Dubuque River Rides Docking Lease Agreement Copyright 2014
City of Dubuque Items to be set for Public Hearing # 2.
ITEM TITLE: Dubuque River Rides Docking Lease Agreement
SUMMARY: City Manager recommending the City Council set a public
hearing on the proposed Docking License Agreement with
Dubuque River Rides for July 5, 2016.
RESOLUTION of Intent to dispose of an interest in City-
owned real estate in the Dubuque Ice Harbor by Docking
License Agreement to Dubuque River Rides, setting a time
and place for hearing and providing for the publication of
notice thereof
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt
Resolution(s), Set Public Hearing for 7/5/16
ATTACHMENTS:
Description Type
Dubuque River Rides Docking License Agreement- City Manager Memo
MVM Memo
Staff Memo Staff Memo
Resolution Resolutions
Docking Lease 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: Docking License Agreement for Dubuque River Rides
DATE: June 16, 2016
Project Manager Steve Sampson Brown recommends the City Council set a public
hearing on the proposed Docking License Agreement with Dubuque River Rides for
July 5, 2016.
The key elements of this proposed lease agreement are:
• The term of the docking agreement is five years beginning on May 1, 2016
and ending on April 30, 2021.
• The dock site consists of an area of water approximately 130 feet by 260
feet.
• Dubuque River Rides will pay $ 0.75 per full paying passenger. The total
rent per year is estimated to be $ 13,500 - $ 14,500.
• Dubuque River Rides will provide the City each year with 1,150 vouchers
for the City to distribute to residents of targeted neighborhoods and low
income residents.
• Dubuque River Rides will be responsible for property taxes and all other
fees.
• All property maintenance costs will be the responsibility of Dubuque River
Rides.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
IA� k�4
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Steve Sampson Brown, Project Manager
Gus Psihoyos, City Engineer
TH
E
CITY OF - Dubuque
L i t AmedcaCitY
I
Masterpiece on the Mississippi 2007.2012.2013
TO: Michael C. Van Milligen, City Manager n
FROM: Steve Sampson Brown, Project Manager S��j A G1
SUBJECT: Docking License Agreement for Dubuque River Rides
DATE: June 15, 2016
INTRODUCTION
The attached resolution is in reference to setting the public hearing for the Docking
License Agreement between the City of Dubuque and Dubuque River Rides.
DISCUSSION
Currently Dubuque River Rides docks it's vessels on City owned property located at 500
E 3rd Street on the north shoreline of the Ice Harbor. Their current docking license
expired on April 30, 2016. City staff and representatives of Dubuque River Rides have
negotiated the attached proposed agreement. The key elements of this proposed lease
agreement include the following:
• The term of the docking agreement is 5 years beginning on May 1, 2016
and ending on April 30, 2021
• The dock site consists of an area of water approximately 130 feet by 260
feet.
• Dubuque River Rides will pay $ 0.75 per full paying passenger. The total
rent per year is estimated to be $ 13,500 - $ 14,500.
• Dubuque River Rides will provide the City each year with 1,150 vouchers
for the City to distribute to residents of targeted neighborhoods and low
income residents.
• Dubuque River Rides will be responsible for property taxes and all other
fees.
• All property maintenance costs will be the responsibility of Dubuque River
Rides.
Additional terms and conditions of the lease are included within the attached Lease
Agreement.
BUDGETIMPACT
In FYI docking license revenues are estimated to be $13,500 - $14,500 per year
annually as a result of this agreement.
ACTION TO BE TAKEN
I recommend that the City Council approve the enclosed resolution to set a public
hearing on the proposed Docking license agreement with Dubuque River Rides for July
5, 2016.
Attachments
cc: Barry Lindahl, City Attorney
Jenny Larson, Budget Director
Gus Psihoyos, City Engineer
Bob Schiesl, Asst. City Engineer
Jean Nachtman, Finance Director
Maurice Jones, Economic Development Director
Marie Ware, Leisure Services Manager
Laura Carstens, City Planner
Ben Alden, Facilities Supervisor
K:\SBrown\Leases\_Lease Negotiations\2016 New Leases\Dubuque River Rides\Memo-Dubuque River Rides.docx
RESOLUTION NO. 248-16
INTENT TO DISPOSE OF AN INTEREST IN CITY OWNED REAL ESTATE IN THE
DUBUQUE ICE HARBOR BY DOCKING LICENSE AGREEMENT TO DUBUQUE
RIVER RIDES, SETTING A TIME AND PLACE FOR HEARING AND PROVIDING
FOR THE PUBLICATION OF NOTICE THEREOF
Whereas, the City of Dubuque, Iowa is the owner of the real property legally
described as follows:
Part of the Dubuque Ice Harbor Located in the West 1/2 of the NW 1/
Section 30 T89NR3E of the 5th PM. in the City of Dubuque, Iowa
as shown on Exhibit A; and
Whereas, Dubuque River Rides desires a docking license for part of the property
as shown on Exhibit A for docking of vessels and other business activities upon the
terms set forth in a Docking License Agreement which is on file at the office of the City
Clerk, City Hall, 50 W. 13th Street, Dubuque, Iowa; and
Whereas, City and Dubuque River Rides have tentatively agreed to the terms of
the Docking License Agreement, which among other things, provides for a term through
April 30, 2021; and
Whereas, the City Council believes it is in the best interest of the City of
Dubuque to approve the Docking License Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the City of Dubuque intends to dispose of its interest in the
following legally described property:
Part of the Dubuque Ice Harbor Located in the West 1/2 of the NW 1/4
Section 30 T89NR3E of the 5th PM. in the City of Dubuque, Iowa
as shown on Exhibit A through a Docking License Agreement with Dubuque River
Rides.
