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Stone Cliff Winery License and Lease Agreement 2016 Copyright 2014 City of Dubuque Consent Items # 16. ITEM TITLE: Stone Cliff Winery License and Lease Agreement SUMMARY: City Manager recommending approval of the renewal of the License Agreement with Stone Cliff Winery for a section of the Amphitheater and approval of a new Lease Agreement for their outdoor patio pergola through December 31, 2016. SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Approve ATTACHMENTS: Description Type Stone Cliff Winery License and Lease Agreements- City Manager Memo MVM Memo Stone Cliff License/Lease Agm is Staff Memo Lease Agreement Supporting Documentation License Agreement Supporting Documentation THE CITY OF Dubuque UBE I erica .i Masterpiece on the Mississippi 2007-2012-2013 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: License Agreement for Section of Amphitheater and Lease Agreement for Outdoor Patio with Stone Cliff Winery DATE: February 9, 2016 Leisure Services Manager Marie Ware recommends the City Council approve the renewal of the License Agreement for a section of the Amphitheater and approve a new Lease Agreement for the outdoor patio pergola with Stone Cliff Winery. The term of the License Agreement and Lease Agreement will both terminate December 31, 2016. 1 concur with the recommendation and respectfully request Mayor and City Council approval. Micliael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Marie L. Ware, Leisure Services Manager THE CITY ODubuque II-A U Bi E ;111 I.mericaCi i Masterpiece on the Mississippi 2007-2012-2013 TO: Michael C. Van Milligen, City Manager FROM: Marie L. Ware, Leisure Services Manager SUBJECT: License Agreement for Section of Amphitheater and Lease Agreement for Outdoor Patio with Stone Cliff Winery DATE: February 3, 2016 INTRODUCTION The purpose of this memorandum is to request City Council approval to renew the License Agreement for a section of the Amphitheater and a new Lease Agreement for outdoor patio pergola with Stone Cliff Winery. BACKGROUND In 2009 Stone Cliff Winery requested permission to use a small section of the amphitheater to have events and jam sessions. The City Council initially approved a three-year License Agreement which expired August 31, 2012 and an Agreement which expired December 31, 2015. Stone Cliff Winery at some time constructed an outdoor patio in the Amphitheater space. There has been no agreement covering the outdoor patio pergola. DISCUSSION Leisure Services, City Clerk's office, City Manager's office and Legal have been working with Stone Cliff Winery to clarify usage of the Amphitheater as well as the options for alcohol in the Amphitheater. These meetings have assisted with clarifying language for the License Agreement and information that was used to update the city's website for Amphitheater rentals. (See www.cityofdubugue.org/amphitheater). The License Agreement is a one-year agreement for $900 for a small specific area of the Amphitheater. This agreement allows Stone Cliff to host outdoor entertainment events in that space. The Stone Cliff events are reserved through Leisure Services. Non-Stone Cliff events have priority as reservations are on a first-come, first-serve basis. 1 In reviewing the license agreement staff found there had never been a lease agreement with the City for the outdoor patio pergola that had been built by Stone Cliff on the Amphitheater. A lease agreement was developed by the Legal Department for the patio space and is attached for approval. The lease period is one year, contains city insurance requirements and has a fee of$1 ,296 for the year. Both agreements have been reviewed and approved by all city departments listed above. ACTION TO BE TAKEN I respectfully request City Council approval of the attached License and Lease Agreements with Stone Cliff Winery. MLW:et attachments: License Agreement Lease Agreement cc: Kevin Firnstahl, City Clerk Trish Gleason, Assistant City Clerk Pam McCarron, Confidential Account Clerk Don Vogt, Operations and Maintenance Manager John Klostermann, Street Maintenance Supervisor Cindy Steinhauser, Assistant City Manager Crenna Brumwell, City Attorney 2 LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND STONE CLIFF WINERY, INC. This Lease Agreement (the Lease), dated for reference purposes this-� ay of .2016, is made and entered into by and between; the City of ubuque, � wa, an ,Iowa municipal corporation (City), and Stone Cliff Winery, Inc. an Iowa Corporation (SCW). SECTION 1. DEMISE AND TERM. 1.1 In consideration of the :.rents hereinafter reserved and the terms, covenants, conditions, and agreements set forth in this Lease, City ;hereby leases to SCW a portion of the real property which is,,comprised of :approximately 600 sq. ft., of I outdoor/patio space (Leased Premises) as shown on Exhibit A, attached to and made a part of this Lease together with any and .all easements and; appurtenances thereto and subject to any easements and restri tions,of AbInitiarTerni), cord; to have and to hold for an initial term commencing as of the day o 2016 and ending at midnight on the 31St day of Decem er, 2016 (t subject to all of the terms, covenants, conditions and Leases contained herein. 1.2 Extension. A. SCW shall have two (2) options to extend this Lease fora term of.one (1) year on the same terms and conditions set forth in the Lease, provided the Lease remains in full force and effect and SCW is not in default under any of the terms - and conditions of the Lease at the time of notification or commencement, except as modified by the terms, covenants, and conditions.as set forth below. B. If SCW elects to exercise said option, then SCW shall provide City with written notice no earlier than the date which is sixty (60) days prior to, the expiration of the Initial ,Term and the first Extended Term of the Lease. If SCW fails to provide such notice, SCW shall have no further or additional right to extend the term of the Lease. C. If City elects not to extend said options, then City shall provide SCW with written notice no earlier than the date which is sixty (60) days prior to the expiration of the Initial Term of the Lease or the first day of the Extended Term. This option is not transferable; the parties hereto acknowledge and agree .that they intend that the aforesaid option to extend this Lease shall be "personal" to SCW as set forth above and that in no event will any assignee or sublessee have any rights to exercise the aforesaid option to extend. D. SCW shall have no further right to extend the term of the Lease. 020216CMB 1 .3 Termination. A. Either party shall have the right to terminate the Lease any time after giving the other party not less than thirty (30) days written notice. B. Upon termination, City shall have the right to enter the Leased Premises and to assume exclusive use and control of the Leased Premises. Upon termination of this Lease, SCW agrees to surrender possession of the Leased Premises in substantially the same condition, ordinary wear and tear excepted, as on the first day of the Initial Term. SECTION 2. FEE. 2.1 SCW shall pay City rent in the amount of $182.00 per month for active-use rent (May 1st-October 31st) and $34.00 per month for off-season rent (November 1st-April 30th) totaling $1 ,296 per year for the Initial Term of this Lease. 