HomeMy WebLinkAboutCouncil Packet - 5/29/2018 Council Work Session
May 29, 2018
Time indicated below
Harold E. Getty Council Chambers
Roll Call.
Approval of Agenda, as proposed or amended.
4:30 p.m. Youth Violence Intervention Initiative.
Submitted By: Daniel J. Trellca, Chief of Police
4:50 p.m. Update on Five Sullivan Brothers Convention Center.
Submitted By: Mayor Quentin Hart
ADJOURNMENT
Kelley Felchle
City Clerk
CITY OF WATERLOO
Council Communication
Youth Violence Intervention Initiative.
City Council Meeting: 5/29/2018
Prepared: 5/7/2018
REVIEWERS:
Department Reviewer Action Date
F'ofi;e Depan-ment "ll rreflca, Daii'nel Appnwed 5/7/20, 235 PM
(-.1ed(. (Mice Eveni, t:.eAnr i Approved 5/22/2018 ... 10-.54 AM
SUBJECT: Youth Violence Intervention Initiative.
Submitted by: Submitted By: Daniel J. Trelka, Chief of Police
Recommended Action:
Significant strides have been made over the past several years in the
reduction of crime in Waterloo. The crux of crime challenges in the city has
been delinquent behavior amongst our juvenile population evolving into a
pattern of violent conduct. A proven intervention program has been identified
Summary Statement: to confront this challenge. It is supported by the US Attorneys Office, UNI,
Waterloo Community Schools, as well as several other interested entities.
Funding sources have also been identified to support this initiative. All of the
funding sources are outside of the general fund of the City. Chief Trelka
would like to preliminarily present this initiative to the members of the council
and ultimately seek the councirs approval in implementing the program.
Expenditure Required:
Source of Funds: All outside the general fund.
Policy Issue:
Alternative:
Background Information:
CITY OF WATERLOO
Council! Communication
Update on Five Sullivan Brothers Convention Center.
City Council! Meeting: 5/29/2018
Prepared:
REVIEWERS:
Department Reviewer Action Date
Wwl,er. Worfs 1,'ellcllfle, Kefley Approved 5/16/2018 4.30 PM
ATTACHMENTS:
Description Type
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SUBJECT: Update on Five Sullivan Brothers Convention Center.
Submitted by: Submitted By: Mayor Quentin Hart
Recommended Action:
Summary Statement:
Expenditure Required:
Source of Funds:
Policy Issue:
Alternative:
Background Information:
EARLY ACCESS AGREEMENT
This Early Access Agreement (the "Agreement") is entered into as of September 19,
2017, by and between the City of Waterloo, Iowa("City"), and LK Holdings Waterloo, LLC (the
"Company").
WHEREAS, City and Company have entered into a development agreement(the"DA")
concerning a project to be undertaken by Company on certain real property at 200 W. 4"' Street,
Waterloo and described on Exhibit"A" attached hereto (the"Property"), located in the
Downtown Waterloo Urban Renewal and Redevelopment Plan Area; and
WHEREAS, the DA contemplates that City will deed the Property to Company following
completion of actions by the City as described in the DA; and
WHEREAS, the parties desire that Company have access to the Property before receiving
ownership of same in order to begin certain improvement work.
NOW, THEREFORE, in consideration of the mutual promises exchanged herein, the
parties agree as follows:
1. City hereby grants to Company the right to enter upon the Property to begin
activities preparatory to meeting Company's development responsibilities, including but not
limited to sandblasting and other surface preparations. The term of this Agreement shall be from
the date hereof until the date that City delivers a deed to Company for the Property. Company's
right to conduct its activities upon the Property are expressly made subject to prior receipt of
applicable zoning, building, and other regulatory approvals. Company shall undertake its work
in a manner that minimizes its impact or interference with other scheduled activities and events
in and upon the Property.
2. Company shall, at its own expense, procure and maintain comprehensive public
liability insurance in the amount of not less than $1.,000,000 per occurrence. Such insurance
shall cover liability arising from the acts or omissions of Company, its employees, contractors
and agents, and shall protect the City, its officers, officials, employees, and agents, against any
and all claims, damages, costs or expenses (including but not limited to reasonable attorneys'
fees and expenses) arising from or in connection with injury or death to any person or persons, or
loss of or damage to property, by reason of any casualty, accident or other occurrence on or about
the Property during the term of this Agreement. Certificates or copies of said policies, naming
the City as an additional insured, shall be delivered.to City before Company, its employees,
contractors, or agents, enter upon the Property for any purpose.
3. Company agrees to be responsible for any liability which may arise out of the
negligent acts or omissions or willful misconduct of Company, its employees, agents and
contractors, on or about the Property, and in said connection Company agrees to indemnify and
hold City, its officials, officers, employees and agents, harmless from and against any and all
claims, demands, actions, causes of action, damages, costs,penalties, and liabilities of any type
or nature whatsoever, including but not limited to reasonable attorneys' fees, whether sounding
in law or equity, in tort or contract, arising out of said acts, omissions or misconduct. The duties
of Company under this paragraph shall survive the expiration or termination of this Agreement.
4. If for any reason the contemplated sale and purchase of the Property between the
parties is canceled or otherwise does not occur,then Company shall promptly remove from the
Property all of its personal property and materials or debris that it has deposited on the Property
during the term hereof and restore, as nearly as possible, the condition of the Property to that
which existed upon Company's initial entry upon the Property hereunder, except as otherwise
permitted by express written consent of City. For the avoidance of doubt, the parties agree that
this Agreement does not create, nor is intended to give rise to, any independent basis for
cancellation or termination of the DA.
5. The rights and duties of Company under this Agreement may not be assigned
without the prior written consent of City. This Agreement is the entire agreement of the parties
concerning the subject matter hereof. It may not be modified or amended without the prior
written consent of the parties, This Agreement is binding on the parties and the respective
successors and assigns of each. This Agreement may be executed in one or more counterparts,
each of which, including signed counterparts transmitted by facsimile or other electronic means,
shall be deemed an original and all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Early Access Agreement
by their duly authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA LK H( DINGS ATERLOO, LLC
By:
Quentin M. Hart, Mayor Edwi I e
Ma ember of Leslie
os, itality Consulting, LLC, its
Managing Member
Attest:
Kelley Felcl� (City Clerk
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EXHIBIT"A"
Legal Description of Property
DESCRIPTION:PARCEL `K'
PART OF BLOCK 7 IN THE ORIGINAL PLAT ON THE WEST SIDE OF THE CEDAR RIVER AND THE
SOUTHEASTERLY 10.00 FEET IN EVEN WIDTH OF FORMER MAIN STREET NOW PARK AVENUE AND
PART OF ELWELL'S PLAT A SUBDIVISION OF LOTS I AND 2 IN BLOCK 7 IN THE ORIGINAL PLAT ON
THE WEST SIDE OF THE CEDAR RIVER,CITY OF WATERLOO,COUNTY OF BLACK HAWK, STATE OF
IOWA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEASTERLY CORNER OF LOT I OF E.J. BICKLEY'S SUBDIVISION,ALSO
BEING THE POINT OF INTERSECTION OF THE PRESENT SOUTHWESTERLY RIGHT-OF-WAY LINE OF
JEFFERSON STREET AND THE PRESENT NORTHWESTERLY RIGHT-OF-WAY LINE OF WEST 4TH
STREET;THENCE NORTH 41°(DEGREES)05' (MINUTES)42"(SECONDS)EAST, 80.00 FEET TO THE
SOUTHERLY CORNER OF SAID BLOCK 7;THENCE NORTH 48°54'56"WEST, ON THE
SOUTHWESTERLY LINE OF SAID BLOCK 7 ALSO BEING THE PRESENT NORTHEASTERLY RIGHT-OF-
WAY LINE OF JEFFERSON STREET,4.03 FEET TO THE POINT OF BEGINNING OF THE PARCEL OF
LAND HEREIN DESCRIBED;THENCE CONTINUING NORTH 48°54'56" WEST ON THE
SOUTHWESTERLY LINE OF SAID BLOCK 7 AND ITS NORTHWESTERLY PROLONGATION,ALSO
BEING THE PRESENT NORTHEASTERLY RIGHT-OF-WAY LINE OF JEFFERSON STREET, 306.59 FEET
TO NORTHWESTERLY LINE OF THE SOUTHEASTERLY 10.00 FEET OF FORMER MAIN STREET NOW
PARK AVENUE,ALSO BEING THE PRESENT SOUTHEASTERLY RIGHT-OF-WAY LINE OF PARK
AVENUE; THENCE NORTH 4103'49"EAST ON THE NORTHWESTERLY LINE OF THE
SOUTHEASTERLY 10.00 FEET OF FORMER MAIN STREET NOW PARK AVENUE,ALSO BEING THE
PRESENT SOUTHEASTERLY RIGHT-OF-WAY LINE OF PARK AVENUE, 301.91 FEET(300.00 FEET
RECORD)TO THE PRESENT SOUTHWESTERLY RIGHT-OF-WAY LINE OF COMMERCIAL STREET;
THENCE SOUTH 49°02'55" EAST ON THE PRESENT SOUTHWESTERLY RIGHT-OF-WAY LINE OF
COMMERCIAL STREET,ALSO BEING THE NORTHEASTERLY LINE OF SAID BLOCK 7 AND ITS
NORTHWESTERLY PROLONGATION,240.52 FEET TO THE NORTHWESTERLY RIGHT-OF-WAY LINE
OF WEST 4TH STREET;THENCE SOUTHWESTERLY ON THE NORTHWESTERLY RIGHT-OF-WAY LINE
OF WEST 4TH STREET BEING A 956.73-FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY AND
HAVING A 98.84-FOOT LONG CHORD BEARING SOUTH 28047'22" WEST, 98.89 FEET(ARC LENGTH);
THENCE SOUTH 26009'45"WEST ON THE NORTHWESTERLY RIGHT-OF-WAY LINE OF WEST 4TH
STREET,91.32 FEET;THENCE SOUTHWESTERLY ON THE NORTHWESTERLY RIGHT-OF-WAY LINE
OF WEST 4TH STREET BEING A 760.00-FOOT RADIUS CURVE CONCAVE NORTHWESTERLY AND
HAVING A 119.61-FOOT LONG CHORD BEARING SOUTH 30°40'33"WEST, 119.73 FEET(ARC LENGTH)
TO THE POINT OF BEGINNING.
(THE SOUTHEAST LINE OF E.J. BICKLEY'S SUBDIVISION,ALSO BEING THE PRESENT
NORTHWESTERLY RIGHT-OF-WAY LINE OF WEST 4TH STREET THAT IS SOUTHWESTERLY OF
JEFFERSON STREET, IS ASSUMED TO BEAR NORTH 41-05'42"EAST FOR THE PURPOSE OF THIS
DESCRIPTION.)
IIIIIIIIIIII Ill IIIIIIIIIIIIIIIIIIIIIIIIIIII 1111111 IIIIIIIIIIIII
Doc ID: 008242750025 Type: GEN
Recorded: 10/02/2017 at 04:15:23 PM
Fee Amt: $127.00 Page i of 25
Black Hawk County Iowa
SANDIE ((L. SMITH RECORDER ((��
Filet V.J.8-00005 2 V
i
Prepared_by_C,hristopher S. Wendland P.O. Box 596 Waterloo IA 50703. _. .._..,_....__ 319-234-5701
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of
2017, by and between LK Holdings Waterloo, LLC, a Wyoming
limited limy company (the "Company"), and the City of Waterloo, Iowa (the "City").
RECITALS
A. City considers economic development within the City a benefit to the
community and is willing for the overall good and welfare of the
community to provide financial incentives so as to encourage that goal.
B. Company is willing and able to finance and undertake acquisition and
rehabilitation of an existing convention center property located in the r
Downtown Waterloo Urban Renewal and Redevelopment Plan Area,
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Sale of Property. Subject to the terms and conditions of this Agreement,
City will convey to Company for the sum of$1.00 the real property described on Exhibit
"A" attached hereto ("Property") located at 200 W. 4th Street and consisting of assessor t
parcel no. 8913-26-231-002. Company will undertake the Project (defined below) upon
the Property. Included with the Property at no additional cost will be all personal
property and fixtures (collectively, the "FFE") located therein or thereon that belong to
City, and the skywalk that connects the Convention Center (defined below) with the
s
hotel located at 205 W. 4t" Street, including structures supporting the skywalk.
Company agrees to take the Property, all FFE, and the skywalk and supporting
structures in their "as is, where is" condition, subject to all faults. Company further
agrees that City has not made and does not hereby make any representation or
warranty concerning the Property, FFE, or the skywalk and supporting structures as to
their condition, operability, merchantability, fitness for any particular use, or otherwise,
and Company hereby disclaims any and all such warranties.
2. Improvements by Company. Company shall upgrade and renovate the
lobby, meeting rooms and other facilities (all of the foregoing renovations and
improvements are collectively referred to as the "Improvements") at a minimum
estimated investment cost of $6,000,000. A list of intended Improvements is attached
hereto as Exhibit "B". The Improvements shall be constructed in accordance with all
applicable City, state, and federal building codes and shall comply with all applicable
City ordinances and other applicable law. The Property, the Improvements, and all
development-related work to make the Property usable for Company's purposes as
contemplated by this Agreement are collectively referred to as the "Project". Company
shall commence Improvements within six (6) months after the date of this Agreement or
after taking ownership of the Property, whichever occurs last, and shall substantially
complete the Project within eighteen (18) months thereafter.
3. City Commitments in Aid of Project.
A. Rebates. City shall provide property tax rebates as further set forth
in Section 10 below.
B. Economic development grants. City will make an economic
development grant to Company in the amount of $700,000, payable within sixty (60)
days after plans for exterior improvements have been approved by the downtown
design/build management team (DBMT) and Waterloo Building Official. City will make
a further economic development grant to Company in the amount of $350,000, payable
within sixty (60) days after completion of final permit inspections relating to interior
improvements.
C. Parking. The parties agree to enter into a separate agreement for
use of up to 200 non-reserved spaces in the connected parking ramps by patrons of the
Waterloo Convention Center (the "Convention Center") and the associated hotel (the
"Hotel"). Because both facilities will be under management by Company, no particular
number of spaces is allocated herein between the facilities. Company may choose to
validate parking for authorized patrons, at rates to be determined by City policy.
D. Dedicated Support. City agrees that for a period of ten (10) years
after it deeds the Property to Company, City will not promote, provide incentives for, or
otherwise assist in the development of any convention center or events center in Black
Hawk County, Iowa that contains more than 10,000 square feet of rentable space, nor
will City assist or encourage any other person or entity to do so.
4. Conveyance; Title. Conveyance shall be by special warranty deed (the
"Deed"), free and clear of all encumbrances arising by or through City except:
(a) easements, conditions and restrictions of record; (b) current and future real estate
real property taxes and assessments subject to the agreements made herein; (c)
general utility and right-of-way easements serving the Property; and (d) restrictions
imposed by the City zoning ordinances and other applicable law. City shall have no
duty to convey title to Company until Company delivers to City reasonable and
satisfactory proof of financial ability to undertake and carry on the Project (defined
2 f
below), which may take the form of a lending commitment letter. The parties will
schedule a closing to occur as promptly as possible following completion of the
hearings, procedures and approvals that City is required to complete pursuant to
Section 18. No less than 30 days before closing, City shall provide to Company any
abstracts of title for the Property in its possession, updated to a date within 60 days
before closing. Company may, at its own expense, obtain whatever additional form of
title evidence it desires. City shall make every reasonable effort to promptly perfect
title. If closing is delayed due to City's inability to provide marketable title, this
Agreement shall continue in force and effect until either party rescinds the Agreement
after giving ten days' written notice to the other party. The abstract shall become the
property of Company when the Purchase Price is paid in full.
5. Timeliness of Construction; Possibility of Reverter. The parties agree
that Company's commitment to undertake the Project and to construct the
Improvements in a timely manner constitutes a material inducement for the City to
convey the Property, or to cause the Property to be conveyed, to Company and that
without said commitment City would not do so. Company must obtain a building permit
and begin renovations within six (6) months after the date this Agreement is approved
by City (the "Project Start Date") and substantially complete renovations within eighteen
(18) months of the Project Start Date (the "Project Completion Date").
If Company has not, in good faith, begun work on the Improvements by
the Project Start Date, then title to the Property shall revert to the City, except as
provided in this Agreement; provided, however, that if work has not begun by the
Project Start Date but the development of the Project is still imminent, the City Council
may, but shall not be required to, consent to an extension of time for work on the
Improvements, and if an extension is granted but the work has not begun within such
extended period, then the title to the Property shall revert to the City after the end of
said extended period. If Company determines at any time that the Project is not
economically feasible, then after giving thirty (30) days' advance written notice to City,
Company may convey the Property to City by special warranty deed, and thereupon
neither party shall have any further obligation under this Agreement except as expressly
provided. If work has commenced by the Project Start Date or any extended period and
is stopped and/or delayed as a result of an act of God, war, civil disturbance, court
order, labor dispute, fire, or other cause beyond the reasonable control of Company,
the requirement that the Improvement work is to be completed by the Project
Completion Date shall be tolled for a period of time equal to the period of such
stoppage or delay, and thereafter if work is not completed within the allowed period of
extension the title to the Property shall revert to the City after the end of said period.
6. Dedicated Property Use; Possibility of Reverter. The parties
acknowledge that the Property is used principally as a convention center and events
facility (the "Dedicated Uses"). Company agrees that the Property will continue to be
used principally for such purposes until City gives its written consent to an alternate
principal use. if Company permits the Property to be used principally for any purpose
other than the Dedicated Uses, then title to the Property shall revert to the City. The
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parties agree that the Deed shall include a statement of the Dedicated Uses and the
possibility of reverter.
7. Reverter of Title; Indemnity. In the event of any reverter of title,
Company agrees that it shall, at its own expense, promptly execute all documents,
including but not limited to a special warranty deed, or take such other actions as the
City may reasonably request to effectuate said reverter and to deliver to City title to the
Property that is free and clear of any lien, claim, charge, security interest, mortgage or
encumbrance (collectively, "Liens") arising by or through Company. Company shall pay
in full, so as to discharge or satisfy, all Liens on or against the Property.
Company further agrees that it shall indemnify City and hold it harmless
with respect to any demand, claim, cause of action, damage, or injury made, suffered,
or incurred as a result of or in connection with the Project, Company's failure to carry on
or complete same, or any Lien or Liens on or against the Property of any type or nature
whatsoever that attaches to the Property by virtue of Company's ownership of same. If
City files suit to enforce the terms of this Agreement and prevails in such suit, then
Company shall be liable for all legal expenses, including but not limited to reasonable
attorneys' fees, incurred by City. Company's duties of indemnity pursuant to this
section shall survive the expiration, termination or cancellation of this Agreement for
any reason.
8. No Encumbrances; Limited Exception. Until completion of the n
Improvements, Company agrees that it shall not create, incur, or suffer to exist any 5
Liens on the Property, other than such mortgage or mortgages as may be reasonably
necessary to finance Company's completion of the Improvements and of which
Company notifies City in advance of Company's execution of any such mortgage.
Company may not mortgage the Property or any part thereof for any purpose except in
connection with financing of the Improvements.
