Approval of Five Flags Civic Center Management Agreement Amendment #1City of Dubuque
City Council
ACTION ITEMS # 9.
Copyrighted
August 4, 2025
ITEM TITLE: Approval of Five Flags Civic Center Management Agreement
Amendment #1
SUMMARY: City Manager recommending City Council approval of the
Five Flags Civic Center Management Agreement Amendment
#1.
SUGGUESTED Receive and File; Approve
DISPOSITION:
ATTACHMENTS:
1. Approval of Five Flags Civic Center Management Agreement Amendment _1
2. 25-8-4 MVM Civic Center Management Agreement Amendment 1
3. OVG360 Dubuque IA - Five Flags Mgmt Agreement Amend 1 eff. 8-4-25 - signed
4. 25-7-1 Civic Center Management Agreement City OVG Fully Executed
Page 1245 of 1311
Dubuque
THE CITY OF
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TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Approval of Five Flags Civic Center Management Agreement Amendment
#1
DATE: August 4, 2025
Interim Parks and Recreation Director Stephen Fehsal is recommending City Council
approval of the Five Flags Civic Center Management Agreement Amendment #1.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Mic ael C. Van Milligen
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Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Stephen Fehsal, Interim Parks and Recreation Director
Marie Ware, Acting Project and Facilities Manager
Assistant City Attorney Jason Lehman
Page 1246 of 1311
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TO: Michael C. Van Milligen, City Manager
FROM: Stephen J. Fehsal, Interim Parks and Recreation Director
SUBJECT: Approval of Five Flags Civic Center Management Agreement Amendment
#1
DATE: August 4, 2025
INTRODUCTION
The purpose of this memo is to request approval of Five Flags Civic Center
Management Agreement Amendment #1.
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OVG began operations of the Five Flags Civic Center on July 1, 2025. The liquor
licensing began moving forward right away as a new license had to be obtained in
OVG's name.
DISCUSSION
OVG's SVP & Deputy General Counsel Cait Burggraf alerted Assistant City Attorney
Jason Lehman and Acting Project and Facilities Manager Marie Ware late Friday of an
issue regarding the liquor license for Five Flags Civic Center. Burggraf reported the
following:
"The reviewing agent at the liquor board has flagged the following:
• Alcohol revenue is included in the definition of "Event Revenue",
• The City retains 100% of Event Revenue up to the benchmark and 90%
thereafter;
• As a result, the City retains 10% or more of alcohol revenue and must therefore
be listed as an owner on the liquor license.
Our liquor license will not be approved until this structure is revised. Please see below
the proposed next steps from our reviewing agent:
Page 1247 of 1311
The Iowa Alcohol & Tax Compliance Division has reviewed your
application for a Class C Retail Alcohol License App-219237 GLOBAL
SPECTRUM, L.P. DBA Five Flags Center
During our review, we identified one issue that requires your
attention.
On page 9 section 3.2 the lease shows there is a profit share of
10% of event revenue. The Iowa code requires any person or entity
with 10% interest or more to be listed as an owner. To correct this
please do one of the following:
1. Submit an ownership amendment on ELAPS with correct
percentages for Global spectrum and City of Dubuque.
This will need to be approved by the city, then will hit my
queue. Can take anywhere from a day to 3 months depending
on the city's approval process.
OR
2. Redefine "event Revenue" to exclude beer liquor and wine.
• This will go directly to me and will be reviewed by my team
lead.
***on the phone I told you changing the percentage to 9 would
work as well, however this would still require an ownership
amendment to correct Spectra's percentage. You can do this in the
future, but I would not recommend on this application.
In order to secure liquor license approval, we must revise the contract to (i) exclude
alcohol sales from the definition of "Event Revenue" and (ii) create a new category —
"Alcohol Revenue" —under which the City would receive 9.9%. While this is not a long-
term solution, amending the contract to reflect this structure would allow us to obtain the
license for an interim period.
Recognizing this interim revision would create an imbalance in fees paid to OVG, OVG
included language in the amendment providing that Alcohol Revenue will be held in
escrow pending a subsequent amendment that (i) reflects the final restructured deal, or
(ii) indicates the willingness of the City to be named as an owner on the liquor license.
This must be resolved Monday, August 4, in order for us to procure alcohol for the first
event on August 8. Assistant City Attorney Jason Lehman has reviewed the First
Amendment.
ACTION REQUESTED
I respectfully request approval of Five Flags Civic Center Management Agreement
Amendment #1.
Prepared by: Marie L. Ware, Acting Project and Facilities Manager
cc: Assistant City Attorney Jason Lehman
General Manager for Five Flags and Grand River Center Ryan Bonifas
2
Page 1248 of 1311
Page 1249 of 1311
FIRST AMENDMENT TO THE CIVIC CENTER MANAGEMENT AGREEMENT
This First Amendment to the Civic Center Management Agreement (this "First Amendment") is
effective as of August 4, 2025 (the "First Amendment Effective Date") between (i) Global Spectrum, L.P.
d/b/a Oak View Group, a Delaware limited partnership ("OVG"), and (ii) the City of Dubuque, Iowa, a
municipality organized under the laws of the State of Iowa ("Owner").
RECITALS
A. OVG and Owner are parties to that certain Civic Center Management Agreement dated as of
June 12, 2025, (the "Agreement") pursuant to which the Owner granted to OVG the exclusive right and
privilege to manage and operate the Five Flags Civic Center (the "Facility").
B. OVG and Owner desire to amend the financial terms of the Agreement for a limited period
while they engage in good faith negotiations to restructure the Agreement's financial terms, as further
described herein.
NOW THEREFORE, FOR VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, IT IS AGREED AS FOLLOWS:
1. Definitions. All of the defined terms and definitions set forth in the Agreement shall apply
to and are incorporated into this First Amendment, except that any modifications thereto and/or all other
defined terms and definitions set forth is this First Amendment shall apply.
2. Interim Financial Arrangements. The parties have agreed to renegotiate the financial
terms of the Agreement to ensure compliance with Iowa alcoholic beverage control laws (the
"Renegotiation Period"), and acknowledge that the adjustments set forth below are intended to apply only
on a temporary basis during this interim period. To account for any overage or differential in fees payable
to OVG during the Renegotiation Period, the parties agree that any amounts paid to OVG during the
Renegotiation Period that excess the amounts that would have been payable under the original Agreement
(the "Interim Fee Differential") shall be held in escrow and not disbursed or treated as earned income,
until the parties enter into another amendment to the Agreement establishing revised financial structure. At
that time, the Interim Fee Differential shall be disbursed in accordance with the terms of such amended
agreement. If no amendment is executed within 90 days following the First Amendment Effective Date,
the parties shall confer in good faith to determine a compliant disposition of the escrowed funds.
3. New Financial Terms. In accordance with the foregoing, during the Renegotiation Period,
the following terms shall apply:
• A new definition "Alcohol Revenue" shall be added to the Agreement and shall mean
gross revenue generated from OVG's sale of alcoholic beverages at the Facility less
expenses directly associated with the purchase of alcohol.
• Alcohol Revenue shall be excluded from the definition of Revenue, and consequently,
shall not be included in the definition of Event Revenue.
• OVG shall continue to receive its Fixed Management Fee as set forth in the Agreement.
• OVG shall retain 90.1% of all Alcohol Revenue resulting from the operation of the
Facility, and shall remit the remaining 9.9% to Owner.
• The Revenue Incentive shall not be calculated and paid during the Renegotiation
Period.
Page I of 3
Page 1250 of 1311
• Following the Renegotiation Period, the Interim Fee Differential shall be calculated in
accordance with the subsequent amendment and shall be paid out as agreed between
the parties.
4. Incorporation of Agreement. The modifications, amendments and additions to the
Agreement described herein, and the defined terms set forth in this First Amendment, shall be incorporated
into the Agreement as of the First Amendment Effective Date.
5. Continuation of Terms of Agreement. This First Amendment and the Agreement are to
be read together and in pari materia but to the extent of any inconsistency between any term of this First
Amendment and any term of the Agreement, the terms of this First Amendment shall control and prevail.
Except as otherwise specifically modified and amended by this First Amendment as of the First Amendment
Effective Date, all of the terms and conditions of the Agreement shall continue to be binding and effective.
6. Counterparts. This First Amendment may be executed in two or more counterparts, each
of which shall be considered an original.
7. Entire Agreement. This First Amendment constitutes the entire understanding of the
parties with respect to modifications and amendments described herein.
8. Applicable Law. This First Amendment shall be construed and interpreted in accordance
with the laws of the State of Iowa, without regard to conflict of laws.
9. Author i . The parties acknowledge, warrant and represent that each has the full right,
authority and power to enter into this First Amendment. The parties further acknowledge, warrant and
represent that the execution by the individuals noted below for such party, and the delivery and performance
by the parties of this First Amendment has been and/or shall be duly authorized by all necessary action of
the parties and no other action on the part of the respective parties is required in connection therewith and
that this First Amendment and each agreement, document and instrument executed and delivered pursuant
to this First Amendment constitutes, or when executed and delivered will constitute, valid and binding
obligations of the respective parties enforceable in accordance with their terms.
[Signature Page Follows]
Page 2 of 3
Page 1251 of 1311
ACCEPTED AND AGREED as of the First Amendment Effective Date:
GLOBAL SPECTRUM, L.P. THE CITY OF DUBUQUE, IOWA
By: Global Spectrum, LLC
its general partner
. gy• `2
By: Man RothenbeigiAug4, 202515:02:53 EDT)
Print Name: racow'nc\211
Name: Brian Rothenberg Print Title: Noi-
Its: President
Page 3 of 3
OVG360 Dubuque IA - Five Flags Mgmt
Agreement Amend 1 eff. 8-4-25
Final Audit Report 2025-08-04
Created: 2025-08-04
By: Cait Burggraf(cait.burggraf@oakviewgroup.com)
Status: Signed
Transaction ID: CBJCHBCAABAA5s3G9nCv16C9io8zGhnsOa4XAj1-OPnI
"OVG360 Dubuque IA - Five Flags Mgmt Agreement Amend 1 of
f. 8-4-25" History
Document created by Cait Burggraf(cait.burggraf@oakviewgroup.com)
2025-08-04 - 6:47:20 PM GMT
Document emailed to Brian Rothenberg (brian.rothenberg@oakviewgroup.com) for signature
2025-08-04 - 6:47:24 PM GMT
Email viewed by Brian Rothenberg (brian.rothenberg@oakviewgroup.com)
2025-08-04 - 6:54:13 PM GMT
Document e-signed by Brian Rothenberg(brian.rothenberg@oakviewgroup.com)
Signature Date: 2025-08-04 - 7:02:53 PM GMT - Time Source: server
O Agreement completed.
2025-08-04 - 7:02:53 PM GMT
0 Adobe Acrobat Sign
Page 1253 of 1
CIVIC CENTER
MANAGEMENT AGREEMENT
between
CITY OF DUBUQUE, IA
and
GLOBAL SPECTRUM, L.P.
d/b/a Oak View Group
Effective Date: June 12, 2025
Commencement Date: July 1, 2025
Page 836 of 1053
CIVIC CENTER
MANAGEMENT AGREEMENT
This Civic Center Management Agreement (the "Agreement") is entered into and made effective
as of the Effective Date, by and between the City of Dubuque, Iowa, a municipality organized under the
laws of the State of Iowa ("Owner"), and Global Spectrum, L.P., a Delaware limited partnership d/b/a Oak
View Group ("OVG").
RECITALS
WHEREAS, Owner owns a multi -purpose facility of approximately 50,000 square feet, consisting
of a 4,000-seat arena, a 711-seat historic performing theater, approximately 1,950 square feet of meeting
space, and a black -box theater of approximately 1,700 square feet, located at 405 Main St., Dubuque IA,
and currently known as the Five Flags Civic Center (the "Facility"); and
WHEREAS, the financial and operational success and maintenance of the Facility is of the highest
importance to the Owner;
WHEREAS, Owner has previously engaged OVG in connection with the management and
operation of its convention center facility, the Grand River Center, pursuant to the Management
Agreement between OVG and Owner, effective March 20, 2023 (the "Grand River Agreement");
WHEREAS, Owner desires to engage OVG to manage and operate the Facility on behalf and for
the benefit of Owner, and OVG desires to accept such engagement, pursuant to the terms and conditions
contained herein; and
NOW THEREFORE, for and in consideration of the foregoing, the mutual covenants and promises
hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following terms have the meanings referred to in this Section:
Affiliate: A person or company that directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, a specified person or company.
Agreement: This Civic Center Management Agreement, together with all schedules and exhibits
attached hereto, each of which is incorporated herein as an integral part of this Agreement.
Amendment shall have the meaning giving to such term in Section 17.2 hereof.
Assistant General Manager: The employee or, if applicable employes, of OVG acting as the on -
site full-time assistant general manager(s) of the Facility.
Bonds shall have the meaning given to such term in Section 17.1 hereof.
Page 837 of 1053
Buyout Amount shall have the meaning given to such term in Section 11.4 hereof.
Capital Expenditures: All expenditures for building additions, alterations, repairs, or
improvements, and for purchases of additional or replacement furniture, machinery, or equipment,
where the cost of such expenditure is greater than $5,000 and the depreciable life of the applicable item
is, according to generally accepted accounting principles, is in excess of one year. Beginning in the second
Operating Year, the dollar amount referenced in this paragraph shall be increased over the dollar amount
from the previous Operating Year in accordance with the percentage increase in the CPI over the previous
12-month period (i.e., the difference, expressed as a percentage, between the value of the CPI published
most recently prior to the commencement of the preceding Operating Year and the value of the CPI
published most recently prior to the commencement of the Operating Year for which the CPI adjustment
will apply).
Changes shall have the meaning given to such term in Section 17.2 hereof.
Code shall have the meaning given to such term in Section 17.1 hereof.
Commencement Date shall have the meaning ascribed to such term in the cover page of this
Agreement.
Commercial Rights: Naming Rights, pouring rights, advertising, sponsorships, the branding of food
and beverage products for resale, and, if applicable, any premium seating (including clubs, suites, and
party suites) at or with respect to the Facility and owned or controlled by Owner.
Commercial Rights Contracts: Any contracts for the purchase and sale of Commercial Rights,
which shall be in writing and duly executed by the parties thereto.
Commercial Rights Fee shall have the meaning given to such term in Section 3.3 hereof.
Commercial Rights Revenue: All revenue (including cash and trade, with such trade valued at its
retail price in an arms -length transaction) derived from the sale of Commercial Rights, including Naming
Rights.
