Iowa Greyhound Association Lease_Disposal of Property Copyright 2014
City of Dubuque Public Hearings # 2.
ITEM TITLE: Iowa Greyhound Association Lease
SUMMARY: Proof of publication on notice of public hearing to consider the intent to
dispose of a portion of the greyhound racing facility by lease to the Iowa
Greyhound Association and the City Attorney recommending approval.
RESOLUTION Disposing 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 Disposing Interest In Real Property Resolutions
❑ Proof of Publication 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
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: November 12, 2014
RE: Greyhound Park & Mystique Casino: City of Dubuque — Iowa Greyhound
Association Lease
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. Because the City-IGA Lease is for more than five (5)
years, a public hearing is required by state law. A resolution approving the greyhound
racing facility lease with Iowa Greyhound Association is attached.
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.
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
I recommend that the City Council adopt the resolution approving the greyhound racing
facility lease with Iowa Greyhound Association.
BAL:tIs
Attachment
cc: Michael C. Van Milligen, City Manager
Jesus Aviles, General Manager, Mystique Casino
F:\USERS\tsteckle\Lindahl\Iowa Greyhound Lease Agreement\MayorCouncil_Approving lGALeaseAgreement_111214.doc
2
Prepared by Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to Kevin S. Firnstahl, City Clerk, 50 W, 13th St., Dubuque, IA 52001 563-589-4100
RESOLUTION NO. 360-14
DISPOSING 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, pursuant to notice published as required by law, held a
public hearing on the proposed disposition of the Property on November 17, 2014, and
overruled all objections thereto; and
WHEREAS, the City Council finds that it is in the best interest of the City to approve
the disposition of the Property.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. The City Council of the City of Dubuque, Iowa approves the Lease
Agreement between City and Iowa Greyhound Association, disposing of the City's interest
in the Property.
Section 2. The Mayor is hereby authorized and directed to execute the Lease
Agreement on behalf of the City.
Passed, approved and adopted this 17th day of November, 014.
L.--,(2
Roy D. Buq;', Mayor
Attest:
Kevin S. Firnstahl,(ity Clerk
111214ba1
i
n cart 01
Alwr Nv,llb:bTE
EXHIBIT A
Iowa Greyhound Association Lease Area Map
DAGIS
EXISTING DRA
LEASE BOUNDARY
ALONG EXISTING
FENCE LINE
ALONG EXISTING
FENCE LINE
POINT Of
INGRESS/EGRESS
EXIST,
HVAC
EQUIP.
EXCEPTION:
EXIST, SHOP
BUILDING
POINT OF
POINT OS
INGRESS/EGRESS
P0110 OF.
INGRES.VEGRES$
ALONG EXISTING
FENCE LINE
EXIST.
HVAC
EQUIP.
ALONG
EXISTING
FENCE
,
la/ WPM d•Aill M„ �,Cw
+MK. O,Ca'a
Vaal: la:
hl'
ALONG EXL, i`Ic
BUILDING LINL
ALONG
EXISTING
CURB LINE
1 incl: = 150 feet
150 76 0 150 Fee: W
S
EXIST. GATE -
FOINT OF
INGRESS/EGRESS
ALONG CEN -ER -
UNE OF EXISTING
DRIVEWAY
EXISTING
DRA
LEASE
BOUNDARY
LEASE AREA
Map Prepared by
CRY of DuouQue
Engnaem9 DMPm
50 Vaasa 1516 SIIEsI
DIAuque, Iowa 52001
Plum- (562) 6694270
Fax (562)5894205
PIIMIlab, 10.23:11 Fa
ementResoMionDisposingOfReal Estate by Lease with IGA 111214.doc
FIUSERSItsteakle\LindahNaroa Greyhound LeaseAg
RESOLUTION PUBLIC NOTICE ie
N0.352-14, hereby given that the
INTENT 70 DISPOSE City Council'of the City
OF AN INTEREST iIN of Dubuque;aowa,will r
REA401116
PERTYBY hold"a public hearing l
LEASE WITH IOWA On the"17th 17th day of 1
GREYHOUND November,2014 6t`6:30
ASSOCATION p.m m the City Council
WHEREAS theLCity of Chambers `of the
Dubuque,: Iowa, (City) Historic Federal Build
owns„ceptam property ing, ,350 WestSlxth
shown ?on Exhibit A Street; Dubuque, IS
attachedhereto known at'which m0etirig the'
as Dubuque Greyhound i City 60ugcil;"proposes.