Section 2. That the City Clerk is hereby authorized and directed to cause this
Resolution and a notice to be published as prescribed by Iowa Code Section 364.7 of a
public hearing on the City's intent to dispose of the foregoing -described real property by
Docking License Agreement, to be held on the 5th day of July, 2016, at 6:30 o'clock p.m.
at the Historic Federal Building, Council Chambers, 350 W. 6th Street, Dubuque, Iowa.
Passed, approved and adopted this 20th day of June, 2016.
Attest:
Kevin . Firnstah CitSG' Ierk
Roy D. Buol, Mayor
EXHIBIT A
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NOTICE OF A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA, ON THE INTENT TO DISPOSE OF AN INTEREST IN CITY
OWNED REAL ESTATE IN THE DUBUQUE ICE HARBOR BY DOCKING LICENSE
AGREEMENT TO DUBUQUE RIVER RIDES
NOTICE IS HEREBY GIVEN: The City Council of the City of Dubuque, Iowa will
hold a public hearing on the 5th day of July, 2016, at 6:30 p.m. at the Historic Federal
Building, Council Chambers (second floor), 350 West 6th Street, Dubuque, Iowa, at
which meeting the City Council proposes to take action on the disposal of an interest in
real property owned by the City of Dubuque by lease between the City of Dubuque,
Iowa and Dubuque River Rides, for a Docking Lease Agreement and other business
activities upon the terms set forth in a Docking Lease Agreement, which is on file at the
office of the City Clerk, City Hall, 50 W 13th Street, Dubuque, Iowa. Said proposed
plans, specifications, form of contract and estimated cost are now on file in the office of
the City Clerk. At said hearing any interested person may appear and file objections
thereto.
At the meeting, the City Council will receive oral and written objections from any
resident or property owner of said City to the above action. After all objections have
been received and considered, the City Council may at this meeting or at any
adjournment thereof, take additional action on the proposal to enter into the Lease
Agreement. By order of the City Council said hearing and appeals therefrom shall be
held in accordance with and governed by the provisions of Chapter 364.7 of the Code of
Iowa.
Any visual or hearing-impaired persons needing special assistance or persons with
special accessibility needs should contact the City Clerk's office at (563) 589-4120 or
TDD at (563) 690-6678 at least 48 hours prior to the meeting.
Published by order of the City Council given on the day of
2016.
Kevin S. Firnstahl, CMC, City Clerk
DOCKING LICENSE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DUBUQUE RIVER RIDES, INC.
THIS AGREEMENT (the Agreement), executed in duplicate, made and
entered into this day of , 2016 by and between
THE CITY OF DUBUQUE, IOWA (City) whose address for the purpose of this
License is City Hall, 50 West 13th Street, Dubuque, Iowa 52001 and DUBUQUE
RIVER RIDES, INC., (River Rides) whose address for the purpose of this
License is 500 E. 3m Street, Dubuque, Iowa 5200152004-1276.
SECTION 1. DOCKING PRIVILEGE; TERM.
1.1. City, in consideration of the agreements and conditions herein contained,
on the part of the River Rides to be kept and performed, grants unto the River
Rides and River Rides, the privilege of docking its vessels, according to the
terms and provisions herein, in the following described real estate, situated in
Dubuque County, Iowa:
See Exhibits A and B attached hereto and by this reference made a
part hereof
with the improvements thereon and all rights, and appurtenances thereto
belonging (the Licensed Premises), for a term commencing at midnight of the
day previous to the first day of the Term, which shall be on the 15' day of May,
2016, and ending at midnight on the last day of the Term, which shall be on the
301h day of April, 2021, upon the condition that the River Rides pays the Docking
Fee described below, and otherwise performs as required by this Agreement..
1.2. During the Term, City reserves the right in its sole discretion to require the
reconfiguration of the Licensed Premises. If City requires reconfiguration of the
Licensed Premises, the parties agree to divide the cost of the reconfiguration as
follows:
A. City shall pay the costs of the relocation and restoration of the
landside utilities that service River Rides.
B. River Rides shalt pay for all other relocation expenses.
C. City agrees to provide a no interest loan to River Rides for the
actual, reasonable costs of River Rides' relocation of its facilities not to exceed
$25,000.00 and subject to prior written approval of such costs by the City (the
Loan). The Loan shall be secured by collateral provided by River Rides and
approved by the City. The Loan shall be repaid by River Rides in equal monthly
installments (5 year amortization, zero interest, payments due monthly),
1.3. City grants to River Rides during the Term permission to maintain one
sign approved by City as shown on Exhibit A. City will cooperate with River Rides
to maintain a location for a wayfinding sign with directions to River Rides to be
installed at City's cost.
SECTION 2. DOCKING FEE.
2.1. Docking Fee. River Rides agrees to pay to City a monthly docking fee
(the Docking Fee) during the Term as follows:
$0.75 per full-paying passenger in the calendar year.
