Dubuque Racing Association and Iowa Greyhound Association Lease 5th Amendment Copyright 2014
City of Dubuque Action Items # 2.
ITEM TITLE: Dubuque Racing Association and Iowa Greyhound Association Lease
Agreement and Public Hearing
SUMMARY: City Attorney recommending adoption of the resolution approving the Fifth
Amendment to the Amended and Restated Lease Agreement between
Dubuque Racing Association and the City and approving the Consent to
the Sublease between the Dubuque Racing Association and Iowa
Greyhound Association; and further recommending that the City Council
adopt the Resolution of Intent to Dispose of a portion of the greyhound
racing facility by lease with Iowa Greyhound Association, setting a public
hearing on the lease for November 17, 2014.
The DRA-IGA Sublease document will be distributed at the meeting.
RESOLUTION Approving the Fifth Amendment to Amended and Restated
Lease Agreement between the Dubuque Racing Association and the City
of Dubuque and approving the Consent to the Sublease between the
Dubuque Racing Association and Iowa Greyhound Association
RESOLUTION Intent to dispose of an interest in real property by Lease
with Iowa Greyhound Association
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt Resolution(s)
ATTACHMENTS:
Description Type
❑ Staff Memo Staff Memo
❑ Resolution Approving 5th Amendment and Sublease Resolutions
❑ 5th Amendment to Amended& Restated City-DRA Lease Supporting Documentation
❑ Resolution of Intent to Dispose Real Estate Resolutions
❑ City-Iowa Greyhound Lease Agreement Supporting Documentation
THE CITY OF
DUB ` E MEMORANDUM
Masterpiece on the Mississippi
BARRY LIND
CITY ATTOR
To:
DATE:
RE:
Kevin:
Kevi , Firnstahl
City le k
December 4, 2014
Dubuque Racing Association — Iowa Greyhound Association
Attached are the following original documents for your file:
1. Fifth Amendment to Amended and Restated Lease Agreement, dated November
3, 2014;
2. Sublease Agreement between Dubuque Racing Association and Iowa
Greyhound Association, dated October 29, 2014;
3. Lease Agreement between the City and Iowa Greyhound Association, dated
November 17, 2014.
I will retain a copy in my file.
Thank you.
BAL:tls
Attachment
F:\USERS\tsteckle\Lindahl\Iowa Greyhound Lease Agreement\Firnstahl_OriginalExecutedDocs_120414.doc
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org
THE CITY OF
DUB E MEMORANDUM
Masterpiece on the Mississippi
BARRY LINDAHL
CITY ATTORNEY
To: Kevin Firnstahl
City Clerk
DATE: November 14, 2014
RE: Sublease Between the Dubuque Racing Association (DRA) and the Iowa
Greyhound Association (IGA)
Kevin:
At its November 3, 2014 meeting, the City Council approved Resolution no. 351-14, a
copy of which is attached, approving the Fifth Amendment to the Amended and
Restated Lease Agreement between the DRA and the City. The resolution also
approved. the Consent to the draft of the Sublease between the DRA and the IGA, and
authorized the City Manager and the City Attorney to review and approve any non -
substantial revisions to the final form of the Sublease.
Attached is the original Sublease Agreement Between Dubuque Racing Association,
Ltd., as Sublessor, and Iowa Greyhound Association, as Lessee, executed by both the
Iowa Greyhound Association and the Dubuque Racing Association. I have reviewed
and approve the Sublease. I would appreciate it if you and the Mayor would sign the
City of Dubuque Consent to Sublease, where indicated, and return the original to me.
BAL:tls
Attachment
F:\USERS\tsteckle\Lindahl\Iowa Greyhound Lease Agreement\Firnstahl_OriginalDRA-IGASublease_111414.doc
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org
HE CITY OF
DUB
E MEMORANDUM
Masterpiece on the Mississippi
BARRY LINDAHL
CITY ATTORNEY
To: Mayor Roy D. Buol and
Members of the City Council
DATE: October 30, 2014
RE: Greyhound Park & Mystique Casino
• City of Dubuque — Dubuque Racing Association Amended and
Restated Lease Agreement
• City of Dubuque — Iowa Greyhound Association Lease
And
• Dubuque Racing Association — Iowa Greyhound Association
Sublease
The City of Dubuque (City) leases Dubuque Greyhound Park & Mystique Casino to the
Dubuque Racing Association (DRA) pursuant to the Amended and Restated Lease
Agreement (City-DRA Lease).
During the last legislative session, the Iowa General Assembly passed legislation,
approved by the Governor, which allows DRA to terminate live greyhound racing at
Dubuque Greyhound Park. The legislation also requires the City to enter into a lease
agreement with Iowa Greyhound Association (IGA) to permit IGA to conduct pari-mutuel
wagering on live dog races and simultaneously telecast horse or dog races at the
Greyhound Park.
The requirements of the legislation will be met as follows: A Lease Agreement between
the City and IGA (the City-IGA Lease) for the dog racing facilities and a Sublease
between DRA and IGA for facilities for the telecast of horse or dog races.
Attached is the City-IGA Lease. A part of the greyhound facility is currently leased by
the City to DRA. As a result, it is necessary to amend the City-DRA Lease to remove
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563)583-4113/FAX (563)583-1040/EMAIL balesq@cityofdubuque.org
from that lease the area to be leased to IGA. That is the subject of the Fifth Amendment
to the City-DRA Lease, attached.
Because the City-IGA Lease is for more than five (5) years, a public hearing is required
by state law. A resolution of intent setting that lease for a public hearing is attached.
Because the City-DRA Lease requires City's consent to any sublease by DRA, the
resolution approving the amendment to the City-DRA Lease also includes the City's
consent to the DRA-IGA Sublease. The Sublease is also attached. The terms of the
DRA-IGA Sublease have been reviewed and approved by the City Manager and City
Attorney. DRA will continue to be liable to the City under the terms of the City-DRA
Lease.
The DRA-IGA Sublease is not in final form. The resolution authorizes the City Manager
and City Attorney to review and approve any non-substantive revisions to the final form
of the Sublease.
The City-IGA Lease is essentially the City's standard lease form. The initial term of the
lease, as required by the recent legislation, is for a term of five (5) years ending
December 31 , 2019, with one (1) option to renew the lease for an additional five (5)
years which would end on December 31 , 2024. The initial five (5) year term of the lease
is for one dollar ($1 .00), as required by the legislation. The lease renewal would be at
fair market rental. IGA is required to conduct a certain number of live races during each
year of the term of the lease; in the event it does not conduct the required number of
races, the lease will automatically terminate.
I recommend that the City Council adopt the resolution approving the Fifth Amendment
to the Amended and Restated Lease Agreement between Dubuque Racing Association
and the City and approving the Consent to the Sublease between the Dubuque Racing
Association and Iowa Greyhound Association. I further recommend that the City
Council adopt the resolution of intent to dispose of a portion of the greyhound racing
facility by lease with Iowa Greyhound Association, setting a public hearing on the lease
for November 17, 2014.
BAL:tIs
Attachments
cc: Michael C. Van Milligen, City Manager
Jesus Aviles, General Manager, Mystique Casino
F:\USERS\tsteckle\Lindahl\Iowa Greyhound Lease Agreement\MayorCouncil_DRA5thAmendment&IGALeaseAgreement_103014.doc
2
Tracey Stecklein - RE: Revised City DRA IGA documents
From: Tori Richter <trichter@americantrust.com>
To: "'Barry Lindahl'" <balesq@cityofdubuque.org>, Mike Van Milligen <CtyMgr@...
Date: 11/3/2014 8:48 AM
Subject: RE: Revised City DRA IGA documents
CC: Tracey Stecklein <Tsteckle@cityofdubuque.org>
We are O.K. with the changes as presented.
Tori
Victoria (Tori) Richter
Senior Vice President
American Trust & Savings Bank
895 Main St.
Dubuque, IA 52001
trichter@americantrust.com
Office: 563-589-0827
Fax: 563-589-0860
Member FDIC Equal Housing Lender
Page 1 of 2
From: Barry Lindahl [mailto:balesq@cityofdubuque.org]
Sent: Wednesday, October 29, 2014 3:31 PM
To: Tori Richter; Mike Van Milligen; Gus Psihoyos; Jenny Larson; Maurice Jones; Steve Brown;
mauro@crawfordlawfirm.com; Jesus.Aviles@dgpc.com; brians@mystiquedbq.com; skrumpe@octhomaslaw.com
Cc: Tracey Stecklein
Subject: Revised City DRA IGA documents
After discussions with Steve and Nick today, I have made some non -substantive changes in the attached
documents. These will be on the Nov. 3 City Council agenda.
I do not yet have the DRA IGA Sublease.
file:///C:/Users/tsteckle/AppData/Local/Temp/XPgrpwise/5457415 CDBQ_DODBQ_PO 10... 11/3/2014
RESOLUTION N0: 351-14
APPROVING THE FIFTH AMENDMENT TO AMENDED AND RESTATED
LEASE AGREEMENT BETWEEN THE DUBUQUE RACING ASSOCIATION
AND THE CITY OF DUBUQUE AND APPROVING THE CONSENT TO THE
SUBLEASE BETWEEN THE DUBUQUE RACING ASSOCIATION AND IOWA
GREYHOUND ASSOCIATION
Whereas, the City of Dubuque (City) and the Dubuque Racing
Association, LTD. (Association) are parties to an Amended and Restated Lease
Agreement (the Lease Agreement) dated for reference purposes the 31st day of
March, 2004, as amended by the First Amendment dated the 4th day of April,
2005, the Second Amendment dated the 29th day of June, 2005, the Third
Amendment dated the 2nd day of February, 2009, and the Fourth Amendment
dated the 7t11 day of June, 2010; and
Whereas, City and Association desire to allow City to enter into a Lease
with Iowa Greyhound Association for portions of the Leased Premises in the
Amended and Restated Lease Agreement, which requires that such portions be
removed from the Leased Premises; and
Whereas, City and Association now desire to amend the Lease
Agreement as set forth in the attached Fifth Amendment; and
Whereas, City and Association desire to allow Association to enter into a
Sublease Agreement with the Iowa Greyhound Association for portions of the
Leased Premises in the Amended and Restated Lease Agreement which
requires the consent of City; and
Whereas, the City Council of the City of Dubuque finds that it is in the
interests of the City of Dubuque to approve the Fifth Amendment and consent to
the Sublease attached hereto.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF DUBUQUE, IOWA AS FOLLOWS:
1. The Fifth Amendment to Amended and Restated Lease Agreement
attached hereto is hereby approved.
2. The Mayor is hereby authorized and directed to execute the Fifth
Amendment on behalf of the City of Dubuque.
3. The City of Dubuque hereby consents to the Sublease between the
Dubuque Racing Association and Iowa Greyhound Association in substantially
the form attached hereto. The City Manager and City Attorney are authorized to
102914ba1
review and approve any non -substantial revisions to the final form of the
Sublease.
4. The Mayor is hereby authorized and directed to sign the consent to
Sublease.
Passed, approved and adopted this 3rd day of November, 2014.
Attest:
. Firnstahl, City
Kala A. Braig. Mayor PM Tem
F:\USERS\tsteckle\Lindahl\Iowa Greyhound Lease Agreement\Resolution approving DRA 5th Amendment and Sublease_102914.doc
2
Prepared by Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
RESOLUTION NO. 352-14
INTENT TO DISPOSE OF AN INTEREST IN REAL PROPERTY BY LEASE WITH
IOWA GREYHOUND ASSOCIATION
WHEREAS, the City of Dubuque, Iowa (City) owns certain property shown on Exhibit A
attached hereto known as Dubuque Greyhound Park; and
WHEREAS, City desires to enter into a Lease Agreement with Iowa Greyhound
Association for the property shown on Exhibit A; and
WHEREAS, the City Council of the City of Dubuque believes it is in the best interests
of the City of Dubuque to approve the Lease Agreement.
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, Iowa, intends to dispose of the
City's interest in the foregoing -described real property pursuant to the Lease Agreement
between City and Iowa Greyhound Association, a copy of which is now on file at the
Office of the City Clerk, City Hall, 13th and Central Ave., Dubuque, Iowa.
Section 2. The City Clerk is hereby authorized and directed to cause this Resolution
and a Notice to be published as prescribed by Iowa Code § 364.7 of a public hearing on
the City's intent to dispose of the foregoing -described real property, to be held on the 17th
day of November, 2014, at 6:30 o'clock p.m. in the City Council Chambers at the Historic
Federal Building, 350 W. 6th Street, Dubuque, Iowa
Passed, approved and adopted this 3rd day of November, 2014.
Karla A. Braig, Mayor Pc6 Tem
Attest:
ler
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Kevi L. S. Firnstahl, City erk
102214baI
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EXHIBIT A
Iowa Greyhound Association Lease Area Map
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FENCE LINE
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50 Vaasa 1818 Sbeel
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Phone - (562) 6894270
Fax (562)5894205
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FIUSERSIfsteakle\LindahNana Greyhound LeaseAgreementResoIution Intentto Dispose of Real Estate by Lease with IGR 102214.doc
FIFTH AMENDMENT
TO
AMENDED AND RESTATED
LEASE AGREEMENT
BETWEEN
THE DUBUQUE RACING ASSOCIATION
AND
THE CITY OF DUBUQUE
This FIFTH AMENDMENT TO AMENDED AND RESTATED LEASE
AGREEMENT is dated for reference purposes the 3rd day of November, 2014.
Whereas, the City of Dubuque (City) and Dubuque Racing Association, LTD.
(Association) are parties to an Amended and Restated Lease Agreement (the Lease
Agreement) dated for reference purposes the 31st day of March, 2004, as amended by
the First Amendment dated the 4th day of April, 2005, the Second Amendment dated the
29t" day of June, 2005, the Third Amendment dated the 2nd day of February, 2009, and
the Fourth Amendment dated the 7th day of June, 2010; and
Whereas, City and Association desire to allow City to enter into a Lease with
Iowa Greyhound Association for portions of the Leased Premises in the Amended and
Restated Lease Agreement .as shown on Exhibit A, which requires that such portions be
removed from the Leased Premises; and
Whereas, City and Association now desire to amend the Lease Agreement to
remove such portions from the Leased Premises.
effect.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. The following is added after Par. 2 of the Lease Agreement:
2A. Par. 2 notwithstanding, the highlighted area shown on Ex. A
attached hereto is excluded from the Leased Premises. The building labeled
"EXCEPTION EXIST. SHOP BUILDING" on Ex. A, and unrestricted access
thereto by Association's employees, contractors, agents, and permittees,
remains a portion of the Leased Premises.
2. All other provisions of the Lease Agreement shall remain in full force and
102914ba1
CITY OF DUBUQUE, IOWA
By:
Karla At. Braig, Mayor Pro Tem
Attest:
Kev n F. Firnstahl, Cit
2
DUBUQUE RACING
ASSOCIAON, LTD.
By:
ZULL')1-"
Its r resident
CONSENT TO AMENDMENT
American Trust & Savings Bank consents to the foregoing Fifth
dment to Amended and Restated Lease Agreement this.:3 day of
, 2014.
AMERICAN TRUST & SAVINGS BANK
3
EXHIBIT A
Demises Premises
Lease Agreement between the City of Dubuque and Iowa Greyhound
Association
4
aneaRa.
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EXHIBIT A
Iowa Greyhound Association Lease Area Map
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DRIVEWAY
LEASE AREA
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Dubuque, 109152001
Prone 15935 6594270
Fax (563)5994205
PMI flat 10.22-2014
SUBLEASE AGREEMENT BETWEEN DUBUQUE RACING
ASSOCIATION, LTD., AS SUBLESSOR, AND
IOWA GREYHOUND ASSOCIATION, AS LESSEE
This Sublease Agreement between the Dubuque Racing Association, Ltd.
("DRA"), an Iowa nonprofit corporation, as Sublessor, and the Iowa Greyhound
Association, LLC, an Iowa nonprofit corporation, as Sublessee, is dated for
reference purposes this October 29, 2014.
Whereas, DRA is the lessee of the real estate and improvements thereon
described on Exhibit A attached hereto and by this reference made a part hereof
(real estate and improvements collectively referred to as the "said Premises" or
"Subleased Premises"); and
Whereas, DRA, as Sublessor, desires to sublease said Premises to the
Iowa Greyhound Association to conduct live dog racing, pari-mutuel wagering on
live dog races and simultaneously telecast horse or dog races in accordance with
the provisions of Senate File 2362 (2014 Iowa Acts Chapter 1126) as enacted by
the 85th Iowa General Assembly and signed into by the Governor of Iowa on or
about May 30, 2014; and
Whereas, the Iowa Greyhound Association desires to sublease the said
Premises from DRA for such use; and
Whereas, DRA and the Iowa Greyhound Association desire to enter into
this Sublease in connection therewith.
Therefore, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree upon the
following mutual terms and conditions:
SECTION 1. TERM; RENT.
1.1 Initial Term.
(1) In consideration of the rents hereinafter reserved and the terms,
covenants, conditions and agreements set forth in this Sublease, DRA
hereby subleases to the Iowa Greyhound Association the Subleased
Premises, subject to any easements and restrictions of record, for an
Initial Term of five years commencing on the 1St day of January, 2015, and
ending on the 31st day of December, 2019, subject to all of the terms,
covenants, conditions and agreements contained herein.
(2) (a) With respect to all portions of the Subleased Premises other
than that portion designated in Exhibit A for the operation of the pari -
Page 1
mutuel wagering on simultaneously telecast horse or dog races as
authorized by Senate File 2362, 85th Iowa General Assembly (hereafter
"SF 2362"), and as a condition this sublease, Iowa Greyhound
Association shall pay, in addition to taxes, fees, assessments, and other
charges required to be paid by the Iowa Greyhound Association under this
Sublease, the rental sum specified in the lease agreement between Iowa
Greyhound Association and the City of Dubuque for those portions of the
racetrack enclosure located outside of the Mystique casino building.
(b) For Iowa Greyhound Association's operation of pari-mutuel wagering
on simultaneously telecast horse or dog races as authorized by SF 2362
and the Iowa Racing Association, in the Subleased Premises or any
portion thereof, the Iowa Greyhound Association shall pay, during the
initial five-year term as rental, on an annual basis, five -percent (5%) of
import handle on simultaneously telecast horse or dog races, after
deducting: (a) payouts to wagerers, and (b) operational expenses of
simulcasting (which shall not include either (i) capital expenditures or (ii)
expenses from live greyhound racing) calculated from January 1 through
December 31 of the previous year. Iowa Greyhound Association shall
deliver the annual payment no later than January 30 each year, with the
first payment due on January 30, 2016. Any failure to deliver such
payment as and when due shall be deemed a material breach by Iowa
Greyhound Association of this Sublease Agreement. Sublessor may, in
its sole discretion and without waiver of such breach, extend the date for a
rental payment, provided that any such extension shall bear rate at the
rate of 2% compound interest per month until paid.
1.2 Optional Renewal Term.
(1) Iowa Greyhound Association will have a single option to renew this
Sublease for an additional five years commencing on the 1st day of
January, 2020, and ending on the 31st day of March, 2024. DRA's current
lease of the said Premises expires March 31, 2024. In the event the City
of Dubuque and DRA extend the lease for the said Premises to or beyond
December 31, 2025, the Renewal Term shall end on the 31st day of
December, 2025. Rent shall be at a fair market rate in addition to taxes,
fees, assessments, and other charges required to be paid under this
Sublease by the Iowa Greyhound Association.
(2) If the parties are unable to reach agreement on the—fair—market
rental rate for purposes of the one five-year lease renewal by June 30,
2018, and if the Iowa Greyhound Association requests arbitration
concerning the renewal by June 18, 2018, the disputed terms of the
Sublease will be determined by binding arbitration in accordance with the
rules of the American Arbitration Association as of the date for arbitration.
A request for arbitration must be in writing and a copy of the request must
Page 2
be delivered to the other party. The parties will each select one arbitrator
and the two arbitrators will choose a third arbitrator to complete the three-
person arbitration panel. Each party will deliver its final offer on each of
the disputed items to the other party within fourteen days after the request
for arbitration. After consultation with the parties, the arbitrators will set a
time and place for an arbitration hearing. The parties may continue to
negotiate all offers until an agreement is reached or a decision is rendered
by the arbitrators. For purposes of determining the fair market rental rate
for purposes of the one five-year lease renewal, either party may argue,
and present arguments and evidence, that the renewal lease rental rate
should be based upon the market value of similarly situated undeveloped
land, or upon its use as a greyhound track. The submission of the
disputed items to the arbitrators will be limited to those items upon which
the parties have not reached agreement. However, the arbitrators have no
authority to extend the term of the lease beyond the initial five-year term
or the one five-year renewal. Any such arbitration shall take place in the
City of Dubuque, unless otherwise agreed.
(3) The arbitrators must render a decision within fifteen days after the
hearing. The arbitrators will give written explanation for the decision and
the decision of the arbitrators is final and binding on the parties, and any
decision of the arbitrators may be entered in any court having competent
jurisdiction. The decision by the arbitrators and the items agreed upon by
the parties will be deemed to be the lease between the parties and such
final lease is not subject to the approval of the governing body of the City
of Dubuque, the Iowa Greyhound Association, the Iowa Racing and
Gaming Commission, or any other government body. Each party to the
arbitration will bear its own expenses, including attorney fees, and the
parties will share equally the filing and other administrative fees of the
American Arbitration Association and the expenses of the arbitrators.
