Diamond Jo Amended_Restated Parking Agreementm
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Recorded: 10/04/2007 at 10:26:38 AM
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Dubuque County Iowa
Kathy Flynn Thurlow Recorder
File2007-00015134
MEMORANDUM OF DEVELOPMENT AGREEMENT
RECORDER'S COVER SHEET
Preparer Information:
Barry A. Lindahl, Esq.
Suite 330, Harbor View Place
300 Main Street
Dubuque, IA 52001-6944
(563) 583-4113
Return Document To:
Barry A. Lindahl, Esq.
Suite 330, Harbor View Place
300 Main Street
Dubuque, IA 52001-6944
+ 10° G°
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Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
The AMENDED AND RESTATED PORT OF DUBUQUE PUBLIC PARKING FACILITY
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND
DIAMOND JO, LLC (the Development Agreement) was made regarding the following
described premises:
SEE EXHIBIT A
T e Development Agreement is dated for reference purposes the,1�day of
20D , and contains covenants, conditions, and restrictions concerning the sale
and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this Memorandum
and the Development Agreement itself, executed by the parties, the terms and provisions
of the Development Agreement shall prevail. A complete counterpart of the Development
Agreement, together with any amendments thereto, is in the possession of the City of
Dubuque and may be examined at its offices as above provided.
Dated this day o, 200-;�
CITY OF DUB QUE, IOWA
By: 4_
Roy D uol, Mayor
By' C�
eanne F. Schneider, City Clerk
37
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
STATE OF IOWA
ss:
DUBUQUE COUNTY
On thisz1V day of �- , 20�before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Roy D. Buol and Jeanne F. Schneider, to
me personally known, who being by me duly sworn did say that they are the Mayor and
City Clerk, respectively of the City of Dubuque, a Municipal Corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to said instrument is
the seal of said Municipal Corporation and that said instrument was signed and sealed on
behalf of said Municipal corporation by authority and resolution of its City Council and said
Mayor and City Clerk acknowledged said instrument to be the free act and deed of said
Municipal Corporation by it voluntaT"ecuted.
Notary/ Public, State of Iowa "
ESU WINTER
COMMISSION NO.ta3274
Y CpMM1SSlON FXp1REg
2!t 4l08
38
Attach mentsToAmendedand Restated Parking FacilityAgreement092707revl balfinal
Lot 1 of Adams Company's 1 st Addition,
Lot 3 of Adams Company 2nd Addition, and
Lots 1, 2, 3 and 4 of Adams Company 3rd Addition
RESOLUTION NO 485-07
RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF THE AMENDED
AND RESTATED PORT OF DUBUQUE PUBLIC PARKING FACILITY
DEVELOPMENT AGREEMENT
Whereas, a Port of Dubuque Public Parking Facility Development Agreement
(the Original Agreement), dated February 5, 2007, was entered into by and between the
City of Dubuque, a municipal corporation of the State of Iowa (City), and Diamond Jo,
LLC (f/k/a DJ Gaming Company, LLC), a Delaware limited liability company (DJ); and
WHEREAS, the Original Agreement was amended by a First Amendment to Port
of Dubuque Public Parking Facility Development Agreement approved by the City
Council of the City on March 21, 2007 and a Second Amendment to Port of Dubuque
Public Parking Facility Development Agreement dated as of August 6, 2007 (together
with the Original Agreement, the "Development Agreement"); and
WHEREAS, it is now proposed that the City and DJ further amend and restate
the Development Agreement as set forth in the Amended and Restated Port of
Dubuque Public Parking Facility Development Agreement now before this Council.
Section 1. That the form of Amended and Restated Port of Dubuque Public
Parking Facility Development Agreement now before this Council is hereby approved.
Section 2. That the Mayor is hereby authorized and directed to execute said
Amended and Restated Port of Dubuque Public Parking Facility Development
Agreement on behalf of the City of Dubuque and the City Clerk is authorized and
directed to attest to his signature.
Section 3. That the City Manager is authorized to take such actions as are
necessary to implement the terms of the Amended and Restated Port of Dubuque
Public Parking Facility Development Agreement as herein approved.
Passed, approved and adopted this 1st day of October , 2007.
Roy D. Buol, Mayor
Attest
Jeanne F. Schneider, City Clerk
THE CITY OF
DUB E
Mclster~riece nn the Mississi~~pi
MEMORANDUM
September 28, 2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Amended and Restated Development Agreement with Diamond Jo, LLC
Economic Development Director Dave Heiar recommends City Council approval of an
Amended and Restated Development Agreement with Diamond Jo, LLC for the
construction of a public parking ramp in the Port of Dubuque.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
~,.
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
THE CITY OF
DUB E MEMORANDUM
Masterpiece on the Mississippi
September 28, 2007
TO: Michael C. Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director
SUBJECT: Amended and Restated Development Agreement with Diamond Jo, LLC
INTRODUCTION
This memorandum presents for City Council consideration, an amended and restated
development agreement for the construction of a public parking ramp in the Port of
Dubuque.
BACKGROUND
On February 5, 2007, the City Council approved a Development Agreement with the
Diamond Jo, LLC for the construction of a public parking ramp in the Port of Dubuque.
This agreement was amended on March 21, 2007 and again on August 6, 2007.
The City anticipated selling Urban Renewal Tax Increment Bonds to finance this project.
The bonds will be repaid from Tax Increment revenues based on a minimum
assessment agreement on the Diamond Jo Casino project. The parent company,
Peninsula Gaming, LLC, also has provided a Guaranty as part of the Development
Agreement. The City required that the Company execute a Minimum Assessment
Agreement, and the City pledges only the taxes generated from the new value of the
project. There is no City Guarantee involved.
The bonds did not sell as anticipated prior to August 24, 2007. An extension was
granted by the contractor until September 19, 2007 at a cost of $284,414. Bonds could
not sell the second time because it had been discovered that there were two mortgages
totaling approximately $300 million on the property and Peninsula Gaming could not get
the mortgage holder to consent to the Minimum Assessment. This transferred risk to the
City.
If Diamond Jo, LLC defaulted on either or both of the mortgages for any reason, the
mortgagee would be entitled to foreclose on the development property. In that situation
the City would want the mortgagee to be bound by the Minimum Assessment
Agreement, so that it would continue paying real property taxes on the development
property in the amounts necessary to pay debt service on the bonds. Because the
mortgages were granted prior to the Diamond Jo, LLC entering into the Minimum
Assessment Agreement, however, the mortgagees are, under Iowa law, not bound by
the Minimum Assessment Agreement. In order for the mortgagees to be bound by the
Minimum Assessment Agreement, it is necessary for them to execute a consent to the
Minimum Assessment Agreement. The City required the Diamond Jo, LLC to obtain the
consent of the two mortgagees.
The contractor again agreed to a second extension, and another increase in the
contract price to accommodate the time needed to find a solution for this issue.
The inability to secure funding for this project and the concern about the existing
mortgages on the property have caused delays in the anticipated construction time
frames. These delays require an additional amendment to the development agreement.
DISCUSSION
Within the past week, the Diamond Jo has secured consents from both Wells Fargo
Foothill, Inc. and US Bank National Association to the minimum assessment agreement
that is required in the Development Agreement. The Diamond Jo and Baird have also
secured a bond buyer to purchase the bonds associated with this project at 7.5%
interest. The City has been informed by Peninsula Gaming that they are buying the
bonds themselves because no bond purchaser came forward.
Now that these two obstacles have been removed, it is possible to proceed with the sale
of the Urban Renewal Tax Increment revenue bonds. However, prior to proceeding with
the sale of bonds, the Development Agreement must be amended.
Rather than approving a 3~d amendment, all the parties have agreed it is in our best
interest to incorporate the previous amendments and the proposed changes into a
restated agreement. This will make it easier for future reference. The amendments
proposed in the restated and amended Development Agreement are as follows:
1. The date for securing financing and approval of a construction contract was
extended from August 31, 2007 to October 20, 2007.
2. A sentence was added to Section 1.3(I) to clarify the Diamond Jo's commitment
to pay for capital maintenance costs, even if these costs exceed the annual
appropriation by the Diamond Jo to a sinking fund for future capital maintenance.
3. Extends the completion dates for construction.
a) Lower three levels of north section from August 12, 2008
to November 20, 2008
b) Fourth level of north section from November 11, 2008 to
January 15, 2009
c) All levels of south section from November 11, 2008 to
January 16, 2009
4. Some of the exhibits attached to the Development Agreement (i.e. Minimum
Assessment Agreement, Guaranty, and Escrow Account) have been modified to
provide additional protection for the City of Dubuque.
RECOMMENDATION/ACTION STEP
I recommend that the City Council approve the attached resolution approving and
authorizing execution of the amended and restated Port of Dubuque Public Parking
Facility Development Agreement.
F:\USERS\DHeiar\Diamond Jo\Amended and Restated Development Agreement with Diamond Jo.doc
AMENDED AND RESTATED
PORT OF DUBUQUE PUBLIC PARKING FACILITY
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DIAMOND JO, LLC
This Amended and Restated Port of Dubuque Public Parking Facility Development
Agreement (the Agreement) is made as of this 1S day of October, 2007 by and between
the City of Dubuque, a municipal corporation of the State of Iowa (City), and Diamond Jo,
LLC (f/k/a DJ Gaming Company, LLC), a Delaware limited liability company (DJDJ).
WHEREAS, DJ intends to develop a new casino in the Port of Dubuque of the City
of Dubuque, Iowa, (the DJ Development) on real estate legally described on attached
Exhibit A (the DJ Real Estate); and
WHEREAS, in conjunction with the DJ Development, the parties believe that it is in
both of their interests that City design, develop, finance and construct a public multi-level
public parking facility to be owned and operated by City on real estate owned by City
located adjacent to the DJ Real Estate and legally described on attached Exhibit 6 (the
Public Parking Facility Real Estate) and as conceptually described on attached Exhibit C
(the Public Parking Facility); and
WHEREAS, in connection therewith the City and DJ have heretofore entered into a
Port of Dubuque Public Parking Facility Development Agreement dated as of February 5,
2007, as amended by a First Amendment to Port of Dubuque Public Parking Facility
Development Agreement approved by the City Council of the City on March 21, 2007 and a
Second Amendment to Port of Dubuque Public Parking Facility Development Agreement
dated as of August 6, 2007 (together, the "Development Agreement"); and
WHEREAS, the City and DJ now desire to further amend and restate the
Development Agreement as set forth herein.
NOW, THEREFORE, in return for good and valuable consideration of the matters
set forth in the above and foregoing recitals it is hereby agreed as follows:
SECTION 1. DJ OBLIGATIONS.
1.1. DJ Development. DJ hereby agrees to construct on the DJ Real Estate a casino
development of not less than one hundred forty thousand (140,000) square feet of floor
space along with necessary site work at a cost of approximately $45,000,000.00.
(1) DJ agrees that the design of the DJ Development shall be subject to the prior
written approval of sightlines by Port of Dubuque Adams, L.L.C.
092707balfinal
(2) DJ hereby agrees that construction of DJ Development shall be commenced
by no later than six months following the final approval of the design by the City
Manager after review by the Design Review Committee and shall be substantially
completed no later than eighteen months from the commencement of construction.
(3) The time frames for the performance of this obligation shall be suspended
due to unavoidable delays meaning delays, outside the control of DJ, which are the
direct result of strikes, other labor troubles, unusual shortages of materials or labor,
unusually severe or prolonged bad weather, acts of God, fire or other casualty to the
DJ Development, litigation commenced by third parties which, by injunction or other
similar judicial action or by the exercise of reasonable discretion directly results in
delays, or acts of any federal, state or local government which directly result in
extraordinary delays. The time for performance of such obligations shall be
extended only for the period of such delay.
1.2. DJ Financial Commitment. In consideration of the benefits to DJ provided in this
Agreement, DJ agrees to pay into an escrow account (the "Escrow Account") administered
by the City as provided in the Escrow Agreement, Exhibit M, the sum of $6.35 million (the
"Initial Advance"), provided that DJ shall be allowed, at its sole discretion, to increase the
amount of the Initial Advance and receive a corresponding reduction in the minimum
assessment provided under Section 1.4 so that the aggregate amount of the Initial
Advance and the Bond proceeds under Section 2.3 remains unchanged.
(1) The Initial Advance shall be applied by City toward the cost of designing and
constructing the Public Parking Facility. DJ shall pay such Initial Advance as costs
and expenses are incurred by City within thirty (30) days of receipt of a statement
and accompanying documentation therefor from City as such costs and expenses
are incurred by City during the design of the Public Parking Facility.
(2) If not sooner paid, the balance of the Initial Advance shall be paid by DJ to
City prior to and as a condition of the award by City of the construction contract for
the Public Parking Facility.
(3) In the event the Public Parking Facility is not completed, for any reason other
than due to DJ's material breach of this Agreement, in accordance in all material
respects with the design plans or budget as provided in this Agreement, City shall
be obligated to reimburse DJ for the portion of the Initial Advance DJ paid by it
pursuant to this Agreement. Such reimbursement shall be payable by City over
time from amounts City receives from the State of Iowa for City's one-half percent
('/2%) share of the adjusted gross receipts paid by DJ under Iowa Code Section
99F.11 and from no other source of City funds.
(4) It is agreed that this Agreement satisfies DJ's and City's obligations under
Section 32 of the Lease Agreement between City and DJ.
092707balfinal 2
(5) The parties agree that all contracts entered into by City for the design and
construction of the Public Parking Facility shall be for a fixed price or a guaranteed
maximum price (GMP), so as to allow for the establishment of a maximum total cost
for the design and construction of the Public Parking Facility.
(a) Any change orders or modifications to such contracts that will result in
the fixed price or the GMP, together with all previous change orders or
modifications, exceeding 110% of the fixed price or the GMP, shall require
the written consent of both City and DJ.
(b) DJ agrees that in the event it so consents to such a change order or
other modification to a contract that will result in the fixed price or the GMP,
together with all previous change orders or modifications, exceeding 110% of
the fixed price or the GMP, it shall pay to City within thirty (30) days of receipt
of a statement from City the amount by which such costs exceed 110% of
the fixed price or the GMP.
(c) If the amount by which such costs exceed the sum of the Initial
Advance and the proceeds of the Bonds described in Section 2.3 are
determined prior to the award by City of a contract for the construction of the
Public Parking Facility and DJ does not terminate this Agreement as
provided in Section 3.1, DJ shall pay such amount, together with a
contingency amount of ten per cent (10%) of the amount of the construction
contract, to City prior to the award by City of the construction contract.
(d) Upon acceptance of the Public Parking Facility by the City Council and
after payment by City of all costs for the design and construction of the
Public Parking Facility, City shall refund to DJ any balance in the Escrow
Fund, if any, and all interest earned on the Initial Advance. Any remaining
proceeds of the Bonds described in Section 2.3 shall be applied as set forth
in the resolution of the City Council authorizing their issuance and Section
2.3(4).
1.3. Operating Costs of Public Parking Facility. Following the opening of the Public
Parking Facility and continuing for the life of the Public Parking Facility, DJ agrees to pay
the reasonable and necessary actual operating costs incurred by City for the operation,
security, repair and maintenance of the Public Parking Facility. Such operating costs shall
include those listed on attached Exhibit K.
(1) Any costs that exceed $1,100 during the first year of operation of the Public
Parking Facility (after the first year of operation of the Public Parking Facility, the
amount of such costs shall be adjusted annually by the increase, if any, from the
previous year in the Consumer Price Index for all items for All Urban Consumers-
U.S. City Average, published by the U.S. Department of Labor, Bureau of Labor
Statistics) and that have a useful life of 3 years or more shall be considered capital
092707balfinal 3
items. City shall first use the funds paid by DJ under the first unnumbered
paragraph of Sec. 1.5 before requesting reimbursement from DJ for additional
capital maintenance costs.
(2) DJ shall reimburse City for such costs within thirty (30) days of receipt of a
statement therefor from City providing reasonable documentation to support such
amount.
(3) Following the opening of the Public Parking Facility, City will contract with DJ
at a total cost of $1.00 per year, for the maintenance and security requirements of
the Public Parking Facility pursuant to the Maintenance Services Agreement
attached hereto as Exhibit J. Notwithstanding any provision in the Agreement to the
contrary, DJ agrees that City may in its sole discretion, with or without cause,
terminate the Agreement and provide such reasonable and customary services with
its own staff or contract with a third party for such services, all costs for which DJ
shall reimburse City as provided in this Agreement. If City terminates the
Agreement, City shall purchase from DJ any equipment at its depreciated value
purchased by DJ for its maintenance and security requirements under the
Agreement.