Park and to `tlispose of . an
WHEREAS City interest n the i
desires to enter into a•I following described'
i
� Lease Agreementwith real property:
�.-Iowa.Gr4 hoOn, lasso The• following is
II
"clabon"forthe property" adtle�_after Par. 2`of i
shown ;on Exhibut;A; the Lease Agreement:
and r t ;' '+ 2A.: Par 2
WHEI7EA5 the City notwithstanding the
CounmLof the City of"I higown '
Dubuque belreVes it is on hlighted area sh
Ex. A attached
i'the best mterests:of hereto is excluded
the City of Dubucue to from the, ,,Leased
approu� thease Premises. fhe buildiLrg
1 e �I
Agreement • labeled "EXCEPTION
NOUN, THEREFORE; EXIST. SHOP BUILD-
BE" IT RESOLVED BY 1 ,TING" on�Ex. A, and
—- J unrestricted access
thereto by , Asso`aia I
THE CITY COUNCIL tion's employees,'
OF THE CITY OF contractors --agents,;i
DUBUQUE,IOWA'; and permittees, ;re-
Section 1.The City mains a portion of the
Council of the City of Leased Premises,;
Dubuque,Iowa,intends- Copies of supporting,i
to dispose of the City's :. for ;'the
documents
interest,in the- fore- public hearings are on
going=described:, •real file in th'e Clty�Cl er3kt's 11
property pursuant to Office, 50 "W.•
the Lease Agreement .Street,-,"and may be
between City hnd Iowa viewed durmg,normal
Greyhound,; Asso w0
rking,h6 rs
ciatioh a "copy of At the meeting,:the
which;is now on file at I'City ounciV. will
the Office 6f:the City receive oral ;and
Clerk„ City Hall, 13th 1iwritten, comMents I
and'' Central Ave., fromv any rresident or
Dubu"que"Iowa;- property owner of said
Section 2: The City ', City" to the above
Clerk s (hereby L; action. :'Written eom
authorized and mems regarding the
directed to cause this above public hearing
Resolution and a maybe? submitted to
Notice to be�published the City`Clerk's Office,
as prescribed by Iowa 50 W. 13th Street,
Code l § ,364.7 of a ctycIerk@c.jtyofdubuqu
public hearing on the e org,"on or before said l
City's intent to dispose time of;public hearing.
of the, foregoing-_l Any visual or hearing
described rea(;proper- mparredpersons'need-
kty,zto be held',on the.i ing.5pecial assisYafte
179 'day"of November,J or persons with;special j
2014;,, at 6:36 o'clock accessibiht`y needs,
prm, in the City Council, should contacE"the City
ChambQrs at -the, Clerk's Office at:(563) j
Historic Federal Build 589-4100 or TTY'(563)'i
ing,350'W,6th Street,_ 690-6678 at Igast, 48 j
Dubuque,Iowa' hours prior to the
Pas_sed,approved and F meeting
dbp,ted'this 3rd day of� Dated tin's 7th day"of
November,.2614 November,2014.-.,
Karla A Braig,, Kevin S.Firnstahl,
May
die ro Tem CMC City Clerk
Attest Keuin S + it,11/7
Firnstahl City`;clerk
CITY OF DUBUQUE, ij
IOWA
OFFICIAL NOTICE
NOTICE OFA PUBLIC I
HEARING" OF THE 1
CITY COUNCIL I OF
THE CIT1f OF
DUBUQUE, IOWA, ON
THE L MATTER OF'.