2.2 If SCW elects to exercise the option for Extension Term(s) the Rent in effect at the expiration of the Initial Term shall be adjusted to reflect the current fair market rental for comparable space as of the date the extension term is to commence, taking into account the specific provisions of the Lease which will remain constant. City shall advise SCW of the new Annual Rent for the Premises no later than thirty (30) days after receipt of SCW's written request therefore. In no event shall the Annual Rent for the extension term be less than the Rent in the Initial Term. SECTION 3. TAXES AND OTHER PAYMENTS. 3.1 SCW agrees to pay to City any real estate taxes upon the Leased Premises that may be assessed against the Leased Premises as a result of the use of the Licensed Premises pursuant to this Lease. 3.2 SCW agrees to timely pay all taxes, assessments, or other public charges levied or assessed by lawful authority (but reasonably preserving SCW's rights of appeal) against its personal property on the premises, during the term of this Lease. 3.3 SCW shall at all times have the right to contest in good faith, in any proper proceedings, in the name of City if necessary, the payment or satisfaction of any such taxes, assessments, rates, charges, or levies so agreed to be paid by SCW, if the validity thereof, or the right to assess or levy the same against or collect the same from said Leased Premises or improvements, shall be disputed. Upon the conclusion of any such suit or proceedings, or not less than three (3) months prior to the date when the right to redeem therefrom expires, whichever will be the earlier, SCW will promptly pay and satisfy such disputed tax, assessment or other charge as finally determined, together with all expenses, costs and attorneys' fees whatsoever incurred in connection therewith. 2 SECTION 4. IMPROVEMENTS. 4.1 Improvements. SCW shall not construct any improvements on the Leased Premises other than the current outdoor patio improvements shown in photos (Exhibit B). SCW shall have thirty (30) days after the termination of this Lease to complete such removal. If SCW fails to remove said improvements within such thirty (30) day period, City may cause the improvements to be removed and SCW shall pay the costs of such removal within thirty (30) days of receipt of a statement therefore from City. 4.2 Signage. SCW shall not place any signage on the Licensed Premises without the prior written approval of City's City Manager in the City Manager's sole discretion. SECTION 6. DRIVING IN AND ON AMPHITHEATER. Driving and parking on the stained amphitheater concrete is prohibited. Delivery or other vehicles may park in delivery zone shown on map attached (Exhibit A). Any vehicles in violation of this provision may be ticketed and/or towed. SECTION 6. REPAIRS. 6.1 SCW shall at all times during the term of this Lease, keep the Leased Premises and the Improvements thereon, concrete, and all appurtenances to the Leased Premises, in good order, condition and repair, casualties and ordinary wear and tear excepted and to a condition satisfactory to City. SCW shall keep the Leased Premises in such condition as may be required by law and by the terms of the insurance policies furnished pursuant to this Lease, whether or not such repair shall be interior or exterior, and whether or not such repair shall be of a structural nature. Notwithstanding the foregoing, SCW's responsibility for the costs and expenses for normal maintenance, repairs and replacements shall be limited to $1 ,000 per occurrence. Upon reasonable notice to SCW, City may, at its discretion and at its cost, conduct an annual inspection of the Leased Premises to determine SCW's compliance with this Section 6. 6.2 City shall have no obligation to SCW for any normal maintenance, repair or replacement expense on the Leased Premises which are less than $1 ,000 per occurrence. 6.3 This Section applies only to normal maintenance, repair, or replacement expense on the Leased Premises. Section 10 applies to insured losses on the Leased Premises. SECTION 7. COMPLIANCE WITH LAW AND CONDITIONS. 7.1 During the term of this Lease, SCW shall comply with all local, state, and federal laws applicable to SCW's use of the Leased Premises, including but not limited to the Americans with Disabilities Act, the Smoke Free Air Act, the City of Dubuque Special Events Ordinance(s), and the conditions outlined on Exhibit D. Additionally, SCW must comply with the Iowa Alcoholic Beverage Control Act restrictions on space usage including, but not limited to, the use of space as shown on Exhibit C. 3 7.2 SCW shall not commit waste on the Leased Premises except as necessary for its business purposes including the removal or construction of any buildings and Improvements on the Leased Premises, and shall be liable for any damages to or destruction of any buildings or Improvements on the Leased Premises resulting from waste and shall be required to repair or rebuild such buildings or Improvements. SCW shall not remove any Improvements on the Leased Premises without the prior written approval of City subject to Section 4.1 . SECTION 8. ALTERATIONS. SCW shall not make any alteration, addition, or modification to the Leased Premises or the Improvements thereon without the prior written approval of City. SECTION 9. RESTRICTED USE OF LEASED PREMISES. 9.1 Use of Premises. The Leased Premises shall be used only for the following purposes and absolutely no others: Outdoor seating and entertainment venue. Any other use must be approved, in writing, by the City a minimum of thirty (30) days in advance. 9.2 Restrictions on Use. Notwithstanding any other provision of this Lease, SCW agrees to the following restrictions on the use and enjoyment of the Leased Premises: A. SCW shall not store any material which might dissolve, leach, or migrate onto or into the ground of the Leased Premises without proper containment. B. SCW shall not install or allow the installation of wells on the Leased Premises without the consent of City. C. SCW shall not allow any disturbance or excavation of the soil on the Leased Premises without the consent of City. 9.3 SCW shall not knowingly use or allow the Leased Premises or any buildings or Improvements thereon or any appurtenances thereto, to be used or occupied for any unlawful purpose or in violation of any certificate of occupancy. SCW shall not suffer any act to be done or any condition to exist within the Leased Premises or in any Improvement thereon, or permit any article to be brought therein, which is dangerous, unless safeguarded as required by law, or which, in law, constitute a nuisance, public or private, or which may make void or voidable any insurance in force with respect thereto. SECTION 10. INSURANCE. 10.1 SCW shall maintain during the term of this Lease insurance as set forth in the City's standard Insurance Schedule for Lessees of City Property, as such uniform, standardized schedule may from time to time be amended. The current Insurance Schedule is attached to this Lease as Insurance Schedule A. City shall provide written 4 notice of any amendment to the Insurance Schedule not less than sixty (60) days prior to the effective date of such amendment. 10.2 SCW agrees to notify City immediately in the case of damage exceeding $1 ,000.00 in amount to, or destruction of, Improvements or any portion thereof resulting from fire or other casualty. SECTION 11. CITY'S WARRANTIES AND REPRESENTATIONS. 