(4) Failure of DJ to make any payment required by this Section shall constitute
an Event of Default under Section 3.3 of this Agreement.
1.4. Minimum Assessment. The parties shall execute the Minimum Assessment
Agreement attached hereto as Exhibit D. DJ shall provide City with a guaranty in the form
of Exhibit F for DJ's obligation to pay real estate taxes on the DJ Development.
1.5. Sinking Fund. DJ agrees to pay to City each year during the life of the Public
Parking Facility, commencing on the date of the opening of the Public Parking Facility, and
on anniversary of such date each year thereafter, an amount equal to $80 per parking
space in the Public Parking Facility adjusted annually by the increase, if any, from the
previous year in the Consumer Price Index for all items for All Urban Consumers-U.S.
City Average, published by the U.S. Department of Labor, Bureau of Labor Statistics.
(1) Such amount shall be separately accounted for by City and shall be drawn
upon by City from time to time to be used solely to satisfy the capital maintenance
requirements of the Public Parking Facility determined necessary by City in its sole
discretion.
(2) For the purposes of this Agreement, "capital maintenance" shall mean any
expenditure, or related series of expenditures, in excess of $1,100 during the first
year of operation of the Public Parking Facility (after the first year of operation of the
Public Parking Facility, the amount of such costs shall be adjusted annually by the
increase, if any, from the previous year in the Consumer Price Index for all items for
All Urban Consumers-U.S. City Average, published by the U.S. Department of
Labor, Bureau of Labor Statistics) and that has a useful life of three years or more.
092707balfinal 4
(3) Failure of DJ to make any payment required by this Section shall constitute
an Event of Default under Section 3.3 of this Agreement.
1.6. Rental and Compensation for Parking Privileges. DJ agrees to pay to City the rental
and compensation for parking privileges as provided in Par. 2 of the Lease Agreement
Between the City of Dubuque, Iowa and DJ Gaming Company, LLC, Exhibit G attached
hereto, for the Term of the Lease Agreement and thereafter for so long as Lots 1 and 2
described therein may remain available to DJ at City's sole discretion on the same basis as
provided in the Lease Agreement. Failure of DJ to make any payment required by this
Section constitutes a default of this Agreement and in addition to any other remedy, City
shall upon such default have the right to impose such fees as City determines in its sole
discretion for use of the Public Parking Facility.
1.7. DJ acknowledges that City has the right in its sole discretion to install parking meters
on the streets in the Port of Dubuque.
1.8. Real Estate Taxes. DJ shall pay or cause to be paid during the Term of this
Agreement, when due, all real property taxes and assessments payable with respect to all
and any parts of the DJ Development. Failure of DJ to make any payment required by this
Section shall constitute an Event of Default under Section 3.3 of this Agreement.
SECTION 2. CITY OBLIGATIONS.
2.1. Design and Construction of the Public Parkins Facility. Subject to the conditions set
forth in this Agreement, City agrees to design and construct the Public Parking Facility at a
cost estimated to be approximately $23,043,800.00 on the Public Parking Facility Real
Estate.
(1) The footprint of the Public Parking Facility shall be consistent with the
concept shown on Exhibit I, and in harmony with the DJ Development and the Port of
Dubuque Adams Development, L.L.C., and The Durrant Group, L.L.C. Development in
appearance and function.
(2) City shall retain either YWS Architects or The Durrant Group, Inc., based on
whichever architect comes in with the lower bid, to design the Public Parking Facility
on terms acceptable to City in its sole discretion (the "Project Architect").
(3) City shall hold weekly progress meetings with the Project Architect, DJ and its
representatives during the design and construction of the Public Parking Facility.
City agrees to allow DJ to provide input and comments on the design of the Public
Parking Facility, including but not limited to providing DJ timely copies of all design
documents and correspondence regarding design and providing timely notice to DJ
of any meetings regarding the design of the Public Parking Facility and allowing DJ
to attend such meetings.
092707balfinal 5
(4) In the event City fails to retain the Project Architect by March 1, 2007, DJ
may at its option terminate this Agreement by written notice to City. Termination of
this Agreement shall be DJ's sole remedy for failure of City to retain the Project
Architect. DJ shall not be entitled to reimbursement of any costs or damages
incurred by DJ in connection with this Agreement.
(5) City shall retain as a cost of the design of the Public Parking Facility an
architecture firm to provide such design review as City determines necessary of the
Project Architect's design.
(6) The parties agree that the Public Parking Facility shall be designed to include
a north facade alternate (the "North Facade Alternate"), which shall be included as
part of the plans and specifications for the Public Parking Facility and bid at the
same time as the primary construction contract for the Public Parking Facility. The
City shall have the right, in its sole discretion and without the prior consent of DJ, to
either (i) accept a bid and proceed with the construction of the North Facade
Alternate as part of the primary construction contract for the Public Parking Facility,
or (ii) decline to accept a bid for the North Facade Alternate when the primary
construction contract is awarded. If the City determines not to accept a bid for the
North Facade Alternate when the primary construction contract for the Public
Parking Facility is awarded, the City shall calculate the average of all bids received
for the construction of the North Facade Alternate that were received at such time,
and the average amount so calculated or, if greater, the amount bid by the
contractor being awarded the primary construction contract, shall be included in the
amount of the Bonds described in Section 2.3 hereof. The City shall place the
proceeds from the Bonds related to the North Facade Alternate in an interest
bearing account. At any time prior to June 1, 2012, the City may determine to use
those Bond proceeds, and such other City funds as it may determine to be
appropriate, to construct the North Facade Alternate. I n the event the City does not
elect to use those Bond proceeds to construct the North Facade Alternate prior to
June 1, 2012, those Bond proceeds including investment income thereon, will be
applied to redeem Bonds on that date or as soon as is practicable once such
election is made pursuant to the redemption provisions of the Bonds generally
described in Section 2.3 (4) below.
2.2. Use of Parking Lot by DJ. City agrees that for so long as DJ is not in default (as
defined under Section 3.3 below), and subject to City's right to limit access to the Public
Parking Facility during emergencies, severe weather conditions, maintenance or other
similar circumstances, the Public Parking Facility shall remain open 24 hours per day, 7
days per week to the general public, including but not limited to DJ's patrons (but excluding
DJ's employees who DJ agrees to prohibit from parking in the Public Parking Facility), in
each case free of charge and without any unreasonable restrictions, but subject to the
terms of the Development Agreement between City, Port of Dubuque Adams Development,
L.L.C., and The Durrant Group, L.L.C., and the Development Agreement between City and
The McGraw-Hill Companies.
092707balfinal 6
City agrees no future development project in the Port of Dubuque over which City
has control or is able to exercise influence shall be approved by City unless such
development project contemplates and provides for parking sufficient to accommodate the
reasonable parking needs of such development for the foreseeable future as determined'
by City in its sole discretion. It is acknowledged by DJ that the Public Parking Facility is
intended to be utilized for the shared parking needs of the Port of Dubuque, including but
not limited to the development contemplated by Port of Dubuque Adams, L.L.C. and The
Durrant Group, L.L.C., as described in Exhibit E, the DJ Development, Dubuque County
Historical Society projects, and McGraw-Hill for employee parking as provided in Par. 12 of
the Development Agreement Between the City of Dubuque and The McGraw-Hill
Companies, Inc., Exhibit L attached hereto.
2.3. City Financing Obligations. City agrees, subject to the conditions set forth in Section
2.4 below, to issue tax increment financing bonds (the Bonds) for the remaining costs
associated with the design and construction of the Public Parking Facility in such amount
as to allow for the Bonds to be paid off over a period of thirty (30) years utilizing the
Incremental Property Tax Revenues (as defined below) and the income earned on any
reserve fund, in whole, or in part should the Incremental Property Tax Revenues and
income earned on any reserve fund exceed the Bond payment obligations from the DJ
Development and assuming a minimum assessment amount as provided in Exhibit D.
(1) Interest and principal shall be paid from Incremental Property Tax Revenues
generated by the DJ Development and income earned on the any reserve fund, as
provided in Exhibit D.
(2) DJ recognizes and agrees that Incremental Property Tax Revenues are
solely and only the incremental taxes collected by City in respect to the DJ
Development, which does not include property taxes collected for the payment of
bonds and interest of each taxing district, and taxes for the regular and voter-
approved physical plant and equipment levy, and any other portion required to be
excluded by Iowa law. Accordingly, the parties understand that due to the amounts
that are legally required to be excluded from the Incremental Property Tax
Revenues, such incremental taxes will not include all amounts paid by DJ as regular
property taxes.
(3) DJ acknowledges and agrees that it shall identify for City a purchaser for the
Bonds (the Purchaser) and City agrees to negotiate in good faith with the Purchaser
with respect to the terms of the Bonds. Except as specifically set forth herein, DJ
further acknowledges and agrees that the Bonds shall be sold on such terms and
conditions, bear such interest rates, have such reserve funding requirements,
mature at such times and in such amounts as City, in its sole but reasonable, good
faith discretion, shall determine to be acceptable to it and the Purchaser and shall
be payable from and secured solely and only by a pledge of the Incremental
Property Tax Revenues to be collected by City in respect of the DJ Development
and income earned on any reserve fund during a period not to exceed thirty (30)
years.
092707balfinal 7
(4) Proceeds of the Bonds shall be applied only to the payment of capitalized
interest thereon (if necessary), debt service reserve funding, costs of issuance, and
the payment of the costs of the design and construction of the Public Parking
Facility, including the funding of a contingency amount equal to 10% of the fixed
price, GMP for the Public Parking Facility as provided in Section 1.2(5) above (the
"Contingency Amount"). The terms of the Bonds shall provide in substance that the
portion of the Bonds issued for the payment of the costs of the design and
construction of the Public Parking Facility, including the funding of the Contingency
Amount and including the Bonds issued in anticipation of the construction of the
North Facade Alternate, plus any income earned thereon, and not so used for that
purpose, shall be used by the City to defease or call Bonds.
(5) City shall have no obligation to fund the costs of the design and construction
of the Public Parking Facility to be paid hereunder from any source other than the
proceeds of the Bonds.
(6) City's obligation to issue the Bonds and undertake its obligations hereunder
shall be subject in all respects to unavoidable delays, the provisions of this Section
and Section 2.4, and to the satisfaction of all conditions required (in the reasonable
judgment of bond counsel for City) by Chapter 403 of the Code of Iowa, as
amended, with respect to the issuance of the Bonds.
(7) The parties agree that in the event the election is not made by the City to
construct the North Facade Alternate as provided in Section 2.1(6) and the funds
that are held in escrow for the North Facade Alternate are used to call and satisfy a
portion of the Bonds as provided in Section 2.3(4) above, any excess Incremental
Property Tax Revenues that are not attributable to an increase in valuation of the DJ
Development or the applicable tax rate and which would have otherwise been used
to pay principal and interest on the Bonds related to the North Facade Alternate
shall be placed in an interest earning escrow account by the City and along with any
income earned thereon, used to call or defease the Bonds. DJ shall have the right
to select the Bonds that will be called or defeased.
2.4. Limitations on Financial Undertakings of City. Notwithstanding any other provisions
of this Agreement, City shall have no obligation to DJ under this Agreement to issue the
Bonds or to fund the design or construction of the Public Parking Facility, if any of the
following conditions exist as of October 20, 2007:
(1) City is unable to complete the sale of the Bonds on such terms and
conditions as it shall deem necessary or desirable in its sole discretion; or
(2) City is entitled (or, with the passage of time or giving of notice, or both, would
be entitled) under this Agreement to exercise any remedies set forth therein as a
result of any Event of Default;
092707balfinal 8
(3) DJ fails to sign the Minimum Assessment Agreement and provide City with
the guaranty required by Section 1.4; or
(4) There has been, or there occurs, a material adverse change in the financial
condition of DJ, which change(s) make it substantially more likely, in the reasonable
judgment of City, that DJ will be unable to fulfill its covenants and obligations under
this Agreement.
2.5. Use of Tax Increments. DJ recognizes that City intends to utilize the Incremental
Property Tax Revenues collected each year in respect of the DJ Development and the
income generated on any reserve fund to pay debt service on the Bonds. Notwithstanding
the foregoing, except as provided in Section 2.3(7) above, City shall be free to use any
excess Incremental Property Tax Revenues not required for the satisfaction of the principal
and interest payments on the Bonds collected each year in respect of the DJ Development
(for example, those revenues resulting from increases in valuation of the DJ Development
or the applicable tax rate) for any purpose for which the Incremental Property Tax
Revenues may lawfully be used pursuant to the provisions of the Urban Renewal Act, and
City shall have no obligation to DJ with respect to use thereof.
2.6. Limitation on City Funding_ DJ acknowledges and agrees that it is the intent of the
parties that City shall not incur any costs related in any way to the design, construction, or
operation of the Public Parking Facility which are not paid for or reimbursed by DJ or
financed with the Bonds. Anything in this Agreement to the contrary notwithstanding, DJ's
obligation to pay costs and expenses in the event this Agreement is terminated prior to the
award of a construction contract and the Public Parking Facility is not completed, shall be
limited to the amount of City's contract with the Project Architect and City's contract with a
review architect as provided in Par. 2.1.
SECTION 3. GENERAL TERMS AND CONDITIONS.
3.1. Conditions Precedent. If any of the following conditions has not occurred prior to
October 20, 2007, either party may terminate this Agreement upon written notice to the
other party. DJ's termination of this Agreement shall be its sole remedy. DJ shall not be
entitled to reimbursement of any costs or damages incurred by DJ in connection with this
Agreement. In the event DJ elects to terminate this Agreement, DJ shall reimburse City for
all reasonable out-of-pocket costs incurred by City in connection with this Agreement and
DJ shall reimburse City for all such costs within thirty days of receipt by DJ of City's
statement of such costs, including appropriate documentation thereof.
(1) City shall have obtained all required design approvals from the Design
Review Committee for the Public Parking Facility and DJ shall have consented to
such design, which consent shall not be unreasonably withheld.
(2) DJ and the City shall have received all necessary approvals from any
governmental agency, utility, lender, security holder or other party whose approval is
required for the undertakings and obligations under this Agreement, specifically
092707balfinal 9
including, but not limited to approval of this Agreement by the Iowa Racing and
Gaming Commission and a firm commitment from the Purchaser regarding its
purchase of the Bonds on terms satisfactory to City and DJ.
(3) City shall have received and DJ shall have approved, bids pursuant to which
it can be determined that the Public Parking Facility can be designed and
constructed for an amount equal to or less than the sum of the amounts to be
provided by DJ under Section 1.2 and financed by City under Section 2.3.
Additionally, all such costs of design and construction shall be supported by
agreements with the contractors and other vendors that include a fixed price or have
a guaranteed maximum price (GMP) that permits the Public Parking Facility to be
constructed within the budget provided for herein, taking into consideration a 10%
contingency for the costs of construction of the Public Parking Facility. The parties
acknowledge that such fixed price or GMP shall be subject to change modifications
or orders approved by City, provided that any change orders or modifications to
such contracts that will result in the fixed price or the GMP, together with all
previous change orders or modifications, exceeding 110% of the fixed price or the
GMP, shall require the written consent of both City and DJ.
(4) City and DJ shall have agreed upon the construction cost and timing of the
construction of the Public Parking Facility.
(5) DJ shall have signed the Minimum Assessment Agreement and provided City
with a guaranty in a form acceptable to City for DJ's obligation to pay real estate
taxes on the DJ Development.
(6) Both parties are obligated to pursue all required approvals as expeditiously
as possible and to negotiate in good faith to complete the execution of the
agreements identified and required as conditions precedent to the other obligations
set forth herein.