(4) Notwithstanding any other provision of this sublease agreement, or
in Iowa Greyhound Association's lease with the City of Dubuque for the
exterior portions of the racetrack enclosure shown in the attached Exhibit
B excluding the maintenance shop shown in Exhibit B-1, no arbitration or
mediation provisions shall apply to the renewal or renewal terms relating
to simultaneously telecast horse or dog races, which shall be at all times a
matter of mutual agreement not subject to mandatory mediation or
arbitration terms and wholly independent of the sublease of the racetrack
enclosure for purposes of live greyhound racing.
1.3 Iowa Greyhound Association acknowledges and agrees that it is the intent
of the parties that DRA must not incur any costs related in any way to Iowa
Greyhound Association's financing, lease or operation of the Subleased
Premises.
Page 3
SECTION 2. IOWA GREYHOUND ASSOCIATION'S OBLIGATIONS.
2.1 In addition to all other Iowa Greyhound Association obligations set forth in
this Sublease, this Sublease is contingent upon the following:
(1) Iowa Greyhound Association obtaining a license pursuant to the
requirements of Iowa Code § 99D.9A on or before December 1, 2014,
and maintaining such license during the entire term of this Sublease.
(2) Iowa Greyhound Association making an offer of employment to all
persons employed (full-time, part-time, or seasonal) by DRA within the
racetrack enclosure as of October 31, 2014, in accordance with Iowa
Code § 99D.9A, in accordance with Iowa Code § 99D.9A, such
employment for seasonal employees to commence at the appropriate
times, and for non -seasonal employees on or before January 1, 2015.
(3) Existing collective bargaining agreements concerning employees at
the racetrack must be honored by the Iowa Greyhound Association.
(4) Live dog racing requirements. The Iowa Greyhound Association
must conduct, for calendar year 2015, no fewer than sixty live race days
with nine live races per day during the racing season, and for calendar
year 2016 and subsequent calendar years covered by the lease, no fewer
than ninety-five live race days with nine live races per day during each
racing season. However, upon mutual agreement by the parties, subject
to approval by the Iowa Racing and Gaming Commission, the number of
race days for one or more live racing seasons may be reduced so long as
the Iowa Greyhound Association conducts a minimum number of live
races and racing days during that season. DRA may, in its sole discretion,
terminate this Sublease with respect to live dog racing on January 1 of the
year following the calendar year in which such live dog racing was not
conducted by the Iowa Greyhound Association; the lease for the
Subleased Premises, however, in such event, this sublease shall not
terminate with respect to Iowa Greyhound Association's conduct of pari-
mutuel wagering on simultaneously telecast horse or dog races at
Mystique as authorized by SF 2362 and the Iowa Racing and Gaming
Commission, so long as the Iowa Greyhound Association remains in full
compliance with the terms and conditions of this Sublease (except for the
conduct of live dog racing), and in compliance with Iowa Greyhound
Association's lease with the City of Dubuque for the exterior portions of
the racetrack enclosure.
2.2 Neither (a) equipment (including but not limited to the Alldritt Lure System
and other equipment owned, leased, or rented by DRA, without regard to
whether or not it was used by DRA in pari-mutuel wagering and live racing and/or
simulcasting), nor (b) furniture, furnishings, or other personal property owned or
Page 4
leased by DRA at the time Iowa Greyhound Association takes possession under
this sublease or thereafter, is included in this sublease. However, Iowa
Greyhound Association may purchase furniture, furnishings, and equipment
(including the Alldritt Lure System) used by DRA for pari-mutuel wagering or for
live dog races, on such terms as the parties may separately agree, prior to taking
possession under this sublease.
SECTION 3. ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST.
3.1 Iowa Greyhound Association's Right To Encumber Leasehold Interest.
Only with the prior written consent of DRA and the City Council of the City of
Dubuque, in their sole discretion, may the Iowa Greyhound Association
encumber by mortgage, deed of trust or other proper instrument, its leasehold
interest and estate in the Subleased Premises, as security for any indebtedness
of the Iowa Greyhound Association or other person or entity, and provided that
no such encumbrance may extend beyond the term of this Sublease. The Iowa
Greyhound Association must provide prompt written request to DRA and the City
of Dubuque of any such proposed encumbrance together with a copy of the
proposed encumbrance. Such proposed encumbrances shall also be subject to
approval of the Iowa Racing and Gaming Commission.
3.2 Notice To Holder Of Encumbrance; Right Of Holder To Cure Iowa
Greyhound Association's Default. If the Iowa Greyhound Association encumbers
its leasehold interest and estate in the Subleased Premises and if the Iowa
Greyhound Association, or the holder of the indebtedness, its successors and/or
assigns (the "Holder") secured by the encumbrance gives notice to DRA of the
existence of the encumbrance and the address of the Holder, then DRA will mail
or deliver to the Holder, at such address, a duplicate copy of all notices in writing
which DRA may, from time to time, give or serve on the Iowa Greyhound
Association under and pursuant to the terms and provisions of this Sublease.
The copies must be mailed or delivered to the Holder at, or near as possible to,
the same time the notices are given to or served on the Iowa Greyhound
Association. The Holder may, at its option, at any time before the rights of the
Iowa Greyhound Association are terminated as provided in this Sublease, pay
any of the rents due under this Sublease or pay any taxes and assessments, or
do any other act or thing required of the Iowa Greyhound Association by the
terms of this Sublease, or do any act or thing that may be necessary and proper
to be done in the observance of the covenants and conditions of this Sublease or
to prevent the termination of this Sublease; provided, however, that the doing of
any act or thing requiring possession of the Subleased Premises is subject to the
further rights of Holder as set forth in Section 17.2. All payments so made and
all things so done and performed by the Holder are effective to prevent a
foreclosure of the rights of the Iowa Greyhound Association thereunder as the
same would have been if done and performed by the Iowa Greyhound
Association.
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3.3 Mechanic's Liens. Neither the Iowa Greyhound Association nor anyone
claiming by, through, or under the Iowa Greyhound Association may file or place
any mechanic's lien upon the Subleased Premises and notice is hereby given
that no contractor, subcontractor, or anyone else who may furnish any material,
service or labor for any building, improvement, alteration, repair or any part
thereof, may at any time be or become entitled to any lien thereon, and for the
further security of DRA, the Iowa Greyhound Association covenants and agrees
to give actual notice thereof in advance, to any and all contractors and
subcontractors who may furnish or agree to offer any such material, service or
labor.
SECTION 4. TAXES AND FEES.
4.1. Iowa Greyhound Association agrees to pay all real estate taxes levied
upon the real estate of the Subleased Premises that become payable (as such
taxes come due) during the initial and renewal term, if applicable, hereof and
which would become delinquent if not so paid during the term hereof. The Iowa
Greyhound Association must provide to DRA official receipts of the appropriate
taxing authority or other evidence satisfactory to DRA evidencing payment
thereof.
4.2. During the term of this Sublease, the Iowa Greyhound Association agrees
to pay any and all other taxes, fees (including but not limited to stormwater fees
or other utility charges), 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 the Subleased Premises and which become payable during the term
hereof and which would become delinquent if not so paid during the term hereof,
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 the Subleased Premises during the term hereof and which
become payable during the term hereof and which would become delinquent if
not so paid during the term hereof, and all such other taxes, rates, charges,
levies and assessments must be paid by the Iowa Greyhound Association as
they become due and before they become delinquent during the term hereof.
4.3. Iowa Greyhound Association agrees to timely pay all taxes, assessments
or other public charges levied or assessed by lawful authority (but reasonably
preserving the Iowa Greyhound Association's rights of appeal) against the trade
fixtures, furniture, furnishings, fixtures, equipment, and other personal property
that is owned, leased, rented, or otherwise in the possession and control of Iowa
Greyhound Association and utilized on or for the benefit of the Subleased
Premises, during the term of this Sublease.
4.4. Nothing herein requires the Iowa Greyhound Association to pay any of
DRA's income taxes, surtaxes, excess profit taxes or any taxes on the rents or
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otherwise reserved to DRA hereunder. Nothing herein requires DRA to pay any
of Iowa Greyhound Association's income taxes, surtaxes, property taxes, excess
profit taxes or any taxes on the rents or otherwise reserved to Iowa Greyhound
Association hereunder.
4.5. Iowa Greyhound Association has at all times the right to contest in good
faith, in any proper proceedings, in the name of DRA if necessary, the payment
or satisfaction of any such taxes, assessments, rates, charges or levies so
agreed to be paid by the Iowa Greyhound Association, if the validity thereof, or
the right to assess or levy the same against or collect the same from said
Subleased Premises, is disputed with respect to the Subleased Premises. 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, the Iowa Greyhound Association must promptly pay and satisfy such
disputed tax, assessment or other charge as finally determined. The Iowa
Greyhound Association shall also promptly pay and satisfy all expenses, costs
and attorneys' fees whatsoever incurred in connection therewith.
SECTION 5. UTILITIES. The Iowa Greyhound Association must pay, before
delinquency, all separately metered charges to the subleased areas related to
communications systems and services, telephone, cable, Internet, water,
wastewater, stormwater, sewer, gas, heat, electricity, power, trash disposal, and
not limited by the foregoing list, all other utilities and services of whatever kind
and nature which may be used in or upon the Subleased Premises. With respect
to non -metered utilities, Iowa Greyhound Association is solely responsible for
any additional metering required for any utilities and the cost of installing any
such metering. DRA and Iowa Greyhound Association may agree in a writing
duly executed by both parties, to share the cost of utilities supplied to DRA that
cannot be separately metered, provided however that each party's share of the
cost shall be based on the total cost of the shared services, including but not
limited to the cost of equipment (as the same may have been depreciated on
DRA's financial statements) used for the services, capital costs (including
interest) as depreciated, and actual usage of billed services by the respective
parties.
SECTION 6. CONDITION OF SUBLEASED PREMISES AND REPAIRS.
6.1. The Iowa Greyhound Association has made an adequate inspection of the
Subleased Premises and accepts same "As Is." DRA makes no warranties or
representations regarding the condition of the Subleased Premises unless
otherwise specifically stated herein. The Iowa Greyhound Association must at all
times during the term of this Sublease, at the Iowa Greyhound Association's
expense, keep the Subleased Premises, and all sidewalks, curbs, and all
appurtenances to the Subleased Premises, in good order, condition and repair,
casualties and ordinary wear and tear excepted. The Iowa Greyhound
Association must keep and maintain the Subleased Premises in a condition
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consistent with other similarly classed operations. The Iowa Greyhound
Association must keep the Subleased Premises in such condition as may be
required by law and by the terms of the insurance policies furnished pursuant to
this Sublease, whether or not such repair must be interior or exterior, and
whether or not such repair must be of a structural nature. Upon reasonable
notice to the Iowa Greyhound Association, DRA may, at its discretion and at its
cost, conduct an annual inspection of the Subleased Premises to determine the
Iowa Greyhound Association's compliance with this Section 6.
6.2. The Iowa Greyhound Association agrees that, at all times during the
Sublease term, Iowa Greyhound Association shall, at its own expense, maintain,
preserve and keep the Subleased Premises in good repair, working order and
condition.
6.3 The Iowa Greyhound Association may not commit waste on the Subleased
Premises except as necessary for its business purposes including the removal or
construction of any buildings and Improvements on the Subleased Premises,
and is liable for any damages to or destruction of any buildings or improvements
on the Subleased Premises resulting from waste and will repair or rebuild such
buildings or improvements. The Iowa Greyhound Association may remove
existing improvements or construct new improvements on the Subleased
Premises subject to all of the terms and conditions of this Sublease provided the
Iowa Greyhound Association has received the prior written approval of DRA.
SECTION 7. COMPLIANCE WITH LAW.
During the term of this Sublease, the Iowa Greyhound Association must
comply with all local, state and federal laws applicable to the Iowa Greyhound
Association's use of the Subleased Premises, including but not limited to the
Americans with Disabilities Act and the Iowa Smoke Free Air Act.
SECTION 8. ALTERATIONS. Iowa Greyhound Association may, subject to
the prior written consent of both DRA and the City of Dubuque, in their sole
discretion, make any alteration, addition, or modification to the Subleased
Premises ("the Iowa Greyhound Association Improvements") that equals or
exceeds Five Thousand and 00/100 Dollars ($5,000.00) in cost, at the Iowa
Greyhound Association's expense, from time to time during the term of this
Sublease. Any alteration, addition or modification of the Subleased Premises by
the Iowa Greyhound Association at a cost of less than Five Thousand and
00/100 Dollars ($5,000.00) does not require DRA's consent, but must be made
solely at the Iowa Greyhound Association expense and only after not less than
sixty (60) days prior written notice to DRA of such alteration, addition or
modification. Plans and specifications with respect to the Iowa Greyhound
Association Improvements and the construction of the Iowa Greyhound
Association Improvements must be in conformity with all applicable laws and
regulations. The Iowa Greyhound Association must submit to DRA, for approval
Page 8
by DRA, plans, drawings, specifications, and related documents with respect to
the Iowa Greyhound Association Improvements to be constructed by the Iowa
Greyhound Association on the Subleased Premises. All work with respect to the
Iowa Greyhound Association Improvements must be in substantial conformity
with the construction plans approved by DRA. All alterations, additions, or
modifications to the Subleased Premises must be coordinated with the then -
existing improvements on the Subleased Premises and any other the Iowa
Greyhound Association Improvements in the general vicinity of the Subleased
Premises.
SECTION 9. USE OF SUBLEASED PREMISES.
9.1. Iowa Greyhound Association must operate the Subleased Premises solely
for live dog racing, pari-mutuel wagering on live dog races and simultaneously
telecast horse or dog races, as provided in SF 2362 and authorized by the Iowa
Racing and Gaming Commission, and may not knowingly use or allow the
Subleased Premises or any buildings or improvements thereon or any
appurtenances thereto, to be used or occupied for any other purpose or any
unlawful purpose or in violation of any certificate of occupancy. The Iowa
Greyhound Association may not suffer any act to be done or any condition to
exist within the Subleased Premises, or permit any article to be brought therein,
which is dangerous, unless safeguarded as required by law, or which, in law,
constitutes a nuisance, public or private, or which may make void or voidable any
insurance in force with respect thereto. Notwithstanding the foregoing, Iowa
Greyhound Association may enter into a contract or contracts with qualified
entities to assist Iowa Greyhound Association in the operation and management
of live dog racing, pari-mutuel wagering on live dog races and simultaneously
telecast horse or dog races, subject to the prior approval of DRA and the Iowa
Racing and Gaming Commission.
9.2 Iowa Greyhound Association must take all reasonable steps to implement
a smooth transition of the Subleased Premises from DRA to the Iowa Greyhound
Association, holding DRA harmless from any claims arising therefrom.
9.3. During the term of this Sublease, the Iowa Greyhound Association may
not change the use of the Subleased Premises.
9.4. The Iowa Greyhound Association may not cause, allow or permit any
outdoor storage of any materials, objects or things of any kind, including refuse,
trash or garbage, at any time on the Subleased Premises. Notwithstanding the
foregoing, refuse storage is permissible in an accessory storage enclosure if
DRA or its designee determines that the structure is in character with the
principal building being served and constructed of the same quality permanent
materials as the principal building being served. The accessory structure must be
within close proximity to the principal building being served. Where the structure
exceeds 200 square feet in area, at least 1/3 of the structure's exterior perimeter
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must be landscaped with ornamental trees and shrubs.
SECTION 10. INSURANCE
10.1. The Iowa Greyhound Association must maintain during the term of this
Sublease insurance to meet the coverage and limits of coverage of the greater of
the following: (a) requirements as set forth in the City of Dubuque Insurance
Requirements for Tenants and Lessees of City Property or Vendors (Suppliers,
Service Providers), and Right of Way Permit Holders Insurance Schedule for
lessees of City Property, as such uniform, standardized schedule may from time
to time be amended OR (b) property/casualty, liability, workers compensation,
employment practices liability, and other insurance coverages maintained by
DRA, with equivalent coverage limits, for its own operations within the
racing/casino/simulcasting areas. The current City of Dubuque Insurance
Requirements for Tenants and Lessees of City Property or Vendors (Suppliers,
Service Providers), and Right of Way Permit Holders insurance schedule
(Insurance Schedule A) is attached to this Sublease as Exhibit C. The City of
Dubuque, Iowa or DRA will provide the Iowa Greyhound Association written
notice of any amendment to the Insurance Schedule not less than sixty days
prior to the effective date of such amendment.
10.2. During construction of any of the Iowa Greyhound Association
Improvements or other alteration, addition or modification on the Subleased
Premises, the Iowa Greyhound Association must maintain builder's risk
insurance, written on the Special Perils Form in an amount equal to one hundred
percent (100%) of the replacement value of Improvements as the same exists
from time to time during the construction process.
10.3. The Iowa Greyhound Association must maintain, or cause to be
maintained, at its cost and expense (and from time to time at the request of DRA
or the City of Dubuque must furnish proof of the payment of premiums on),
property insurance against Toss and/or damage to improvements under an
insurance policy written on the Special Perils Form in an amount not Tess than
the full insurable replacement value of improvements, but any such policy may
have a deductible amount of not more than $50,000.00. No policy of insurance
may be so written that the proceeds thereof will produce less than the minimum
coverage required by the preceding sentence, by reason of co-insurance
provisions or otherwise, without the prior consent thereto in writing by City of
Dubuque. The term "replacement value" must mean the actual replacement cost
of improvements (excluding foundation and excavation costs and costs of
underground flues, pipes, drains and other uninsurable items) and equipment,
and will be determined from time to time at the request of DRA or the City of
Dubuque, but not more frequently than once every three years, and paid for by
the Iowa Greyhound Association.
10.4. Iowa Greyhound Association must purchase all insurance required by the
Page 10
terms of this Sublease responsible insurance companies having a minimum A.M.
Best rating of A- Class VII, or otherwise approved by DRA, that are authorized
under the laws of the State of Iowa to assume the risks covered thereby. Iowa
Greyhound Association must provide DRA by December 15, 2014, an update
annually by not later than December 15 of each year or within 10 days of the
insurance being bound, whichever is earlier, a certificate or certificates or binders
of the respective insurers stating that such insurance is in force and effect. All
insurance required by this Section 10 must include DRA and the City of
Dubuque, Iowa as additional named insureds, and all certificates of coverage
provided must expressly list DRA and the City of Dubuque as additional named
insureds. Iowa Greyhound Association must furnish evidence satisfactory to
DRA and the City of Dubuque that the policy has been renewed or replaced by
another policy conforming to the provisions of this Sublease, or that there is no
necessity therefor under the terms hereof. In lieu of separate policies, the Iowa
Greyhound Association may maintain a single policy, or blanket or umbrella
policies, or a combination thereof, which provide the total coverage required
herein, in which event the Iowa Greyhound Association must deposit with DRA
and the City of Dubuque a certificate or certificates of the respective insurers as
to the amount of coverage in force upon Improvements, provided, however, the
specific limit may not be impaired.
10.5. Iowa Greyhound Association agrees to notify DRA and the City of
Dubuque immediately in the case of damage .exceeding $10,000.00 in amount
to, or destruction of, the Subleased Premises or any portion thereof resulting
from fire or other casualty. Net proceeds of any such insurance (Net Proceeds),
must be paid directly to the Iowa Greyhound Association, and the Iowa
Greyhound Association must forthwith repair, reconstruct and restore the
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, the Iowa
Greyhound Association must apply the Net Proceeds of any insurance relating to
such damage received by the Iowa Greyhound Association to the payment or
reimbursement of the costs thereof, subject, however, to the terms of any
mortgage encumbering title to the Property.
10.6. Iowa Greyhound Association must complete the repair, reconstruction and
restoration of the Subleased Premises, whether or not the Net Proceeds of
insurance received by the Iowa Greyhound Association for such purposes are
sufficient.
SECTION 11. APPROVAL CONTINGENCY.
This Sublease is contingent upon the prior approval of: (a) DRA's Board of
Directors; (b) the City of Dubuque; (c) the Iowa Racing and Gaming Commission;
(d) Iowa Greyhound Association; and (e) DRA's lenders.
Page 11
SECTION 12. IOWA GREYHOUND ASSOCIATION'S WARRANTIES AND
REPRESENTATIONS
12.1. Iowa Greyhound Association's Compliance With Law.
(1) The Iowa Greyhound Association warrants that it is validly existing
and in good standing under the laws of the State of Iowa as a nonprofit
organization.
(2) The Iowa Greyhound Association covenants and agrees that the
Iowa Greyhound Association will comply with all applicable local, state
and federal laws, rules, regulations and permits with regard to the
Subleased Premises and its use, occupancy and control of the Subleased
Premises.
(3) The Iowa Greyhound Association covenants and agrees that the
Iowa Greyhound Association will acquire and maintain any and all
applicable permits, licenses or authorizations as may be necessary for the
Iowa Greyhound Association's use, occupancy, and control of the
Subleased Premises, and for the conduct of live dog racing, pari-mutuel
wagering on live dog races and simultaneously telecast horse or dog
races, as provided in Senate File 2362/Iowa Code section 99D.9C, as
conditions precedent to this Sublease.
12.2 Environmental Matters.
(1) The Iowa Greyhound Association covenants and agrees that
neither DRA nor the City of Dubuque shall have any responsibility for or
liability arising from any release of a Hazardous Substance on the
Subleased Premises which is caused by or results from or during the Iowa
Greyhound Association's use, occupancy or control of the Subleased
Premises, nor shall DRA or the City of Dubuque have any responsibility
for or liability arising from any Hazardous Substance which leaches or
migrates upon the Subleased Premises from any property owned by the
City of Dubuque. Further, neither DRA nor the City of Dubuque shall have
any responsibility for any Hazardous Substance which leaches or
migrates upon the Subleased Premises from any adjacent property, or
any release of a Hazardous Substance which is caused by Iowa
Greyhound Association's use, occupancy, or control of the Subleased
Premises or which pre-exists the date of this Sublease, except that DRA
and the City of Dubuque, as appropriate, must cooperate fully with any
response to such release by Iowa Greyhound Association or others.