9. Minimum Assessment Agreement. Company acknowledges and
agrees that it will pay when due all taxes and assessments, general or special, and all
other lawful charges whatsoever levied upon or assessed or placed against the
Property. Company further agrees that, prior to the date set forth in Section 2 of
Exhibit "C", it will not seek or cause a reduction in the taxable valuation for the Property,
which shall be fixed for assessment purposes, below the aggregate amount of
$5,000,000 ("Minimum Actual Value"), through:
(i) willful destruction of the Property, Improvements, or any part of
either;
(ii) a request to the assessor of Black Hawk County; or
(iii) any proceedings, whether administrative, legal, or equitable, with
any administrative body or court within the City, Black Hawk
County, the State of Iowa, or the federal government.
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Company agrees to sign the agreement attached as Exhibit "C" at closing.
10. Property Tax Rebates. Provided that Company has completed the
Improvements as set forth herein and has executed the Minimum Assessment
Agreement as set forth in Section 9, the City agrees to rebate property taxes (with the
exceptions noted below) as follows.
34% rebate for each of Years One through Fifteen, inclusive,
for any taxable value over the January 1, 2018 value of $2,500,000, subject to
adjustment as provided in this section based on evaluation by the performance review
board provided for in Section 14. If the board's scoring system at any time yields an
aggregate score of less than three (3), Company's eligibility for a full rebate shall be
placed on probationary status and the rebate payable in the succeeding year will be
adjusted down to a 25% rebate if the aggregate score in the succeeding year is not at
least six (6). Each year will be separately evaluated using the foregoing methodology.
The board will notify Company of all scoring decisions, which shall be subject to the
dispute resolution procedures set forth in Section 24.
Rebates are payable in respect of a given year only to the extent that
Company has actually paid general property taxes due and owing for such year. To
receive rebates for a given year, Company must, within twelve (12) months after the tax
payment due date, submit a completed rebate request to City on the form provided by s
or otherwise satisfactory to City, otherwise Company will forfeit its right to a rebate for
that year in the City's discretion.
The taxable value of the Property as a result of the Improvements must
be increased by a minimum of 10% and must increase the annual tax by a minimum of
$500. This rebate program is not applicable to any special assessment levy, debt
service levy, or any other levy that is exempted from treatment as tax increment
financing under the provisions of applicable law. The first year in which a rebate may
be given ("Year One") shall be the first full year for which the assessment is based upon
the completed value of the Improvements and not a prior year for which the
assessment is based solely upon the value of the land or upon the value of the land
and a partial value of the Improvements, due to partial completion of the Improvements
or a partial tax year.
11. Job Creation. Company agrees that it will hire no fewer than 100
employees to provide an adequate staffing level for operation of the Hotel and
Convention Center to a standard of quality established by an oversight board more fully
described in Section 14 hereof. Company shall be free to assign or allocate its
personnel between the facilities as it deems best for optimal operation of the two
facilities, consistent with the quality standards referenced above. During each year that
a tax rebate is payable hereunder, Company shall, within thirty (30) days after the close
of City's fiscal year, provide a written report to City showing the number of full-time (30
or more hours per week) and part-time employees that Company has on its payroll as f
of the last calendar day of each month during the reporting period.
5
12. Insurance. Until City has, following completion of the Improvements,
released its rights for reverter of title as provided in Section 5, Company agrees to keep
in force one or more policies of insurance covering the Property and FFE against loss
or damage, in an amount not less than the Minimum Actual Value. Such policy or
policies shall name City as an additional insured and provide for at least a 30-day notice
of cancellation to City. Company shall provide proof of insurance to City at each policy
renewal.
13. Improvement Plan and Escrow. The parties acknowledge that the
Convention Center is a 40-year-old facility that is likely to require significant periodic
maintenance, renovation, and upgrade. Accordingly, Company agrees to maintain a
segregated escrow account into which Company will deposit, during each calendar year
or within thirty (30) days after the close of each calendar year, an amount equal to four
percent (4%) of the Convention Center's operating revenues for such calendar year, but
not less than $100,000. Company's first contribution to the account shall be after the
second year that it operates the Convention Center. For purposes of this section,
°operating revenues" means the total amount received from third parties by Company or
any other person or entity operating the Convention Center on behalf of Company,
directly or indirectly arising out of or connected with the Convention Center, including
but not limited to transactions for cash, credit and credit card sales, less applicable
sales taxes. Company may utilize funds from the escrow account to defray the cost of
capital upgrades and improvements to the Convention Center, other than the initial
Improvements described in Section 2. By having such a fund, the parties express no m
expectation that it will be the sole source of funds for such upgrades or improvement
costs. Company shall develop and periodically update (not less than annually) a facility
improvement plan to address foreseeable needs for Convention Center maintenance or
upgrades, desired improvements, and contingencies. The plan shall be provided to the
performance review board described in Section 14 after each update, and Company
shall consider input from said board.
14. Review Board. The parties agree to formation of a performance review
board for the Convention Center (the "Board"). The Board shall consist of at least
seven members, including two City staff members appointed by the mayor, the
Executive Director or other designee of the Waterloo Convention & Visitors Bureau, the
Executive Director or other designee of Main Street Waterloo, one representative of
Waterloo Development Corporation, one representative of Company, and one
representative from a company in the community that is designated by the mayor
because of the company's high utilization of the Convention Center. Each organization
that contributes a Board member may replace its appointed member at any time in its
discretion. The Board will meet at least semi-annually to evaluate the use, operation
and condition of the Convention Center and to assess the extent to which the
Convention Center has been utilized to positively impact the local economy, to enhance
the business climate of Waterloo, and to enhance the quality of life for Waterloo
residents and area visitors by providing a high-quality venue and user experience for
meetings, conventions, banquets, and other community gatherings and events.
Evaluation criteria shall include user attendance, the service satisfaction metrics
described in Exhibit "D" attached hereto, and the requirements of Section 15. At least
annually, the Board will rate the evaluation criteria as set forth in Exhibit "D" and the
requirements of Section 15 to encourage continuous improvement and to provide an
incentive to Company for payment of full rebates as provided in Section 10.
15. General Operating Standard. Company, its successors, assigns and
transferees, shall at all times operate and maintain the Convention Center to a standard
that is substantially equivalent to that of a four-star hotel. Such standard shall be
determined with reference to applicable provisions of the Lodging Approval
Requirements & Diamond Rating Guidelines issued by the American Automobile
Association ("AAA"), or similar standards or system of AAA in effect at any given time.
16. Facility Name. In confirmation of public commitments previously made,
City agrees to name the city block on which the Convention Center is located "Five
Sullivan Brothers Plaza", and Company agrees that the Convention Center shall be
named "Waterloo Convention Center at Five Sullivan Brothers Plaza." Company will
ensure that all print, video, broadcast and social media refer to the Convention Center
by said name. Company, its successors, assigns and transferees, shall not rename the
Convention Center or adopt any other form or style of designation without the prior
written consent of City.
17. Restrictions on Transfer; Purchase Rights. Company may not sell,
convey, give, or otherwise transfer title to the Property to any third party without the
prior written consent of City, except to a successor by merger or consolidation, which
consent shall not be unreasonably withheld if such third party has demonstrated
experience of no less than ten (10) years in profitably operating one or more facilities of
similar size and agrees to assume all obligations of Company hereunder. If Company
is in receipt of a bona-fide purchase offer from a party that is unrelated to Company by
common ownership or control, and if the terms of the offer are acceptable to Company,
then Company shall promptly deliver a full and true copy of same to City. For a period
of sixty (60) days after receipt of the offer, City shall have a right of first refusal to
purchase the Property for the same price as stated in the offer, which City may exercise
by delivery of written notice to Company. At closing, City shall be given credit against
the purchase price as set forth below:
(i) If the City exercises its purchase right on or before December 31,
2023, the credit will equal the sum of (a) the assessed value of the
Property at the time of conveyance to Company pursuant to
Section 4 above, namely, $2,500,000, and (b) the economic
development grant paid to Company pursuant to Section 3.13
above.
(ii) If City exercises its purchase right from January 1, 2024 until and
including December 31, 2028, the credit will be the assessed value
of the Property at the time of conveyance to Company pursuant to
Section 4 above.
(iii) If City exercises its purchase right after December 31, 2028, the
credit will be $250,000.
In any event where City exercises a right of purchase, the closing shall occur within an
additional forty-five (45) days after delivery of written notice of exercise, and Company
shall provide to City an updated abstract of title for the Property and convey title at
closing by general warranty deed.
18. Regulatory Approvals. Company acknowledges and agrees that the
Project will require Company to obtain various approvals from the City of Waterloo
and/or other applicable governmental authorities, including but not limited to zoning, site
plan, subdivision, building permit and other approvals required or necessary for
Company's proposed Improvements to the Property. To optimize coordination of
Project plans and development with such approvals, Company agrees to participate
regularly and in good faith in the project management/design-build management
(PMT/DBMT) process applicable to the Property for design issues, landscape design,
parking, construction documents, and other matters.
19. Obligations Contingent. Each and every obligation of City under this
Agreement is expressly made subject to and contingent upon City's completion of all
procedures, hearings and approvals deemed necessary by City or its legal counsel for
amendment of the urban renewal plan applicable to the Property and/or project area, all
of which must be completed within 120 days from the date this Agreement is approved
by the City council. Likewise, Company's obligations under this Agreement are subject
to and contingent upon City's completion of all such procedures, hearings and
approvals.
20. Representations and Warranties of City. City hereby represents and
warrants as follows:
A. City is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Each person who executes and delivers this Agreement and all
documents to be delivered hereunder is and shall be authorized to do so on
behalf of City.
21. Representations and Warranties of Company. Company hereby
represents and warrants as follows:
A. Company is not prohibited from consummating the transaction
contemplated in this Agreement by any law, regulation, agreement, instrument,
restriction, order or judgment.
B. Company is duly organized, validly existing, and in good standing
under the laws of the state of its organization and is duly qualified and in good
standing under the laws of the State of Iowa.
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C. Company has full right, title, and authority to execute and perform
this Agreement and to consummate all of the transactions contemplated herein,
and each person who executes and delivers this Agreement and all documents
to be delivered to City hereunder is and shall be authorized to do so on behalf of
Company.
D. Company may operate the Convention Center through a separate
company affiliated with Company by common ownership and/or control, but
Company will be responsible to ensure that Company or its operating affiliate
perform all of the terms of this Agreement that are Company's duty to perform.
22. Materiality of Company's Promises, Covenants, Representations,
and Warranties. Each and every promise, covenant, representation, and warranty set
forth in this Agreement on the part of Company to be performed is a material term of
this Agreement, and each and every such promise, covenant, representation, and
warranty constitutes a material inducement for City to enter this Agreement. Company
acknowledges that without such promises, covenants, representations, and warranties,
City would not have entered this Agreement and would not have offered the substantial
Project incentives described herein. Upon breach of any promise or covenant, or in the
event of the incorrectness or falsity of any representation or warranty, City shall provide
written notice of such breach to Company, and if Company fails to cure such breach
within sixty (60) days thereafter, City may, at its sole option and in addition to any other
right or remedy available to it, terminate this Agreement and declare it null and void.
23. Cross-Default. City and Company are parties to a certain development
agreement with respect to the Hotel (the "Hotel DA"). The parties agree that a default
by Company under the Hotel DA shall constitute and be treated as a default under this
Agreement. In the event of a default under either this Agreement or the Hotel DA, City
shall be entitled to exercise any or all remedies available to it under either agreement or
under applicable law.
24. Dispute Resolution. If Company disputes any scoring decision of the
review board, then within fourteen (14) days it may notify the board in writing, and for a
period of fourteen (14) days after such notification Company and the board shall confer
about the score and whether it will be revised. If Company is not satisfied with the
board's final decision, which the board shall provide to Company in writing, then within
fourteen (14) days thereafter Company may serve on the board a written notice to
submit the matter to arbitration. Except as provided in this section, the arbitration shall
be conducted in accordance with the provisions of Iowa Code Chapter 679A. The
parties shall select an arbitrator by mutual agreement, and if they fail to do so then
Chapter 679A shall govern the selection of an arbitrator. Arbitration shall be conducted,
if possible, by mail and telephone conference call, and if personal appearances are
required, then in Waterloo, Iowa. The decision of the arbitrator shall determine all
issues in dispute between the parties with respect to the contested scoring decision.
The decision of the arbitrator shall be final and binding and shall not be subject to
appeal on a question of fact, law, or mixed fact and law. Each party shall bear all costs
and expenses, including but not limited to attorneys' fees, that it incurs in the handling
of any dispute pursuant to this section. Except where clearly prevented by the area in
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dispute, both parties agree to continue performing their respective obligations under this
Agreement while the dispute is being resolved.
25. Notices. Any notice under this Agreement shall be in writing and shall be
delivered in person, by overnight air courier service, by United States registered or
certified mail, postage prepaid, or by facsimile (with an additional copy delivered by one
of the foregoing means), and addressed:
(a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile
number 319-291-4571, Attention: Mayor, with copies to the City Attorney and the
Community Planning and Development Director.
(b) if to Company, at 1402 S. 13th Street, Omaha, NE 68108, Attn.-
Edwin
ttn:Edwin W. Leslie. With a copy to: Matthew R. Berens, Berens Blonstein PLC,
7033 East Greenway Parkway, Suite 210, Scottsdale, AZ 85254.
Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in
person, (ii) one (1) business day following deposit for overnight delivery to an overnight
air courier service which guarantees next day delivery, or (iii) three (3) business days
following the date of deposit if mailed by United States registered or certified mail,
postage prepaid.
26. No Joint Venture. Nothing in this Agreement shall, or shall be deemed
or construed to, create or constitute any joint venture, partnership, agency,
employment, or any other relationship between the City and Company nor to create any
liability for one party with respect to the liabilities or obligations of the other party or any
other person.
27. Amendment, Modification, and Waiver. No amendment, modification,
or waiver of any condition, provision, or term of this Agreement shall be valid or of any
effect unless made in writing, signed by the party or parties to be bound or by the duly
authorized representative of same, and specifying with particularity the extent and
nature of the amendment, modification, or waiver. Any waiver by any party of any
default by another party shall not affect or impair any rights arising from any subsequent
default.
28. Severability. Each provision, section, sentence, clause, phrase, and
word of this Agreement is intended to be severable. If any portion of this Agreement
shall be deemed invalid or unenforceable, whether in whole or in part, the offending
provision or part thereof shall be deemed severed from this Agreement and the
remaining provisions of this Agreement shall not be affected thereby and shall continue
in full force and effect. If, for any reason, a court finds that any portion of this
Agreement is invalid or unenforceable as written, but that by limiting such provision or
portion thereof it would become valid and enforceable, then such provision or portion
thereof shall be deemed to be written, and shall be construed and enforced, as so
limited.
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29. Captions. All captions, headings, or titles in the paragraphs or sections
of this Agreement are inserted only as a matter of convenience and/or reference, and
they shall in no way be construed as limiting, extending, or describing either the scope
or intent of this Agreement or of any provisions hereof.
30. Binding Effect. This Agreement shall be binding and shall inure to the
benefit of the parties and their respective successors, assigns, and legal
representatives.
31. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument.
32. Entire Agreement. This Agreement, together with the Minimum
Assessment Agreement attached hereto as Exhibit "D", constitutes the entire
agreement of the parties and supersedes all prior or contemporaneous negotiations,
discussions, understandings, or agreements, whether oral or written, with respect to the
subject matter hereof.
33. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Development fi
Agreement by their duly authorized representatives as of the date first set forth above.
CITY OF WATERLOO, IOWA LK HOL NGS ATERLOO, LLC
By: y:
Quentin M. Hart, Mayor in W. Leslie
Managing Member of Leslie
Hospitality Consulting, LLC, its
Attest: IAAV,-) 1W
y'' .
Managing Member
elley le, City Clerk
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PERSONAL GUARANTY. The undersigned, being either an officer, shareholder,
manager, or member of Company, hereby agree for themselves and their heirs,
personal representatives, and assigns, to unconditionally guarantee to City, its
successors and assigns, the full and prompt performance by Company, its successors
and assigns, of all promises and covenants on the part of Company to be performed
pursuant tforegoing Agreement, including but not limited to the duties of indemnity
set forth er n.
W. eslie
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EXHIBIT "A"
Legal Description of Property
Block 7, Original Plat on the West Side of the Cedar River, City of Waterloo, Iowa, and Lots 1
through 6 of Elwell's Subdivision, city of Waterloo, Iowa, including all alleys but excepting street
right of way.
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EXHIBIT "B"
Description of Improvements
See attached.
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Waterloo Convention Center
Leslie Hospitality
Development Agreement Exhibit B
Improvements
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Area Task Category
Elevators install required life safety signage outside elevator entrance(do not use in case of fire-use stairs) 90 days
ElevatorsClean light diffusers. Immediate
�.......... _. ......_ _ ... ..... .... ....._.....
Exterior Power wash exterior including walls,windows,walkways and drive surfaces to remove all dust accumulation,bird/insect debris 90 days
and/or stains
Exterior Following pressure washings,point/tuck grout as needed and seal brick to eliminate any further fluorescence. Immediate
_....._...... . ......._._..,,... .... ..............
Exterior Clean and replant all plant beds Immediate
Exterior Repair any damaged,cracked or lifting curbs or walkways. Immediate
Exterior Replace signage Immediate
Exterior Paint and seal exterior with new colors 90 days
Exterior Close in Soffit of building with EFIS or similar product90 days
... ....... _..
Exterior Repair/replace any damaged or cloudy windows. 90 days
Exterior Provide designated guest smoking area away from front entrance. Immediate
Exterior Replace exterior lighting to enhance curb appeal of building Immediate
Exterior Replace Main entry doors with automated self opening door systems 90 days
. ...... ... . ........... . _........., _ ..............._ ......, ,,. _..... .._._ _._. ...... ._...... ._. ..__. .,_,.._._
Exterior Upgrade egress doors to open in accordance with current code requirements 90 days
Exhibit Hall Sand blast and clean ceiling and beams removing ail paint 90 days
Exhibit hall Seal and coat ceiling to include sound barrier 90 days
Exhibit Hall Paint and finish ceiling 90 days
Exhibit Hall Replace wall sound boards with new 90 days
_ .. ...... _ ......... ...... ...... .........ry_ .........._... _._.,...._....
Exhibit Hall Paint walls 90 days
Exhibit Hall Replace signage 90 days
Exhibit Hall Grind,clean,and resurface floor with new color and finish to new 90 days
Exhibit Hail Paint and repair entry and exit doors 90 days
Public Restrooms Combine Men's Room and Womens Room on 1st floors and 2nd floors to enlarge and enhance space into larger restrooms 180 days
Public Restrooms Replace flooring 180 days
Public Restrooms Replace and repair fixtures 180 days
Public Restrooms Replace vanities 180 days
Public Restrooms Replace wall vinyl and lighting 180 days
Public Restrooms Repair and paint walls and doors 180 days
Public Restrooms Enhance and add lighting 180 days
Lobby/Public Areas Remove and replace brick flooring with wood/marble/granite 120 Days
Lobby/Public Areas Repair walls and replace wall vinyl 120 Days
Lobby/Public Areas Replace and update ceiling lighting 120 Days
......._. ........._ . ............. . .._..... _ ._......... . — ---....1. .,,
Lobby/Public Areas Replace all ceiling tiles and ceiling grid 1.20 Days
Lobby f Public Areas Replace artwork 120 Days 1;
Lobby/Public Areas Repair and replace all carpeted areas of coat check 120 Days
Lobb Public Areas Replace center meeting room/elevated space with new office space for sales development team 120 Days
Lobby p g � p
Lobby(Public Areas Replace and enhance entire AV and Wireless Internet systems Immediate
Lobby/Public Areas Upgrade egress doors to open in accordance with current code requirements 90 days
Lobby/Public Areas Replace sheetrock ceiling in south east entry 90 days
Meeting Rooms Repair damaged walls and ceilings 180 days
Meeting Rooms Repair and replace ceiling tile and grid 180 days
Meeting Rooms Replace all interior lighting with modern upgraded fixtures 180 days
Meeting Rooms Replace all interior carpet180 days
_ .. ........... ....