3.2. Cooperation by the Parties. City and DJ agree to cooperate in good faith in
connection with the performance of all of the activities contemplated herein and to use all
commercially reasonable efforts and diligence to promptly respond and perform the
obligations provided for directly or indirectly by this Agreement. The parties agree and
understand that it is their intent that the timing of the design and construction of the Public
Parking Facility will be such that the completion and opening of the Public Parking Facility
will coincide with the completion and opening of the DJ Development. The parties agree to
use all reasonable effort and resources to assure that construction of the Public Parking
Facility commences on or before October 20, 2007 and that the sections of the Public
Parking Facility shown on Exhibit A attached hereto be completed and ready for use on or
before, the later of the opening of the DJ Development or the following:
North Section, lower three levels: November 20, 2008
North Section, fourth level: January 16, 2009
092707balfinal 10
South Section, all levels: January 16, 2009
In the event the sections of the Public Parking Facility are not substantially completed and
ready for use on such dates, and such delay is due to a breach by the City of its obligations
under this Agreement, the City shall pay to DJ an amount equal to $100 per day that each
section of the Public Parking Facility remains incomplete and unopened by the foregoing
dates as liquidated damages for its breach of this Agreement. Additionally, the parties
agree that the construction contract(s) shall include a liquidated damages provision that
provides for the contractor to pay to DJ the amount of $1,000 for each day each section of
the Public Parking Facility remains unfinished after the later of the opening of the DJ
Development and the foregoing dates.
3.3. Events of Default Defined. The following shall be Events of Default under this
Agreement and the term Event of Default shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(1) Failure by DJ to pay or cause to be paid, before delinquency, all real property
taxes assessed with respect to the DJ Development.
(2) Failure by DJ to cause the construction of the DJ Development to be
commenced and completed pursuant to the terms, conditions and limitations of this
Agreement.
(3) Failure by DJ to substantially observe or perform any other material
covenant, condition, obligation or agreement on its part to be observed or performed
under this Agreement.
(4) Any default provided for under Sections 1.3, 1.5, and 1.6 above.
3.4. Remedies on Default by DJ. Whenever any Event of Default referred to in Section
3.3 of this Agreement occurs and is continuing, City, as specified below, may take any one
or more of the following actions after the giving of written notice by City to DJ of the Event
of Default, but only if the Event of Default has not been cured within sixty (60) days
following such notice, or if the Event of Default cannot be cured within sixty (60) days and
DJ does not provide assurances to City that the Event of Default will be cured as soon as
reasonably possible thereafter:
(1) City may suspend its performance under this Agreement until it receives
assurances from DJ deemed adequate by City, that DJ will cure its default and
continue its performance under this Agreement;
(2) Until October 19, 2007, City may cancel and rescind this Agreement;
092707balfinal 11
(3) City shall be entitled to recover from DJ the sum of all amounts expended by
City in connection with this Agreement, and City may take any action, including any
legal action it deems necessary, to recover such amounts from DJ;
(4) City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable to collect any payments due under this
Agreement or to enforce performance and observance of any obligation,
agreement, or covenant under this Agreement;
(5) City shall have the right to impose such fees as City determines in its sole
discretion for use of the Public Parking Facility.
3.5. No Remedy Exclusive. No remedy herein conferred upon or reserved to City is
intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be deemed expedient.
3.6. No Implied Waiver. In the event any agreement contained in this Agreement should
be breached by any party and thereafter waived by any other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any other
concurrent, previous or subsequent breach hereunder.
3.7. Additional Agreements. From time to time hereafter without further consideration,
the parties agree to execute and deliver, or cause to be executed and delivered, such
further agreements and instruments, and shall take such other actions, as any party may
reasonably request in order to more effectively memorialize, confirm and effectuate the
intentions, undertakings and obligations contemplated by this Agreement.
3.8. Counterparts. This Agreement may be executed in any number of counterparts with
the same effect as if the parties hereto had signed the same document. All such
counterparts shall constitute one instrument.
3.9. Term. This Agreement shall continue in effect during the life of the Public Parking
Facility.
3.10. Additional Provisions.
(1) It is hereby agreed and acknowledged that failure or performance of breach
of agreement by any party hereto could result in irreparable harm to another party
hereto. An action in equity and the relief of specific performance is therefore
reserved to all parties hereto.
092707balfinal 12
(2) All exhibits attached to this Agreement are incorporated herein and made a
part hereof by this reference.
(3) Whenever the singular number is used in this Agreement, the same shall
include the plural where appropriate and words of any gender shall include any
other gender where appropriate.
(4) All notices, demands, requests or other communications required or
permitted by this Agreement shall be in writing and shall be deemed to be received
when actually received by any person at the intended address if personally served
or sent by courier or telex, or whether actually received or not, twenty-four (24)
hours after the date and time ofdelivery to anationally-recognized courier, address
as follows:
To the City: City Manager
City Hall
50 W. 13th Street
Dubuque, IA 52001
Copies to: City Attorney
City Hall
50 W. 13th Street
Dubuque, IA 52001
To DJ:Attn. Natalie Schramm
Diamond Jo, LLC
400 E. 3~d Street
Dubuque, IA 52001
With copies to: Curtis E. Beason
Lane & Waterman LLP
220 N. Main St., Ste. 600
Davenport, IA 52801
Any party may, in substitution of the foregoing, designate a different address or
addresses within the continental United States for purposes of this section by
written notice delivered to the otherparty in the manner prescribed, at least ten (10)
days in advance of the date on which such change of address is to be effective.
(5) This Agreement embodies the entire agreement between and among the
parties and may be amended or supplemented only by an instrument in writing
executed by the parties hereto.
(6) This Agreement may not be assigned without the written consent of all other
parties hereto, which consent shall not be unreasonably withheld. Subject to the
092707balfinal 13
foregoing, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective successors and assigns.
(7) Time is of the essence in this Agreement and each and every provision
contained herein.
(8) In the event of a dispute arising between or among the parties hereto, each
party shall be responsible for paying its own attorney's fees and court costs, if any,
incurred in connection with such dispute.
(9) This Agreement shall be governed by the laws of the State of Iowa and shall
be construed in accordance therewith and all of the rights and obligations hereunder
shall be determined in accordance with the laws of the State of Iowa. All parties
acknowledge that they have negotiated this Agreement in the City of Dubuque, Iowa
and that the property at issue is located in the City of Dubuque, Iowa.
(10) The parties hereto represent to each other that each has the full right, power
and authority to enter into this Agreement and to fully perform its obligations. The
persons executing this Agreement warrant and represent that each has the authority
to execute in the capacity stated and to bind the parties herein.
(11) No failure by any party hereto, at any time, to require the performance of any
other party or any term of this Agreement, shall in any way affect the right of any
party to enforce such terms, nor shall any waiver by any party of any term hereof be
taken or held to be a waiver of any other provision of this Agreement. No waiver of
any term or provision of this Agreement shall be effective unless the same is in
writing, signed by the parties hereto.
(12) City and DJ shall promptly record a Memorandum of Agreement in the form
attached hereto as Exhibit H in the office of the Recorder of Dubuque County, Iowa.
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
Jeanne F. Schneider, City Clerk
092707balfinal 14
DIAMOND JO, LLC
By: Jonathan Swain
EXHIBIT LIST
Exhibit A DJ Real Estate Legal Description
Exhibit B Public Parking Facility Real Estate Legal
Description
Exhibit C Conceptual Description of Public Parking
Facility
Exhibit D Minimum Assessment Agreement
Exhibit E Port of Dubuque Adams Development, L.L.C.
and The Durrant Group, L.L.C. Proposal
Exhibit F Guaranty
Exhibit G Lease Agreement Between the City of
Dubuque, Iowa and DJ Gaming Company,
LLC,
Exhibit H Memorandum of Agreement
Exhibit I Public Parking Facility Concept
Exhibit J Maintenance Services Agreement
Exhibit K Operating Costs
Exhibit L Par. 12 of the Development Agreement
Between the City of Dubuque and The
McGraw-Hill Companies, Inc.
Exhibit M Escrow Agreement
15
EXHIBIT LIST
Exhibit A DJ Real Estate Legal Description
Exhibit B Public Parking Facility Real Estate Legal
Description
Exhibit C Conceptual Description of Public Parking
Facility
Exhibit D Minimum Assessment Agreement
Exhibit E Port of Dubuque Adams Development, L.L.C.
and The Durrant Group, L.L.C. Proposal
Exhibit F Guaranty
Exhibit G Lease Agreement Between the City of
Dubuque, Iowa and DJ Gaming Company,
LLC,
Exhibit H Memorandum of Development Agreement
Exhibit I Public Parking Facility Concept
Exhibit J Maintenance Services Agreement
Exhibit K Operating Costs
Exhibit L Par. 12 of the Development Agreement
Between the City of Dubuque and The
McGraw-Hill Companies, Inc.
Exhibit M Escrow Agreement
1
AttachmentsToAmendedandRestatedParkingFacilityAgreement092507rev3balfinal
Exhibit A
DJ Real Estate Legal Description
Lot 1 of Adams Company's 1St Addition, Lot 3 of Adam's Company 2"d Addition, and
Lots 1 2, 3, and 4 of Adams Company 3~ Addition, in Dubuque County, Iowa.
2
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
Exhibit B
Public Parking Facility Real Estate Legal Description
Part of Lots 1 and 2 of Adams Company's 2"d Addition, in the City of Dubuque, Iowa
3
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
Exhibit C
Conceptual Description of Public Parking Facility
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
5
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AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
Exhibit D
Minimum Assessment Agreement
10
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
Prepared by: Barry A. Lindahl, 300 Main Street, Suite 330, Dubuque, Iowa 52001-4113
Return to: Barry A. Lindahl, 300 Main Street, Suite 330, Dubuque, Iowa 52001-4113
MINIMUM ASSESSMENT AGREEMENT
THIS MINIMUM ASSESSMENTAGREEMENT,dated as of October 1, 2007, by and
among the CITY OF DUBUQUE, IOWA, (the "City"), DIAMOND JO, LLC, a Delaware
limited liability company (the "Company"), and the CITY ASSESSOR of the City of
Dubuque, Iowa (the "Assessor").
WITNESSETH:
WHEREAS, the City and Company have entered into an Amended and Restated
Port of Dubuque Public Parking Facility Development Agreement dated as of October 1,
2007 (the Development Agreement) regarding certain real property located in the City, the
legal description of which is contained in Exhibit A attached hereto (the "Development
Property"); and
WHEREAS, it is contemplated that the Company will undertake the construction
of a new casino facility (the "Casino") on the Development Property, as provided in the
Development Agreement; and
WHEREAS, pursuant to Section 403.6 of the Code of Iowa, as amended, the City
and the Company desire to establish a minimum actual value for the Development
Agreement and the new Casino improvements to be constructed thereon by the Company
pursuant to the Development Agreement (the "Minimum Improvements"); and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the Minimum Improvements which it is contemplated will be erected; and
WHEREAS, that City has authorized the issuance of $23,025,000.00 Urban
Renewal Tax Increment Revenue Bonds, Taxable Series 2007 (the "Bonds"), the proceeds
of which will be used to construct a parking facility on the property adjacent to the
Development Property, the principal of and interest on which Bonds are expected to be
11
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
paid from the real property taxes paid by the Company with respect to the Development
Property and the Minimum Improvements located thereon.
NOW, THEREFORE, the parties to this Minimum Assessment Agreement, in
consideration of the promises, covenants and agreements made by each other, do hereby
agree as follows:
1. Upon substantial completion of construction of the above-referenced
Minimum Improvements, but no later than January 1, 2009, the minimum actual taxable
value which shall be fixed for assessment purposes for the Development Property and the
Minimum Improvements to be constructed thereon shall be not less than Fifty-Seven
Million Eight Hundred Ninety Thousand Six Hundred Forty-Nine and no/100 Dollars
($57,890,649.00) (hereafter referred to as the "Minimum Actual Value")until termination of
this Minimum Assessment Agreement on the date that all of the Bonds shall have been
paid in full or provision for their payment shall have been made (including without limitation
the defeasance thereof) (the "Termination Date"). The Minimum Actual Value shall be
maintained during such period regardless of (a) any failure to complete the Minimum
Improvements (b) destruction of all or any portion of the Minimum Improvements (c)
diminution in value of the Development Property or the Minimum Improvements or (d) any
other circumstance, whether known or unknown and whether now existing or hereafter
occurring.
2. The Company shall pay, when due, all real property taxes and assessments
payable with respect to all and any parts of the Development Property and the Minimum
Improvements pursuant to the provisions of this Minimum Assessment Agreement and the
Development Agreement. Such tax payments shall be made without regard to any loss,
complete or partial, to the Development Property or the Minimum Improvements, any
interruption in, or discontinuance of, the use, occupancy, ownership or operation of the
Development Property or the Minimum Improvements by Company or any other matter or
thing which for any reason interferes with, prevents or renders burdensome the use or
occupancy of the Development Property or the Minimum Improvements.
3. In the event that for any reason the Minimum Actual Value is not realized or
incremental taxes collected in respect of the Development Property and the Minimum
Improvements located thereon are insufficient to pay the scheduled payments of principal
and interest on the Bonds, the Company agrees to pay as taxes, or, if and to the extent
necessary, to make other supplementary payments, in an aggregate amount necessary to
pay when due the principal of and interest on the Bonds, including any amounts due as a
result of scheduled sinking fund payments, in each case promptly upon demand by the
City. The parties intend that the annual amount of incremental taxes to be so collected
shall be not less than the annual requirement for scheduled principal and interest on the
Bonds.
4. The Company agrees that its obligations to make the tax payments required
hereby, to pay the other sums provided for herein, and to perform and observe its other
agreements contained in this Minimum Assessment Agreement and in the Development
12
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
Agreement shall be absolute and unconditional general obligations of the Company (not
limited to the statutory remedies for unpaid taxes) and that the Company shall not be
entitled to any abatement or diminution thereof, or set off therefrom, nor to any termination
of this Minimum Assessment Agreement for any reason whatsoever. The Company
agrees not to request or accept any abatement, settlement or other diminution of taxes
resulting from the application of prevailing tax rates to the Minimum Actual Value.
5. The Company agrees that prior to the Termination Date it will not:
(a) seek administrative review or judicial review of the applicability or
constitutionality of any tax statute relating to the taxation of property contained as a
part of the Development Property or the Minimum Improvements determined by any
tax official to be applicable to the Development Property, the Minimum
Improvements or the Company or raise the inapplicability orconstitutionality of any
such tax statute as a defense in any proceedings, including delinquent tax
proceedings; or
(b) seek any tax deferral or abatement, either presently or prospectively
authorized under Iowa Code Chapter 403 or 404, or any other State or federal law,
of the taxation of real property including improvements and fixtures thereon,
contained in the Development Property or the Minimum Improvements between the
date of execution of this Agreement and the Termination Date; or
(c) request the Assessor to reduce the Minimum Actual Value; or
(d) appeal to the board of review of the County, State or to the Director of
Revenue of the State to reduce the Minimum Actual Value; or
(e} cause a reduction in the actual value or the Minimum Actual Value
through any other proceedings.
6. The Company further agrees:
(a) to construct the Casino on the Development Property in accordance
with the plans approved by the Company and the City, and to operate and maintain
the Casino for so long as it is the owner such facility;
(b) to maintain all required licenses with respect to the Casino, including
its license from the State of Iowa to operate the Casino as a gaming facility;
(c) to purchase and maintain business interruption insurance with one or
more insurance companies qualified to do business in the State of Iowa in an
amount determined by management of the Company to be sufficient in accordance
with industry practice given the nature of its business but including in all events the
Company's obligation to make the tax and other payments described herein during
such business interruption. That portion of the proceeds of such insurance
13
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
necessary to pay the debt service due on the Bonds shall be delivered to the City by
the Company in a timely manner so as to ensure such payment;
(d) to purchase and maintain property loss and casualty insurance with
one or more insurance companies qualified to do business in the State of Iowa in an
amount not less than the replacement value of the Casino, which proceeds from
such insurance, if received by the Company and not applied or intended to be
applied toward reconstruction or replacement of the Casino, shall be delivered to the
City in an amount necessary, if any, to satisfy the remaining debt service then due
and owing under the Bonds; and
(e) that any agreement for the sale of all or substantially all of the assets
of the Company shall include a covenant by the subsequent purchaser to comply
with all of the Company's obligations under this Minimum Assessment Agreement
from and after the date of such sale.
Any breach by the Company of the covenants set forth in (a) through (e)
above shall constitute an Event of Default under the resolution of the City
authorizing the issuance of the Bonds.
7. This Minimum Assessment Agreement shall be promptly recorded by the
Company with the Recorder of Dubuque County, Iowa. Such filing shall constitute notice to
any subsequent encumbrancer or purchaser of the Development Property (or part thereof),
whether voluntary or involuntary, and this Minimum Assessment Agreement shall be
binding and enforceable in its entirety against any such subsequent purchaser or
encumbrancer, including the holder of any mortgage. The Company shall pay all costs of
recording.