The Docking Fee shall be paid monthly by not later than the 10r" day of the
following month beginning on the 101" day of June, 2016, and not later than the
10r" day of each month thereafter at the address of City, as above designated, or
at such other place as the City may, from time to time, designate in writing.
2,2. River Rides shall submit to City with each monthly payment of the Docking
Fee a report showing the number of all passengers for that month including
paying passengers, nonpaying passengers and passengers with vouchers.
2.3. River Rides shall provide City upon execution of this Agreement and on or
before April 1 of each calendar year thereafter with 1150 vouchers for City to
distribute to residents of targeted neighborhoods and low Income residents or for
such other purposes as City determines appropriate. The vouchers shall be
used for the 1%z hour sightseeing cruise, Monday through Thursday, or as
otherwise agreed by River Rides. Passengers boarding on vouchers provided in
this Section shall not be included in the calculation of the Docking Fee in Section
2.1.
SECTION 3. POSSESSION. River Rides shall be entitled to possession on
the first day of the term of this License, and shall yield possession to the City at
the time and date of the close of this License term, except as herein otherwise
expressly provided. City has no obligation for any costs or expenses incurred by
River Rides in connection with this Lease except as provided in Section 1.2.
SECTION 4. USE OF PREMISES.
4.1. The Licensed Premises shall be used by River Rides for the following
uses only: riverboat rides; small boat tours; pontoon boat rental; serving of meals
and/or beverages on River Rides' riverboats; River Rides' offices and training,
and a restaurant with bar, including catering service but only as a part of the
operation of the full-service restaurant, on the barge and a gift shop on the
barge, both shown on Exhibit A. Notwithstanding the foregoing, River Rides shall
provide regularly scheduled riverboat rides for not less than 12,000 passengers
per calendar year.
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4.2. The following vessels as shown on Exhibit A and no other others without
the prior written consent of the City Manager shall be permitted in the Licensed
Premises;
1) Spirit of Dubuque
2) Offices and Training Barge
3) Docking Barge
4) Restaurant and gift shop barge
5) Pontoon Rentals.
4.3. Should the Spirit of Dubuque identified in Section 4.2 be sold or damaged,
a replacement boat, subject to City's approval, which approval shall not be
unreasonably withheld, may be substituted and River Rides shall notify City of
said proposed substitution at the earliest available time. River Rides may seek
to initiate a plan for small boat tour and pontoon boat rentals, which plan shall be
submitted to City for approval, which approval shall not be unreasonably
withheld.
4.4. River Rides shall not broadcast announcements over a public address
system more often than every 5 minutes and not prior to 30 minutes before any
cruise departs the dock. River Rides shall not broadcast music over a public
address system more than 15 minutes before any cruise departs the dock.
Broadcasting from a public address system from land or while a cruise boat is
located inside the Ice Harbor is not allowed at any other time.
SECTION 5. QUIET ENJOYMENT. City covenants that its estate in said
premises is fee simple, and that the River Rides on paying the rent herein
reserved and performing all the agreements by the River Rides to be performed
as provided in this License, shall and may peaceably have, hold and enjoy the
Licensed Premises for the term of this License free from molestation, eviction or
disturbance by the City or any other persons or legal entity whatsoever.
SECTION 6. CARE AND MAINTENANCE OF PREMISES.
6.1. River Rides takes said premises in their present condition except for any
environmental hazard or condition existing on the Licensed Premises.
6.2. City's Duty Of Care And Maintenance. City shall have no duty of care or
maintenance, including no duty to dredge the Licensed Premises or the Ice
Harbor, except any environmental hazard or condition existing on the Licensed
Premises. When City does dredge, however, River Rides agrees to cooperate
with City to accommodate such dredging.
6.3. River Rides' Duty Of Care And Maintenance, River Rides shall at all times
during the term of this License, at River Rides' own costs and expense, keep and
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maintain the Licensed Premises and all improvements and vessels in a condition
consistent with other similarly classed operations and other businesses in the
Port of Dubuque as determined by the City Manager in the City Manager's sole
discretion, including but not limited to not permitting broken windows,
deterioration of the exterior of vessels or structures, and peeling paint. City may,
at its discretion, upon reasonable notice to River Rides, conduct an inspection of
the Licensed Premises to determine River Rides' compliance with this Article 6.
River Rides on a once per week basis shall remove all dead wood and floating
weeds in and around the Licensed Premises and remove all weeds growing in
the rip rap slopes on the Licensed Premises. River Rides shall remove all trash
and debris from the Licensed Premises on every day that a riverboat ride is
scheduled or that the restaurant is open. In no case shall trash removal be less
than once per week.
6.4. River Rides will make no unlawful use of said premises and agrees to
comply with all city ordinances, and the laws of the State of Iowa and the Federal
government.
6.5. River Rides acknowledges that it may be necessary for City to close the
Ice Harbor flood gates based on river and weather conditions and River Rides
waives any and all objections to the closing of the flood gates and releases City
from any and all claims it may have arising out of the closing of the flood gates.
