Grand Harbor Hotel - Assignment of Lease AgreementCity of Dubuque
City Council
Copyrighted
January 5, 2026
ITEMS SET FOR PUBLIC HEARING # 3.
ITEM TITLE: Grand Harbor Hotel - Assignment of Lease Agreement
SUMMARY: City Manager recommending City Council set a public
hearing for January 20, 2026, for the assignment of the
Lease Agreement for the Grand Harbor Hotel from Westdale
Capital Investors 3, LP to RG Hospitality, LLC.
RESOLUTION Fixing The Date For A Public Hearing Of The
City Council Of The City Of Dubuque, Iowa On An
Assignment Of The Lease Agreement Between The City Of
Dubuque, Iowa And Westdale Capital Investors 3, LP As
Successor In Interest To Platinum Holdings, LLC To RG
Hospitality, LLC, Fixing The Date For A Public Hearing Of
The City Council Of The City Of Dubuque, Iowa On The
Proposed Assignment Of The Lease Agreement, And
Providing For The Publication Of Notice Thereof
SUGGUESTED Receive and File; Adopt Resolution(s), Set Public Hearing for
DISPOSITION: January 20, 2026
ATTACHMENTS:
1. MVM Memo
2. Staff Memo
3. Resolution
4. Notice of Public Hearing
5. Assignment of Lease Agreement-Westdale
6. Assignment of Lease-RG Hospitality
Page 291 of 567
THE CITY OF
DUBE
Masterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Grand Harbor Hotel
Assignment of Development Agreement and Lease Agreement
DATE: December 29, 2025
Dubuque
AI WIN av
2007-2012.2013
2017*2019
City Attorney Crenna Brumwell is recommending City Council set a public hearing for
January 20, 2026, for the assignment of the Development Agreement and Lease
Agreement for the Grand Harbor Hotel from Westdale Capital Investors 3, LP to RG
Hospitality, LLC.
This public hearing was previously set for January 5, 2026, and through this new
resolution is being changed to January 20, 2026.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
v
Mic ael C. Van Milligen
MCVM:sv
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Page 292 of 567
THE CITY OF
DUB E
Masterpiece on the Mississippi
CRENNA M. BRUMWELL, ESQ.
CITY ATTORNEY
TO: MICHAEL C. VAN MILLIGEN, CITY MANAGER
DATE: DECEMBER 23, 2025
Dubuque
All•A�eNea 6Iq
1ml'o I
I I
2007-2012.2013
2017*2019
RE: GRAND HARBOR HOTEL
ASSIGNMENT OF DEVELOPMENT AGREEMENT AND LEASE AGREEMENT
Platinum Holdings, LLC (Platinum) and the City of Dubuque, Iowa (City) entered into a
Development Agreement dated June 19, 2000 as amended, for the development of five
acres into a hotel and water park resort. The parties also entered into a lease agreement
on June 4, 2001, as amended. A foreclosure action was filed by Westdale Capital
Investors 3, LP (Westdale) against Platinum resulting in a foreclosure judgment and sale.
Pursuant to the foreclosure, Westdale is the successor in interest to Platinum. RG
Hospitality, LLC purchased the property at the foreclosure sale. An assignment from
Westdale to RG Hospitality, LLC for both the Development Agreement and lease is
appropriate.
I respectfully request approval of the assignments from Westdale to RG Hospitality, LLC
be set for public hearing on January 20, 2026.