11 .1 City's Representation of Good Title. City covenants and warrants that City is lawfully seized in possession of the Leased Premises, and that it has full right and authority to enter into this Lease for the full term hereof, and covenants and agrees that upon paying the rent provided for herein, and upon SCW's performing the covenants and Leases of this Lease required to be performed by said SCW, that it will have, hold and enjoy quiet possession of the Leased Premises. City warrants to SCW that the Leased Premises are properly zoned for the conduct of the operation of SCW's business. 11 .2 City's Representation as to Condition. City makes no representations or warranties as to the condition, including environmental condition, of the Leased Premises and SCW accepts the Leased Premises as is. SECTION 12. ENVIRONMENTAL MATTERS. A. SCW covenants and agrees that City shall have no responsibility for or liability arising from any release of a Hazardous Substance which is caused by or results from SCW, SCW's use, occupancy, or control of the Leased Premises. SCW shall not store any material which might dissolve, leach, or migrate onto or into the ground of the Leased Premises without proper containment. SCW covenants and agrees to promptly notify City of any release of Hazardous Substance in, on or about the Leased Premises of which SCW suspects or has actual knowledge. SCW covenants and agrees to promptly take any and all necessary and appropriate response to fully address any release of Hazardous Substance for which SCW is responsible under this Section following advance notice to City. Such response shall include, without limitation, notification to appropriate governmental authorities, as may be required by law. SCW shall seek and obtain the concurrence of City as to any such response. SCW shall respond to such release to the full extent required by law in no event shall SCW allow limitations or restrictions to be placed on the Leased Premises without the written consent of the City. SCW covenants and agrees to not manufacture, treat, or dispose of Hazardous Substances at the Leased Premises or allow the manufacture, treatment, or disposal of 5 Hazardous Substances on the Leased Premises. SCW shall use and store on the Leased Premises only those Hazardous Substances as are associated with its regular business activities, and then only as allowed by law. For the purposes of this Lease, "Hazardous Substance" or "Hazardous Substances" means any hazardous or toxic substance, material, or waste which is or becomes regulated by any local government, the State of Iowa or the United States Government. It includes, without limitation, any material or substance that is (i) defined as a "hazardous substance" or "hazardous waste" under Chapter 4556, Iowa Code, (ii) petroleum and petroleum products, (iii) asbestos containing materials in any form or condition, (iv) designated as a "hazardous substance" pursuant to 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1321), (v) defined as a "hazardous waste" pursuant to § 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi) defined as a "hazardous substance" pursuant to § 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.0 § 9601 et seq., or (vii) defined as a "regulated substance" pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. § 6991 et seq.] The term "Hazardous Substance" shall not include any air emissions discharged into the atmosphere as allowed by a duly issued permit from the applicable governmental agency. SECTION 13. INDEMNIFICATION. 13.1 Indemnification of SCW. To the extent allowed by law, City will defend, indemnify, and save harmless SCW from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs, and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against SCW by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Leased Premises and resulting from any negligent act or omission of City, (b) any failure on the part of City to perform or comply with any of the terms of this Lease and (c) any breach on the part of City of any warranty or representation contained in Section 11 . In case any action, suit or proceeding is brought against SCW by reason of such occurrence, City will, at City expense and discretion, either defend such action, suit or proceeding, or cause the same to be defended by counsel approved by SCW, which approval will not be unreasonably withheld. 13.2 Indemnification of City. SCW will defend, indemnify and save harmless City from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against City by reason of (a) any accident, injury to or death of persons or loss of or damage to property occurring on or about the Leased Premises during the term of this Lease and resulting from any negligence of SCW or anyone claiming by, through or under SCW during the term of the Lease and (b) any failure on the part of SCW to perform or comply in any material respect with any of the material terms of this Lease, and (c) any material breach on the 6 part of SCW of any warranty or representation contained in Section 12. In case any action, suit or proceeding is brought against City by reason of such occurrence, SCW will, at SCW's expense and discretion, either defend such action, suit or proceeding, or cause the same to be defended by counsel approved by City, which approval will not be unreasonably withheld. 13.3 Survival. The obligations and liabilities under this Section shall survive and continue in full force and effect and shall not be terminated, discharged or released, in whole or in part, irrespective of the termination or expiration of the term of this Lease. SECTION 14. CONDEMNATION. 14.1 Entire Condemnation. If at any time during the term of this Lease all or substantially all of the Leased Premises or the Improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality or other public or private authority, then this Lease shall terminate on the date of vesting of title in such taking and any prepaid rent shall be apportioned as of said date. Substantially all of the Leased Premises and the Improvements thereon shall be deemed to have been taken if the remaining portion of the Leased Premises shall not be of sufficient size to permit SCW, in SCW's sole discretion, to operate its business thereon in a manner similar to that prior to such taking. 14.2 Allocation of Award. Any award for such taking of all or substantially all of the Leased Premises shall be paid to the parties hereto in accordance with the following: A. To City, the amount of the award attributable to the Leased Premises, determined as if this Lease was not in effect at the time of such award, excluding therefrom the amount of the award attributable to new Improvements constructed by SCW but not Improvements existing at the commencement of the Term of this Lease, and all other sums not directly attributable to the value of the Land constituting the Leased Premises; B. To SCW, the entire award except that portion allocated to City above. 14.3 Partial Condemnation. A. If less than all or substantially all of the Leased Premises or the Improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality or other public or private authority, then SCW, at its option, may elect to continue this Lease in full force and effect or terminate this Lease. If SCW shall elect to maintain this Lease in full force and effect, the award for such partial condemnation shall be allocated as provided in 14.2, and SCW shall proceed with reasonable diligence to carry out any necessary repair and restoration so that the remaining Improvements and appurtenances shall constitute a complete structural unit or units which can be operated on an economically feasible basis under the provisions of this Lease. 