(2) Iowa Greyhound Association covenants and agrees to notify DRA
and the City of Dubuque promptly of any release of Hazardous Substance
in, on or about the Subleased Premises of which the Iowa Greyhound
Association has knowledge.
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(3) Iowa Greyhound Association covenants and agrees to promptly
take any and all necessary and appropriate response to address any
release of Hazardous Substance for which the Iowa Greyhound
Association is responsible. Such response must include, without limitation,
notification to appropriate governmental authorities, as may be required
by law.
(4) Iowa Greyhound Association covenants and agrees not to
manufacture, treat or dispose of Hazardous Substances at the Subleased
Premises or knowingly allow the manufacture, treatment, or disposal of
Hazardous Substances on the Subleased Premises. Iowa Greyhound
Association covenants and agrees to use and store any Hazardous
Substances at the Subleased Premises only in full accordance with law.
(5) For the purposes of this Sublease, "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 455B, Iowa Code, (ii)
petroleum and petroleum products, (iii) asbestos containing materials in
any form or condition, (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.0 § 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.] The term
"Hazardous Substance" does not include any air emissions discharged
into the atmosphere as allowed by a duly issued permit from the
applicable governmental agency.
SECTION 13. DRA RIGHTS OF ACCESS.
13.1. Right of Entry for Utility Service. DRA reserves for itself, and for any
public utility company, as may be appropriate, the unqualified right to enter upon
the Subleased Premises and upon the exterior portions of the racetrack
enclosure leased by the Iowa Greyhound Association from the City of Dubuque
shown in Exhibits B and B-1 (collectively referred to hereafter as "DRA Access
Areas"), at all reasonable times for the purpose of reconstructing, maintaining,
repairing, or servicing the public utilities located within the boundary lines of the
Subleased Premises. Before entering the DRA Access Areas, for any such
purpose, DRA shall provide reasonable notification to Iowa Greyhound
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Association of its intent to enter the Subleased Premises for such purposes.
DRA further reserves for itself the right to enter upon the DRA Access Areas at
all reasonable times for the purpose of accessing areas within DRA Access
Areas and the Maintenance Shed and curtilage that remains in the real estate
lease between DRA and the City of Dubuque, as indicated on the attached
Exhibits, for the performance or verification of any duties required of DRA or
Iowa Greyhound Association under this sublease agreement or ancillary
agreements, and for emergency purposes. DRA shall provide reasonable notice
to Iowa Greyhound Association of DRA's access to the Subleased Premises on
an individual or scheduled basis, as appropriate to the circumstances; however,
DRA need not provide notice to Iowa Greyhound Association for entry upon the
Subleased premises for the purpose of accessing the Maintenance Shed by
DRA's employees, contractors, agents, or other persons authorized by DRA.
13.2. Iowa Greyhound Association Not to Construct Over Utility Easements.
The Iowa Greyhound Association may not construct any building or other
structure or improvements on, over, or within the boundary lines of any
easement for public utilities unless such construction is provided for in such
easement or has been approved by DRA in writing. If approval for such
construction is requested by the Iowa Greyhound Association, DRA will
cooperate to assure that such approval will not be withheld unreasonably.
13.3. Inspection of Subleased Premises. In addition to access otherwise
approved by the Iowa Greyhound Association, an authorized representative of
DRA, as designated in writing by his or her DRA Manager, shall have the right to
enter and have access to the Subleased Premises, whether or not events are in
operation, at all reasonable times and for any reasonable purposes, as long as
such entrances do not unreasonably interfere with Iowa Greyhound Association's
right to quiet occupancy. Iowa Greyhound Association shall also provide
unfettered access by DRA personnel and/or DRA contractors to the maintenance
shed in the kennel area, and to other parts of the racetrack area that continue to
be leased by DRA from the City of Dubuque. Such entrances shall be subject to
the rules of the Iowa Racing and Gaming Commission.
SECTION 14. INDEMNIFICATION.
14.1 Indemnification of the Iowa Greyhound Association. To the extent allowed
by law, DRA will indemnify and save harmless the Iowa Greyhound Association
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 the Iowa
Greyhound Association by reason of (a) any accident, injury to or death of
persons or loss of or damage to property occurring on or about the Subleased
Premises and resulting from any act or omission of DRA or anyone acting by,
through, or under DRA, and (b) any failure on the part of DRA to perform or
Page 14
comply with any of the terms of this Sublease. In case any action, suit or
proceeding is brought against the Iowa Greyhound Association by reason of
such occurrence, DRA will, at DRA expense and discretion, either defend such
action, suit or proceeding, or cause the same to be defended by counsel
approved by the Iowa Greyhound Association, which approval will not be
unreasonably withheld.
14.2 Indemnification of DRA. The Iowa Greyhound Association will indemnify
and save harmless DRA 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 DRA by reason of (a) any accident, injury to or death of
persons or loss of or damage to property occurring on or about the Subleased
Premises during the term of this Sublease and resulting from any act or omission
by the Iowa Greyhound Association or anyone claiming by, through or under the
Iowa Greyhound Association during the term of the Sublease and (b) any failure
on the part of the Iowa Greyhound Association to perform or comply with any of
the terms of this Sublease, and (c) any material breach on the part of the Iowa
Greyhound Association of any warranty or representation contained in Section
12. In case any action, suit or proceeding is brought against DRA by reason of
such occurrence, the Iowa Greyhound Association will, at the Iowa Greyhound
Association's expense and discretion, either defend such action, suit or
proceeding, or cause the same to be defended by counsel approved by DRA,
which approval will not be unreasonably withheld.
14.3 Survival. The obligations and liabilities under this Section survive and
continue in full force and effect and may not be terminated, discharged or
released, in whole or in part, irrespective of the termination or expiration of the
term of this Sublease.
SECTION 15. CONDEMNATION.
15.1 Entire Condemnation. If at any time during the term of this Sublease all or
substantially all of the Subleased Premises or the improvements thereon are
taken in the exercise of the power of eminent domain by any sovereign,
municipality or other public or private authority, then this Sublease will terminate
on the date of vesting of title in such taking and any prepaid rent will be
apportioned as of said date. Substantially all of the Subleased Premises will be
deemed to have been taken if the remaining portion of the Subleased Premises
will not be of sufficient size to permit the Iowa Greyhound Association, in the
Iowa Greyhound Association's sole discretion, to operate its business thereon in
a manner similar to that prior to such taking.
15.2 Allocation of Award. Any award for such taking of all or substantially all of
the Subleased Premises will be paid to the parties hereto in accordance with the
following:
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(1) To DRA, the amount of the award attributable to the Subleased
Premises, determined as if this Sublease was not in effect at the time of
such award, excluding therefrom the amount of the award attributable to
the Tenant Improvements, and all other sums not directly attributable to
the value of the Land constituting the Subleased Premises;
(2) To the Iowa Greyhound Association, the balance of the award
remaining after payment of: the portion of the award allocated to DRA
above, and (b) the portion of the award allocated to the City of Dubuque in
accordance with the terms and provisions of the lease agreement
between the City of Dubuque and DRA for the Subleased Premises.
15.3 Partial Condemnation.
(1) If less than all or substantially all of the Subleased Premises or the
improvements thereon are taken in the exercise of the power of eminent
domain by any sovereign, municipality or other public or private authority,
then the Iowa Greyhound Association, at its option, may elect to continue
this Sublease in full force and effect or terminate this Sublease. If the
Iowa Greyhound Association elects to maintain this Sublease in full force
and effect, the award for such partial condemnation will be allocated as
provided in Section 15.2, and the Iowa Greyhound Association must
proceed with reasonable diligence to carry out any necessary repair and
restoration so that the remaining improvements and appurtenances must
constitute a complete structural unit or units which can be operated on an
economically feasible basis under the provisions of this Sublease. In the
event the Iowa Greyhound Association elects to continue this Sublease in
full force and effect after a partial condemnation, the Base Rent will be
reduced in proportion to the area of the Subleased Premises taken.
(2) Should the Iowa Greyhound Association elect to terminate this
Sublease upon a partial condemnation, the Iowa Greyhound Association
must provide DRA with written notice of such election within thirty (30)
days after the date of vesting of title for such taking. The Iowa Greyhound
Association must specify in such written notice the date on which this
Sublease will terminate, which date may be not less than 60 days nor
more than 360 days after delivery of such notice to DRA (the "Termination
Date"). In the event the Iowa Greyhound Association terminates this
Sublease, as provided for in this Section 15.3, the Iowa Greyhound
Association will be entitled to the entire award for such partial taking.
15.4 Temporary Taking. If the temporary use of the whole or any part of the
Subleased Premises or the appurtenances thereto is taken at any time during
the term of this Sublease in the exercise of the power of eminent domain by any
sovereign, municipality, or other authority, the term of this Sublease will not be
Page 16
reduced or affected in any way, and the Iowa Greyhound Association must
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 the Iowa Greyhound
Association, and the entire award for such temporary taking will be paid to the
Iowa Greyhound Association. Iowa Greyhound Association must repair and
restore any and all damage to the Subleased Premises and the Improvements
as soon as reasonably practicable after such temporary taking.
SECTION 16. ASSIGNMENT AND SUBLETTING. Iowa Greyhound
Association may not assign any of its rights, duties or obligations under this
Sublease, in whole or in part, to any other person, firm, corporation or entity
without the prior written consent of (a) DRA's Board of Directors, (b) the City of
Dubuque, and (c) the Iowa Racing and Gaming Commission.
SECTION 17. DEFAULT.
17.1 DRA's Rights in the Event of the Iowa Greyhound Association's Default. If
the Iowa Greyhound Association materially fails or neglects to observe, keep or
perform any of the covenants, terms or conditions contained in this Sublease on
its part to be observed, kept or performed, and the default must continue for a
period of thirty (30) days after written notice from DRA setting forth the nature of
the Iowa Greyhound Association's default, then and in any such event, DRA has
the right at its option, on written notice to the Iowa Greyhound Association, to
terminate this Sublease. DRA thereafter has the right to enter and take
possession of the Subleased Premises, including but not limited to Furniture,
Furnishings, Fixtures, Equipment, Intangible Property and Inventory, and to
remove all other personal property from the Subleased Premises and all persons
occupying the Subleased Premises and to use all necessary and legal force
therefor and in all respects to take the actual, full and exclusive possession of
the Subleased Premises and every part of the Subleased Premises as of DRA's
original estate, without incurring any liability to the Iowa Greyhound Association
or to any persons occupying or using the Subleased Premises for any damage
caused or sustained by reason of such entry on the Subleased Premises or the
removal of persons or property from the Subleased Premises. DRA has all other
rights available to it provided by law or equity.
17.2 Iowa Greyhound Association's Rights in the Event of DRA's Default. If
DRA materially fails or neglects to observe, keep or perform any of the
covenants, terms or conditions contained in this Sublease on its part to be
observed, kept or performed, and the default continues for a period of thirty (30)
days after written notice from the Iowa Greyhound Association setting forth the
nature of DRA'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 DRA has to cure the same will 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, the Iowa Greyhound
Page 17
Association will have all rights available to it provided by law or equity.
SECTION 18. RIGHT TO CURE OTHER'S DEFAULTS.
Whenever and as often as a party fails or neglects to comply with and perform
any term, covenant, condition or agreement to be complied with or performed by
such party hereunder, then, following thirty (30) days' prior written notice to such
defaulting party (or such additional time to cure as may be accorded the DRA
pursuant to Section 17.2 above, but in no event longer than ninety (90) days),
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
Subleased Premises, 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 must 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 will not be deemed to obligate such other party
to complete the curing of any term, covenant, condition or agreement which is in
default. Either party, upon giving twenty (20) days' written notice to the other,
may offset amounts due to the other party for any amounts the notifying party
pays or incurs hereunder proper the obligation of the other party to whom such
notice is sent.
SECTION 19. QUIET ENJOYMENT.
DRA covenants that at all times during the term of this Sublease, so long as the
Iowa Greyhound Association is not in default hereunder, the Iowa Greyhound
Association's quiet enjoyment of the Subleased Premises or any part thereof will
not be disturbed by any act of DRA, or of anyone acting by, through or under
DRA.
SECTION 20. ESTOPPEL CERTIFICATES.
Each party hereto agrees that at any time and from time to time during the term
of this Sublease, within ten (10) days after request by the other party hereto or
by any lender having an interest in the Iowa Greyhound Association's leasehold
estate, it will execute, acknowledge and deliver to the other party or to such
lender or any prospective purchaser, assignee or any mortgagee designated by
such other party, a certificate stating (a) that this Sublease is unmodified and in
force and effect (or if there have been modifications, that this Sublease is in
force and effect as modified, and identifying the modification agreements), (b)
the date to which rent has been paid, (c) whether or not there is any existing
default by the Iowa Greyhound Association in the payment of any rent or other
Page 18
sum of money hereunder, and whether or not there is any other existing default
by either party hereto with respect to which a notice of default has been served,
and, if there is any such default, specifying the nature and extent thereof; and (d)
whether or not there are any setoffs, defenses or counterclaims against
enforcement of the obligations to be performed hereunder existing in favor of the
party executing such certificate.
SECTION 21. WAIVER.
No waiver by either party hereto of any breach by the other of any term,
covenant, condition or agreement herein and no failure by any party to exercise
any right or remedy in respect of any breach hereunder, will 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 the other party in respect of any such
subsequent breach, nor will the receipt of any rent, or any portion thereof, by
DRA, operate as a waiver of the rights of DRA to enforce the payment of any
other rent then or thereafter in default, or to terminate this Sublease, or to
recover the Subleased Premises, or to invoke any other appropriate remedy
which DRA may select as herein or by law provided.
SECTION 22. SURRENDER.
The Iowa Greyhound Association must, upon the earliest to occur of the
following: on the last day of the initial term without renewal, the expiration of the
renewal term, or upon any termination of this Sublease, surrender and deliver up
the Subleased Premises, with the Improvements and fixtures then located
thereon into the possession and use of DRA, without fraud or delay and in good
order, condition and repair, reasonable wear and tear excepted, 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 Sublease and those, if any, created by
DRA, without any payment or allowance whatsoever by DRA to Iowa Greyhound
Association on account of or for any buildings or improvements erected or
maintained by DRA or Iowa Greyhound Association on the Subleased Premises
or for the contents thereof or appurtenances thereto, unless agreed to in a
writing duly executed by both parties. No holdover is allowed.
SECTION 23. MEMORANDUM OF LEASE.
Each of the parties hereto will, promptly upon request of the other, execute a
memorandum of this Sublease in a form suitable for recording setting forth the
names of the parties hereto and the term of this Sublease, identifying the
Subleased Premises, and also including such other clauses therein as either
party may desire.
SECTION 24. NOTICES.
Page 19
24.1 All notices, demands or other writings in this Sublease provided to be
given or made or sent, or which may be given or made or sent, by either party to
the other, will 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 by email or facsimile addressed as follows:
To DRA:
Dubuque Racing Association, Ltd.
Attn: Jesus Aviles, President & CEO
1855 Greyhound Park Road
Dubuque, IA 52001
In all cases, with copy to:
Stephen C. Krumpe
O'Connor & Thomas, P.C.
700 Locust Street, Suite 200
Dubuque, IA 52001
To City of Dubuque, Iowa:
Attn: City Manager
City Hall
13th St. & Central Ave.
Dubuque, IA 52001-4864
Facsimile: 563-589-4149
Email:
To Iowa Greyhound Association:
Attn: Bob Hardison
19149 Hwy 175
Onawa, IA 51040
In all cases, with copy to:
Crawford & Mauro Law Firm
Attn: Jerry Crawford
1701 Ruan Center
Des Moines, Iowa 50315
Facsimile: 515-245-5421
24.2 The address and/or facsimile number to which any notice, demand or
Page 20
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 25. MISCELLANEOUS.
25.1 Time of the Essence. Time is of the essence of this Sublease and all of
its provisions.
25.2 Governing Law/Severability. It is agreed that this Sublease will be
governed by, construed and enforced in accordance with the laws of the State of
Iowa, and that, except as provided in Section 1.2 herein, any litigation between
the parties arising out this Sublease must be brought and maintained only in the
Iowa District Court for Dubuque. This Sublease shall be interpreted and
construed to comply with Iowa Racing and Gaming Commission rules and
regulations relating to live pari-mutuel greyhound racing, pari-mutuel wagering on
simultaneously telecast horse or dog races, and land-based casino gambling,
and all other applicable Iowa laws and regulations. This Sublease may be
amended from time to time in accordance with Section 25.4, below, in order to
comply with such laws and Iowa Racing and Gaming Commission rules and
regulations.
25.3 Paragraph Headings. The titles to the paragraphs of this Sublease are
solely for the convenience of the parties and may not be used to explain, modify,
simplify or aid in the interpretation of the provisions of this Sublease.
25.4 Modification of Agreement. Any modification of this Sublease or
additional obligation assumed by either party in connection with this Sublease
will be binding only if evidenced in a writing duly executed by each party or an
authorized representative of each party, and approved in writing by the entities
listed in Section 11, herein.
25.5 Parties Bound. This Sublease is binding on and inures to the benefit of
and must apply to the respective successors and assigns of DRA and the Iowa
Greyhound Association. All references in this Sublease to "DRA" or "the Iowa
Greyhound Association" will be deemed to refer to and include successors and
assigns of DRA or the Iowa Greyhound Association without specific mention of
such successors or assigns.
25.6 Force Majeure. In the event that either party hereto is delayed or
hindered in or prevented from the performance of any act required hereunder by
reason of strikes, lockouts, labor troubles, unavailability of construction materials,
unavailability or excessive price of fuel, power failure, riots, insurrection, war,
terrorist activities, explosions, hazardous conditions, fire, flood, 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 Sublease (collectively "Force Majeure"), then performance of such
Page 21
act will be excused for the period of the delay and the period for the performance
of any such act will be extended for a period equivalent to the period of such
delay.
25.7. Conflict of Interest. Iowa Greyhound Association agrees that no officer,
director, or employee of DRA who exercises or has exercised any functions of
responsibility with respect to the Subleased Premises shall have any interest,
direct or indirect, in any contract or subcontract, or the proceeds thereof, in any
contracts awarded by Iowa Greyhound Association for work to be performed or
services to be provided to Iowa Greyhound Association in connection with the
Subleased Premises at any time during such person's tenure.
25.8. Non -Discrimination. The Iowa Greyhound Association agrees that it will at
all times conduct operations on the Subleased Premises for use by the general
public without regard to race, color, age, disability, creed, religion, national origin,
sex, or other legally protected category; provided, however, that the Iowa
Greyhound Association may prepare and promulgate rules for the purpose of
regulating the admission of persons for the purpose of conducting live dog
racing, pari-mutuel wagering on live dog races and simultaneously telecasting
horse or dog races in accordance with the regulations of the Iowa Racing and
Gaming Commission.
[SIGNATURE PAGES AND CONSENTS FOLLOW]
Page 22
IOWA GREYHOUND ASSOCIATION, SUBLESSEE:
BY:
Bob Hardison
President
Date:
DUBUQU
B :
CNG ASSOCIATION, LTD., SUBLESSOR:
esus Avi es
President & CEO
Date:
STATE OF IOWA,
41.\
On this \ct, day of kt) 20 \L-1, before me, a Notary Public in
and for said county and state, personally appeared , to
me personally known, who stated that he is the V.),)-,,i_dr,„ of Iowa
Greyhound Association, and who acknowledged the execution hereof to be his
voluntary ac�nd deed and the voluntary act and deed of said corporation.
COUNTY ss:
LL
cU
,
Noti ublic, State pf Iowa
STATE OF IOWA, DUBUQUE COUNTY ss:
On this i day of NOVE,n3a, 20 111 before me, a Notary Public in
and for said county and state, personally appeared „56.1),-.5 fivac-,5 , to
me personally known, who stated that he is the FF6b)3Q6\rs- C20 of
Dubuque Racing Association, Ltd., and who acknowledged the execution hereof
to be his voluntary act and deed and the voluntary act and deed of said
corpo ation.
ANC
n Nurnber7Nlaii:
y lop
2015
Aci.Qte
L.
Notary Publi , State of Iowa
Page 23
TRACEY L. STECKLEU$
Commission Number 71601e
My Comm Exp.
CITY OF DUBUQUE, IOWA CONSENT TO SUBLEASE
The City of Dubuque, Iowa, as the owner and lessor of the Subleased
Premises to the Dubuque Racing Association, LTD. hereby consents to the
Sublease Agreement Between Dubuque Racing Association, LTD., as
Sublessor, and Iowa Greyhound Association, as Lessee, dated
000, n , 2014.
CITY OF DJJBUQUE, IOWA
Attest:
D. Buol, Mayor
STATE OF IOWA, COUNTY OF DUBUQUE ss:
On this °day of N o L.) & k(.4 20 / , before me, the undersigned, a
Notary Public in and for the State of Iowa, personally appeared Roy D. Buol and
Kevin S. Firnstahl, to me personally known, who, being by me duly sworn, did
say that they are the Mayor and City Clerk, respectively, of the City of Dubuque,
Iowa; a municipal corporation; that the seal affixed to the foregoing instrument is
the corporate seal of the corporation, and that the instrument was signed and
sealed on behalf of the corporation, by authority of its City Council, as contained
in Resolution No. ,,:j€7) - t L -f passed by the City Council on the d J . i y
and Roy D. Buol and Kevin S. Firnstahl acknowledged the execution of the
instrument to be their voluntary act and deed and the voluntary act and deed of
the corporation, by it voluntarily executed.