8. Neither the preambles nor provisions of this Minimum Assessment
Agreement are intended to, or shall be construed as, modifying the terms of the
Development Agreement between the City and the Company.
9. This Minimum Assessment Agreement shall not be assignable by the
Company without the consent of the City and shall not be assignable by the City without
the consent of the Company. Notwithstanding any provision to the contrary in this
Minimum Assessment Agreement, in the event that the Company provides prior notice to
the City of a proposed assignment, accompanied by a report from McGladrey & Pullen,
LLP or another nationally recognized firm of independent certified public accountants
mutually agreed upon by the City and the Company (in either event, which is not currently
engaged by the Company, the proposed assignee or the City), to the effect that in its
opinion, based upon the firm's analysis of the most recent financial statements of the
proposed assignee and such other information as the firm considers appropriate, the
proposed assignment will not materially adversely affect the timely repayment of all
outstanding principal and interest on the Bonds, then the City's consent to the assignment
shall not be withheld or delayed, and upon the assumption of this Minimum Assessment
Agreement by the assignee, the Company shall be fully released from its obligations under
14
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
this Minimum Assessment Agreement. This Minimum Assessment Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
10. Nothing herein shall be deemed to waive the Company's rights under Iowa
Code Section 403.6(19) to contest that portion of any actual value assignment made by the
Assessor in excess of the Minimum Actual Value established herein. In no event, however,
shall the Company seek to reduce the actual value to an amount below the Minimum
Actual Value established herein during the term of this Agreement. This Minimum
Assessment Agreement may be amended or modified and any of its terms, covenants,
representations, warranties or conditions waived, only by a written instrument executed by
the parties hereto, or in the case of a waiver, by the party waiving compliance.
11. If anyterm, condition or provision of this Minimum AssessmentAgreement is
for any reason held to be illegal, invalid or inoperable, such illegality, invalidity or
inoperability shall not affect the remainder hereof, which shall at the time be construed and
enforced as if such illegal or invalid or inoperable portion were not contained herein.
12. The Minimum Actual Value herein established shall be of no further force and
effect and this Minimum Assessment Agreement shall terminate on the Termination Date.
15
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
Iowa Code § 403.6 Powers of municipality.
Every municipality shall have all the powers necessary or convenient to carry out
and effectuate the purposes and provisions of this chapter, including the
following powers in addition to others herein granted:
****
19. A municipality, upon entering into a development or redevelopment
agreement pursuant to section 403.8, subsection 1, or as otherwise permitted in
this chapter, may enter into a written assessment agreement with the developer
of taxable property in the urban renewal area which establishes a minimum
actual value of the land and completed improvements to be made on the land
until a specified termination date which shall not be later than the date after
which the tax increment will no longer be remitted to the municipality pursuant to
section 403.19, subsection 2. The assessment agreement shall be presented to
the appropriate assessor. The assessor shall review the plans and specifications
for the improvements to be made and if the minimum actual value contained in
the assessment agreement appears to be reasonable, the assessor shall
execute the following certification upon the agreement:
The undersigned assessor, being legally responsible for the assessment of the
above described property upon completion of the improvements to be made on it,
certifies that the actual value assigned to that land and improvements upon
completion shall not be less than $ ........... .
This assessment agreement with the certification of the assessor and a copy of
this subsection shall be filed in the office of the county recorder of the county
where the property is located. Upon completion of the improvements, the
assessor shall value the property as required by law, except that the actual value
shall not be less than the minimum actual value contained in the assessment
agreement. This subsection does not prohibit the assessor from assigning a
higher actual value to the property or prohibit the owner from seeking
administrative or legal remedies to reduce the actual value assigned except that
the actual value shall not be reduced below the minimum actual value contained
in the assessment agreement. An assessor, county auditor, board of review,
director of revenue, or court of this state shall not reduce or order the reduction of
the actual value below the minimum actual value in the agreement during the
term of the agreement regardless of the actual value which may result from the
incomplete construction of improvements, destruction or diminution by any
cause, insured or uninsured, except in the case of acquisition or reacquisition of
the property by a public entity. Recording of an assessment agreement
complying with this subsection constitutes notice of the assessment agreement
to a subsequent purchaser or encumbrancer of the land or any part of it, whether
voluntary or involuntary, and is binding upon a subsequent purchaser or
encumbrancer.
THE CITY OF DUBUQUE, IOWA
D.
By:
Roy Buol, Mayor
ATTEST:
By:
Jeanne Schneider, City Clerk
STATE OF IOWA )
SS -
COUNTY OF DUBUQUE )
On this 1st day of October , 2007, before me a Notary Public in
and for said County, personally appeared Roy Buol and Jeanne Schneider to me
personally known, who being duly sworn, did say that they are the Mayor and City Clerk,
respectively of the City of Dubuque, Iowa, a Municipal Corporation, created and existing
under the laws of the State of Iowa, and that the seal affixed to the foregoing instrument is
the seal of said Municipal Corporation, and that said instrument was signed and sealed on
behalf of said Municipal Corporation by authority and resolution of its City Council and said
Mayor and City Clerk acknowledged said instrument to be the free act and deed of said
Municipal Corporation by it voluntarily executed. ~~~ ~,
Notary ~'ubllic in and for the State of Iowa
•rP~At 8 KEVIN S. FIRNSTAHL
~ COMMISSION N0.745295
r MY COMMISSION EXPIRES
~ow~ 2112!10
16
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
DIAMOND JO, LLC
By. Natalie Schramm
Title: CFO
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
On this 28th day of September, 2007, before me a
,1N11 yy ~try,~~ Pu I~ in and for the State of Iowa, personally appeared
Natalie Schramm, to me personally known, who being duly sworn, did say that
She is the CFO of DIAMOND JO, LLC, a Delaware limited liability company,
who executed the foregoing instrument; and that she
acknowledged the execution of said instrument to bevoluntary act and deed, voluntarily
executed.
N ary Public in and for said County and State
Karen M. Beetem
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 bal
CONSENT TO MINIMUM ASSESSMENT AGREEMENT
The undersigned, being the holder of one or more mortgages granted prior to the
date of the Minimum Assessment Agreement to which this Consent is attached, said
mortgage(s) encumbering a portion of the Development Property described therein,
hereby consents to the execution and recording of the foregoing Minimum Assessment
Agreement and agrees to be bound thereby.
WELLS FARGO FOOTHILL, INC.
/~
By:
Name: Patrick McCormack
Vice President
Title
STATE OF
COUNTY OF
ss
On this day of , 2007, before rne, the
undersigned a Notary Public in and for said County and State, personally appeared
to me personally known, who being by me duly sworn, did
say that the person is the of Wells Fargo Foothill, Inc., a
California corporation, executing the within and foregoing instrument; that said
instrument was signed on behalf of said corporation by authority of the corporation; and
that the said as such officer acknowledged the execution of
said instrument to be the voluntary act and deed of said corporation by it voluntarily
executed.
Notary Public
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA )
ss.
COUNTY OF LOS ANGELES )
On September 26, 2007 ,before me, Christy S. Walsh
PATE NAME, TITLE OF OFFICER E.G. JANE DOE, NOTARY PUBLIC
personally appeared Patrick McCormack
NAMES OF SIGNER(S)
® personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted,
Wi„~,,,a,~a~ executed the instrument.
CHRISTY S. Walsh
Comml><>tilon #~ 17Z~ZIZ Witness my hand. and official seal.
Notary Public - CaNfol~
log Anpels~ Counhl
Cam, hb 'ZOl t L%~2~,If~_ ZGG~~Ga(/1 ~
Signature of Notary
~~~ ?..v ;,`~yr'~i;.sr'_i ?'i~r~ t aa~`~ j'i -,>c= ,..-.,,. ~ _, ~.,"- ~ ~ t '~''~}..t:-;.y
`. OPTIO„NAL SECTfON ,,,. ~ ~ ` . , ~ ~~~ . ~,~;~ -~ ~.,:: -
c 1.'.
CAPACITY CLAIMED BY SIGNER
Though statute does not require the Notary to fill in the
data below, doing so may prove invaluable to persons
relying on the document
^ INDIVIDUAL
®CORPORATE Patrick McCormick
OFFICERS Vice President
macs)
^ PARTNERS ( )LIMITED ( )GENERAL
^ ATTORNEY-IN-FACT
^ TRUSTEE(S)
^ GUARDIAN/CONSERVATOR
^ OTHER:
THIS
CERTIFICATE
MUST BE
ATTACHED TO
THE
DOCUMENT
DESCRIBED AT
RIGHT:
Though the data
requested here is not
required bylaw, it
could prevent
fraudul3nt
reattachment of this
form
TITLE OR TYPE OF DOCUMENT: Consent To Minimum
Assessment Agreement - (Diamond Jo)
NUMBER OF PAGES: -1-
DATE OF DOCUMENT: September 26. 2007
SIGNER(S) OTHER THAN NAMED ABOVE:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES):
Wells Far~to Foothill, Inc.
CONSENT TO MINIMUM ASSESSMENT AGREEMENT
The undersigned, being the holder of one or more mortgages granted prior to the
date of the Minimum Assessment Agreement to which this Consent is attached, said
mortgage(s) encumbering a portion of the Development Property described therein,
hereby consents to the execution and recording of the foregoing Minimum Assessment
Agreement and agrees to be bound thereby.
U.S. BANK NATIONAL ASSOCIATION,
as trustee
By: ~~
Name Raymond s. Haverstock
Vice President
Title
STATE OF ~AINNESOTA
COUNTY OF ~,~+~~`f
ss
On this 27th day of September, 2007, before me, the
undersigned a Notary Public in and ors id County and State, personally appeared
Raymond S. Haverstock , to me personally known, who being by me duly sworn, did
say that the person is the Vice President of U.S. Bank National
Association, a national banking association, executing the within and foregoing
instrument; that said instrument was signed on behalf of said banking association by
authority of said banking association; and that the said vice President as
such officer acknowledged the execution of said instrument to be the voluntary act and
deed of said banking association by it voluntarily executed.
L ELAINE EBY ~
~„ ~ Notary Public Notary Public
Minnesota L. Elaine Eby
~` M Commission Ex i~ss Janua 31 2010
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed and the market value assigned to the land upon which the
Minimum Improvements are to be constructed, and being of the opinion that the minimum
market value contained in the foregoing Minimum Assessment Agreement appears
reasonable, hereby certifies as follows: The undersigned Assessor, being legally
responsible for the assessment of the property described in the foregoing Minimum
Assessment Agreement, and in accordance with the Minimum Assessment Agreement,
certifies that the actual value assigned to such land and improvements shall not be less
than Fifty-Seven Million Eight Hundred Ninety Thousand Six Hundred Forty-Nine and
no/100 Dollars ($57,890,649.00) until termination of this Minimum Assessment Agreement
pursuant to the terms hereof.
City Assessor for the City of Dubuque, Iowa
Richard A Engelken
Date
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
Subscribed and sworn to before me by Richard Engelken, City Assessor for the
City of Dubuque, Iowa.
Jeanne F. Schneider
• MY CflMM1~91flN EXPlRBS
~ow- 9/26/10
~.~lotary Public in and for the State of Iowa
Date
20
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
EXHIBIT A
DEVELOPMENT PROPERTY
The Development Property is described as consisting of all that certain parcel or
parcels of land located in the City of Dubuque, State of Iowa, more particularly
described as follows:
Lot 1 of Adams Company's 1st Addition,
Lot 3 of Adams Company 2nd Addition, and
Lots 1, 2, 3 and 4 of Adams Company 3rd Addition
DCORNELU 549069\ MSWord\10422077
21
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
Exhibit E
Port of Dubuque Adams Development, L.L.C.
and
The Durrant Group, L.L.C. Proposal
[Separate document not inserted here]
22
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
Exhibit F
Guaranty
23
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
Prepared by Barry A. Lindahl, Esq. 300 Main Street Suite 330 Dubuque IA 52001 563.583.4113
Return to Barry A. Lindahl, Esq. 300 Main Street Suite 330 Dubuque IA 52001 563.583.4113
GUARANTY
THIS GUARANTY is given this 1 st day of October, 2007, by Peninsula Gaming, LLC
(hereinafter referred to as "Guarantor").
WITNESSETH:
WHEREAS, Guarantor owns all of the issued and outstanding membership interests
of Diamond Jo, LLC ("DJ");
WHEREAS, DJ has entered into an Amended and Restated Port of Dubuque
Public Parking Facility Development Agreement dated as of October 1, 2007 (the
Development Agreement) between City and DJ;
WHEREAS, as part of the Development Agreement, DJ is agreeing to a minimum
assessment agreement on the DJ Real Estate, including the DJ Development (as those
terms are defined in the Development Agreement) and has agreed to pay all property taxes
assessed against the DJ Real Estate; and
WHEREAS, pursuant to section 1.4 of the Development Agreement and in
consideration for the City entering into the Development Agreement, Guarantor is required
to guaranty the payment of all property taxes assessed against the DJ Real Estate.
NOW, THEREFORE, the Guarantor hereby agrees as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF GUARANTOR.
Guarantor hereby represents and warrants that:
1.1 It is not in violation of any provision of the laws of the States of Iowa or any other
State in which it currently conducts business except any such violation which would not
reasonably be expected to have a material adverse effect on the business, properties,
assets and financial condition of Guarantor and DJ, taken as a whole.
1.2 It has the power and authority to execute, deliver and perform this Guaranty and
enter into and carry out the transactions contemplated herein which are not in
contravention of, and do not and will not constitute a default under or conflict with or violate
any indenture, mortgage, deed of trust, guaranty, lease, agreement or other instrument to
which the Guarantor or DJ are a party or by which they or their property is bound or any
law, administrative regulation, court order or consent decree except any such default,
conflict or violation which would not reasonably be expected to have a material adverse
effect on the business, properties, assets and financial condition of Guarantor and DJ,
taken as a whole.
24
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
1.3 This Guaranty has been duly authorized, executed and delivered by the Guarantor
and all steps necessary have been taken to constitute this Guaranty, when duly executed
and delivered, a legal, valid and binding obligation of the Guarantor.
1.4 This Guaranty is made in furtherance of the purposes of the Guarantor and that the
assumption by the Guarantor of the obligations of DJ hereunder will result in direct financial
benefits to the Guarantor.
SECTION 2. COVENANTS AND AGREEMENTS.
2.1 Unconditional Guaranty. Guarantor hereby unconditionally and irrevocably
guarantees to the City the prompt and complete payment of all real property taxes and
assessments and other supplementary payments payable by DJ in accordance with the
terms of Section 1.8 of the Development Agreement and the Minimum Assessment
Agreement as and when said payments are therein required to be made.
2.2 Guaranty to Remain in Force Until Bonds are Paid. The obligations of Guarantor
under this Guaranty shall be absolute, unconditional and irrevocable and shall remain in full
force and effect until the earlier to occur of (i) the Termination Date (as defined in the
Minimum Assessment Agreement), and (ii) the date on which the Minimum Assessment
Agreement is terminated in accordance with its terms, and such obligations shall not be
affected, modified or impaired upon the happening from time to time of any event, including
without limitation any of the following, whether or not with notice to, or the consent of,
Guarantor:
(a) the compromise, settlement, release or termination of any or all of the
obligations, covenants or agreements of City under the Development Agreement;
(b) the failure to give notice to Guarantor of the occurrence of an event of default
under the terms and provisions of this Guaranty or the Development Agreement;
(c) the waiver of the payment, performance or observance by City or Guarantor
of any of the obligations, covenants or agreements of them contained in the
Development Agreement or this Guaranty;
(d) the extension of the time for performance of any obligation, covenant or
agreement under or arising out of the Development Agreement or this Guaranty or
the extension or the renewal of either thereof;
(e) the modification or amendment (whether material or otherwise) of any
obligation, covenantor agreement set forth in the Development Agreement;
(f) the taking or the omission of any of the actions referred to in the
Development Agreement and any actions under this Guaranty;
(g) any failure, omission, delay or lack on the part of City to enforce, assert or
25
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
exercise any right, power or remedy conferred on the City in this Guaranty or the
Development Agreement, or any other act or acts on the part of City;
(h) the voluntary or involuntary liquidation, dissolution, sale or other disposition of
all or substantially all the assets, marshaling of assets and liabilities, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors or readjustment of, or other similar
proceedings affecting DJ or City or any of the assets of them, or any allegation or
contest of the validity of the Development Agreement in any such proceeding;
(i) to the extent permitted by law, the release or discharge of Guarantor from the
performance or observance of any obligation, covenant or agreement contained in
this Guaranty by operation of law;
(j) any merger or consolidation involving the Guarantor or the transfer by the
Guarantor of all or substantially all of its assets;
(k) the default or failure of Guarantor fully to perform any of his obligations set
forth in this Guaranty, provided that the specific enumeration of the above-
mentioned acts, failures or omissions shall not be deemed to exclude any other
acts, failures or omissions, though not specifically mentioned above, it being the
purpose and intent of this paragraph that the obligation of Guarantor shall be
absolute, unconditional and irrevocable to the extent herein specified and shall not
be discharged, impaired or varied until the Termination Date (as defined in the
Minimum Assessment Agreement) shall have occurred. Without limiting any of the
other terms or provisions hereof, it is understood hereunder, there shall be no
obligation on the part of the City to resort in any manner to any other person, firm or
corporation, their properties or estates.