Me _,_ _... ... ..... ...........
.eting Rooms Replace all signage 180 days
Meeting Rooms Repair and paint doors180 days
_ _. _...... .... .. . .. ......._ ...... .... .,..-11".... . —
Meeting Rooms -IlReplace all linens 180 days
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Waterloo Convention Center
Leslie Hospitality I
Development Agreement Exhibit B
Improvements
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Area Task
._..� ...... .._.... ........ . . ...... ...._ __._..�... .._-......_ ....... .. Cate o n
_...,,,..._.
Replace any damaged arid.... ....._,...d worn tables_ tabes and
._.. . ...chairs 1
Facility-wide Inspect fire sprinkler system and make any required improvements 90 days
_... ...... ......_........._..
Facility-wide Mount fire sprinkler head box by sprinkler rise pipe 90 days
�. ....... _......_„ _.._.... __.. .., ..... _...
Facility-wide Inspect fire alarm system and make any required improvements 90 days
Facility-wide Inspect kitchen hood fire suppression system and make any required improvements 90 days
.... .. .... ........... ... _..... _ ....
Facility-wide Replace lamps in sockets where needed 90 days
Facility wide Inspect generator and make any required improvements 90 days
Facility wide Upgrade all egress and exit lighting 90 days
Facility-wide Replace Tight switch and outlet covers as needed 90 days
Facility-wide Replace lamps in sockets where needed 90 days
Facility wide Replace electric panel covers where needed 90 days
Facility wide Upgrade wiring where needed 90 days
Storage Areas Re organize and remove storage frorn prohibited corridor areas 90 days
.....,... .. ..... ........ .w_._....__ .....�.........,... ................ .. _....... ..... ........_.... ............ .......,
r
Kitchen/Storage Areas Reorganize storage to ensure 18"gap below fire sprinkler deflectors 90 days a
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EXHIBIT "C"
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MINIMUM ASSESSMENT AGREEMENT
This Minimum Assessment Agreement (the "Agreement") is entered into as of
12017, by and among the CITY OF WATERLOO, IOWA ("City"),
LK Holdings Waterloo, LLC ("Company") and the COUNTY ASSESSOR of the City of
Waterloo, Iowa ("Assessor").
WITNESSETH:
WHEREAS, on or before the date hereof the City and Company have entered
into a development agreement (the "Development Agreement") regarding certain real
property, described in Exhibit "A" thereto, located in the City; and
WHEREAS, it is contemplated that pursuant to the Development Agreement, the
Company will undertake the development of an area ("Project") within the City and
within the Downtown Waterloo Urban Renewal and Redevelopment Plan Area; and
WHEREAS, pursuant to Iowa Code § 403.0, as amended, the City and the
Company desire to establish a minimum actual value for the land and the building(s)
pursuant to this Agreement and applicable only to the Project, which shall be effective
upon substantial completion of the Project and from then until this Agreement is
terminated pursuant to the terms herein and which is intended to reflect the minimum
actual value of the land and buildings as to the Project only; and
WHEREAS, the City and the Assessor have reviewed the preliminary plans and
specifications for the improvements (the "Improvements") which the parties contemplate
will be erected as a part of the Project.
NOW, THEREFORE, the parties hereto, in consideration of the promises,
covenants, and agreements made by each other, do hereby agree as follows:
1. Upon substantial completion of construction of the Improvements by the
Developer, the minimum actual taxable value which shall be fixed for assessment
purposes for the land and Improvements to be constructed thereon by the Company as
a part of the Project shall not be less than $5,000,000 ("Minimum Actual Value") until
termination of this Agreement. The parties agree for purposes of this Agreement that
construction of the Improvements will be substantially completed on or before
December 31, 2019,
2. The Minimum Actual Value herein established shall be of no further force
and effect, and this Minimum Assessment Agreement shall terminate, on December 31,
2034. Nothing herein shall be deemed to waive the Company's rights under Iowa Code
§ 403.6, as amended, to contest that portion of any actual value assignment made by
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the Assessor in excess of the Minimum Actual Value established herein. In no event,
however, shall the Company seek or cause the reduction of the actual value assigned
below the Minimum Actual Value established herein during the term of this Agreement.
3. This Agreement shall be promptly recorded by the City with the Recorder
of Black Hawk County, Iowa. The City shall pay all costs of recording. i
4. Neither the preambles nor provisions of this Agreement are intended to, or
shall be construed as, modifying the terms of the Development Agreement.
5. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
CITY OF WATERLOO, IOWA LKHO IN ATERLOO, LLC
By: _.� By. _
Quentin M. Hart, Mayor Edwin W. Leslie
Managing Member of Leslie
' Hospitality Consulting, LLC, its
Attest: r °" Managing Member
elley Felc e, City Clerk
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STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
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On this � ��i.. da of �. .. -�� , 2017, before me, a Notary Public in
and for the State of Iowa, personally appeeked Quentin M. Hart and Kelley Felchle, to i
me personally known, who being duly sworn, did say that they are the Mayor and City
Clerk, respectively, of the City of Waterloo, Iowa, a municipal corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said municipal corporation, and that said instrument was
signed and sealed on behalf of said municipal corporation by authority and resolution of
its City Council, and said Mayor and City Clerk acknowledged said instrument to be the
free act and deed of said municipal corporation by it and by them voluntarily executed.
coniss�o ria
Mnrsz9
M�YCO MISSr NEXPIRES Notary Public �
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STATE OF lJOUC )
) ss.
COUNTY OF
Acknowledged before me an ( LGcC' 2017 by Edwin W. Leslie as
Managing Member of Leslie Hospitality donsulting, LLC, Managing Member of LK
Holdings Waterloo, LLC.
SHELLIE L CRISMM
COMMISSION NIXTMOo
''•' M Notary Public
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CERTIFICATION OF ASSESSOR
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The undersigned, having reviewed the plans and specifications for the improvements to
be constructed and the market value assigned to the land upon which the
improvements are to be constructed for the development, and being of the opinion that
the minimum market value contained in the foregoing Minimum Assessment Agreement
appears reasonable, hereby certifies as follows: The undersigned Assessor, being
legally responsible for the assessment of the property subject to the development, upon
completion of improvements to be made on it and in accordance with the Minimum
Assessment Agreement, certifies that the actual value assigned to such land and
building upon completion of the development shall not be less than Five Million Dollars
($5,000,000).
A sor for Black Hawk County, Iowa
Date
STATE OF IOWA )
) ss.
COUNTY OF BLACK HAWK )
Subscribed and sworn to before me on J() , 2017, by T.J.
Koenigsfeld, Assessor for Black Hawk County, Iowa.
; _
logy Public
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TMAJOHNSON
Commisst�rr tumbsr 767467
MY comwnlssion Expires
P Aril 6,20020
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EXHIBIT "D"
Criteria to Evaluate Service Satisfaction
The annual performance review will be conducted by weighing Company's
performance each fiscal year (July 1 to next June 30) against quantitative and
qualitative goals mutually established by the Performance Review Board in the
categories of(1) service satisfaction, (2) attendance, (3) maintenance and (4) other
measures. The definition of each category is as follows:
(1) "Service Satisfaction" is the level of satisfaction set annually by the
Performance Review Board, rating Company's performance in meeting the overall goals
of the Board. The Board will consider f the following sub-categories, giving
consideration to the criteria set forth for each sub-category and other relevant and
related considerations by using customer satisfaction surveys that encompass the
concepts outlined below. The initial survey document is attached. The Company and
the Performance Review Board can jointly approve periodic changes to the survey
document. Survey responses will be requested from event planners for each event by
an independent third party.
Cleanliness --Are the building and grounds consistently in a high state of
cleanliness? Is cleaning done beyond a surface level? Company shall have a
manual that outlines cleaning procedures, schedules and standards applicable to
the facility. Company will provide committee with a copy of the manual as well
as documentation of cleaning.
Event Execution — Do set-up and tear-down happen in a timely fashion? Is the
audio-visual equipment prepared appropriately for the event? Are the details
and expectations that are set out in the banquet event order matched? The
committee will review all customer surveys that Company receives.
Customer Service — Have Company and staff performed all duties in a
professional productive manner with the aim of ensuring a successful event and
experience for the client, ensured that client needs are met and operational
policies and procedures followed, and been responsive to requests by customers
and prospective customers to view the facility and to address inquiries
satisfactorily and in a timely manner?
Food and beverage service — Is food served at the appropriate temperature?
Are guests being served the correct food? Does the quantity of food match what
was ordered by the customer? Are food and beverage served in a timely
fashion? Does the setup of food service adequately provide guests an
opportunity to serve themselves (banquet setup)? Are there enough beverages
available to guests? Are dirty plates, glasses, silverware cleared at the
appropriate time?
d
(2) "Attendance" is the total number of persons attending events at the Facility in
a fiscal year, determined by recording the attendance at each usage and adding up the
total attendance for all usages for the year. For attendance figures to be counted in this
calculation, an event must be a contracted event, for which a contract has been
completed. Casual attendance resulting from such day-to-day activities such as facility
tours shall not be counted as attendance. Attendance will be compared to targets
previously set annually by the Board and scored accordingly on the scale described
below. The initial attendance targets would be scored as follows:
Annual attendance
Less than 30,000 0
30,000 or more and less than 40,000 1
40,000 or more and less than 50,000 2
50,000 or more and less than 65,000 3
65,000 or more 4
(3) "Maintenance" —Are all facility features, systems and mechanicals in good
working order and, if appropriate, of a presentable appearance? This standard will be
measured using the American Automobile Association inspection guidelines.
(4) "Other measures" encompasses the following evaluative issues:
Reports and communications — Has Company made regular reports (monthly,
unless otherwise noted) to the Board with attendance figures, property and
equipment maintenance, facility cleaning and post-event customer surveys?
Sales and marketing -- Has Company worked with the Convention & Visitors
Bureau to ensure that the facility event calendar is kept up-to-date, and met
regularly with Convention & Visitors Bureau sales team?
Compliance (Legal and Audit)— Has Company maintained all appropriate
permits and insurance and ensured that staff has appropriate training? Have
Company and its staff complied with all applicable local, state and federal laws?
Under this plan, the customer satisfaction surveys would be tabulated using the
scale indicated below. Attendance would be tabulated using the scale indicated under
item 2 above. For the "other measures" category, each Board member would complete
a score card at the end of each fiscal year for which a property tax rebate may be
payable. For each evaluation category, one of the following scores would be assigned:
0 — Fails to meet expectations
1 — Sometimes meets expectations
2 — Consistently meets expectations
3 — Meets and sometimes exceeds expectations
4 — Consistently exceeds expectations
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Each sub-category under "service satisfaction" will be separately scored, and then the
scores will be totaled, averaged and rounded to the nearest tenth of a point to
determine a score for the service satisfaction category as a whole, using the customer
satisfaction surveys.
The overall score on all evaluation criteria shall be the sum of (a) the service
satisfaction category score times 70%; (b) the attendance category score times 20%;
(c) the maintenance category score times 10%; and (d) the other measures category
score times 5%. Aggregate scores for the two major categories falling below three (3)
for more than one consecutive year would lead to Company being placed on probation
for the next year for tax rebate purposes. Company will be required to provide plans for
specific corrective measures. Failure to bring scores to three (3) or above by the end of
the probationary period may result in downward adjustment of the tax rebate as
provided in the Development Agreement. The scoring system and expectations for
scores will be reviewed annually by the Performance Review Board and modified as
deemed appropriate by a majority of all members of the Board.
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THE WATERLOO
CONVENTION
''' OA CENTER I
AT SULLIVAN BROTHERS PLAZA -
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The Waterloo Convention Center MILocsts your help.Please complete the following C;ustonxer liattr;ftction stuveyr
based on the event you recently held xvith us.11wri you for yotar time.
•
C';;ustott„top i It;ar ate: Even1 i desro'yr . Our Sr:ales M anacjer w(a6:
[Customer Narnel jProject Nanxel [Project Number]
Mea✓firig Manner V„lawai ne: Date of
[Project Manager] [Date]
1,
L Did the Canventiou Services team deliver the results acrd duality that were praujised?
L7 Less than expected 0 As expected l l Afore than expected D Consistent)
c y=more
1 a. Were key setup and service deadlines met with a "whatever it takes” attitude?
El Less than expected 1.1 AS expected 1.] More than expected 0 Consistently ni ore
1 b, Was the team consistent in its approach to the event, its overall scope, and schedule?
0 Less than expected EJ .As expected E.] More than expected E.] Consistently more
1 c. Did the Sales and Convention Services team guide your staff and meet your
expectations?
0 Les;than expected 0 As expected l-1 More than.expected 0 Consistently more I
G;isr a er.Suli fnrlim Swrlffy '[Dafe] 1
i.
2. T17c Fooel Quality was ...
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11 Less then desirable f..$ As expected I.,..I Better than expected. I-i ("onsis telt tly better
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2a. Was the food service timely?
-----
El Less than expected i...i As expected 1J More than expected El C onsisteild),irtore.
2b. Was the presentation?
F.1 Less than expected El As expected 11 -fore than expected D Consistently more
2c. Was the service team professional in dress, communication, etc.?
0 Less than expected El As expected ["I More than expected EJ Consistently more
t
]
The overall service for your event ...
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E Less than desirable I.J As expected i .a Better than expected. Ill Consistell tly hotter
.3. Comrneryts/Testbnonial.•
[_add your comments here.]
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f..I Please,check this box:to grant us permission to use your company logo and teStllnojY al CMS our website or to our
future marketing effirrts.
11 Please check this box if you are wilting to act as a reference for our company in the.future-Ii.AVcould you
re.corrrmend the\Waterloo Convention Center fora return visit for),ourgroup or for others?
1
0 Yes F] No
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'Flunk you vert-much for taking;the time to complete this survey.Your feedback is valued and very much
appreciated(
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Cr/s/o/mv.Safi.I;Iellon Sorg '/`I ak/ 2
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PIIIIIIPPIIIIIIIIIIPPPIIIIII[IPIPIIPPIP1Pf Plf[PIfP[PIIIPP[f IPPIIPPP[IPPPIPIPPIIP
Doc ID: 008242810004 Type: %N
Recorded: 10/02/2017 at 04:21:30 PM
Fee Amt: $22.00 Pape 1 of 4
Black Hawk County Iowa
SANDIE L. SMITH RECORDER
F11e2018-000082 V
Prepared by Christopher S.Wendland, P.O. Box 596,Waterloo, IA 50704. Phone_j31_)23 4-5701
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AMENDMENT TO DEVELOPMENT AGREEMENT
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This Amendment to Development Agreement (the "Amendment") is entered into as of
2017 by and between the City of Waterloo, Iowa ("City") and LK Holdings
Water - , LLC ("Company").
RECITALS
A. Company and City are parties to that certain Development Agreement dated July
17, 2017 (the "DA"), concerning the development of land (the"Property") described
on Exhibit "A"to the DA. Company and City are also parties to a Minimum
Assessment Agreement(the "MAX) pertaining to the Property.
B. The Property description contained errors that have been identified by survey, and
the parties desire to amend the DA on the terms set forth herein to provide for a
corrected legal description.
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NOW, THEREFORE, in consideration of the premises and of other consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereby agree to amend the
Agreement as follows:
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1. The DA and MAA are amended to strike Exhibit "A"therefrom and to substitute in r
place thereof a new Exhibit"A" as attached to this Amendment. The DA is further amended to
add the plat of survey as a new Exhibit "A-1."
2. Except as amended herein, the DA and the MAA shall continue unmodified in full
force and effect. This Amendment is binding on the parties and the respective successors,
assigns, transferees and legal representatives of each. This Amendment may be executed in
counterparts, each of which shall be deemed an original and all of which, when taken together,
shall constitute a single instrument.
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IN WITNESS WHEREOF, the parties have executed this Amendment to Development
Agreement by their duly authorized representatives as of the date first set forth above.
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[signatures on next page]
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CITY OF WATERLOO, IOWA LK. HO S ATERLOO, LLC
C." , J
By By
Quentin M. Hart ry Mayor Edwin . t „
Managing Me _........_ �w,
y WA"' Leslie
g g mber of Leslie
Hospitality Consulting, LLC, its E
Attest. .._
Managing Member s
Kelley Felchl , C'ity Clerk
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EXHIBIT "A"
Legal Description of Property
DESCRIPTION:PARCEL`K'
PARI'OF BLOCK 7 IN THE ORIGINAL PLAT ON THE WEST SIDE OF THE CEDAR RIVER AND THE
SOUTHEASTERLY 10.00 FEET IN EVEN WIDTH OF FORMER MAIN STREET NOW PARK AVENUE AND
PART OF ELWELL'S PLAT A SUBDIVISION OF LOTS I AND 2 IN BLOCK 7 IN THE ORIGINAL PLAT ON
THE WEST SIDE OF THE CEDAR RIVER,CITY OF WATERLOO,COUNTY OF BLACK HAWK,STATE OF
IOWA,MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEASTERLY CORNER OF LOT 1 OF E.J. BICKLEY'S SUBDIVISION,
ALSO BEING THE POINT OF INTERSECTION OF THE PRESENT SOUTHWESTERLY RIGHT—OF—WAY
LINE OF JEFFERSON S'T'REET AND THE PRESENT NORTHWESTERLY RIGHT—OF—WAY LINE OF WEST
4TH STREET;THENCE NORTH 41°(DEGREES)05' (MINUTES)42"(SECONDS)EAST,80.00 FEET TO
THE SOUTHERLY CORNER OF SAID BLOCK 7;THENCE NORTH 48°54'56"WEST,ON THE
SOUTHWESTERLY LINE OF SAID BLOCK 7 ALSO BEING THE PRESENT NORTHEASTERLY RIGHT—OF—
WAY LINE OF JEFFERSON STREET,4.03 FEET TO THE POINT OF BEGINNING OF THE PARCEL OF
LAND HEREIN DESCRIBED;THENCE CONTINUING NORTH 48°54'56"WEST ON THE
SOUTHWESTERLY LINE OF SAID BLOCK 7 AND ITS NORTHWESTERLY PROLONGATION,ALSO
BEING THE PRESENT NORTHEASTERLY RIGHT—OF—WAY LINE OF JEFFERSON STREET,306.59 FEET
TO NORTHWESTERLY LINE OF THE SOUTHEASTERLY 10.00 FEET OF FORMER MAIN STREET NOW
PARK AVENUE,ALSO BEING THE PRESENT SOUTHEASTERLY RIGHT—OF—WAY LINE OF PARK
AVENUE;THENCE NORTH 4103'49"EAST ON THE NORTHWESTERLY LINE OF THE
SOUTHEASTERLY 10.00 FEET OF FORMER MAIN STREET NOW PARK AVENUE,ALSO BEING THE
PRESENT SOUTHEASTERLY RIGHT—OF—WAY TINE OF PARK AVENUE,301.91 FEET(300.00 FEET
RECORD)TO THE PRESENT SOUTHWESTERLY RIGHT—OF—WAY LINE OF COMMERCIAL STREET;
THENCE SOUTH 49002'55"EAST ON THE PRESENT SOUTHWESTERLY RIGHT—OF—WAY LINE OF
COMMERCIAL STREET,ALSO BEING THE NORTHEASTERLY LINE OF SAID-BLOCK 7 AND ITS
NORTHWESTERLY PROLONGATION,240.52 FEETT'O THE NORTHWESTERLY RIGHT—OF—WAY LINE
OF WEST 4TH STREET;THENCE SOUTHWESTERLY ON THE NORTHWESTERLY RIGHT—OF—WAY LINE
OF WEST 4TH STREET BEING A 956.73—FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY AND
s
HAVING A 98.84—FOOT LONG CHORD BEARING SOUTH 28047'22"WEST,98.89 FEET(ARC LENGTH);
THENCE SOUTH 26009'45"WEST ON THE NORTHWESTERLY RIGHT—OF—WAY LINE OF WEST 4TH
STREET,91.32 FEET;THENCE SOUTIIWESTERLY ON THE NORTHWESTERLY RIGHT—OF—WAY LINE
OF WEST 4TH STREET BEING A 760.00—FOOT RADIUS CURVE CONCAVE NORTHWESTERLY AND
HAVING A 119.61—FOOT LONG CHORD BEARING SOUTH 30040'33"WEST, 119.73 FEET(ARC LENGTH)
TO THE POINT OF BEGINNING.