Cf1167<day
Notary Public, State of Iowa
Page 24
45",
TH—T'r--IL. QL ASON
,` F �,r' emission Number 719986
My Commission Expires
AMERICAN TRUST & SAVINGS BANK CONSENT TO SUBLEASE
American Trust & Savings Bank, as lender and representative of lender(s) of the
Dubuque Racing Association, Ltd., and as mortgagor and secured creditor with respect
to the Subleased Premises, hereby consents to the Sublease Agreement Between
Dubuque Racing Association, LTD., as Sublessor, and Iowa Greyhound Association, as
Sublessee, dated OCTOBER 29 , 2014.
AMERICAN TRUST & SAVINGS BANK
i)
VICTORIA J. RICHT
SENIOR VICE PRESIDENT
STATE OF IOWA, DUBUQUE COUNTY ss:
On this 1ST day of DECEMBER' 201 , 4 before me, a Notary Public in and for
l
said county and state, personally appeared v r ORIA J. RICHTER , to me personally
DENT.
known, who stated that he is the SRVICE PREsiof American Trust & Savings
Bank, and who acknowledged the execution hereof to be his voluntary act and deed
and the voluntary act and deed of said corporation.
„it AO 4/Air_
Notary Pu n( , State of Iowa
Page 25
-
EMILY MIDDENDORF
Commission Number 770269_
My Comm. Exp. &Aft&
EXHIBIT A
SUBLEASED PREMISES
Page 26
2ND FLOOR
1111111111111
1111111111111111
3RD FLOOR
ACCESS TO ROOF
1303
1304
1305
1306
1307
-DRAFT DISCUSSION ONLY -
EXHIBIT B
AERIAL DIAGRAM OF AREA
LEASED BY CITY OF DUBUQUE TO IGA
-DRAFT FOR DISCUSSION ONLY-
THE CITY OF
EXHIBIT
_8_
Masterpiece on the Mississippi
Iowa Gre houn
Association Lease Area Ma
�AGIN)
Mages aMa .:paMPYC afMala% atttln
ALONG EXISTING
FENCE LINE
ALONG EXISTING
FENCE LINE
POINT OF
INGRESS/EGRESS
POINT OF
INGRESS/EGRESS
EXIST.
HVAC
EQUIP.
EXCEPTION:
EXIST. SHOP
BUILDING
POINT OF
INGRESS/EGRESS
POINT OF
INGRESS/EGRESS
ALONG EXISTING
FENCE LINE
EXIST.
HVAC
EQUIP.
SCIA3MCR: This Information was compiled
sing the Dubuque Area Geographic Informanen System
ALIS). which includes date created by both the City of
buque and Dubuque County. It is understood that, while
• City of Dubuque and participating agencies waling the
ort current and accurate Infamanon avagabI., OAGIS and
suppliers de not w.rnnt the accuracy or currency of the
felmanon or data contained herein. The City and partcipatag
.odes .hall not b. held Moble for any 01,001, Indl,0tt, incidental,
aguenn.l, punitive, .r .pedal damages, whether lonaee.bla or
foreseeable. arising out a1 the authorised or unauthorised un of
n data or the 'nobility to use this data or out of any brash 01
•
ALONG EXISTING
1,; BUILDING LINE j
• 414 >0
ALONG EXISTING
FENCE LINE
ALONG
EXISTING
CURB LINE
EXIST. GATE
POINT OF
INGRESS/EGRESS
ALONG CENTER-
LINE OF EXISTING
DRIVEWAY
ALONG
EXISTING
FENCE
EXISTING
DRA
LEASE
BOUNDARY
1 inch = 150 feet
150 75 0
150 Feet VV
LEASE AREA
Map Prepared by:
City of Dubuque
Engineering Division
50 West 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4270
Fax (563) 589-4205
PnatPate 49-17-2014
EXHIBIT C
INSURANCE SCHEDULE A
Page 31
City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or
Vendors (Suppliers, Service Providers), and Right of Way Permit Holders
Insurance Schedule A
shall furnish a signed Certificate of Insurance (COB to the City of Dubuque, Iowa for
the coverage required in Exhibit I prior to contract or lease commencement All lessees of City property
acid Right of Way Permit Holders shall submit an updated COI annually, Each Certificate shall be prepared
on the most current ACORD form approved by the Department of Insurance or an equivalent, Each
certificate shall include a statement under Description of Operations as to why issued Eg: Project
X or tease of premises at or construction of or right of way
permitted location and description
2. AO policies of insurance required hereunder shall be with a carrier authorized to do business in Iowa and
all carriers shall have a rating of A or better in the current A.M. Best's Rating Guide,
3. Each Certificate shall be furnished to the contracting department of the City of Dubuque.
4. failure to provide minimum coverage shall not be deemed a sva fuer of these requirements by the Crty of
Dubuque.. Failure to obtain or maintain the required insurance shad be considered a material breach of
this agreement
5. All required endorsements to various policies shall be attached to Certificate of insurance.
6. Whenever a specific ISO form is listed, an equivalent form may be substituted subject to the provider
identifying and fisting in writing ail deviations and eat kions that differ from the ISO forrn.
7. Provider shad be required to carry the minimum coverage/limits, or greater if required by law or othe
legal agreement, in Exhibit 1.
O. Whenever an 150 form is referenced the current edition of the form must be used
Page t of 3 Schedule A, Property Or Vendors (Supplier, Service Prnviders)
Page 32
City of Dubuque insurance Requirements for Tenants and Lessees of City Property or
Vendors (Suppliers, Service Providers), and Right of Way Permit Holders
nsurance Schedule A continued
Exhibit
A) COMMERCIAL GENERAL meturr
General Aggregate Limit $2,000,000
Products -Completed Operations Aggregate Limit $1,000,000
Personal and Advertising injury Limit
Each Occurrence
Fire Damage I unit (aro-y nrcurrgmcc;) $ sosann
Medical Payments $ 5/100
a) Coverage shall be written on an rxcurrence, not ciamis matte, form. All deviations f0;11 the
standard ISO commercial general liability form CG 0001, or Business owners form (IP 0002,
shall be clearly identified.
b) Include ISO endorsement form CG 25 04 'Designated Lotation(s) General AreaW Limit'
c) Include endorsement indicating that coverage is primary and non-contributore„
cl) Include endorsement to preserve Governmental immunity, (Sample attached).
el Include an endorsement that deletes any fellow employee exclusion
f) include additional insured endorsement for:
The City of Dubuque, including all its elected and appointed offieials, all its employees
and volunteers, all its boards, commissions and/or authorities and their board members,
employees and volunteers. Use LSO form CG 20 10, (Ongoing operations).
g)f vendor utilizes Trikkes or Segarays in the conduct of business, Include an endorsement
reflecting that these vehicles are not excluded from Commercial General Liability coverage.
13) WORKERS" COMPENSATION & EMPLOYERS LiAsuirt
Statutory benefits covering ail employees irilured on the lob by accident or disease as prescribed by
Iowa Code Chapter 85 as amended.
Coverage A Satuory—!tabe of Iowa
Coverage 8 Employers Lialsility
Each Accident Sloo,000
Each Employee-DIsease $100,000
Policy Limit -Disease $500,000
Policy shall include an endorsement providing a waiver of subrogation to the City of Dubuque.
C) UMBRELLA LIABILITY $s,o
;
Page 2 of 3 Schedule A, Property Or Vendors (Suppliers, Service Providers)
Page 33
City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or
Vendors (Suppliers, Service Providers), and Right of Way Permit Holders
Preservation of Govern ental Immunities Endorsement
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. CI 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 leave 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 G 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. .n.I nia of Cover e. The insurance carrier s II not deny cover.e under this poky and the
insurance carrier shall not deny any of the rights and beneftts 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
Page 3 of 3 Schedule A, Property Or Vendors /Suppliers, ServiceAnders)
Page 34
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
IOWA GREYHOUND ASSOCIATION
THIS LEASE AGREEMENT (the Lease), dated for reference purposes the
day of 2014, is made and entered into by and between the City of
Dubuque, an Iowa municipal corporation, (Lessor or City) and Iowa Greyhound
Association, an Iowa not for profit corporation (Lessee).
RECITALS
Whereas, Lessor is the owner of the real estate and improvements thereon
described on Exhibit A attached hereto and by this reference made a part hereof (real
estate and improvements collectively the "Demised Premises"); and
Whereas, Lessor desires to lease the Demised Premises to Lessee to conduct
live dog racing, pari-mutuel wagering on live dog races and simultaneously telecast
horse or dog races; and
Whereas, Lessee desires to lease the Demised Premises from Lessor for such
use; and
Whereas, Lessor and Lessee desire to enter into this Lease in connection with
therewith.
Therefore, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree upon the following mutual terms and
conditions:
SECTION 1. DEMISE AND TERM; RENT.
1 .1 Initial Term.
(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 Demised Premises, subject to any easements and
restrictions of record, for an Initial Term of five years commencing on the 15t day
of January, 2015, and ending on the 31 sc day of December, 2019, subject to all of
the terms, covenants, conditions and agreements contained herein.
(2) Lessee must pay Lessor (in addition to taxes, fees, assessments, and
other charges required to be paid under this Lease by Lessee) rent for the
Demised Premises in the amount of $1 .00 per year on January 1 , 2015 and on
102914ba1
the first day of January of each year thereafter during the Initial Term.
1 .2 Renewal Term.
(1) Lessee will have a single option to renew this Lease for an additional five
years commencing on the 1 sc day of January, 2020, and ending on the 31 sc day of
December, 2024 at a fair market rental rate in addition to taxes, fees,
assessments, and other charges required to be paid under this Lease by Lessee.
(2) If the parties are unable to reach agreement on the fair market rental rate
for purposes of the one five-year lease renewal by June 30, 2018, if Lessee
requests arbitration concerning the renewal by June 18, 2018, the disputed terms
of the Lease will be determined by binding arbitration in accordance with the
rules of the American arbitration association as of the date for arbitration. A
request for arbitration must be in writing and a copy of the request must be
delivered to the other party. The parties will each select one arbitrator and the
two arbitrators will choose a third arbitrator to complete the three-person
arbitration panel. Each party will deliver its final offer on each of the disputed
items to the other party within fourteen days after the request for arbitration. After
consultation with the parties, the arbitrators will set a time and place for an
arbitration hearing. The parties may continue to negotiate all offers until an
agreement is reached or a decision is rendered by the arbitrators. For purposes
of determining the fair market rental rate for purposes of the one five-year lease
renewal, either party may argue, and present arguments and evidence, that the
renewal lease rental rate should be based upon the market value of similarly
situated undeveloped land, or upon its use as a greyhound track. The submission
of the disputed items to the arbitrators will be limited to those items upon which
the parties have not reached agreement. However, the arbitrators have no
authority to extend the term of the lease beyond the initial five-year term or the
one five-year renewal.
(3) The arbitrators must render a decision within fifteen days after the hearing.
The arbitrators will give written explanation for the decision and the decision of
the arbitrators is final and binding on the parties, and any decision of the
arbitrators may be entered in any court having competent jurisdiction. The
decision by the arbitrators and the items agreed upon by the parties will be
deemed to be the lease between the parties and such final lease is not subject to
the approval of the governing body of the city of Dubuque, the Iowa greyhound
association, the Iowa Racing and Gaming Commission, or any other government
body. Each party to the arbitration will bear its own expenses, including attorney
fees, and the parties will share equally the filing and other administrative fees of
the American arbitration association and the expenses of the arbitrators.
1 .3 Lessee acknowledges and agrees that it is the intent of the parties that Lessor
must not incur any costs related in any way to the financing, purchase, lease or
operation of the Demised Premises which are not paid for or reimbursed by Lessee as
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rent or otherwise.
SECTION 2. LESSEE'S OBLIGATIONS. In addition to all other Lessee obligations
set forth in this Lease, this Lease is contingent upon the following:
(1) Lessee obtaining and maintaining a license pursuant to the requirements
of Iowa Code § 99D.9A.
(2) Employees at the racetrack enclosure involved in pari-mutuel wagering as
of the live racing cessation date, as provided in section 99D.9A, must be offered
employment by the Iowa greyhound association at the racetrack with such
employment beginning January 1 , 2015.
(3) Existing collective bargaining agreements concerning employees at the
racetrack must be honored by Lessee.
(4) Live dog racing requirements. Lessee must conduct, for calendar year
2015, no fewer than sixty live race days with nine live races per day during the
racing season, and for calendar year 2016 and subsequent calendar years
covered by the lease, no fewer than ninety-five live race days with nine live races
per day during each racing season. However, upon mutual agreement by the
parties subject to approval by the commission, the number of race days for one
or more live racing seasons may be reduced so long as the Iowa greyhound
association conducts a minimum number of live races and racing days during
that season. Lessor may terminate this Lease as it pertains to the portion of the
Demised Premises utilized for live racing on January 1 of the year following the
calendar year in which such live dog racing was not conducted by Lessee. This
Lease will remain in affect regarding the portion of the Demised Premises Lessee
utilizes for simulcasting pursuant to the Sublease with Dubuque Racing
Association executed in connection herewith provided Lessee remains licensed
to operate simulcasting pari-mutuel wagering in Iowa.
SECTION 3. TITLE TO TRADE FIXTURES, FURNITURE, FURNISHINGS,
FIXTURES & EQUIPMENT, INTANGLIBLE PROPERTY AND INVENTORY;
SUBSTITUTION.
3.1 Trade Fixtures. Trade Fixtures means all of Lessee's personal property located
on the Demised Premises used in Lessee's business. Title to Lessee's Trade Fixtures
is and must be the sole and exclusive property of Lessee during the term of this Lease.
Lessor acknowledges and understands that it has no right, title or interest in or to
Lessee's Trade Fixtures during the term of this Lease. Lessor acknowledges and
agrees that Lessee has 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, in Lessee's sole discretion if the same can
be accomplished without damage to the Demised Premises. Upon ten (10) days' prior
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written notice to Lessor, Lessor must execute and deliver to Lessee a certificate in
recordable form prepared by Lessee 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.
3.2 Lessor leases to Lessee during the Term the Furniture, Furnishings, Fixtures and
Equipment on the Demised Premises owned by Lessor at the time of possession by
Lessee. Furniture, Furnishings, Fixtures and Equipment means all furniture, fixtures,
equipment and other personal property owned by Lessor and constituting a part of,
used in connection with or available for use in connection with the Demised Premises,
including all equipment and property Lessor currently utilizes or allows to be utilized by
the Dubuque Racing Association for the operation of live and simulcast racing, but not
including the following:
[DRA to provide list]
3.3 Disposal of Furniture, Furnishings, Fixtures and Equipment. Lessee will have the
right, from time to time, during the term of this Lease, to sell or otherwise dispose of any
Furniture, Furnishings, Fixtures and Equipment situated on the Demised Premises,
when in the judgment of the Lessee it has become obsolete, outworn or unnecessary in
connection with the Leased Premises, provided, however, that Lessee must, in such
instances (unless no substituted article or item is necessary) at its own expense,
substitute for such items of Furniture, Furnishings, Fixtures and Equipment so sold or
otherwise disposed of, a new or other item in substitution thereof, in like value and
adapted to the use of the Demised Premises.
SECTION 4. ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST.
4.1 Lessee's Right to Encumber Leasehold Interest. Only with the prior written
consent of Lessor, in Lessor's sole discretion, may Lessee encumber by mortgage,
deed of trust or other proper instrument, its leasehold interest and estate in the Demised
Premises, as security for any indebtedness of Lessee, and provided that no such
encumbrance may extend beyond the term of this Lease. Lessee must provide prompt
written request to Lessor of any such proposed encumbrance together with a copy of
such encumbrance. In the event of any judicial or nonjudicial foreclosure under any
mortgage, deed of trust or other similar instrument made by Lessee covering its
leasehold interest in the Demised Premises, Lessor must, upon such foreclosure or
sale, recognize the purchaser thereunder as Lessee under this Lease, provided such
purchaser expressly agrees in writing to be bound by the terms of this Lease.
4.2 Notice to Holder of Encumbrance: Right of Holder to Cure Lessee's Default. If
Lessee encumbers its leasehold interest and estate in the Demised Premises and if
Lessee, or the holder of the indebtedness, its successors and/or assigns (the "Holder")
secured by the encumbrance gives notice to Lessor of the existence of the
encumbrance and the address of the Holder, then Lessor will mail or deliver to the
Holder, at such address, a duplicate copy of all notices in writing which Lessor may,
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from time to time, give or serve on Lessee under and pursuant to the terms and
provisions of this Lease. The copies must be mailed or delivered to the Holder at, or
near as possible to, the same time the notices are given to or served on Lessee. The
Holder may, at its option, at any time before the rights of Lessee are terminated as
provided in this Lease, pay any of the rents due under this Lease or pay any taxes and
assessments, or do any other act or thing required of Lessee by the terms of this Lease,
or do any act or thing that may be necessary and proper to be done in the observance
of the covenants and conditions of this Lease or to prevent the termination of this
Lease; provided, however, that the doing of any act or thing requiring possession of the
Demised Premises is subject to the further rights of Holder as set forth in Section 17.2.
All payments so made and all things so done and performed by the Holder are effective
to prevent a foreclosure of the rights of Lessee thereunder as the same would have
been if done and performed by Lessee.
4.3 Mechanic's Liens. Neither Lessee nor anyone claiming by, through, or under
Lessee may file or place any mechanic's lien upon the Demised Premises and notice is
hereby given that no contractor, subcontractor, or anyone else who may furnish any
material, service or labor for any building, improvement, alteration, repair or any part
thereof, may at any time be or become entitled to any lien thereon, and for the further
security of Lessor, Lessee covenants and agrees to give actual notice thereof in
advance, to any and all contractors and subcontractors who may furnish or agree to
offer any such material, service or labor.
SECTION 5. TAXES AND FEES.
5.1 . Lessee agrees to pay all real estate taxes levied upon the real estate of the
Demised Premises as provided for in its Sublease with the Dubuque Racing Association
executed in connection herewith that become payable (as such taxes come due) during
the term hereof and which would become delinquent if not so paid during the term
hereof.
5.2. During the term of this Lease, Lessee agrees to pay any and all other taxes, fees
(including but not limited to stormwater fees), 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 the
Demised Premises as provided for in its Sublease with Dubuque Racing Association
executed in connection herewith and which become payable during the term hereof and
which would become delinquent if not so paid during the term hereof, 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 the Demised
Premises during the term hereof and which become payable during the term hereof
and which would become delinquent if not so paid during the term hereof, and all such
other taxes, rates, charges, levies and assessments must be paid by Lessee as they
become due and before they become delinquent during the term hereof.
5.3. Lessee agrees to timely pay all taxes, assessments or other public charges
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levied or assessed by lawful authority (but reasonably preserving Lessee's rights of
appeal) against the Trade Fixtures, Furniture, Furnishings, Fixtures and Equipment on
the Demised Premises, during the term of this Lease.
5.4. Nothing herein requires Lessee to pay any of Lessor's income taxes, surtaxes,
excess profit taxes or any taxes on the rents or otherwise reserved to Lessor hereunder.
5.5. Lessee has at all times 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, is disputed with respect to the Demised Premises. 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 must 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 6. UTILITIES. Lessee must pay, before delinquency, all charges related to
communications systems and services, telephone, cable, Internet, water, wastewater,
stormwater, sewer, gas, heat, electricity, power, trash disposal, and not limited by the
foregoing list, all other utilities and services of whatever kind and nature which may be
used in or upon the Demised Premises in accordance with the terms of its Sublease
with Dubuque Racing Association executed in connection herewith.
SECTION 7. CONDITION OF DEMISED PREMIES AND REPAIRS. Lessee has
made an adequate inspection of the Demised Premises and accepts same "As Is."
Lessor makes no warranties or representations regarding the condition of the Demises
Premises unless otherwise specifically stated herein. Lessee must at all times during
the term of this Lease, at Lessee's expense, keep the Demised Premises, and all
sidewalks, curbs, and all appurtenances to the Demised Premises, in good order,
condition and repair, casualties and ordinary wear and tear excepted. Lessee must
keep and maintain the Demised Premises in a condition consistent with other similarly
classed operations. Lessee must 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 must be interior or exterior, and whether or not such
repair must be of a structural nature. Upon reasonable notice to Lessee, Lessor may, at
its discretion and at its cost, conduct an annual inspection of the Demised Premises to
determine Lessee's compliance with this Section 7.
SECTION 8. COMPLIANCE WITH LAW.
8.1 During the term of this Lease, Lessee must comply with all local, state and
federal laws applicable to Lessee's use of the Demised Premises, including but not
limited to the Americans with Disabilities Act and the Iowa Smoke Free Air Act.
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8.2 Lessee may not commit waste on the Demised Premises except as necessary
for its business purposes including the removal or construction of any buildings and
Improvements on the Demised Premises, and is liable for any damages to or
destruction of any buildings or improvements on the Demised Premises resulting from
waste and will repair or rebuild such buildings or improvements. Lessee may remove
existing improvements or construct new improvements on the Demised Premises
subject to all of the terms and conditions of this Lease provided Lessee has received
the prior approval of Lessor.