Commercial Rights Services shall have the meaning given to such term in Section 2.1(c) hereof.
CPI: The "Consumer Price Index" for all urban consumers, Midwest region, all items, not
seasonally adjusted, as published by the United States Department of Labor, Bureau of Labor Statistics or
such other successor or similar index.
Effective Date shall have the meaning ascribed to such term in the cover page of this Agreement.
Emergency Repair: The repair of a condition which, if not performed immediately, creates an
imminent danger to persons or property and/or an unsafe condition at the Facility threatening persons or
property and was not the result of acts or omissions constituting gross negligence or willful misconduct
of OVG.
Page 2 of 43
Page 838 of 1053
Event Account: A separate interest -bearing account in the name of Owner and under Owner's
Federal ID number in a local qualified public depository, to be designated by Owner, where advance ticket
sale revenue is deposited by OVG.
Event Revenue: All Revenue generated from events at the Facility (including food and beverage,
audio-visual, decorating, rent, and other event -related revenue). For avoidance of doubt, Event Revenue
excludes revenues not reasonably attributable to individual events, such as Commercial Rights Revenue
and other miscellaneous revenues or income.
Event Revenue Benchmark: The Event Revenue Benchmark mutually agreed between the parties
in connection with the Operating Budget developed each year; provided the Event Revenue Benchmark
for the first Operating Year shall be $1,000,000, and in no event shall an Event Revenue Benchmark for
subsequent Operating Years be less than such amount.
Event of Force Majeure: An act of God or the public enemy; compliance with any order, rule,
regulation, decree, or request of any governmental authority or agency or person purporting to act
therefore; acts of war, public disorder, rebellion, terrorism, or sabotage; floods, hurricanes, or other
storms; strikes or labor disputes; pandemic or epidemic; or any other cause, whether or not of the class
or kind specifically named or referred to herein, not within the reasonable control of the party affected
and which by the exercise of due diligence could not be reasonably prevented or overcome.
Existing Contracts: Service Contracts, Revenue -Generating Contracts, and other agreements
relating to the day-to-day operation of the Facility existing as of the Commencement Date, as set forth on
Exhibit D attached hereto.
Facility shall have the meaning ascribed to such term in the Recitals to this Agreement, and shall
be deemed to include the entire civic center complex, including but not limited to the historic theater,
arena, black box theater, concession stands, meeting rooms, pre -function areas, common areas, lobby
areas, executive and other offices, storage and utility facilities, as well as the entrances and sidewalks
immediately surrounding the Facility and adjacent thereto, as identified on Schedule 1 hereto.
FF&E: Furniture, fixtures, and equipment currently in place or to be procured for use at the
Facility.
Fixed Management Fee: The fixed monthly fee Owner shall pay to OVG under this Agreement, as
more fully described in Section 3.1 of this Agreement.
Food and Beverage Services shall have the meaning given to such term in Section 2.1(b) hereof.
General Manager: The employee of OVG acting as the general manager of the Facility in a shared
position with Grand River Center.
Grand River Agreement shall have the meaning given to such term in the Recitals to this
Agreement.
Incentive Fees: The Qualitative Incentive and Revenue Incentive.
Indemnitee shall have the meaning given to such term in Section 14.3 hereof.
Page 3 of 43
Page 839 of 1053
Indemnitor shall have the meaning given to such term in Section 14.3 hereof.
Initial Term shall have the meaning given to such term in Section 4.1 hereof.
Laws: Federal, state, local, and municipal laws, statutes, rules, regulations, and ordinances.
Management -Level Employees: The General Manager, Assistant General Manager, and any
department head employed by OVG to perform services at the Facility (including, if applicable, employees
performing the functions of the Director of Finance, Director of Operations and Events, Director of Sales
and Marketing, and Director of Food and Beverage/Head Chef).
Marketing Plan: A plan for the advertising and promotion of the Facility and Facility events, which
may contain but not be limited to the following elements: (i) market research, (ii) market position, (iii)
marketing objectives, (iv) marketing strategies, (v) booking priorities, (vi) targeted events - local, regional,
national, and international, including meetings, conventions, and trade shows, (vii) industry advertising
campaign, (viii) internal and external support staff, (ix) advertising opportunities at the local, regional,
and national level, (x) attendance at various trade shows, conventions, and seminars, (xi) incentive
formulas for multiple event presenters, (xii) merchandising and retail, (xiii) food and beverage, (xiv) a plan
for the sale of commercial rights, including without limitation naming rights, pouring rights, advertising
signage, sponsorships (including event sponsorships), and branding of food and beverage products for
resale, (xv) a plan regarding national, regional, and local public relations and media relations, and (xvi)
policies regarding the use of trade/barter.
Naming Rights: The specific set of commercial rights to name the overall Facility and/or individual
rooms, halls, or other individual spaces within the Facility.
Negotiation Period shall have the meaning given to such term in Section 17.1 hereof.
Operating Account: A separate interest -bearing account in the name of Owner and under
Owner's Federal ID number in a local qualified public depository, to be designated by Owner, where
Revenue is deposited and from which Operating Expenses are paid.
Operating Budget: A line -item budget for the Facility that includes a projection of Revenues,
including Event Revenue, and Operating Expenses, including projected Fixed Management Fees and all
Incentive Fees, presented on a monthly and annual basis.
Operating Expenses: All expenses incurred by OVG in connection with its operation, promotion,
maintenance, and management of the Facility, including but not limited to the following: (i) employee
payroll, benefits, relocation costs, severance costs, bonuses, and related costs, (ii) cost of operating
supplies, including general office supplies, (iii) advertising, marketing, group sales, and public relations
costs, (iv) cleaning expenses, (v) data processing costs, (vi) dues, subscriptions, and membership costs,
(vii) printing and stationary costs, (viii) postage and freight costs, (ix) equipment rental costs, (x) repairs,
maintenance, and equipment servicing, (xi) security expenses, (xii) telephone and communication
charges, (xiii) reasonable travel and sustenance expenses of OVG employees, (xiv) cost of employee
uniforms and identification, (xv) exterminator, snow, and trash removal costs (xvi) computer, software,
hardware, and training costs, (xvii) parking expenses, (xviii) utility expenses, (xix) other office expenses
(for Facility -based offices), (xx) audit and accounting fees, (xxi) legal fees and costs, (xxii) all bond and
insurance costs (including but not limited to personal property, liability, and worker's compensation
Page 4 of 43
Page 840 of 1053
insurance, as well as the other insurance coverages required hereunder), including, without limitation,
the cost of any coverage deductibles, coinsurance requirements, or self -insured retention under insurance
policies, (xxiii) commissions and all other fees payable to third parties (e.g., commissions relating to food,
beverage, and merchandise concessions services and Commercial Rights sales), (xxiv) cost of complying
with any Laws, (xxv) costs incurred by OVG to settle or defend any claims asserted against OVG arising
out of its operations at the Facility on behalf of Owner; (xxvi) costs incurred under Service Contracts and
other agreements relating to Facility operations, (xxvii) Taxes, (xxviii) the Fixed Management Fee, (xxix)
costs to OVG for managing and/or performing the Food and Beverage Services, including employee -
related expenses, and (xxx) costs incurred in connection with the marketing and sale of Commercial
Rights.
The term "Operating Expenses" does not include debt service on the Facility, Capital Expenditures,
Transition Costs, property taxes, insurance on the Facility or Owner's property or contents within the
Facility, or the Incentive Fees, all of which costs shall be borne by Owner. Owner shall receive a dollar -for -
dollar credit on future Operating Budgets for the cost of any Operating Expense paid by Owner when such
cost, in whole or in part, is later recovered by OVG. This credit shall apply whether such costs were paid
using funds in the Operating Account or otherwise, and such credit shall be applied against one or more
payments due to OVG from Owner under this Agreement or shall be added to any one or more payments
due to Owner from OVG under this Agreement. (For example, if OVG pays an employee's relocation costs
from the Operating Account, and OVG later recovers all or a portion of those costs from or on behalf of
said employee (whether due to the employee's resignation or some other reason), Owner shall be entitled
to a credit equal to the amount recovered by OVG.) For avoidance of doubt, the foregoing right of offset
shall only apply during the Term of this Agreement, and Owner shall have no rights of recovery in
connection with such amounts following the Term.
Operating Year: Each 12-month period during the Term, commencing on July 1" and continuing
through the following June 301', with the first Operating Year to commence July 1, 2025, and concluding
June 30, 2026.
Operational Benchmark shall have the meaning given to such term in Exhibit B hereof.
Operations Manual: Document to be developed by OVG which shall contains terms regarding the
management and operation of the Facility, including detailed policies and procedures to be implemented
in operating the Facility, as agreed upon by both Owner and OVG.
OVG shall have the meaning given to such term in the opening paragraph to this Agreement.
OVG Capital Acquisition shall have the meaning given to such term in Section 11.3 of this
Agreement.
Owner shall have the meaning given to such term in the opening paragraph to this Agreement.
PCI Standards shall have the meaning given to such term in Section 18.1 hereof.
Private Use Requirements shall have the meaning given to such term in Section 17.1 hereof.
Qualitative Incentive shall have the meaning given to such term in Section 3.2 hereof.
Page 5 of 43
Page 841 of 1053
Renewal Term shall have the meaning given to such term in Section 4.1 hereof.
Revenue: All gross revenues generated by OVG's operation of the Facility, including but not
limited to event ticket proceeds income, rental and license fee income, merchandise income, gross food
and beverage income, gross income from any sale of Commercial Rights, gross service income, equipment
rental fees, box office income, and miscellaneous operating income, but shall not include event ticket
proceeds held by OVG in trust for a third party and paid to such third party.
Revenue -Generating Contracts: Vendor agreements, concessions agreements, merchandising
agreements, user agreements, rental agreements, booking commitments, licenses, and all other contracts
or agreements generating revenue for the Facility and entered into in the ordinary course of operating
the Facility.
Revenue Incentive shall have the meaning given to such term in Section 3.2. hereof.
Rev. Proc. shall have the meaning given to such term in Section 17.1 hereof.
Service Contracts: Agreements for services to be provided in connection with the operation of
the Facility, including without limitation agreements for ticketing, web development and maintenance,
computer support services, FF&E purchasing services, engineering services, electricity, steam, gas, fuel,
general maintenance, HVAC maintenance, telephone, staffing personnel (including guards, ushers, and
ticket takers), extermination, elevators, stage equipment, fire control panel and other safety equipment,
snow removal and other services which are deemed by OVG to be either reasonably necessary or
reasonably useful in operating the Facility.
Taxes: Any and all governmental assessments, franchise fees, excises, license and permit fees,
levies, charges, and taxes, of every kind and nature whatsoever, which at any time during the Term may
be assessed, levied, or imposed on, or become due and payable out of or in respect of (i) activities
conducted on behalf of Owner at the Facility, including without limitation the sale of concessions, the sale
of tickets, and the performance of events (such as any applicable sales and/or admissions taxes, use taxes,
excise taxes, occupancy taxes, employment taxes, and withholding taxes), or (ii) any payments received
from any holders of a leasehold interest or license in or to the Facility, from any guests, or from any others
using or occupying all or any part of the Facility.
Term shall have the meaning given to such term in Section 4.1 hereof.
Trailing Commercial Rights Commissions shall have the meaning given to such term in Section
3.3. hereof.
Transition Budget: The budget reflecting anticipated Transition Costs attached hereto, attached
hereto as Exhibit F, currently anticipated to be $68,800, with additional Transition Costs in excess of such
amount to be subject to the prior written approval of Owner, not to be unreasonably withheld.
Transition Costs: shall mean the out-of-pocket costs incurred, or to be incurred, by OVG in
connection with its activities related to the transition of management of the Facility to OVG, as set forth
in the Transition Budget, or as otherwise mutually agreed.
Page 6 of 43
Page 842 of 1053
ARTICLE 2
SCOPE OF SERVICES
Section 2.1 Engagement.
(a) Owner hereby engages OVG during the Term to act as the sole and exclusive
operator of the Facility, subject to and as more fully described in this Agreement, and, in connection
therewith, to perform the services described in Exhibit A-1 attached hereto.
(b) Owner hereby engages OVG (or its designee) during the Term to act as the sole
and exclusive food and beverage provider of the Facility, subject to and as more fully described in this
Agreement, and in connection therewith, to perform the services described in Exhibit A-2 (collectively,
the "Food and Beverage Services"), attached hereto. Owner specifically agrees that pursuant to Section
12.3, OVG shall be permitted to assign, subcontract, or otherwise sublicense all or any portion of its rights
and obligations in respect of the provision of such Food and Beverage Services, including, without
limitation to an Affiliate, subject to Owner's approval (which shall not be unreasonably withheld or
delayed).
(c) Owner hereby engages OVG (or its designee) during the Term to act as the sole
and exclusive representative for marketing of the Commercial Rights, including Naming Rights, subject to
and as more fully described in this Agreement, and in connection therewith to perform the services
described in Exhibit A-3 (collectively, the "Commercial Rights Services"), attached hereto. Owner
specifically agrees that pursuant to Section 12.3, OVG shall be permitted to assign, subcontract, or
otherwise sublicense all or any portion of its rights and obligations in respect of the provision of such
Commercial Rights Services, including, without limitation to an Affiliate, subject to Owner's approval
(which shall not be unreasonably withheld or delayed). Owner hereby acknowledges and agrees that OVG
is not guaranteeing any level of purchase of, or the receipt of payment for, any Commercial Rights
marketed by OVG pursuant to this Agreement, provided, however, that no such rights shall be given,
assigned, or sold for no or nominal consideration without the express written permission of Owner. All
Commercial Rights, including Naming Rights, are subject to approval by Owner's bond counsel.
(d) OVG hereby accepts such engagement, and shall perform the services described
herein, subject to the limitations expressly set forth in this Agreement and in the Operations Manual.
Owner shall not sell, assign, transfer, grant, or license to any other party any of the exclusive rights granted
to OVG pursuant to this Section 2.1.
Section 2.2 Limitations on OVG's Duties. OVG's obligations under this Agreement are contingent
upon and subject to Owner making available, in a timely fashion, the funds budgeted for and/or
reasonably required by OVG to carry out such obligations during the Term. OVG shall not be considered
to be in breach or default of this Agreement, and shall have no liability to Owner or any other party, in the
event OVG does not perform any of its obligations hereunder due to failure by Owner to timely provide
such funds.