2.3 Liability Not Affected by Bankruptcy. Without limiting the foregoing, it is specifically
understood that any modification, limitation, or discharge of the liability of DJ under the
Development Agreement or of the liability of the Guarantor hereunder arising out of or by
virtue of any bankruptcy, arrangement, reorganization or similar proceeding for relief of
debtors under Federal or State law hereafter initiated by or against the Guarantor or DJ
shall not affect, modify, limit, or discharge the liability of the Guarantor hereunder in any
manner whatsoever and this Guaranty shall remain and continue in full force and effect
and shall be enforceable against the Guarantor to the same extent and with the same force
and effect as if any such proceedings had not been instituted; and it is the intent and
purpose of this Guaranty and the Guarantor shall and does hereby waive all rights and
benefits which might accrue to it by reason of any such proceeding and the Guarantor
agrees that it shall be liable to the City as provided herein, irrespective and without regard
to any modification, limitation, or discharge of the liability of the Guarantor that may result
from any such proceeding.
2.4. Ric,~ht to Proceed Against Guarantor. In the event of a default under Section 3.3(1)
of the Development Agreement or under the Minimum Assessment Agreement, the City, in
26
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
its sole discretion, shall have the right to proceed first and directly against Guarantor under
this Guaranty without proceeding against or exhausting any other remedies which it may
have under the Development Agreement or otherwise and without resorting to any other
security held by the City.
2.5. Waiver of Notice and Reliance on Guaranty. Guarantor expressly waives notice
from the City of its acceptance and reliance on this Guaranty. Guarantor agrees to pay all
costs, expenses and fees, including all reasonable attorneys' fees, which may be incurred
in enforcing or attempting to enforce this Guaranty following any default on the part of
Guarantor hereunder, whether the same shall be enforced by suit or otherwise.
SECTION 3. MISCELLANEOUS.
3.1 This Guaranty shall be construed in accordance with and governed by the laws of
the State of Iowa.
3.2 This Guaranty is entered into pursuant to the Section 1.4 of the Development
Agreement. Capitalized terms not otherwise defined herein shall have the meanings
provided in the Development Agreement.
3.3 In the event of a default by DJ under its obligation to pay property taxes under the
Development Agreement for which the Guarantor has provided this Guaranty, the
Guarantor expressly reserves and shall be entitled to all defenses, claims and other rights
of DJ against the City or any other party.
3.4 Nonexclusive Remedy; Notice; Waiver; Amendment. No remedy herein conferred
upon or reserved to the City is intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Guaranty or now or hereafter existing at law or in
equity. No delay or omission to exercise any right or power accruing upon any default,
omission or failure of performance hereunder shall impair any such right or power or shall
be construed to be a waiver thereof; but any such right and power may be exercised from
time to time and as often as may be deemed expedient. In order to entitle the City to
exercise any remedy reserved to it in this Guaranty, it shall not be necessary to give any
notice, other than such notice as may be herein expressly required. In the event any
provision contained in this Guaranty should be breached by Guarantor and thereafter duly
waived by the City, such waiver shall be limited to the particular breach so waived and shall
not be deemed to waive any other breach hereunder. No waiver, amendment, release or
modification of this Guaranty shall be established by conduct, custom or course of dealing,
but solely by an instrument in writing duly executed by the City and the Guarantor. This
Guaranty may be amended or modified and any of its terms, covenants, representations,
warranties or conditions waived, only by a written instrument executed by Guarantor and
the City, or in the case of a waiver, by the party waiving compliance.
3.5 Entire Agreement. This Guaranty constitutes the entire agreement and supersedes
all prior agreements between the parties with respect to the subject matter hereof and may
27
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
be executed simultaneously in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same instrument.
3.6 Severability. The invalidity or unenforceability of any one or more phrases,
sentences, clauses or Sections in this Guaranty shall not affect the validity or enforceability
of the remaining portions of this Guaranty, or any part thereof.
3.7 Release. Following the earlier to occur of (i) the Termination Date (as defined in the
Minimum Assessment Agreement), or (ii) termination of the Minimum Assessment
Agreement, this Guaranty shall by its terms terminate and, upon request by Guarantor, the
City shall release Guarantor from the provisions of this Guaranty in writing.
3.8 Successors and Assigns. This Guaranty shall not be assignable by the Guarantor
without the consent of the City and shall not be assignable by the City without the consent
of the Company. Notwithstanding any provision to the contrary in this Guaranty, in the
event that the Company provides prior notice to the City of a proposed assignment,
accompanied by a report from McGladrey & Pullen, LLP or another nationally recognized
firm of independent certified public accountants mutually agreed upon by the City and the
Company (in either event, which is not currently engaged by the Company, the proposed
assignee or the City), to the effect that in its opinion, based upon the firm's analysis of the
most recent financial statements of the proposed assignee and such other information as
the firm considers appropriate, the proposed assignment will not materially adversely affect
the timely repayment of all outstanding principal and interest on the Bonds, then the City's
consent to the assignment shall not be withheld or delayed, and upon the assumption of
this Guaranty by the assignee, the Guarantor shall be fully released from its obligations
under this Guaranty. This Guaranty shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective successors and permitted
assigns.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty on the day and
year first above written.
as
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
GUARANTOR:
PENINSULA GAMING, LLC
Y•
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
On this 28th day of September, 2007, before me the undersigned,
a ~ t ry Public in and for said County, in said State, personally appeared
Natalie Schramm , to me personally known, who, being by me duly sworn,
did say that said person is the Guarantor, that the instrument was signed on behalf of the
Guarantor, and that he acknowled ed the execution of the instrument to be the voluntary
act and deed of the Guarantor, b~t and ~~ varily e~cecuted.
ot~ry Public in and for said County and State
Karen M. Beetem
29
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 bal
The foregoing Guar my is hereby accepted on behalf of the City of Dubuque, Iowa, this
1st day of October, 2007.
CITY OF DU QUE, IOWA
Roy D Buol, Mayor
ATTEST
Jeanne F. Schneider, City Clerk
30
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
Exhibit G
Lease Agreement
Between
the City of Dubuque, Iowa
and
Peninsula Gaming Company, LLC,
31
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
n-, ~ -
. - 4
,4 .. LEASE AGREEMEIVI' ,
~~
BETWEEN •
.THE CITY air DUBUQUE, IOWA .
• AND-
PENINSULA GAMING COMPANY, LL.C.
THIS LEASE AGREEMENT, executed in.dirpllcate. made and entered into this
1 stday of June, 2005 by. and betwee~t THE CITY OF DUSUQUE,I4WA (hereinafter c~led •
the "Landior+d'~ whose address for the purpose of this Lease ,+lgreemerrt fs City Hall, 50
West 13th Street, Dubuque, taws 52001 and PENINSULA GAMHVG COMPANY, L.I_.C.
(hereinafter caked the "Tenant")whose address for the purpose of this Lease Agreement
is 3rcI Street - Ike Harbor, Dubuque, Iowa 5200: -
1. PREMfSE3 AND TERM. The Landbrd, in consideration of.the rents herein -
reserved and of file agreemerrfs and:conditions tien~in contained; on~the part ofthe Tenant
to be kept and. performed:feases unto the Tenant and Tenant hereby rerrts and leases
from Landlord, according to the terms and provisions herein, the fnilowing described real'
estate. situated in Dubuque County. Iowa, fie wb ' .
The patio area :(Parcel B} as shown on Exhbit A .attached hereto (but
spedflcaUy excluding the hyd rautic IfR boated on Lok B~) and .bythis reference
.. made a part hereof (the Leased premises), legally desEnbed as a part~of tact
- -.~ 6 of ice. Harbor' Devebpment, according b the recorded plat thereof, .
,~
with the improvements thereon .and ~ rights; easements and appurtenances thereto
tonging, for a term caommendng at midnight of the.day previous to the •frrst day of the
lease teen, which shag be on.the~1~ day of June. 2005, and ending of midnight ort the last
day of-the lease iierm; which shat! tie on ~ the 31st day cif ~ December, 2018, upon. -the
condtdon that the Tenant. pays rent ther+eforre. and otherwise performs as ~ this Lease
Agreemenrt provkfes.
The landlord resentes unto itself- .a • ~ non-exdusive, perpetual Public ~ Access
Easement, to non wifh the land, as.shown on F..xhib~ A, for itself and for publb pedesMan
access', said access fio remain open, dear and unobstructed at all times:except as may be
otherwise agreed to in writing by the Landkxd. • . ~ •
Tenant agrees that Its.rights under the Revised Ice Flarbor Parking Agreement for
Ice Harbor .Urban Renewal Dtstiict are terminated upon execution of this agreement.
Landlorcl, hereby grants to `Fenant; itg management employees and patrons during theterm
of this Agreement the ncin-exclusive pmrilege to park in' Parking Lo~.ts.-4 and•2 shown on
Exhibit A at no additional dtarge. (other than the rent herein) in Tenant, its management
employees orpatrons. Tenant agrees that Tenantwi~ ~require.that all of its employees sha8
park only in parkng lots owned by Tenant or In- a city-owned parking garage. .
Page 1 of 25.
32
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
'~, ~ _
Landlord hereby grants to Tenant permission, ~subJect to such other permission as
may be required by any other governmental entity. tO construct a iwo-sbory (not to.exoeed
the height of the.exlsting portside~facJUtyj barge (as defined by. Iowa Code Chapter 99F
(2005) in extend not morsthan the maximum permitted bythe Uml~d, States Cpasi Gua~il
and/orthe Una States Army Corps of Engineers but in no even# mare than 150 feet from
Tenant's drment dock facility into the ice. Harbor. Landlord agrees to cooperate with end
support Tenant's application b.othergovemmerrtal entities for ~y required pern>~sion for
such barge. in the event Tenant constnrots such barge, the arise upon whk:h such .barge
is located shall became a part of the'Leased Premises. ~ ~ .
2. RENTALAND CO>ulP~NSATfON FOR PARKING PW11.lL~GES tN LOTS 1 AND
2. Tenant agrees to. pay to Landb'd as rental and corrapensation_forths-gory-exclushre
parking priv~eges for Lots 1 and -2 for said tens, as folkn+vs: ~ - '
{a) Rental. $ 25;000.00 per year ~. advarwe, upon full execution_ ~ of this Lease
Agreement, and=-$25;000.00 on the first day of Jurie of each year thereafter, -
adjusted,as follows: .
FJrst Year of Lease term (2005-2008}: $ 25,000.0(} ~ _
Second Year of Lease Tern (2006-2007): $25,000.00
r
!, ~ Third Year of Lease Team (20p7-2008}: '. $25,000.UO
Fourth Year of Lease Teirn (2008-2009): $25,000.00 .
Fifth Year of Lease Term. (2009-2010): $25;000.00
Sixth Year of Lease term (2010-2011r -
$ 2-5,000.00 is COL Index June 1,2010
COL Index June 1,.2009
Seventh Year of Lease Term (2011-2012):
$ 25,000:00 x COL Index June 1, 2011 '
COL Index June 1, 2009
Eighth Year of Lease Term (2012.2013): ~ '
$ 25,0.00 x COL Index June 1, 2012
COL index_June 1; 2009 .
Page 2 of 25
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`; ) Ninth Year of Lease Term. (2013-2014):
$ 25,000.00 x COL IridemJune 1, 2013 ..~ ~ .
- COL. Index June 1,2009
Tenth Year of Lease Temt-(2014-2015):
$ 25,000.00 x COL Index June 1, 2014 ~ - .
. COL. Index June 1,2009 '
- Eleventh Year of Lease Te~rn'(2015-2016}: _. .
S 25,000.OD x COL Index June t; 2015
. _COL index June t, 2009 '
Twelftit Year of Lease Term (2016-2017r
$ 25,000.00 x COL Index June 1,2016
~, . ~~ 'COL Index June'1,~2009
Thirteenth Year of Lease Terre (20th-20it3}:
$ 25,000.00 x COL index June 1.2017
COL Index June 1, 2009 •
Fourteenth Year.of Lease Terra (June 1:, 2018 -December 31, 2018):
..$ 25.000,00 x COL Index June 1, 2018 (prorated)
' GOL Index June 1.2009
:COL index meana~-the Consumer Price .Index for •all items for.AU urban
Consurraars~U.S. City Average, published by the U.S. Departrrrent ~of Labor, Bureau of
Labor Statistics. .. ~ '
(b) Paridng. $225,000.00 per year at the rate of $18,750.00 per- month beginning on the
1• day of January 2009, and. on the first day of each month theresftei'. adjusted~as
follows: .
~ first Year of Lease Term (2005-2006): $ 0
Page 3 of 25
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AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
} Second Year of Lease Term {2006-2007): $ 0
Third Year of Lease Term {2007-2008): $ 0
Fourth Year of Lease Term (200&2009): $ 0 - .
• .y,. .
Fifth Year of Lease Term (2009-2010):. $225;000.00
Sixth Year of Lease Term (201Q-2019):
$ 225,000.00 x COL.Index Juna 4, 2010
COL Index June 1, 2009 {base year) '
Subsequent years of .the lease Term shall be adjusted by the COL index in the
same manner, using 2009 as the base year. - '
• (c) Parking, in the' event; however, that Tenant expands its fadlitles as provided in the
Eleventh Amendment to the Operating 'Agr'eement between the Dubuque Raring
. Assodatlon and 'Fenant,.dated~the 31'~ dayof May, 2005. Tenant's payment b Landbrd
under this Par. 2(b) shall be as follows: -
~ c ~ $475,OD0.00 pet• year at the rate of $39,583:33 per month beginning on the -1'~ day of the.
operatbn of such new facOltles, and on the fast day of each month thereafter, adjusted by
the COL Index in the manner~provided ln'{a) and (b) using the yearprkirto the first year
of the operation ofthe new facAitles as the base year. ' .
All sums shall be paki at the address of Larrdbrcl, as above. designated, or at such
other place-in Iowa. or elsewhere. as the Landlord may. mom-lima fio ttme,-desi~rate in
writing: ~ .
3. POSSESSION. Tenant shatl be entltled to possession on~the first day of the
term of this Lease Agreement, and sha0 yteld~posses$lon to the Landlord at the lime and . .
dale of the case ofthis lease term. except as herein otherwise expresser provid~sd.Should
Landlord be unable in give possessbn on said date; TendnYs only damages shall be a
rebating of die pra rata rental.
4. USE OF PREMISES.
It fs contemplated between the parties thatthe Demised Premises shall be usedby
Lessee for concerts (primarily birt riot limited to Wednesdays and Fridays), entartaq~Crrent .
and food service to.the°customers of Lessee and other members of~the public and that
attendance at some of the events will requli+e an admission f8e orother charge and some
will be'withotit charge: Lessee shall have the.-right, at Its option, during the term of this
j Lease. to use the improvements {as defined below) and the Demised Premises in any
t5age 4 of 25
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Exhibit H
Memorandum of Agreement
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Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
The AMENDED AND RESTATED PORT OF DUBUQUE PUBLIC PARKING FACILITY
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND
DIAMOND JO, LLC (the Development Agreement) was made regarding the following
described premises:
T e Development Agreement is dated for reference purposes the 1st day of
October, 2007,and contains covenants, conditions, and restrictions concerning the sale
and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this Memorandum
and the Development Agreement itself, executed by the parties, the terms and provisions
of the Development Agreement shall prevail. A complete counterpart of the Development
Agreement, together with any amendments thereto, is in the possession of the City of
Dubuque and may be examined at its offices as above provided.