7 In the event SCW elects to continue this Lease in full force and effect after a partial condemnation, the Rent shall be reduced in proportion to the area of the Leased Premises taken. B. Should SCW elect to terminate this Lease upon a partial condemnation, SCW shall provide City with written notice of such election within thirty (30) days after the date of vesting of title for such taking. SCW shall specify in such written notice the date on which this Lease shall terminate, which date shall be not less than 60 days nor more than 360 days after delivery of such notice to City (the Termination Date). In the event SCW terminates this Lease, as provided for in this 14.3, City shall be entitled to the entire award for such partial taking. 14.4 Temporary Taking. If the temporary use of the whole or any part of the Leased Premises or the Improvements thereon or the appurtenances thereto shall be taken at any time during the term of this Lease in the exercise of the power of eminent domain by any sovereign, municipality, or other authority, then SCW, at its option, may elect to continue this Lease in full force and effect or terminate this Lease. If SCW elects to continue this Lease, the term of this Lease shall not be reduced or affected in any way, and SCW shall continue to pay in full the rent, additional rent and other sum or sums of money and charges herein reserved and provided to be paid by SCW, and the entire award for such temporary taking shall be paid to SCW. SCW shall repair and restore any and all damage to the Leased Premises and the Improvements as soon as reasonably practicable after such temporary taking. In the event SCW terminates this Lease, City shall be entitled to the entire award for such partial taking. SECTION 16. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned by SCW and the Leased Premises, in whole or in part, may not be sublet. SECTION 16. DEFAULT. 16.1 City's Rights in the Event of SCW's Default. If SCW shall fail or neglect to observe, keep or perform any of the covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, and the default shall continue for a period of thirty (30) days after written notice from City setting forth the nature of SCW's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which SCW has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence, but in no event longer than sixty (60) days), then and in any such event, City shall have the right at its option, on written notice to SCW, to terminate this Lease. City shall thereafter have the right to enter and take possession of the Leased Premises with process of law and to remove all personal property from the Leased Premises and all persons occupying the Leased Premises and to use all necessary force therefor and in all respects to take the actual, full and exclusive possession of the Leased Premises and every part of the Leased Premises as of City's original estate, without incurring any liability to SCW or to any persons occupying or using the Leased Premises for any damage caused or sustained by reason of such entry on the Leased Premises or the 8 removal of persons or property from the Leased Premises. Notwithstanding the foregoing, any violation by SCW of Section 9 may result in immediate termination of this Lease. 16.2 Rights of Holder of Encumbrance in Event SCW Defaults. If SCW fails or neglects to observe, keep or perform any of the covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, the Holder of any indebtedness secured by an encumbrance on the leasehold estate under this Lease shall have thirty (30) days after receipt of written notice from City setting forth the nature of SCW's default and a reasonable time thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature thereof within such thirty (30) days and is diligently prosecuting such proceedings, but in no event longer than ninety (90) days, within which to endeavor to make good or remove the default or cause for termination of the Lease. All right of City to terminate this Lease on the failure or neglect of SCW to observe, keep and perform the covenants, terms and conditions of this Lease is, and shall continue to be, at all times prior to payment in full of the indebtedness to the Holder of SCW, subject to and conditioned on City's having first given the Holder written notice thereof and the Holder having failed to cause the default or cause for termination to be made good or removed within thirty (30) days after receiving written notice of default or cause for termination or within a reasonable time thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature of foreclosure within such thirty (30) days and is diligently prosecuting such proceedings, but in no event longer than ninety (90) days. In the event that the Lease is terminated due to the SCW's bankruptcy, insolvency or other proceedings, and in the event the Holder has complied with the terms of this 16.2, then City at Holder's option, shall enter into a new lease with Holder or the successful bidder at foreclosure on the same terms as this Lease, for the term then remaining, and specifically preserving all unexercised options. 16.3 SCW's Rights in the Event of City's Default. If City shall fail or neglect to observe, keep or perform any of the covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, and the default shall continue for a period of thirty (30) days after written notice from SCW setting forth the nature of City's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which City has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence, but in no event longer than ninety (90) days), then and in any such event, SCW shall have all rights available to it provided by law or equity. SECTION 17. RIGHT TO CURE OTHER'S DEFAULTS. Whenever and as often as a party shall fail or neglect to comply with and perform any term, covenant, condition or agreement to be complied with or performed by such party hereunder, then, following thirty (30) days' prior written notice to such defaulting party (or such additional time to cure as may be accorded SCW pursuant to 16.1 above, but in no event longer than ninety (90) days), the other party, at such other party's option, in addition to all other remedies available to such other party, may perform or cause to be performed such 9 work, labor, services, acts or things, and take such other steps, including entry onto the Leased Premises and the Improvements thereon, as such other party may deem advisable, to comply with and perform any such term, covenant, condition or agreement which is in default, in which event such defaulting party shall reimburse such other party upon demand, and from time to time, for all costs and expenses suffered or incurred by such other party in so complying with or performing such term, covenant, condition or agreement. The commencement of any work or the taking of any other steps or performance of any other act by such other party pursuant to the immediately preceding sentence shall not be deemed to obligate such other party to complete the curing of any term, covenant, condition or agreement which is in default. SECTION 18. QUIET ENJOYMENT. Except as otherwise provided herein, City covenants that at all times during the term of this Lease, so long as SCW is not in default hereunder, SCW's quiet enjoyment of the Leased Premises or any part