ARTICLE 3
COMPENSATION
Section 3.1 Fixed Management Fee. In consideration of OVG's performance of its services
hereunder, Owner shall pay OVG a Fixed Management Fee. Beginning on the Commencement Date and
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continuing through the first Operating Year, the Fixed Management Fee shall be $8,750 per month
($105,000/Operating Year). Beginning in the second Operating Year, the Fixed Management Fee shall be
increased over the Fixed Management Fee from the previous Operating Year in accordance with the
percentage increase in the CPI over the previous 12-month period (i.e., the difference, expressed as a
percentage, between the value of the CPI published most recently prior to the commencement of the
preceding Operating Year and the value of the CPI published most recently prior to the commencement
of the Operating Year for which the CPI adjustment will apply). The Fixed Management Fee shall be
payable to OVG in advance, beginning on the Commencement Date, and payable on the first day of each
month thereafter (prorated as necessary for any partial months). OVG shall be entitled to pay itself such
amount from the Operating Account.
Section 3.2 Incentive Fees. In addition to the Fixed Management Fee, OVG shall be entitled
to receive the following Incentive Fees for each full or partial Operating Year of the Term (with such
Incentive Fees prorated for any partial Operating Years). The Incentive Fees, if earned, shall be paid to
OVG no later than 90 days following the end of each Operating Year.
• OVG shall be paid 10%of Event Revenue above the Event Revenue Benchmark (the "Revenue
Incentive").
• In addition, OVG shall be eligible to earn up to $45,000 each Operating Year for achievement
of the Operational Benchmarks as set forth on Exhibit B (the "Qualitative Incentive").
• The sum of the calculated annual Incentive Fees (Revenue Incentive plus Qualitative
Incentive) paid to OVG shall not exceed the annual Fixed Management Fee paid to OVG.
Section 3.3 Commercial Rights Fee. In consideration for OVG's marketing of the Commercial
Rights, OVG shall receive 15% of all Commercial Rights Revenue (the "Commercial Rights Fee"). The
Commercial Rights Fee shall be paid to OVG for all years of each Commercial Rights agreement secured
by OVG, including any years that extend beyond the end of the Term of this Agreement. The Commercial
Rights Fee due to OVG following the conclusion of the Term is referred to herein as the "Trailing
Commercial Rights Commissions". The Commercial Rights Fee shall be paid to OVG on a bi-annual basis,
on or about the last day of June and December each calendar year, and OVG shall be entitled to pay itself
such amount from the Operating Account upon providing documentation of such Commercial Rights Fee
to Owner. The parties shall also hold a settlement at the conclusion of the Term, at which time Owner
shall pay to OVG any portion of the Commercial Rights Fee due to OVG but not yet paid to OVG as of such
date (other than Trailing Commercial Rights Commissions). Following the conclusion of the Term, Trailing
Commercial Rights Commissions shall be paid to OVG either (at the election of Owner) (A) on an ongoing
basis during the term of any applicable Commercial Rights agreements, within thirty (30) days of Owner's
receipt of the corresponding Commercial Rights Revenue arising from any such agreements secured by
OVG, or (B) as a lump -sum payment calculated using the gross revenue reasonably expected from all
applicable Commercial Rights agreements, discounted to present value using a bank discount rate (based
on the primary rate as published by The Woll Street Journal on the date of calculation, or such other
reasonable rate agreed upon in writing by the parties). In connection with the Commercial Rights Fee and
Trailing Commercial Rights Commissions, Owner agrees (i) to maintain books and records in accordance
with generally accepted accounting practices, and (ii) to permit OVG to audit and inspect such books and
records during normal business hours and on reasonable advance notice, to confirm amounts due
hereunder, including, following the conclusion of the Term (as it relates to Trailing Commercial Rights
Commissions). To the extent any such audit reveals an underpayment Owner shall promptly pay OVG the
amount of the underpayment, and if such underpayment to OVG is greater than two percent (2%) of
amounts owed to OVG, Owner shall reimburse OVG for the reasonable costs of such audit. In the event
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OVG includes the value of any trade as part of the Commercial Rights Revenue, OVG shall, at the request
of Owner, provide reasonable evidence establishing the retail price in an arms -length transaction. The
terms in this Section 3.3 shall survive termination or expiration of this Agreement.
Section 3.4 Transition Costs. Promptly following the Effective Date (or prior to the Effective
Date, as applicable), OVG shall do all things reasonably necessary to transition from the current
management of the Facility to the commencement of its management services hereunder. Owner shall
reimburse OVG for the Transition Costs, in accordance with the Transition Budget. OVG shall invoice
Owner for such costs, and Owner shall pay such costs within 30 days of its receipt of each such invoice.
Each invoice to be provided by OVG shall be accompanied by reasonable back-up documentation
evidencing the incurrence of the Transition Costs.
Section 3.5 Late Payments. OVG shall have the right to assess interest on any payments of
the fees described in this Section that are not made when due, provided that such late payment is not
attributable to any act or omission of OVG. Such interest shall accrue at the rate of 6% per annum or the
maximum rate allowed by law, whichever is less. Interest shall only be applicable to amounts outstanding
for more than 30 (thirty) days.
ARTICLE 4
TERM; TERMINATION
Section 4.1 Term. While the Agreement shall be deemed effective as of the Effective Date,
the initial term of this Agreement (the "Initial Term") shall begin on the Commencement Date, and, unless
sooner terminated pursuant to the provisions of Section 4.2 below, shall conclude on June 30, 2030;
provided that the parties may mutually agree to extend this Agreement for an additional five-year period
through June 30, 2035 (the "Renewal Term") by written agreement on or before January 1, 2030. The
Initial Term and Renewal Term (as applicable) shall be referred to herein as the "Term."
Section 4.2 Termination. This Agreement may be terminated:
(a) by either party upon 60 days' written notice, if the other party fails to perform or
comply with any of the material terms, covenants, agreements, or conditions hereof, and such failure is
not cured during such 60-day notification period, provided, however, if such failure cannot reasonably
be cured within such 60-day period, then a longer period of time shall be afforded to cure such breach,
up to a total of 90 days, provided that the party in default is diligently seeking a cure and the non -
defaulting party is not irreparably harmed by the extension of the cure period; or
(b) by either party immediately by written notice upon the other party being judged
bankrupt or insolvent, or if any receiver or trustee of all or any part of the business property of the other
party shall be appointed and shall not be discharged within 120 days after appointment, or if either party
shall make an assignment of its property for the benefit of creditors or shall file a voluntary petition in
bankruptcy or insolvency, or shall apply for bankruptcy under the bankruptcy or insolvency Laws now in
force or hereinafter enacted, Federal, State or otherwise, or if such involuntary bankruptcy petition shall
be filed against either party and shall not be dismissed within 120 days after such filing.
(c) by Owner upon 18 months' written notice to OVG in the event Owner through a
majority vote of the City of Dubuque City Council (the "Council") enters into a binding agreement to sell
all or substantially all of the Facility, including the premises on which the Facility is located. Such notice of
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termination pursuant to this Section 4.3(c) shall be delivered to OVG in accordance with the notice
provisions set forth in Section 18.7 of this Agreement and shall specify the effective date of termination,
which shall be no less than eighteen (18) months from the date of such notice, and such notice shall be
dated on or after the date on which Council approves such sale pursuant to applicable law. During the
eighteen (18) month notice period, OVG shall continue to perform all obligations under this Agreement;
Owner shall continue to pay all fees and expenses due to OVG under this Agreement; and both parties
shall cooperate in good faith to ensure an orderly transition of management responsibilities. Owner's
decision to sell all or substantially all of the Facility shall be made in good faith and not for the primary
purpose of circumventing the Owner's obligations under this Agreement.
Section 4.3 Effect of Termination Upon termination or expiration of this Agreement for
any reason, (i) OVG shall promptly discontinue the performance of all services hereunder and peaceably
surrender the Facility to Owner, (ii) Owner shall promptly pay OVG all fees due OVG up to the date of
termination or expiration (subject to pro -ration if the Term ends other than at the end of the Operating
Year), (iii) Owner shall pay to OVG all Operating Expenses incurred by OVG through the end of the Term
that have not previously been paid, including costs of accrued but unused vacation time and other end of
employment payments due to OVG's employees whose employment is being terminated by OVG due to
the termination of this Agreement; (iv) Owner shall pay other reasonable costs incurred by OVG in
withdrawing from its provision of services at the Facility, including, without limitation, (1) to the extent
any Management -Level Employee's employment with OVG will cease concurrently with the termination
or expiration of this Agreement, Owner shall reimburse OVG for any severance paid to certain employees
in accordance with OVG's then -current employment policies, which have been provided to Owner, which
if this Agreement concludes on or before June 30, 2028, shall not exceed 3 months' salary, and if this
Agreement concludes after such date shall not exceed 6 months' salary for the General Manager, and any
Assistant General Manager(s), and regardless of when this Agreement concludes, shall not exceed 2
months' salary for any other Management -Level Employee for which this would apply, (II) reasonable
household relocation expenses for OVG's Management -Level Employees, but only to the extent any such
individuals had previously relocated to the Facility (or its surrounding areas) in connection with this
Agreement; provided that the foregoing (1) and (II) shall not be due if the Agreement is terminated by
Owner pursuant to Section 4.2(a) or 4.2(b), above, and (III) costs incurred in connection with termination
and/or assignment of Service Contracts and/or Revenue Generating Contracts, or other contracts or
leases entered into by OVG pursuant to this Agreement; (v) OVG shall make available to Owner all data,
electronic files, log -in information, social media accounts, passwords, maintenance records, documents,
procedures, reports, estimates, summaries, contracts, operations agreements, rental agreements, and
other such information and materials with respect to the Facility as may have been accumulated by OVG
in performing its obligations hereunder, whether completed or in process, and (vi) without any further
action on part of OVG or Owner, Owner shall, or shall cause the successor Facility manager to, assume all
obligations arising after the date of such termination or expiration, under any Service Contracts, Revenue -
Generating Contracts, Commercial Rights Contracts, booking commitments, and any other Facility
agreements entered into by OVG in furtherance of its duties hereunder. Owner's payment of such
expenses will occur only after OVG has provided reasonable evidence of the incurrence of such expenses.
Any obligations of the parties that are specifically intended to survive expiration or termination of this
Agreement shall survive expiration or termination hereof.
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ARTICLE 5
OWNERSHIP; USE OF THE FACILITY; FOOD AND BEVERAGE AREAS
Section 5.1 Ownership of Facility, Data, Equipment, and Materials. Owner will at all times
retain Ownership of the Facility, including but not limited to real estate, technical equipment, furniture,
displays, fixtures, website, social media accounts, intellectual property relating to the Facility, and similar
property, including improvements made during the Term, at the Facility. Any data, equipment, or
materials furnished by Owner to OVG or acquired by OVG as an Operating Expense shall remain the
property of Owner and shall be returned to Owner when no longer needed by OVG to perform under this
Agreement. Notwithstanding the above, Owner shall not have the right to use any third -party software
licensed by OVG for general use by OVG at the Facility and other facilities managed by OVG, the licensing
fee for which is proportionately allocated and charged to the Facility as an Operating Expense; such
software may be retained by OVG upon expiration or termination hereof; provided OVG exports Owner's
data and provides the same to Owner in a reasonably usable format Furthermore, Owner recognizes that
the Operations Manual to be developed and used by OVG hereunder is proprietary to OVG and shall
belong to OVG at the end of the Term; Owner shall not use or maintain copies thereof upon the end of
the Term; provided any Owner -owned material provided in connection with such Operations Manual shall
be retained by Owner.
Section 5.2 Right of Use by OVG. Owner hereby gives OVG the right and license to use the
Facility, and OVG accepts such right of use, for the purpose of performing the services herein specified,
including the operation and maintenance of all physical and mechanical facilities necessary for, and
related to, the operation, maintenance, and management of the Facility. Owner shall provide OVG with
a sufficient amount of suitable office space in the Facility and with such office equipment as is reasonably
necessary to enable OVG to perform its obligations under this Agreement.
Section 5.3 Observance of Agreements. Owner agrees to pay, keep, observe, and perform all
payments, terms, covenants, conditions, and obligations under any leases, bonds, debentures, loans, and
other financing and security agreements to which Owner is bound in connection with its ownership of the
Facility.
Section 5.4 Use by Owner. Owner shall have the right to use the Facility or any part thereof
for meetings, seminars, training classes, or other uses, with rates to be commiserate with published rates
provided by OVG, including Owner's responsibility for all expenses (such as the cost of food and beverage,
ushers or guards, ticket takers, set-up and take -down personnel, security expenses, and other expenses)
in connection with such use, and the parties agree to follow all relevant booking procedures for such use
as set forth in the Operations Manual. In the unlikely event of a city-wide emergency, Owner shall have
the right to use the Facility or any part thereof as an emergency shelter or other emergency purposes. If
OVG must cancel any event due to Owner's use of the Facility or any part thereof pursuant to this
paragraph, Owner shall reimburse OVG for (i) any direct expense, including but not limited to, the loss of
actual contractual rental of any event canceled due to such emergency use; and (ii) any actual out-of-
pocket expenses incurred by OVG and caused by such emergency use, including but not limited to clean-
up costs and food costs. All such reimbursements shall be limited to those expenses related to that portion
or portions of the Facility actually used by Owner for emergency purposes.
Section 5.5 Food and Beverage Areas. On the Commencement Date, Owner shall, at no cost
to OVG, provide for use by OVG a turnkey operation for the provision of Food and Beverage Services,
equipped with equipment, smallwares, and other tools of the trade reasonably required by OVG to
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provide the Food and Beverage Services at the level required by this Agreement. Owner and OVG shall
work together in good faith immediately upon the Effective Date to determine what, if any, additional
equipment is needed for OVG to provide the Food and Beverage Services. OVG shall have the exclusive
right to use (or permit a third party to use, as applicable) the concession stands, novelty stands, customer
serving locations, food preparation areas, vendor commissaries, storage facilities, and other food service
related areas of the Facility, together with the improvements, equipment, and personal property upon or
within such areas, for the purpose of providing the Food and Beverage Services (and providing other duties
required of OVG hereunder).
ARTICLE 6
PERSONNEL
Section 6.1 Generally. All Facility staff and other personnel shall be engaged or hired by OVG,
and shall be employees, agents, or independent contractors of OVG (or an Affiliate thereof) and not of
Owner. OVG shall select, in its sole discretion but subject to Owner's right to approve the Operating
Budget, the number, function, qualifications, and compensation, including salary and benefits, of its
employees and shall control the terms and conditions of employment (including without limitation
termination thereof) relating to such employees. OVG agrees to use reasonable and prudent judgment in
the selection and supervision of such personnel. OVG shall recruit and develop a customer friendly,
service -oriented, and well -trained labor workforce. Owner specifically agrees that OVG shall be entitled
to pay its employees, as an Operating Expense, bonuses, wages, and benefits in accordance with OVG's
then current employee manual, which may be modified by OVG from time to time, provided that OVG has
obtained Owner's prior written consent regarding the establishment of such bonuses, wages, and/or
benefits. A copy of OVG's current employee manual shall be provided to Owner upon request.