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 589-4381 / FAx (563) 583-1040 / EMAIL cbrumwel@cityofdubuque.org
Page 293 of 567
Prepared by Crenna Brumwell, City Attorney 300 Main Street Suite 330, Dubuque, IA 52001 (563) 589-4381
Return to Adrienne N. Breitfelder, City Clerk, 50 W. 13"' St., Dubuque, IA 52001, (563) 589-4100
RESOLUTION NO. 5-26
FIXING THE DATE FOR A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA ON AN ASSIGNMENT OF THE LEASE AGREEMENT BETWEEN THE CITY
OF DUBUQUE, IOWA AND WESTDALE CAPITAL INVESTORS 3, LP AS SUCCESSOR IN
INTEREST TO PLATINUM HOLDINGS, LLC TO RG HOSPITALITY, LLC, FIXING THE DATE
FOR A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA ON
THE PROPOSED ASSIGMENT OF THE LEASE AGREEMENT, AND PROVIDING FOR THE
PUBLICATION OF NOTICE THEREOF
WHEREAS, Platinum Holdings, LLC (Platinum) and the City of Dubuque, Iowa (City) entered
into a Lease Agreement dated June 14, 2001 (Lease Agreement), as amended; and
WHEREAS, Westdale is the successor in interest to Platinum pursuant to a foreclosure
judgment and sale; and
WHEREAS, Westdale desires to assign the Lease Agreement to RG Hospitality, LLC; and
WHEREAS, the City Council has tentatively determined that it would be in the best interests
of City to approve the Assignment from Westdale Capital Investors 3 LP as successor in interest to
Platinum Holdings, LLC. to RG Hospitality, LLC's Group, Inc.; and
WHEREAS, before said Assignment may be approved, Iowa Code §364.7 requires that the
City Clerk publish a notice of the proposal and of the time and place of the meeting at which the
City Council proposes to take action thereon and at which meeting the City Council shall receive
oral and/or written objections from any resident or property owner of said City to such proposed
action.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA THAT:
Section 1. The City Clerk is hereby authorized and directed to cause a notice to be published
as prescribed by Iowa Code Section 403.9 of a public hearing on the City's intent to approve the
Assignment of the Lease Agreement by and between City of Dubuque and Westdale Capital
Investors 3, LP as successor in interest to Platinum Holdings, LLC to RG Hospitality, LLC; to be held
on the 20t" day of January 2026, at 6:30 p.m. for the purpose of receiving public input and
comment regarding the proposed Assignment of the Lease Agreement between the City of
Dubuque and Westdale Capital Investors 3, LP as successor in interest to Platinum Holdings, LLC
to RG Hospitality, LLC.
Section 2. The City Council will meet at said time and place for the purpose of taking action on
the matter of approving the Assignment of the Lease Agreement
Section 3. The City Clerk is hereby directed to cause at least one publication to be made of a
notice of said meeting, in a newspaper, printed wholly in the English language, published at least
once weekly, and having general circulation in said City, said publication to be not less than four
days nor more than twenty days before the date of said meeting on the issuance of said
Obligations.
Section 4. That the notice of the meeting shall be in substantially the form attached hereto.
Passed, approved and adopted this 5t" day of January, 2026.
l
Brad M. Cavan - Mayor
Attest:
a�""' "4) , bk,
Adrienne N. Breitfelder, City Clerk
CITY OF DUBUQUE, IOWA
OFFICIAL NOTICE
PUBLIC NOTICE is hereby given that the Dubuque City Council will conduct a public
hearing on the 20th day of January, 2026, at 6:30 p.m., in the Historic Federal Building,
350 W. 6th Street, 2nd floor, Dubuque, Iowa, at which meeting the City Council proposes
to assign its Lease Agreement with Westdale Capital Investors 3, LP as successor in
interest to Platinum Holdings, LLC to RG Hospitality, LLC.
At the meeting, the City Council will receive oral and written comments from any resident
or property owner of said City to the above action. The official City Council agenda will be
posted the Friday before the meeting and will contain public input options. The agenda
can be accessed at https://dubugueia.portal.civicclerk.com/ or by contacting the City
Clerk's Office at 563-589-4100, ctyclerk@cityofdubuque.org.
Written comments on the public hearing may be submitted to the City Clerk's Office by
email at ctyclerk@cityofdubuque.org or by mail to City Hall, 50 W. 13th St., Dubuque, IA
52001, before the scheduled hearing. The City Council will review all written comments
at the time of the hearing.
Documents related to the public hearing are on file in the City Clerk's Office and may be
viewed Monday through Friday between 8:00 a.m. and 5:00 p.m.