SECTION 9. ALTERATIONS. Lessee may, with Lessor's prior written consent if
granted in Lessor's sole discretion, to make any alteration, addition, or modification to
the Demised Premises ("Lessee Improvements") that equals or exceeds Ten Thousand
and 00/100 Dollars ($10,000.00) in cost, at Lessee's expense, from time to time during
the term of this Lease. Any alteration, addition or modification of the Demised Premises
by Lessee at a cost of less than Ten Thousand and 00/100 Dollars ($10,000.00) does
not require Lessor's consent, but must be made solely at Lessee expense and only after
not less than sixty (60) days prior written notice to Lessor of such alteration, addition or
modification. Plans and specifications with respect to the Lessee Improvements and
the construction of the Lessee Improvements must be in conformity with all applicable
laws and regulations. Lessee must submit to Lessor, for approval by Lessor, plans,
drawings, specifications, and related documents with respect to the Tenant
Improvements to be constructed by Lessee on the Demised Premises. All work with
respect to the Lessee Improvements must be in substantial conformity with the
construction plans approved by Lessor. All alterations, additions, or modifications to the
Demised Premises must be coordinated with the then-existing improvements on the
Demised Premises and any other Lessee improvements in the general vicinity of the
Demised Premises.
SECTION 10. USE OF DEMISED PREMISES.
10.1 . Lessee must operate the Demised Premises solely for live dog racing, pari-
mutuel wagering on live dog races and simultaneously telecast horse or dog races and
may not knowingly use or allow the Demised Premises or any buildings or
improvements thereon or any appurtenances thereto, to be used or occupied for any or
purpose or any unlawful purpose or in violation of any certificate of occupancy. Lessee
may contract with a subcontractor licensed by the Iowa Racing and Gaming
Commission to assist Lessee's operation of the live and simulcasting racing business.
Lessee may not suffer any act to be done or any condition to exist within the Demised
Premises, or permit any article to be brought therein, which is dangerous, unless
safeguarded as required by law, or which, in law, constitutes a nuisance, public or
private, or which may make void or voidable any insurance in force with respect thereto.
10.2 Lessee must take all reasonable steps to implement a smooth transition from the
current lessee to Lessee, holding Lessor harmless from any claims arising therefrom.
10.3. During the term of this Lease, Lessee may not change the use of the Demised
Premises.
10.4. Lessee may not cause, allow or permit any outdoor storage of any materials,
objects or things of any kind, including refuse, trash or garbage, at any time on the
Demised Premises. Notwithstanding the foregoing, refuse storage is permissible in an
accessory storage enclosure if the City Manager determines that the structure is in
character with the principal building being served and constructed of the same quality
permanent materials as the principal building being served. The accessory structure
must be within close proximity to the principal building being served. Where the
structure exceeds 200 square feet in area, at least 1/3 of the structure's exterior
perimeter must be landscaped with ornamental trees and shrubs.
SECTION 11. INSURANCE
11 .1 . Lessee must maintain during the term of this Lease insurance as set forth in the
City'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 (Insurance Schedule A) is attached to this Lease as Exhibit B. Lessor must
provide written notice of any amendment to the Insurance Schedule not less than sixty
days prior to the effective date of such amendment.
11 .2. During construction of any Lessee Improvements or other alteration, addition or
modification on the Demised Premises, Lessee must maintain builder's risk insurance,
written on the Special Perils Form in an amount equal to one hundred percent (100%) of
the replacement value of Improvements as the same exists from time to time during the
construction process.
11 .3. Lessee must maintain, or cause to be maintained, at its cost and expense (and
from time to time at the request of City must furnish proof of the payment of premiums
on), property insurance against loss and/or damage to improvements under an
insurance policy written on the Special Perils Form in an amount not less than the full
insurable replacement value of improvements, but any such policy may have a
deductible amount of not more than $50,000.00. No policy of insurance may be so
written that the proceeds thereof will produce less than the minimum coverage required
by the preceding sentence, by reason of co-insurance provisions or otherwise, without
the prior consent thereto in writing by City. The term "replacement value" must mean
the actual replacement cost of improvements (excluding foundation and excavation
costs and costs of underground flues, pipes, drains and other uninsurable items) and
equipment, and will be determined from time to time at the request of City, but not more
frequently than once every three years, and paid for by Lessee.
11 .4. All insurance required by this Section must be taken out and maintained in
responsible insurance companies selected by Lessee which are authorized under the
laws of the State of Iowa to assume the risks covered thereby or Lessee may at its
election self-insure itself pursuant to the aforementioned guidelines. Lessee must
deposit annually by not later than July 1 of each year with City a certificate or
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certificates or binders of the respective insurers stating that such insurance is in force
and effect. Lessee must furnish City evidence satisfactory to City that the policy has
been renewed or replaced by another policy conforming to the provisions of this , or that
there is no necessity therefor under the terms hereof. In lieu of separate policies,
Lessee may maintain a single policy, or blanket or umbrella policies, or a combination
thereof, which provide the total coverage required herein, in which event Lessee must
deposit with City a certificate or certificates of the respective insurers as to the amount
of coverage in force upon Improvements, provided, however, the specific limit may not
be impaired.
11 .5. Lessee agrees to notify City immediately in the case of damage exceeding
$50,000.00 in amount to, or destruction of, the Demised Premises or any portion thereof
resulting from fire or other casualty. Net proceeds of any such insurance (Net
Proceeds), must be paid directly to Lessee, and Lessee must forthwith repair,
reconstruct and restore the 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
must 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 Property.
11 .6. Lessee must complete the repair, reconstruction and restoration of the Demised
Premises, whether or not the Net Proceeds of insurance received by Lessee for such
purposes are sufficient.
SECTION 12. LESSOR'S WARRANTIES AND REPRESENTATIONS. Lessor
covenants and warrants that Lessor is lawfully in possession of the Demised Premises,
and that it has (or will have) full right and authority to enter into this Lease for the full
term hereof. Lessor warrants to Lessee that the Demised Premises are properly zoned
for Lessee's use as contemplated by this Lease.
SECTION 13. LESSEE'S WARRANTIES AND REPRESENTATION
13.1 . Lessee Compliance With Law.
(1) Lessee covenants and agrees that Lessee will comply with all applicable
local, state and federal laws, rules, regulations and permits with regard to the
Demised Premises and its use, occupancy and control of the Demised Premises.
(2) Lessee covenants and agrees that Lessee must be responsible for
obtaining any and all applicable permits, licenses or authorizations as may be
necessary for Lessee's use, occupancy and control of the Demised Premises,
the obtaining thereof being a conditioned precedent to this Lease.
13.2 Environmental Matters.
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(1) Lessee covenants and agrees that Lessor will have no responsibility for or
liability arising from any release of a Hazardous Substance which is caused by or
results from or during Lessee's use, occupancy or control of the Demised
Premises, except for Lessor Hazardous Substances (any Hazardous Substance
which leaches or migrates upon the Demised Premises from any property owned
by Lessor). Lessee may not have any responsibility for any Hazardous
Substance which leaches or migrates upon the Demised Premises from any
adjacent property or any release of a Hazardous Substance which is caused by
Lessor or which pre-exists the date of this Lease, except that Lessee must
cooperate fully with any response to such release by Lessor or others.
(2) Lessee covenants and agrees to notify Lessor promptly of any release of
Hazardous Substance in, on or about the Demised Premises of which Lessee
has knowledge.
(3) Lessee covenants and agrees to promptly take any and all necessary and
appropriate response to address any release of Hazardous Substance for which
Lessee is responsible. Such response must include, without limitation,
notification to appropriate governmental authorities, as may be required by law.
(4) Lessee covenants and agrees not to manufacture, treat or dispose of
Hazardous Substances at the Demised Premises or knowingly allow the
manufacture, treatment, or disposal of Hazardous Substances on the Demised
Premises. Lessee covenants and agrees to use and store any Hazardous
Substances at the Demised Premises only in full accordance with law.
(5) 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 containing
materials in any form or condition, (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.0 § 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.] The term "Hazardous Substance" does not include any air
emissions discharged into the atmosphere as allowed by a duly issued permit
from the applicable governmental agency.
SECTION 14. LESSOR RIGHTS OF ACCESS.
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14.1 . Right of Entry for Utility Service. Lessor reserves for itself, and any public utility
company, as may be appropriate, the unqualified right to enter upon the Project at all
reasonable times for the purpose of reconstructing, maintaining, repairing, or servicing
the public utilities located within the boundary lines of the Demised Premises. Before
entering the Project for any such purpose, reasonable notification of the party's intent to
enter the Project must first be provided to Lessee.
14.2. Lessee Not to Construct Over Utility Easements. Lessee may not construct any
building or other structure or improvements on, over, or within the boundary lines of any
easement for public utilities unless such construction is provided for in such easement
or has been approved by Lessor in writing. If approval for such construction is
requested by Lessee, Lessor will use its best efforts to assure that such approval will
not be withheld unreasonably.
SECTION 15. INDEMNIFICATION.
15.1 Indemnification of Lessee. To the extent allowed by law, Lessor will 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 and resulting from any
act or omission of Lessor or anyone acting by, through, or under Lessor, (b) any failure
on the part of Lessor to perform or comply with any of the terms of this Lease and (c)
any breach on the part of Lessor of any warranty or representation contained in Section
12. In case any action, suit or proceeding is brought against Lessee by reason of such
occurrence, Lessor will, at Lessor expense and discretion, either defend such action,
suit or proceeding, or cause the same to be defended by counsel approved by Lessee,
which approval will not be unreasonably withheld.
15.2 Indemnification of Lessor. Lessee will 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 by 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, and (c) any material breach on the part of Lessee of any warranty
or representation contained in Section 13. In case any action, suit or proceeding is
brought against Lessor by reason of such occurrence, Lessee will, at Lessee's expense
and discretion, either defend such action, suit or proceeding, or cause the same to be
defended by counsel approved by Lessor, which approval will not be unreasonably
withheld.
15.3 Survival. The obligations and liabilities under this Section survive and continue in
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full force and effect and may not be terminated, discharged or released, in whole or in
part, irrespective of the termination or expiration of the term of this Lease.
SECTION 16. CONDEMNATION.
16.1 Entire Condemnation. If at any time during the term of this Lease all or
substantially all of the Demised Premises or the improvements thereon are taken in the
exercise of the power of eminent domain by any sovereign, municipality or other public
or private authority, then this Lease will terminate on the date of vesting of title in such
taking and any prepaid rent will be apportioned as of said date. Substantially all of the
Demised Premises will be deemed to have been taken if the remaining portion of the
Demised Premises will not be of sufficient size to permit Lessee, in Lessee's sole
discretion, to operate its business thereon in a manner similar to that prior to such
taking.
16.2 Allocation of Award. Any award for such taking of all or substantially all of the
Demised Premises will 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 Tenant 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.
16.3 Partial Condemnation.
(1) If less than all or substantially all of the Demised Premises or the
improvements thereon are 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 elects to maintain this Lease in full force and effect, the
award for such partial condemnation will be allocated as provided in Section
16.2, and Lessee must proceed with reasonable diligence to carry out any
necessary repair and restoration so that the remaining improvements and
appurtenances must 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, the Base Rent will be reduced in proportion to the area of
the Demised Premises taken.
(2) Should Lessee elect to terminate this Lease upon a partial condemnation,
Lessee must provide Lessor with written notice of such election within thirty (30)
days after the date of vesting of title for such taking. Lessee must specify in such
written notice the date on which this Lease will terminate, which date may be not
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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 16.3, Lessee will be entitled to the entire award for such partial
taking.
16.4 Temporary Taking. If the temporary use of the whole or any part of the Demised
Premises or the appurtenances thereto is 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 will not be reduced or affected in any way, and
Lessee must 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 will be paid to Lessee. Lessee must repair and restore
any and all damage to the Demised Premises and the Improvements as soon as
reasonably practicable after such temporary taking.
SECTION 17. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned
or sublet by Lessee.
SECTION 18. DEFAULT.
18.1 Lessor's Rights in the Event of Lessee's Default. 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, and the default must continue for a
period of thirty (30) days after written notice from Lessor setting forth the nature of
Lessee's default, then and in any such event, Lessor has the right at its option, on
written notice to Lessee, to terminate this Lease. Lessor thereafter has the right to
enter and take possession of the Demised Premises, including but not limited to
Furniture, Furnishings, Fixtures, Equipment, Intangible Property and Inventory, and to
remove all other personal property from the Demised Premises and all persons
occupying the Demised Premises and to use all necessary and legal 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. Lessor has all other
rights available to it provided by law or equity, including recovery of costs (including but
not limited to attorneys' fees) associated with enforcement of this Lease.
18.2 Lessee's Rights in the Event of Lessor's Default. If Lessor 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, and the default continues 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 with a default not susceptible of
being cured with diligence within thirty (30) days, the time within which Lessor has to
cure the same will 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
13
any such event, Lessee will have all rights available to it provided by law or equity
including recovery of costs (including but not limited to attorneys' fees) associated with
enforcement of this Lease.
SECTION 19. RIGHT TO CURE OTHER'S DEFAULTS. Whenever and as often as
a party fails or neglects to comply with and perform any term, covenant, condition or
agreement to be complied with or performed by such party hereunder, then, following
thirty (30) days' prior written notice to such defaulting party (or such additional time to
cure as may be accorded Lessee pursuant to Section 18.1 above, but in no event
longer than ninety (90) days), 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, 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 must 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 will not be
deemed to obligate such other party to complete the curing of any term, covenant,
condition or agreement which is in default. Either party, upon giving twenty (20) days'
written notice to the other, may offset amounts due to the other party for any amounts
the notifying party pays or incurs hereunder proper the obligation of the other party to
whom such notice is sent.
SECTION 20. 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 will not be disturbed by any act
of Lessor, or of anyone acting by, through or under Lessor (except for those rightful acts
in the name of Lessor as a municipal government).
SECTION 21. ESTOPPEL CERTIFICATES. Each party hereto agrees that at any
time and from time to time during the term of this Lease, within ten (10) days after
request by the other party hereto or by any lender having an interest in Lessee's
leasehold estate, it will execute, acknowledge and deliver to the other party or to such
lender or any prospective purchaser, assignee or any mortgagee designated by such
other party, a certificate stating (a) that this Lease is unmodified and in force and effect
(or if there have been modifications, that this Lease is in force and effect as modified,
and identifying the modification agreements), (b) the date to which rent has been paid,
(c) whether or not there is any existing default by Lessee in the payment of any rent or
other sum of money hereunder, and whether or not there is any other existing default by
either party hereto with respect to which a notice of default has been served, and, if
there is any such default, specifying the nature and extent thereof; and (d) whether or
not there are any setoffs, defenses or counterclaims against enforcement of the
obligations to be performed hereunder existing in favor of the party executing such
certificate.
14
SECTION 22. WAIVER. No waiver by either party hereto of any breach by the other
of any term, covenant, condition or agreement herein and no failure by any party to
exercise any right or remedy in respect of any breach hereunder, will 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 the other party in respect of any such subsequent breach, nor will
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 23. SURRENDER. Lessee must, on the last day of the term of this Lease
or upon any termination of this Lease, 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, reasonable wear and tear
excepted, 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. Lessee's Trade Fixtures and other
belongings of Lessee in the Demised Premises (excluding Furniture, Fixtures, Intangible
Property and Equipment) will be and remain the property of Lessee, and Lessee will
have a reasonable time after the expiration of the term of this Lease (not to exceed
thirty (30) days) to remove the same. Furniture, Fixtures, and Equipment must remain
at the Demised Premises as property of Lessor. Such period will not be considered a
holdover. No holdover is allowed.
SECTION 24. MEMORANDUM OF LEASE. Each of the parties hereto will, promptly
upon request of the other, execute a memorandum of this Lease in a 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.
SECTION 25. NOTICES.
25.1 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, will 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 by email or facsimile
addressed as follows:
To Lessor: City of Dubuque, Iowa
Attn: City Manager
City Hall
15
50 West 13th Street
Dubuque, IA 52001-4864
Telephone: 563-589-4110
Facsimile: 563-589-4149
With a copy to: City AttorneX
50 West 13� Street
Dubuque, IA 52001-4864
Telephone: 563-589-4110
Facsimile: 563-589-4149
To Lessee: Iowa Greyhound Association
Attn: Bob Hardison
19149 Hwy 175
Onawa, IA 51040
With a copy to: Crawford & Mauro Law Firm
Attn: Jerry Crawford
1701 Ruan Center
Des Moines, IA 50315
Telephone: 515-245-5420
Facsimile: 515-245-5421
25.2 The address and/or facsimile number 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 26. MISCELLANEOUS.
26.1 Time of the Essence. Time is of the essence of this Lease and all of its
provisions.
26.2 Governing Law. It is agreed that this Lease will be governed by, construed and
enforced in accordance with the laws of the State of Iowa.
26.3 Paragraph Headings. The titles to the paragraphs of this Lease are solely for the
convenience of the parties and may not be used to explain, modify, simplify or aid in the
interpretation of the provisions of this Lease.
26.4 Modification of Agreement. Any modification of this Lease or additional
obligation assumed by either party in connection with this Lease will be binding only if
evidenced in a writing signed by each party or an authorized representative of each
party.
26.5 Parties Bound. This Lease is binding on and inures to the benefit of and must
apply to the respective successors and assigns of Lessor and Lessee. All references in
16
this Lease to "Lessor" or "Lessee" will be deemed to refer to and include successors
and assigns of Lessor or Lessee without specific mention of such successors or
assigns.
26.6 Force Majeure. In the event that either party hereto is delayed or hindered in or
prevented from the performance of any act required hereunder by reason of strikes,
lockouts, labor troubles, unavailability of construction materials, unavailability or
excessive price of fuel, power failure, riots, insurrection, war, terrorist activities,
explosions, hazardous conditions, fire, flood, 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 (collectively "Force
Majeure"), then performance of such act will be excused for the period of the delay and
the period for the performance of any such act will be extended for a period equivalent
to the period of such delay.
[SIGNATURE PAGES FOLLOW]
17
CITY OF DUBUQUE, IOWA IOWA GREYHOUND ASSOCIATION
By:
Roy D. Buol, Mayor Bob Hardison, President
Attest:
Kevin S. Firnstahl, City Clerk
18
EXHIBIT A
DEMISED PREMISES
19
EXHIBIT A
Iowa Grei hound Association Lease Area Ma
EXIST. GATE -
POINT OF
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1 inch = 150 feet
150 0 150 Feet
Map Prepared by
City at Ouanpue
Engnserng t)nnsi0n
50 West 131h SUeet
Dubuque, lows 52001
Pune (5e3) 58S-4270
Fax t5e3) 569-4205
EXHIBIT B
INSURANCE SCHEDULE A
21
City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or
Vendors (Suppliers, Service Providers), and Right of Way Permit Holders
Insurance Schedule A
1. shall furnish a signed Certificate of Insurance(COI)to the City of Dubuque,Iowa for
the coverage required in Exhibit I prior to contract or lease commencement.All lessees of City property
and Right of Way Permit Holders shall submit an updated COI annually.Each Certificate shall be prepared
on the most current ACORD form approved by the Department of Insurance or an equivalent. Each
certificate shall include a statement under Description of Operations as to why issued.Eg: Project
# or Lease of premises at or construction of or right of way
permitted location and description
2. All policies of insurance required hereunder shall be with a carrier authorized to do business in Iowa and
all carriers shall have a rating of A or better in the current A.M.Best's Rating Guide.
3. Each Certificate shall be furnished to the contracting department of the City of Dubuque.
4. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of
Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of
this agreement.
5. All required endorsements to various policies shall be attached to Certificate of insurance.
6. Whenever a specific ISO form is listed,an equivalent form may be substituted subject to the provider
identifying and listing in writing all deviations and exclusions that differ from the ISO form.
7. Provider shall be required to carry the minimum coverage/limits,or greater if required by law or other
legal agreement,in Exhibit I.
8. Whenever an ISO form is referenced the current edition of the form must be used.
Page 1 of 3 Schedule A,Property Or Vendors(Suppliers,Service Providers)
22
City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or
Vendors (Suppliers, Service Providers), and Right of Way Permit Holders
Insurance Schedule A (continued)
Exhibit
A) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000
Products-Completed Operations Aggregate Limit $11000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence $1,000,000
Fire Damage Limit(any one occurrence) $ 50,000
Medical Payments $ 51000
a) Coverage shall be written on an occurrence,not claims made,form. All deviations from the
standard ISO commercial general liability form CG 0001,or Business owners form BP 0002,
shall be clearly identified.
b) Include ISO endorsement form CG 25 04 `Designated Location(s)General Aggregate Limit."
c) Include endorsement indicating that coverage is primary and non-contributory.
d) Include endorsement to preserve Governmental Immunity.(Sample attached).
e) Include an endorsement that deletes any fellow employee exclusion.
f) Include additional insured endorsement for;
The City of Dubuque,including all its elected and appointed officials,all its employees
and volunteers,all its boards,commissions and/or authorities and their board members,
employees and volunteers.Use ISO form CG 20 10. (Ongoing operations).
g) If vendor utilizes Trikkes or Segways in the conduct of business,include an endorsement
reflecting that these vehicles are not excluded from Commercial General Liability coverage.
B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory benefits covering all employees injured on the job by accident or disease as prescribed by
Iowa Code Chapter 85 as amended.
Coverage A Statutory—State of Iowa
Coverage B Employers Liability
Each Accident $100,000
Each Employee-Disease $100,000
Policy Limit-Disease $500,000
Policy shall include an endorsement providing a waiver of subrogation to the City of Dubuque.
