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HomeMy WebLinkAboutRiverloop Public Market Cooperative-9/12/2011Waterloo Public Market LEASE AGREEMENT This Lease Agreement (the "Lease") is entered into as of , l �Y r )20 11 by and between the City of Waterloo, Iowa ("Lessor") and Riverloop Pu ("Lessee"). lic Market Cooperative NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. RENTAL OF PREMISES; TERM a. Premises Upon the condition that Lessee pays rent and otherwise abides by all of the provisions of this Lease, Lessor leases to Lessee the following -described real estate, situated in Waterloo, Black Hawk County, Iowa, to -wit: Lot Nos. 4,5,6, and 7, and the alley abutting each of said lots, all in Block 15 in the Original Plat, on the West Side of the Cedar River, in the City of Waterloo, Black Hawk County, Iowa, locally known as 327 West 3rd Street, Waterloo, Iowa, 50703 and commonly known as Waterloo Public Market; with the improvements thereon and all rights, easements, and appurtenances thereto belonging. b. Term The term of this Lease is five (5) years, commencing on September 1, 2011 and continuing until and including August 31, 2016. No later than June 1, 2016, the parties shall confer in good faith to assess the profitability of Lessee's operations on the premises and shall negotiate terms and conditions for extension of the Lease term, if any. 2. RENT PAYMENTS Lessee agrees to pay to Lessor as rent for said term the sum of One dollar ($1.00) per year, in addition to the profit sharing payments provided for in Section 3 below. 3. PROFIT SHARING As additional rent, Lessee agrees to pay Lessor ten percent (10%) of the net profits from all activities of Lessee conducted in or upon the leased premises. Payment shall be made no later than August 31 with respect to net profits received by Lessee in the preceding 12 - month period ending June 30 of each year during the Lease term. No later than August 1 31, whether or not a payment is owing, Lessee shall also provide compiled financial statements, prepared in accordance with generally accepted accounting principles by a certified public accountant, for reasonable review and inspection by Lessor. As to net profits payable in respect of July and August in the final year of the Lease term, financial statements and payment shall be provided no later than September 30 of the same year. All sums shall be paid at the address of Lessor as designated herein, or at such other place as Lessor may, from time to time, previously designate in writing. Delinquent payments shall draw interest at 12% per annum, compounded monthly, from the due date, until paid. 4. USE OF PREMISES Lessee agrees during the term of this Lease to use and occupy the leased premises for purposes of operating a year-round market with the sale of locally produced meats, breads, vegetables, beverages, arts and crafts and related items, and operating a small cafe. Lessee further agrees to work cooperatively and in good faith with Lessor and outdoor event organizers ("Expo Organizers") (currently WESCO as contracted through Main Street Waterloo) to insure optimum public use of the adjacent Riverloop Expo exhibition grounds. The parties acknowledge that, from time to time, certain extraordinary Expo activities may require use of some or all parking areas on the leased premises. In such instances Lessee shall cooperate with Lessor and Expo Organizers in a good -faith effort to reach a mutually acceptable arrangement to accommodate Lessee's parking needs with competing needs for such Expo events. If an arrangement cannot be reached, then the Mayor of the City of Waterloo shall have discretion to designate an extraordinary Expo event as requiring use of such parking areas. The Mayor's discretion shall be exercised in consultation with the Director of Leisure Services, a Lessee representative, and Expo Organizers, and if the Mayor makes no decision within five (5) days of a request for designation, then the request may be presented to the Waterloo city council for decision. In such instances Lessor shall make other adjacent parking areas available for use by Lessee's patrons so as to minimize the inconvenience to market customers to the extent reasonably possible. a. Restrooms Lessee shall make restrooms available for outdoor events held at Expo Plaza with expected attendance of 250 people or less. The organizer of such outdoor events shall be responsible for cleaning and servicing of restrooms as needed during and immediately after events. The organizer shall provide needed restroom supplies/materials for such events and shall replenish supplies/materials promptly after such events. Outside restroom doors may be locked during events with expected attendance of over 250 people. b. No Unlawful Use Lessee shall make no unlawful use of the leased premises and agrees to comply with all valid regulations, including but not limited to those of the Board of Health, City ordinances, laws of the State of Iowa, the federal government, and provisions of the State of Iowa Community Attraction and Tourism grant received 2 by the Waterloo Development Corporation and the City of Waterloo for the Public Market Building renovations, but this provision shall not be construed as creating any duty by Lessee to members of the general public. 