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HomeMy WebLinkAboutWaterloo Expo Services, Inc.-Expo Management Agreement-04.23.2009 ciltivt-ve) s°4 ) /160 avo', - 3 z'46 PUBLIC EXPO MANAGEMENT AGREEMENT This Public Expo Management Agreement (the "Agreement") is entered into as of Apr t \ a 3 , 2009, by and between Waterloo Expo Services Corp. ("WESCO") and the City of Waterloo,Iowa("City"). RECITALS A. City has constructed a public market and exposition area (the "Expo") for hosting events that will encourage the utilization of downtown Waterloo for a public events venue and that will have the effects of promoting tourism and supporting local businesses. B. WESCO is a nonprofit corporation that is willing and able to undertake essential management functions with respect to the Expo and events to be conducted at the Expo. 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. Lease of Expo. City does hereby lease to WESCO, subject to and on the terms and conditions set forth in this Agreement, and further subject to City's acceptance of site improvements not yet completed, the real property owned by City in the area generally bounded by Bluff Street on the Southwest, by W. 3rd Street on the Northwest, by Commercial Street on the Northeast, and by W. Park Avenue on the Southeast, and all improvements on said real property (the real property and improvement are collectively referred to as the "Expo Property"). The Expo Property includes the "public market" building but specifically excludes real property in the described area that is owned by private parties or that is dedicated as public street, sidewalks and right of way. WESCO agrees that it shall use the Expo Property, and shall allow same to be used, only for public markets, farmer's markets, expositions, concerts, displays, public events, and such other public and private purposes acceptable to City. City has not reviewed zoning or other applicable legal requirements or limitations imposed by any local, state, or federal governmental authority that may affect WESCO's use of the premises. WESCO shall conduct its own review of applicable law and shall be solely responsible for meeting all legal requirements, including but not limited to permits, licensure, or governmental approval. 2. Compensation to City. City acknowledges that it has developed and constructed the Expo to provide a community venue for open-air and large-scale events and to promote public use and revitalization of the downtown for the common good, and not primarily as a revenue generating enterprise for the City. From time to time during the term of this Agreement, the parties will negotiate with each other in good faith and will, in light of the overall financial results of Expo operations, agree on any rent to be paid to City for lease of the Expo Property. Because the Expo is a new enterprise and the parties presently lack certainty about its financial outlook, the parties agree that no rent is due and payable at least until such time as the Expo has a demonstrated record of financial viability. 3. Management Services. WESCO shall, at its own cost and expense, provide the following property management services to City with respect to the Expo Area and Expo assets. In providing such services, the objective of WESCO shall be to operate the Expo so that it is economically self-sustaining and to generate positive cash flow. WESCO may subcontract with other persons or entities for the delivery of services contemplated by this Agreement. A. Public market. WESCO shall enter subleases or other agreements for the rental of space in the public market building, on such reasonable terms as WESCO determines will serve the objectives of this Agreement, including but not limited to the retention of security deposits. WESCO shall include in each such agreement an obligation for the tenant to pay for its proportionate share of utility expenses (e.g., gas, electric, water, phone, cable) attributable to the public market building. Any lease having a term of more than one (1) year shall be subject to approval of the Waterloo City Council. The subleases described in this paragraph are the only authorized subleases that WESCO may enter into pursuant to this Agreement. B. Open-air events. WESCO shall enter contracts allowing persons and organizations to make limited short-term use of open-air portions of the Expo Property, on such reasonable terms as WESCO determines will serve the objectives of this Agreement. C. Event coordination. WESCO shall coordinate all events and other uses of the Expo Property in order to maximize use of the facilities but without conflict or overlap in scheduling D. Equipment rental. WESCO shall enter contracts allowing persons and organizations to make limited short-term use of WESCO's equipment. The rental terms, including but not limited to pricing, shall be subject to limiting provisions set forth in WESCO's bylaws. E. Contract of cooperation. It is expected that WESCO will enter into one or more contracts with City, Waterloo Development Corporation, Waterloo Convention and Visitors Bureau, Main Street Waterloo, and Waterloo Ramada Inn that will establish a coordinated system to facilitate utilization of the Expo Property by each of said entities. F. Liquor license. Procure and maintain a liquor license applicable to the Expo Property, and control all sale or distribution of alcoholic beverages on the premises. G. Compliance with laws. Comply with all applicable federal, state or local laws, regulations and ordinances applicable to the premises, including but not limited to anti-discrimination laws and ordinances on noise control and closure of streets. 