thereof shall not be disturbed by any act of City, or of anyone acting by, through or under City. Notwithstanding the foregoing, City shall have the right upon reasonably notice to SCW to enter the Leased Premised at any time to determine whether SCW is in compliance with the requirement of this Lease. SECTION 19. ESTOPPEL CERTIFICATES. Each party hereto agrees that at any time and from time to time during the term of this Lease, within ten (10) days after request by the other party hereto or by any lender having an interest in SCW's leasehold estate, it will execute, acknowledge and deliver to the other party or to such lender or any prospective purchaser, assignee or any mortgagee designated by such other party, a certificate stating (a) that this Lease is unmodified and in force and effect (or if there have been modifications, that this Lease is in force and effect as modified, and identifying the modification agreements), (b) the date to which rent has been paid, (c) whether or not there is any existing default by SCW in the payment of any rent or other sum of money hereunder, and whether or not there is any other existing default by either party hereto with respect to which a notice of default has been served, and, if there is any such default, specifying the nature and extent thereof; and (d) whether or not there are any setoffs, defenses or counterclaims against enforcement of the obligations to be performed hereunder existing in favor of the party executing such certificate. SECTION 20. WAIVER. No waiver by either party hereto of any breach by the other of any term, covenant, condition or agreement herein and no failure by any party to exercise any right or remedy in respect of any breach hereunder, shall constitute a waiver or relinquishment for the future of any such term, covenant, condition or agreement or of any subsequent breach of any such term, covenant, condition or agreement, nor bar any right or remedy of the other party in respect of any such subsequent breach, nor shall the receipt of any rent, or any portion thereof, by City, operate as a waiver of the rights of City to enforce the payment of any other rent then or thereafter in default, or to terminate this Lease, or to recover the Leased Premises, or to invoke any other appropriate remedy which City may select as herein or by law provided. 10 SECTION 21. SURRENDER. SCW shall, on the last day of the term of this Lease or upon any termination of this Lease, surrender and deliver up the Leased Premises, with the Improvements then located thereon into the possession and use of City, without fraud or delay and in good order, condition and repair, reasonable wear and tear excepted, free and clear of all lettings and occupancies, free and clear of all liens and encumbrances other than those existing on the date of this Lease and those, if any, created by City, without (except as otherwise provided herein) any payment or allowance whatever by City on account of or for any buildings and Improvements erected or maintained on the Leased Premises at the time of the surrender, or for the contents thereof or appurtenances thereto. SCW's Trade Fixtures, personal property and other belongings of SCW or of any sublessee or other occupant of space in the Leased Premises shall be and remain the property of SCW, and SCW shall within thirty days after the expiration of the Term of this Lease remove the same, and in the event SCW shall fail to do so, City may cause the Trade Fixtures to be removed and SCW agrees pay City for the costs of removal within thirty (30) days of receipt of a statement therefore from City. SECTION 22. MEMORANDUM OF LEASE. Each of the parties hereto will, promptly upon request of the other, execute a memorandum of this Lease in a form suitable for recording setting forth the names of the parties hereto and the term of this Lease, identifying the Leased Premises, and also including such other clauses therein as either party may desire, except the amounts of Basic Rent payable hereunder. SECTION 23. NOTICES. 23.1 All notices, demands or other writings in this Lease provided to be given or made or sent, or which may be given or made or sent, by either party to the other, shall be deemed to have been fully given or made or sent when made in writing and deposited in the United States mail, registered and postage prepaid, and by facsimile addressed as follows: TO CITY: City of Dubuque, Iowa City Manager City Hall 50 West 13th Street Dubuque IA 42001 TO SCW: Stone Cliff Winery, Inc. Attn: Bob Smith 600 Star Brewery Drive Dubuque, IA 52001 23.2 The address to which any notice, demand or other writing may be given or made or sent to any party as above provided may be changed by written notice given by the party as above provided. 11 SECTION 24. MISCELLANEOUS. 24.1 Time of the Essence. Time is of the essence of this Lease and all of its provisions. 24.2 Governing Law. It is agreed that this Lease shall be governed by, construed and enforced in accordance with the laws of the State of Iowa. 24.3 Paragraph Headings. The titles to the paragraphs of this Lease are solely for the convenience of the parties and shall not be used to explain, modify, simplify or aid in the interpretation of the provisions of this Lease. 24.4 Modification of Agreement. Any modification of this Lease or additional obligation assumed by either party in connection with this Lease shall be binding only if evidenced in a writing signed by each party or an authorized representative of each party. 24.5 Parties Bound. This Lease shall be binding on and shall inure to the benefit of and shall apply to the respective successors and assigns of City and SCW. All references in this Lease to "City" or "SCW" shall be deemed to refer to and include successors and assigns of City or SCW without specific mention of such successors or assigns. 24.6 Force Majeure. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, unavailability of construction materials, unavailability or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, explosions, hazardous conditions, fire, flood, weather or acts of God, or by reason of any other cause beyond the exclusive and reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease (collectively Force Majeure), then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. LESSOR LESSEE CITY OF DUBUQUE, IOWA By: Michael C. Van Milligen City Manage Date: 12 STONE CLIFF WINERY, INC. Date: 3-3 -- 14, EXHIBIT A LEASED PREMISES 13 ® V.. N y I_ 600 F A m — - r CIA sr ➢!lE R a y Leased Area Delivery Zone 00 $'y44r 14 EXHIBIT B OUTDOOR PATIO IMPROVEMENTS 15 rWAM I► a LNor T 1. _ _ r i —a. a—a• �sy ilp �..-- M11• � I �a,Zri d .`.,+�—ia �• .. ��� "\ la�cc Apt, miAl y y� i b on ►i ` - �.