5. CARE AND MAINTENANCE OF PREMISES Lessee shall be responsible for all maintenance and cleanliness of the leased premises, including but not limited to the Public Market building and adjacent property, and shall provide all necessary cleaning supplies, chemicals and equipment. Lessee shall clean all interior and exterior window surfaces of the Public Market building as needed, but no less than quarterly. Lessee shall clean all floors and floor coverings on a regular basis, keeping same in a first-rate condition of cleanliness. Lessee shall be further responsible for litter control in and around the public market and parking areas, including but not limited to areas within fifty (50) feet of the leased premises on any street, sidewalk, or the Riverloop Expo grounds. Litter shall be picked up no less than weekly, but shall be done as often as required to maintain the premises and surrounding areas in clean condition. All solid waste pickup and disposal for the premises, as well as all duties of care and maintenance ascribed to Lessee herein, shall be the sole responsibility and cost of Lessee. a. Lessee's Duty of Care and Maintenance Lessee shall be further responsible for the maintenance and repair of the water, sewer, and electrical systems serving the leased premises during the term of this Lease. Lessee shall replace light bulbs in lighting fixtures as necessary. At the termination of said Lease, it shall be Lessee's sole responsibility to return said services and related facilities to Lessor in good working order and substantially the same condition in which they were at the beginning of this Lease. b. Written Approval for Improvements or Alterations Lessee shall obtain prior written approval of Lessor for any improvements or alterations to the leased premises. Unless there is prior written agreement to the contrary, any improvements or alterations made to the leased premises by Lessee or any other person shall be the sole property of Lessor. c. Natural Disasters/Acts of Terrorism Lessee shall not be responsible for damage to the premises caused by natural disasters or acts of terrorism. d. Snow Removal Lessee shall be responsible for all snow removal required on premises, whether for sidewalks or parking areas. 3 e. Access to Premises During the term of this Lease, Lessee shall provide Lessor with keys necessary to access all parts of the Waterloo Public Market building. 6. UTILITIES AND SERVICES Lessee shall pay, before delinquency, all charges for use of telephone, water, gas, heat, electricity, power, air conditioning, garbage disposal, trash disposal, and not limited by the foregoing, all other utilities and services of whatever kind and nature which may be used in or upon the leased premises. Lessee shall be reimbursed for power usage resulting from outdoor events held by others, with such usage to be determined on an equitable basis in good faith with reference to relevant information, including but not limited to power usage on the leased premises during periods when such events do not occur. 7. SURRENDER OF PREMISES AT END OF TERM—REMOVAL OF FIXTURES a. Surrender in Reasonable Condition Lessee agrees that upon termination of this Lease, it shall surrender, yield up and deliver the leased premises in good and clean condition, with the exception of ordinary wear and tear and depreciation arising from lapse of time, or damage without fault or liability of Lessee. b. Improvements Unless otherwise agreed, any improvements, including but not limited to fixtures attached to the Waterloo Public Market building, shall become the sole property of Lessor at the expiration of this Lease, without compensation for same to Lessee. c. Post -Term Possession Continued possession beyond the expiration date of the term of this Lease by Lessee, and absent a written agreement by both parties for an extension of this Lease or for a new lease, shall constitute a month-to-month extension of this Lease, provided that any extended term may be terminated by 30 -days' advance written notice from one party to the other. 