2 4. Responsibilities of WESCO. In addition to performing the management services described in Section 3 above, WESCO shall be responsible to care for the Expo Property and to otherwise perform as set forth below: A. General. i. Provide all necessary security for the site, including but not limited to the public market building, and control site access. ii. Collect and properly dispose of all litter and debris within twenty- four (24) hours after each event, otherwise no less than once each week. This applies to the entire Expo Property and to public streets and sidewalks that border the Expo Property. iii. Make no structural alterations to any improvements on the premises without the prior consent of City. iv. Properly care for all plants provided by City on the premises, including but not limited to watering, fertilizing and weeding, unless otherwise specifically arranged with the Waterloo Leisure Services Department for said Department to undertake these duties. v. Make the Expo Property available for inspection by City at any time. vi. Obtain all necessary licenses, permits or governmental approvals necessary in connection with any use of the Expo, and comply with all terms and conditions of same. vii. Prepare and keep all books and records reflecting the business operation in accordance with generally accepted accounting principles applied on a consistent basis. viii. Provide reports as required by this Agreement to City's mayor and council addressing the finances and operations of WESCO. ix. Not permit or allow the Expo Property or any facilities to be damaged or depreciated in value by any act or omission of WESCO, its employees, consultants, contractors, or agents. x. Notwithstanding that this Agreement may assign particular respon- sibilities to City, WESCO shall be responsible for any repairs or replacements to the premises that may be necessary as a result of damage caused by the negligent, reckless or willful acts or omissions of WESCO, its employees, consultants, contractors or agents. B. Public market building. i. Remove snow and ice and apply related surface treatments to sidewalks and steps, unless otherwise specifically arranged with the Waterloo Leisure Services Department for said Department to undertake these duties. ii. Clean all interior and exterior window surfaces as needed, but no less than quarterly, and close and protect the building in the event of glass breakage,pending repair or replacement of same by City. 3 iii. Keep all faucets closed as to prevent waste of water and flooding of the premises, and promptly attend to, on an emergency basis, any leakage or stoppage of water,plumbing, gas or waste pipes. iv. Maintain adequate heat to prevent freezing of pipes. v. Clean all floors and floor covering on a regular basis, keeping same in a first-rate condition of cleanliness, and promptly advise City of any need for repair or replacement of flooring or floor coverings. vi. Provide other reasonable and necessary janitorial duties to maintain the premises in a first-rate condition. vii. Provide all necessary cleaning equipment, chemicals, and supplies. viii. Replace light bulbs in all lighting fixtures as necessary. C. Equipment. i. Obtain, by purchase or lease, such equipment as is reasonably necessary for the proper operation of the Expo, including but not limited to sound, lighting, staging, tents and other equipment, and maintain, repair or replace such equipment as necessary to preserve the condition of same and to ensure its proper functioning. ii.. Rent to third parties the business equipment of WESCO for the benefit of the Expo, consistent with limitations set forth in WESCO's bylaws. 5. Responsibilities of City. To the extent not in conflict with any performance responsibility of WESCO as set forth in Sections 3 and 4 above, City will be responsible to perform as set forth below: i. Repair, maintain and replace as necessary the structural parts of the public market building, which means the foundation, exterior walls, load bearing components of interior floors and walls, and the sidewalks, driveways and parking areas. ii. Remove snow and ice and apply related surface treatments, as necessary or prudent, to sidewalks, steps,parking areas, open spaces and other areas where WESCO is not primarily responsible under Section 4.B above. iii. Make all necessary repairs or replacements to utilities infrastructure, including but not limited to water, plumbing, sewer, ventilation, lighting and electrical systems. iv. Repair or replace flooring and floor coverings as necessary. v. Repair or replace plate glass in the doors and windows of the public market building. vi. Provide all plants for the premises and trim, replace or replant same as necessary. vii. Cooperate in good faith with any reasonable request from WESCO for a variance to noise ordinances or restrictions on street closures. viii. Pay all utility costs, except those for which tenants of the public market building are responsible pursuant to a rental agreement. 4 6. Handling of Net Revenues. For purposes of this section, "net revenues" means gross revenues from operations minus expenses. In recognition of WESCO's status as a non-profit corporation organized under Iowa law, WESCO agrees that it shall distribute no less than seventy percent (70%) of its net revenues for a given fiscal year to any combination of the City and other non-profit organizations that operate substantially to generate business for and to improve the downtown area of Waterloo. Any net revenues not required to be distributed may be retained by WESCO as a reserve to fund future operations. 7. Financial Reporting; Audit. WESCO shall provide to City, within thirty (30) days after the end of each calendar quarter, monthly and year-to-date financial statements, including but not limited to profit and loss statements and balance sheets. Upon request by City, WESCO shall provide financial reports more frequently that quarterly. City shall have the right and privilege of examining WESCO's books and records at its own cost and expense at any reasonable time and shall have the further right to audit said books and records at its own cost and expense upon thirty (30) days' advance written notice. 