Section 6.2 General Manager and Assistant General Manager. Personnel engaged by OVG
will include an individual with managerial experience in similar facilities to serve as General Manager and
Assistant General Manager of the Facility. Hiring of the General Manager and Assistant General Manager
by OVG shall require the prior approval of Owner, which approval shall not be unreasonably withheld or
delayed; provided, however, in the event of a vacancy in the General Manager or Assistant General
Manager position, OVG may, upon notice to Owner, temporarily fill such position with an interim General
Manager or interim Assistant General Manager for up to ninety (90) days without the necessity of
obtaining Owner's approval. The General Manager and Assistant General Manager will have general
supervisory responsibility for OVG and will be responsible for day-to-day operations of the Facility,
supervision of employees, and management and coordination of all activities associated with events
taking place at the Facility.
Section 6.3 Non-Solicitation/Non-Hiring. During the Term and for a period of one (1) year
after the end of the Term, neither Owner nor any of its Affiliates shall solicit for employment any of OVG's
Management -Level Employees. In addition to the foregoing, during the Term and for a period of one (1)
year after the end of the Term, neither Owner nor any of its Affiliates shall hire for employment the
General Manager, and any Assistant General Manager(s), (or equivalent positions with different titles).
Owner acknowledges that OVG will spend a considerable amount of time identifying, hiring, and training
individuals to work in such positions, and that OVG will suffer substantial damages, the exact amount of
which would be difficult to quantify, if Owner were to breach the terms of this Section 6.3 by hiring or
soliciting for employment any of such individuals. Accordingly, in the event of a breach or anticipated
breach of this Section by Owner, OVG shall be entitled (in addition to any other rights and remedies which
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OVG may have at law or in equity, including money damages) to equitable relief, including an injunction
to enjoin and restrain Owner from continuing such breach, without the necessity of posting a bond.
Section 6.4 Allocation of Certain Personnel Costs. OVG shall use commercially reasonable
efforts to consolidate personnel expenses between the Grand River Center and the Facility. As a result,
the Owner acknowledges that OVG currently intends to provide certain services required to be provided
to the Facility hereunder with personnel employed by OVG at the Grand River Center, pursuant to the
Grand River Agreement, such as, for example, General Manager, finance, marketing, catering, operations,
and event coordination services. OVG, in coordination with Owner, shall determine fair and reasonable
allocation of such employee costs to be billed to each of the Facility and Grand River Center, which
allocation shall be consistent with the proportion of work any such employee performs in connection with
each venue. For avoidance of doubt, the final allocation of employee costs as Operating Expenses under
this Agreement or the Grand River Agreement, will be determined by OVG, in its reasonable discretion.
All such allocations, if any, shall be specifically identified in each budget or report contemplated by this
Agreement. The parties agree that the foregoing shall be incorporated into any amendment for the Grand
River Agreement to ensure that both budgets properly contemplate such allocations.
ARTICLE 7
OPERATING BUDGET
Section 7.1 Establishment of Operating Budget. Attached hereto as Exhibit C is the Operating
Budget for the first Operating Year, which Operating Budget is hereby approved by both OVG and Owner.
OVG agrees that at least 90 days prior to the commencement of each subsequent Operating Year, in
respect of such year, it will prepare and submit to Owner its proposed Operating Budget for such year.
Each annual Operating Budget shall include OVG's good faith projection of Revenues and Operating
Expenses, presented on a monthly and annual basis, for the upcoming Operating Year. Owner agrees to
provide OVG with all information in its possession reasonably necessary to enable OVG to prepare each
Operating Budget. Notwithstanding the foregoing, Owner shall have no duty to provide any information
which is subject to confidentiality agreements with third parties, which constitutes confidential or
proprietary information or trade secrets, or which is prohibited from disclosure by any applicable Laws,
but shall be solely responsible to the extent such information has a material impact on any applicable
Operating Budget (i.e., if withholding such information has prevented OVG from reasonably foreseeing an
expense, such expense shall be borne by Owner directly). Owner agrees that OVG may incorporate
proportional or shared Operating Expenses between OVG's management of the Grand River Center, and
the Facility, and shall acknowledge any such allocation on each of the prepared budgets, with final
allocations to be determined by OVG in its reasonable discretion based on proportional use of any specific
goods or services applicable to the foregoing.
Section 7.2 Approval of Operating Budget. Each annual Operating Budget shall be subject to
the review and approval of Owner, which approval shall not be unreasonably withheld or delayed. In
order for Owner to fully evaluate and analyze such budgets or any other request by OVG relating to
income and expenses, OVG agrees to provide to Owner such reasonable financial information relating to
the Facility as may be requested by Owner from time to time. If events occur during any Operating Year
that could not reasonably be contemplated at the time the corresponding Operating Budget was
prepared, OVG may submit an amendment to such budget for review and approval by Owner (which
approval shall not be unreasonably withheld or delayed). If Owner fails to approve any annual Operating
Budget (or any proposed amendment thereto), Owner shall promptly provide OVG the specific reasons
therefor and its suggested modifications to OVG's proposed Operating Budget or amendment in order to
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make it acceptable. The parties shall then engage in good faith discussions and use reasonable commercial
efforts to attempt to resolve the matter to the mutual satisfaction of the parties. For the avoidance of
doubt, any modified or amended Operating Budget is subject to final approval of Owner.
Section 7.3 Adherence to Operating Budget. OVG shall use all reasonable efforts to manage
and operate the Facility in accordance with the Operating Budget. However, Owner acknowledges that
notwithstanding OVG's experience and expertise in relation to the operation of facilities similar to
the Facility, the projections contained in each Operating Budget are subject to and may be affected
by changes in financial, economic, and other conditions and circumstances beyond OVG's control,
and that OVG shall have no liability if the numbers within the Operating Budget are not achieved. OVG
agrees to notify Owner as soon as reasonably practicable, but in no event within no more than 30 days,
of any significant change or variance in the bottom -line number in the Operating Budget (defined as a
variance of 15% or more), and any material increase in total Facility expenses from that provided for in
the Operating Budget. In either such case and if requested by Owner, OVG agrees to work with Owner to
develop and implement a plan (or changes to the then current plan) to limit Operating Expense to be
incurred in the remaining months of such Operating Year with the goal of achieving the Operating Budget.
Section 7.4 Preliminary Budget. In order to assist Owner with Owner's preparation of its
legally -required budgets, OVG shall provide Owner, by no later than December 15` of each year of the
Term of this Agreement, with a preliminary budget for the Operating Year commencing on the following
July V, with the ability to fully modify and update such budget prior to the final budget deadline of the
following March 15i. OVG shall use all reasonable efforts and its reasonable judgment to prepare each
such preliminary budget, but Owner acknowledges the projections contained in each such projected
budget are subject to and may be affected by changes in financial, economic, and other conditions
and circumstances beyond OVG's control, and that OVG shall have no liability if the numbers within the
preliminary budget are not achieved or utilized in the Operating Budget discussed above.
ARTICLE 8
PROCEDURE FOR HANDLING INCOME
Section 8.1 Event Account. To the extent the Facility hosts a ticketed event and collects
advance ticket sale revenue and/or admissions tax, OVG shall deposit, as soon as practicable following
receipt, in the Event Account all revenue received from ticket sales and similar event -related revenues
which OVG receives in contemplation of or arising from an event. All such monies shall be held in the
Event Account through the completion of the event. Such monies will be held in escrow for the protection
of ticket purchasers, Owner, and OVG, to provide a source of funds as required for payments to
performers and for payments of direct incidental expenses in connection with the presentation of events
that must be paid prior to or at the same time as such events. Promptly following completion of such
events, OVG shall transfer all funds remaining in the Event Account from such event, including interest
accrued thereon, into the Operating Account. Bank service charges, if any, on such Event Account shall be
deducted from interest earned before utilizing other funds in such Event Account.
Section 8.2 Operating Account. Except as provided in Section 8.1, all Revenue derived from
operation of the Facility shall be deposited by OVG into the Operating Account as soon as practicable upon
receipt (but not less often than once each business day). The specific procedures (and authorized
individuals) for making deposits to and withdrawals from such account shall be set forth in the Operations
Manual, but the parties specifically agree that OVG shall have authority to sign checks and make
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withdrawals from such account, subject to the limitations of this Agreement, without needing to obtain
the co -signature of an employee or representative of Owner.
ARTICLE 9
FUNDING
Section 9.1 Source of Funding. OVG shall pay all items of expense for the operation,
maintenance, supervision, and management of the Facility from the funds in the Operating Account,
which OVG may access periodically for this purpose. The Operating Account shall be funded with amounts
generated by operation of the Facility (as described in Article 8 above), or otherwise made available by
Owner. To ensure sufficient funds are available in the Operating Account, Owner will deposit in the
Operating Account, on or before the Commencement Date, the budgeted or otherwise approved
expenses for the month beginning on the Commencement Date. Owner shall thereafter, on or before the
first day of each succeeding month following the Commencement Date, deposit (or allow to remain) in
the Operating Account the budgeted or otherwise approved expenses for each such month. OVG shall
have no liability to Owner or any third party in the event OVG is unable to perform its obligations
hereunder, or under any third -party contract entered into pursuant to the terms hereof, due to the fact
that sufficient funds are not made available to OVG to pay such expenses in a timely manner. For all funds
in the Operating Account except those reserved for budgeted or otherwise approved expenses, Owner
shall have absolute discretion regarding whether such funds remain in the Operating Account or are
withdrawn by Owner, and Owner shall have no obligation to utilize any such funds for any particular
purpose.
Section 9.2 Advancement of Funds. Under no circumstances shall OVG be required
to pay for or advance any of its own funds to pay for any Operating Expenses. In the event that,
notwithstanding the foregoing, OVG agrees to advance its own funds to pay Operating Expenses, Owner
shall promptly reimburse OVG for the full amount of such advanced funds, plus interest at the rate of 6%
per annum, or the highest rate permitted by law, whichever is less. Interest shall only be applicable to
amounts outstanding for more than 30 (thirty) days.
ARTICLE 10
FISCAL RESPONSIBILITY; REPORTING
Section 10.1 Records. OVG agrees to keep and maintain, at its office in the Facility, separate
and independent records, in accordance with generally accepted accounting principles, devoted
exclusively to its operations in connection with its management of the Facility, including all related
contracts and supporting documentation. Such records (including books, ledgers, journals, and accounts)
shall contain all entries reflecting the business operations of OVG under this Agreement. Owner or its
authorized agent shall have the right to audit, inspect, and obtain copies (whether paper, electronic, or
both) of such records from time to time during the Term and for 3 years following the termination or
expiration of this Agreement, upon reasonable notice to OVG and during OVG's ordinary business hours.
OVG agrees to maintain such records, including all related contracts and supporting documentation, for a
period of at least 3 years following the termination or expiration of this Agreement.
Section 10.2 Monthly Financial Reports. OVG agrees to provide to Owner, within 30 days after
the end of each calendar month during the Term, financial reports for the Facility including a balance
sheet, aging report on accounts receivable, and statement of revenues and expenditures (budget to
actual) for such month and year to date in accordance with generally accepted accounting principles,
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provided however the first financial statement OVG shall provide shall be within 30 days following the
second calendar month of the Term, and shall cover the first two (2) calendar months of the Term. In
addition, starting with the second calendar month of the Term, OVG agrees to provide Owner a summary
of bookings for each such month, and separate cash receipts and disbursements reports for each event
held at the Facility during such month. Additionally, OVG shall submit to Owner, or shall cause the
applicable public depository utilized by OVG to submit to Owner, on a monthly basis, copies of all bank
statements concerning the Event Account and the Operating Account.
Section 10.3 Audit. OVG agrees to provide to Owner, within 120 days following the end of
each Operating Year, a certified audit report on the accounts and records as kept by OVG for the Facility.
Costs associated with obtaining such certified audit report shall be an Operating Expense of the Facility.
Such audit shall be performed by an external auditor approved by Owner and shall be conducted in
accordance with generally accepted auditing standards. Upon Owner's approval, in Owner's sole and
absolute discretion, such audit may be conducted in conjunction with Owner's annual audit. The 120-day
deadline referenced in this Section 10.3 shall be waived if the audit required hereunder is conducted in
conjunction with Owner's annual audit.
Section 10.4 Internal Controls. Owner shall have the right to conduct an annual review of
OVG's internal controls and procedures related thereto. Such review may be conducted by Owner or
Owner's third -party designee, as determined by Owner. Owner shall provide reasonable advance notice
to OVG of the timing of any such review and shall work with OVG to minimize the impact of each such
review on OVG's operations.
Section 10.5 Booking. Promptly following the Commencement Date, the parties shall mutually
agree on a booking policy in connection with the Facility, which shall form the basis for all event bookings
sought and confirmed by OVG under this Agreement.
ARTICLE 11
CAPITAL IMPROVEMENTS; OVG CONTRIBUTION
Section 11.1 Schedule of Capital Expenditures. OVG shall annually, at the time of submission
of the annual Operating Budget to Owner, provide to Owner a schedule of proposed capital improvements
to be made at the Facility, covering five (5) Operating Years beginning on July 1" following submission of
the Operating Budget, for the purpose of allowing Owner to consider such projects and to prepare and
update a long-range Capital Expenditure budget.
Section 11.2 Responsibility for Capital Expenditures. Owner shall be solely responsible for all
Capital Expenditures at the Facility; provided, however, Owner shall be under no obligation to make any
Capital Expenditures proposed by OVG, and provided further that OVG shall have no liability for any
claims, costs, or damages arising out of a failure by Owner to make any Capital Expenditures.
Notwithstanding the foregoing, OVG shall have the right (but not the obligation), upon notice to Owner,
to make Capital Expenditures at the Facility for Emergency Repairs. In such event, Owner shall reimburse
OVG for the cost of such Emergency Repair/Capital Expenditure within 30 days of Owner's receipt of the
invoice and other supporting documentation (as may be reasonably requested by Owner) from OVG. The
Owner shall reimburse OVG for the full amount of the repair for repairs over $5,000 and under $50,000.