C) UMBRELLA LIABILITY $5,000,000
Page 2 of 3 Schedule A,Property Or Vendors(Suppliers,Service Providers)
23
City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or
Vendors (Suppliers, Service Providers), and Right of Way Permit Holders
Preservation of Governmental Immunities Endorsement
1. Nonwaiver of Governmental Immunity.The insurance carrier expressly agrees and states that the
purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does
not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa
under Code of Iowa Section 670.4 as it is now exists and as it may be amended from tithe 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 irl MUnity,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.
P E
Page 3 of 3 Schedule A, Property Or Vendors(suppliers,Service Providers)
24
—DRAFT FOR DISCUSSION ONLY -
1 SUBLEASE AGREEMENT BETWEEN DUBUQUE RACING
2 ASSOCIATION, LTD., AS SUBLESSOR, AND
3 IOWA GREYHOUND ASSOCIATION, AS LESSEE
4
5
6 This Sublease Agreement between the Dubuque Racing Association, Ltd.
7 ("DRA"), an Iowa nonprofit corporation, as Sublessor, and the Iowa Greyhound
8 Association, LLC, an Iowa nonprofit corporation, as Sublessee, is dated for reference
9 purposes this October 29, 2014.
10
11 Whereas, DRA is the lessee of the real estate and improvements thereon
12 described on Exhibit A attached hereto and by this reference made a part hereof (real
13 estate and improvements collectively referred to as the "said Premises" or "Subleased
14 Premises"); and
15
16 Whereas, DRA, as Sublessor, desires to sublease said Premises to the Iowa
17 Greyhound Association to conduct live dog racing, pari-mutuel wagering on live dog
18 races and simultaneously telecast horse or dog races in accordance with the provisions
19 of Senate File 2362 (2014 Iowa Acts Chapter 1126) as enacted by the 85th Iowa
20 General Assembly and signed into by the Governor of Iowa on or about May 30, 2014;
21 and
22
23 Whereas, the Iowa Greyhound Association desires to sublease the said
24 Premises from DRA for such use; and
25
26 Whereas, DRA and the Iowa Greyhound Association desire to enter into this
27 Sublease in connection therewith.
28
29 Therefore, for good and valuable consideration, the receipt and sufficiency of
30 which is hereby acknowledged, the parties agree upon the following mutual terms and
31 conditions:
32
33 SECTION 1. TERM; RENT.
34
35 1.1 Initial Term.
36
37 (1) In consideration of the rents hereinafter reserved and the terms,
38 covenants, conditions and agreements set forth in this Sublease, DRA hereby
39 subleases to the Iowa Greyhound Association the Subleased Premises, subject
40 to any easements and restrictions of record, for an Initial Term of five years
41 commencing on the 1st day of January, 2015, and ending on the 31st day of
42 December, 2019, subject to all of the terms, covenants, conditions and
43 agreements contained herein.
44
45 (2) (a) With respect to all portions of the Subleased Premises other than that
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
46 portion designated in Exhibit A for the operation of the pari -
47 mutuel wagering on simultaneously telecast horse or dog
48 races as authorized by Senate File 2362, 85th Iowa General
49 Assembly (hereafter "SF 2362"), and as a condition this
50 sublease, Iowa Greyhound Association shall pay, in addition
51 to taxes, fees, assessments, and other charges required to
52 be paid by the Iowa Greyhound Association under this
53 Sublease, the rental sum specified in the lease agreement
54 between Iowa Greyhound Association and the City of
ss Dubuque for those portions of the racetrack enclosure
56 located outside of the Mystique casino building.
57
58 (b) For Iowa Greyhound Association's operation of pari -
59 mutuel wagering on simultaneously telecast horse or dog
60 races as authorized by SF 2362 and the Iowa Racing
61 Association, in the Subleased Premises or any portion
62 thereof, the Iowa Greyhound Association shall pay, during
63 the initial five-year term as rental, on a monthly basis on a
64 day or date of each month to be set by DRA in consultation
65 with Iowa Greyhound Association, five -percent (5%) of
66 import handle on simultaneously telecast horse or dog
67 races, after deducting: (a) payouts to wagerers, and (b)
68 operational expenses of simulcasting (which shall not
69 include either (i) capital expenditures or (ii) expenses from
70 live greyhound racinq).five percent (5%) of import handle on
71 simultaneously telecast horse or dog races. Iowa
72 Greyhound Association shall deliver payment no later than
73 the day or date of each month set by DRA; any failure to
74 deliver such payment as and when due shall be deemed a
75 material breach by Iowa Greyhound Association of this
76 Sublease Agreement. Sublessor may, in its sole discretion
77 and without waiver of such breach, extend the date for a
78 rental payment, provided that any such extension shall bear
79 rate at the rate of 2% compound interest per month until
80 paid.
81
82 1.2 Optional Renewal Term.
83
84 (1) Iowa Greyhound Association will have a single option
85 to renew this Sublease for an additional five years
86 commencing on the 1St day of January, 2020, and ending on
87 the 31st day of March, 2024. DRA's current lease of the said
88 Premises expires March 31, 2024. In the event the City of
89 Dubuque and DRA extend the lease for the said Premises to
90 or beyond December 31, 2025, the Renewal Term shall end
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
91 on the 31st day of December, 2025. Rent shall be at a fair
92 market rate in addition to taxes, fees, assessments, and
93 other charges required to be paid under this Sublease by the
94 Iowa Greyhound Association.
95
96 (2) If the parties are unable to reach agreement on the
97 fair market rental rate for purposes of the one five-year lease
98 renewal by June 30, 2018, and if the Iowa Greyhound
99 Association requests arbitration concerning the renewal by
100 June 18, 2018, the disputed terms of the Sublease will be
101 determined by binding arbitration in accordance with the
102 rules of the American Arbitration Association as of the date
103 for arbitration. A request for arbitration must be in writing and
104 a copy of the request must be delivered to the other party.
105 The parties will each select one arbitrator and the two
106 arbitrators will choose a third arbitrator to complete the
107 three-person arbitration panel. Each party will deliver its final
108 offer on each of the disputed items to the other party within
109 fourteen days after the request for arbitration. After
110 consultation with the parties, the arbitrators will set a time
111 and place for an arbitration hearing. The parties may
112 continue to negotiate all offers until an agreement is reached
113 or a decision is rendered by the arbitrators. For purposes of
114 determining the fair market rental rate for purposes of the
115 one five-year lease renewal, either party may argue, and
116 present arguments and evidence, that the renewal lease
117 rental rate should be based upon the market value of
118 similarly situated undeveloped land, or upon its use as a
119 greyhound track. The submission of the disputed items to
120 the arbitrators will be limited to those items upon which the
121 parties have not reached agreement. However, the
122 arbitrators have no authority to extend the term of the lease
123 beyond the initial five-year term or the one five-year renewal.
124 Any such arbitration shall take place in the City of Dubuque,
125 unless otherwise agreed.
126
127 (3) The arbitrators must render a decision within fifteen
128 days after the hearing. The arbitrators will give written
129 explanation for the decision and the decision of the
130 arbitrators is final and binding on the parties, and any
131 decision of the arbitrators may be entered in any court
132 having competent jurisdiction. The decision by the arbitrators
133 and the items agreed upon by the parties will be deemed to
134 be the lease between the parties and such final lease is not
135 subject to the approval of the governing body of the City of
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
136 Dubuque, the Iowa Greyhound Association, the Iowa Racing
137 and Gaming Commission, or any other government body.
138 Each party to the arbitration will bear its own expenses,
139 including attorney fees, and the parties will share equally the
140 filing and other administrative fees of the American
141 Arbitration Association and the expenses of the arbitrators.
142
143 (4) Notwithstanding any other provision of this sublease
144 agreement, or in Iowa Greyhound Association's lease with
145 the City of Dubuque for the exterior portions of the racetrack
146 enclosure shown in the attached Exhibit B excluding the
147 maintenance shop shown in Exhibit B-1, no arbitration or
148 mediation provisions shall apply to the renewal or renewal
149 terms relating to simultaneously telecast horse or dog races,
150 which shall be at all times a matter of mutual agreement not
151 subject to mandatory mediation or arbitration terms and
152 wholly independent of the sublease of the racetrack
153 enclosure for purposes of live greyhound racing.
154
155 1.3 Iowa Greyhound Association acknowledges and agrees that
156 it is the intent of the parties that DRA must not incur any costs
157 related in any way to Iowa Greyhound Association's financing,
158 lease or operation of the Subleased Premises.
159
160 SECTION 2. IOWA GREYHOUND ASSOCIATION'S
161 OBLIGATIONS.
162
163 2.1 In addition to all other Iowa Greyhound Association
164 obligations set forth in this Sublease, this Sublease is contingent
165 upon the following:
166
167 (1) Iowa Greyhound Association obtaining a license
168 pursuant to the requirements of Iowa Code § 99D.9A on or
169 before December 1, 2014, and maintaining such license
170 during the entire term of this Sublease.
171
172 (2) Iowa Greyhound Association making an offer of
173 employment to all persons employed (full-time, part-time, or
174 seasonal) by DRA within the racetrack enclosure as of
175 October 31, 2014, in accordance with Iowa Code § 99D.9A,
176 in accordance with Iowa Code § 99D.9A, such employment
177 for seasonal employees to commence at the appropriate
178 times, and for non -seasonal employees on or before
179 January 1, 2015.
180
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
181 (3) Existing collective bargaining agreements concerning
182 employees at the racetrack must be honored by the Iowa
183 Greyhound Association.
184
185 (4) Live dog racing requirements. The Iowa Greyhound
186 Association must conduct, for calendar year 2015, no fewer
187 than sixty live race days with nine live races per day during
188 the racing season, and for calendar year 2016 and
189 subsequent calendar years covered by the lease, no fewer
190 than ninety-five live race days with nine live races per day
191 during each racing season. However, upon mutual
192 agreement by the parties, subject to approval by the Iowa
193 Racing and Gaming Commission, the number of race days
194 for one or more live racing seasons may be reduced so long
195 as the Iowa Greyhound Association conducts a minimum
196 number of live races and racing days during that season.
197 DRA may, in its sole discretion, terminate this Sublease with
198 respect to live dog racing on January 1 of the year following
199 the calendar year in which such live dog racing was not
200 conducted by the Iowa Greyhound Association; the lease for
201 the Subleased Premises, however, in such event, this
202 sublease shall not terminate with respect to Iowa Greyhound
203 Association's conduct of pari-mutuel wagering on
204 simultaneously telecast horse or dog races at Mystique as
205 authorized by SF 2362 and the Iowa Racing and Gaming
206 Commission, so long as the Iowa Greyhound Association
207 remains in full compliance with the terms and conditions of
208 this Sublease (except for the conduct of live dog racing), and
209 in compliance with Iowa Greyhound Association's lease with
210 the City of Dubuque for the exterior portions of the racetrack
211 enclosure.
212
213 2.2 Neither (a) equipment (including but not limited to the Alldritt
214 Lure System and other equipment owned, leased, or rented by
215 DRA, without regard to whether or not it was used by DRA in pari -
216 mutuel wagering and live racing and/or simulcasting), nor (b)
217 furniture, furnishings, or other personal property owned or leased
218 by DRA at the time Iowa Greyhound Association takes possession
219 under this sublease or thereafter, is included in this sublease.
220 However, Iowa Greyhound Association may purchase furniture,
221 furnishings, and equipment (including the Alldritt Lure System)
222 used by DRA for pari-mutuel wagering or for live dog races, on
223 such terms as the parties may separately agree, prior to taking
224 possession under this sublease.
225
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
226
227 SECTION 3. ENCUMBRANCE OF LESSEE'S LEASEHOLD
228 INTEREST.
229
230 3.1 Iowa Greyhound Association's Right To Encumber
231 Leasehold Interest. Only with the prior written consent of DRA and
232 the City Council of the City of Dubuque, in their sole discretion, may
233 the Iowa Greyhound Association encumber by mortgage, deed of
234 trust or other proper instrument, its leasehold interest and estate in
235 the Subleased Premises, as security for any indebtedness of the
236 Iowa Greyhound Association or other person or entity, and
237 provided that no such encumbrance may extend beyond the term
238 of this Sublease. The Iowa Greyhound Association must provide
239 prompt written request to DRA and the City of Dubuque of any
240 such proposed encumbrance together with a copy of the proposed
241 encumbrance. Such proposed encumbrances shall also be subject
242 to approval of the Iowa Racing and Gaming Commission.
243
244 3.2 Notice To Holder Of Encumbrance; Right Of Holder To Cure
245 Iowa Greyhound Association's Default. If the Iowa Greyhound
246 Association encumbers its leasehold interest and estate in the
247 Subleased Premises and if the Iowa Greyhound Association, or the
248 holder of the indebtedness, its successors and/or assigns (the
249 "Holder") secured by the encumbrance gives notice to DRA of the
250 existence of the encumbrance and the address of the Holder, then
251 DRA will mail or deliver to the Holder, at such address, a duplicate
252 copy of all notices in writing which DRA may, from time to time,
253 give or serve on the Iowa Greyhound Association under and
254 pursuant to the terms and provisions of this Sublease. The copies
255 must be mailed or delivered to the Holder at, or near as possible to,
256 the same time the notices are given to or served on the Iowa
257 Greyhound Association. The Holder may, at its option, at any time
258 before the rights of the Iowa Greyhound Association are terminated
259 as provided in this Sublease, pay any of the rents due under this
260 Sublease or pay any taxes and assessments, or do any other act
261 or thing required of the Iowa Greyhound Association by the terms
262 of this Sublease, or do any act or thing that may be necessary and
263 proper to be done in the observance of the covenants and
264 conditions of this Sublease or to prevent the termination of this
265 Sublease; provided, however, that the doing of any act or thing
266 requiring possession of the Subleased Premises is subject to the
267 further rights of Holder as set forth in Section 17.2. All payments
268 so made and all things so done and performed by the Holder are
269 effective to prevent a foreclosure of the rights of the Iowa
270 Greyhound Association thereunder as the same would have been if
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271 done and performed by the Iowa Greyhound Association.
272
273 3.3 Mechanic's Liens. Neither the Iowa Greyhound Association
274 nor anyone claiming by, through, or under the Iowa Greyhound
275 Association may file or place any mechanic's lien upon the
276 Subleased Premises and notice is hereby given that no contractor,
277 subcontractor, or anyone else who may furnish any material,
278 service or labor for any building, improvement, alteration, repair or
279 any part thereof, may at any time be or become entitled to any lien
280 thereon, and for the further security of DRA, the Iowa Greyhound
281 Association covenants and agrees to give actual notice thereof in
282 advance, to any and all contractors and subcontractors who may
283 furnish or agree to offer any such material, service or labor.
284
285 SECTION 4. TAXES AND FEES.
286
287 4.1. Iowa Greyhound Association agrees to pay all real estate
288 taxes levied upon the real estate of the Subleased Premises that
289 become payable (as such taxes come due) during the initial and
290 renewal term, if applicable, hereof and which would become
291 delinquent if not so paid during the term hereof. The Iowa
292 Greyhound Association must provide to DRA official receipts of the
293 appropriate taxing authority or other evidence satisfactory to DRA
294 evidencing payment thereof.
295
296 4.2. During the term of this Sublease, the Iowa Greyhound
297 Association agrees to pay any and all other taxes, fees (including
298 but not limited to stormwater fees or other utility charges), rates,
299 charges, levies and assessments, general and special, of every
300 name, nature and kind, whether now known to the law or hereafter
301 created, which may be taxed, charged, assessed, levied or
302 imposed upon the Subleased Premises and which become payable
303 during the term hereof and which would become delinquent if not
304 so paid during the term hereof, any buildings or improvements
305 thereon which may be taxed, charged, assessed, levied or imposed
306 upon the leasehold estate hereby created and upon the
307 reversionary estate in the Subleased Premises during the term
308 hereof and which become payable during the term hereof and
309 which would become delinquent if not so paid during the term
310 hereof, and all such other taxes, rates, charges, levies and
311 assessments must be paid by the Iowa Greyhound Association as
312 they become due and before they become delinquent during the
313 term hereof.
314
315 4.3. Iowa Greyhound Association agrees to timely pay all taxes,
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316 assessments or other public charges levied or assessed by lawful
317 authority (but reasonably preserving the Iowa Greyhound
318 Association's rights of appeal) against the trade fixtures, furniture,
319 furnishings, fixtures, equipment, and other personal property that is
320 owned, leased, rented, or otherwise in the possession and control
321 of Iowa Greyhound Association and utilized on or for the benefit of
322 the Subleased Premises, during the term of this Sublease.
323
324 4.4. Nothing herein requires the Iowa Greyhound Association to
325 pay any of DRA's income taxes, surtaxes, excess profit taxes or
326 any taxes on the rents or otherwise reserved to DRA hereunder.
327 Nothing herein requires DRA to pay any of Iowa Greyhound
328 Association 's income taxes, surtaxes, property taxes, excess profit
329 taxes or any taxes on the rents or otherwise reserved to Iowa
330 Greyhound Association hereunder.
331
332 4.5. Iowa Greyhound Association has at all times the right to
333 contest in good faith, in any proper proceedings, in the name of
334 DRA if necessary, the payment or satisfaction of any such taxes,
335 assessments, rates, charges or levies so agreed to be paid by the
336 Iowa Greyhound Association, if the validity thereof, or the right to
337 assess or levy the same against or collect the same from said
338 Subleased Premises, is disputed with respect to the Subleased
339 Premises. Upon the conclusion of any such suit or proceedings, or
340 not Tess than three (3) months prior to the date when the right to
341 redeem therefrom expires, whichever will be the earlier, the Iowa
342 Greyhound Association must promptly pay and satisfy such
343 disputed tax, assessment or other charge as finally determined.
344 The Iowa Greyhound Association shall also promptly pay and
345 satisfy all expenses, costs and attorneys' fees whatsoever incurred
346 in connection therewith.
347
348 SECTION 5. UTILITIES. The Iowa Greyhound Association must
349 pay, before delinquency, all separately metered charges to the
350 subleased areas related to communications systems and services,
351 telephone, cable, Internet, water, wastewater, stormwater, sewer,
352 gas, heat, electricity, power, trash disposal, and not limited by the
353 foregoing list, all other utilities and services of whatever kind and
354 nature which may be used in or upon the Subleased Premises.
355 With respect to non -metered utilities, Iowa Greyhound Association
356 is solely responsible for any additional metering required for any
357 utilities and the cost of installing any such metering. DRA and Iowa
358 Greyhound Association may agree in a writing duly executed by
359 both parties, to share the cost of utilities supplied to DRA that
360 cannot be separately metered, provided however that each party's
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361 share of the cost shall be based on the total cost of the shared
362 services, including but not limited to the cost of equipment (as the
363 same may have been depreciated on DRA's financial statements)
364 used for the services, capital costs (including interest) as
365 depreciated, and actual usage of billed services by the respective
366 parties.
367
368 SECTION 6. CONDITION OF SUBLEASED PREMISES AND
369 REPAIRS.
370
371 6.1.The Iowa Greyhound Association has made an adequate
372 inspection of the Subleased Premises and accepts same "As Is."
373 DRA makes no warranties or representations regarding the
374 condition of the Subleased Premises unless otherwise specifically
375 stated herein. The Iowa Greyhound Association must at all times
376 during the term of this Sublease, at the Iowa Greyhound
377 Association's expense, keep the Subleased Premises, and all
378 sidewalks, curbs, and all appurtenances to the Subleased
379 Premises, in good order, condition and repair, casualties and
380 ordinary wear and tear excepted. The Iowa Greyhound Association
381 must keep and maintain the Subleased Premises in a condition
382 consistent with other similarly classed operations. The Iowa
383 Greyhound Association must keep the Subleased Premises in such
384 condition as may be required by law and by the terms of the
385 insurance policies furnished pursuant to this Sublease, whether or
386 not such repair must be interior or exterior, and whether or not such
387 repair must be of a structural nature. Upon reasonable notice to
388 the Iowa Greyhound Association, DRA may, at its discretion and at
389 its cost, conduct an annual inspection of the Subleased Premises
390 to determine the Iowa Greyhound Association's compliance with
391 this Section 6.
392
393 6.2. The Iowa Greyhound Association agrees that, at all times
394 during the Sublease term, Iowa Greyhound Association shall, at its
395 own expense, maintain, preserve and keep the Subleased
396 Premises in good repair, working order and condition.
397
398 6.3 The Iowa Greyhound Association may not commit waste on
399 the Subleased Premises except as necessary for its business
400 purposes including the removal or construction of any buildings and
401 Improvements on the Subleased Premises, and is liable for any
402 damages to or destruction of any buildings or improvements on the
403 Subleased Premises resulting from waste and will repair or rebuild
404 such buildings or improvements. The Iowa Greyhound Association
405 may remove existing improvements or construct new improvements
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406 on the Subleased Premises subject to all of the terms and
407 conditions of this Sublease provided the Iowa Greyhound
408 Association has received the prior written approval of DRA.
409
410
411 SECTION 7. COMPLIANCE WITH LAW.
412
413 During the term of this Sublease, the Iowa Greyhound
414 Association must comply with all local, state and federal laws
415 applicable to the Iowa Greyhound Association's use of the
416 Subleased Premises, including but not limited to the Americans
417 with Disabilities Act and the Iowa Smoke Free Air Act.