� 1/11A ip J i 00r ILI f A 7V w Minim" 1• EXHIBIT C ALCOHOLIC BEVERAGE DIVISION USAGE DIAGRAMS 20 600 A W m s - � _ A m y MERCIA H T 2 � i • A Y Hard Liquor, Beer, and Wine (Supplied by Event Host) Responsibilities of Event Host: • Host must apply for a liquor license from the Iowa Alcoholic Beverage Division • Host must submit Special Event Permit Application to the City Clerk's Office • Host must reserve Alliant Amphitheater through Leisure Services Department Types of Alcohol Allowed: • Hard Liquor • Beer • Wine Contact: • City of Dubuque City Clerk's Office 0 563-589-4120 o www.citvofdubuque.org/specialevents • City of Dubuque Leisure Services Department o 563-589-4266 • Alcoholic Beverage Division 0 866-469-2223, option 1 o https://elicensing.iowaabd.com/ Notes: • Host may provide hard liquor, beer, and wine free of charge (open bar) or have a cash bar/tip jar • Hard liquor, beer, and wine are only allowed in the red area • Due to State of Iowa licensing requirements, Stone Cliff Winery cannot provide service of any kind (food service, tables and chairs, etc.) in the red area • Host may purchase wine manufactured by Stone Cliff Winery to serve at event 21 600 A W m s - � _ A m y MERCIA H T 2 � i Hard Liquor, Beer, and Wine (Supplied by Caterer) Responsibilities of Event Host: • Host must hire caterer with catering privileges on liquor license • Host must submit Special Event Permit Application to the City Clerk's Office • Host must reserve Alliant Amphitheater through Leisure Services Department Types of Alcohol Allowed: • Hard liquor • Wine • Beer Contact: • City of Dubuque City Clerk's Office 0 563-589-4120 o www.citvofdubuque.org/specialevents • City of Dubuque Leisure Services Department o 563-589-4266 Notes: • If caterer uses current liquor license, then caterer/host must provide hard liquor, wine, and beer free of charge (open bar) and cannot have a cash bar/tip jar • If caterer applies for separate five day license, then caterer/host may have a cash bar/tip jar • Hard liquor, beer, and wine are only allowed in red area • Due to State of Iowa licensing requirements, Stone Cliff Winery cannot provide service of any kind (food service, tables and chairs, etc.) in the red area • Caterer may purchase wine manufactured by Stone Cliff Winery to serve at event 22 MEMO EMOMMN- MEEMEM M1•, p � ;,: "'—I■■■iiia■■■■■■���1 W A C z N } i y • ,aY Beer and Wine Only (Supplied by Event Host) Responsibilities of Event Host: • If host is providing beer and wine free of charge, liquor license from the Alcoholic Beverage Division is not required • If host has cash bar/tip jar, liquor license from the Alcoholic Beverage Division is required • Host must submit Special Event Permit Application to the City Clerk's Office • Host must reserve Alliant Amphitheater through Leisure Services Department Type of Alcohol Allowed: • Beer • Wine Contact: • City of Dubuque City Clerk's Office 0 563-589-4120 o www.citvofdubuque.org/specialevents • City of Dubuque Leisure Services Department o 563-589-4266 • Alcoholic Beverage Division 0 866-469-2223, option 1 o https://elicensing.iowaabd.com/ Notes: • Beer and wine are allowed in blue area • Beer and wine are allowed in yellow area if approved by Stone Cliff Winery • Stone Cliff Winery can be involved with food service, tables and chairs, etc. but cannot provide/serve beer and wine on Alliant Amphitheater (blue area) • Host may purchase wine manufactured by Stone Cliff Winery to serve at event 23 MEMO EMOMMN- MEEMEM M1•, p � ;,: "'—I■■■iiia■■■■■■���1 W A C z N 1 a 1 X11 i t Beer and Wine Only (Supplied by Caterer) Responsibilities of Event Host: • Host must hire caterer with catering privileges on liquor license • Host must submit Special Event Permit Application to the City Clerk's Office • Host must reserve Alliant Amphitheater through Leisure Services Department Type of Alcohol Allowed: • Beer • Wine Contact: • City of Dubuque City Clerk's Office 0 563-589-4120 o www.citvofdubuaue.oro/specialevents • City of Dubuque Leisure Services Department o 563-589-4266 Notes: • If caterer uses existing liquor license, wine and beer must be provided free of charge (open bar) and cash bar/tip jar is not allowed • If caterer applies for separate five day license, cash bar/tip jar is allowed • Beer and wine are allowed in blue area • Beer and wine are allowed in yellow area if approved by Stone Cliff Winery • Stone Cliff Winery can be involved with food service, tables and chairs, but cannot serve beer and wine on Alliant Amphitheater (blue area) • Host/Caterer staff may purchase wine manufactured by Stone Cliff Winery to serve at event 24 't6° S3 r, Aj r .............mom,.....„�W._...-+r.r ' s1:rt Beer and Wine Only(Supplied/Served by Stone Cliff Winery) Option 1 - Premise Update Responsibilities of Event Host: Stone Cliff Winery must submit an online premise update to the Alcoholic Beverage Division for their WCN license to include Alliant Amphitheater Host must submit Special Event Permit Application to the City Clerk's Office Host must reserve Alliant Amphitheater through Leisure Services Department Type of Alcohol Allowed: Beer Wine Contact: Stone Cliff Winery o 563-583-6100 City of Dubuque City Clerk's Office 0 563-589-4120 o www.cityofdubugue.orglspecialevents City of Dubuque Leisure Services Department o 563-589-4266 Notes: Beer and wine are allowed in yellow area Stone Cliff can be involved with food service, tables and chairs, etc. and can provide/serve beer and wine on Alliant Amphitheater Food can be provided by anyone 25 600 v � m MmERciA a z N t� r3€ { 11, 1{ � i Beer and Wine Only (Supplied/Served by Stone Cliff Winery) Option 2 - No Premise Update Responsibilities of Event Host: • Host must submit Special Event Permit Application to the City Clerk's Office • Host must reserve Alliant Amphitheater through Leisure Services Department Type of Alcohol Allowed: • Beer • Wine Contact: • Stone Cliff Winery o 563-583-6100 • City of Dubuque City Clerk's Office 0 563-589-4120 o www.citvofdubuaue.oro/specialevents • City of Dubuque Leisure Services Department o 563-589-4266 Notes: • Stone Cliff Winery can provide/serve beer and wine in yellow area • Glasses and bottles of beer and wine provided in yellow area by Stone Cliff Winery can be carried by guests to the Alliant Amphitheater (blue area) • Stone Cliff can be involved with food service, tables and chairs, etc. but cannot provide/serve beer and wine on Alliant Amphitheater (blue area) • Food can be provided by anyone 26 EXHIBIT D SCW must submit a copy of the following documents at the time of lease execution: (prices may be redacted) 1) Current copy of weekday contract 2) Current copy of weekend contract 3) Current copy of website and information contained therein 4) Current marketing materials SCW must document in materials the following information: 1) Amphitheater rental may be done directly through the City of Dubuque Amphitheater rental fee must be shown as the fee set for Amphitheater rental by the City of Dubuque 2) SCW may charge a customer a coordination fee for arranging amphitheater rental through the City; this must be documented separately from the rental fee on materials provided to the public In the event of a lease extension SCW is required to submit updated versions of the materials listed above. 27 City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or Vendors(Suppliers,Service Providers(,and Right of Way Permit Holders Insurance Schedule A 1. shall furnish asierred Certlficate of Insurance lCOlj tu the City of Dubuque,Iowa for the coverage required in Exhibit I prior to contractor lease commencement All lessees of City property and Right of Way Permit Holders shall submit an updated COI annually.Each Certificate shall be prepared on the most current ACORD form approved by the Department of Insurance or an equivalent.Each certificate shall include a statement under Description of Operations as to wiry issued.Eg: Project N or Lease of premises at or construction of or right of way permitted location and description 2. All policies of insurance required hereunder shall be with a carrier authorized to do business in Iowa and all carriers shall have a rating of Aor better in the current A.M.Rears Rating Guide. 