Any repair, whether an Emergency Repair or otherwise, which exceeds or is reasonably anticipated to
exceed $50,000 must be approved by Owner, which approval shall not be unreasonably withheld or
delayed.
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Section 11.3 OVG Capital Improvements. OVG shall make a capital contribution of $150,000
(the "OVG Capital Acquisition") at the Facility for targeted event programming, marketing enhancements,
and other capital equipment dedicated to the Facility or other revenue generating initiatives, as mutually
agreed by Owner and OVG. If applicable, the location for any improvements or installation of equipment
shall be mutually agreed in advance. The OVG Capital Acquisition shall be made during the first Operating
Year and once identified, the specific equipment and other related tangible personal property to be
purchased with the OVG Capital Acquisition shall be set forth in a writing to be signed by the parties and
updated by the parties from time to time as necessary to reflect any replacements or substitutions
thereof. All equipment, improvements, and other items purchased with the OVG Capital Acquisition,
including any replacements or substitutions thereof, shall be owned by OVG until payment of the Buyout
Amount (as described below), and Owner agrees to execute such documents as OVG shall reasonably
request evidencing OVG's ownership interest in such improvements and equipment, including financing
statements. For the sake of clarity, nothing in this paragraph shall be construed as requiring OVG to
replace any equipment or other personal property at its own cost.
Section 11.4 Buyout Amount. The OVG Capital Acquisition shall be amortized on a straight-line
basis over a ten-year period (at the rate of 1/120 per month), commencing on the Commencement Date.
Within 5 days of the expiration or early termination of this Agreement (for any reason whatsoever,
including without limitation if due to a breach, default, or bankruptcy event by or affecting OVG, or if the
parties do not mutually agree to the Renewal Term), Owner shall immediately pay to OVG the
unamortized amount of the (the "Buyout Amount"). In the event that Owner fails to pay OVG the Buyout
Amount when due, the Buyout Amount shall accrue interest at the rate of 6% per annum, or the highest
rate permitted by law, whichever is less.
Section 11.5 Title to Improvements and Investments. Owner covenants and agrees not to
permit any liens or encumbrances to attach to the leasehold improvements and equipment purchased
with the Investment, and hereby waives any right to attach any claim, lien, or attachment to such
improvements or equipment. Once the Investment is fully amortized or the Buyout Amount is paid in full
to OVG, title to the equipment and improvements purchased with the Investment will become vested in
Owner, and OVG agrees to execute all necessary documents to evidence same. The rights of OVG set
forth in this Section shall be in addition to any other rights of OVG at law or in equity.
ARTICLE 12
FACILITY CONTRACTS; TRANSACTIONS WITH AFFILIATES
Section 12.1 Existing Contracts. Owner shall use its best efforts to provide to OVG, on or
before the Commencement Date, copies of all Existing Contracts, a list of which will be attached to this
Agreement as Exhibit D; provided that to the extent Owner does not provide any Existing Contract, OVG
shall not be required to administer or otherwise comply with such Existing Contract and shall be relieved
of any liability relating thereto. Except as provided for in the preceding sentence, OVG shall administer
and assure compliance with such Existing Contracts.
Section 12.2 Execution of Contracts. OVG shall have the right to enter into Service Contracts,
Revenue -Generating Contracts, Commercial Rights Contracts, and other contracts related to the
operation of the Facility, as agent on behalf of Owner and subject to the terms of this Agreement; provided
all Commercial Rights Contracts involving Naming Rights shall be subject to the prior written approval of
Owner, in Owner's sole and absolute discretion. Any such material agreements shall contain standard
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indemnification and insurance obligations on the part of each vendor, licensee, or service provider, as is
customary for the type of services or obligations being provided or performed by such parties. OVG shall
obtain the prior written (email shall be sufficient) approval of Owner before entering into any contract
with a term that expires after the Term of this Agreement, unless such contract, by its express terms, can
be terminated by OVG or Owner following expiration of the Term without any penalty.
Section 12.3 Transactions with Affiliates. In connection with its obligations hereunder relating
to the purchase or procurement of services for the Facility (including without limitation, the Food and
Beverage Services, ticketing services, Commercial Rights Services, web design and graphic design services)
OVG may purchase or procure such services from, or otherwise transact business with, an Affiliate of OVG,
provided that the prices charged and services rendered by such Affiliate are competitive with those
obtainable from any unrelated parties rendering comparable services. OVG shall, at the request of Owner,
provide reasonable evidence establishing the competitive nature of such prices and services, including, if
appropriate, competitive bids from other persons seeking to render such services at the Facility. Prior to
entering into any transaction subject to this Section 12.3, OVG shall obtain the written consent of Owner,
which shall not be unreasonably withheld or delayed.
ARTICLE 13
AGREEMENT MONITORING
Section 13.1 Contract Administrator. Each party shall appoint a contract administrator who
shall monitor such party's compliance with the terms of this Agreement. OVG's contract administrator
shall be its General Manager or Assistant General Manager (as designated by OVG) at the Facility, unless
OVG notifies Owner of a substitute contract administrator in writing. Owner shall notify OVG of the name
of its contract administrator within 30 days of execution hereof. Any and all references in this Agreement
requiring OVG or Owner participation or approval shall mean the participation or approval of such party's
contract administrator.
Section 13.2 Monthly Meetings and Inspections. OVG, Owner's contract administrator, and
other appropriate personnel, as determined by the parties, will meet monthly on topics including but not
limited to financials and forecasting, sales and marketing, promotions, event mix, repairs and
maintenance, anticipated changes in management, satisfaction surveys, and performance metrics. During
the first Operating Year, OVG shall provide Owner with a written monthly operational report of the
Facility; provided that the parties may mutually agree to a different cadence of such reports thereafter,
as mutually agreed. The Owner's contract administrator or designee may enter the Facility at all
reasonable times the Facility is open for the purposes of determining whether the terms and conditions
of this Agreement are being fully and faithfully observed and performed. The Owner's contract
administrator or designee may conduct periodic inspections of the Facility at any time, whether with or
without advanced notice to OVG.
Section 13.3 Rates, Fees, and Discounts. OVG shall allow Owner to review and approve all
rates, rate cards, published fees, and general discounting policies as set forth in the Operations Manual.
Owner's approval shall not be unreasonably withheld or delayed.
Section 13.4 Annual Report and Presentation to Council. OVG shall present an annual report
and presentation to Owner's City Council following the completion of each Operating Year. The parties
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anticipate such report and presentation to occur in August of each year during which this Agreement is in
effect.
ARTICLE 14
INDEMNIFICATION
Section 14.1 Indemnification by OVG. OVG agrees to defend, indemnify, and hold harmless
Owner and its officials, directors, officers, employees, agents, successors, and assigns against any third -
party claims, causes of action, costs, expenses (including reasonable attorneys' fees), liabilities, or
damages (collectively, "Losses") suffered by such parties and to the extent directly caused by any (a)
negligent or reckless act or omission, intentional misconduct, or failure to comply with Laws attributable
to OVG or any of its employees, or agents, in the performance of its obligations under this Agreement, or
(b) material breach by OVG of any of its representations, covenants, warranties, or agreements made
herein.
Section 14.2 Indemnification by Owner. Owner agrees to defend, indemnify, and hold
harmless OVG (including its parent, subsidiary, and affiliate companies) and each of their respective
directors, officers, employees, agents, successors, and assigns against any Losses suffered by such parties
and caused by any (a) negligent or reckless act or omission, intentional misconduct, or failure to comply
with Laws attributable to Owner or any of its employees or agents in the performance of its obligations
under this Agreement, (b) material breach by Owner of any of its representations, covenants, warranties,
or agreements made herein, (c) any defect or environmental condition at the Facility or under the
premises on which the Facility is located (including structural or construction defects (latent or patent),
not contributed to or caused by the negligence or willful misconduct of OVG, its employees, or agents, or
(d) withdrawal liability for a share unfunded vested benefits under multiemployer plans (as that term is
defined in 4001(a)(3) of the Employee Retirement Income Security Act of 1974).
Section 14.3 Conditions to Indemnification. With respect to each separate matter brought by
any third party against which a party hereto ("Indemnitee") who is indemnified by the other party
("Indemnitor") under this Article 14, the Indemnitor shall be responsible, at its sole cost and expense, for
controlling, litigating, defending, and/or otherwise attempting to resolve, through counsel of its choice,
any proceeding, claim, or cause of action underlying such matter, except that (a) the Indemnitee may, at
its option, participate in such defense or resolution at its expense and through counsel of its choice; (b)
the Indemnitee may, at its option, assume control of such defense or resolution if the Indemnitor does
not promptly and diligently pursue such defense or resolution, provided that the Indemnitor shall
continue to be obligated to indemnify the Indemnitee hereunder in connection therewith; and (c) neither
Indemnitor nor Indemnitee shall agree to any settlement without the other's prior written consent (which
shall not be unreasonably withheld or delayed). In any event, Indemnitor and Indemnitee shall cooperate
with each other in good faith and their respective counsel with respect to all such actions or proceedings,
at the Indemnitor's expense. With respect to each and every matter to which any indemnification may be
sought hereunder, upon receiving notice pertaining to such matter, Indemnitee shall promptly give
reasonably detailed written notice to the Indemnitor of the nature of such matter and the amount
demanded or claimed in connection therewith.
Section 14.4 Survival. The obligations of the parties contained in this Article 14 shall survive
the termination or expiration of this Agreement.
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Section 14.S Legal Costs. Notwithstanding the other provisions of this Agreement, if legal costs
are being incurred by OVG or Owner for a third party claim in respect of which Owner is claiming indemnity
from OVG, such legal costs will be considered an Operating Expense unless and until liability of OVG
pursuant to this Agreement is conclusively established by a court of competent jurisdiction with respect
to the underlying claim on which OVG's obligation to indemnify is based, or as otherwise agreed by the
parties in connection with the settlement of any claim. In the event that the liability of OVG is so
conclusively determined, then such legal costs shall be considered costs of OVG (and not Operating
Expenses) and covered by the indemnity given by OVG to Owner hereunder and the parties shall adjust
between them in respect of such legal costs.
ARTICLE 15
INSURANCE
Section 15.1 Types and Amount of Coverage. OVG agrees to obtain insurance coverage in the
manner and amounts as set forth in Exhibit E, attached hereto, and shall provide to Owner promptly
following the Effective Date a certificate or certificates of insurance evidencing such coverage. OVG shall
maintain such referenced insurance coverage at all times during the Term and will not make any material
modification or change from these specifications without the prior written approval of Owner. Each
certificate shall be prepared on the most current ACORD form approved by the Iowa Department of
Insurance or an equivalent approved by Owner's Chief Financial Officer. Each certificate shall include a
statement under Description of Operations as to why the certificate was issued.
Section 15.2 Additional Terms; Third Parties. All insurance policies shall comply with all
additional terms listed on Exhibit E, attached hereto. OVG shall require that all third -party users of the
Facility, including without limitation third -party licensees and/or vendors, to provide certificates of
insurance evidencing insurance appropriate for the types of activities in which such user is engaged. If
OVG subcontracts any of its obligations under this Agreement, OVG shall require each such subcontractor
to secure insurance that will protect against applicable hazards or risks of loss as and in the minimum
amounts designated herein, and name OVG and Owner as additional insureds. For avoidance of doubt,
OVG has the affirmative duty to ensure all third -party users and subcontractors engaged by OVG
hereunder, comply with the requirements of this Article 15, including ensuring all applicable insurance
policies cover the type and duration of each event, project, or other occurrence for which the third -party
users or subcontractors will be utilizing the Facility.
ARTICLE 16
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 16.1 OVG Representations and Warranties. OVG hereby represents, warrants, and
covenants to Owner as follows:
(a) that it has the full legal right, power, and authority to enter into this Agreement
and to grant the rights and perform the obligations of OVG herein, and that no third -party consent or
approval is required to grant such rights or perform such obligations hereunder;
(b) that this Agreement has been duly executed and delivered by OVG and
constitutes a valid and binding obligation of OVG, enforceable in accordance with its terms, except as such
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enforceability may be limited by bankruptcy, insolvency, reorganization, or similar Laws affecting
creditors' rights generally or by general equitable principles;
(c) that OVG will comply with all Laws applicable to its management of the Facility,
provided that OVG shall not be required to undertake any compliance activity, nor shall OVG have any
liability under this Agreement therefor if such activity requires any Capital Expenditure or funding of an
Operating Expense that is not funded by Owner;
(d) that OVG shall, to the best of its knowledge and belief, comply with all applicable
provisions of the Americans with Disabilities Act, all applicable amendments thereto, and all applicable
federal regulations promulgated thereunder (collectively, the "ADA");
(e) that, to the best of its knowledge and belief, all programs, policies, and alterations
of any type initiated by OVG shall comply with the 2010 Standards for Accessible Design, the ADA Title II
regulation, Section 504 of the 1973 Rehabilitation Act, all applicable amendments thereto, and all similar
statutes and regulations prohibiting discrimination on the basis of disability;
(f) that OVG shall, to the best of its knowledge and belief, ensure that its websites
and all online services, including those websites or online services provided by third parties upon which
OVG relies to provide services or content, comply with, at minimum, Web Content Accessibility Guidelines
— WCAG 2.1 AA;
(g) that, to the best of its knowledge and belief, no relationship exists or will exist,
during the Term hereof, between OVG and Owner that is a conflict of interest. The provisions of Iowa
Code Chapter 68B (Government Ethics and Lobbying Act) shall apply to this Agreement. Accordingly, OVG
shall promptly report any potential conflicts of interest to Owner;
(h) that OVG has not employed any person to solicit or procure this Agreement. OVG
has not either directly or indirectly entered into any agreement, participated in any collusion, or otherwise
taken any action in restraint of free competitive procurement in connection with this Agreement;
(i) that, to the best of its knowledge and belief, all the materials and services
produced or provided to Owner pursuant to the terms of this Agreement shall be wholly original with OVG
or that OVG has secured all applicable interests, rights, licenses, permits, or other intellectual property
rights in such materials and services. OVG represents and warrants, to the best of its knowledge and belief,
that said materials and services, and Owner's use of the same, in accordance with this Agreement, and
the exercise by Owner of the rights granted to it by this Agreement, in accordance with this Agreement,
will not infringe upon any other work or violate the rights of publicity or privacy of, or constitute a libel or
slander against, any person, firm, or corporation. OVG further represents and warrants, to the best of its
knowledge and belief, that said materials and services do not infringe upon the copyright, trademark,
trade name, trade dress, patent, statutory or common law, or any other rights of any person, firm,
corporation, or other entity.