6.6. By no later than November 30, 2016 River Rides agrees to repaint the
exterior of the Galley Restaurant in its entirety to a high standard consistent with
the appearance of the Diamond Jo Casino, Flexsteel, McGraw-Hill, the Grand
Harbor Hotel and Waterpark, and the Mississippi River Museum and Aquarium,
and to maintain such appearance during the Term.
SECTION 7. IMPROVEMENTS.
7.1. On delivery of possession of the Licensed Premises to River Rides, River
Rides shall not construct on the Licensed Premises any structures, buildings or
other improvements except as agreed upon in advance, in writing by City. City
shall have the right in its sole discretion to approve the design, appearance and
quality of any such Improvements.
7.2, River Rides shall not encumber by mortgage, deed of trust, or other
instrument, its interest in the Licensed Premises.
SECTION 8. GREATER DOWNTOWN URBAN RENEWAL DISTRICT
DESIGN STANDARDS. River Rides agrees to comply in all respects with the
Greater Downtown Urban Renewal District Design Standards as they currently
exists or might hereafter be amended as such Standards apply to the Licensed
Premises.
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SECTION 9. UTILITIES AND SERVICES. River Rides, during the term of this
License, shall pay, before delinquency, all charges for all utilities and services,
including garbage disposal and trash disposal. River Rides shall be responsible
for all operating and repair and maintenance costs related in any way
whatsoever to the utilities serving the Licensed Premises.
SECTION 10. SURRENDER OF PREMISES AT END OF TERM - REMOVAL
OF FIXTURES.
10.1. River Rides shall, on the last day of the term of this License or upon any
termination of this License hereof, surrender and deliver up the Licensed
Premises without fraud or delay and in good order, condition, and repair, free
and clear of all lettings and occupancies, free and clear of all liens and River
Rides shall remove any or all of the Improvements erected by River Rides
located on the Licensed Premises, remove all utility connections as required by
City Code, and restore the Licensed Premises to the condition it was in
immediately prior to the commencement of the term of this License.
10.2, Holding Over. Continued possession, beyond the expiratory date of the
term of this License, by the River Rides, coupled with the acceptance of the
specified rental by the City and a written agreement by City for an extension of
this License shall constitute a month to month extension of this License.
SECTION 11. ASSIGNMENT AND SUBLETTING. This License may not be
assigned nor the Licensed Premises sublet by the River Rides without the prior
written consent of the City, which consent shall not be unreasonably withheld.
SECTION 12. TAXES.
12.1. River Rides agrees to pay to City as additional consideration at the time of
the payment of the Annual Fee an amount equal to real estate taxes upon the
real estate of the Licensed Premises that accrue during the Term of this License,
upon receipt of a statement from City for such accrued taxes.
12.2. River Rides further agrees to pay all other lawful taxes, rates, charges,
levies and assessments, general and special, of every name, nature and kind,
whether now known or hereafter created which may be taxed, charged,
assessed, levied or imposed upon said real estate, any buildings or
improvements thereon which may be taxed, charged, assessed, levied or
imposed upon the Licensed Premises estate hereby created during the term
hereof, and all such taxes, rates, charges, levies and assessments shall be paid
by River Rides as they become due and before they become delinquent, subject,
however, to the limitations and obligations of City set forth in this License.
12.3, River Rides agrees to timely pay all taxes, assessments or other public
charges levied or assessed by lawful authority (but reasonably preserving River
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Rides' rights of appeal) against its personal property on the premises, during the
term of this License,
12.4. Nothing herein shall require River Rides to pay any of City's income taxes,
surtaxes, excess profit taxes or any taxes on the rents reserved to City
hereunder.
12.5. River Rides 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
River Rides, if the validity thereof, or the right to assess or levy the same against
or collect the same from said Licensed 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, River Rides will promptly pay and satisfy such
disputed tax, assessment or other charge as finally determined, together with all
expenses, costs and attorneys' fees whatsoever incurred in connection
therewith.
SECTION 13. INSURANCE.
13.1. City and River Rides will each keep their respective property interests in
the premises and its liability in regard thereto, and the personal property on the
premises, reasonably insured against hazards and casualties; that is, fire and
those items usually covered by extended coverage; and River Rides will procure
and deliver to the City a certification from the respective insurance companies to
that effect. Such insurance shall be made payable to the parties hereto as their
interests may appear, except that the River Rides' share of such insurance
proceeds are hereby assigned and made payable to the City to secure rent or
other obligations then due and owing City by River Rides.
13.2. Neither City nor River Rides will do or omit the doing of any act which
would vitiate any insurance, or increase the insurance rates in force upon the
real estate improvements on the premises or upon any personal property of the
River Rides upon which the City by law or by the terms of this License, has or
shall have a lien.
13,3. Waiver Of Subrogation. Notwithstanding any other provision in this
License to the contrary, both City and River Rides hereby waive any and all
rights of recovery, claim, action or causes of action against each other, their
agents, officers and employees, for any loss or damage that may occur to the
Licensed Premises, including improvements thereon, or to any property of either
party maintained on the Licensed Premises by reason of fire, casualty, the
elements, or any other cause of physical damage which could be insured against
under the terms of standard fire and extended overage insurance policies,
regardless of cause or origin and regardless of the negligence of the parties
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hereto, their agents, officers, invitees and employees. Each of the parties hereto
shall secure such a waiver of subrogation endorsement from its respective
insurance carriers and provide, upon request, a copy of such insurance
endorsement to the other party.