INTENT,TO'DISPOSE
OF 'THE'
CITY'S
INTEREST IN .THE
FOREGOING-DIES-
CRII3ED ,REAL• PRO-
PERTY PURSUANT TO
THE LEASE" AGREE
MENT BETWEEN CITY
AND 'IOWA �GREY
HOUND ,.ASSOCIA-
TION.
STATE OF IOWA ISS:
DUBUQUE COUNTY
CERTIFICATION OF PUBLICATION
I, Suzanne Pike, a Billing Clerk for Woodward Communications,Inc., an Iowa corporation,publisher
of the Telegraph Herald,a newspaper of general circulation published in the City of Dubuque, County
of Dubuque and State of Iowa; hereby certify that the attached notice was published in said newspaper
on the following dates: November 07, 2014, and for which the charge is $50.75,
Subscribed to before me, zVNotary Public i and for Dubuque County, Iowa,
this 1,,3 day of .� , 20
Notary Public in and for Dubuque County, Iowa.
2017
i
i
i
i
I
k
LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
IOWA GREYHOUND ASSOCIATION
THIS LEASE AGREEMENT (the Lease), dated for reference purposes the B1
day of NOVEM6k. , 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 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) 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
102914bal
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 1st day of January, 2020, and ending on the 31st 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
2
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 Lessees 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
3
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,
4
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
5
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.
6
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
7
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 Tess 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
8
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 1.2. 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.
9
(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
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 14. LESSOR RIGHTS OF ACCESS.
10
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 any action, suitor 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
11
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
12
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
writtennotice 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
With a copy to:
To Lessee:
With a copy to:
50 West 13th Street
Dubuque, IA 52001-4864
Telephone: 563-589-4110
Facsimile: 563-589-4149
City Attorney
50 West 13th Street
Dubuque, IA 52001-4864
Telephone: 563-589-4110
Facsimile: 563-589-4149
Iowa Greyhound Association
Attn: Bob Hardison
19149 Hwy 175
Onawa, IA 51040
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
k
Roy D. uol, Mayor
Attest:
Key' S. FirnstaI, City
18
By:
Bob Hardison, President
EXHIBIT A
DEMISED PREMISES
19
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EXHIBIT A
Iowa Greyhound Association Lease Area Map
DAGIS
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LEASE AREA
Map Prepared by
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Engnaem9 DMPm
50 Vaasa 1516 SIIEsI
DIAuque, Iowa 52001
Plum- (562) 6694270
Fax (562)5894205
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FIUSERSItsteakle\LindahNaroa Greyhound LeaseAg
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 t prior to contract or lease commencement. Ali lessees of City property
and Right of Way Permit Holders shall submit an updated COI annually. Each Certificate shall be prepared
on the mast 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 tease 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. AH required endorsements to various policies shall be attached to Certificate of insurance.
6. Whenever a specific ISO form N 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 1
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)
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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 1
A) COMMERaAL GENERAL L
General Aggregate Limit $2,000,000
Products -Completed Operations A regate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
a) Coverage shall be written on an occurrence, not claims made, form. All deviations from the
standard ISO commercial general liability form CG 0001, or Business owners form I3P 0002,
shall be clearly identified.
b) Include 150 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. UseI50 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.
II) WORKERSCOMPENSATION & 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
Coverage 13
Statutory—State of Iowa
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 $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 time to time.
2. Claims Coverage. The insurance carrier further agrees that this policy of insurance shall cover only
those claims not subject to the defense of governmental immunity under the Code of Iowa Section
670.4 as it now exists and as it may be amended from time to time. Those claims not subject to
Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy.
3. Assertion of Government immunity. The Oty of Dubuque, Iowa shall be responsible for asserting any
defense of governmental immunity, and may do so at any time and shall do so upon the timely
written request of the insurance carrier.
4. Non -Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the
insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa
under this policy for reasons of governmental immunity unless and until a court of competent
jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of
Dubuque, Iowa.
No Other Change in Policy. The above preservation of governmental immunities shall not otherwise
change or alter the coverage available under the policy.
SPECIMEN
Page 3 of 3 Schedule A, Property Or Vendors (Suppliers, Service Providers)
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