Section 16.2 Owner Representations, Warranties and Covenants. Owner represents,
warrants, and covenants to OVG as follows:
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(a) that it has the full legal right, power, and authority to enter into this Agreement
and to grant the rights and perform the obligations of Owner herein, and that no other third -party consent
or approval is required to grant such rights or perform such obligations hereunder.
(b) that this Agreement has been duly executed and delivered by Owner and
constitutes a valid and binding obligation of Owner, enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization, or similar laws affecting
creditors' rights generally or by general equitable principles.
(c) that the Facility is, as of the Effective Date and to the best of Owner's knowledge
and belief, in compliance in all respects with all applicable Laws relating to the construction, use, and
operation of the Facility (including, without limitation, Title III of the American with Disabilities Act), and
that there exist no structural defects or unsound operating conditions at the Facility.
(d) that to the best of its knowledge and belief, that any materials provided by or
modified by Owner hereunder, do not infringe upon the copyright, trademark, trade name, trade dress,
patent, statutory or common law, or any other rights of any person, firm, corporation, or other entity.
(e) that as of the Commencement Date, OVG shall have the full exclusive rights to
the Facility as set forth herein, and no third party shall retain any rights to, or control of, the Facility or in
connection with the exclusive services being provided by OVG hereunder.
ARTICLE 17
FEDERAL TAX REQUIREMENTS
Section 17.1 Compliance with Federal Tax Requirements. OVG understands that all or a
portion of the Facility has been or may be financed on a tax-exempt basis (such financing, the "Bonds")
and, as a result, Owner must comply with the Internal Revenue Code of 1986, as amended, and certain
treasury regulations promulgated thereunder (collectively, the "Code"), with respect to the use and
management of the Facility by OVG, and any other nongovernmental user of all or a portion of the Facility.
OVG agrees to cooperate with Owner in complying with the requirements of the Code with respect to
private business use of property financed with the Bonds at the Facility. Without limiting the generality of
the foregoing, OVG agrees that the compensation hereunder does not and is not intended to provide OVG
a share of the net profits of the Facility and agrees to cooperate with Owner in maintaining the safe harbor
conditions provided in Revenue Procedure 2017-13 (as modified, amplified and/or superseded, the "Rev.
Proc.") regarding qualified management contracts, and acknowledges that, as of the Effective Date, the
Rev. Proc. includes the following safe harbor conditions, among others, that must be satisfied to ensure
that the Bonds will maintain their tax-exempt status:
(a) OVG and any other third -party manager shall agree that it is not entitled to and shall not
take a tax position with respect to the Facility or any management agreement that is
inconsistent with being a service provider to Owner that provides services at the Facility,
including, without limitation, taking any depreciation or amortization, investment tax
credit, or deduction for any payment as rent with respect to the Facility.
(b) In connection with OVG or any other third -party manager's services at the Facility and as
described in the Rev. Proc., Owner approval is required for: (i) the annual budget of the
Facility, (ii) each disposition of any portion of the Facility, (iii) rates charged for the use of
all or any portion of the Facility, and (iv) and the general nature and type of use of the
Facility by OVG.
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(c) Owner bears risk of all loss, including casualty loss of the Facility.
(d) Neither OVG nor any other third -party manager shall have any role or relationship with
Owner that, in effect, substantially limits Owner's ability to exercise its rights under any
management agreement.
OVG agrees to cooperate in good faith with Owner in order to ensure that this Agreement and OVG's
services hereunder comply the requirements of the Code with respect to private business use of property
financed with the Bonds at the Facility, including but not limited to, maintaining the safe harbor conditions
provided in the Rev. Proc (collectively, the "Private Use Requirements"). If Owner reasonably determines
that the Commercial Rights Services or any other of OVG's services or actions hereunder violate the
Private Use Requirements, OVG shall reasonably cooperate (without expenditure of material funds) to
cease such services or actions following notice thereof from Owner. If following a good faith negotiation
period of not less than 90 days (the "Negotiation Period"), Owner continues to reasonably determine that
OVG's services or actions hereunder violate the Private Use Requirements notwithstanding OVG's
reasonable cooperation efforts, Owner may terminate this Agreement in its sole discretion and without
penalty for a period of 60 days following the end of the Negotiation Period. If Owner does not terminate
this Agreement during such 60-day period, such termination right shall expire.
If Owner reasonably determines that the terms of this Agreement violate the Private Use Requirements,
the parties shall proceed in accordance with Section 17.2 below as if Changes (as defined below) had
occurred.
Section 17.2 Future Changes in Federal Tax Requirements. OVG agrees to negotiate in good
faith with Owner to amend this Agreement from time to time (each, an "Amendment") to address any
interpretations, modifications, or other changes in federal tax requirements regarding tax-exempt bonds,
which may include any modifications and amplifications of the Rev. Proc. or requirements superseding
the Rev. Proc. taking place after the Effective Date (collectively, "Changes") to ensure that the tax-exempt
status of the Bonds utilized to finance all or a portion of the Facility is maintained. The parties acknowledge
and agree that the terms of an Amendment shall be limited to modifying this Agreement in order to (i)
maintain the tax-exempt status of the Bonds notwithstanding such Changes (without requiring a partial
redemption or other remedial action with respect to the Bonds), and (ii) ensuring that the financial
arrangements under this Agreement are materially maintained. Notwithstanding anything herein to the
contrary, if following a Negotiation Period this Agreement is unable to be amended to the satisfaction of
Owner with respect to clause (i) above, or Manager with respect to clause (ii) above, then this Agreement
may be terminated by the applicable dissatisfied party in its sole discretion and without penalty for a
period of 60 days following the end of the Negotiation Period. If neither party terminates this Agreement
during such 60-day period, such termination right shall expire.
Section 17.3 Remedies. Owner acknowledges and agrees that OVG is not responsible for
determining whether this Agreement or the services hereunder comply with the Code or the Rev. Proc.
or otherwise with the requirements of the Bonds, and is relying on Owner's good -faith, reasonable
determinations as to such matters. As such, OVG shall bear no responsibility with respect to maintaining
the tax-exempt status of the Bonds, under no circumstances shall OVG be liable for any failure by Owner
to maintain the tax-exempt status of the Bonds, notwithstanding anything to the contrary in this
Agreement (including in connection with OVG's indemnification obligations set forth in Section 14), and
Owner's sole remedies under this Agreement in relation to the Bonds or pursuant to this Section 17 shall
be termination of the Agreement as set forth in Sections 17.1 and 17.2 above.
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ARTICLE 18
MISCELLANEOUS
Section 18.1 PCI Compliance. The parties agree to comply with all current and future Payment
Card Industry Data Security Standards ("PCI Standards") and guidelines that may be published from time
to time by Visa, MasterCard, or other associations as they relate to the storage of payment card data. For
PCI Standards compliance purposes, the Facility shall include a segmented network, an appropriate
number of wired data connections to the Internet for point -of -sale devices ("POS") to be used by OVG and
any contractors at the Facility. If Owner provides such network, Owner shall be responsible for the
security of its network, including, without limitation, applicable PCI Standards compliance, and for
procuring and installing point of sale (POS) payment systems that are compliant with the latest PCI-DSS
requirements. Notwithstanding the foregoing, if provided for in the Investment by OVG, OVG shall be
responsible for procuring and installing POS payment systems that are compliant with the latest PCI
Standards and in such case OVG shall be responsible for the PCI Standards compliance of its POS systems
it provides. If at any time either party determines that data covered by PCI Standards has been
compromised, such party will notify the other without undue delay and provide reasonable assistance in
providing notification to the proper parties as deemed necessary.
Section 18.2 No Discrimination. OVG agrees that it will not discriminate against any employee
or applicant for employment for work under this Agreement because of race, religion, color, sex, disability,
national origin, ancestry, physical handicap, creed, sexual orientation, gender identity, gender expression,
pregnancy, or age, and will take affirmative steps to ensure that applicants are employed, and employees
are treated during employment, without regard to race, religion, color, sex, disability, national origin,
ancestry, physical handicap, creed, sexual orientation, gender identity, gender expression, pregnancy,
marital status, familial status, genetic information, age, status with regard to public assistance, status as
a veteran, or any other classification protected by Laws, except where age or sex is an essential, bona fide
occupation requirement, or where disability is a bona fide occupational disqualification or as otherwise
permitted by Laws. Such action shall include, but not be limited to the following: (a) employment, (b)
upgrading, (c) demotion or transfer, (d) recruitment or advertising, (e) layoff or termination, (f) rate of
pay or other forms of compensation, and (g) selection for training, including apprenticeship. OVG will use
commercially reasonable efforts to include the provisions of these nondiscrimination clauses in any
applicable Service Contracts, unless exempt by the rules, regulations, or orders of Owner or where such
terms would be inappropriate or inapplicable.
Section 18.3 Use of Facility Names and Logos. OVG shall have the right to use throughout the
Term (and permit others to use in furtherance of OVG's obligations hereunder), for no charge, the name
and all logos of the Facility, on OVG's stationary, in its advertising of the Facility, and whenever conducting
business of the Facility; provided, that OVG shall take all prudent and appropriate measures to protect
the intellectual property rights of Owner relating to such logos. All intellectual property rights in any
Facility logos developed by OVG or Owner shall be and at all times remain the sole and exclusive property
of Owner. OVG agrees to execute any documentation requested by Owner from time to time to establish,
protect, or convey any such intellectual property rights.
Section 18.4 Facility Advertisements. Owner agrees that in all advertisements placed by
Owner for the Facility or events at the Facility, whether such advertisements are in print, on radio,
television, the internet, or otherwise, it shall include a designation that the Facility is "Managed by Oak
View Group".
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Section 18.5 Force Maieure: Casualtv Loss.
(a) A delay in or failure of performance of either party shall not constitute a default
hereunder nor be the basis for, or give rise to, any claims for damages, if and to the extent such delay or
failure is caused by an Event of Force Majeure. Provided, however, that the party who is delayed or
prevented from performing by an Event of Force Majeure shall, within a period not to exceed 14
(fourteen) days after the occurrence or detection of any such event, give notice to the other party setting
forth in reasonable detail the nature thereof and the anticipated extent of the delay and shall remedy
such cause as soon as reasonably possible, or as mutually agreed between the parties. Notwithstanding
the foregoing, in no event shall a party's failure to make payments due hereunder be excusable due to an
Event of Force Majeure.
(b) In the event of damage or destruction to a material portion of the Facility by
reason of fire, storm, or other casualty loss that renders the Facility (or a material portion thereof)
untenantable, Owner shall use reasonable efforts to remedy such situation. If notwithstanding such
efforts, such damage or destruction is expected to render the Facility (or a material portion thereof)
untenantable for a period estimated by an architect selected by Owner at OVG's request, of at least one
hundred eighty (180) days from the date of such fire, storm, or other casualty loss, either party may
terminate this Agreement upon written notice to the other, provided that (i) Owner shall pay to OVG its
costs of withdrawing from services hereunder, as described in Section 4 above, and (ii) in the event the
Facility once again becomes tenable at any time during the Term, this Agreement shall, at the option of
OVG, once again become effective and OVG shall manage and operate the Facility under the terms hereof,
except that the Term shall be extended for a period of time in which the Facility was untenantable.
Section 18.6 Assignment; Binding on Successors and Assigns. Neither party may assign this
Agreement without the prior written consent of the other, which consent shall not be unreasonably
withheld or delayed, except that either party may, without the prior written consent of the other party
but upon at least 30 days' written notice to the other party, assign this Agreement in connection with a
sale, merger, or other business combination involving all or substantially all of its assets or equity interests;
provided, however, that Owner shall have the right to reasonably evaluate the experience, qualifications,
and financial standing of the proposed assignee and make reasonable objection thereto. The Owner shall
notify OVG in writing of any objection to the proposed assignment (with reasonable specificity as to the
nature of, and reason for, each such objection) within 10 days after OVG has notified Owner in writing of
a proposed assignment. Owner's consent to the assignment shall be presumed unless it has timely notified
OVG of its objection(s) as provided herein. If Owner so objects, and Owner's objections have not been
resolved to Owner's satisfaction, then OVG may proceed with the assignment only if OVG agrees in writing
to remain liable to Owner under this Agreement for the performance of the duties of OVG hereunder,
notwithstanding the assignment. Notwithstanding the foregoing, OVG may, without the necessity of
obtaining Owner's prior written consent, assign this Agreement to an Affiliate where such assignment is
intended to accomplish an internal corporate purpose of OVG as opposed to materially or substantially
altering the method of delivery of services to Owner or the kind or quality of the same. Any purported
assignment in contravention of this Section shall be void. This Agreement is binding on successors and
permitted assigns of the parties.
Section 18.7 Notices. All notices required or permitted to be given pursuant to this Agreement
shall be in writing and delivered personally or sent by registered or certified mail, return receipt
requested, or by generally recognized, prepaid, overnight air courier services, to the address and
individual set forth below. All such notices to either party shall be deemed to have been provided when
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delivered, if delivered personally, four (4) days after mailed, if sent by registered or certified mail, or the
next business day, if sent by generally recognized, prepaid, overnight air courier services.
If to Owner:
City Manager's Office
City Hall
50 W 13`" Street
Dubuque, IA 52001
Attn: City Manager
With a copy to:
City Attorney's Office
300 Main Street, Suite 330
Dubuque, IA 52001
Attn: City Attorney
Email: cityattorney@cityofdubuque.org
If to OVG:
Oak View Group
5050 S. Syracuse Street, Suite 800
Denver, CO 80237
Attn: Chief Operating Officer
With a copy to:
Oak View Group — Legal Department
5050 S. Syracuse Street, Suite 800
Denver, CO 80237
Attn: OVG360 Legal Department
Email: OVG360Legal@oakviewgroup.com
The designation of the individuals to be so notified and the addresses of such parties set forth above may
be changed from time to time by written notice to the other party in the manner set forth above.
Section 18.8 Severability. If a court of competent jurisdiction determines that any term of this
Agreement is invalid or unenforceable to any extent under applicable law, the remainder of this
Agreement (and the application of this Agreement to other circumstances) shall not be affected thereby,
and each remaining term shall be valid and enforceable to the fullest extent permitted by law.
Section 18.9 Entire Agreement. This Agreement (including the exhibits attached hereto)
contains the entire agreement between the parties with respect to the subject matter hereof, and
supersedes and replaces all prior negotiations, correspondence, conversations, agreements, and
understandings concerning the subject matter hereof. Accordingly, the parties agree that no deviation
from the terms hereof shall be predicated upon any prior representations, agreements, or
understandings, whether oral or written.