Individuals requiring special assistance should contact the City Clerk's Office as soon as
feasible. Deaf or hard -of -hearing individuals can use Relay Iowa by dialing 711 or (800)
735-2942.
Published by order of the City Council given on the day of January 2026.
Adrienne N. Breitfelder, CIVIC, City Clerk
Page 296 of 567
ASSIGNMENT OF LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, WESTDALE CAPITAL INVESTORS 3, LP AS
SUCCESSOR IN INTEREST TO PLATINUM HOLDINGS, LLC., TO RG
HOSPITALITY, LLC
This Assignment Agreement, dated for reference purposes the 10;71` day of
made and entered into by and between the City of
Dubuque, Iowa, a municipal corporation ("City"), Westdale Capital Investors 3, LP, a
limited partnership doing business in Iowa ("Westdale") as successor in interest to
Platinum Holdings, LLC and RG Hospitality, LLC, a South Dakota limited liability
corporation.
WHEREAS, Platinum Holdings, LLC (Platinum) and the City of Dubuque, Iowa
(City) entered into a Lease Agreement dated June 4, 2001 (the Lease Agreement), as
amended, shown in Exhibit A; and
WHEREAS, Westdale is the successor in interest to Platinum pursuant to a
foreclosure judgment and sale; and
WHEREAS, Westdale desires to assign the Lease Agreement to RG Hospitality,
LLC; and
WHEREAS, City Council finds that consenting to the Assignment on the terms and
conditions set forth herein is in the best interests of the City of Dubuque.
NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS
FOLLOWS:
Section 1. Westdale here assigns to RG Hospitality, LLC all of its rights, title
and interest in the Lease Agreement with the City.
Section 2. RG Hospitality, LLC accepts the assignment of all of Westdale's
rights, title and interest in the Lease Agreement with the City and agrees to assume all
obligations and responsibilities in the Lease Agreement.
WESTDALE CAPITAL INVESTORS RG HOSPITALITY, LLC
3, LP AS SUCCESSOR IN INTEREST
TO PLATINUM HOLDINGS, LLC.
CONSENT TO ASSIGNMENT AGREEMENT
Page 297 of 567
The City of Dubuque, Iowa hereby consents to the foregoing Assignment
Agreement.
0
Brad M. Cavanagh, Mayor
Adrienne N. Breitfelder, City Clerk
Page 298 of 567
Exhibit A
Lease Agreement
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") made as of the 4"' day of June, 2001, by and
between the CITY OF DUBUQUE, IOWA, a municipal corporation (Lessor), and PLATINUM
HOLDINGS, LLC, an Iowa limited liability company (Lessee).
WHEREAS, Lessor and Lessee have entered into a certain Amended Development
Agreement dated as of January 15, 2001 (the "Development Agreement"); and
WHEREAS, the Development Agreement contemplates that the parties enter into a lease
for certain real estate in Dubuque County, Iowa;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, the parties hereto agree as follows:
ARTICLE 1
DEMISE AND TER,UI
1.1 Demise and Term. In consideration of the rents hereinafter reserved and the
terms, covenants, conditions and agreements set forth in this Lease, Lessor hereby leases to
Lessee the real property described in Exhibit A attached to and made a part of this Lease.
together with any and all easements and appurtenances thereto and subject to any easements and
restrictions of record (the "Demised Premises"), to have and to hold for an initial term
commencing as of the date of this Lease and ending on the 3r° day of June, 2051 (the "Ltitial
Term"), subject to all of the terms, covenants, conditions and agreements contained herein. On
completion of the Phase II Improvements (as defined in Section 3.1 of the Development
Agreement), the term shall be extended for the appropriate period of time in order that the Lease
term shall be fifty (50) years from the time the Lessee receives the Certificate of Completion
related to the completion of the Phase II Improvements.
1.2 Minimum Improvements. Lessee shall construct the Minimum Improvements (as
defined in Section 3.1 of the Development Agreement) in the time and manner required by the
Development Agreement.