3. Each Certificate shall be furnished to the mmracting department of the City of Cubuq un. 4. Failure to provide minimum coverage shall not be dee med a waiver of these req uirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement 5. All required endorsements to various policies shall be attached m Certificate of insurance. 6. Whenever a specific ISO form is listed,an equivalent form may be substituted subject to the provider identifying and listing in writing all deyiatiom and exclusions that differ from the ISO form. ]. Provider shy 11 be req wired to carry the minimum coverage/limits,or greater if required by law or other legal agreement in Exhibit I. S. Whenever an 150 form is referenced the current edition clubs form must be used. Ifprovidenalimitsof liability are higher than the required minimum limits then the provider's limits shall be this agreemern s required limits. Page 1 of 3 Schedule A Property Or Vendors July 2015.Doe 28 City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or Vendors(Suppliers,Service Providers),and Right of Way Permit Holders Insurance Schedule A (continued) Exhibit I 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 $1,000,000 Fire Damage Limit(any one occurrence) $ 50,000 Medica l Payments $ 5,000 a) Coverage shall be written on an occurrence,not claims made,form.The general liability coverage shall be written in accord with ISO form CG0001 or business owners form BP0002. All deviations from the standard ISO commercial general Ill form CG 0001,or Business owners form BP 0002,shall be clearly identified. b) Include ISO endorsement form CG 25 04"Designated Locatlon(s)General Aggregate Limit c) Include endorsement indicating that coverage is primary and non-contributory. d) Include endorsement to preserve Governmental Immunity (Sample attached)_ e) Include an endorsement that deletes any fellow employee exclusion. f) Include additional insured endorsement for: The City of Dubuque,including all its elected and appointed officials,all its employees and volunteers,all its boards,commissions and/or authorities and their board members, employees and volunteers.Use ISO form CG 20 10. (Ongoing operations). g) Ifvandor utilizes Trlkkas or Segways In the conduct of business,include an endorsement reflecting that these vehicles are not excluded from Commercial General Liability coverage. B) WORKERS'COMPENSATION&EMPLOYERS LIABILITY Statutory benefits covering all employees injured on the jab by accident or disease as prescribed by Iowa Code Chapter 85 as amended. Coverage A Statutory—State of Iowa Cwera,B Employers Liability Each Accident $100,000 Each Employee-Disease $100,000 Policy LimitDisease $500,000 Policy shall include an endorsement providing a waiver of subrogation to the City of Dubuque. Page 2 of 3 Schedule A Property Or Vendors July 2015.Doc 29 City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or Vendors(Suppliers,Service Providers),and Right of Way Permit Holders Preservation of Governmental Immunities Endorsement 1. Nonwaiver of Governmenta l Immunity.The insurance carrier express y 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 Qty of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it maybe amended from time to time. 2. Claims Coverage.The insurance carrier further agrees that this policy of insurance sha l l cover on ly those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time.Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity.The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity,and may do so at any time and shall do so upon the timely written request of the insurance carrier. 4. Non-Denial of Coverage.The insurance carrier shall not deny coverage under this policy and the Insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled In favor of the defense(s)of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy.The above preservation of governmental immunities sha II not otherwise change or alter the coverage available under the policy. SPECIMEN Page 3 of 3 Schedule A Property Or Vendors July 2015.Doc 30 LICENSE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA 'AND STONE CLIFF WINERY, INC. IIS LICENSE AGREEMENT (the Agreement), dated for reference purposes theday of 2016, is made and entered into between the City of Dubuque, ,Iowa, a municip I corporation (City) ;and Stone Cliff Winery, Inc. an Iowa Corporation (SCW).; SECTION 1. LICENSED PREMISES AND TERM. 1.1 In consideration of the ;fee hereinafter reserved and the, terms, covenants, conditions and agreements set forth in this Agreement, City hereby grants a non.- exclusive permit to SCW for use the real property shown on .Exhibit. A,attached hereto, together. with any and all easements and appurtenances ,thereto and subject to any easements and restrictions of record ( e Licensed Premises), for a term of one (1) year commencing on the/Irlay of h , 2016 and terminating at 11:59 p.m. on; December 31, 2016 subje t to allP-of ;tfie terms, covenants, conditions and agreements contained herein as well as the City of Dubuque Special Event Application process. 1.2 Termination. Either party :may terminate this Agreement for any. reason ;with or without cause upon thirty (30) days written notice to the other party. Upon termination, City may enter the Licensed Premises and assume exclusive use and control of the Licensed Premises., Upon termination of this Agreement, SCW agrees to surrender possession of the Licensed Premises in its condition as when rfirst permitted use, or to restore :the Licensed Premises to substantially the same condition, ordinary wear and tear excepted. 1.3 Condition of Property. City will deliver the Licensed Premises in its "as is" condition. SECTION 2. FEE. SCW must pay City a fee for the use of the Licensed Premises of Nine Hundred Dollars ($900.00). SECTION 3. IMPROVEMENTS. 3.1 SCW Improvements. SCW may not construct any improvements on the Licensed Premises. 3.2 Signage. SCW may not place any signage on the Licensed Premises without the prior written approval of City Manager and approval will be in the City Manager's sole discretion. 1 SECTION 4. TAXES AND UTILITIES. 4.1 SCW agrees to pay to City any applicable real estate taxes upon the Licensed Premises that may be assessed against the Licensed Premises as a result of the use of the Licensed Premises pursuant to this Agreement. 4.2 SCW agrees to timely pay all taxes, assessments or other public charges levied or assessed by lawful authority (but reasonably preserving SCW's rights of appeal) against its personal property on the premises, during the term of this Agreement. 4.3 SCW has, at all times, the right to contest in good faith, in any proper proceedings, in the name of City if necessary, the payment or satisfaction of any such taxes, assessments, rates, charges or levies so agreed to be paid by SCW, if the validity thereof, or the right to assess or levy the same against or collect the same from said Licensed Premises or improvements, may be disputed. Upon the conclusion of any such suit or proceedings, or not less than three (3) months prior to the date when the right to redeem therefrom expires, whichever will be the earlier, SCW will promptly pay and satisfy such disputed tax, assessment or other charge as finally determined, together with all expenses, costs and attorneys' fees whatsoever incurred in connection therewith. 