Section 18.9 Disputes; Governing Law; Venue. The parties agree to act immediately to resolve
any dispute arising with respect to this Agreement. Time is of the essence in the resolution of disputes.
OVG agrees that the existence of a dispute notwithstanding, it will continue without delay to carry out all
its responsibilities under this Agreement which are not affected by the dispute; Owner agrees that it shall
continue to make payment for all services performed as outlined in this Agreement. This Agreement is
entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws
of the State of Iowa without regard to its conflict of laws principles. Venue for any action arising out of
this Agreement shall be in the Iowa District Court for Dubuque County, Iowa or the Federal District Court
for the Northern District of Iowa, Eastern Division, and the parties hereby irrevocably consent to the
jurisdiction of such courts.
Section 18.10 Amendments. Neither this Agreement nor any of its terms may be changed or
modified, waived, or terminated (unless as otherwise provided hereunder) except by an instrument in
writing signed by an authorized representative of the party against whom the enforcement of the change,
Page 26 of 43
Page 862 of 1053
waiver, or termination is sought. The parties shall work in good faith immediately following execution
hereof to reach an agreement regarding one or more amendments to this Agreement and/or the Grand
River Agreement in order to better align the two agreements in terms of duration; budgets; allocation of
expenses, revenues, and personnel; and such other matters as the parties may mutually agree.
Section 18.11 Waiver; Remedies. No failure or delay by a party hereto to insist on the strict
performance of any term of this Agreement, or to exercise any right or remedy consequent to a breach
thereof, shall constitute a waiver of any breach or any subsequent breach of such term. No waiver of any
breach hereunder shall affect or alter the remaining terms of this Agreement, but each and every term of
this Agreement shall continue in full force and effect with respect to any other then existing or subsequent
breach thereof. The remedies provided in this Agreement are cumulative and not exclusive of the
remedies provided by law or in equity.
Section 18.12 Relationship of Parties. OVG and Owner acknowledge and agree that they are
not joint venturers, partners, or joint owners with respect to the Facility, and nothing contained in this
Agreement shall be construed as creating a partnership, joint venture, or similar relationship between
Owner and OVG. In operating the Facility, entering into contracts, accepting reservations for use of the
Facility, holding events, and conducting financial transactions for the Facility, OVG acts on behalf of and
as agent for Owner (but subject to the limitations on OVG's authority as set out in this Agreement), with
the fiduciary duties required by law of a party acting in such capacity.
Section 18.13 No Third -Party Beneficiaries. Other than the indemnitees listed in Sections 14.1
and 14.2 hereof (who are third -party beneficiaries solely with respect to the indemnification provisions in
such sections), there are no intended third -party beneficiaries under this Agreement, and no third party
shall have any rights or make any claims hereunder, it being intended that solely the parties hereto (and
the aforementioned indemnitees with respect to the indemnification provisions hereof) shall have rights
and may make claims hereunder.
Section 18.14 Attorneys' Fees. If any suit or action is instituted by either party hereunder,
including all appeals, the prevailing party in such suit or action shall be entitled to recover reasonable
outside attorney fees and expenses from the non -prevailing party, in addition to any other amounts to
which it may be entitled.
Section 18.15 Limitation on Damages. In no event shall either party be liable or responsible for
any consequential, indirect, incidental, punitive, or special damages (including, without limitation, lost
profits) whether based upon breach of contract or warranty, negligence, strict tort liability, or otherwise,
and each party's liability for damages or losses hereunder shall be strictly limited to direct damages that
are actually incurred by the other party, provided that the foregoing shall not limit or restrict any claim by
OVG for the management fees described herein upon a breach or default of this Agreement by Owner.
Section 18.16 Counterparts and Electronic Signatures. This Agreement may be executed in
counterparts, each of which shall constitute an original, and all of which together shall constitute one and
the same document. This Agreement may be executed by the parties and transmitted by electronic
transmission, and if so executed and transmitted, shall be effective as if the parties had delivered an
executed original of this Agreement.
Page 27 of 43
Page 863 of 1053
Section 18.17 Currency. All prices and financial terms referenced herein are intended to be in
U.S. dollars, and shall remain in U.S. dollars despite any exchange rate.
Section 18.18 Regulatory Agency Compliance. OVG shall in connection with its performance
under this Agreement, materially comply, to the best of its knowledge, with applicable laws and
regulations set forth by regulatory agencies is required. These agencies include but are not limited to,
OSHA (the Occupational Safety and Health Administration), EPA (the Environmental Protection Agency),
ICC (the Interstate Commerce Commission), DNR (the Department of Natural Resources), and DOT (the
Department of Transportation), including all similar state and federal agencies.
Section 18.19 Suspensions and Debarment. OVG further certifies that it is not presently
debarred, suspended, declared ineligible, or voluntarily excluded from participation in any contract with
Owner or the State of Iowa. OVG shall ensure that all subcontractors utilized by OVG for any service or
product referenced in this Agreement make a similar representation to those contained in the provisions
of this paragraph.
Section 18.20 Tax Exemptions. Owner is exempt from sales tax and certain use taxes, and if
requested by OVG shall provide substantiation of such exemption. Any charges for taxes for which Owner
is exempt will be deducted from invoices before payment is made.
Section 18.21 Number, Gender, Captions, and Headings. All words and phrases contained
herein, including acknowledgements hereof, shall be construed as the singular or plural number, and as
masculine, feminine, or neuter gender according to the contexts. The captions and section headings are
for convenience only and shall not be used in the interpretation or enforcement of any provision of this
Agreement.
Section 18.22 No Inference Against Drafter. Each party hereto acknowledges that this
Agreement was negotiated by the parties, each represented by counsel and each having participated in
the drafting of this Agreement. Therefore, no inference, presumption, or burden of proof shall arise
favoring any party by virtue of the authorship of any provision of this Agreement.
Section 18.23 Vehicle Use. Upon full execution of this Agreement, Owner shall provide OVG
with title to and keys for one or more motor vehicles to be used by OVG in connection with the
performance of its obligations under this Agreement (collectively, the "Vehicles"). OVG shall promptly
take title to and insure the Vehicles upon receipt. Upon expiration or earlier termination of this Agreement
for any reason, title to each Vehicle shall revert to Owner, who shall promptly assume ownership and
insurance responsibility for the Vehicles. Each party shall have a reasonable opportunity to inspect the
Vehicles prior to any transfer of title. OVG shall ensure that, prior to any transfer of title, any damage to
a Vehicle exceeding ordinary wear and tear shall be repaired at OVG's expense. All Vehicles shall be
transferred AS IS, WHERE IS, AND WITH ALL FAULTS, except that the Owner represents and warrants
that, at the time of initial transfer to OVG, the Vehicles shall be free from latent defects, and Owner shall
remain responsible for any claims arising directly from such latent defects. As of the Effective Date, the
Vehicles are as follows: 2018 Ford F250, VIN 1FTBF2B69KEE05882.
ACCEPTED AND AGREED as of the Effective Date:
THE CITY OF DUBUQUE, IA GLOBAL SPECTRUM, L.P. d/b/a Oak View Group
By: Global Spectrum, LLC, its general partner
By: By; CS 15 13 EL
Name: Brad M. Ca Name: Brian Rothenberg
Its: Mayor Its: President
Page 28 of 43
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Five Flags Civic Center - Management Agreement Oft
Page 29 of 43
Page 865 of 1053
EXHIBIT A-1
OVG MANAGEMENT DUTIES
OVG's management obligations under the Agreement shall consist of the following obligations, all of
which are subject to the terms hereof and the controls and restrictions in the Operations Manual:
(a) Manage all aspects of the Facility in accordance with the Operations Manual and the terms of
this Agreement, including but not limited to managing purchasing, payroll, fire prevention, security, crowd
control, routine repairs, preventative maintenance, janitorial services, groundskeeping, promotions,
advertising, energy conservation, security, box office, admission procedures, and general user services in
a cost efficient, high quality, and efficient manner that meets the highest industry standard.
(b) Establish and adjust prices, rates, and rate schedules for user, license, concessions,
occupancy, and advertising agreements, and booking commitments. OVG may deviate from the
established rate schedule when entering into any such agreements if determined by OVG, using its
reasonable business judgment, to be necessary or appropriate with respect to the specific situation.
(c) Procure, negotiate, execute, administer, and assure compliance with Service Contracts,
Revenue Generating Contracts, and other contracts related to the operation of the Facility.
(d) Require that all vendors and licensees of the Facility execute vendor/license agreements
containing standard indemnification and insurance obligations on the part of each such vendor/licensee.
(e) Prior to accepting any event or other booking, provide Owner with standard form advertising
and sponsorship contracts and user/rental agreements for use at or with respect to the Facility. OVG shall
submit such form agreements to Owner for review and comment, and the parties shall work together to
finalize such forms. Once finalized, OVG shall use such forms in furtherance of its duties hereunder, and
shall not materially deviate from the terms contained in such forms without obtaining the prior written
approval of Owner (which shall not be unreasonably withheld or delayed). OVG's sole responsibility with
regard to providing legal advice or assistance hereunder shall be to provide such standard form contracts.
(f) Operate and maintain the Facility through exercise of the commercially reasonable standards
of maintenance and preservation, subject to approved Operating Budgets, including the equipment
utilized in connection with its operation and any improvements made during the term of this Agreement,
in the condition received, normal wear and tear excepted.
(g) Arrange for and otherwise book events at the Facility in accordance with a booking schedule
to be developed by OVG.
(h) Upon reasonable request, allow Travel Dubuque real time -access to information, such as the
booking and events calendar (including date holds) and customer relationship components.
(i) Hire or otherwise engage, pay, supervise, and direct all personnel OVG deems necessary for
the operation of the Facility in accordance with Article 6 of the Agreement, and conduct staff planning,
retention, and training programs as determined to be necessary by OVG in its sole discretion.
(j) Maintain detailed, accurate, and complete financial and other records of all its activities under
this Agreement in accordance with generally accepted accounting principles, which records shall be made
available to Owner upon request, in accordance with Section 10.1 of the Agreement.
(k) Submit to Owner in a timely manner financial and other reports detailing OVG's activities in
connection with the Facility, as set forth in Section 10.2 of the Agreement.
Page 30 of 43
Page 866 of 1053
(1) Prepare a proposed annual Operating Budget and submit such proposed budget to Owner,
both in accordance with Article 7 of the Agreement.
(m) Pay all Operating Expenses and other expenses incurred in connection with the operation,
maintenance, supervision, and management of the Facility from the Operating Account or with funds
otherwise made available by Owner.
(n) Secure, or assist Owner (or any other third party, as applicable) to secure, all licenses and
permits necessary for the operation and use of the Facility for the specific events to be held therein, and
for the general occupancy of the Facility, including without limitation all necessary food and liquor
licenses, and renewals thereof. Owner shall cooperate in this process to the extent reasonably required.
All costs associated with this process shall be Operating Expenses.
(o) Collect, deposit, and hold in escrow in the Event Account any ticket sale revenues which it
receives in the contemplation of or arising from an event pending the completion of the event, as more
fully described in Section 8.1 of the Agreement.
(p) Collect in a timely manner and deposit in the Operating Account all Revenue, as more fully
described in Section 8.2 of the Agreement.
(q) Subject to Owner making available sufficient funds in a timely manner, pay all Taxes.
(r) Plan, prepare, implement, coordinate, and supervise all public relations and other
promotional programs for the Facility.
(s) Prepare, maintain, and implement on a regular basis, subject to Owner's yearly approval, a
Marketing Plan for the Facility.
(t) Develop and establish open, clear, and responsive reporting systems with the Owner, utilizing
measurable and reported performance metrics. Metrics will be established in the first six (6) months of
the Commencement Date and reviewed and updated on a yearly basis.
(u) On an annual basis, cause a written inventory to be taken of all furniture, fixtures, office
equipment, supplies, tools, and vehicles at the Facility, and deliver a written report of the foregoing to
Owner. OVG shall document all major damage to, or loss in, such inventory during the Term as soon as
such damage or loss is discovered by OVG, and OVG shall promptly notify Owner of any such damage or
loss.
(v) Purchase, on behalf of Owner and with Owner funds, and maintain during the Term, all
materials, tools, machinery, equipment, and supplies necessary for the operation of the Facility.
(w) As agent for Owner, manage risk management and Facility insurance needs, as more fully
described in Article 15 of the Agreement.
(x) Make and be responsible for all routine and minor repairs, maintenance, preventative
maintenance, and equipment servicing. OVG shall be responsible for ensuring that all repairs,
replacements, and maintenance shall be of a quality and class at least equal to that of the item being
repaired, replaced, or maintained. Any replacement of an item in inventory, or any new item added to the
inventory, which is paid for by Owner, shall be deemed the property of Owner, including any item paid
for with funds from the Operating Account.
(y) Cause such other acts and things to be done with respect to the Facility, as determined by
OVG in its reasonable discretion, to be necessary for the management and operation of the Facility
following the Commencement Date.
Page 31 of 43
Page 867 of 1053
PYWIRIT A_7
OVG FOOD AND BEVERAGE SERVICES
OVG will provide high quality food and beverage services. OVG's food and beverage obligations under the
Agreement shall consist of the following, all of which are subject to the terms hereof and the controls and
restrictions in the Operations Manual:
(a) Develop and implement all necessary policies and procedures for the food and beverage
operations;
(b) Engage and oversee employees necessary to perform the Food and Beverage Services;
(c) Manage the Food and Beverage Services in compliance with and subject to all federal, state,
and local laws, ordinances, and regulations (including, without limitation, health and sanitation codes and
regulations with respect to the sanitation and purity of the food and beverage products for sale);
(d) Arrange for all minor repairs and routine maintenance to the equipment used in the operation
of the Food and Beverage Services;
(e) Keep the food and beverage facilities and equipment neat, clean, and in a sanitary condition;
(f) Undertake appropriate advertising, marketing, and promotion of the food and beverage
offerings at the Facility;
(g) Develop menus, portions, brands, prices, themes, and marketing approaches. OVG (or the
third -party concessionaire, as applicable) shall be entitled to set the prices for such items for sale;
(h) Order, stock, prepare, pay for (as an Operating Expense), and sell appropriate foods and
beverages; and
(i) Obtain and maintain all licenses and permits necessary for the operation of the Food and
Beverage Services, including those required for the on -premise sale of alcoholic beverages. Owner shall
offer reasonable assistance to OVG in obtaining and maintaining such licenses and permits. The cost of
such licenses and permits (including the cost to obtain such licenses and permits, such as legal costs
associated therewith) shall be Operating Expenses.