13.4. Insurance Proceeds. City shall settle and adjust any claim against any
insurance company under its said policies of insurance for the premises, and
said insurance monies shall be paid to and held by the City to be used in
payment for cost of repairs or restoration of damaged building, if the destruction
is only partial.
SECTION 14. INDEMNITY AND LIABILITY INSURANCE.
14.1. River Rides shall 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 Licensed Premises during the term of this License and
resulting from any act or omission of River Rides or anyone claiming by, through,
or under River Rides during the term of the License; and (b) any failure on the
part of River Rides to perform or comply with any of the terms of this License. In
case any action, suit, or proceeding is brought against City by reason of such
occurrence, River Rides will, at River Rides' expense, resist and defend such
action, suit, or proceeding, or cause the same to be resisted and defended by
counsel approved by City.
14.2. River Rides further covenants and agrees that it will at its own expense
procure and maintain insurance as set forth in City's standard Insurance
Schedule N (Exhibit C) for Docking of Commercial Vessels as such Schedule
may from time to time be amended. City's current Insurance Schedule is
attached hereto.
14.3. City will defend, indemnify, and save harmless River Rides 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 River Rides 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
License and resulting from any act or omission of City or anyone claiming by,
through, or under City during the term of the License; and (b) any failure on the
part of City to perform or comply with any of the terms of this License. In case
any action, suit, or proceeding is brought against River Rides 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 River Rides.
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SECTION 15. FIRE AND CASUALTY. PARTIAL DESTRUCTION OF
PREMISES.
15.1. In the event of a partial destruction or damage of the Licensed Premises,
which is a business interference, that is, which prevents the conducting of a
normal business operation of River Rides or the purposes identified above and
which damage is reasonably repairable within sixty (60) days after its
occurrence, this License shall not terminate but the rent for the Licensed
Premises shall abate during the time of such business interference or be
refunded if previously paid. In the event of partial destruction, River Rides shall
repair such damages within sixty (60) days of its occurrence unless prevented
from so doing by acts of God, the elements, the public enemy, strikes, riots,
insurrection, government regulations, city ordinances, labor, material or
transportation shortages, or other causes beyond River Rides' reasonable
control.
15.2. Zoning. Should the zoning ordinance or any other action of the City make
it impossible for River Rides, using diligent and timely effort to obtain necessary
permits and to repair and/or rebuild so that River Rides is not able to conduct its
business on these premises, then such partial destruction shall be treated as a
total destruction as in the next paragraph provided.
15.3. Total Destruction Of Business Use. In the event of a destruction or
damage of the Licensed Premises so that River Rides is not able to conduct
normal business operations, specifically including the purposes identified above
on the Licensed Premises or the then current legal use for which the premises
are being used and which damages cannot be repaired within sixty (60) days this
License may be terminated at the option of River Rides. Such termination in
such event shall be effected by written notice of River Rides to City, within twenty
(20) days after such destruction. River Rides shall surrender possession within
ten (10) days after such notice issues, and each party shall be released from all
future obligations hereunder, City shall promptly refund rental pro rata to the date
of such destruction.
SECTION 16. CONDEMNATION.
16.1. If at any time during the term of this License all or substantially all of the
Licensed 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 other than City, then this License shall terminate on the date of
vesting of title in such taking and any prepaid rent shall be apportioned based
upon the value of the property taken and the damages actually sustained taking
into consideration any contractual liability incurred by River Rides as a result
thereof as of said date. Substantially all of the Licensed Premises and the
improvements thereon shall be deemed to have been taken if the remaining
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portion of the Licensed shall not be of sufficient size to permit River Rides to
operate its business thereon in a manner similar to that prior to such taking.
16.2, Temporary Taking. If the temporary use of the whole or any part of the
Licensed Premises or the Improvements thereon or the appurtenances thereto
shall be taken at any time during the term of this License in the exercise of the
power of eminent domain by any sovereign, municipality, or other authority other
than City, the term of this License shall not be reduced or affected in any way,
and River Rides 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
River Rides, and the entire award for such temporary taking shall be paid to
River Rides. River Rides shall repair and restore any and all damage to the
Licensed Premises and the improvements as soon as reasonably practicable
after such temporary taking.
16.3. Bankruptcy Or Insolvency Of River Rides. In the event River Rides is
adjudicated a bankrupt or in the event of a judicial sale or other transfer of River
Rides' License interest by reason by any bankruptcy or insolvency proceedings
or by other operation of law, but not by death, and such bankruptcy, judicial sale
or transfer has not been vacated or set aside within ten (10) days from the giving
of notice thereof by City to River Rides, then and in any such events, City may,
at its option, immediately terminate this License, re-enter said premises, upon
giving of ten (10) days' written notice by City to River Rides, all to the extent
permitted by applicable law.