(THE SOUTHEAST LINE OF E.J. BICKLEY'S SUBDIVISION,ALSO BEING THE PRESENT
NORTHWESTERLY RIGHT—OF—WAY LINE OF WEST 4TH STREET THAT IS SOUTHWESTERLY OF
JEFFERSON STREET,IS ASSUMED TO BEAR NORTH 41°05'42"EAST FOR THE PURPOSE OF THIS
DESCRIPTION.)
CONTAINING 83,194 SQUARE FEET OR 1.91 ACRES.
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LEASE AND MANAGEMENT AGREEMRNT
THIS AGREEMENT. made and entered Into thin 29th day of March
1960. by and between the following piirtles:
(A) Conway Civic Center Board, 200 West Fourth Street, Waterloo, ,
131nek Hawk County, Iowa;
(11) City of Waterloo, 715 Mulberry Street, Waterloo, Black Hawk County,
Iowa;
(C) Continental Investment Croup, a partnership consisting of John P.
Dalley, Gordon E. Burns, Jr, and G. Raymond Decker, located at Regency
Plaza, 222 N. E. Monroe, pearls, Illinois,-61602.
1. PURPOSE. Whereas the parties Jointly desire to utilize Conway Clvlc
Center in conjunction with the hotel to be constructed by Continental, to nocomm-
cdale convention delegates, uli)ize facilities and accommodations, and to avoid the
necessity of Continental duplicating existing facilities.
2. PREVIOUS CONTRACTS. Whereas Continental has entered into cer-
tain contracts with the City of Waterloo, dated December ti, 1978, and amended
May 31, 1979, and the City of Waterloo has entered Into an Urban Development
Action Grant agreement with the Department of housing and Urban Development
Of the United States of,Amerion, dated'October 20, 1970, Grant No. B-79-AA--
19-0001• The terms bf this agreement between Conway and Continental are ex-
pressiy conditioned upon the performance by Continental to the previous agree-
ments, as amended, and said previous agreements are by this reference made ar
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part of and Included in'this agreement; where applicable, and shall be controlling
In the event of any conflict between this agreement and the terms of the UDAO
agreement. however, performance of this agreement shall be subject to total
Performance by City and Continental al
d Department of Housing and Urban
Development as not forth in their respective agreements,
3. PREMISES AND TEAM, Conway, the Landlord, In consideration of the
rents herein reserved and of the agreements and conditions herein contained, on
the part of the Tenant to be kept and performed, leases unto Continental, the
Tenant, and Tenant hereby rents and lyases from Landlord, according to the
terms and provision" hereln, the following described real estate, altuated in
Black llawk County to-wit.,
Block No. Seven (7) In the Original Plat, an the West Side of the Cedar
River, In the City of Waterlo0, Dl'ack Hawk County, Iowa;
The Southeastarly.Ten (10) feet of Park Avenue nd)oining said Block
No. Seven (7) on the Northwest; and
All of Elwell'" Plat in the City of Waterloo, Iowa.
Except those parte, if any, of the foregoing that are a part of West '
Fourth Street as now established,'
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with the Improvement thereon and all rights, easements and appurtenances
thereto belonging,-which.more particularly, include the Spaoa and premleos
known as Conway Civic Center, ,for a term of thirty (30) years, commencing
at midnight of ti►e day previous to the first day of the lease term, which Shall
be on the first day of January, 1983, and ending at midnight on the last day of
tl►e lease term, which shall be on the thirty-first day of December, 2013, upon the
conditions that all parties pay the required payments and otherwise perform as
In tills lease provided,
4. RENTAL. For the years January 1, 1983 through December 31, 1904,
Conway shall pay to Continental an annual management fee of $160,000,00 which
shall be due and payable an a monthly babla. Commencing January 1, 1995, Con-
tinental shall pay to Conway a rental commisslon computed on the annual gross
Income of Continental at Conway. The gross income derived from the leased property
shall be computed for each such calendar year on a accrual basis, In accordance
with generally accepted accounting principles consistently applied, and shall
include all income received from all sources as a result of the operation of the leased
Property, including all net refunds, rebates, and recoveries of items previously
charged as an expense (after deducting t{erefrom necessary expenses Incurred in
recovering such Items, but not including (Jany refunds, rebates or recoveries of or
Items not previously charged or dedueliblq as an expense), The proceeds of
any Insurance recovery arising from damage shall be included In groes income but only
as and when the repairs of such damage s�all have been completed, and thett.only to
the extent that such proceeds exceed the costs of such repairs, The gross income shall
not Include sales) taxes or any other similar tax Imposed by Federal, State, County
or Municipal government. Annual rental commissions shall be as follows:
(a) Grose income and sales up to One Million ($1,000,000.00)
two and one-half percent (21%) commission;
(b) One Million ($1,000,800,00) to Two Million ($2,000,00.0.00)
five percent (5%) commission;
(c) Two Million (;2,•000,000,00) to Three Million ($3,000,000,00)
six percent (04)' commission;
(d) Three Million ($3,000,000.00) to lour Million ($4,000,000.00)
eight percent (01) commission; '
(e) Over Four MWlon ($4,000,000,00) ten percent (10%) commission,
flentai commissions shall be computed by Continental and paid to Conway by the
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20th of each month based upon the previous month's income and sales. Continental
shall submit with each payment•a statement of income and gains for the previous
Month, Continental agrees to maintain an accurate accounting of its Income and
gains at Conway and shall make the same available during business hours for
inspection and audit by Conway or its authorized auditors, accountants and re-
presentatives. All sums shall be paid at the address of the respective parties, or
at such other places as designated. Delinquent payments shall draw Interest at
the tato of 2%over the primo rate es.designated by the Continental National Bank
of Chicago, Illinois.
b. POSSESSION. Tenant shall be entitled to possession on the first day
of lila term-of this lease and shall yldld possession to the Landlord at the'thne
and date of the close of-this lease team, except as herein otherwise expressly
provided. I.
6. USH OF PREMISES. Tenant covenants and agrees during the term of
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this agreement to use and our the, premises only for a convention and elvic
center and in conjunction with the Ito jai to be constructed. Tenant agrees to
make no changes in the existing structure without first securing the written
permission and consent of Landlord. IDuring the life of this agreement, Con
linantal agrees not to construct or duplicate Conway type facilities nor to di-
vert business or sales normally contemplated being hald In Conway.
7. QUIET ENJOYMENT. Landlord covenants that its estate in said promises
is in fee simple and that the Tenant on paying the rent herein reserved and
performing all the agreements by the Tenant to be performed as provided in this
agreement, shall and may peaceably have, hold and enjoy the demised promisee
for the term of this 16086 free from molestation, eviction, or disturbance by the
Landlord or any other'porsons or legal entity whatsoever. Landlord shall have
the right, however, to encumber all of its right, title, Interest in said premises
at any time without notice, subject, however, to this lease.
e. CARE AND MAINTENANCE OF r112MISES,
(a) Tenant takes said promises in their present condition without any
repairs or alterations by Landlord, Including all furniture, fixtures
and equipment owned by Landlord now on or in the premises.
(b) Landlord will keep the roof, structural part of the floor, walls
and other structural parte of the building in good repair,
(c)I Tenant shall, after taking possession of said promises and until
the termination of this lease and the actual removal from the premises;
at Its own expense, care for and maintain said premises in a reasonably
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safe Find serviceable condition except for structural parts of the
building. Tenant will furnish Its own interior and exterior decor-
ating. Tenant will not permit or allow geld premises to be damaged
or depreciated in value by any act or negligence of the Tenant, Its
agents or employees. Without limiting the goneralt of the foregoing,
Tenant will make necessary repairs to the sewer, the plumbing, the
water pipes and electrical wiring, and Tenant agrees to keep faucets
closed so as to prevent waste of water and flooding of promises; to
,promptly take care of any leakage or stoppage In any of the water,
gas or waste pipes, The 'Tenant Wool; to maintain adequate heat to
prevent freezing of pipes. Tenant at Its own expense may Install
floor covering and will maintain such floor covering In good condition.
Tenant will be responsibiq for the plate glass In the windows of the
Iensed premises and for maintaining the parking area, driveways and
sidewalks on and abutting the leased premises. Tenant shall make
no structural alterations or Improvements without the written approval
of the Landlord first had and obtained, of the pland and specifications
therefor.
(d) Tenant will make no unlawful use of said promises and agrees to
comply with all valid regulations of the Doard of Health, City Ordi-
nances, the laws of the State of Iowa and the federal Government,
but this provision shall not be construed as creating any duty by
'Tenant to members of the'-goneral public. If Tenant, by the terms
of this lease is leasing premises on the ground floor, It will not
allow trash of any kind to•accumulate on said premises, in the halls,
If any, or the yard In.front, side or rear thereof, and It will remove
snow and ice and other obstacles from the sidewalk on or abutting
the premises.
9. UTILITIES, SERVICES, 11EATING 8 AIR CONDITIONING.
(a) Tenant, during the term of the lease, shall pay, before delinquency,
all charges for use of telephone, water, sewer, gas, haat; electricity,
power, air conditioning, garbage disposal, trash diaposel and not Ilm-
Ited by the foregoing all other utllltles and services of whatever ltfnd
and nature which may be used In or upon the demised premises.
(b) Janitor sorvice shall be furnished at the expense of Tenant.
(c) Air conditioning and heating equipment shall be initially furnished
and provided by Landlordl thereafter, ail air conditioning and heating
shall be furnished at the expanse of the Tenant.
10. SUBHUNDEII,OF PREMISES AT END OF TERM--REMOVAL OF FIXTURES,
(a) Holding Over, Tenant agrees that upon the termination of this
lease It will surrender, yield up and deliver the lensed premises in
good and clean condition, except the effects of ordinary wear and
tear and depreciation arising from lapse of time, or damage without
fault or liability of Tenant:
(b) Tenant may., at the expiration of the term of tills loose, or re-
newal or renewals thereof or at a reasonable time thereafter, if
Tenant Is not In default berounder, remove any fixtures or equipment
Which said Tenant has installed in the leased premises, providing
said Tenant repairs any and all damages caused by removal, and pro-
viding Landlord approves said removal In writing.
(c) Continued possession, beyond the expiratory date of the term of
tills lease, by the Tenant, coupled with the receipt Of the specified
rental by the Landlord (and absent a written agreement by both .
parties for an extetlslon of tills loose, or for a new lease) shell con-
stitute a month to month extension of this lease,
11. ASSIGNMENT AND SUBLUTTiNG. Any assignment of this lease or sub=
letting of the premises or any part thereof, without the Landlord's written
parmiselon shall, at the option of the andlord, terminate tills lease. Such
written Permission shall not be unreasonably withheld. The parties contemplate
Continental engaging It managing agent or general manager to manage the hotel,
and the possible assignment of this lease and agreement to a subsequent pur-
chaser or operator of the hotel. Landlord recognizes that Continental contem-
plates the collateral assignment of tills lease es additional security for first
mortgage flnHncing of i,he hotel, and hereby approves such assignment subject
only to the approval by landlord of the specific lender when named.
12. TAXES, Tenant agrees to timely pay all taxes, assessments or other
Public charges levied or assessed by lawful outhaxlty (but reasonably preserving
Tenant'd right of appeal) against its personal property. At the time of execution
Of tris lease, this real estate is presently exempt from assessment for real taxes.
Part of the consideration of this agreement Includes the continuing exempt status
Of this property from real estate taxation.
13. INSURANCE:.
(a) Landlord and Tenant will each keep Its respective property in-
ternsta In the premises and its liability in regard thereto, and the
personal property on the premises, reasonably Insured against
hazards and casualltes, that is, fire and those items usually covered
by extended coverage, and Tenant will procure and deliver to the
Landlord a certlficatton from the respective Insurance companlee to
that effect. Such insurance shall be made payable to tltie parties
hereto as their interest may appear, except that the Tenant's share
Of such insurance proceeds are hereby assigned and made payable
to the Landlord to secure rent or otherabligdtions then due and
owing Landlord by Tenant. Tenant Will maintain such Insurance on
a replacement value basis,
(b) Tenant will not do or omit the doing of any act which would
vitiate any Insurance rates in force upon the real estate Improvements
on the premises or upon any personal property of the Tenant upon•
which the Landlord by law'or by the terms of this 10480,• has or shall
have a lien,
(a) Subrogation rights are not to be walved unles8a special provision
la attached to this lease,
(d) Tenant further agrees to comply with recommendations of Iowa
Insurance Service bureau and to be liable for and to promptly pay,
ss If current rental,' any Increase in Insurance rates on said premises
and on the building of which amid premises are a part, due to Increased
risks or hazards resulting from Tenant's use of the promises otherwise
than as herein contemplated and agreed.
(e) Landlord 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 Landlord to
be used in payment for costs of repairs or restoration of damaged
building, if the destruction Is only partial.
14. INDEMNITY AND LIABILITY INSURANCE. Except as to any negligence
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of the Landlord, arising out of roof end structural parts of the building, Tenant
will protect, Indemnify and gave harmless the Landlord from and against any
and all 1psg, ousts„ damage and o4anaes occasioned by, or arising out of,
any accident or other occurance causing or Inflicting Injury and/or damage
to any person or property, happening or done, In, upon or about the leased
promises, or due directly or indirectly to the tenancy, use or occupancy
thereof, or any part thereof by the Tenant or any person claiming through or
under the Tenant. The Tenant further covenants and agrees that it will at
Its own expense procure and maintain casualty and liability insurance In a
responsible company or companies authorized to do business in the State of
Ivwn, In an amount not less than $1,000,000.00 per occurance and #1,000,000,00
for any one accident, and with the limits of $250,000.00 for property damage,
Protecting the LandIvrd against such claims, demagog, costs or expenses on
account of injury to any persons or persons, or to any property belonging to
any person or persons, by reason of such casualty, accident or other happening
on or about the demised premises during the term thereof. Certificates 6r copies .
of said policies, naming the Landlord, and providing for fifteen (16) days' notice
to the Landlord before cancellation shall be delivered to the Landlord within
twenty (20) days from the date of the beginning of the term of this lease.
16. F111H AND CASUALTi-WPARTIAL DiisTRUCTION OF PnEMISPS.
(a) In the event of a partial destruction or damages of the lensed
Promises, which Is a bueinass Interference, that in, which prevents
the conducting of a normal businses operation and which damage Is
reasonably repairable within sixty (60) days after Its occurance, tills
lanae shell not termitinte but the rent for the leased premises shall
abate during the time of auuh business Interference. In the event
of partial destruction, Landlord shall repair such demagog within sixty '
(60) days of its occurance unless prevented from so doing by acts of
[hod, the elements, the pltblic enemy, strikes, riots, insurrection,
government regulations clt}turdinances, labor, material or tronapor-
tntion shortagos, or other causes beyond Landlord's reasonable control.
(b) Should the zoning ordinance of the City of Waterloo make It
Impossible for Landlord, using diligent and timely effort to obtain
necessary permits and to repair and/or rebuild so that Tenant is not
able to conduct its business on these premises, then guoh partial
destruction shalt be traited as it total destruction as in the next
paragraph provided,
(c) In the event of a destruction or damage of the lensed premises
hicluding 'the parking area so that Tenant is not able to conduct its
business on these promisee or then current legal use for which the
Promises are being used and which damages cannot be repaired within
sixty (6D) days this lease may be terminated at the option of either
the Landlord or Tenant, Such termination In such event shall be
effected by written notice of one party to the other,'within twenty
(20) dayralafter such destruction. Tenant shall surrender possession .
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Within
7-within tan (10) days after aucll notice laauea, and each party shall
be released from all future obligations hereunder, 'Tenant paying
rental pro rata only to the date of such destruction. In the event
Of such termination of this lease, Landlord at Its option, may re-
build or not, according to Its own wishes and needs.
18, CONDEMNATION.
(a) Should the whale or any part of the damised premises be con-
demned or taken by a competent authority for any public or quaal-
public use or purpose, (18011 party shall be entitled to retain, as Its
own property, any award payable to it. Or In the event that a
single entire award is made on account of the condemnation, each
party will than be entitled to take such proportion of said award as
may be lair and reasonable.
(b) If the whole, of the demised premises shall be eo condemned or
taken, the Landlord shall not be liable to the 'Tenant except and no
Its rights are preserved as above.
117. 'TERMINATION OF LEASE AND DEFAULTS OIC TENANT,
(a) This lease shall terminate upon expiration of t11e damlaud term;
or If this lease expressly and In writing provides for any option or
options,land If any such option is exercised by the Tenant, then this
lease will terminate at the expiration of the option term or terms. 0
Upon default in payment of rental herein or upon any other default
by Tenant In accordance with the terms and provisions of this lease,
this lease may at the Option of the Landlord be cancelled and forfeited,
PROVIDED, HOWEVER, before any such cancellation and forfeiture
except as provided in 17 (h) below, Landlord shall give 'Tenant a
written notice specifying the default, or defaults, and stating that
11,19 Iease will be cancelled and forfeited tan (10) days after the
giving of such notice, unless such default, or defaults, are remedied
within such grace period. As an additional optional procedure or as
an alternative to the foregoing (and neither,exclusive of the other)
Landlord may proceed with any legal or equitable remedy, .�
(b) In the event Tenant Is adjudicated a bankrupt or In the event
of a judicial sale or other transfer of Tenant's leasehold Interest by
reasomof 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 sot aside within ten (IB)
days from the giving of notice thereof by Landlord to Tenant, then
and in any such events, Landlord may, at its option, immediately
terminate tills lease, re-enter said premises, upon giving of ten
(10) days' written notice by Landlord to Tenant.
(c) In (a) and (b) above, waiver as to any default shall not con-
9titute a waiver of any subsequent default or defaults.