For avoidance of doubt, to the extent OVG subcontracts or otherwise assigns the foregoing Food and
Beverage Services, in accordance with this Agreement, such third party (including, if applicable, any
Affiliate) shall be obligated to obtain and/or maintain any license or permits required hereunder,
including, without limitation, any liquor licenses required for the on -premise sale of alcoholic beverages,
and Owner agrees to reasonably assist such third party in connection therewith, as directed by OVG.
Page 32 of 43
Page 868 of 1053
EXHIBIT A-3
OVG COMMERCIAL RIGHTS SERVICES
OVG's obligations in respect of the sale of Commercial Rights under the Agreement shall consist of the
following, all of which are subject to the terms hereof and the controls and restrictions of the Operations
Manual.
(a) Actively market the Commercial Rights at and with respect to the Facility, and, will regularly
apprise Owner of its sales prospects and the status of any potential sales of Commercial Rights;
(b) Develop advertising system design and consult with Owner on proposed inventory;
(c) Create rate cards and packages, target lists, and vendor packages, as necessary;
(d) Develop Naming Rights and sub -Naming Rights packages/pricing, if applicable;
(e) As requested by Owner, during quarterly meetings with Owner, reports detailing OVG's sales
of Commercial Rights.
Page 33 of 43
Page 869 of 1053
EXHIBIT B
QUALITATIVE INCENTIVES
OVG shall be eligible to earn a Qualitative Incentive up $45,000 ($15,000/Operational Benchmark)
to reach each of the following benchmarks (each, an "Operational Benchmark"). The achievement of the
Operational Benchmark(s) shall be determined by Owner, in its reasonable and good faith discretion
based on its evaluation of OVG's performance during each Operating Year. Notwithstanding the foregoing,
OVG shall notify Owner to the extent it deems any Operational Benchmark has been achieved (as set forth
below) and shall provide reasonable proof thereof. Once the parties agree in writing (email shall be
sufficient) that any such Operational Benchmark has been achieved, the applicable Incentive Fee(s) for
the applicable Operating Year shall become due as set forth in Section 3.2 of this Agreement and may be
paid by OVG out of the Operating Account. The Operational Benchmarks may be revisited every two (2)
years based upon the Facility renovations and redevelopment as it takes place by mutual agreement of
OVG and Owner. The parties would establish revised Operational Benchmark by February 1, prior to the
next year's budget being established.
1. Economic Impact -Focused Targeted Events and Performances — Attraction of events that by their
financial model positively affect the bottom -line budget resulting in a positive impact on the
Facility and Owner's budget and positively impact neighboring businesses and overnight stays.
Stakeholder Development Relationship — Build a strong business relationship with Travel
Dubuque, Dubuque Area Chamber of Commerce, Dubuque Main Street, hoteliers, businesses,
youth sports, and performing arts on mutual strategy development, an increased level of
collaboration, and focused approach on event mix, relational economic impact,
stakeholder/tenant relationships, and overall civic center business improvement model
benefiting OVG, the Owner, and the community.
3. Operating Budget Success — OVG has successfully developed and managed an Operating Budget
for the applicable Operating Year.
Page 34 of 43
Page 870 of 1053
EXHIBIT C
OPERATING BUDGET (FIRST OPERATING YEAR)
[to be attached]
Page 35 of 43
Page 871 of 1053
Updated OVG Proforma
Yr 1
Attendance
65,000
# of Events
158
Event Days
150
Rental Income
$
57,108
Service Income
$
652,674
Service Expenses
$
(649,968)
Total Direct Event Income
$
59,814
F&B Concessions
$
188,675
F&B Catering
$
25,000
Merch
$
8,741
Parking
$
8,107
Other (Promoter Rebate)
$
-
Total Ancillary Income
$
230,523
Other Event Income
Ticket Rebates
$
118,041
Facility Fees
$
101,566
Total Other Event Income
$
219,608
Total Event Income
$
509,944
Advertising Income - Signage
$
85,000
Other Operating Income
$
25,000
Total Other Operating Income
$
110,000
Adjusted Gross Income
$
619,944
Expenses
Salaries & Wages
$
1,009,693
Benefits
$
209,731
Less: Event Labor Allocation
$
(204,763)
Net EE Wages and Benefits
$
1,014,661
Contracted Services
$
35,000
General & Admin
$
186,797
Operations
$
21,474
Repair & Maintenance
$
69,975
Supplies
$
22,500
Insurance
$
110,000
Page 872 of 1053
Utilities $ 251,013
Other $ 3,270
Management Fees $ 133,215
Less: Expenses Allocated $ (29,052)
Total Operating Expenses $ 1,818,854
Net Income (Loss) From Operations
$ (1,198,910)
Page 873 of 1053
CONTRACTS:
Cummins Sales & Service (generator)
Gary's Pest Control (pest)
Kone (elevator)
Midwest Overhead Crane (arena rigging)
Racom (security cameras)
Autodesk, Inc. (Auto CAD)
Computer Doctors, Inc. (Microsoft 365)
Fiserve Inc. (Clover)
IEBA (conference registration)
SPONSORSHIPS:
Green State Credit Union
RE -Max
River Bluff Creative
Diamond Jo Casino
Kwik Stop
EXHIBIT D
EXISTING CONTRACTS
Page 36 of 43
Page 874 of 1053
EXHIBIT E
INSURANCE
OVG shall furnish a signed certificate of insurance to the City of Dubuque, Iowa for the coverage required
in Schedule E-1, attached hereto, prior to commencing work. Each certificate shall be prepared on the
most current ACORD form approved by the Iowa Department of Insurance or an equivalent approved by
the Director of Finance and Budget.
All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa and
all insurers shall have a rating of A or better in the current A.M. Best's Rating Guide.
Each certificate shall be furnished to the Finance Department of the City of Dubuque.
Failure to provide coverage required by this Insurance Schedule shall not be deemed a waiver of these
requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be
considered a material breach of this agreement.
OVG shall require all subconsultants and sub-subconsultants to obtain and maintain during the
performance of work insurance for the coverages described in this Insurance Schedule and shall obtain
certificates of insurances from all such subconsultants and sub-subconsultants. OVG agrees that they shall
be liable for the failure of a subconsultant and sub- subconsultant to obtain and maintain such coverages.
Owner may request a copy of such certificates from OVG.
All required endorsements shall be attached to the certificate. The certificate is due before the
contract/agreement can be approved.
Whenever a specific ISO form is listed, required the current edition of the form must be used, or an
equivalent form may be substituted if approved by the City of Dubuque's Chief Financial Officer and
subject to OVG identifying and listing in writing all deviations and exclusions from the ISO form.
OVG shall be required to carry the minimum coverage/limits, or greater if required by law or other legal
agreement, in Exhibit E-I. If the contractor's limits of liability are higher than the required minimum limits
then the provider's limits shall be this agreement's required limits.
OVG shall be responsible for deductibles and self -insured retention for payment of all policy premiums
and other cost associated with the insurance policies required below.
All certificates of insurance must include agents name, phone number, and email address.
The City of Dubuque reserves the right to require complete, certified copies of all required insurance
policies, including endorsements, required by this Schedule at any time.
The City of Dubuque reserves the right to modify these requirements, including limits, based on changes
in the risk or other special circumstances during the term of the agreement, subject to mutual agreement
of the parties.
Page 37 of 43
Page 875 of 1053
Crhothdo F _ 1
A) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000
Products -Completed Operations Aggregate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence $1,000,000
Fire Damage Limit (any one occurrence) $50,000
Medical Payments $5,000
1) Coverage shall be written on an occurrence, not claims made, form. The
general liability coverage shall be written on a form equivalent or more broad
than ISO form CG 00 01 or business owners form BP 00 02.
2) Include endorsement indicating that coverage is primary and non-contributory.
3) Include additional insured endorsement for:
The City of Dubuque, including all its elected and appointed officials, all
its employees and volunteers, all its boards, commissions and/or
authorities and their board members, employees and volunteers. Policy
shall include Waiver of Right to Recover from Others endorsement or by
blanket waiver of subrogation endorsement.
4) OVG shall provide thirty (30) days' advance written notice of cancellation, non -
renewal, reduction in insurance coverage and/or limits and ten (10) days'
written notice of non-payment of premium shall be sent to: City of Dubuque
Finance Department, 50 West 13th Street Dubuque, Iowa 52001.
B) AUTOMOBILE LIABILITY
Combined Single Limit $1,000,000
Coverage shall include all owned, non -owned, and hired vehicles. If OVG's business does
not own any vehicles, coverage is required on non -owned and hired vehicles.
1) Policy shall include Waiver of Right to Recover from Others endorsement.
2) Include endorsement indicating that coverage is primary and non-contributory.
C) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory Benefits covering all employees injured on the job by accident or disease as
prescribed by Iowa Code Chapter 85.
Coverage A Statutory —State of Iowa
Coverage B Employers Liability
Each Accident $100,000
Each Employee -Disease $100,000
Policy Limit -Disease $500,000
Page 38 of 43
Page 876 of 1053
Policy shall include Waiver of Right to Recover from Others endorsement.
Coverage B limits shall be greater if required by the umbrella/excess insurer.
If, by Iowa Code Section 85.1A, OVG is not required to purchase Workers'
Compensation Insurance, OVG shall have a copy of the State's Nonelection of Workers'
Compensation or Employers' Liability Coverage form on file with the Iowa Workers'
Compensation Insurance Commissioner, as required by Iowa Code Section
87.22. Completed form must be attached.
D) UMBRELLA/EXCESS LIABILITY $1,000,000
The General Liability, Automobile Liability and Workers Compensation Insurance
requirements may be satisfied with a combination of primary and Umbrella or Excess
Liability Insurance. If the Umbrella or Excess Insurance policy does not follow the form
of the primary policies, it shall include the same endorsements as required of the
primary policies including but not limited to Waiver of Subrogation and Primary and
Non- contributory in favor of the City.
E) PROFESSIONAL LIABILITY $2,000,000
If the required policy provides claims -made coverage:
1) The Retroactive Date must be shown and must be before the date of
the agreement.
2) Insurance must be maintained and evidence of insurance (or extended
coverage) must be provided for at least three (3) years after completion of the
work or services.
3) If coverage is canceled or non -renewed and not replaced with another claims -
made policy form with a Retroactive Date prior to the date of the agreement,
OVG must provide "extended reporting" coverage for a minimum of three (3)
years after completion of the work or services.
F) CYBER LIABILITY/BREACH $1,000,000
X Yes No
Coverage for First and Third Party liability including but not limited to lost data and
restoration, loss of income and cyber breach of information.
G) CONCESSIONAIRE BOND $25,000
H) DRAM SHOP $3,000,000
Please be aware that naming the City of Dubuque as an additional insured as is required by this
Page 39 of 43
Page 877 of 1053
Insurance Schedule may result in the waiver of the City's governmental immunities provided in Iowa
Code sec. 670.4. If you would like to preserve those immunities, please use this endorsement or an
equivalent form.
PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmental Immunity• The insurer expressly agrees and states that the
purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does
not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under
Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time.
2. Claims Coverage. The insurer further agrees that this policy of insurance shall cover only
those claims not subject to the defense of governmental immunity under the Code of Iowa Section
670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code
of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for
asserting any defense of governmental immunity, and may do so at any time and shall do so upon the
timely written request of the insurer.
4. Non -Denial of Coverage. The insurer shall not deny coverage under this policy and the insurer
shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy
for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in
favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa.
No Other Change in Policy. The above preservation of governmental immunities shall not otherwise
change or alter the coverage available under the policy.
Page 40 of 43
Page 878 of 1053
WAHI EM
TRANSITION BUDGET
@)VG 360
Five Flags Arena & Theater
Actual Transition Expenses vs Budget
Travel Expense Summary Actual
Budget Difference
Administration
So
S16,675
IS16.675)
Finance
5o
58,625
(S8,625)
Operations
So
S8.625
(58.625)
HR
so
S1.725
(.51,725)
Marketing
5o
51.150
(S1.150)
Partnerships
So
51.725
(51,725)
Hospitality
So
so
50
Total
50
S38.525
(S38.525)
Other Expense Summary
5130-6290
Goodwill
5130-6170
Gifts -Welcome Parr,
5250-7250
Photography
5180-6600
Advertising
5250-6970
Office Supplies
5250-6990
Postage
5250-7000
Printing
5170-6490
Licenses. Permits Fees
5250-6880
Dues & Subscriptions
5190-6690
Software & Licensing Expense
5210-6670
Procurement
5210-7427
Equipment
5250-6800
Recruitment
5090-5910
SALARIES
5110-5460
PAYROLL TAXES
5250-6270
Relocation
5250-7110
Contingency
5250-6700
Other Expenses
5250-7070
Uniforms
5250-6770
Linen & Cleaning
5 180-65 90
Meeting & Marketing
Total Other Expenses
Total Transition Costs
actual Budget Difference
5o
SO
So
5000
(S5,000)
50
SO
so
so
5o
SO
So
so
so
1000
(S1,000)
So
2025
(S2,025)
SO
so
2000
(S2,000)
So
SO
so
so
so
SO
So
s0
so
so
So
15000
(515,000)
so
SO
so
SO
So
5250
(S5,250)
_ -
5 -
50
30275
IS30,275)
SO 568,900 (Sa,800)
Page 41 of 43
Page 879 of 1053
OVG360 Dubuque IA - Five Flags Mgmt FB Agr
v7 (Execution Copy) eff.7-1-25
Final Audit Report 2025-06-12
Created: 2025-06-12
By: Cait Burggraf(cait.burggraf@oakviewgroup.com)
Status: Signed
Transaction ID: CBJCHBCAABAAkkko5VNd7i6519SsxxtKkkwv3 Ec4FvR
"OVG360 Dubuque IA - Five Flags Mgmt FB Agr v7 (Execution
Copy) eff.7-1-25" History
Document created by Cait Burggraf(cait.burggraf@oakviewgroup.com)
2025-06-12 - 7:10:20 PM GMT
Document emailed to Brian Rothenberg (brian.rothenberg@oakviewgroup.com) for signature
2025-06-12 - 7:10:26 PM GMT
Email viewed by Brian Rothenberg (brian.rothenberg@oakviewgroup.com)
2025-06-12 - 7:13:23 PM GMT
Document e-signed by Brian Rothenberg (brian.rothenberg@oakviewgroup.com)
Signature Date: 2025-06-12 - 7:1144 PM GMT - Time Source: server
Agreement completed.
2025-06-12 - 7:13:44 PM GMT
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