SECTION 17. DEFAULT. If River Rides shall fail or neglect to observe, keep,
or perform any of the material covenants, terms, or conditions contained in this
License 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 River Rides' 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 River Rides has to cure the same shall be extended for such
period as may be necessary to complete the same with all due diligence), then
and in any such event, City shall have the right at its option, on written notice to
River Rides, to terminate this License and all rights of River Rides under this
License shall then cease. City, without further notice to River Rides, shall have
the right immediately to enter and take possession of the Licensed Premises with
or without process of law and to remove all personal property from the Licensed
Premises and all persons occupying the Licensed Premises and to use all
necessary force therefore and in all respects to take the actual, full, and
exclusive possession of the Licensed Premises and every part of the Licensed
Premises as of City's original estate, without incurring any liability to River Rides
or to any persons occupying or using the Licensed Premises for any damage
caused or sustained by reason of such entry on the Licensed Premises or the
removal of persons or property from the Licensed Premises.
9
SECTION 18. RIGHT OF EITHER PARTY TO MAKE GOOD ANY DEFAULT
OF THE OTHER. If default shall be made by either party in the performance of,
or compliance with, any of the terms, covenants or conditions of this License,
and such default shall have continued for thirty (30) days after written notice
thereof from one party to the other, the person aggrieved, in addition to all other
remedies now or hereafter provided by law, may, but need not, perform such
term, covenant or condition, or make good such default and any amount
advanced shall be repaid forthwith on demand, together with interest at the rate
of 9% per annum, from date of advance.
SECTION 19. SIGNS. River Rides shall have the right and privilege of
attaching, affixing, painting or exhibiting signs on River Rides' vessels and
structures on the Licensed Premises, provided (1) that any and all signs shall
comply with the ordinances of the city of Dubuque and the laws of the State of
Iowa and the Ice Harbor Urban Renewal District Design Standards; (2) such
signs shall not change the structure of any building or the premises; (3) such
signs if and when taken down shall not damage any building or the premises or
such damage shall be repaired; and (4) such signs shall be subject to the prior
written approval of the City, which approval shall not be unreasonably withheld.
SECTION 20. MECHANIC'S LIENS. Neither the River Rides nor anyone
claiming by, through, or under the River Rides, shall have the right to file or place
any mechanic's lien or other lien of any kind or character whatsoever, upon said
premises or upon any building or improvement thereon, or upon the interest of
the River Rides therein, and notice is hereby given that no contractor, sub-
contractor, or anyone else who may furnish any material, service or labor for any
building, improvements, alteration, repairs or any part thereof, shall at any time
be or become entitled to any lien thereon, and for the further security of the City,
the River Rides covenants and agrees to give actual notice thereof in advance,
to any and all contractors and sub-contractors who may furnish or agree to
furnish any such material, service or labor.
SECTION 21. RIGHTS CUMULATIVE. The various rights, powers, options,
elections and remedies of either party, provided in this License, shall be
construed as cumulative and no one of them as exclusive of the others, or
exclusive of any rights, remedies or priorities allowed either party by law, and
shall in no way affect or impair the right of either party to pursue any other
equitable or legal remedy to which either party may be entitled as long as any
default remains in any way unremedied, unsatisfied or undischarged.
SECTION 22. PROVISIONS TO BIND AND BENEFIT SUCCESSORS,
ASSIGNS, ETC. Each and every covenant and agreement herein contained
shall extend to and be binding upon the respective successors, heirs,
administrators, executors and assigns of the parties hereto.
10
SECTION 23. CONSTRUCTION. Words and phrases herein, including
acknowledgment hereof, shall be construed as in the singular or plural number,
and as masculine, feminine or neuter gender according to the context.
SECTION 24. ENVIRONMENTAL.
24.1 Lessee Compliance With Law. Lessee shall comply with all applicable
local, state and federal laws, rules, regulations and permits with regard to the
Demised Premises and its use, occupancy and control of the Demised Premises.
24.2 Environmental Matters.
(1) Lessee covenants and agrees that Lessor shall have no
responsibility for or liability arising from any release of a Hazardous
Substance which is caused by or results from Lessee, Lessee's use,
occupancy or control of the Demised Premises, except for Lessor
Hazardous Substances (any Hazardous Substance which leaches or
migrates upon the Demised Premises from any property owned by
Lessor). Notwithstanding any other provision of this Lease, Lessee shall
not have any responsibility for any Hazardous Substance which leaches
or migrates upon the Demised Premises from any adjacent property or
any release of a Hazardous Substances which is caused by Lessor or
which pre-exists the date of this Lease, except as follows: (a) Lessee shall
be responsible for known pre- existing releases for which Lessee fails to
take due care and adequate precaution and/or for which Lessee's actions
or inactions cause a worsening of the release, and (b) Lessee shall
provide full cooperation, assistance, and access to Lessor or other parties
investigating and/or responding to a threatened or actual release.
(2) Lessee covenants and agrees to promptly notify Lessor of any
release of Hazardous Substance for which Lessee is responsible under
this Section 12.2(1) that exceeds permitted levels as defined by any local,
state or federal laws applicable to Lessee's use of the Demised Premises
originating after the effective date of this Lease ("Release") in, on or about
the Demised Premises of which Lessee suspects or has actual
knowledge.
(3) Lessee covenants and agrees to promptly take any and all
necessary and appropriate response to fully address any Release
following the advance notice to Lessor required in Section 12.2(2) above.
Such response shall include, without limitation, notification to appropriate
governmental authorities, as may be required by applicable law. Lessee
shall respond to such Release to the full extent required by applicable law,
however, in no event shall Lessee allow limitations or restrictions to be
placed on the Demised Premises without the written consent of the
Lessor.