(d) Acceptance of keys, advertising and re-renting by tile Landlord
upon the'Tenant's default shall be construed only as an effort to
mitigate damages by the Landlord,and?rlot as an agreement to term
mate this lease.
I B. RIGHT OF,EITHER PARTY TO MAKE GOOD ANY DEFAULT OF TIIE
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 lease,
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
. i
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 as set forth in Paragraph 4, from date of advance.
1s. SIGNS.
(a) Tenant shall have the right and privilege of attaching, affix-
ing, painting or exhibiting signs on the leased premises, provided
only (1) that any and all signs shall comply with the ordinances of
the City of Waterloo and the laws of the State of Iowa; (2) such
signs shall not change the structure of the building; (3) such
signs 11 and when taken down shall not damage the building; and
(4) such signs shall be subject to the written approval of the
Landlord, which approval shall not be unreasonably withheld.
(b) Landlord during the last ninety(00) bays of thla lease, or
extension, shall have the right to maintain In the windows or on
the building or on the premisea either or both a "Por Rent" or
"Por Sale" sign and Tenant will permit, at such time, prospective
tenants or buyers to enter and examine the premises.
20: MECHANIC'S LIEN'S. Neither the Tenant nor anyone olalmtng by,
through, or under the Tenant, shall have the right to file or place any
mechanic's lien or other lien of any kind or character whatsoever, upon skid
promises or upon any building or improvements thereon, or upon the lease-
hold Interest of the Tenant therein, and notice is hereby given that no con-
tractor, sub-contractor, or anyone else who may furnish any material, service
or labor for any building, improvements, alteration, repairs or any part there-
of, shall at any time be or become entitled to any lien thereon, and for the
further security of the Landlord, the Tenant 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.
21. LANDLORD'S LIEN AND SECURITY INTEREST. Said Landlord shall
have, In addition to the Han given by law, a security interest as provided by
the Uniform Commercial Code of Iowa, upon all personal property and all sub-
stitutions therefor, kept and used bn said promises by Tenant. Landlord
may proceed at law or In equity with any remedy provided by law or by thAs
lease for the recovery of rent, or for termination of tide 1131,09 because of
Tenant's default in Its performance.
22. SUBSTITUTION OF EQUIPMENT, MERCHANDISE, ETC.
(a) The 'Tenant shall have the right, from time to time, during
the term df this Issue, or renewal thereof, to sell or otherwise
dispose of any personal property of the Tenant situated on the
said demieed premises, when in the judgment of the Tenant it
shall have become obsolete, outworn or unnecessary in
with the operation of the business on connectione,ld pramlaes; provided,
however, that the Tetem nant shall, in such Instance (unless no cub-
fortsuch items oflpersonaljg vpropertl st Its awn expanse, substitute
of, a new or other Item In substitution the190 reof,or cin like Or disposed ater
value and adapted to the affixed op$ratlan of the business upon
the demised premises,
( �ing herein contained
enent. shall be construed as denying to
1 nt the right to dispose of Inventoried merchandise in the
ordinary course of tite Tenant's trade or business,
(c) That attached hereto Is an nveAtory of
-andequipinent c ntatned In thelPromi es owned b meal property
23, i'11EV1OUS COMMITMpsNTs BY CONWAY y Conway.
The parties recagnize
that Conway has been used as a Civic and Community Censer by the City Of
vide for all previous
Waterloo, Iowa. • Continental agrees to apeclflcally honor and adequately pxO-
written agreements and commitments made by Conway.
for meeting and exhibitions ace according g to the attached scheduie. In
addition, Continental, shall at the beginning of each calendar year, submit to
Conway a schedule of rates to be charged for various meeting room rentals of
Conway. Conway shall have the right to approve
nizing that Conway has been a Civic and Comm nity Centerrates Continent Recvg-
to recognize the use according to thea � agrees
approved rate Schedule of Conway for and
by, but not limited to, the Junior Service League,
Flower WatelrIoo Cedar halls Symphony,
0Nomas Shaws, Chamber Of Commsrva and other local endeavors. To the
extent possible. Continental shall accomodate the scheduling of local vrgettiaetiona
for convention, meeting and entertainment purposes.
24. ACRIMMENT BETWEEN CONWAY 8 VBNDA ppOD3 INC. As part of
the consideration of this agreement, Conway shall execute all rights of purchase
In and to that certain agreement dated done 17, 1876, between Conway Civic
Center Board and Venda Foods, Inc.
Specifically in regard to Paragraph 14 (b)
Of said agreement. Said equipment shall,be included as part of the personal
property leased by Conway to Ccntlnentsl,
25. RIGHTS CUMULATIVE. The various rights, powers, option,. elections
and remedies of either party, provided In this lease, sh511 be construed as bumu-
1a;ive and no one of them as exclusive of the Others, or exclusive of any rights,
remedles or priorities allowed either party by law, and shall In no way affect or
impSir the right of eitherart
P y to pursue any other equitable or 18951 remedy '
to which either party may be entitled as long as any default.remains in any way
unremedled, unsatieAed or undischarged.
26, NOTICES AND DEMANDS, Noticee an provided for In this lapse
shall be given to the respective parties hereto at the respective addresses
designated on Page One of this lease unless elther party notified the other,
In writing, of a different address, Without prejudice to any other method
Of notifying a party In writing or making a demand or other communication,
such "7096096 shall be considered given under the terms of this lease when sent,
addressed as above designated, postage prepaid, by registered or certified
mail, return recelp; requested, by the United State mail and so deposited In
a United States mail box,
27. PROVISIONS TO BIND AND BENEFIT SUCCESSORS, ASSIGNS, ETC.
Each and everycovenant and agreement hereln contained shall extend to and
be binding upon the respective successors, heirs, administrators, executors
and assigns of the parties hereto,, except that if any part of We leas0 Is held
In joint tenancy, the successor in interest shall be the surviving joint tenant.
26. CHANGES TO BE 1N WRITING. None of The covenants, provielons,
terms or conditions of.this lease to pB kept or performed by Landlord or Tenant
shall be In any.tnanner modified, waived or abandoned, except by a written
instrument duly signed by the parties and delivered to the Landlord and Tenant.
Thls lease contains the whole agreement of the parties.
CONWAY IVIG CE TER B ARD
By
t
CITY OF WATERLOO
By
CONT EN L INVESTM T GROUP
STATE OF IOWA )
COUNTY OF BLACK HAWK)Be.
On this dor � _ day of July, 1ge2, before me, the'undersigned, s Notary
Public in and yr sa ounty, In said State, personally appeared Lou P, noolf and
Larry P• Burger, to me personaUy known, who, being by me duly sworn did say
th"t they are the Mayor and City Clerk, respectively, of said municipal corporation;
that the Goal affixed thereto Is the seal of sold municipal corporation; that sold
iristrumenl was signed and sealed on behalf of said municipal corporation by authority
of its Council; and that the said Lea P, llooff and Larry p, Burger as such officers,
acknowledged the execution of said instrument to be the voluntary Not and deed of sold
municipal corporation,- by It and by them voluntarily executed.
`N( cryu a an or a oun y
STATE OF IOWA )
COUNTY OF BLACK HAWK)
On this AUGUST
Public in and yr cath day ofYattlt, 1982, before me, the undersigned, a Notary
7�lTt'ounty, In said State, personally appearod Walter Cochran and
Nanny Sltirey, to me personally known, who being by me duly sworn, did say that
they are tite Chairman and Secretary, respectively, of the Conway Civic Cantor Board
executing the within and foregoing instrument to which this is attached, that no seat
Inns been procured by the said Conway Civic Center Board; that said instrument was
Signed on behalf of said board by authority of Its board; and that the said Waiter
Cochran and Nancy shires as such oftioare acknowledged the execution of said inatru-
ment to be the voluntary act indeed of Conway Chia Center Board, by It and by theta
voluntarily executed.
ianar 40'
s oun,
'. L.S.
STATE OF ILLINOIS)
COUNTY CF OftlA)es.
1,
County, to11:111,e a or acor a Notary Public In and for said
n p. Dtlney.
Burns, Jr„ rt Raymond
,:Backer,oGeneral Partners of Cothat ntinental al I ves ment Group,
don H.
an Illinois abed t Partnership, personally known to me to be the same persons whose names
are subscribed to the foregoing Instrument as such General Partners, appeared before
me this day in person and acknowledged that they signed end delivered the said
instrument as theirown free and voluntary not, and as the free and voluntary not of
said Partnership, for the uses and purpogee therein out forth.
Given under my hand and notarial goal thisa'
Z_day of July, 1982,
cry u a s ar a
�., .__................ ..........
r {
}
UORDERS NOTE: The attachments referred
to on page 9 are not attached and not a part •
of this instrument. James Lindsey of the INDEXED P�
Waterloo Community Development board has COMPARED o�
been made aware of this fact. PAGED
J HACK HAWK COUNTY, IOWA,SS
F NJ for rgcord-01Lq-1?P.4
• M, and reeera,a In
R�rnr�ry
1 o1pvl y
Fee ao '
. .
m4 247 rnc;755 . . . . .... ..__.�_..-._-- .--�--_.....
LEASE AND MANAGEMENT AGREEMRNT
THIS AGREEMENT. made and entered Into thin 29th day of March
1960. by and between the following piirtles:
(A) Conway Civic Center Board, 200 West Fourth Street, Waterloo, ,
131nek Hawk County, Iowa;
(11) City of Waterloo, 715 Mulberry Street, Waterloo, Black Hawk County,
Iowa;
(C) Continental Investment Croup, a partnership consisting of John P.
Dalley, Gordon E. Burns, Jr, and G. Raymond Decker, located at Regency
Plaza, 222 N. E. Monroe, pearls, Illinois,-61602.
1. PURPOSE. Whereas the parties Jointly desire to utilize Conway Clvlc
Center in conjunction with the hotel to be constructed by Continental, to nocomm-
cdale convention delegates, uli)ize facilities and accommodations, and to avoid the
necessity of Continental duplicating existing facilities.
2. PREVIOUS CONTRACTS. Whereas Continental has entered into cer-
tain contracts with the City of Waterloo, dated December ti, 1978, and amended
May 31, 1979, and the City of Waterloo has entered Into an Urban Development
Action Grant agreement with the Department of housing and Urban Development
Of the United States of,Amerion, dated'October 20, 1970, Grant No. B-79-AA--
19-0001• The terms bf this agreement between Conway and Continental are ex-
pressiy conditioned upon the performance by Continental to the previous agree-
ments, as amended, and said previous agreements are by this reference made ar
f
part of and Included in'this agreement; where applicable, and shall be controlling
In the event of any conflict between this agreement and the terms of the UDAO
agreement. however, performance of this agreement shall be subject to total
Performance by City and Continental al
d Department of Housing and Urban
Development as not forth in their respective agreements,
3. PREMISES AND TEAM, Conway, the Landlord, In consideration of the
rents herein reserved and of the agreements and conditions herein contained, on
the part of the Tenant to be kept and performed, leases unto Continental, the
Tenant, and Tenant hereby rents and lyases from Landlord, according to the
terms and provision" hereln, the following described real estate, altuated in
Black llawk County to-wit.,
Block No. Seven (7) In the Original Plat, an the West Side of the Cedar
River, In the City of Waterlo0, Dl'ack Hawk County, Iowa;
The Southeastarly.Ten (10) feet of Park Avenue nd)oining said Block
No. Seven (7) on the Northwest; and
All of Elwell'" Plat in the City of Waterloo, Iowa.
Except those parte, if any, of the foregoing that are a part of West '
Fourth Street as now established,'
l ,
1 .>
i
with the Improvement thereon and all rights, easements and appurtenances
thereto belonging,-which.more particularly, include the Spaoa and premleos
known as Conway Civic Center, ,for a term of thirty (30) years, commencing
at midnight of ti►e day previous to the first day of the lease term, which Shall
be on the first day of January, 1983, and ending at midnight on the last day of
tl►e lease term, which shall be on the thirty-first day of December, 2013, upon the
conditions that all parties pay the required payments and otherwise perform as
In tills lease provided,
4. RENTAL. For the years January 1, 1983 through December 31, 1904,
Conway shall pay to Continental an annual management fee of $160,000,00 which
shall be due and payable an a monthly babla. Commencing January 1, 1995, Con-
tinental shall pay to Conway a rental commisslon computed on the annual gross
Income of Continental at Conway. The gross income derived from the leased property
shall be computed for each such calendar year on a accrual basis, In accordance
with generally accepted accounting principles consistently applied, and shall
include all income received from all sources as a result of the operation of the leased
Property, including all net refunds, rebates, and recoveries of items previously
charged as an expense (after deducting t{erefrom necessary expenses Incurred in
recovering such Items, but not including (Jany refunds, rebates or recoveries of or
Items not previously charged or dedueliblq as an expense), The proceeds of
any Insurance recovery arising from damage shall be included In groes income but only
as and when the repairs of such damage s�all have been completed, and thett.only to
the extent that such proceeds exceed the costs of such repairs, The gross income shall
not Include sales) taxes or any other similar tax Imposed by Federal, State, County
or Municipal government. Annual rental commissions shall be as follows:
(a) Grose income and sales up to One Million ($1,000,000.00)
two and one-half percent (21%) commission;
(b) One Million ($1,000,800,00) to Two Million ($2,000,00.0.00)
five percent (5%) commission;
(c) Two Million (;2,•000,000,00) to Three Million ($3,000,000,00)
six percent (04)' commission;
(d) Three Million ($3,000,000.00) to lour Million ($4,000,000.00)
eight percent (01) commission; '
(e) Over Four MWlon ($4,000,000,00) ten percent (10%) commission,
flentai commissions shall be computed by Continental and paid to Conway by the
-3-
20th of each month based upon the previous month's income and sales. Continental
shall submit with each payment•a statement of income and gains for the previous
Month, Continental agrees to maintain an accurate accounting of its Income and
gains at Conway and shall make the same available during business hours for
inspection and audit by Conway or its authorized auditors, accountants and re-
presentatives. All sums shall be paid at the address of the respective parties, or
at such other places as designated. Delinquent payments shall draw Interest at
the tato of 2%over the primo rate es.designated by the Continental National Bank
of Chicago, Illinois.
b. POSSESSION. Tenant shall be entitled to possession on the first day
of lila term-of this lease and shall yldld possession to the Landlord at the'thne
and date of the close of-this lease team, except as herein otherwise expressly
provided. I.
6. USH OF PREMISES. Tenant covenants and agrees during the term of
i
this agreement to use and our the, premises only for a convention and elvic
center and in conjunction with the Ito jai to be constructed. Tenant agrees to
make no changes in the existing structure without first securing the written
permission and consent of Landlord. IDuring the life of this agreement, Con
linantal agrees not to construct or duplicate Conway type facilities nor to di-
vert business or sales normally contemplated being hald In Conway.
7. QUIET ENJOYMENT. Landlord covenants that its estate in said promises
is in fee simple and that the Tenant on paying the rent herein reserved and
performing all the agreements by the Tenant to be performed as provided in this
agreement, shall and may peaceably have, hold and enjoy the demised promisee
for the term of this 16086 free from molestation, eviction, or disturbance by the
Landlord or any other'porsons or legal entity whatsoever. Landlord shall have
the right, however, to encumber all of its right, title, Interest in said premises
at any time without notice, subject, however, to this lease.
e. CARE AND MAINTENANCE OF r112MISES,
(a) Tenant takes said promises in their present condition without any
repairs or alterations by Landlord, Including all furniture, fixtures
and equipment owned by Landlord now on or in the premises.
(b) Landlord will keep the roof, structural part of the floor, walls
and other structural parte of the building in good repair,
(c)I Tenant shall, after taking possession of said promises and until
the termination of this lease and the actual removal from the premises;
at Its own expense, care for and maintain said premises in a reasonably
_4-
safe Find serviceable condition except for structural parts of the
building. Tenant will furnish Its own interior and exterior decor-
ating. Tenant will not permit or allow geld premises to be damaged
or depreciated in value by any act or negligence of the Tenant, Its
agents or employees. Without limiting the goneralt of the foregoing,
Tenant will make necessary repairs to the sewer, the plumbing, the
water pipes and electrical wiring, and Tenant agrees to keep faucets
closed so as to prevent waste of water and flooding of promises; to
,promptly take care of any leakage or stoppage In any of the water,
gas or waste pipes, The 'Tenant Wool; to maintain adequate heat to
prevent freezing of pipes. Tenant at Its own expense may Install
floor covering and will maintain such floor covering In good condition.
Tenant will be responsibiq for the plate glass In the windows of the
Iensed premises and for maintaining the parking area, driveways and
sidewalks on and abutting the leased premises. Tenant shall make
no structural alterations or Improvements without the written approval
of the Landlord first had and obtained, of the pland and specifications
therefor.
(d) Tenant will make no unlawful use of said promises and agrees to
comply with all valid regulations of the Doard of Health, City Ordi-
nances, the laws of the State of Iowa and the federal Government,
but this provision shall not be construed as creating any duty by
'Tenant to members of the'-goneral public. If Tenant, by the terms
of this lease is leasing premises on the ground floor, It will not
allow trash of any kind to•accumulate on said premises, in the halls,
If any, or the yard In.front, side or rear thereof, and It will remove
snow and ice and other obstacles from the sidewalk on or abutting
the premises.
9. UTILITIES, SERVICES, 11EATING 8 AIR CONDITIONING.
(a) Tenant, during the term of the lease, shall pay, before delinquency,
all charges for use of telephone, water, sewer, gas, haat; electricity,
power, air conditioning, garbage disposal, trash diaposel and not Ilm-
Ited by the foregoing all other utllltles and services of whatever ltfnd
and nature which may be used In or upon the demised premises.
(b) Janitor sorvice shall be furnished at the expense of Tenant.
(c) Air conditioning and heating equipment shall be initially furnished
and provided by Landlordl thereafter, ail air conditioning and heating
shall be furnished at the expanse of the Tenant.
10. SUBHUNDEII,OF PREMISES AT END OF TERM--REMOVAL OF FIXTURES,
(a) Holding Over, Tenant agrees that upon the termination of this
lease It will surrender, yield up and deliver the lensed premises in
good and clean condition, except the effects of ordinary wear and
tear and depreciation arising from lapse of time, or damage without
fault or liability of Tenant:
(b) Tenant may., at the expiration of the term of tills loose, or re-
newal or renewals thereof or at a reasonable time thereafter, if
Tenant Is not In default berounder, remove any fixtures or equipment
Which said Tenant has installed in the leased premises, providing
said Tenant repairs any and all damages caused by removal, and pro-
viding Landlord approves said removal In writing.
(c) Continued possession, beyond the expiratory date of the term of
tills lease, by the Tenant, coupled with the receipt Of the specified
rental by the Landlord (and absent a written agreement by both .
parties for an extetlslon of tills loose, or for a new lease) shell con-
stitute a month to month extension of this lease,
11. ASSIGNMENT AND SUBLUTTiNG. Any assignment of this lease or sub=
letting of the premises or any part thereof, without the Landlord's written
parmiselon shall, at the option of the andlord, terminate tills lease. Such
written Permission shall not be unreasonably withheld. The parties contemplate
Continental engaging It managing agent or general manager to manage the hotel,
and the possible assignment of this lease and agreement to a subsequent pur-
chaser or operator of the hotel. Landlord recognizes that Continental contem-
plates the collateral assignment of tills lease es additional security for first
mortgage flnHncing of i,he hotel, and hereby approves such assignment subject
only to the approval by landlord of the specific lender when named.