8. ASSIGNMENT AND SUBLETTING Lessee may not assign this Lease or sublet the premises or any part thereof without Lessor's prior written permission. Any unauthorized assignment or subletting shall, at the option of Lessor expressed by delivery of written notice to Lessee, void this Lease and immediately accelerate any and all compensation due, and Lessee shall immediately surrender the premises and be bound by all other provisions of this Lease which may apply at that time. 4 9. INSURANCE AND INDEMNITY Lessee understands and agrees to obtain insurance coverage for the entire period of this Lease as follows: a. Insurance Coverage Lessee agrees that it will, at its own expense, procure and maintain casualty and liability insurance in the amount of not less than $2,000,000 per occurrence and $2,000,000 annual aggregate. Such insurance shall cover liability arising from premises operations, independent contractors, personal injury, products, and completed operations and liability assumed under an insured contract, including but not limited to the activities of Lessee, its employees and agents. Proof of insurance shall be delivered to Lessor upon execution of this Lease. A renewal certificate shall be provided to Lessor prior to expiration of any policy. Lessee acknowledges that Lessor is providing no insurance for the benefit of Lessee. Subrogation rights of Lessee are waived. Also see Section 9(b). b. Additional Insured Status Lessor (City of Waterloo, Iowa) shall be named as an additional insured with certificates or copies of said policies provided to Lessor, and stipulating that there must be at least thirty (30) days written notice given to Lessor before any cancellation of said insurance policy or policies. c. Indemnity Except as to the sole negligence of Lessor, Lessee shall protect, indemnify, and hold harmless Lessor from and against any and all claims, demands, causes of action, costs, damages or liability of any type or nature whatsoever, including but not limited to attorneys' fees and expenses, which may arise out of the acts or omissions of Lessee, or the use or occupancy of the leased premises by Lessee or any person claiming through or under Lessee who suffer injury, loss, or damage directly or indirectly by the acts or omissions of Lessee or such persons. 10. ALCOHOLIC BEVERAGES a. Designated Areas Lessor hereby permits Lessee to offer and sell, in areas designated by mutual agreement of the parties, (i) alcoholic beverages for on-site cafe purposes, and (ii) for off-site consumption only, alcoholic beverages produced by brewers, vintners or distillers located in the State of Iowa or any contiguous state. Alcoholic beverages may not be served, offered for sale, or sold in any other area or for any other purpose. All said sales shall be by Lessee or its agents or employees. Lessee shall retain any revenue generated from said sales, which shall be cumulated with other revenues to determine net profits under Section 3 above. 5 Lessee shall abide by all local, state, and/or federal laws which may apply to the licensing and sale of alcoholic beverages. b. Dram Shop Insurance Lessee shall provide proof of financial responsibility by the existence of a dram shop liability insurance policy as required by law (which coverage may be included in liability coverage required by Section 9(a) above) in the minimum amount of $2,000,000 per occurrence. Certificates or copies of said policies, providing for thirty (30) days' advance notice to the State of Iowa before cancellation, shall be delivered to Lessor upon execution of this Lease. A renewal certificate shall be provided to Lessor prior to expiration of any policy. The indemnity provisions of Section 9(c) shall also apply with respect to any and all loss, cost, damage, and expense occasioned by, of arising out of, any claim relating to alcoholic beverages dispensed on the leased premises. Lessee shall provide to Lessor proof of all licenses required by law prior to the conducting of any sales of alcoholic beverages or wine. Lessee agrees to assume all liability for any and all claims and/or causes of action at law or equity or otherwise which may arise from the dispensing of alcoholic beverages on the leased premises. 11. COPYRIGHT Lessee shall be solely responsible for any copyright, licensing or other fees required by law for the playing or performance of any music in or upon the leased premises, whether live or recorded, and shall have the right to contract with performers and with companies providing recorded music. 12. TERMINATION OF LEASE AND DEFAULTS OF LESSEE If Lessee violates or fails to perform any provision in this Lease, it shall be cause, at Lessor's option expressed by written notice delivered to Lessee, to immediately terminate this Lease with acceleration of all amounts due under said Lease and immediate surrender of the premises by Lessee. 13. SIGNS Lessee shall have the right and privilege of attaching, affixing, painting or exhibiting signs on the leased premises, provided only that any and all signs comply with the ordinances of the City of Waterloo, and the laws of the State of Iowa; such signs shall not change the structure of the building; such signs if and when taken down shall not damage the building; and such signs shall be subject to the advance written approval of Lessor, which approval shall not be unreasonably withheld. 