11
(4) Except as necessary to conduct its operations and use the
Demised Premises as detailed in Section 1.6 and 1.7, Lessee covenants
and agrees to not manufacture, treat or dispose of Hazardous Substances
at the Demised Premises or allow the manufacture, treatment, or disposal
of Hazardous Substances on the Demised Premises. Lessee shall use
and store on the Demised Premises only those Hazardous Substances as
are associated with its regular business activities, and then only as
allowed by applicable law.
(5) For the purposes of this Lease, "Hazardous Substance" or
"Hazardous Substances" means any hazardous or toxic substance,
material or waste which is or becomes regulated by any local government,
the State of Iowa or the United States Government. It includes, without
limitation, any material or substance that is (i) defined as a "hazardous
substance" or "hazardous waste" under Chapter 4558, 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 at
seq., (vii 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.
(6) River Rides agrees to defend, indemnify and hold City harmless
from and against all claims, causes of action, damages, loss, costs,
expense, penalties, fines, lawsuit, liabilities, attorney fees, engineering
and consulting fees, arising out of or in any manner connected with
hazardous substances, which are caused or created by River Rides
during the term of this License including, but not limited to, injury or death
to persons or damage to property, and including any diminution of the
value of any Licensed Premises which may result from the foregoing. This
indemnity shall survive the cessation, termination, abandonment or
expiration of this License for a period of five years.
SECTION 25. AMERICANS WITH DISABILITIES ACT. River Rides shall be
solely responsible for, and agrees to indemnify and hold City harmless from, any
and all repairs, additions, claims, fines, penalties, fees or any other costs or
obligation in any way imposed by or required by or related to the American's with
12
Disabilities Act in connection with the Licensed Premises during the term of this
License.
SECTION 26. PARKING.
26.1. City agrees that River Rides' patrons and not more than three of River
Rides' employees designated by River Rides may have the privilege during the
Term of this License to park in Lot 1 but only upon such terms and conditions as
City determines appropriate, including but not limited to the payment of a parking
fee by users of Lot 1. City shall have the right in its sole discretion to terminate
such parking privileges at any time. In the event City terminates such parking
privileges in Lot 1, River Rides acknowledges that the Port of Dubuque has other
parking available for River Rides' patrons and employees on a nonexclusive,
first-come, first-served basis, subject to any agreements City has to provide
parking to other users. River Rides further acknowledges that City has the option
to create other arrangements for River Rides' patrons and employees on a
nonexclusive, first-come, first-served basis.
26.2. River Rides shall use its best efforts to prohibit its employees from parking
in Lots 1, 2, or 6.
SECTION-27. MEMORANUUM_OF LICENSE._ Each of the_partieshereto will,
promptly upon request of the other, execute a memorandum of this License in
form suitable for recording setting forth the names of the parties hereto and the
term of this License, identifying the Licensed Premises, and also including such
other clauses therein as either party may desire.
SECTION 28. NOTICES. All notices, demands, or other writings in this License
provided to be given or made or sent, or which may be given or made or sent, by
either party to the other, shall be deemed to have been fully given or made or
sent when made in writing and deposited in the United States mail, registered
and postage prepaid, and addressed as follows:
TO CITY:
City of Dubuque, Iowa
City Manager
City Hall
50 West 13" Street
Dubuque, Iowa 52001
TO RIVER RIDES:
Dubuque River Rides, Inc.
Nancy M. Webster, President
P.O. Box 1276
13
Dubuque, Iowa 52004-1276
The address to which any notice, demand, or other writing may be given or made
or sent to any party as above provided may be changed by written notice given
by the party as above provided.
SECTION 29. MISCELLANEOUS.
29.1. Time Of The Essence. Time is of the essence of this License and all of
its provisions.
29.2. Governing Law. It is agreed that this License shall be governed by,
construed, and enforced in accordance with the laws of the State of Iowa.
29.3. Paragraph Headings. The titles to the paragraphs of this License 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 License.
29.4. Modification Of Agreement. Any modification of this License or additional
obligation assumed by either party in connection with this License shall be
binding only if evidenced in a writing signed by each party or an authorized
- -_
representative-of-each party— ___ _
29.5. Parties Bound. This License shall be binding on and shall inure to the
benefit of and shall apply to the respective successors and assigns of City and
River Rides. All references in this License to "City" or 'River Rides" shall be
deemed to refer to and include successors and assigns of City or River Rides
without specific mention of such successors or assigns.
29.6. Force Maieure. In the event that either party hereto shall be delayed or
hindered in or prevented from the performance of any act required hereunder by
reason of strikes, lockouts, labor troubles, unavailability or excessive price of
fuel, power failure, riots, insurrection, war, terrorist activities, chemical
explosions, hazardous conditions, fire, weather or acts of God, or by reason of
any other cause beyond the exclusive and reasonable control of the party
delayed in performing work or doing acts required under the terms of this
License, 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.
IN WITNESS WHEREOF, the parties hereto have duly executed this
License in duplicate the day and year first above written.
14
CITY OF DUBUQUE, IOWA DUBUQUE RIVER RIDES, INC.
By: By:
Roy D. Buol, Mayor Naricy M. ebster, President
By:
Kevin S. Firnstahl, City Clerk
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this day of 2016, before me, a Notary Public in
and for the State of Iowa, personally appeared Roy D. Buol and Kevin S.