12. TAXES, Tenant agrees to timely pay all taxes, assessments or other
Public charges levied or assessed by lawful outhaxlty (but reasonably preserving
Tenant'd right of appeal) against its personal property. At the time of execution
Of tris lease, this real estate is presently exempt from assessment for real taxes.
Part of the consideration of this agreement Includes the continuing exempt status
Of this property from real estate taxation.
13. INSURANCE:.
(a) Landlord and Tenant will each keep Its respective property in-
ternsta In the premises and its liability in regard thereto, and the
personal property on the premises, reasonably Insured against
hazards and casualltes, that is, fire and those items usually covered
by extended coverage, and Tenant will procure and deliver to the
Landlord a certlficatton from the respective Insurance companlee to
that effect. Such insurance shall be made payable to tltie parties
hereto as their interest may appear, except that the Tenant's share
Of such insurance proceeds are hereby assigned and made payable
to the Landlord to secure rent or otherabligdtions then due and
owing Landlord by Tenant. Tenant Will maintain such Insurance on
a replacement value basis,
(b) Tenant will not do or omit the doing of any act which would
vitiate any Insurance rates in force upon the real estate Improvements
on the premises or upon any personal property of the Tenant upon•
which the Landlord by law'or by the terms of this 10480,• has or shall
have a lien,
(a) Subrogation rights are not to be walved unles8a special provision
la attached to this lease,
(d) Tenant further agrees to comply with recommendations of Iowa
Insurance Service bureau and to be liable for and to promptly pay,
ss If current rental,' any Increase in Insurance rates on said premises
and on the building of which amid premises are a part, due to Increased
risks or hazards resulting from Tenant's use of the promises otherwise
than as herein contemplated and agreed.
(e) Landlord 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 Landlord to
be used in payment for costs of repairs or restoration of damaged
building, if the destruction Is only partial.
14. INDEMNITY AND LIABILITY INSURANCE. Except as to any negligence
• fr � I
of the Landlord, arising out of roof end structural parts of the building, Tenant
will protect, Indemnify and gave harmless the Landlord from and against any
and all 1psg, ousts„ damage and o4anaes occasioned by, or arising out of,
any accident or other occurance causing or Inflicting Injury and/or damage
to any person or property, happening or done, In, upon or about the leased
promises, or due directly or indirectly to the tenancy, use or occupancy
thereof, or any part thereof by the Tenant or any person claiming through or
under the Tenant. The Tenant further covenants and agrees that it will at
Its own expense procure and maintain casualty and liability insurance In a
responsible company or companies authorized to do business in the State of
Ivwn, In an amount not less than $1,000,000.00 per occurance and #1,000,000,00
for any one accident, and with the limits of $250,000.00 for property damage,
Protecting the LandIvrd against such claims, demagog, costs or expenses on
account of injury to any persons or persons, or to any property belonging to
any person or persons, by reason of such casualty, accident or other happening
on or about the demised premises during the term thereof. Certificates 6r copies .
of said policies, naming the Landlord, and providing for fifteen (16) days' notice
to the Landlord before cancellation shall be delivered to the Landlord within
twenty (20) days from the date of the beginning of the term of this lease.
16. F111H AND CASUALTi-WPARTIAL DiisTRUCTION OF PnEMISPS.
(a) In the event of a partial destruction or damages of the lensed
Promises, which Is a bueinass Interference, that in, which prevents
the conducting of a normal businses operation and which damage Is
reasonably repairable within sixty (60) days after Its occurance, tills
lanae shell not termitinte but the rent for the leased premises shall
abate during the time of auuh business Interference. In the event
of partial destruction, Landlord shall repair such demagog within sixty '
(60) days of its occurance unless prevented from so doing by acts of
[hod, the elements, the pltblic enemy, strikes, riots, insurrection,
government regulations clt}turdinances, labor, material or tronapor-
tntion shortagos, or other causes beyond Landlord's reasonable control.
(b) Should the zoning ordinance of the City of Waterloo make It
Impossible for Landlord, using diligent and timely effort to obtain
necessary permits and to repair and/or rebuild so that Tenant is not
able to conduct its business on these premises, then guoh partial
destruction shalt be traited as it total destruction as in the next
paragraph provided,
(c) In the event of a destruction or damage of the lensed premises
hicluding 'the parking area so that Tenant is not able to conduct its
business on these promisee or then current legal use for which the
Promises are being used and which damages cannot be repaired within
sixty (6D) days this lease may be terminated at the option of either
the Landlord or Tenant, Such termination In such event shall be
effected by written notice of one party to the other,'within twenty
(20) dayralafter such destruction. Tenant shall surrender possession .
r r 1
-7-
Within
7-within tan (10) days after aucll notice laauea, and each party shall
be released from all future obligations hereunder, 'Tenant paying
rental pro rata only to the date of such destruction. In the event
Of such termination of this lease, Landlord at Its option, may re-
build or not, according to Its own wishes and needs.
18, CONDEMNATION.
(a) Should the whale or any part of the damised premises be con-
demned or taken by a competent authority for any public or quaal-
public use or purpose, (18011 party shall be entitled to retain, as Its
own property, any award payable to it. Or In the event that a
single entire award is made on account of the condemnation, each
party will than be entitled to take such proportion of said award as
may be lair and reasonable.
(b) If the whole, of the demised premises shall be eo condemned or
taken, the Landlord shall not be liable to the 'Tenant except and no
Its rights are preserved as above.
117. 'TERMINATION OF LEASE AND DEFAULTS OIC TENANT,
(a) This lease shall terminate upon expiration of t11e damlaud term;
or If this lease expressly and In writing provides for any option or
options,land If any such option is exercised by the Tenant, then this
lease will terminate at the expiration of the option term or terms. 0
Upon default in payment of rental herein or upon any other default
by Tenant In accordance with the terms and provisions of this lease,
this lease may at the Option of the Landlord be cancelled and forfeited,
PROVIDED, HOWEVER, before any such cancellation and forfeiture
except as provided in 17 (h) below, Landlord shall give 'Tenant a
written notice specifying the default, or defaults, and stating that
11,19 Iease will be cancelled and forfeited tan (10) days after the
giving of such notice, unless such default, or defaults, are remedied
within such grace period. As an additional optional procedure or as
an alternative to the foregoing (and neither,exclusive of the other)
Landlord may proceed with any legal or equitable remedy, .�
(b) In the event Tenant Is adjudicated a bankrupt or In the event
of a judicial sale or other transfer of Tenant's leasehold Interest by
reasomof 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 sot aside within ten (IB)
days from the giving of notice thereof by Landlord to Tenant, then
and in any such events, Landlord may, at its option, immediately
terminate tills lease, re-enter said premises, upon giving of ten
(10) days' written notice by Landlord to Tenant.
(c) In (a) and (b) above, waiver as to any default shall not con-
9titute a waiver of any subsequent default or defaults.
(d) Acceptance of keys, advertising and re-renting by tile Landlord
upon the'Tenant's default shall be construed only as an effort to
mitigate damages by the Landlord,and?rlot as an agreement to term
mate this lease.
I B. RIGHT OF,EITHER PARTY TO MAKE GOOD ANY DEFAULT OF TIIE
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 lease,
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
. i
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 as set forth in Paragraph 4, from date of advance.
1s. SIGNS.
(a) Tenant shall have the right and privilege of attaching, affix-
ing, painting or exhibiting signs on the leased premises, provided
only (1) that any and all signs shall comply with the ordinances of
the City of Waterloo and the laws of the State of Iowa; (2) such
signs shall not change the structure of the building; (3) such
signs 11 and when taken down shall not damage the building; and
(4) such signs shall be subject to the written approval of the
Landlord, which approval shall not be unreasonably withheld.
(b) Landlord during the last ninety(00) bays of thla lease, or
extension, shall have the right to maintain In the windows or on
the building or on the premisea either or both a "Por Rent" or
"Por Sale" sign and Tenant will permit, at such time, prospective
tenants or buyers to enter and examine the premises.
20: MECHANIC'S LIEN'S. Neither the Tenant nor anyone olalmtng by,
through, or under the Tenant, shall have the right to file or place any
mechanic's lien or other lien of any kind or character whatsoever, upon skid
promises or upon any building or improvements thereon, or upon the lease-
hold Interest of the Tenant therein, and notice is hereby given that no con-
tractor, sub-contractor, or anyone else who may furnish any material, service
or labor for any building, improvements, alteration, repairs or any part there-
of, shall at any time be or become entitled to any lien thereon, and for the
further security of the Landlord, the Tenant 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.
21. LANDLORD'S LIEN AND SECURITY INTEREST. Said Landlord shall
have, In addition to the Han given by law, a security interest as provided by
the Uniform Commercial Code of Iowa, upon all personal property and all sub-
stitutions therefor, kept and used bn said promises by Tenant. Landlord
may proceed at law or In equity with any remedy provided by law or by thAs
lease for the recovery of rent, or for termination of tide 1131,09 because of
Tenant's default in Its performance.
22. SUBSTITUTION OF EQUIPMENT, MERCHANDISE, ETC.
(a) The 'Tenant shall have the right, from time to time, during
the term df this Issue, or renewal thereof, to sell or otherwise
dispose of any personal property of the Tenant situated on the
said demieed premises, when in the judgment of the Tenant it
shall have become obsolete, outworn or unnecessary in
with the operation of the business on connectione,ld pramlaes; provided,
however, that the Tetem nant shall, in such Instance (unless no cub-
fortsuch items oflpersonaljg vpropertl st Its awn expanse, substitute
of, a new or other Item In substitution the190 reof,or cin like Or disposed ater
value and adapted to the affixed op$ratlan of the business upon
the demised premises,
( �ing herein contained
enent. shall be construed as denying to
1 nt the right to dispose of Inventoried merchandise in the
ordinary course of tite Tenant's trade or business,
(c) That attached hereto Is an nveAtory of
-andequipinent c ntatned In thelPromi es owned b meal property
23, i'11EV1OUS COMMITMpsNTs BY CONWAY y Conway.
The parties recagnize
that Conway has been used as a Civic and Community Censer by the City Of
vide for all previous
Waterloo, Iowa. • Continental agrees to apeclflcally honor and adequately pxO-
written agreements and commitments made by Conway.
for meeting and exhibitions ace according g to the attached scheduie. In
addition, Continental, shall at the beginning of each calendar year, submit to
Conway a schedule of rates to be charged for various meeting room rentals of
Conway. Conway shall have the right to approve
nizing that Conway has been a Civic and Comm nity Centerrates Continent Recvg-
to recognize the use according to thea � agrees
approved rate Schedule of Conway for and
by, but not limited to, the Junior Service League,
Flower WatelrIoo Cedar halls Symphony,
0Nomas Shaws, Chamber Of Commsrva and other local endeavors. To the
extent possible. Continental shall accomodate the scheduling of local vrgettiaetiona
for convention, meeting and entertainment purposes.
24. ACRIMMENT BETWEEN CONWAY 8 VBNDA ppOD3 INC. As part of
the consideration of this agreement, Conway shall execute all rights of purchase
In and to that certain agreement dated done 17, 1876, between Conway Civic
Center Board and Venda Foods, Inc.
Specifically in regard to Paragraph 14 (b)
Of said agreement. Said equipment shall,be included as part of the personal
property leased by Conway to Ccntlnentsl,
25. RIGHTS CUMULATIVE. The various rights, powers, option,. elections
and remedies of either party, provided In this lease, sh511 be construed as bumu-
1a;ive and no one of them as exclusive of the Others, or exclusive of any rights,
remedles or priorities allowed either party by law, and shall In no way affect or
impSir the right of eitherart
P y to pursue any other equitable or 18951 remedy '
to which either party may be entitled as long as any default.remains in any way
unremedled, unsatieAed or undischarged.
26, NOTICES AND DEMANDS, Noticee an provided for In this lapse
shall be given to the respective parties hereto at the respective addresses
designated on Page One of this lease unless elther party notified the other,
In writing, of a different address, Without prejudice to any other method
Of notifying a party In writing or making a demand or other communication,
such "7096096 shall be considered given under the terms of this lease when sent,
addressed as above designated, postage prepaid, by registered or certified
mail, return recelp; requested, by the United State mail and so deposited In
a United States mail box,
27. PROVISIONS TO BIND AND BENEFIT SUCCESSORS, ASSIGNS, ETC.
Each and everycovenant and agreement hereln contained shall extend to and
be binding upon the respective successors, heirs, administrators, executors
and assigns of the parties hereto,, except that if any part of We leas0 Is held
In joint tenancy, the successor in interest shall be the surviving joint tenant.
26. CHANGES TO BE 1N WRITING. None of The covenants, provielons,
terms or conditions of.this lease to pB kept or performed by Landlord or Tenant
shall be In any.tnanner modified, waived or abandoned, except by a written
instrument duly signed by the parties and delivered to the Landlord and Tenant.
Thls lease contains the whole agreement of the parties.
CONWAY IVIG CE TER B ARD
By
t
CITY OF WATERLOO
By
CONT EN L INVESTM T GROUP
STATE OF IOWA )
COUNTY OF BLACK HAWK)Be.
On this dor � _ day of July, 1ge2, before me, the'undersigned, s Notary
Public in and yr sa ounty, In said State, personally appeared Lou P, noolf and
Larry P• Burger, to me personaUy known, who, being by me duly sworn did say
th"t they are the Mayor and City Clerk, respectively, of said municipal corporation;
that the Goal affixed thereto Is the seal of sold municipal corporation; that sold
iristrumenl was signed and sealed on behalf of said municipal corporation by authority
of its Council; and that the said Lea P, llooff and Larry p, Burger as such officers,
acknowledged the execution of said instrument to be the voluntary Not and deed of sold
municipal corporation,- by It and by them voluntarily executed.
`N( cryu a an or a oun y
STATE OF IOWA )
COUNTY OF BLACK HAWK)
On this AUGUST
Public in and yr cath day ofYattlt, 1982, before me, the undersigned, a Notary
7�lTt'ounty, In said State, personally appearod Walter Cochran and
Nanny Sltirey, to me personally known, who being by me duly sworn, did say that
they are tite Chairman and Secretary, respectively, of the Conway Civic Cantor Board
executing the within and foregoing instrument to which this is attached, that no seat
Inns been procured by the said Conway Civic Center Board; that said instrument was
Signed on behalf of said board by authority of Its board; and that the said Waiter
Cochran and Nancy shires as such oftioare acknowledged the execution of said inatru-
ment to be the voluntary act indeed of Conway Chia Center Board, by It and by theta
voluntarily executed.
ianar 40'
s oun,
'. L.S.
STATE OF ILLINOIS)
COUNTY CF OftlA)es.
1,
County, to11:111,e a or acor a Notary Public In and for said
n p. Dtlney.
Burns, Jr„ rt Raymond
,:Backer,oGeneral Partners of Cothat ntinental al I ves ment Group,
don H.
an Illinois abed t Partnership, personally known to me to be the same persons whose names
are subscribed to the foregoing Instrument as such General Partners, appeared before
me this day in person and acknowledged that they signed end delivered the said
instrument as theirown free and voluntary not, and as the free and voluntary not of
said Partnership, for the uses and purpogee therein out forth.
Given under my hand and notarial goal thisa'
Z_day of July, 1982,
cry u a s ar a
�., .__................ ..........
r {
}
UORDERS NOTE: The attachments referred
to on page 9 are not attached and not a part •
of this instrument. James Lindsey of the INDEXED P�
Waterloo Community Development board has COMPARED o�
been made aware of this fact. PAGED
J HACK HAWK COUNTY, IOWA,SS
F NJ for rgcord-01Lq-1?P.4
• M, and reeera,a In
R�rnr�ry
1 o1pvl y
Fee ao '
. .
m4 247 rnc;755 . . . . .... ..__.�_..-._-- .--�--_.....
AGREEMMENT FOR SPACE IN PARKING DECK "A"
THIS AGREEMENT, made and entered into this _ (15i day of
qt!�%r< , 1983, by and between the City of Waterloo,
715 Mulberry Street, Waterloo, Black Hawk County, Iowa (hereinafter called
"City") ; and Continental Development Company, a partnership consisting of
John P, Dailey, Gordon E. Burns, Jr. , G. Raymond Becker, and Bill A.
Lanzotti, located at 1200 Peoria Savings Plaza, Peoria, Illinois (hereinafter
called "Continental").
WHEREAS, Continental owns and operates a hotel in Waterloo, Iowa,
at West Fourth and Commercial Streets, located across Commercial Street from
parking deck and ramp "A" (the existing parking ramp) owned by City on a
parcel of real property legally described on the attached Exhibit "A"; and
WHEREAS, Continental desires-to have the right to use the parking
facilities of the Citv for its hotel customers, guests, employees and patrons;
and
WHEREAS, City desires to assist Continental in the development and
operation of the hotel and the related lease and management of Conway Civic
Center.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties agree as follows:
1. City hereby grants Continental the right to use the regular parking
levels of the parking deck in ramp "A" located on the described premises, at
any and all times of the day and night, each and every day of the year, for the
parking of automobiles, subject to restrictions set forth herein:
a) Parking included under this agreement shall be only for
registered overnight guests of the hotel with appropriate validation of and for
each use by the hotel.
b) Additional spaces for other patrons of the hotel will be
available at the prevailing hourly or daily rates.
c) Spaces for employees of the hotel will be made available at
the prevailing hourly or daily rates sir on a monthly rental basis directly between
the hotel employee and the City or the parking deck and ramp "A" management
Continental shall have no responsibility for payment for any hotel employee parking
under an hourly, daily or monthly basis,
800f 254 pAu t'
d) All parking use and spaces under this agreement shall be on
the basis of space available and City shall have no responsibility to provide an
absolute number of spaces to Continental at any given time; City agrees to make
parking lot spaces avail,ble to Continental on a first-come use basis.
2. Continental shall be entitled to the use of the appurtenances serving
the parking deck and ramp "A", such as driveways. ramps, gates, doors, lighting
fixtures and equipment located within parking deck and ramp "A".
3, This AgreemEnt shall be for a term of thirty (30) years, commencing
on the 1st day of July, 1983, -rid ending on the 30th day of June, 2013.
4. Commencing July 1, 1983, Continental shall pay to City a rental
commission computed on the annual gross income of Continental at Conway Civic
Cenm% The gross income derived from Conway shall be computed on a monthly
basis ( t an accrual basis, in accordance with generally accepted accounting
principals consisting applied, and shall include all income received from all sources
as a result of the operation of Conway, including all net refunds, rebates, and recover
of items previously charged as an expense (after deducting therefrom necessary
expenses incurred in recovering such items, but not including any refunds, rebates
or recoveries of items not previously charged or deductible as an expense), The
proceeds of any insurance recovery arising from damages shall be included in
gross income but only as and when the repairs of sucli damage shall have been
completed, and then only to the extent that such proceeds exceed the costs of
such repairs, The gross income shall not include sales taxes or any other similar
tax imposed by Federal, State, County or Municipal Government. The annual
rental commission shall be one percent of the gross income and sales of Conway,
and shall be paid on a monthly basis. Rental commission shall be c nputed by
Continental and pais to the City by the 20th of each month based upon the
previous month's income and sales. Continental shall submit Witt; each payment a
statement of income and sales for the previous month. Continental agrees to maintain
an accurate accounting of its income and sales at Conway and shall make the same
available during business hours for inspection and audit by the City or its
authorized auditors, accountants ar ' representatives, All sump shall be paid at the
address of the respecti re parties, or at such other places as designated. Delinquent
payments shall draw interest at the rate of 2 percent ovbr the prime late as designated
by the Continental National Bank of Chicago. Illinois.