4.4 SCW must pay all applicable utilities for the use of the Licensed Premises. This may require installation of a separate meter billed to SCW. SECTION 6. REPAIRS / MAINTENANCE. SCW must at all times during the term of this Agreement, at SCW's own costs and expense, keep the Licensed Premises free of liter, in good order, condition and repair, and is responsible for any damage done as of result of the use of the Licensed Premises. Any damage must be reported to the City for repair as soon as possible and no later than the next business day. SCW will be invoiced for damage. SECTION 6. COMPLIANCE WITH LAW. During the term of this Agreement, SCW must comply with all applicable laws applicable to SCW's use of the Licensed Premises, including, but not limited to, alcoholic beverage laws and those which might result in any penalty on City or forfeiture of City's title to the Licensed Premises. SECTION 7. USE OF LICENSED PREMISES. SCW agrees that during the term of this Agreement, the SCW use of the Licensed Premises will be exclusively for outdoor entertainment events. Outdoor entertainment includes, but is not limited to; music, movies, the serving of food and alcohol, cooking and serving food, and placement of lawn furniture. Outdoor entertainment excludes use of the Licensed Premises by vendors other than SCW. SCW must observe the following conditions: 2 (1) All events using any part of the Alliant Amphitheater, including, the Licensed Premises, must be scheduled through City's Leisure Services Department; non-SCW reservations take precedent over SCW events. (2) Vehicular traffic, in and on the Alliant Amphitheater is prohibited. Setup for non-SCW events must not be restricted by or during SCW events or at any other time. Delivery or other vehicles may park in delivery zone shown on map attached (Exhibit A). (3) No fencing for the Licensed Premises is allowed unless with the approval of City Manager or through an approved Special Events Permit Application. Any tents or other structures must be free standing/weighted and not require ground staking. (4) SCW may not require any non-SWC event sponsor using the Alliant Amphitheater to purchase food or drinks from SCW or in the Licensed Premises. If a non-SCW event sponsor chooses to be the sole provider of food and drink for an event using the entire amphitheater then SCW must amend its liquor license with the Iowa Alcoholic Beverage Division and the City for the period of such event to remove the area covered in Exhibit A. SECTION 8. INSURANCE. 8.1 SCW must at all times during the term of this Agreement maintain insurance as set forth in the City's standard Insurance Schedule for Lessors of City Property, as such uniform, standardized schedule may from time to time be amended. The current Insurance Schedule A is attached to this Agreement. 8.2 SCW must deliver to City promptly after the execution and delivery of this Agreement the original or duplicate policies or certificates of insurers satisfactory to City evidencing all the insurance which is then required to be maintained by SCW hereunder, and SCW must, within thirty (30) days prior to the expiration of any such insurance, deliver other original or duplicate policies or other certificates of the insurers evidencing the renewal of such insurance. SECTION 9. INDEMNIFICATION. 9.1 Indemnification of City. Except as otherwise provided herein, SCW will protect, indemnify, and save harmless City from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against City by reason of (a) any accident, injury to, or death of persons or loss of or damage to property occurring on or about the Licensed Premises during the term of this Agreement and resulting from any act or omission of SCW or anyone claiming by, through, or under SCW during the term of the Agreement; and (b) any failure on the part of SCW to perform or comply with any of the terms of this Agreement. In case any action, suit, or proceeding is brought against City by reason of such occurrence, SCW 3 will, at SCW's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by City. 9.2 Indemnification of City. Except as otherwise provided herein, City will protect, indemnify, and save harmless SCW from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against SCW by reason of (a) any accident, injury to, or death of persons or Toss of or damage to property occurring on or about the Licensed Premises during the term of this Agreement and resulting from any act or omission of City or anyone claiming by, through, or under City during the term of the Agreement; and (b) any failure on the part of City to perform or comply with any of the terms of this Agreement. In case any action, suit, or proceeding is brought against SCW by reason of such occurrence, City will, at City's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by SCW. SECTION 10. ASSIGNMENT AND SUBLETTING. SCW may not assign or transfer this Agreement without the prior written consent of City. SECTION 11. NOTICES. 11.1 All notices, demands, or other writings in this Agreement provided to be given or made or sent, or which may be given or made or sent, by either party to the other, must be deemed to have been fully given or made or sent when made in writing and deposited in the United States mail, registered and postage prepaid, and addressed as follows: TO CITY: TO SCW: City Manager City of Dubuque, Iowa 50 West 13th Street Dubuque, Iowa 52001 Stone Cliff Winery 600 Star Brewery Drive Dubuque, IA 52001 11.2 The address to which any notice, demand, or other writing may be given or made or sent to any party as above provided may be changed by written notice given by the party as above provided. CITY OF DUBUQUE, IOWA STONE CLIFF WINERY By.,.�_.__. B�-`�'7\a 1, L,- f CC c /(-, Michael C. Van Mi}lien, City Manager Date: --4 % /6 / /6" Date: / / 4 1e) Attest;: -' Kevin S. 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Page x on schedule A,pmpeny of Vendors ImWluea,puma Provided And mm000 8 OC/of Dubuque Insurance Requirements for Tenants and Lessees of Lily property or Vendors(Suppliers, Service Provitlersl,and Right of Way permit Holders presentation of Governmental Immunities Endorsement I Rwanda,a proemial Immunity.The insurance canner expounds age anamtatnxme purchase oltble paltry and the including of the CM1y of Dubuque,Iowa as an Formal Imurtd dna reference any of the defenses of governmental immunity available To the Try of Duarque Iwva antler Cape of I oma YRIo n and)<as R Is mi exkts antl as it may be amended hear bare to time 2 Cam,CoalTh,morne Factor Scharr agrees real bullry of Insurance shall cover only those claims net subjectto Line Mals of Rosenfield immunity underthe Code of l cal 5sftm 670 4 a,grow empt,and as nry from abe amended from Ee to time.Those claims not subject to Utle of Iowa Yctln VAR shall be mverN IF the terms and conditions ofthls Insurance gAlry. * insuranceof Govemm The Ch,a Dubuque,Iowa shall be Po resnslble far asseNr any cheaper,ofgomrnmental Immunity,and may da so at anytime and shall do so upon the timely accred or ofthe insurance canner. * 11,mDolof Carol The insurance cancer hall not amr coycage under this police and the cancer shall not deny any of Line radius,and beMRs aoWre tome the of Dubuque liters correction police fir reasons of governmental immunity unless add unfit a court of competent dn-dmm has ruled infavea of the Feder of gosernmmdl immunity needed 1p the Tay of Dulance,carry NO and,charges in charged on afterthe cmaerar readable under the parrrylsor The,agree preserver �mmentanmmunmaslall mtoNmnse SPECIMEN Ical ,acme 0.Penney or vraeosl%Minn,,encs emerged)Arm mucor 9