1.3 Parking Use Agreement. In connection with this Lease, the Lessor and Lessee
shall enter into a Parking Use Agreement, in substantially the form of Exhibit G (the "Parking
Use Agreement"), pursuant to which the Lessor shall provide parking to Lessee a: no cost. The
Parking Use Agreement shall be transferable with this Lease and shall remain in effect for the
length of the Initial Term and any extension or renewal of this Lease.
ARTICLE')
RENT
Lessee shall pay Lessor (in addition to taxes, assessments, and other charges required to
be paid under this Lease by Lessee) rent for the Demised Premises as follows:
2.1 Base Rent, Until Lessee has received a Certificate of Completion for the
Exhibit A
Page 299 of 567
Minimum Improvements (as set forth in Section 3.4 of the Deveiopment Agreement), Lessee
shall pay Base Rent in the amount of $1.00 per year. For the first ten years of this Lease
following receipt of such Certificate of Completion, Lessee shall pay Lessor rent as follows:
Year
Amount
One throw Three
$22,860.00
Four through Five
i $30,480.00
Six through Seven
$45.720.00
Ei t through Nine
$53,340.00
Ten
$66.040.00
All such Base Rent shall be payable in twelve (12) equal monthly installments on the first
day of each month. Notwithstanding the foregoing, in the event that Developer completes the
Phase 11 Improvements in accordance with Section 3, I of the Development Agreement, the Base
Rent in effect at such time of completion shall become the Base Rent for an extended period of
three (3) years following such completion, and thereafter. the above schedule shall resume
unabated and in full and shall be extended by such additional three (3) year period.
Rental payable after the time such schedule has completed shall be computed as follows:
(1) The annual rental in effect at the completion of the above rental schedule
shall be adjusted by the percentage increase, if any, in the Consumer Price Index
for All Urban Consumers, U.S. City Average, All Items published by the Bureau
of Labor Statistics of the U.S. Department of Labor in effect on the
commencement date of the rental period immediately following the completion of
the above rental schedule over the base Consumer Price Index in effect on the date
one (1) year prior thereto. The annual rental computed under this subparagraph (i)
shall be the annual Base Rent for the Demised Premises for the one 0 year
period immediately following the completion of the above rental schedule. The
annual Base Rent shall be paid in twelve (12) equal monthly installments.
The annual rental for the one (1) year period following the rental period in
subparagraph ("i) above, and for each one (1) year period thereafter, shall be
adjusted by the percentage increase, if any, in the Consumer Price Index for All
Urban Consumers, U.S. City Average, All Items published by the Bureau of Labor
Statistics of the U.S. Department of Labor in effect on the commencement date of
the new one (1) year period over the base Consumer Price Index in effect on the
commencement date of the immediately preceding one (1) year period. The
annual rentals computed under this subparagraph (ii) shall be the annual Base
Rent for the Demised Premises for the one (I ) year period immediately following
the completion of the prior one ( 1) year penod. The annual Base Rent shall be
paid in twelve (12) equal monthly installments.
(iii) If during the Initial Term of this Lease, or any extension or renewal thereof,
the Bureau of Labor Statistics, U.S. Department of Labor, ceases to maintain said
Consumer Price Index, such other index or standard as will most nearly
accomplish the intent and purpose of the Consumer Price Index and the use
thereof by the parties hereto shall be used in determining the amount of any such
Page 300 of 567
adjustment.
ARTICLE 3
TITLE TO LMPRObT-NIENTS AND TRADE FIXTURES
3.1 Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean all of
Lessee's personal property located on the Demised Premises used in Lessee's business. Title to
Lessee's trade fixtures (the "Trade Fixtures") is and shall be the sole and exclusive property of
Lessee during the term of this Lease and shall remain the sole and exclusive property of Lessee
after the expiration or termination of this Lease, for whatever reason. Lessor acknowledges and
understands that it shall have no right, title or interest in or to Lessee's Trade Fixtures either
during the term of this Lease, or thereafter (except as hereinafter provided). Lessor
acknowledges and agrees that Lessee shall have the right to encumber, sell, or hypothecate
Lessee's Trade Fixtures, to remove them from the Demised Premises, or to otherwise deal with
all or any portion of such Lessee's Trade Fixtures, at Lessee's sole discretion. Upon ten (10)
days' prior written notice to Lessor, Lessor shall execute and deliver to Lessee a certificate in
recordable fonn prepared by Lessee stating that Lessor has no interest or right in or to Lessee's
Trade Fixtures, as well as any other or further document which Lessee may reasonably request
from Lessor.