8. Indemnity. WESCO agrees to indemnify and hold harmless City, its officials, officers, employees, and agents, from and against any and all claims, demands, actions, causes of action and liabilities whatsoever, including but not limited to reasonable attorneys' fees and expenses, arising from or in any way connected with the acts or omissions of the WESCO, its officers, directors, employees, consultants, contractors, subtenants, or agents, (a) in renting, operating or managing the Expo or any part thereof, or (b) with respect to the rental, operation, repair, maintenance or performance of the equipment referenced in Section 4.0 above, or (c) causing damage to the Expo Property thereon, or (d) otherwise in performing its duties under this Agreement. 9. Insurance. A. Each party will each keep its respective property interests in the premises and its liability in regard thereto, and the personal property on the premises, reasonably insured against hazards and casualties: that is, fire and those items usually covered by extended coverage. B. WESCO further covenants and agrees that it will procure and maintain casualty and liability insurance in a responsible company or companies authorized to do business in the State of Iowa, in amounts not less than $1,000,000 for any one person injured, and $3,000,000 in the aggregate on an annual basis, and with limits of$500,000 for property damage. Such insurance shall cover liability arising from premises operations, independent contractors, personal injury, products, and completed operations and liability assumed under an insured contract, including but not limited to the activities of WESCO, its officers, directors, employees, consultants, contractors, subtenants, or agents. Certificates or copies of said policies, naming City as an additional insured, and providing for thirty (30) days' advance notice to City before cancellation, shall be delivered to City no later than first day of the term hereof. A renewal certificate shall be provided to City prior to expiration of any policy. C. WESCO will not do or omit the doing of any act which would vitiate any insurance, or increase the insurance rates in force upon the real estate improvements on the 5 premises or upon any personal property of the WESCO upon which City by law or by the terms of this Agreement, has or shall have a lien. D. WESCO further agrees to comply with recommendations of Iowa Insurance Services Office and to be liable for and to promptly pay, as if current rental, any increase in insurance rates on said premises and on the building of which said premises are a part, due to increased risks or hazards resulting from WESCO's use of the premises otherwise than as herein contemplated and agreed. E. Except as expressly stated to the contrary in this Agreement, subrogation rights are not waived. 10. No Assignment. Except to the limited extent stated in Section 3(A) above, WESCO may not assign or sublease its interest in this Agreement or the Expo Property without the prior written consent of City. 11. Term of Agreement. The term of this Agreement shall commence on the date hereof and shall continue until and including December 31, 2011. This Agreement shall automatically renew for any number of successive terms of two (2) years each, unless one party delivers to the other a written notice of non-renewal no later than September 30 of the year before the final year of the current term. For purposes of illustration only, a notice given no later than September 30, 2012 would cause the term of this Agreement to end, without renewal, as of December 31, 2013. 12. Termination for Cause. City may terminate this Agreement at any time for "cause"by delivery of thirty (30) days' advance written notice to WESCO. "Cause"means (a)the other party is in material breach of any term, condition, or provision of this Agreement and shall have failed to cure such breach within thirty (30) days of receipt of written notice thereof from City specifying the nature of the breach, or (b) acts of personal dishonesty by WESCO, its officers, directors, employees, consultants, contractors or agents, intended to result in substantial personal enrichment to WESCO or such person, willful and deliberate disregard for the interests of City that are done in bad faith, or illegal conduct causing injury to City. Waiver of any default is not a waiver of any other or subsequent default. Upon any termination of this Agreement, WESCO shall make available to City for City's collection and retention all books, records, licenses, permits, and other information then in WESCO's possession which are related to or necessary for the orderly and continued operation of the Expo. 13. Notices. Any notice under this Agreement shall be in writing and shall be delivered in person or by United States registered or certified mail, postage prepaid and addressed: WESCO CITY Waterloo Expo Services Corp. City of Waterloo, Iowa 715 Mulberry Street Waterloo, Iowa 5070 Waterloo, Iowa 50703 Attn: Attn: 6 Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, or(ii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid. 14. No Partnership or 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 City and WESCO nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 15. Severability. In the event any provision of this Agreement is held invalid, illegal, or unenforceable, whether in whole or in part, 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 provision of this 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. 16. Miscellaneous Provisions. This Agreement is binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This Agreement is the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior understandings or agreements relating to the subject matter hereof, whether oral or written, and this Agreement may not be modified except by the mutual written agreement of both parties. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Public Expo Management Agreement by their duly authorized representatives as of the date first set forth above. WATERLOO EXPO SERVICES CORP. CITY OF WATERLOO, IOWA By: By: Aaron Buz a, resident Timothy J. H 1 y Mayor Atte C�� Nancy kert ity Clerk 7 V 4