5. Possession, Conllitental shall be entitled to possession and use of
the parking facilities on the 1st (lay of July, 1983 and shall yield possession to
the City at the time and date of the close of this lease term, except as otherwise
254 na bl
r
-3-
provided in this agreement.
6. This agreement may be assigned and transferred by Continental
only as part of and included with the transfer of ownership or title in and to
the hotel and adjacent premises and the assignment of the lease between City
and Conway Civic Center Board and Continental for the Conway Civic Center
facilities, which lease was entered into by the parties March 24, I990. In event
of termination of its lease of the Conway Civic Center facilities between City,
Conway Civ-L Center and Continental dated March 24, 1980, an equitable rental
shall be established between the parties.
7. This ag.-eement constitutes the entire agreement between the parties,
and none of the terms or conditions shall be in any manner modified, waived or
abandoned except by a written agreement signed by both parties.
CITY OF WATERLOO CONTINENTAL DEVELOPMENT COMPANY
by: ' / by 1
Mayor
by-
e
ti
�• r r'
Ge:,eral Partners
4_3
;t
STATE r)F IrMA 1
ss
(701.NTY CF 81ACK VAWK 1
on this 7th day of November , 19 83 before me, the undersigned,
a Notary. Public in and for tt.e State of Iowa, personally appeared Leo P. Rooff and
Larry P. Burger to me personally known, who, being by me duly swern did say that they
are the Mayor and City Clerk, respectively, of said municipal corporation; that the
seal affixed thereto is the seal of said municipal corporations that said instrument
was signed and sealed on behalf of said municipal corporation by authority of its
Council; and that the said Leo P. Rooff and Larry P. Burger as such officers, acknow-
ledged the execution of said instrument to be the voluntary act and deed of said
municipal corporation, by it aro by them voluntzrLly executed.
William S. Smith Notary Public
in and for the State of Iowa
�m,�► 254 Pw€ U
-4-
STATE OF IOWA )
)ss.
BLACK HAWK COUNTY)
On this 7th day of Novemher, 1983, before me, the undersigned, a Notary
Public in and for the said County and State. personally appeared John P. Dailey,
a general partner of Continental Development Company. to mA known to be the
identical person named in and who executed the foregoing instrument, and
acknowledged that he executed the same as his voluntary act and deed.
f
William S. Smith, Notary Public�d Jnr thie
said County and State.
� J
�,�Y X54 viz[ bs
EXHIBIT "A"
PROPERTY PLAT
CITY OF WATERLOO
cddir®� 715 MULBERRY ST. WATERL0O, IA. 50703
I
eoa�4�c�¢4 �tt N
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I' - 100
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co
43
LEGAL' SWC' 202 FEET OF Trf SELr R FEE" SOT 25
5*l 2 FEET LOT 24 ANO
SWL'r LOT rEE7 OF THE NwLT 40 FEET LOT 2S
ALL 1,4 FRACTIONAL BLOCK S
OA16 AL PLAT CF WATERLOO WEST
INDEXED W
COMPA®
I~:,CloA7
U AC.K HAWK COUNTY,
nl*d for record ,.30 Ty
i'-= 2y„ P M. And recorded in
Record_-
D!F'LI1
e
X54 ��
cf v E b4
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AMENDMENT TO
LEASE AND MANAGEMENT AGREEMENT
The undersigned hereby amend the Lease and Management
Agreement entered into by and between them dated March 24 , 1980 ,
as follows :
1 . The premises known as "Conway Civic Center" or
"Conway" is hereby designated as "Five Sullivan Brothers
Convention Center" and said new designation is substituted in
lieu of the "Conway Civic Center" or "Conway" wherever the
terms appear in the Agreement.
2 . "City of Waterloo" is substituted for "Conway" in the
first line of Paragraph 3, the second and fourth lines of
Paragraph 4 , the last line on Page 2 , the third and fourth lines
of Page 3, and the sixth and seventh lines of Paragraph 5 .
3 . Effective as of the date this Amendment is signed the
rental provided for in Paragraph 4 is amended as follows :
(a) Gross income and sales up to One
Million ( $1, 000 ,000 . 00) four and
one-half percent ( 4 1/2%) commission;
(b) One Million ( $1 ,000 ,000 . 00 ) to Two
Million ( $2, 000 ,000 . 00) five percent
( 5% ) commission;
(c) Two Million ( $2, 000 , 000 . 00 ) to Three
Million ( $3, 000,000 . 00) six percent
( 6%) commission;
(d) Three Million ($3 , 000,000 . 00) to Four
Million ( $4 , 000 , 000 . 00) eight percent
( 8% ) commission;
( e) Over .Four Million ( $4 , 000, 000 . 00) ten
percent ( 10% ) commission.
4 . Paragraph 8 is amended as follows :
~ - 2 -
" {a} Certain maintenance and repairs having
recently been completed by Landlord,
Tenant takes said premises in its
present condition without any further
repairs or alterations by Landlord,
including all fixtures, furniture and
equipment owned by Landlord now on or
in the premises .
(b) Landlord will keep the roof, structural
parts of the floor, walls and other
structural parts of the building in
goad repair. Landlord will keep all
mechanical and electrical equipment,
walks, drives , planters , lighting and
signage in good repair.
(c) Landlord has provided certain
furniture, fixtures and equipment as
referred to in paragraph 22 (c) and
hereby agrees to continue to provide
same and repair or replace as
necessary. Tenant will furnish
additional audiovisual equipment and any
other or additional equipment it deems
necessary for the operation of the
facility and keep same in good repair.
(d) Tenant shall, after taking possession
of said premises and until termination
of this Lease and its actual removal
from the premises , at its own expense,
care for and maintain said premises in
a reasonably safe and serviceable
condition (except for the
responsibilities undertaken by landlord
herein) including, but not limited to,.
the following:
i, . Tenant will not permit or
allow the premises to be
damaged or depreciated in
value by any act of negligence
of the Tenant, its agent or
employees .
ii . Tenant will keep all faucets
closed as to prevent waste of
water and flooding of the
premises and will promptly
attend to, on an emergency
basis , any leakage or stoppage
in any water, gas or waste
pipes pending final repairs to
same.
3 -
iia. . . Tenant will maintain adequate
heat to prevent freezing of
pipes .
iv. Tenant will clean carpets and
floor coverings on a regular
basis keeping same in a first
rate condition of cleanliness
and promptly advise Landlord
of any need for repairs to
carpeting.
V. Tenant shall be responsible
for and perform all snow and
ice removable and related
sidewalk and surface
treatments and preparations .
vi. Tenant shall promptly remove
trash and litter from
adjoining sidewalks, driveways
and parking areas .
vii . Tenants shall make no
structural alterations or
improvements without the
written approval of the
Landlord.
viii . Tenant shall clean plate glass
and other window surfaces on a
regular basis ( inside and
out) , attend to closure or
protection of the building
upon breakage of plate glass
on an emergency basis pending
repairs of same (as provided
for in (e) (iii ) below) .
(e) Without limiting the generality of the
above Landlord agrees as follows with
regard to the leased premises :
i . Landlord will make the
necessary repairs to the
sewer, plumbing, water pipes
and electrical wiring.
ii . Landlord will maintain
presently installed floor
coverings and surfaces in a
good and serviceable condition
with the exception of tenants
responsibilities for weather
related maintenance and
cleaning as described in
paragraph 8 (d) above .
w 4 _
iii . Landlord will be responsible
for repair or replacement of
plate glass in the windows of
the leased premises .
iv. Landlord will maintain the
structural integrity of and
physical condition of the
.parking areas, driveways and
sidewalks on and abutting the
leased premises (but not
including weather related
maintenance) .
v. Any future remodeling or
redecorating shall be done at
landlords option and expense .
6 . Paragraph 9 (c) is amended as follows :
"9 (c) Air conditioning and heating equipment
shall be initially furnished and
provided by Landlord; maintenance and
upkeep for said equipment shall be
furnished by Landlord' s personnel, but
all expenses associated therewith
shall be paid by Tenant subject to the
following limitation. Tenant agrees
to pay a maximum of $12, 500 per year
for the first 12 months following the
signing of this Amendment and $12 , 500
for the second 12 months following the
signing of this Amendment for said
services . There will be no further
obligation on the part of Tenant to
pay or reimburse for said maintenance
thereafter although Landlord will
continue to provide for and be
responsible for said maintenance.
7 . Paragraph 14 is amended to add an additional sentence
at the end thereof as follows :
"The City of Waterloo shall be named
as an additonal. insured on each
policy referred to and required in
this Agreement. "
S . Paragraph 24 is deleted.
Dated this 3rd_ day of Feb"ary 1992 ..
E.
CITY OF WATERLOO D/B/A FIVE SULLIVAN BROTHERS
CONVENTION CE R
BY:
ITS • "
BY:
ITS : 0� kXd,6ze&
CONTINENTAL DEVELOPMENT COMPANY
By: Q
BILL LANZOTTI
J iBy: �"�----�
JO T. DAILEY
By:
. uox<
GORD N E. BURNS, JR.
B
G. BECKER
STATE OF IOWA )
)ss .
. COUNTY OF BLACK HAWK)
On this 3rd day of February 1992, before me,
the undersigned, a Notary Public in and for said County, in said
State, personally appeared Albert Manning, Jr. and Larry Burger,
,,`tome personally known, who, being by me duly sworn did say that
. they are the Mayor and City Clerk, respectively, of said
municipal corporation; that the seal affixed thereto is the seal
of said municipal corporation; that said instrument was signed
and sealed on behalf of said municipal corporation by authority
.,of its Council; and that the said officers acknowledged the
'execution of said instrument to be the voluntary act and deed of
said r'unicipal corporation, by it and by them voluntarily
executed. i
Notary Public In and for said
County
r a
t - 6 -
STATE OF -rGW* _ )
COUNTY OF
on this oZy day of �'�`=—J`'4` 1992..,, before me,
the undersigned, a Notary Public in and f said County, in said
State, personally appeared John P. Dailey, Gordon E. Burns, Jr. ,
G. Raymond Becker and Bill. Lanzotti, to me personally known, who
being by me duly sworn, did say that they are the General
Partners of Continental Development Company an Illinois
Partnership; and that said instrument was signed on behalf of the
partnership and the partners acknowledged the execution of said
instrument to be the voluntary act and deed of the partnership by
it and by the partners voluntarily executed.
455, a Public in and for said
County
M4Hry1 hrbti4�d i�oie
MY Commis�kn -29-95
I
r ` ltJ
. { u j669
�7 _� -rte
T
ASSIGNMENT AND ASSi.IMPTION AGREEMENT
THIS AGREEMENT is made and entered into as of this 16 day of Q G�iuG�c., I99/�by
WATERLOO CIVIC CENTERHOTEL COMPANY,L.P.,a Delaware limited partnership("Assignor")and WHLNB
REAL.ESTATE LIMITED PARTNERSHIP,a Delaware limited partnership("Assignee").
WITNESSETH:
WHEREAS,by Quitciaim Deed of even date Assignor has conveyed to Assignee all those certain
improvements known as"Waterloo Civic Center"as more particularly described on Exhibit A and attached hereto by
this reference(the"Property");and
WHEREAS, Assignor now desires to assign all of its right,title and interest in certain agreements
associated with the Property,to Assignee and Assignee has agreed to assume the obligations of Assignor thereunder;
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars cash in hand paid at and
before the sealing and delivery of these presents;the receipt and sufficiency of which are hereby acknowledged,the
parties agree as follows:
1. Assignor hereby assigns,conveys and transfers to the Assignee all of Assignor's right,title
and interest in and to the.following(the"Agreements"):
a. Lease and Management Agreement dated March 24, 1980 originally among the City of
Waterloo, its Conway Civic Center Board and Continental Investment Group
("Continental"), as amended by General Agreement dated November-7, 1983 (the"Civic
Center Lease"). The interest of Continental under the Civic Center Lease was assigned to
Waterloo Civic Center Hotel Company ("WCCHC") by Assignment dated November 1,
1983, and subsequently assigned by WCCHC to Assignor by General Assignment dated
September 15, 1994,effective September 23, 1994;and
b. Agreement dated November 7, 1983 for space in Parking Deck"A"originally between the
City of Waterloo and Continental Investment Group("Continental"),as amendedby General
Agreement dated November 7, 1983 (the "Parking Deck Agreement"). The interest of
Continental under the Parking Deck Agreement was assigned to Waterloo Civic Center
Hotel Company("WCCHC")by Assignment dated November 1, 1983, and subsequently
assigned by WCCHC to Assignor by General Assignment dated September 15, 1994,
effective September 23, 1994.
2. Assignor agrees to indemnify and hold Assignee harmless from and against all claims arising
out of the failure of Assignor to perform and discharge any of Assignor's obligations with respect to said Agreements
on or before the date hereof.
3. Assignee hereby accepts this Assignment and,from and after the date hereof,assumes and
agrees to perform and discharge all of Assignor's obligations arising from, in connection with, or related to the
Agreements from and after the date hereof. Assignee further agrees to indemnify and hold Assignor harmless from and
against all claims arising out of the failure of Assignee to perform and/or discharge all of Assignor's obligations with
respect to said Agreements from and after the date hereof.
Page 2,
IN WITNESS WHEREOF,the Assignor and Assignee have signed and sealed this instrument as of
the day and date first above written.
WATERLOO CIVIC CENTER HOTEL
COMPANY,L.P.,a Delaware limited partnership
By: Lincoln National Realty Corporation,
an Indiana corporation, its sole general partner
By: Lincoln Investment Management,Inc.,
an Illinois corporation,
Attorney-in-Fact
By:
Lawrence T.Kissko
Title:Vice President
WHLNB REAL ESTATE LIMITED
PARTNERSHIP,a Delaware limited partnership
By:
Title:
EXHIBIT A
Legal Description
CONSENT
The undersigned,City of Waterloo,Iowa,hereby consents to the execution of the preceding Assignment and
Assumption Agreement and the assignments,conveyances,and assumptions set out therein.
City4Wwaterloo,By:
Title
SATISFACTION OF MORTGAGE
THE NOTE secured by a Mortgage executed by CONTINENTAL
DEVELOPMENT COMPANY FORMERLY CONTINENTAL INVESTMENT
GROUP, an Illinois partnership, to the CITY OF WATERLOO, on the 30'' day of June,
1983, and recorded in CLM Book No. 539, Page No. 414 of the records of Black Hawk
County in the State of Iowa on the 19`h day of August, 1983, has been fully paid and
satisfied and such mortgage is hereby declared fully paid, satisfied and released.
IN WITNESS WHEREOF, John R. Rooff and Susan Fangman of said City of
Waterloo have hereunto signed their names and hereunto affixed the Seal of said City of
Waterloo, State of Iowa, this /7 day of December, 1996.
CITY OF WA 00,IOWA
BY:
Jn R. Doff, M or 1/0
BY:
Susan Fangman, City Uerk
STATE OF IOWA
COUNTY OF BLACK HAWK: ss
On the 17 0 day of December, 1996, before me, a Notary Public in and for the State of
Iowa, personally appeared John R. Rooff and Susan Fangman, to me personally known to
be the Mayor and City CIerk of said City, that the Seal affixed to said instrument is the
Seal of said City, and that said instrument was signed and sealed on behalf of said City by
authority of its City Council, and they acknowledged the execution of said instrument to
be the voluntary act and deed of said City, by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto signed by name and affixed by Notarial Seal
the day and year last written.
Nancy Edlert, Notary Public
in and for said County and State.
Commission expires: July 30, 1999
LOCALLY KNOWN AS: Fourth and Commercial,Waterloo, Iowa
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RELEASE AND SATISFACTION
COMES NOW the undersigned and hereby releases and fully satisfies the
Attomment and Non-disturbance Agreement dated the V day of.lune, 1995, and filed for
record 81 day of August, 1995, in Miscellaneous Record Book 316, at page 970 (316
MISC. 970) in the office of the Recorder of Black Hawk County, Iowa, by and among the
Waterloo Civic Center Hotel Company, L.P., landlord; the City of Waterloo, Iowa,
lender; and the Waterloo MSA Limited Partnership, a Delaware Limited Partnership,
tenant, concerning a mortgage and lease identified as follows: that certain mortgage
agreement which is dated the 30"' day of June, 1985, and filed for record on the 19`h day
of August, 1983, recorded in City Lot Mortgage Record Book 539, at page 414, (539
CLM 414) from the Continental Investment Group, a partnership to the City of Waterloo,
and concerning the principal amount of Eight hundred sixty thousand and no/100
($860,000.00) Dollars as amended by the provisions contained in an Agreement dated the
6`h day of December, 1978 and filed for record in Miscellaneous Book 230 at page 847
(230 MISC 847) by and among the above named parties.
CITY OF WATERLOO
By:
J of,
It's Mayor
By:
Susan Fangman, It' lerk
STATE OF IOWA )
COUNTY OF BLACK HAWK )ss
On this day of December, 1996, before me, a Notary Public in and for the
State of Iowa, personally appeared John Rooff and Susan Fangman, to me personally
known to be the Mayor and Clerk of said City, that the Seal affixed to said instrument is
the Seal of said City, and that said instrument was signed and sealed on behalf of said
City by authority of its City Council, and they acknowledged the execution of said
instrument to be the voluntary act and deed of said City, by it voluntarily executed.
Notary Pub is in and for the State of Iowa.
MODIFICATION AGREEMENT
This Modification Agreement is entered into as of May a� , 2005, by and between the City of
Waterloo,Iowa("City") and Watermark Hotel Equities, LLC, d/b/a Ramada Waterloo Civic and
Convention Center("Hotel").
RECITALS
A. City and Hotel, or their predecessors in interest, are parties to a certain Lease and
Management Agreement dated March 24, 1980 and subsequently amended pursuant to an
Amendment dated February 3, 1992 (collectively,the"Contract"). The Contract
establishes the terms of the parties' relationship with each other and their respective rights
and duties in relation to the facility known as "Five Sullivan Brothers Convention Center"
in Waterloo, Iowa(the"Center").
B. City and Hotel are parties to a letter of intent dated September 17,2004(the "Letter of
Intent"), which set forth general terms of agreement with respect to various matters
concerning the Contract and other agreements relating to the Center.
C. The parties desire to amend the Contract on the terms set forth herein in light of proposed
significant and costly environmental system upgrades for the Center to be performed by
City. Said improvements to the Center and modification of the Contract are expected to
be of material benefit to both parties. The parties furthermore desire to memorialize and
give effect to the specific terms they have negotiated based on the general terms and
commitments made in the Letter of Intent.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises exchanged herein and for other
consideration,the receipt and sufficiency of which is hereby acknowledged,the parties agree as follows:
1. Substitution of Party. The term"Continental" is hereby deleted and the term"Tenant"
substituted in lieu thereof in each of the following places in the Contract:
a. Paragraph 4; Lines 3, 4, and 5.
b. Paragraph 4; Lines 1,2, and 4 following the schedule of rental commissions.