Firnstahl, to me personally known, and, who, being by me duly sworn, did say
that they are the Mayor and City Clerk, respectively, of the City of Dubuque,
Iowa; that the seal affixed to the foregoing instrument is the corporate seal of the
city, and that the instrument was signed and sealed on behalf of the city, by
an hority-of_its_Cdy-Council_approvedby-the_Ci4LGouncil-of the-City-of-Dubuque-
Iowa,
he-City-ofDubuqueIowa, on the day of , 2016, and that they acknowledged the
execution of the instrument to be their voluntary act and deed and the voluntary
act and deed of the corporation, by it voluntarily executed.
Notary Public in and for State of Iowa
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this <'Nh day of 2016, before me, a Notary
Public in and for the State of Iowa, personally appeared Nancy M. Webster, to
me personally known, who being by me duly sworn did say that she is the
president of Dubuque River Rides, Inc., that (the seal affixed hereto is the seal of
said)(no seal has been procured by the said) corporation and that said
instrument was signed (and sealed) on behalf of said corporation by authority of
its managers and the said corporation acknowledged the execution of said
instrument to be the voluntary act and deed of said qar oration, by it voluntarily
executed. //
41
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15
EXHIBITS A AND B
LICENSED PREMISES
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EXHIBIT C
INSURANCE SCHEDULE N
19
City of Dubuque Insurance Requirements for Docking of Commercial Vessels
Insurance Schedule N
1. Owner shall furnish a signed Certificate of Insurance to the City of Dubuque,Iowa for the coverage
required in Exhibit I prior to contract Inception and at the end of the contract If the term of contract Is
longer than 6o days, Each certificate shall Include a statement under Description of Doe rail ons as to Why
issued.Eg: Prolettil or Lease of prermsesat
2. All policies of insurance required hereundershall be with a carrier authorized to do business in Iowa and
all carriers shall have a rating of A or better in the current A.M.Best's Bating Guide.
3. Each certificate shall be furnished to the contracting department ofthe City of Dubuque.
4. Failure to provide minimum coverage shall not be deemed a waher of these requirements by the City of
Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of
this agreement.
5. All required endorsements to various policies shall be attached to Certificate of insurance
6. Provider shall be required to carrythe minimum coverage/limlte,or greater if required by law or other
legal agreement,in Exhibit I. Ifprovrder's limits of Iia bllity are higher than the required minimum limits
then the provider's limits shall be this agreement's required limits.
7, Whenever an ISO form is referenced the current edition ofthe form must be.,ad.
Page 1 of 3 Schedule N Docking Of Commerical Vessels luanuary 2016
20
City of Dubuque Insurance Requirements for Docking of Commercial Vessels
Insurance Schedule N (continued)
Exhibit I
A) PROTECTION& INDEMNITY LIABILITY $2,000,000
a) Coverage shall be written on an occurrence,not claims made,form,
b) Include endorsement Indicating that coverage is primary and non-contrlbuto y.
c) Include endorsement to preserve Governmental immunity,(Sample anached).
J) 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.
B) WORKERS'COMPENSATION,LHWCA&EMPLOYERS LIABILITY
Statutory benefits covering all employees injured on the job by accident or disease as prescribed by
Iowa Code Chapter 85 as amended.
Coverage Statutory—State of Iowa
Coverage B Employers Liability
Each Accident $10o,D00
Each Employee-Disease $100,000
Policy Limit-DiSease $sD0,000
Policy shall include an endorsement providing a waiver of suhrogatlon to the Gty of Dubuque
Longshoreman and Harbor Workers Compensation Act Coverage
C) UMBRELLA LIABILITY: $s,000,00o
D) POLLUTION LIABILITY Coverage required: Xyes no
Pollution Liability coverage shall be required If project involves any pollution exposures
including abatement of hazardous or contaminated materials including,but not limited to,the
removal of lead,asbestos,petroleum or PCG's. Pollution product and complete operations
coverage shall also be covered.
$2,000,000 each occurrence
$4,000,000 policy aggregate
a) Policy to include premises and transportation coverage.
b) Include additional insured as stated In Ad above.
c) Include preservation of governmental Immunity as stated in Ac above.
Page 2 of 3 Schedule N Docking Of Commeural Vessels Juanuary 2016
21
City of Dubuque Insurance Requirements for Docking of Commercial Vessels
Preservation of Governmental Immunities Endorsement
1. Nonwaiverof 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 govemmental 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 timeto time.
2. Claims Coverage.The insurance carrier further agrees that this policy of Insurance shall cover only
those claims not subject to the defense of governmental Immunity under the Code of Iowa Section
670.4 as it now exists and as it may be amended from time to time.Those claims not subject to
Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurancepolicy.
3. Assertion of Government Immunity,The Cityof Dubuque, Iowa shall be responsible for asserting arty
defense of governmental Immunity,and may do scat 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
insurancecarrler shall not deny my 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 govemmental immunity asserted by the City of
Dubuque, Iowa.
No Other Change In Policy.The above preservation of governmental immunities shall not otherwise
change or alter the coverage available under the policy.
SPECIMEN
Page 3 of 3 Schedule N Docking Of Commencai Vessels luanuary 2016
22