or assigns. 2223.7. Force Maieure. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, unavailability or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, chemical explosions, hazardous conditions, fire, weather or acts of God, or by reason of any other cause beyond the exclusive and reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. 2223.8. Use of Tobacco Products. The use of tobacco products in any building on the Demised Premises is prohibited and Lessee shall use its best efforts to enforce such prohibition. The use of tobacco products outside of any buildings on the Demised Premises shall be allowed only in areas designed by Lessee and Lessee shall use its best efforts to enforce such restriction. 2223.89. Nondiscrimination. Lessee shall not discriminate against any person for employment or use of the Demised Premises or Improvements thereon because of race, religion, color, sex, sexual orientation, national origin, age or disability. LESSOR: [SEAL] Attest: Jeanne F. Schneider, City Clerk CITY OF DUBUQUE, IOWA By: Roy D. Buol, Mayor ac7za n-?~t~? ! z~3?t~o -16- LESSEE: DUBUQUE COMMUNITY ICE & RECREATIONAL CENTER, AN IOWA CORPORATION By: Attest: -17-