14. CURE OF LESSEE DEFAULTS If default shall be made by Lessee in the performance of, or compliance with, any of the terms, covenants, or conditions of this Lease, and such default shall have continued for thirty (30) days after written notice thereof from Lessor, then Lessor, in addition to all 6 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 12% per annum, compounded monthly, from the date of advance. 15. RIGHTS CUMULATIVE The various rights, powers, options, elections, and remedies of either party provided in this Lease 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. 16. NOTICES AND DEMANDS Notices as provided for in this Lease shall be given to the respective parties hereto at the addresses set forth below (or to such alternate addresses to which a party may give notice as set forth herein): Lessor City of Waterloo Attn: Director of Leisure Services 1101 Campbell Avenue Waterloo, IA 50701 With a copy to: City Attorney 715 Mulberry Street Waterloo, IA 50703 Lessee Riverloop Public Cooperative Attn: President P. 0. Box 2243 Waterloo, IA 50704 Unless either party notifies the other, in writing, of a different address, without prejudice to any other method of communication, such message shall be considered given under the terms of this Lease when sent, addressed as designated above, by U.S. registered or certified mail, return receipt requested, postage prepaid. Such notice shall be deemed delivered three (3) days after the date it is deposited in a United States mail receptacle. 17. RELATIONSHIP OF PARTIES Nothing in this Lease shall, or shall be deemed or construed to, create or constitute any joint venture, partnership, agency, employment, or any other relationship between the parties, nor to create any liability for one party with respect to the liabilities or obligations 7 of the other party or any other person. Each party hereto is an independent contractor in relation to the other. 18. BINDING EFFECT This Lease is binding upon and shall inure to the benefit of the parties and the respective successors, heirs, administrators, executors, and assigns of each. 19. CHANGES TO BE IN WRITING None of the covenants, provisions, terms or conditions of this Lease to be kept or performed by Lessor or Lessee shall be in any manner modified, waived, or abandoned, except by a written instrument duly signed by the parties' authorized representatives and delivered to the Lessor and Lessee. This Lease contains the entire agreement of the parties concerning the subject matter hereof. 20. SEVERABILITY In the event any provision of this Lease is held invalid, illegal, or unenforceable, whether in whole or in part, the remaining provisions of this Lease shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any provision of this Lease is invalid, illegal, or unenforceable as written, but that by limiting such provision it would become valid, legal, and enforceable, then such provision shall be deemed to be written and shall be construed and enforced as so limited. 21. GENERAL PROVISIONS Time is of the essence in the observance and performance of the terms and provisions of this Lease. This Lease shall be governed by the laws of the State of Iowa, and Lessee hereby consents to the exclusive jurisdiction and venue of the Iowa District Court for Black Hawk County for the resolution of any dispute arising from or related to this Lease. This Lease may be executed in one or more counterparts, each of which will be deemed an original and all of which together shall constitute one instrument. IN WITNESS WHEREOF, the parties have executed this Lease Agreement by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO, IOWA RIVERLOOP PUBLIC MARKET COOPERATIVE By: By: ✓� /L Ernest G. Clark, Mayor Rick L. Kiefer, resident Attes Suzy Sch. es, City Clerk 8 STATE OF IOWA ) ss. BLACK HAWK COUNTY ) On 9 ttN 12, 2011, before me, the undersigned, a Notary Public in and for the State of to a, personally appeared Ernest G. Clark and Suzy Schares, 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 Waterloo, Iowa; that the seal affixed to the foregoing instrument is the corporate seal of the corporation, and that the instrument was signed and sealed on behalf of the corporation by authority of its City Council as contained in the Resolution adopted by the C. Council, under Council Action No. i-3-7 of the City Council on " 19--, 2011, and that Ernest G. Clark add Suzy Schares acknowledged the exec tion of the instrument to be their voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed. STATE OF IOWA ) ) ss. BLACK HAWK COUNTY ) 114 Acknowledged before me on 4 �,,Q , 2011 by Rick L. Kiefer as President of Riverloop Public Market Coope . tive. Public 9