C. Paragraph 6; Lines 5 and 6.
2. Paragraph 3. Paragraph 3 is hereby amended to delete the words "the thirty-first day of
December, 2013"therefrom and to substitute in lieu thereof"the thirty-first day of December, 2019."
3. Paragraph 8(d). Paragraph 8(d), and all subparagraphs thereunder, are hereby deleted in
their entirety and the following new paragraph 8(d)is substituted in lieu thereof:
(d) Tenant shall, during the term of this lease and until its actual removal from the premises,
at its own expense care for and maintain said premises in a reasonably safe and serviceable
condition(except for the responsibilities undertaken by Landlord herein), including but
not limited to the following:
i, Tenant shall not permit.or allow the premise.s.to.be.damaged or depreciated in value
by any act of negligence of the Tenant, its agents or employees.
ii. Tenant shall keep all faucets closed as to prevent waste of water and flooding of the
premises and will promptly attend to,on an emergency basis, any leakage or
stoppage in any water, plumbing, gas, or waste pipes pending final repairs to same.
Tenant shall clean all plumbing system drains and pipes.
iii. Tenant shall maintain adequate heat to prevent freezing of pipes.
iv. Tenant shall clean carpets, floor coverings, and floors on a regular basis, keeping
same in a first rate condition of cleanliness, and promptly advise Landlord of any
need for repairs to or replacement of flooring or floor coverings. Tenant shall also
perform other reasonable and necessary janitorial duties on the premises to maintain
the premises in first rate condition. Tenant shall furnish all necessary equipment,
chemicals, detergents, and supplies, subject to Landlord's duty to provide floor care
equipment as set forth in paragraph 8(e)(ii)below.
v. Tenant shall be responsible for removal of snow and ice and for related sidewalk and
surface treatments and preparations on the steps and under the overhang and shall
cooperate with Landlord in removing snow and ice elsewhere on the premises.
vi. Tenant shall promptly remove trash and litter from adjoining sidewalks, driveways,
and parking areas.
vii. Tenant shall provide, care for, and replace all china, glassware, silverware, and other
tableware for banquet or convention use on the premises.
viii. Tenant shall care for and maintain all tables, chairs, staging,dance floors, podiums,
and other furniture or accoutrements provided by Landlord for banquet or convention
use on the premises.
ix. Tenant shall furnish, care for, and repair or replace all stage or table skirting,table
linens,and other soft goods for banquet or convention use on the premises.
x. Tenant shall care for and clean any dishwashing machine provided by Landlord on
the premises and shall furnish all chemicals, detergents, and cleaning supplies
necessary for use of such machine.
xi. Tenant shall care for and clean all kitchen equipment and range hoods on the
premises and shall furnish all cleaning supplies necessary for same.
xii. Tenant shall care for all plants provided by Landlord on the premises, including but
not limited to watering, weeding, and cleaning.
xiii. Tenant shall clean plate glass and other window surfaces on a regular basis(inside
and out), attend to closure or protection of the building upon breakage of plate glass
on an emergency basis pending repair or replacement of same by Landlord.
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xiv. Tenant shall replace bulbs as necessary in all lighting fixtures.
xv. Tenant shall make no structural alterations or improvements without the written
approval of the Landlord.
xvi. Notwithstanding that this lease may assign specific responsibilities to Landlord,
Tenant shall be liable for any repairs or replacements to the premises and any
equipment, furniture, or fixtures therein or thereon that are necessary as a result of
damage caused by the negligent, reckless, or willful acts or omissions of Tenant, its
employees, agents,or contractors, or users, known or unknown,of the premises.
Tenant may, in its discretion, require security deposits from users of the premises to
protect Tenant in respect of its obligations under this paragraph.
4. Paragraph 8(e). Paragraph 8(e),and all subparagraphs thereunder, are hereby deleted in
their entirety and the following new paragraph 8(e) is substituted in lieu thereof-
(c)
hereof(c) Without limiting the generality of other provisions of this paragraph 8,Landlord agrees as
follows with respect to the leased premises:
i. Landlord shall make necessary repairs or replacements to the sewer, plumbing,water
pipes, lighting, and electrical wiring.
ii. Landlord shall repair and replace floor coverings and surfaces as necessary to
maintain them in good and serviceable condition, subject to Tenant's maintenance
and cleaning duties set forth in paragraph 8(d)(iv) above. Landlord shall furnish
floor care equipment for Tenant's use.
iii. Landlord shall remove snow and ice and provide related sidewalk and surface
treatments and preparations in areas where Tenant is not primarily responsible as
indicated in paragraph 8(d)(v)above. Snow shall be removed to a suitable location.
iv. Landlord shall furnish all tables, chairs, staging, dance floors, podiums, and other
furniture or accoutrements for banquet or convention use on the premises, subject to
Tenant's duties of care and maintenance as set forth in paragraph 8(d)(viii)above.
v. Landlord shall furnish and repair a dishwashing machine for Tenant's use on the
premises.
vi. Landlord shall furnish all kitchen equipment for Tenant's use on the premises, and
shall repair and maintain same.
vii. Landlord shall provide all plants for the premises and shall trim, replace, or replant
same as necessary, subject to Tenant's duties of care as set forth in paragraph
8(d)(xii)above.
viii. Landlord shall repair or replace plate glass in the windows of the premises
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ix. Landlord shall furnish, repair,.and maintain a sound system for Tenant's use on the
premises, provided,however,that any personnel of Tenant or its agents who will use
the system shall first be trained in proper use of the system to the satisfaction of
Landlord.
X. Landlord shall furnish, repair, and maintain forklifts and scissorlifts for use on the
premises.
xi. Landlord shall furnish, repair, and maintain all exterior signs on the premises.
xii. Landlord shall be responsible for all painting,wallpapering, and other wall
treatments.
xiii. Landlord shall maintain the structural integrity of and physical condition of the
parking areas,driveways, and sidewalks on and abutting the leased premises, subject
to Tenant's duties of weather-related maintenance as set forth in paragraph S(d)(v)
above.
5. Par__._,agraph 9. Paragraph 9 is hereby deleted in its entirety and the following new
paragraph 9 is substituted in lieu thereof:
9. UTILITIES, HEATING AND AIR CONDITIONING.
(a) As promptly as is practicable following execution of a modification agreement to
this lease, Landlord shall make or cause to be made extensive improvements to
heating, ventilation, and air conditioning systems and equipment(collectively,the
"Mechanicals")serving the premises. The Mechanicals shall be furnished and
maintained by Landlord. Landlord shall have sole right to determine, control, and
adjust all temperature settings and system controls for the Mechanicals in and on the
premises. Tenant agrees that it, its employees and agents, shall cooperate with
Landlord for optimal utilization of the Mechanicals, shall comply with all rules that
may be set or implemented governing use and operation of the Mechanicals, and shall
not do any act or thing to adjust, change,manipulate, or circumvent settings and
controls for the Mechanicals without the express prior consent of Landlord.
(b) During the term of the lease, Tenant shall pay, before delinquency, all charges for
use of telephone,water, sewer, garbage and trash disposal, and, not limited by the
foregoing, all other utilities or services of whatever kind and nature which may be
used in or upon the demised premises, except as otherwise provided in this Paragraph
9.
(c) Until the parties certify in writing that the Mechanicals are substantially installed
and operational(the"System Start Date"), Tenant shall pay, before delinquency, all
charges billed by a utility company for use of gas, electricity,power, heat,and air
conditioning(collectively, "Power Charges"). The parties shall jointly execute a
written instrument specifying the System Start Date,which instrument shall be
deemed an addendum to this lease. As soon as reasonably practicable on or after the
System Start Date,the accounts for Power Charges shall be transferred to,or
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terminated and reopened in,the name of Landlord. Commencing with the System
Start Date,Landlord shall pay on Tenant's behalf all Power Charges, and Tenant shall
pay to Landlord on or before the fifteenth(15th)day of each month thereafter an
amount(the"Utilities Payment")equal to ninety-five percent(95%)of the sum of(x)
plus(y)(the sum of(x)plus(y)is referred to as the"Historical Benchmark"), where
(x)and(y)are derived as follows.
(x)equals the product of(i)the price of each unit of natural gas charged to
Landlord by the utility company in the utility company's most recent billing
period as shown by the billing records of the utility company, and (ii)the
average number of units of natural gas actually used in the same calendar
month for the four years preceding the System Start Date.
(y) equals the product of(i)the price of each unit of electricity charged to
Landlord by the utility company in the utility company's most recent billing
period as shown by the billing records of the utility company, and(ii)the
average number of units of electricity actually used in the same calendar
month for the four years preceding the System Start Date.
The Historical Benchmark for each calendar month shall be fixed by the parties with
historical utilities usage information available to them as of the System Start Date, and
a schedule of Historical Benchmarks shall be prepared,executed by representatives of
each party, and attached as an addendum to this lease. No later than the fifth(5th)day
of each month,Landlord shall provide to Tenant in writing all data inputs necessary to
determine the Utilities Payment for that month, and Tenant shall complete a
calculation sheet substantially in the form attached hereto as Schedule 1. The parties
acknowledge that Tenant has all relevant historic power usage information preceding
the System Start Date, and that from and after the System Start Date the Landlord's
delivery of a copy of the most recent utility bill will provide all other necessary
information.
(d) Notwithstanding anything in Paragraph 9(d)to the contrary, commencing with the
System Start Date,Tenant agrees that the Utilities Payment shall equal one hundred
percent(100%)of the Historical Benchmark, and Landlord shall set aside into a
separate escrow fund(the"Utilities Escrow Fund") an amount equal to five percent
(5%)of sums received from Tenant hereunder, until such time as the balance of the
Utilities Escrow.Fund exceeds $25,000.00. Landlord shall notify Tenant in writing
when the Utilities Escrow Fund has a balance exceeding$25,000.00, at which time
Tenant shall pay to Landlord the amount determined under Paragraph 9(c)above. The
Utilities Escrow Fund shall be the sole property of Landlord and shall be used by
Landlord to cover any shortfall in payments received from Tenant pursuant to this
Paragraph 9. Landlord shall notify Tenant of any deductions made from the Utilities
Escrow Fund,and thereafter the Utilities Payment shall be adjusted to one hundred
percent(100%)of the Historical Benchmark until the Utilities Escrow Fund again
exceeds$25,000.00. If at anytime the balance in the Utilities Escrow Fund is
insufficient to cover any natural gas or electric utility bill that comes due, Landlord
may at its election either pay said bill to the extent of available monies in the Utilities
Escrow Fund or decline to pay said bill.
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(e) If any Utilities Payment is more than thirty(30)days in arrears for any reason,
Landlord may terminate or cause to be terminated natural gas and/or electrical services
to the premises. Tenant's duty to make Utilities Payments pursuant to this Paragraph
9 is absolute and shall not be compromised, abated, or excused for any reason,
including but not limited to the acts or omissions of a management company or any
other person with any responsibility for management of the premises. Tenant hereby
agrees to indemnify Landlord and to hold it harmless against any and all loss, costs,
damage, and expenses of any type or nature whatsoever occasioned by, or arising out
of,any condition, accident, or other occurrence causing or inflicting injury and/or
damage of any type or nature whatsoever to any person or property, happening or
done, in, upon, or about the leased premises, or due directly or indirectly to the
interruption of utilities services to the premises,regardless of whether such loss,costs,
damage, or expenses are suffered or incurred by Tenant or any other person, including
but not limited to persons renting the premises for special events or activities and
persons providing goods or services in connection with such events and activities.
Tenant acknowledges and agrees that Landlord shall not be liable or in any manner or
to any extent responsible to Tenant or any other person for any claims, demands,
losses, or causes of action in any way arising from or in connection with the
interruption of utilities services to the premises. Tenant's duty to indemnify Landlord
pursuant to this Paragraph 9(e) is in addition to any other duties of indemnification
provided for elsewhere in this Iease.
(f)Tenant shall not withhold from, hold back from, or set off against any Utilities
Payment any amount that Tenant claims is due it from Landlord or that in fact is due it
from Landlord. Any right or claim of setoff on the part of Tenant shall be handled
separately from and shall in no manner affect Tenant's duties in respect of Utilities
Payments pursuant to this Paragraph 9.
(g) Landlord shall have the option to terminate the method of handling Utilities
Payments as set forth in this Paragraph 9 if, in the exercise of its sole discretion, it
determines that said method is unsatisfactory or unworkable for any reason. Said
option is exercisable by Landlord for a period of thirty(30)days before the six-month
anniversary of the System Start Date and for a period of thirty(3 0)days before each
annual anniversary of the System Start Date. Landlord shall exercise said option, if at
all, by delivery of written notice to Tenant, and upon termination Tenant shall pay
directly all providers of natural gas and/or electric utilities for any billed Power
Charges. Said termination shall not affect any other provision or term of the lease.
(h) From each monthly Utilities Payment that Tenant makes to Landlord,Landlord
shall make payment in full to the utility company on its most recent unpaid bill. The
difference between the Utilities Payment for a given month and the actual bill for that
same month shall be retained by Landlord and applied to reimburse Landlord for its
costs and expenses in upgrading the Mechanicals for the benefit of Tenant, and shall
not be otherwise held or applied by Landlord to the account of Tenant or for Tenant's
benefit. The parties hereby agree that the total sum Landlord has expended for this
purpose and for which it shall be reimbursed is$495,716.00(the"Reimbursable
Sum"). Interest shall accrue on the Reimbursable Sum at the rate of three percent
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(3%)per annum,commencing with the System Start Date and continuing until
payment in full of the Reimbursable Sum and accrued interest. In addition to sums it
receives from Tenant that are applied against the Reimbursable Sum and interest,
Landlord shall apply against the Reimbursable Sum any and all rebates it receives
from the utility company or any other person in consideration of having made
upgrades to the Mechanicals. Within forty-five(45)days after the end of each
calendar year after the System Start Date,Landlord shall furnish to Tenant a written
report showing the application of payments to the Reimbursable Sum and accrued
interest and showing the remaining balance.
(i) Within thirty(30)days after Landlord has fully recouped the Reimbursable Sum
and interest accrued thereon,Landlord shall provide written notice to Tenant of this
fact. Thereafter,the Utilities Payment Tenant makes to Landlord for a given month
shall be an amount equal to the actual utility bill for that month, plus 50%of the
difference(the"Cost Savings"), if any, between the Historical Benchmark calculated
for that month and the actual bill for that month. This method of calculating the
Utilities Payment shall continue for a period of sixty(60)months following
Landlord's notice of recoupment, unless the arrangement between Landlord and
Tenant is sooner terminated pursuant to paragraph 9(g)above. Landlord shall use its
share of the Cost Savings received from Tenant for general fund expenditures directed
primarily toward projects and expenses aimed at increasing tourism and visitors to the
downtown area of the City of Waterloo. Within forty-five(45)days after the end of
each calendar year during said 60-month period, Landlord shall furnish to Tenant a
written report showing the manner in which Landlord has applied the Cost Savings
received for its intended use. At the end of said 60-month period,the parties shall
promptly cause the utilities accounts to be transferred into the name of Tenant, and
thereafter Tenant shall pay all utility bills directly to the utility company.
0) If the method of handling Utilities Payment as set forth in this paragraph 9 is
terminated by Landlord as permitted by the provisions of this paragraph 9,then within
sixty(60)days after Landlord fails to pay any bill for Power Charges or within five(5)
days after either party is notified that utilities to the premises will be shut off,
whichever occurs first,Landlord and Tenant shall cooperate to transfer the accounts
for Power Charges into Tenant's name and thereafter Tenant shall pay all utility bills
directly to the utility company.
6. Para_ raphh 11. Paragraph 11 is hereby deleted in its entirety and the following
new paragraph 11 is substituted in lieu thereof
11. ASSIGNMENT AND SUBLETTING. Any assignment of this lease or subletting
of the premises or any part thereof, without the Landlord's written permission shall, at the
option of the Landlord,terminate this lease. Such written permission shall not be
unreasonably withheld; provided,however,that in the event of a proposed assignment or
sublease to a company owning or operating a hotel/motel facility in Black Hawk County,
Iowa,or to a company owning more than a ten percent(10%)beneficial ownership interest
in any such company, or to a company that is affiliated with such a company through
common(i.e., more than fifty percent(50%))ownership or control, Landlord may condition
such permission upon execution of an agreement in which the proposed assignee or
7
sublessee agrees to make best efforts to give preference for scheduling of banquets,
conferences, large meetings, and similar group events to facilities in the leased premises
over like facilities in any facility owned, leased,or operated by the proposed assignee or
sublessee.
7. Paragraph 23. Paragraph 23 is hereby deleted in its entirety and the following new
paragraph 23 is substituted in lieu thereof:
23. RENTAL RATES.
(a) Tenant shall, at the beginning of each calendar year, submit to Landlord a schedule of
rates to be charged for various meeting room rentals of the premises. Landlord shall have the
right to approve such rates annually. To the extent possible, Tenant shall accommodate the
scheduling of local organizations for convention, meeting and entertainment purposes.
(b) The parties acknowledge that Tenant may, from time to time, provide meeting room space
at a reduced rate or at no charge to the user as an incentive to boost hotel room occupancy
rates. In connection with any meeting room booked at a rate less than the scheduled rate, and
solely for purposes of calculating the rental commission owed to Landlord pursuant to
paragraph 4,Tenant agrees that it shall show an entry on its books equal to the rate actually
charged for the meeting room, plus$10.00 for each hotel room occupied by each member of
the group that receives the benefit of the reduced cost meeting room. In no event shall Tenant
be obligated make an entry on its books that is more than the scheduled rate.
8. Due Authorization. Landlord and Tenant each represents and warrants to the other: (i)
that it has the legal power and authority to make the commitments set forth in this Modification
Agreement, (ii)that all requisite action on its part to duly and validly authorize and approve the terms of
this Modification Agreement to ensure their enforceability has been taken, and (iii)that the person or
persons signing this Modification Agreement on its behalf is/are duly authorized to execute and deliver this
Modification Agreement on behalf of the representing party. Tenant further represents and warrants to
Landlord that it is duly organized, validly existing and in good standing under the laws of the State of
Iowa.
9. No Partnership or Joint Venture. Nothing in this Modification Agreement shall, or shall
be deemed or construed to, create or constitute any joint venture,partnership, agency, employment, or any
other relationship between Landlord or Tenant nor to create any liability for one party with respect to the
liabilities or obligations of the other party or any other person.
10. Entire Agreement: Scope. This Modification Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof. Except as amended herein,the Contract shall
continue in full force and effect without modification.
11. Severability. In the event any provision of this Modification Agreement is held invalid,
illegal, or unenforceable, whether in whole or in part,the remaining provisions of this Modification
Agreement 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 Modification Agreement 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.
8
12. Binding_Effect. The provisions of this Modification Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective personal representatives, successors, and
assigns.
13. Headings and Captions. The title or captions of paragraphs in this Modification
Agreement are provided for convenience of reference only and shall not be considered a part hereof for
purposes of interpreting or applying this Modification Agreement, and such titles or captions do not define,
limit, extend,explain, or describe the scope or extent.of this Modification Agreement or any of its terms or
conditions.
14. Counterparts. This Modification Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF,the parties have executed this Modification Agreement as of the date
first written above.
LANDLORD TENANT
City of Waterloo,Iowa W otel W'tie
By. By:Timothy J.Hurl ayor Ro ert J. Cataer
Attest:_
Nancy Ec rt, Ci lerk
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