Dated this 1st day October, 2007
CITY OF DUB QUE, IOWA
'i
1
By: i .f
Roy D. Buol, Mayor
By
Jeanne F. Schneider, City Clerk
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STATE OF IOWA
DUBUQUE COUNTY
ss:
On this 1st day of October, 2007, before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Roy D. Buol and Jeanne F. Schneider, to
me personally known, who being by me duly sworn did say that they are the Mayor and
City Clerk, respectively of the City of Dubuque, a Municipal Corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to said instrument is
the seal of said Municipal Corporation and that said instrument was signed and sealed on
behalf of said Municipal corporation by authority and resolution of its City Council and said
Mayor and City Clerk acknowledged said instrument to be the free act and deed of said
Municipal G,orporation by it volunt~~rrti9'e~Cecuted.
Public, State of Iowa
SUSAN M. WINTER
° ' COMMISSION N0.183274
r MY COMM/SS10N EX'P1HE3
~ow~ 2/14/08
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Exhibit I
Public Parking Facility Concept
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Exhibit J
Maintenance Services Agreement
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MAINTENANCE SERVICES AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DIAMOND JO, LLC
This Agreement is made this 1St day of October, 2007, between the City Of
Dubuque, Iowa (City), and Diamond Jo, LLC, (DJ).
Whereas, City and DJ have entered into the Amended and Restated Port of
Dubuque Public Parking Facility Development Agreement (the "Development Agreement")
dated October 1, 2007, which in part provides for City to design, develop, finance,
construct, own, and operate a parking ramp (the Public Parking Facility); and
Whereas, City will design, develop, finance, construct, own, and operate the multi-
level Public Parking Facility; and
Whereas, DJ has agreed to pay the reasonable and necessary operating costs
incurred by City for the operation, security, repair, and maintenance of the Public Parking
Facility; and
Whereas, Paragraph 1.3(3) of the Development Agreement provides that following
the opening of the Public Parking Facility, City will contract with DJ at a total cost of $1.00
per year, for the maintenance and security requirements of the Public Parking Facility and
DJ agrees that City may in its sole discretion, with or without cause, terminate this
Agreement and provide such reasonable and customary services with its own staff or
contract with a third party for such services, all costs for which DJ shall reimburse City as
provided in this Agreement and the Development Agreement; and that if City terminates
the Agreement, City shall purchase from DJ any equipment at its depreciated value
purchased by DJ for its maintenance and security requirements under the Agreement; and
Whereas, pursuant to the Development Agreement the DJ has requested to provide
the maintenance and security requirements for the Public Parking Facility as further
provided herein.
IT IS AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:
SECTION 1. PURPOSE AND DESCRIPTION. DJherebyagreestoprovidethemaintenanoe
and security for the Public Parking Facility according to the terms and provisions of this Agreement.
SECTION 2. TERM OF AGREEMENT. The term of this Agreement shall commence upon
the opening of the Public Parking Facility and shall continue for a five (5) year period unless either
party provides the otherwith notice of termination not less than one hundred eight (180) days priorto
the end of the then current term; provided that, the City may terminate this Agreement at its sole
discretion, with or without cause or the occurrence of an event of default at any time on not less than
thirty (30) days written notice to DJ.
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SECTION 3. COMPENSATION. As compensation for the services performed hereunder,
DJ shall be paid $1.00 per year.
SECTION 4. MAINTENANCE AND OPERATION.
4.1. Maintenance. DJ shall perform the following maintenance on the Public Parking
Facility:
(1) Regular and routine maintenance of the Public Parking Facility shall be
performed, which shall include, but not be limited to, daily pickup of trash
and debris, daily cleaning of lobbies on all floors, all stairs, landings,
elevators, and restrooms, replacing of lamps and restroom supplies (lamps,
disposable restroom supplies, general lawn care, maintenance, and
replacement of landscaping, and cleaning supplies shall be furnished by DJ)
and other routine care of the Public Parking Facility.
(2) Necessary special maintenance operations as circumstances require shall
be performed, including, but not limited to, removal of snow, ice and slush
from entrances, exits, steps and sidewalks, general lawn care and
maintenance of the landscaping. Snow and ice removal is to be completed by
8:00 a.m. each day and as soon as precipitation ends at other times of the
day. The top parking level, including all exposed parking areas, is to be
cleared after precipitation ends. All snow piles shall be removed from the Public
Parking Facility within twenty-four (24) hours after snowfall ends
(3) Sweeping and cleaning of the Public Parking Facility on an as needed basis
but not less than monthly.
(4) All preventive maintenance described on the attached Exhibit
A at the times indicated therein.
(5) DJ shall purchase or lease all equipment necessary to provide
the services herein.
4.2. Services. DJ shall provide and perform the following services for the Public Parking
Facility:
(1) All necessary utilities shall be maintained at control levels as approved
by City and shall be paid by the DJ.
(2) Security services including, but not limited to as follows: (i) providing
assistance to Public Parking Facility tenants with problems in entering and
exiting the Public Parking Facility; (ii) monitoring and responding to all security
equipment; (iii) maintaining an emergency plan covering emergencies
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occurring in the Public Parking Facility (iv) routine patroling of the Public Parking
Facility by security personel; (v) monitoring of security cameras (which shall also be
monitored at the 911 Emergency Communications Center); and (vi) such other
security measures as the City shall reasonably require.
(3) Such other services as City may reasonably require from time to time
that are necessary to maintain and operate the Public Parking Facility in a
manner consistent with the standards of operation of other parking Public
Parking Facilityfacilities in the City of Dubuque.
SECTION 5. RIGHT TO INSPECT AND MAKE REPAIRS.
5.1. City shall have the right any time to:
(1) Inspect the Public Parking Facility.
(Z) Perform maintenance and make repairs and replacements in any case where DJ is
obligated to do hereunder and where DJ has failed, after reasonable notice, to do so, in which event
DJ shall reimburse City for the cost thereof, promptly upon demand.
(3) Perform maintenance and make repairs and replacements in any case where City
determines that it is necessary or desirable, to do so, in order to preserve the safety of the faalities
or to correct any condition likely to cause injury or damage to persons or property.
SECTION 6. STANDARDS OF SERVICE. It is the policy of City that the Public Parking
Facility shall be operated in an efficient manner, giving the best possible service to the public. DJ
agrees to cooperate at all times in s u pport of this policy and to manage and operate the Public
Parking Facility in-accordance with the terms and condfions of this Agreement.
SECTION 7. INSURANCE REQUIREMENTS
7.1. DJ shall acquire and maintain at its own expense insurance as set forth in the attached
Insurance Schedule as such schedule may from time to time be amended by City.
7.2 Before assuming operation of the Public Parking Facility, DJ shall submit to City
certificates of insurance required under this Section.
7.3 City shall provide general liability insurance coverage for City, its officers and
employees, and fire and casualty insurance coverage for the Public Parking Facility, which
shall be included as operating costs paid by DJ.
SECTION 8. PAYMENT OF EXPENSES. All operating costs for the Public Parking Facility shall
be paid by DJ as provided in Section 1.3 of the Development Agreement. Capital maintenance
items shall be paid from the Sinking Fund described in Section 1.5 of the DevelopmentAgreement.
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SECTION 9. ASSIGNMENT. DJ shall not, at any time, assign this Agreement or any part
hereof, without the prior written consent of City.
SECTION 10.GENERAL PROVISIONS.
10.1. Compliance With Law. DJ shall comply, at all times during the term ofthisAgreement,
with all applicable ordinances and laws of the City of Dubuque, county, or state government or of
the United States Government, and of any political division or subdivision or .agency authority or
commission thereof that may have jurisdiction to pass laws or ordinances with respect to the
Public Parking Facility.
10.2. Reservation Of Rights. Any and all rights and privileges not granted to DJ by this
Agreement are hereby reserved for and to City.
10.3. Governing Law. This Agreement and all disputes arising hereundershall be governed
by the laws of the State of Iowa.
10.4. Nonwaiver Of Rights. No waiver of default by either party of any of the temps, oovenar>ts,
and conditions hereof to be performed, kept, and observed by the other party shall be construed as,
or shall operate as, a waiver of any subsequent default of any of the terms, covenants, or conditions
herein contained, to be performed, kept, and observed by the other party.
10.5. Severabilifir. If one or more clauses, sections, or provisions of this Agreement, or the
application thereof, shall be held to be unlawful, invalid, or unenforceable, the remainder and
application hereof of such provision shall not be affected thereby, provided, however, that if
any provisions herein allowing termination of this Agreement by City in its sole discretion
shall be held to be unlawful, invalid, or unenforceable, then this entire Agreement shall be
void.
10.6. Paragraph Headings. The paragraph headings contained herein are for convenience in
reference and are not intended to define or limit the scope of any provision of this Agreement.
10.7. Force Maieure. Neither party will be liable for delays in performance caused by ads of God
orgovemmentauthority, strikes, orlabordisputes, orothercausebeyond the reasonable control
of that party.
10.8. Entire Agreement. This Agreement, together with all the Development Agreement and
exhibits attached hereto and thereto, constitute the entire Agreement between the parties hereto,
and all other representations or statements heretofore made, verbal, orwritten, are merged herein,
and this Agreement may be amended only in writing, and executed by duly authorized
representatives of the parties hereto.
10.9. Partnership Disclaimer. It is mutually understood that nothing in this Agreement is intended
or shall be construed as in any way creating or establishing the relationship of partners
between the parties hereto.
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10.11. Agreement Construction. Words and phrases herein shall be construed as in the singular
or plural, number, and a masculine, feminine, or neuter gender, according to the context.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
CITY OF DUBUQUE, IOWA DIAMOND JO, LLC
By:
By:
Its
Its
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EXHIBIT A
MAINTENANCE SCHEDULE
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EXHIBIT A
PREVENTATIVE MAINTENANCE REQUIREMENTS
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If~tooucnow
This plan is intended to assist those involved in establishing and funding an operating maintenance
program for the Port of Dubuque ramp.
The maintenance program is divided into three categories:
Operational: Most maintenance is provided by onsfte daffy employee(s). Some maintenance
is provided by professionals, usually under a maintenance contract. This work
maintains the routine operation of the facility.
Aesthetics: Partially provided by onske daily employee(s) and partially by an outside professional.
This work addresses primarily the appearance of the facility.
Structural: Initial observations provided by onsite dally employee(s) augmented by professional
inspection and maintenance. This work addresses the long tens structural integrity
of the facility.
A chart establishing a maintenance schedule with required daily, weekly, monthty, quarterly,
semi-annual, and annual maintenance tasks is provided.
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PREVENTATIVE MAINTENANCE PROGRAM
Operational and aesthetic maintenance is ongoing and must be planned for in the operational
budgek Wfth good operational maintenace, electrical, mechanical, and structural repairs should
be required less often. Good preventative maintenance reduces major repairs and therefore should
be planned for.
Operational maintenance must be in the daily routine of the onsite personnel. Poor operational
maintenance can lead to costly repairs, can cause unsafe and unsightly conditions, and can even
close the fadiity. Operational maintenance involves all building systems: deaning floors, walls,
windows, lobbies, etc., door and hardware operation, electrical and mechanical systems, parking
control systems, plumbing and drainage systems, roofing and waterproofing, safety equipment, and
ice or snow removal.
One of the most overcooked and least scheduled operations is deaning. Proper deaning not
only keeps the tadllty aesthetically pleasing, it reduces future structural repairs. In the winter,
chlorides, or salt, are lxought into the fadlity from the snow on the streets and sidewalks. This
chloride will produce future corrosion of embedded reinforcing and post tensioning steel. Simple
floor washing minimizes the amount of chloride absorbed into the concrete, thus redudng future
deterioration caused by the corrosion of the steel. Critical areas, such as flat areas, entrance
ramps and drive aisles must be flushed regularly. Full sized power washing equipment works best
and should tie scheduled at least quarterly. Routine floor sweeping also reduces future damage
by unblocking drains and allowing water to freely flow to the drains and evaporate as quickly as
possible.
A solid plan for snow and ice removal is paremount Improper application of de-iang chemicals
can cause extensive structural damage, damage to metal doors and frames, and even damage
to the landscaping.
It is important to minimize the use of any de-idng chemicals during the first two years of a structure
until is has obtained its full durability, however, use of sand is prohibited. De-idng products must be
approved by the Parking System Supervisor.
Expansion joints can be damaged by snow plows, shovels, and ice scraping tools. The snow plow
operator must be familiar with the facility and must raise his plow at the exposed expansion joint
The plow should approach the joint at an angle rather than straight on. This will reduce the chance
of catching the joint on the edge of the plow. It may be helpful to place a colored flag or wail marking
adjacent to the joint for easy indentiflcetion.
Snow and ice removal around drains is of utmost importance. Daily observation and deaning should
be scheduled as the ice and snow mek to prevent drain blockage.
Snow plowing must be carefully controlled on the top deck of the ramp. It is common for snow plow
operators to pile the snow on one side or in one comer. Piled snow will overload the structure. A
plowing pattern and a plan of removal must be developed to prevent overloading. This may indude
side chutes, an open area for dumping the snow over the side of the ramp, the use of an open bed
truck for removal, or closing the top deck during heavy snow,
Operational maintenance and regularly scheduled professional preventative maintenance on
electrical, elevator, mechanical and plumbing systems, parking control, and security systems will
reduce unexpected breakdowns. Routine plans for proper oiling, greasing, belt replacement, etc.
should be carried out in accordance with manufacturer's recommendations. All equipment requiring
professional preventative maintenance should be on contract for services. Before the onset of winter,
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AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
water pipes, sprinklers, hosebibs, and drain lines must be either drained of water or their heating
systems must be checked for good operation. Heat tapes, if used, must be diecked regularly
during continuous operation.
Aesthetic maintenance is necessary for an attractive, well maintained appearance. Some
operational maintenance, such as regular sweeping and deaning also become aesthetic
maintenance. Signs, graphics, and paint quality should be routinely examined for good appearance.
Choosing the correct paint for painted concrete surfaces is essential for long lasting paint and for
the protection of the concrete. Water based latex paints should always be chosen to be applied to
concrete. Latex paints remain breathable in service. Pairrts such as polymer paints are not
breathable and will peal off when moisture evaporates out of the concrete. Oil based paints are
somewhat breathable, however the natural alkalinity of concrete tends to deteriorate the paint more
rapidly than latex paint. Metal surfaces should be painted with enamel paints or zinc-rich pairrts.
Enamel paints are the best general purpose paints for metal surfaces while zino-rich paints are
best for high humidity areas or as a primer on exposed steel surfaces.
Good surface preparation including removal of dirt, oil, grease, and surface contaminarrts must always
be done before any paint is applied. For metal surfaces, existing rust should be scraped to dean
metal and primed before final coating. All paints should be applied above 50 degrees. Paint should
not be applied late in the day when conditions would allow condensation to occur at night, or when
rain is expelled.
Structural examination begins with routine observation by the onsite personnel and is augmented by
a structural engineer if deterioration is noticed. Biennial examination by a structurel engineer is
recommended until the structure is appoximately 10 to 15 years old. After that, annual examination
is recommended due to the higher inctdence of deterioration.
Onsite personnel should be made aware of how to recognize structural deterioration and should
notify property management if any is observed. Property management personnel should know
whom to contact if deterioration is observed.
Life expectancy of materials must also be accounted for when considering long maintenance
budgeting. The life expectancy of most of the equipment will be in order of 20 years, at which time
equipment must be replaced; the Iffe of roofing and plaza waterproof membranes will also be 20
years; the life of the traffic bearing membrane will be approximately 10 years; the life of window
sealants will be approximately 20 years; the life of the building sealants, i.e. caulking, will be
approximately 8 to 10 years; and the I'rfe of the concrete floor sealer is 5 years.
The following chart shows the frequency of pertorming the required maintenance. In the chart,
"R" denotes the recommended frequency, "M" denotes the bare minimum frequency, "P" denotes a
required professional inspection. For those tasks with "M" only, the minimum frequency is also the
recommended frequency.