418
419 SECTION 8. ALTERATIONS. Iowa Greyhound Association may,
420 subject to the prior written consent of both DRA and the City of
421 Dubuque, in their sole discretion, make any alteration, addition, or
422 modification to the Subleased Premises ("the Iowa Greyhound
423 Association Improvements") that equals or exceeds Five Thousand
424 and 00/100 Dollars ($5,000.00) in cost, at the Iowa Greyhound
425 Association's expense, from time to time during the term of this
426 Sublease. Any alteration, addition or modification of the Subleased
427 Premises by the Iowa Greyhound Association at a cost of less than
428 Five Thousand and 00/100 Dollars ($5,000.00) does not require
429 DRA's consent, but must be made solely at the Iowa Greyhound
430 Association expense and only after not less than sixty (60) days
431 prior written notice to DRA of such alteration, addition or
432 modification. Plans and specifications with respect to the Iowa
433 Greyhound Association Improvements and the construction of the
434 Iowa Greyhound Association Improvements must be in conformity
435 with all applicable laws and regulations. The Iowa Greyhound
436 Association must submit to DRA, for approval by DRA, plans,
437 drawings, specifications, and related documents with respect to the
438 Iowa Greyhound Association Improvements to be constructed by
439 the Iowa Greyhound Association on the Subleased Premises. All
440 work with respect to the Iowa Greyhound Association
441 Improvements must be in substantial conformity with the
442 construction plans approved by DRA. All alterations, additions, or
443 modifications to the Subleased Premises must be coordinated with
444 the then -existing improvements on the Subleased Premises and
445 any other the Iowa Greyhound Association Improvements in the
446 general vicinity of the Subleased Premises.
447
448 SECTION 9. USE OF SUBLEASED PREMISES.
449
450 9.1. Iowa Greyhound Association must operate the Subleased
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451 Premises solely for live dog racing, pari-mutuel wagering on live
452 dog races and simultaneously telecast horse or dog races, as
453 provided in SF 2362 and authorized by the Iowa Racing and
454 Gaming Commission, and may not knowingly use or allow the
455 Subleased Premises or any buildings or improvements thereon or
456 any appurtenances thereto, to be used or occupied for any other
457 purpose or any unlawful purpose or in violation of any certificate of
458 occupancy. The Iowa Greyhound Association may not suffer any
459 act to be done or any condition to exist within the Subleased
460 Premises, or permit any article to be brought therein, which is
461 dangerous, unless safeguarded as required by law, or which, in
462 law, constitutes a nuisance, public or private, or which may make
463 void or voidable any insurance in force with respect thereto.
464 Notwithstanding the foregoing, Iowa Greyhound Association may
465 enter into a contract or contracts with qualified entities to assist
466 Iowa Greyhound Association in the operation and management of
467 live dog racing, pari-mutuel wagering on live dog races and
468 simultaneously telecast horse or dog races, subject to the prior
469 approval of DRA and the Iowa Racing and Gaming Commission.
470
471 9.2 Iowa Greyhound Association must take all reasonable steps
472 to implement a smooth transition of the Subleased Premises from
473 DRA to the Iowa Greyhound Association, holding DRA harmless
474 from any claims arising therefrom.
475
476 9.3. During the term of this Sublease, the Iowa Greyhound
477 Association may not change the use of the Subleased Premises.
478
479 9.4. The Iowa Greyhound Association may not cause, allow or
480 permit any outdoor storage of any materials, objects or things of
481 any kind, including refuse, trash or garbage, at any time on the
482 Subleased Premises. Notwithstanding the foregoing, refuse
483 storage is permissible in an accessory storage enclosure if DRA or
484 its designee determines that the structure is in character with the
485 principal building being served and constructed of the same quality
486 permanent materials as the principal building being served. The
487 accessory structure must be within close proximity to the principal
488 building being served. Where the structure exceeds 200 square
489 feet in area, at least 1/3 of the structure's exterior perimeter must
490 be landscaped with ornamental trees and shrubs.
491
492
493 SECTION 10. INSURANCE
494
495 10.1. The Iowa Greyhound Association must maintain during the
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496 term of this Sublease insurance to meet the coverage and limits of
497 coverage of the greater of the following: (a) requirements as set
498 forth in the City of Dubuque Insurance Requirements for Tenants
499 and Lessees of City Property or Vendors (Suppliers, Service
500 Providers), and Right of Way Permit Holders Insurance Schedule
501 for lessees of City Property, as such uniform, standardized
502 schedule may from time to time be amended OR (b)
503 property/casualty, liability, workers compensation, employment
504 practices liability, and other insurance coverages maintained by
505 DRA, with equivalent coverage limits, for its own operations within
506 the racing/casino/simulcasting areas. The current City of Dubuque
507 Insurance Requirements for Tenants and Lessees of City Property
508 or Vendors (Suppliers, Service Providers), and Right of Way Permit
509 Holders insurance schedule (Insurance Schedule A) is attached to
510 this Sublease as Exhibit C. The City of Dubuque, Iowa or DRA will
511 provide the Iowa Greyhound Association written notice of any
512 amendment to the Insurance Schedule not less than sixty days
513 prior to the effective date of such amendment.
514
515 10.2. During construction of any of the Iowa Greyhound
516 Association Improvements or other alteration, addition or
517 modification on the Subleased Premises, the Iowa Greyhound
518 Association must maintain builder's risk insurance, written on the
519 Special Perils Form in an amount equal to one hundred percent
520 (100%) of the replacement value of Improvements as the same
521 exists from time to time during the construction process.
522
523 10.3. The Iowa Greyhound Association must maintain, or cause to
524 be maintained, at its cost and expense (and from time to time at
525 the request of DRA or the City of Dubuque must furnish proof of
526 the payment of premiums on), property insurance against loss
527 and/or damage to improvements under an insurance policy written
528 on the Special Perils Form in an amount not less than the full
529 insurable replacement value of improvements, but any such policy
530 may have a deductible amount of not more than $50,000.00. No
531 policy of insurance may be so written that the proceeds thereof will
532 produce less than the minimum coverage required by the preceding
533 sentence, by reason of co-insurance provisions or otherwise,
534 without the prior consent thereto in writing by City of Dubuque. The
535 term "replacement value" must mean the actual replacement cost
536 of improvements (excluding foundation and excavation costs and
537 costs of underground flues, pipes, drains and other uninsurable
538 items) and equipment, and will be determined from time to time at
539 the request of DRA or the City of Dubuque, but not more frequently
540 than once every three years, and paid for by the Iowa Greyhound
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541 Association.
542
543 10.4. Iowa Greyhound Association must purchase all insurance
544 required by the terms of this Sublease responsible insurance
545 companies having a minimum A.M. Best rating of A- Class VII, or
546 otherwise approved by DRA, that are authorized under the laws of
547 the State of Iowa to assume the risks covered thereby. Iowa
548 Greyhound Association must provide DRA by December 15, 2014,
549 an update annually by not later than December 15 of each year or
sso within 10 days of the insurance being bound, whichever is earlier, a
551 certificate or certificates or binders of the respective insurers
552 stating that such insurance is in force and effect. All insurance
553 required by this Section 10 must include DRA and the City of
554 Dubuque, Iowa as additional named insureds, and all certificates of
555 coverage provided must expressly list DRA and the City of
556 Dubuque as additional named insureds. Iowa Greyhound
557 Association must furnish evidence satisfactory to DRA and the City
558 of Dubuque that the policy has been renewed or replaced by
559 another policy conforming to the provisions of this Sublease, or that
560 there is no necessity therefor under the terms hereof. In lieu of
561 separate policies, the Iowa Greyhound Association may maintain a
562 single policy, or blanket or umbrella policies, or a combination
563 thereof, which provide the total coverage required herein, in which
564 event the Iowa Greyhound Association must deposit with DRA and
565 the City of Dubuque a certificate or certificates of the respective
566 insurers as to the amount of coverage in force upon Improvements,
567 provided, however, the specific limit may not be impaired.
568
569 10.5. Iowa Greyhound Association agrees to notify DRA and the
570 City of Dubuque immediately in the case of damage exceeding
571 $10,000.00 in amount to, or destruction of, the Subleased
572 Premises or any portion thereof resulting from fire or other
573 casualty. Net proceeds of any such insurance (Net Proceeds),
574 must be paid directly to the Iowa Greyhound Association, and the
575 Iowa Greyhound Association must forthwith repair, reconstruct and
576 restore the Improvements to substantially the same or an improved
577 condition or value as they existed prior to the event causing such
578 damage and, to the extent necessary to accomplish such repair,
579 reconstruction and restoration, the Iowa Greyhound Association
58o must apply the Net Proceeds of any insurance relating to such
581 damage received by the Iowa Greyhound Association to the
582 payment or reimbursement of the costs thereof, subject, however,
583 to the terms of any mortgage encumbering title to the Property.
584
585 10.6. Iowa Greyhound Association must complete the repair,
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586 reconstruction and restoration of the Subleased Premises, whether
587 or not the Net Proceeds of insurance received by the Iowa
588 Greyhound Association for such purposes are sufficient.
589
590 SECTION 11. APPROVAL CONTINGENCY.
591
592 This Sublease is contingent upon the prior approval of: (a)
593 DRA's Board of Directors; (b) the City of Dubuque; (c) the Iowa
594 Racing and Gaming Commission; (d) Iowa Greyhound Association;
595 and (e) DRA's lenders.
596
597 SECTION 12. IOWA GREYHOUND ASSOCIATION'S
598 WARRANTIES AND REPRESENTATIONS
599
600 12.1. Iowa Greyhound Association's Compliance With Law.
601
602 (1) The Iowa Greyhound Association warrants that it is
603 validly existing and in good standing under the laws of the
604 State of Iowa as a nonprofit organization.
605
606 (2) The Iowa Greyhound Association covenants and
607 agrees that the Iowa Greyhound Association will comply with
608 all applicable local, state and federal laws, rules, regulations
609 and permits with regard to the Subleased Premises and its
610 use, occupancy and control of the Subleased Premises.
611
612 (3) The Iowa Greyhound Association covenants and
613 agrees that the Iowa Greyhound Association will acquire and
614 maintain any and all applicable permits, licenses or
615 authorizations as may be necessary for the Iowa Greyhound
616 Association's use, occupancy, and control of the Subleased
617 Premises, and for the conduct of live dog racing, pari-mutuel
618 wagering on live dog races and simultaneously telecast
619 horse or dog races, as provided in Senate File 2362/Iowa
620 Code section 99D.9C, as conditions precedent to this
621 Sublease.
622
623 12.2 Environmental Matters.
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624 (1) The Iowa Greyhound Association covenants and
625 agrees that neither DRA nor the City of Dubuque shall have
626 any responsibility for or liability arising from any release of a
627 Hazardous Substance on the Subleased Premises which is
628 caused by or results from or during the Iowa Greyhound
629 Association's use, occupancy or control of the Subleased
630 Premises, nor shall DRA or the City of Dubuque have any
631 responsibility for or liability arising from any Hazardous
632 Substance which leaches or migrates upon the Subleased
633 Premises from any property owned by the City of Dubuque.
634 Further, neither DRA nor the City of Dubuque shall have any
635 responsibility for any Hazardous Substance which leaches
636 or migrates upon the Subleased Premises from any adjacent
637 property, or any release of a Hazardous Substance which is
638 caused by Iowa Greyhound Association's use, occupancy,
639 or control of the Subleased Premises or which pre-exists the
640 date of this Sublease, except that DRA and the City of
641 Dubuque, as appropriate, must cooperate fully with any
642 response to such release by Iowa Greyhound Association or
643 others.
644
645 (2) Iowa Greyhound Association covenants and agrees
646 to notify DRA and the City of Dubuque promptly of any
647 release of Hazardous Substance in, on or about the
648 Subleased Premises of which the Iowa Greyhound
649 Association has knowledge.
650
651 (3) Iowa Greyhound Association covenants and agrees
652 to promptly take any and all necessary and appropriate
653 response to address any release of Hazardous Substance
654 for which the Iowa Greyhound Association is responsible.
655 Such response must include, without limitation, notification
656 to appropriate governmental authorities, as may be required
657 by law.
658
659 (4) Iowa Greyhound Association covenants and agrees
660 not to manufacture, treat or dispose of Hazardous
661 Substances at the Subleased Premises or knowingly allow
662 the manufacture, treatment, or disposal of Hazardous
663 Substances on the Subleased Premises. Iowa Greyhound
664 Association covenants and agrees to use and store any
665 Hazardous Substances at the Subleased Premises only in
666 full accordance with law.
667
668 (5) For the purposes of this Sublease, "Hazardous
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669 Substance" or "Hazardous Substances" means any
670 hazardous or toxic substance, material or waste which is or
671 becomes regulated by any local government, the State of
672 Iowa or the United States Government. It includes, without
673 limitation, any material or substance that is (i) defined as a
674 "hazardous substance" or "hazardous waste" under Chapter
675 455B, Iowa Code, (ii) petroleum and petroleum products, (iii)
676 asbestos containing materials in any form or condition, (iv)
677 designated as a "hazardous substance" pursuant to Section
678 311 of the Federal Water Pollution Control Act (33 U.S.C. §
679 1321), (v) defined as a "hazardous waste pursuant to § 1004
680 of the Federal Resource Conservation and Recovery Act, 42
681 U.S.C. §6901 et seq., (vi) defined as a "hazardous
682 substance" pursuant to § 101 of the Comprehensive
683 Environmental Response, Compensation and Liability Act,
684 U.S.0 § 9601 et seq., or (vii) defined as a "regulated
685 substance" pursuant to Subchapter IX, Solid Waste Disposal
686 Act (Regulation of Underground Storage Tanks), 42 U.S.C. §
687 6991 et seq.] The term "Hazardous Substance" does not
688 include any air emissions discharged into the atmosphere as
689 allowed by a duly issued permit from the applicable
690 governmental agency.
691
692 SECTION 13. DRA RIGHTS OF ACCESS.
693
694 13.1. Right of Entry for Utility Service. DRA reserves for itself, and
695 for any public utility company, as may be appropriate, the
696 unqualified right to enter upon the Subleased Premises and upon
697 the exterior portions of the racetrack enclosure leased by the Iowa
698 Greyhound Association from the City of Dubuque shown in Exhibits
699 B and B-1 (collectively referred to hereafter as "DRA Access
700 Areas"), at all reasonable times for the purpose of reconstructing,
701 maintaining, repairing, or servicing the public utilities located within
702 the boundary lines of the Subleased Premises. Before entering the
703 DRA Access Areas, for any such purpose, DRA shall provide
704 reasonable notification to Iowa Greyhound Association of its intent
705 to enter the Subleased Premises for such purposes.
706
707 DRA further reserves for itself the right to enter upon the DRA
708 Access Areas at all reasonable times for the purpose of accessing
709 areas within DRA Access Areas and the Maintenance Shed and
710 curtilage that remains in the real estate lease between DRA and
711 the City of Dubuque, as indicated on the attached Exhibits, for the
712 performance or verification of any duties required of DRA or Iowa
713 Greyhound Association under this sublease agreement or ancillary
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714 agreements, and for emergency purposes. DRA shall provide
715 reasonable notice to Iowa Greyhound Association of DRA's access
716 to the Subleased Premises on an individual or scheduled basis, as
717 appropriate to the circumstances; however, DRA need not provide
718 notice to Iowa Greyhound Association for entry upon the
719 Subleased premises for the purpose of accessing the Maintenance
720 Shed by DRA's employees, contractors, agents, or other persons
721 authorized by DRA.
722
723 13.2. Iowa Greyhound Association Not to Construct Over Utility
724 Easements. The Iowa Greyhound Association may not construct
725 any building or other structure or improvements on, over, or within
726 the boundary lines of any easement for public utilities unless such
727 construction is provided for in such easement or has been
728 approved by DRA in writing. If approval for such construction is
729 requested by the Iowa Greyhound Association, DRA will cooperate
730 to assure that such approval will not be withheld unreasonably.
731
732 13.3. Inspection of Subleased Premises. In addition to access
733 otherwise approved by the Iowa Greyhound Association, an
734 authorized representative of DRA, as designated in writing by his or
735 her DRA Manager, shall have the right to enter and have access to
736 the Subleased Premises, whether or not events are in operation, at
737 all reasonable times and for any reasonable purposes, as long as
738 such entrances do not unreasonably interfere with Iowa Greyhound
739 Association's right to quiet occupancy. Iowa Greyhound
740 Association shall also provide unfettered access by DRA personnel
741 and/or DRA contractors to the maintenance shed in the kennel
742 area, and to other parts of the racetrack area that continue to be
743 leased by DRA from the City of Dubuque. Such entrances shall be
744 subject to the rules of the Iowa Racing and Gaming Commission.
745
746 SECTION 14. INDEMNIFICATION.
747
748 14.1 Indemnification of the Iowa Greyhound Association. To the
749 extent allowed by law, DRA will indemnify and save harmless the
750 Iowa Greyhound Association from and against all liabilities,
751 obligations, claims, damages, penalties, causes of action, costs
752 and expenses (including, without limitation, reasonable attorneys'
753 fees and expenses) imposed upon or incurred by or asserted
754 against the Iowa Greyhound Association by reason of (a) any
755 accident, injury to or death of persons or Toss of or damage to
756 property occurring on or about the Subleased Premises and
757 resulting from any act or omission of DRA or anyone acting by,
758 through, or under DRA, and (b) any failure on the part of DRA to
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759 perform or comply with any of the terms of this Sublease. In case
760 any action, suit or proceeding is brought against the Iowa
761 Greyhound Association by reason of such occurrence, DRA will, at
762 DRA expense and discretion, either defend such action, suit or
763 proceeding, or cause the same to be defended by counsel
764 approved by the Iowa Greyhound Association, which approval will
765 not be unreasonably withheld.
766
767 14.2 Indemnification of DRA. The Iowa Greyhound Association
768 will indemnify and save harmless DRA from and against all
769 liabilities, obligations, claims, damages, penalties, causes of action,
770 costs and expenses (including, without limitation, reasonable
771 attorneys' fees and expenses) imposed upon or incurred by or
772 asserted against DRA by reason of (a) any accident, injury to or
773 death of persons or loss of or damage to property occurring on or
774 about the Subleased Premises during the term of this Sublease
775 and resulting from any act or omission by the Iowa Greyhound
776 Association or anyone claiming by, through or under the Iowa
777 Greyhound Association during the term of the Sublease and (b)
778 any failure on the part of the Iowa Greyhound Association to
779 perform or comply with any of the terms of this Sublease, and (c)
780 any material breach on the part of the Iowa Greyhound Association
781 of any warranty or representation contained in Section 12. In case
782 any action, suit or proceeding is brought against DRA by reason of
783 such occurrence, the Iowa Greyhound Association will, at the Iowa
784 Greyhound Association's expense and discretion, either defend
785 such action, suit or proceeding, or cause the same to be defended
786 by counsel approved by DRA, which approval will not be
787 unreasonably withheld.
788
789 14.3 Survival. The obligations and liabilities under this Section
790 survive and continue in full force and effect and may not be
791 terminated, discharged or released, in whole or in part, irrespective
792 of the termination or expiration of the term of this Sublease.
793
794 SECTION 15. CONDEMNATION.
795
796 15.1 Entire Condemnation. If at any time during the term of this
797 Sublease all or substantially all of the Subleased Premises or the
798 improvements thereon are taken in the exercise of the power of
799 eminent domain by any sovereign, municipality or other public or
800 private authority, then this Sublease will terminate on the date of
801 vesting of title in such taking and any prepaid rent will be
802 apportioned as of said date. Substantially all of the Subleased
803 Premises will be deemed to have been taken if the remaining
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
804 portion of the Subleased Premises will not be of sufficient size to
805 permit the Iowa Greyhound Association, in the Iowa Greyhound
806 Association's sole discretion, to operate its business thereon in a
807 manner similar to that prior to such taking.
808
809 15.2 Allocation of Award. Any award for such taking of all or
810 substantially all of the Subleased Premises will be paid to the
811 parties hereto in accordance with the following:
812
813 (1) To DRA, the amount of the award attributable to the
814 Subleased Premises, determined as if this Sublease was not
815 in effect at the time of such award, excluding therefrom the
816 amount of the award attributable to the Tenant
817 Improvements, and all other sums not directly attributable to
818 the value of the Land constituting the Subleased Premises;
819
820 (2) To the Iowa Greyhound Association, the balance of
821 the award remaining after payment of: the portion of the
822 award allocated to DRA above, and (b) the portion of the
823 award allocated to the City of Dubuque in accordance with
824 the terms and provisions of the lease agreement between
825 the City of Dubuque and DRA for the Subleased Premises.
826
827 15.3 Partial Condemnation.
828
829 (1) If less than all or substantially all of the Subleased
830 Premises or the improvements thereon are taken in the
831 exercise of the power of eminent domain by any sovereign,
832 municipality or other public or private authority, then the
833 Iowa Greyhound Association, at its option, may elect to
834 continue this Sublease in full force and effect or terminate
835 this Sublease. If the Iowa Greyhound Association elects to
836 maintain this Sublease in full force and effect, the award for
837 such partial condemnation will be allocated as provided in
838 Section 15.2, and the Iowa Greyhound Association must
839 proceed with reasonable diligence to carry out any
840 necessary repair and restoration so that the remaining
841 improvements and appurtenances must constitute a
842 complete structural unit or units which can be operated on
843 an economically feasible basis under the provisions of this
844 Sublease. In the event the Iowa Greyhound Association
845 elects to continue this Sublease in full force and effect after
846 a partial condemnation, the Base Rent will be reduced in
847 proportion to the area of the Subleased Premises taken.