3.2 Improvements. On delivery of possession of the Demised Premises to Lessee.
Lessee shall construct on the Demised Premises the Minimum Improvements as required by the
Development Agreement (the "Improvements"). It shall be unreasonable for Lessor to withhold
such consent if such design, appearance and quality are generally compatible with other such
buildings in the area. Subject to applicable law and the obligations imposed on Lessor as a
governmental entity, Lessor agrees to process as expeditiously as possible all permits, variances
and approvals reasonably required to develop and construct the Improvements on the Demised
Premises. All improvements presently on the Demised Premises and all Improvements hereafter
constructed on the Demised Premises are and shall be the property of Lessee during the
continuance of the term of this Lease and no longer. Subject to the payment obligations of Lessor
set forth below, upon any termination of this Lease, by reason of any cause whatsoever, if the
Improvements or any part thereof shall then be on the Demised Premises, ail of Lessee's right.
title, and interest therein shall cease and terminate, and title to the Improvements shall vest in
Lessor, and the Improvements or the part thereof then within the Demised Premises shall be
surrendered by Lessee to Lessor. No further deed or other instrument shall be necessary to
confirm the vesting in Lessor of title to the Improvements. However, upon any termination of
this Lease, Lessee, upon request of Lessor, shall execute, acknowledge and deliver to Lessor a
quitclaim deed confirming that all of Lessee's right, title and interest in or to the Improvements
have expired, and that title to the Improvements has vested in Lessor
ARTICLE 4
ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST
4.1 Lessee's R 9.h- to Encumber Leasehold Interest. Lessee may encumber by
mortgage, deed of trust or other proper instrument, its leasehold interest and estate in the
Demised Premises, together with all Improvements on the Demised Premises. as security for any
Page 301 of 567
indebtedness of Lessee, provided that no such encumbrance shall extend beyond the term of this
Lease. Lessee shall provide prompt written notice to Lessor of any such encumbrance together
with a copy of such encumbrance. In the event of any judicial or nonjudicial foreclosure under
any mortgage, deed of trust or other similar instrument made by Lessee covering its leasehold
interest in the Demised Premises, Lessor shall, upon such foreclosure or sale, recognize the
purchaser thereunder as lessee under this Lease, provided such purchaser expressly agrees in
writing to be bound by the terms of this Lease.
4.2 Notice to Holder of Encumbrance. Right of Holder to Cure Lessee's Default 1f
Lessee shall encumber its leasehold interest and estate in the Demised Premises and if Lessee, or
the holder of the indebtedness, its successors and/or assigns (the "Holder") secured by the
encumbrance shall give notice to Lessor of the existence of the encumbrance and the address of
the Holder, then Lessor shall mail or deliver to the Holder, at such address, a duplicate copy of
all notices in writing which Lessor may, from time to time, give or serve on Lessee under and
pursuant to the terms and provisions of this Lease. The copies shall be mailed or delivered to the
holder at, or near as possible to, the same time the notices are given to or served on Lessee. The
Holder may, at its option, at any time before the rights of Lessee shall be terminated as provided
in this Lease, pay any of the rents due under this Lease or pay any taxes and assessments, or do
any other act or thing required of Lessee by the terms of this Lease, or do any act or thing that
may be necessary and proper to be done in the observance of the covenants and conditiocs of this
Lease or to prevent the termination of this !_ease; provided, however, that the doing of any act or
thing requiring possession of the Demised Premises shall be subject to the further rights of
Holder as set forth in Section 16.2. All payments so made and all things so done and performed
by the Holder shall be effective to prevent a foreclosure of the rights of Lessee thereunder as the
same would have been if done and performed by Lessee.