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Maintenance task F uen D W M Q S A N
Da6y, Weeky, Mouthy, Quarterly, Semiannualy, Annualy, Note number
OPERATIONAL
1. Cleanin
Swee n bcal areas R M
Com ete ram awes down R M
Swee debris that collects in a nsion 'oints R M
Em trash cans R M
Clean restrooms M
Cashier booths -floors, fixtures R M
walls windows R M
Elevators -floors door tracks R M
windows R M
Stairs -floors, door tracks R M
walls windows R M
Lobb M
Com lete ram floor wash down with r wash R M 1
Parki control ui rnent -directional si na e R M
Remove ndin water 2
tce and snow removal 2
2. Doors and Hardware
Doors Gose and mechanisms work ro rl R M
Lubrication - ad ustment R M
3. Electrical stem
Check li ht fixtures switches and o ration R M
Relam li M factures 2
Distribution anels R P
Fire controls em, if a livable R M P 3
Eme en enerator, if a livable M
4. Elevators
Check for normal o ration R M
Check indicator nets and I' hts R M
Preventative maintenance service P 3
5. Heatin ,Ventilation and Air Conditionin HVAC
Check for o er ration R M
Preventative maintenance service M P 3
6. Parkin Control S tem
Check for r o ration R M
Preventative maintenance service P 3
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Maintenance task F uen D W M Q S A N
DaIH. Weekly, Monthly. QwrterlY. SemlamuaH. MnwNy, Note number
7. Plumbin and draina s stems
Check for radon
Sanity faalides R M
Irri 'on, 'rf a icable R M
Floor drains M
Flush floor drains tem ev s rin M
Sum m R M
Fire rotecdon s tem, ff a livable M
Drain waters em for winter M
8. Roofin and Wat fin
Chedcforleaks
Roofi R M
Joint sealant in floors R M
nsion oints R M
Windows, doors and walls R M
Floor membrane areas R M
Check for deterioration R M
9. Safe Checks
Carbon monobde monitor, if a livable R M
Handrails and uardrails R M
ExR li hts R M
Emer en li hts R M
Tri in hazards R M
10. Secu ' stem
Check for ro r o radon M P 3
AESTHETICS
1. Si ns and hits
Check for r o eretion
In lace R M
Clean R M
L ible R M
Illuminated R M
2. Painti
Check for rusts is R M
Doors and door frames R M
Handrails and uardrails R M
Pi wards, e i es and conduits R M
Other metal R M
Check fora earance
Stri in R M
Si ns R M
Walls R M
Curbs R M
Touch u int R M
Re aint 2
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Maintenance task Fr uen D W M Q S A N
~Y. w~. MomAH. 4uerterlY. Semiamualy, Amuay, Note number
3. Landsca 'n ,sidewalks
Remove trash R M
Planted areas M
STRUCTURAL EXAMINATION AND EVALUATION
Concrete deterioration R M P
Concrete cradtin R M P
Post tension anchors p
Water leaks a and netration R M P
nsion 'oints R M P
Guard rails and wires R M P
Stair tower stntcture R M P
Concrete membranes and coatin s R M
Notes:
1. Wash down with power washing equipment is recommended on a quarterly schedule. If performed
less often, at a minimum, power washing should be performed In the spring. The work may lie
performed by the onsite employee if trained in equipment operation. Otherwise, professional
deaners may be required.
2. Perform as needed.
3. This equipment should be under a service contract for regular preventative maintenance and
emergency service. The equipment manufacturer's recommendations for inspection and
preventative maintenance should be followed.
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INSURANCE SCHEDULE
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CITY OF DUBUQUE, IOWA
GOVERNMENTAL 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.
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.
Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible
for asserting any defense of governmental immunity, and may do so at any time and
shall do so upon the timely written request of the insurance carrier.
Non-Denial of Coverage. The insurance carrier shall not deny coverage under this
policy and the insurance carrier shall not deny any of the rights and benefits
accruing to the City of Dubuque, Iowa under this policy for reasons of governmental
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
56
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
1. All policies of insurance required hereunder shall be with an insurer authorized to do
business in Iowa. All insurers shall have a rating of A or better in the current A.M.
Best Rating Guide.
2. All policies of insurance shall be endorsed to provide a thirty (30) day advance
notice of cancellation to the City of Dubuque, except for 10 day notice for non-
payment, if cancellation is prior to the expiration date. This endorsement supersedes
the standard cancellation statement on the Certificate of Insurance.
3. shall furnish a signed Certificate of Insurance to the City of
Dubuque, Iowa for the coverage required in Paragraph 6 below. Such certificates
shall include copies of the following policy endorsements:
a) Commercial General Liability policy is primary and non-contributing.
b) Commercial General Liability additional insured endorsement.
c) Governmental Immunity Endorsements.
4. Each certificate shall be submitted to the contracting department of the City of
Dubuque.
5. Failure to provide minimum coverage shall not be deemed a waiver of these
requirements by the City of Dubuque. Failure to obtain or maintain the required
insurance shall be considered a material breach of this agreement.
6. shall be required to carry the following minimum
coverage/limits or greater if required by law or other legal agreement:
a) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000
Products-Completed Operations Aggregate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence Limit $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
This coverage shall be written on an occurrence, not a claims made form. Form CG
25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be included.
All deviations or exclusions from the standard ISO commercial general liability form
CG 0001, or Business Owners form BP 0002, shall be clearly identified.
57
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
1'~,I ~CERTIFIGATE CAF LIABILITY INUFt~hI~E az~z+ s
~~~ (563)556-6272 FAIT. (S83}556-4#!4 llil$ CERTYrICAlE IS ISSUED AS A MMLTTER OF INF4RMATIDN
'
IN3LIRANt'k AI[ifNCY i!H CiR71
CU~Y AMd C1~NFElIS MO RIGHTS tIPDFt T
MOLDER, THIS GEIRTFICATE DOE6 NOT A111E'ND, EJ RCAT6
CrB~ OR
i IittET AODRE55 ~I44T_4~ THE O4VERA[)E A~aM~ 61l THE POLICI ES d6..0IM,
C21Y, STATE. ZIP C~OOE
INSURERS AFTORDING +70YERAGE NAIL 0
w~uw ulieo ~oapioy -_ ...._..
ra:,l+a+.~ insurance [wga~y
strrlet AddrfeAS ~°"r" s
C1ty, 3tlltl. Z1p Gods "~+°N'~"~
P[:3.prN -
THE >'(1I ICIEW OF IPR9UHADC~ LI$TEF) 3LLAPl1 AYL @F=H ISSUED TOTHE N/BURr'A NAiAtU A19CYrh tSMt I Ht YrJLII:Y NhHIUU INU14%t I tU. NOIVAI h~fMlgNl
"
`
J.JlTE tWY NE ISSJFD C1R
H154Ei1tlfl+
TEaItlIf11R GYJNOh%iN l* AI~fV ~YyiTRaCi GR DTFE7td03lgAFR7 MRlN RHSPECT 7~6 NtMCH
JMNY Fly
.
7HE MSUPANCL• NTCft'@~ 3Y7FE PPLM~E'~CRI~ HtflkHl#SSU3J€CT TOALL THE'E1PAA8 E~CL.ItSA7NS AND 6`:?N01"~ONS QF 5UGH
Ifi1Y fr-R7M
,
PD~si. RCriRE£•4Tf L$'1T919FC)YLT1 Y4Y HAVE 9EkP1 ItEWC73.? ><T Vltlll +Bi. , _ _ -
~~ TYPEOF USUnaNCS MtJGti 11L71B91 rerotPxetit~ca L~Yfi
LIAiftlTl - tf1LiM{Kl~lrhlri:t • 1 OQQ
. uwriii
f.~u ><
'S0
~ mY1i+4C4N C#1E,iAl LhBIlR7 ~
sl .. ._.__._..._
aRf", HPFC C OCLYIp
SA .t„sa~lAatam Panor'? >t S
A ' ~ . r~n:=a~s.arrru7lY s 1000
•
:LNIl7P1. P1:1?Ik:il.lt >4 ~!, ~QQ
O~ IT N'ii.~I, PE(r
N
iL1,9tiPD6FT:
L wucle:ls-I•~Irrr..r euu a 1 Q(10
,pp
pp
~~
POIIC'f ' IECT ~ r.O~:
AIiTON091.ELNBLR'r s~M ! 1~" "~R10NC7 SNG:.C a1WT
~
~ i
x unwrv
~`
, I QQQ
Aucw-farvn~ ~ r? ~
~~' /4 nxnYril.tFY :
~~rr! -
A %
Hu~AUros ~M~i Y i
MJH -71NIED AAItI)'y'
._....~ v~pFCntYOa+lACxe
sstiil
•I
w s
eA1 aee~eeLnY ___ ..
rA sitne»aY-rA,wx:ural a
.
N(Y ALrtO OI11Ot T7WJ ra ma;
a~ro aH v~ Atii: s
!7C lSWYl11lLLA LL~71Y E'~U1(X,rJHt-us S
GCCIIR ~ LYAlh9'ArDE A3~ii~4SL i
i
~~~ s
+letarr~ul s ;
wgn rR111e FE0YftlIdAV10M AKi ~ AR: BT+<7U ~~
oatnovoe•uraurv EL gIYGF ~:nFAtr s 100,_
-
~ ANY FfKSPRET~1aF?HIFBif7ECUlI'vE
grryl7t/tlM1tllCdltJ1'lt.rllllr El C18EASC-GiNPUYfE S LdQ
't}°`"~~,w _ El L18Eh8E PGUr"LRpI ' i 54Q.
ur Irx ._._,,....,..
oe~rnuNCrultawiriiroii'~[A~xlli~S6rwMCiii i4Wi~~Igg+c®ere~oa~aeYexrre~wcrw5v1610f~
UE IS LISTED A~ AM AppI1"IDNAL INSTATED OM fifTERAL LIABILIT'I' P~DiI It'.IES USING I5D E)IICIRSE-
OF DUBU
Q
E QTY
WRII CG 20 26 O7 Oi4 `JIDDITIONAI. kNSIMED-OESDGNA7Ef} PER50ti Oit ODGIWIZATLOM" OR IT3 £QItIVILANT.
ERAL LTABILITY P41.I1GY IS PRIMAkY A-lp NON-0@IfiRIBUTING. fORll tJG 2S 04 0~ 97 "CESI{~IAT® LOCATIONS"
NERAL LIABILITY AOGIIE~ITE LIM2T SHALT. BE INQ.UDED. CDLERf+1EHTAL DAMUMITIES EN(Il]RSENENT TS INCLlAED.
POLICIES SHALL BE ENAOR.SEU TO PNOYI@E 30 DAY ADYANLE NOTI!LE OF GN+KELLATIOiI TQ CITY OF DIIDUQLIE
naur`et s ~mw
BNOlt.O AHYOF 171EAB04E DE~CPoSED F671AGti p: GYygp.L79ls;1'pR me
E%NRATION OA7E TIE.Ii~F, 7HE 1861RN5NHUR31 YA6L YIIIODBYt7b M11L
_,~oaYe Y/RRl61MV11GE7a'MECERFIPCJ~Tl11A,®ewmmi9M~t-t,
QTY OF OUBUIxlE
QTY HALL
13TH STREET
So w xxaoaixx
.
UUAI!(lUt, .I.A 52041 AytH01@o~lernlSQlYwmre
JrCt1RtY 2fi IF@0
~JAC:4RD 4[7RPGRILTbgN 79~
58
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
IMPORTANT
If tho c~rtifiC3t8 rt01d'.i ~ ~ RDDIT1CNaAL INSURED. tht+ poNs:yf+rrs) ntaf p~ euriur~t_ A stetenienl
on this ~ Aoes not ranfa rk]MS w the aettif~cade Iroldar in litlu ut gcair r.+nfrrrsemenl(s).
If St1Bi20GATION I5 YlANED, suh~ari ~ the Ietars and wrrdi6un~ UI 1FeG Fwlic.T, aeyyain p0licles may
require an eraAOtaemen[. A statemetrt on this eerti6taAe door. rrul rtyrr(en riyldn Ic Ihr izrtif:~te
holder' )n lieu oT sud' ~nrkxaemerm(s).
pl$CLAIMER
The Cerufic0te rN tnSr.M8a4te orr the reverse side of tlrs fxtn does not wr:stltslG a Qorrtraot lsbr~~j
the issuing insuf8R51, artlRtM1it;U tEgtroeQrrtpllug m prpdraer, and the oart~i~aly hdd~, nur Jues it
atlrtmaUaely m negatively 3rn1Bl10, pdend nr a~92r the tssverage afforded by the pole Iislcxl ll~~ Gun.
SPECIMEN
ACURP F6 (ZQD1f081
59
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
P0L1CY Nt~tBER:
CAMMERCIAL GEt+IERplt_ LiA6lLrrY
C0 Y604O~ 8f
THIS 6N1`1tiRSIRME~IT GHAI~IGESi THE t~41,.ftCY, PI.EA~E READ IT CAREFULLY.
QESIGMATE~ L{,~CAT14N(S}}
GENERAL AGGRE~A-TE LII~AiT
This endotsarrrent mods'ies i~uranc~ prcrrkited under !h8 #Ylo~iving:
COMMER~I{lt' ~Nl~AI. L1ARlt tTY #tAGE PART
SC4tysDU1.E
Des4yr~d iocation(a}: -- -- .__.____._
{It fro &I'fEry appears atsave. infcxrnaticn required tti complete this endcx~ement wit he stxywn in the Declarations
as appir,~'lie to th~ enct'rser.~e+rt.1
A F6r all sums which tlw inerr~ed hetYSnles leg8di/
ohiigstrtd to pay as demapes caused t+ll
"orx~xrances" urrclr~ CX~VERAGE A (SECTION
tj, and fn• all medical +sxpenses cart hr/ aco-
dents undef Ct')1fERAGE C (SECTION U, whKSt
can tae atlr~u6elt onFy to ope~rali~s a1 a single
dasigrsated 'location° spawn in the ScticAlda
;~uv~ne:
1. ~ Separate Destpresisd Lnr~lion Caerrerel
Aggregals Lirnlk appkes th each dESiDhated
9oGadon', anA thi6t snit 4 equal ~ die
ermeiurd of then Gsrnwal FVggrega4e Limt
ahcHrn in the Dectarartiona.
2 The Deslpn86cd Lncstfon Gar-erel Aggn~le
Lintil is fires nv~ut wcr wit pay for the sum aF all
denragee under C~Gt-E~AGC A, axtCpt dam-
ages because ai '~odiF~r Nrjwy of "prOp~rtj
Aamape' included in the 'prndoct9.complelad
operations petard", and for medical expenses
under COYER4GE C retlardles+s at Utr• num-
t?B! 8t:
a. tnsured~
b Claimb made ar `suds" Gcrrrgl7L ur
c. persons ar otganiratiress making claims
a brktging'auns'.
8. AnY payments made under Ct]VEt2PdGE A
bf eiamag~as Or urxier G0lrER,4GE C kr
mBdlcad e~e18BS shall reth,oe tte t?esig-
na4ed Locetbn t~erleral Aygrerga~ Limit for
the: designated 'loGeti4n°, '.~t14tt pahrmcnts
snarl not reduce the General Ag{tre~ste t.~nit
shown in tiro I'Ik+r3~r21iorrs nor shall they re-
duce ar0' othET l3esignatsd L,ocaliat General
Aggnepaie Limit for any otter deeigr~t
'Y,ocatian' ShOwh in ~ Sd1l~h1@ et~ove.
+t.. the omits etlvKm ih the f?edaratbr-s far Eaeh
C}ctturoneay pire Darrrage and tVFecfieal Ex-
penae corcGnua In ap~ty_ t~awrnvet nsbead of
Ding. subject bQ the t~erteral Aggregate Lirrdt
strowwr in ttte Cleclarat+4ns, such Ilmrts wN de
6uGjeCl ~ ttm applirah(e 97esigneied Location
General Aggregelle Limit.