848
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
849 (2) Should the Iowa Greyhound Association elect to
850 terminate this Sublease upon a partial condemnation, the
851 Iowa Greyhound Association must provide DRA with written
852 notice of such election within thirty (30) days after the date
853 of vesting of title for such taking. The Iowa Greyhound
854 Association must specify in such written notice the date on
855 which this Sublease will terminate, which date may be not
856 Tess than 60 days nor more than 360 days after delivery of
857 such notice to DRA (the "Termination Date"). In the event
858 the Iowa Greyhound Association terminates this Sublease,
859 as provided for in this Section 15.3, the Iowa Greyhound
860 Association will be entitled to the entire award for such
861 partial taking.
862
863 15.4 Temporary Taking. If the temporary use of the whole or any
864 part of the Subleased Premises or the appurtenances thereto is
865 taken at any time during the term of this Sublease in the exercise of
866 the power of eminent domain by any sovereign, municipality, or
867 other authority, the term of this Sublease will not be reduced or
868 affected in any way, and the Iowa Greyhound Association must
869 continue to pay in full the rent, additional rent and other sum or
870 sums of money and charges herein reserved and provided to be
871 paid by the Iowa Greyhound Association, and the entire award for
872 such temporary taking will be paid to the Iowa Greyhound
873 Association. Iowa Greyhound Association must repair and restore
874 any and all damage to the Subleased Premises and the
875 Improvements as soon as reasonably practicable after such
876 temporary taking.
877
878 SECTION 16. ASSIGNMENT AND SUBLETTING. Iowa
879 Greyhound Association may not assign any of its rights, duties or
880 obligations under this Sublease, in whole or in part, to any other
881 person, firm, corporation or entity without the prior written consent
882 of (a) DRA's Board of Directors, (b) the City of Dubuque, and (c)
883 the Iowa Racing and Gaming Commission.
884
885 SECTION 17. DEFAULT.
886
887 17.1 DRA's Rights in the Event of the Iowa Greyhound
888 Association's Default. If the Iowa Greyhound Association
889 materially fails or neglects to observe, keep or perform any of the
890 covenants, terms or conditions contained in this Sublease on its
891 part to be observed, kept or performed, and the default must
892 continue for a period of thirty (30) days after written notice from
893 DRA setting forth the nature of the Iowa Greyhound Association's
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
894 default, then and in any such event, DRA has the right at its option,
895 on written notice to the Iowa Greyhound Association, to terminate
896 this Sublease. DRA thereafter has the right to enter and take
897 possession of the Subleased Premises, including but not limited to
898 Furniture, Furnishings, Fixtures, Equipment, Intangible Property
899 and Inventory, and to remove all other personal property from the
900 Subleased Premises and all persons occupying the Subleased
901 Premises and to use all necessary and legal force therefor and in
902 all respects to take the actual, full and exclusive possession of the
903 Subleased Premises and every part of the Subleased Premises as
904 of DRA's original estate, without incurring any liability to the Iowa
905 Greyhound Association or to any persons occupying or using the
906 Subleased Premises for any damage caused or sustained by
907 reason of such entry on the Subleased Premises or the removal of
908 persons or property from the Subleased Premises. DRA has all
909 other rights available to it provided by law or equity.
910
911 17.2 Iowa Greyhound Association's Rights in the Event of DRA's
912 Default. If DRA materially fails or neglects to observe, keep or
913 perform any of the covenants, terms or conditions contained in this
914 Sublease on its part to be observed, kept or performed, and the
915 default continues for a period of thirty (30) days after written notice
916 from the Iowa Greyhound Association setting forth the nature of
917 DRA's default (it being intended that in connection with a default
918 not susceptible of being cured with diligence within thirty (30) days,
919 the time within which DRA has to cure the same will be extended
920 for such period as may be necessary to complete the same with all
921 due diligence, but in no event longer than ninety (90) days), then
922 and in any such event, the Iowa Greyhound Association will have
923 all rights available to it provided by law or equity.
924
925 SECTION 18. RIGHT TO CURE OTHER'S DEFAULTS.
926
927 Whenever and as often as a party fails or neglects to comply with
928 and perform any term, covenant, condition or agreement to be
929 complied with or performed by such party hereunder, then,
930 following thirty (30) days' prior written notice to such defaulting
931 party (or such additional time to cure as may be accorded the DRA
932 pursuant to Section 17.2 above, but in no event longer than ninety
933 (90) days), the other party, at such other party's option, in addition
934 to all other remedies available to such other party, may perform or
935 cause to be performed such work, labor, services, acts or things,
936 and take such other steps, including entry onto the Subleased
937 Premises, as such other party may deem advisable, to comply with
938 and perform any such term, covenant, condition or agreement
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
939 which is in default, in which event such defaulting party must
940 reimburse such other party upon demand, and from time to time,
941 for all costs and expenses suffered or incurred by such other party
942 in so complying with or performing such term, covenant, condition
943 or agreement. The commencement of any work or the taking of
944 any other steps or performance of any other act by such other party
945 pursuant to the immediately preceding sentence will not be
946 deemed to obligate such other party to complete the curing of any
947 term, covenant, condition or agreement which is in default. Either
948 party, upon giving twenty (20) days' written notice to the other, may
949 offset amounts due to the other party for any amounts the notifying
950 party pays or incurs hereunder proper the obligation of the other
951 party to whom such notice is sent.
952
953 SECTION 19. QUIET ENJOYMENT.
954
955 DRA covenants that at all times during the term of this Sublease,
956 so long as the Iowa Greyhound Association is not in default
957 hereunder, the Iowa Greyhound Association's quiet enjoyment of
958 the Subleased Premises or any part thereof will not be disturbed by
959 any act of DRA, or of anyone acting by, through or under DRA.
960
961 SECTION 20. ESTOPPEL CERTIFICATES.
962
963 Each party hereto agrees that at any time and from time to time
964 during the term of this Sublease, within ten (10) days after request
965 by the other party hereto or by any lender having an interest in the
966 Iowa Greyhound Association's leasehold estate, it will execute,
967 acknowledge and deliver to the other party or to such lender or any
968 prospective purchaser, assignee or any mortgagee designated by
969 such other party, a certificate stating (a) that this Sublease is
970 unmodified and in force and effect (or if there have been
971 modifications, that this Sublease is in force and effect as modified,
972 and identifying the modification agreements), (b) the date to which
973 rent has been paid, (c) whether or not there is any existing default
974 by the Iowa Greyhound Association in the payment of any rent or
975 other sum of money hereunder, and whether or not there is any
976 other existing default by either party hereto with respect to which a
977 notice of default has been served, and, if there is any such default,
978 specifying the nature and extent thereof; and (d) whether or not
979 there are any setoffs, defenses or counterclaims against
980 enforcement of the obligations to be performed hereunder existing
981 in favor of the party executing such certificate.
982
983 SECTION 21. WAIVER.
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
984
985 No waiver by either party hereto of any breach by the other of any
986 term, covenant, condition or agreement herein and no failure by
987 any party to exercise any right or remedy in respect of any breach
988 hereunder, will constitute a waiver or relinquishment for the future
989 of any such term, covenant, condition or agreement or of any
990 subsequent breach of any such term, covenant, condition or
991 agreement, nor bar any right or remedy of the other party in respect
992 of any such subsequent breach, nor will the receipt of any rent, or
993 any portion thereof, by DRA, operate as a waiver of the rights of
994 DRA to enforce the payment of any other rent then or thereafter in
995 default, or to terminate this Sublease, or to recover the Subleased
996 Premises, or to invoke any other appropriate remedy which DRA
997 may select as herein or by law provided.
998
999 SECTION 22. SURRENDER.
1000
1001 The Iowa Greyhound Association must, upon the earliest to occur
1002 of the following: on the last day of the initial term without renewal,
1003 the expiration of the renewal term, or upon any termination of this
1004 Sublease, surrender and deliver up the Subleased Premises, with
1005 the Improvements and fixtures then located thereon into the
1006 possession and use of DRA, without fraud or delay and in good
1007 order, condition and repair, reasonable wear and tear excepted,
1oo8 free and clear of all lettings and occupancies, free and clear of all
1009 liens and encumbrances other than those existing on the date of
1010 this Sublease and those, if any, created by DRA, without any
1011 payment or allowance whatsoever by DRA to Iowa Greyhound
1012 Association on account of or for any buildings or improvements
1013 erected or maintained by DRA or Iowa Greyhound Association on
1014 the Subleased Premises or for the contents thereof or
1015 appurtenances thereto, unless agreed to in a writing duly executed
1016 by both parties. No holdover is allowed.
1017
1018 SECTION 23. MEMORANDUM OF LEASE.
1019
1020 Each of the parties hereto will, promptly upon request of the other,
1021 execute a memorandum of this Sublease in a form suitable for
1022 recording setting forth the names of the parties hereto and the term
1023 of this Sublease, identifying the Subleased Premises, and also
1024 including such other clauses therein as either party may desire.
1025
1026 SECTION 24. NOTICES.
1027
1028 24.1 All notices, demands or other writings in this Sublease
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
1029 provided to be given or made or sent, or which may be given or
1030 made or sent, by either party to the other, will be deemed to have
1031 been fully given or made or sent when made in writing and
1032 deposited in the United States mail, registered and postage
1033 prepaid, and by email or facsimile addressed as follows:
1034
1035 To DRA:
1036
1037 Dubuque Racing Association, Ltd.
1038 Attn: Jesus Aviles, President & CEO
1039 1855 Greyhound Park Road
1040 Dubuque, IA 52001
1041
1042 In all cases, with copy to:
1043
1044 Stephen C. Krumpe
1045 O'Connor & Thomas, P.C.
1046 700 Locust Street, Suite 200
1047 Dubuque, IA 52001
1048
1049
1050 To City of Dubuque, Iowa:
1051
1052 Attn: City Manager
1053 City Hall
1054 13th St. & Central Ave.
1055 Dubuque, IA 52001-4864
1056 Facsimile: 563-589-4149
1057 Email:
1058
1059
1060 To Iowa Greyhound Association:
1061
1062 Attn: Bob Hardison
1063 19149 Hwy 175
1064 Onawa, IA 51040
1065
1066 In all cases, with copy to:
1067 Crawford & Mauro Law Firm
1068 Attn: Jerry Crawford
1069 1701 Ruan Center
1070 Des Moines, Iowa 50315
1071 Facsimile: 515-245-5421
1072
1073 24.2 The address and/or facsimile number to which any notice,
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
1074 demand or other writing may be given or made or sent to any party
1075 as above provided may be changed by written notice given by the
1076 party as above provided.
1077
1078 SECTION 25. MISCELLANEOUS.
1079
1080 25.1 Time of the Essence. Time is of the essence of this
1081 Sublease and all of its provisions.
1082
1083 25.2 Governing Law/Severability. It is agreed that this Sublease
1084 will be governed by, construed and enforced in accordance with the
1085 laws of the State of Iowa, and that, except as provided in Section
1086 1.2 herein, any litigation between the parties arising out this
1087 Sublease must be brought and maintained only in the Iowa District
loss Court for Dubuque. This Sublease shall be interpreted and
1089 construed to comply with Iowa Racing and Gaming Commission
1090 rules and regulations relating to live pari-mutuel greyhound racing,
1091 pari-mutuel wagering on simultaneously telecast horse or dog
1092 races, and land-based casino gambling, and all other applicable
1093 Iowa laws and regulations. This Sublease may be amended from
1094 time to time in accordance with Section 25.4, below, in order to
1095 comply with such laws and Iowa Racing and Gaming Commission
1096 rules and regulations.
1097
1098 25.3 Paragraph Headings. The titles to the paragraphs of this
1099 Sublease are solely for the convenience of the parties and may not
1100 be used to explain, modify, simplify or aid in the interpretation of
1101 the provisions of this Sublease.
1102
1103 25.4 Modification of Agreement. Any modification of this
1104 Sublease or additional obligation assumed by either party in
1105 connection with this Sublease will be binding only if evidenced in a
1106 writing duly executed by each party or an authorized representative
1107 of each party, and approved in writing by the entities listed in
1108 Section 11, herein.
1109
1110 25.5 Parties Bound. This Sublease is binding on and inures to
1111 the benefit of and must apply to the respective successors and
1112 assigns of DRA and the Iowa Greyhound Association. All
1113 references in this Sublease to "DRA" or "the Iowa Greyhound
1114 Association" will be deemed to refer to and include successors and
1115 assigns of DRA or the Iowa Greyhound Association without specific
1116 mention of such successors or assigns.
1117
1118 25.6 Force Majeure. In the event that either party hereto is
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
1119 delayed or hindered in or prevented from the performance of any
1120 act required hereunder by reason of strikes, lockouts, labor
1121 troubles, unavailability of construction materials, unavailability or
1122 excessive price of fuel, power failure, riots, insurrection, war,
1123 terrorist activities, explosions, hazardous conditions, fire, flood,
1124 weather or acts of God, or by reason of any other cause beyond
1125 the exclusive and reasonable control of the party delayed in
1126 performing work or doing acts required under the terms of this
1127 Sublease (collectively "Force Majeure"), then performance of such
1128 act will be excused for the period of the delay and the period for the
1129 performance of any such act will be extended for a period
1130 equivalent to the period of such delay.
1131
1132 25.7. Conflict of Interest. Iowa Greyhound Association agrees
1133 that no officer, director, or employee of DRA who exercises or has
1134 exercised any functions of responsibility with respect to the
1135 Subleased Premises shall have any interest, direct or indirect, in
1136 any contract or subcontract, or the proceeds thereof, in any
1137 contracts awarded by Iowa Greyhound Association for work to be
1138 performed or services to be provided to Iowa Greyhound
1139 Association in connection with the Subleased Premises at any time
1140 during such person's tenure.
1141
1142 25.8. Non -Discrimination. The Iowa Greyhound Association
1143 agrees that it will at all times conduct operations on the Subleased
1144 Premises for use by the general public without regard to race,
1145 color, age, disability, creed, religion, national origin, sex, or other
1146 legally protected category; provided, however, that the Iowa
1147 Greyhound Association may prepare and promulgate rules for the
1148 purpose of regulating the admission of persons for the purpose of
1149 conducting live dog racing, pari-mutuel wagering on live dog races
1150 and simultaneously telecasting horse or dog races in accordance
1151 with the regulations of the Iowa Racing and Gaming Commission.
1152
1153
1154
1155
1156
1157
1158
1159
1160
1161
1162
1163
—DRAFT FOR DISCUSSION ONLY—
1164
1165
1166
1167
1168
-DRAFT DISCUSSION ONLY -
[SIGNATURE PAGES AND CONSENTS FOLLOW]
-DRAFT FOR DISCUSSION ONLY-
—DRAFT DISCUSSION ONLY -
1169 IOWA GREYHOUND ASSOCIATION, SUBLESSEE:
1170
1171
1172
1173 By:
1174 Bob Hardison
1175 President
1176 Date:
1177
1178
1179
1180 DUBUQUE RACING ASSOCIATION, LTD., SUBLESSOR:
1181
1182
1183
1184 By:
1185 Jesus Aviles
1186 President & CEO
1187 Date:
1188
1189
1190
1191
1192
1193 STATE OF IOWA, DUBUQUE COUNTY ss:
1194
1195 On this day of , 20 , before me, a
1196 Notary Public in and for said county and state, personally appeared
1197 , to me personally known, who stated that
1198 he is the of Iowa Greyhound Association,
1199 and who acknowledged the execution hereof to be his voluntary act
1200 and deed and the voluntary act and deed of said corporation.
1201
1202 Notary Public, State of Iowa
1203
1204 STATE OF IOWA, DUBUQUE COUNTY ss:
1205
1206 On this day of , 20 , before me, a
1207 Notary Public in and for said county and state, personally appeared
1208 , to me personally known, who stated that
1209 he is the of Dubuque Racing Association,
1210 Ltd., and who acknowledged the execution hereof to be his
1211 voluntary act and deed and the voluntary act and deed of said
1212 corporation.
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
1213
1214 Notary Public, State of Iowa
1215
1216
1217 CITY OF DUBUQUE, IOWA CONSENT TO SUBLEASE
1218
1219 The City of Dubuque, Iowa, as the owner and lessor of the
1220 Subleased Premises to the Dubuque Racing Association, LTD.
1221 hereby consents to the Sublease Agreement Between Dubuque
1222 Racing Association, LTD., as Sublessor, and Iowa Greyhound
1223 Association, as Lessee, dated , 2014.
1224
1225 CITY OF DUBUQUE, IOWA
1226
1227
1228
1229
1230 Roy D. Buol, Mayor
1231
1232
1233 Attest:
1234
1235
1236
1237 Kevin S. Firnstahl, City Clerk
1238
1239
1240 STATE OF IOWA, COUNTY OF DUBUQUE ss:
1241
1242 On this day of , 20 , before me, the
1243 undersigned, a Notary Public in and for the State of Iowa,
1244 personally appeared Roy D. Buol and Kevin S. Firnstahl, to me
1245 personally known, who, being by me duly sworn, did say that they
1246 are the Mayor and City Clerk, respectively, of the City of Dubuque,
1247 Iowa; a municipal corporation; that the seal affixed to the foregoing
1248 instrument is the corporate seal of the corporation, and that the
1249 instrument was signed and sealed on behalf of the corporation, by
1250 authority of its City Council, as contained in Resolution No.
1251 passed by the City Council on the ; and
1252 Roy D. Buol and Kevin S. Firnstahl acknowledged the execution of
1253 the instrument to be their voluntary act and deed and the voluntary
1254 act and deed of the corporation, by it voluntarily executed.
1255
1256
1257 Notary Public, State of Iowa
—DRAFT FOR DISCUSSION ONLY—
—DRAFT DISCUSSION ONLY -
1258
1259
1260
1261 AMERICAN TRUST & SAVINGS BANK CONSENT TO
1262 SUBLEASE
1263
1264 American Trust & Savings Bank, as lender and
1265 representative of lender(s) of the Dubuque Racing Association,
1266 Ltd., and as mortgagor and secured creditor with respect to the
1267 Subleased Premises, hereby consents to the Sublease Agreement
1268 Between Dubuque Racing Association, LTD., as Sublessor, and
1269 Iowa Greyhound Association, as Sublessee, dated
1270 , 2014.
1271
1272 AMERICAN TRUST & SAVINGS BANK
1273
1274
1275
1276
1277 , its
1278
1279 STATE OF IOWA, DUBUQUE COUNTY ss:
1280
1281 On this day of , 20 , before me, a
1282 Notary Public in and for said county and state, personally appeared
1283 , to me personally known, who stated that
1284 he is the of American Trust & Savings
1285 Bank, and who acknowledged the execution hereof to be his
1286 voluntary act and deed and the voluntary act and deed of said
1287 corporation.
1288
1289 Notary Public, State of Iowa
1290
1291
1292
—DRAFT FOR DISCUSSION ONLY—
-DRAFT DISCUSSION ONLY -
1293 EXHIBIT A
1294
1295 SUBLEASED PREMISES
1296
1297
1298
1299
1300
1301
1302
-DRAFT FOR DISCUSSION ONLY-
2ND FLOOR
1111111111111
1111111111111111
3RD FLOOR
ACCESS TO ROOF
1303
1304
1305
1306
1307
-DRAFT DISCUSSION ONLY -
EXHIBIT B
AERIAL DIAGRAM OF AREA
LEASED BY CITY OF DUBUQUE TO IGA
-DRAFT FOR DISCUSSION ONLY-
THE CITY OF
EXHIBIT
_8_
Masterpiece on the Mississippi
Iowa Gre houn
Association Lease Area Ma
�AGIN)
Mages aMa .:paMPYC afMala% atttln
ALONG EXISTING
FENCE LINE
ALONG EXISTING
FENCE LINE
POINT OF
INGRESS/EGRESS
POINT OF
INGRESS/EGRESS
EXIST.
HVAC
EQUIP.
EXCEPTION:
EXIST. SHOP
BUILDING
POINT OF
INGRESS/EGRESS
POINT OF
INGRESS/EGRESS
ALONG EXISTING
FENCE LINE
EXIST.
HVAC
EQUIP.
SCIA3MCR: This Information was compiled
sing the Dubuque Area Geographic Informanen System
ALIS). which includes date created by both the City of
buque and Dubuque County. It is understood that, while
• City of Dubuque and participating agencies waling the
ort current and accurate Infamanon avagabI., OAGIS and
suppliers de not w.rnnt the accuracy or currency of the
felmanon or data contained herein. The City and partcipatag
.odes .hall not b. held Moble for any 01,001, Indl,0tt, incidental,
aguenn.l, punitive, .r .pedal damages, whether lonaee.bla or
foreseeable. arising out a1 the authorised or unauthorised un of
n data or the 'nobility to use this data or out of any brash 01
•
ALONG EXISTING
1,; BUILDING LINE j
• 414 >0
ALONG EXISTING
FENCE LINE
ALONG
EXISTING
CURB LINE
EXIST. GATE
POINT OF
INGRESS/EGRESS
ALONG CENTER-
LINE OF EXISTING
DRIVEWAY
ALONG
EXISTING
FENCE
EXISTING
DRA
LEASE
BOUNDARY
1 inch = 150 feet
150 75 0
150 Feet VV
LEASE AREA
Map Prepared by:
City of Dubuque
Engineering Division
50 West 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4270
Fax (563) 589-4205
PnatPate 49-17-2014
-DRAFT DISCUSSION ONLY -
1308 EXHIBIT C
1309
1310 INSURANCE SCHEDULE A
1311
-DRAFT FOR DISCUSSION ONLY-