60
AttachmentsToAmendedandRestatedParlcingFacilityAgreement092707rev1 balfinal
B.Fn all sues wiiwli Uti; ii~urec! becomes IegaYyr
gbligaLetl to PAY ~ dsrrtegea '~"'~ by
'nocurrenc:es° under CQVERAGE A ?SECr1U1•I
I), arx! for all nnecgcal ~xpdnK~s C2~u~ct by arri~
dams under t~CYJERAGE C (~EGTI~N I~. whir~t
cannot be atUibuled pnl~ to operations at a Sln-
gIE deSiat~ated location sMawn in ItLe ~hedule
afaove_
1. Arry payrr=ert~ made under G04IER~E A
for damages u urrdsr CO~lEE G ~r
medical expenses shall reduce the amount
aMaiilable unrier tlae l;eneral P ggre~9e L>mli
ar the PrnduGs-Gcehl~lC~l Op~2f
grate Linn, whrd+ever ie explicable; and
Z S1xx1 peyrnerLa shall opt rrtfuoe any t)eslgna~4
Lrx:ahon General AggrrgaEt LittiL,
C. VYhen oaveragt Por' Iia~iVitp ari9irrg 4tit cf 1he
'°prodtwts completed a~r3licxts hazard' is pro-
vied, any payments fort dert~8ge5 bscau6s of
•tadiy injury(' ar "p~i~fr dama~e° ncluded in
ttte "(NOdUCts-cUrnRlehed a~rahons heizat+d" aaiN
re,~aorw tht± Prodtxls-CarnPlsl~i t]per~ti~r~ a9-
9m9~ iim#k grad not rt3dtiae the feral Jtip-
l~nR nor the t?esgnal~ed Location Gen-
e~~ygregale l.imik
b. Far Ehe ptr¢oeeS of this endor~+rtertk the dcfi-
niUaea Setxton is amended by Nta ad~dion of
the. trine ~efinitine:
'Location" means premises irtvolvnQ the same
or Catnedirt9 lots. or pram w~o6e csanrteo-
tlon Is tnle°rur~4ed pnk~ tiY a street roadway. wa-
tanxay or righ~atvray of a raikgrbd.
E. 1 lte provrsion9 of limits Of Insurance (SECTION
Nt) not v>tsenrlSe modified 6y this endnri[ernexd
Shull opatinue to appty as a6putahrd_
SPECIMEN
61
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
POUC'Y NUM1I~Ei2: COMMERGWL G~F1EPtAL LIABILITY
CA 2026I1TD4
THIS ENQ{~RSEMENT CHANGIE$ THE P~1I~Y. PLllOSI" READ !T ~CAREFULI.Y.
PE~S+QN t~R QFtrNlZATIt]N
This sradrxsemerrt modfies insurance prnvidad under the fallorwing:
bC)MMEFtG1AL GENERAL IiABIUTY CAV!ERAiG6 BART
9CHEdJIF
Maple taf Addibonek Insu~ad Person(s) Or flnysnf~tivr~sl
The CicY of Dubuque, including ail tt5 ete~taA and ap~oinT.ed
officials, all ins employees and volunteers, all its 4pards,
Commissions and/or authorities and ttseir D~ard members,
employees and volunteers.
I
Irrionnatlcn reBlrired to Cc~r'r[siete this Schedule. iF rwt EAOUm abanrs, will b+e shown in the Derdaratiorre.
~clpn fl - YVIw Is M insured es arncndad 16 irr-
eiudt ae an edd~ivne insured th¢ pcx;~'{~1 [r argsni-
xatiionta) slro+vn in tha SChpdule, but ordy with reaped
Ed Ilaf]Ipty for ih~ inprry", "prcpeiy tiamdpri" or
'pereonal and adv9rti6wap irpuy' Caused. in wftale or
in part! by your ac4s 'or omissions or ~ acts rX otnisr
siorrs of ih3se acting on your baha~:
A, in the perfonnancp of your nngdng ogersrtions: or
B. In cennoction wllfi your premises owned kry or
rentedtn,yrwr ,-"~''"' ''',
~ ~~, .
rran~amna
~ 1St] Praeerties fret.. 2004
Pape i flf 1 ^
62
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
Exhibit K
Operating Expenses for the Public Parking Facility Include the Following:
• Staffing (Maint./Cleaning/Security/Customer Service)
• Utilities (Phone, electric, water, etc.)
• Insurance
-Property
-General Liability
• Snow/Ice Removal
• Maintenance Contracts
• Property Maintenance (General damage repair, painting, etc.)
• Supplies (Replacement lights, cleaning supplies, bathroom supplies, etc.)
• Striping and other painting
• Landscaping
• Administrative overhead, which shall be limited to $10,000 per year for any year
that DJ has the Maintenance Services Agreement with the City for the Public
Parking Facility or $21,610 per year for all years that DJ does not have such
Maintenance Services Agreement. Such amounts shall be adjusted annually by
the increase, if any, from the previous year in the Consumer Price Index for all
items for All Urban Consumers-U.S. City Average, published by the U.S.
Department of Labor, Bureau of Labor Statistics.
• Security
63
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balhnal
Exhibit L
Par. 12 of the Development Agreement Between the City of Dubuque and The
McGraw-Hill Companies, Inc.
SECTFdN 12 PARKING. City owns the r+eai estate (the Parking ~k~1'3
which adjoins the Property sewn on t~xh~it B and is intei'rdsd for use for parking
purposes. Irt connection therewith, the parties agree as fiaNauvs:
121. Constnictian of Improvements b1-~McGr'aw-liip. Withlr- the time~frames
set forth in Section 10.3. M+~Gravr-~I sh~q, at ~s sole expe~e. complefie the
grading. paving. landscaping including islands, and IigMing the ° Parkb~g •.Pro~perty .
accardt~ng th pins and speCtfications approved by City and consisbenc with Cky
standards including the i'ort of Dubuque Design Standards. The - Parking
Property shall be divided into Lot A and tat B as sat out on Exhibit B. l+~cGraw-
Hip shell be responsik~ke for obtaining ofi all necessary perrrtr'ts, end shaki be
responsible for and pay for the oast of drainage and storm writer irnprovemertts
required by Cry standards and state and federal law for the d~vekoprnent of the
Barking Property. City shall pay only those costs pre-approved by City fiat
transportation and disposal cf fib required to be removed from the Parking
64
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
Property as a result of construdbn by McGraw-HIII of the improvements
contemplated by this Section 12. McGraw-Hill shall use all reasonable efforts in
its des(gn and improvement of the Parking Property to Ikmft the need to remove
fill from the Parking Property. The Cfty shah be provided with prompt notice of the
believed need to remove fill from the Parking Property so as bo allow City to
make arrangements for sampAng and analysis of such fill, and McGrauM-Hill shall
allow such activities by City. City shall not be responsible for bringing any new fill
to the Parking Property. Jn addikion, City shall not be responsible .for
transportatbn and disposal of fill placed on the Parking Property by McGraw-Hill,
its empbyees, agents or cor>trad~ors.
122 Constriction of Improvements by City Cfty shall install gates and
controls and underground services to those gates and controls tD corrtrol acxess
to Lot B, so as ~ permft the types of uses set aut below in this Section 12.4. The
installation of gates and controls and underground services to the gates and
control shall be substantially completed . by e~hteen (18) months after the
Closing Date. Cfty shall have the right to install, at City's exper>se and during the
constn~tion :of the Parking Lot by McGraw-Hill or at such later date as City
determ)nes, addftbnal eledrica) service, water, staging. and'tie downs.
123. Maintenance of Paridng Property. Mainenance, repair and
replacement of the Parkng Properly shah be the sole responsibility anti expense
of City, inducting but not limfted to:
Snow removal on Parking Property and adjacent skewalks completed by
7:00 a.m. and 3:00 p.m. each day;
Salting of Parking Property and adjacent sidewalks completed by 7:00
a.m. and 3:00 p.m. each day;
Maintenance of the lawn sprlnkl~ system;
Repladng bushes, trees, etc., as needed;
Lighting maintenance;
Paiicing bt spring dearwp; and
Monthly parking lot sweeping during non-winter months.
124. Use of Partcing Lots.
(1) Lot A shall consist of non-assigned spaces for McGraw-Hill's empbyees
at no cost to such empbyees for parking beMreen the hours of 8:00 a.m. and
15
65
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
5:00 p.m. or such later time for a spedfic day as the City Manager may upon
written request of McGrev~Hill agree, Monday through Sunday, fifty-two weeks
per year.' Subject to Section 12.4(3), City shall have the right to albw parking in
Lot A by the public during such hours and at any other time. Notwithstanding the
foregoing, McGraw-Hill empbyees .who have already parked in Lot A prbr to
5:00 p.m. may remain pariced in Lot A until their workday is completed except on
a day that City has notified McGn~nr-HIII in writing seven days. in advance that
employees may not remaM in Lot A after 5:00 p.m. on that day.
(2} Lot B shall consist of non-assigned spaces for McGraw-Hill's emPbyees
at no cost to such employees for paridng between the hours of 8:00 a.m. and
5:00 p.m. or such later time for a spedfic day as the City Manager may upon
written request of McGravu~Hill agree, Monday through Friday, fifty-two weeks per
year, except holidays. Subject to Section 12.4(3); City shaA have the •right to
allow parking in Lot B by the public during such hours and at any other time and
to use' Lot B at any other time for such purposes as City determines appropriate.
Notwithstanding the foregoing: McGraw-HiA empbyees who have already parked
in Lot B prior to 5:00 p.m. may remain parked in Lot B urrtil. their workday is
completed except on a day mat City has notified McGnanr-Hill in writing seven
days in advance that empbyees may not remain in Lot B after 5:00 p.m. on that
day.
(3) It is the intent of the parties under Sections 12.4(1 } .and (2) that all
McGraw-HIII employees will be guaranteed a parking space, but not to exceed
the~513 spaces shown on the attached Site Plan, in Lot A orLot,6 between the
hours of 8:00 s.m. and 5:00 p.m..Monday through Friday, fifty-two weeks per
year, exoeptholidays, and public parking wip belimited by City b effeduaite such
guaranteed parking. In order to assure that City makes sufficient parking spaces
available to McGraw-Hill fpr its empbyees and.tD effidentiy manage the bt.
McGraw-Hill will notify City upon its initial occupancy of the office building of the
average number of employees for the month who will work at the office building
between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday and
thereafter whenever there is any increase or decrease in the averege monthly
number of such empbyees.
•(4) For purposes of this paragraph, holidays shall mean New Years. Day, ,
Memorial Day, 4~' of July, Labor Day; Thanksgiving and Christmas Day, and the
folbwing Monday when any of the foregoing Harried legal holidays fail on a
Sunday.
12.5. Parking Facility. If City constructs a paridng sdvcture in the Port of
Dubuque north of Third Street, upon completion of the parWng stuucture, aR rights
of McGn~w-Hfll and its empbyees as provided in Par. 12.4(2) shall transfer to the
parking stn~cture and such parking rights shall be exclusive to the parking
structure. Such structure shall be constructed within 1,200 feet of the Property.
16
66
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
67
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
Exhibit M
Escrow Agreement
68
AttachmentsToAmendedandRestatedParkingFacilityAgreement092707rev1 balfinal
ESCROW AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DIAMOND JO, LLC
This Escrow Agreement, dated October 1, 2007 (Escrow Agreement) is entered into
between Diamond Jo, LLC (DJ) and the City of Dubuque, Iowa (City).
WHEREAS, DJ and City entered into the an Amended and Restated Port of
Dubuque Public Parking Facility Development Agreement dated as of October 1, 2007,
("the Development Agreement")whereby DJ agreed to deposit funds with City to be held in
escrow and to be disbursed as provided in the Development Agreement.
NOW, THEREFORE, in consideration of the premises set forth above and other
good and valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. DEPOSIT OF ESCROW FUNDS. As provided in Section 1.2 the
Development Agreement, prior to and as a condition of award by City of the contract for the
construction of the Parking Facility (as that term is defined in the Development Agreement),
DJ will deliver to City the sum of Five Million Four Hundred Thirty-Six Thousand Three
Hundred Eighty-Two and 65/100 Dollars ($5,436,382.65) ($6,350,000.00 less such
amounts that have already been paid by DJ to City for the design and construction of the
Parking Facility) (Escrow Funds) to be held by City in accordance with the terms hereof.
Subject to and in accordance with the terms and conditions hereof, City agrees that it shall
receive, hold in escrow, invest and reinvest and release or distribute the Escrow Funds. It
is hereby expressly stipulated and agreed that all interest, dividends and other earnings on
the Escrow Funds shall become a part of the Escrow Funds, and shall be held by City and
disbursed as provided in this Escrow Agreement and by Section 1.2 of the Development
Agreement.
SECTION 2. INVESTMENT OF ESCROW FUNDS. City shall deposit the Escrow Funds
received under this Escrow Agreement, including principal and interest, in a money market
fund account at Dubuque Bank & Trust Co. and shall not move or transfer the Escrow
Funds except as provided herein or unless otherwise agreed upon in writing by DJ. The
parties agree that, for tax reporting purposes, all interest or other taxable income earned on
the Escrow Funds in any tax year shall be taxable to DJ. Notwithstanding any provision in
this Escrow Agreement or the Development Agreement to the contrary, all interest or other
amounts accrued or payable on any portion of the Escrow Funds shall be payable quarterly
in cash by Dubuque Bank & Trust Co. to DJ by wire transfer of immediately available funds
no later than fifteen (15) calendar days following the end of each calendar quarter (or any
partial quarter, as applicable) to an account designated by DJ to Dubuque Bank & Trust
Co., commencing with the quarter ending December 31, 2007.
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SECTION 3. DISBURSEMENT OR WITHDRAWAL OF ESCROW FUNDS.
3.1. City is hereby authorized to make disbursements or withdrawals of the Escrow
Funds as follows:
(a) Incompliance with the terms and provisions of the Development Agreement;
or
(b) According to written instructions signed by both City and DJ.
3.2. A copy of each withdrawal, including reasonable documentation thereof, shall be
delivered to DJ at the time of withdrawal, but DJ's consent shall not be required to any
such withdrawal that is in compliance with the Development Agreement.
SECTION 4. NOTICES. All notices, requests, demands, and other communications under
this Escrow Agreement shall be in writing and mailed or delivered to the party to whom
notice is to be given, by first class mail, registered or certified, postage prepaid, and
properly addressed, return receipt requested, to the party at the address provided in the
Development Agreement or, to such other address as a party shall designate by written
notice to all other parties to the Escrow Agreement.
SECTION 5. TERMINATION OF ESCROW. This Escrow Agreement shall terminate and
any Escrow Funds, including any accrued interest or other amounts paid or payable in
respect thereof, promptly paid by the City to DJ upon the earlier to occur of: (i) the
disbursement of all Escrow Funds in accordance with the terms of this Escrow Agreement
and the Development Agreement; (ii) termination of the Development Agreement in
accordance with its terms; and (iii) the Termination Date (as defined in the Minimum
Assessment Agreement).
SECTION 6. GOVERNING LAW; JURISDICTION. This Escrow Agreement shall be
construed, performed, and enforced in accordance with, and governed by, the internal laws
of the State of Iowa, without giving effect to the principles of conflict of laws thereof.
SECTION 7. AMENDMENTS; WAIVERS. This Escrow Agreement may be amended or
modified, and any of the terms, covenants, representations, warranties, or conditions
hereof may be waived, only by a written instrument executed by the parties hereto, or in
the case of a waiver, by the party waiving compliance. Any waiver by any party of any
conditions, or of the breach of any provision, term, covenant, representation, or warranty
contained in this Escrow Agreement, in any one or more instances, shall not be deemed to
be nor construed as further or continuing waiver of any such conditions, or of the breach of
any other provision, term, covenant, representation, or warranty of this Escrow Agreement.
SECTION 8. COUNTERPARTS. This Escrow Agreement maybe executed in iwo or more
counterparts, all of which taken together shall constitute one instrument.
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SECTION 9. ENTIRE AGREEMENT. This Escrow Agreement and the Development
Agreement contain the entire understanding among the parties hereto with respect to the
escrow contemplated hereby and supersedes and replaces all prior and contemporaneous
agreements and understandings, oral or written, with regard to such escrow.
SECTION 10. SECTION HEADINGS. The section headings in this EscrowAgreement are
for reference purposes only and shall not affect the meaning or interpretation of this
Escrow Agreement.
SECTION 11. SEVERABILITY. In the event that any part of this Escrow Agreement is
declared by any court or other judicial or administrative body to be null, void, or
unenforceable, said provision shall survive to the extent it is not so declared, and all of the
other provisions of this Escrow Agreement shall remain in full force and effect.
SECTION 12. SUCCESSORS AND ASSIGNS. This Escrow Agreement shall not be
assignable by the Company without the consent of the City and shall not be assignable by
the City without the consent of the Company. This Escrow Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be
signed the day and year first above written.
CITY OF DUBUQUE, IOWA
//~
By:
Roy D Buol, Mayor
Attest: ~
Jeanne F. Schneider, City Clerk
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DIAMOND JO, LLC
By: Natalie Schramm
Its: CFO
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