ARTICLE 5
TAXES
Until Lessee has received a Certificate of Completion for the Minimum Improvements (as
set forth in Section 3.4 of the Development Agreement), the Lessor shall be responsible for all
real estate taxes levied, taxed or imposed upon the Real Estate. After the completion of the
Minimum Improvements, Lessee agrees to pay as additional tent an amount equal to real estate
taxes upon the real estate of the Demised Premises that become payable during the term hereof
and which would become delinquent if not so paid during the term hereof. Lessee shall further
provide to Lessor official receipts of the appropriate taxing authority or other evidence
satisfactory to Lessor evidencing payment thereof.
During the term of this Lease, Lessee further agrees to pay all other taxes, rates, charges,
levies and assessments, general and special, of every name, nature and kind, whether now known
to the law or hereafter created which may be taxed, charged, assessed, levied or imposed upon
said real estate and which become payable during the term hereof and which would become
delinquent if not so paid during the term hereof, any buildings or improvements thereon which
may be taxed, charged, assessed, levied or imposed upon the leasehold estate hereby created and
upon the reversionary estate in said real estate during the term hereof and which become payable
during the term hereof and which would become delinquent if not so paid during the term hereof,
and all such other taxes, rates, charges, levies and assessments shall be paid by Lessee as they
become due and before they become delinquent during the term hereof.
Page 302 of 567
Lessee agrees to timely pay all taxes, assessments or other public charges levied or
assessed by Iawful authority (but reasonably preserving Lessee's rights of appeal) against its
personal property on the premises, during the term of this Lease.
Nothing herein shall require Lessee to pay any of Lessor's income taxes, surtaxes, excess
Profit taxes or anv taxes on the rents reserved to Lessor hereunder.
Lessee shall at all times have the right to contest in good faith, in any proper proceedings,
in the name of Lessor if necessary, the payment or satisfaction of any such taxes, assessments,
rates, charges or levies so agreed to be paid by lessee, if the validity thereof, or the right to
ut
assess or levy the sae against or collect the same from said Demised Premises or
Improvements, shall be disputed, but only to the extent permitted under the ,Minimum
Assessment Agreement between Lessor and Lessee with respect to the Demised Premises. Upon
the conclusion of any such suit or proceedings, or not less than three (3) months prior to the date
when the right to redeem therefrom expires, whichever will be the earlier, Lessee shall promptly
pay and satisfy such disputed tax, assessment or other charge as finally, determined, together with
all expenses, costs and attorneys' fees whatsoever incurred in connection therewith.
ARTICLE 6
REPAIRS
Lessee shall at all times during the term of this Lease. at Lessee's own costs and expense,
keep the Demised Premises and the Improvements thereon, and all sidewalks, curbs, and all
appurtenances to the Demised Premises, in good order, condition and repair, casualties and
ordinary wear and tear excepted. Lessee shall keep and maintain the Demised Premises and all
Improvements in a condition consistent with other similarly classed operations. Lessee shall
keep the Demised Premises in such condition as may be required by law and by the terms of the
insurance policies famished pursuant to this Lease, whether or not such repair shall be interior or
exterior, and whether or not such repair shall be of a strucarral nature. Upon reasonable notice to
Lessee, Lessor may, at its discretion and at its cost, conduct an annual inspection of the Demised
Premises to determine Lessee's compliance with this Article 6.
ARTICLE 7
COMPLIANCE WITH LAW
7.1 During the term of this Lease. Lessee shall comply with all local, state and federal
laws applicable to Lessee's use of the Demised Premises. including but not limited to the
Americans with Disabilities Act.
7.2 Lessee shall not commit waste on the Demised Premises except as necessary for
its business purposes including the removal or construction of any buildings and Improvements
on the Demiscd Premises, and shall be liable for any damages to or destruction of any buildings
or Improvements on the Demised Premises resulting from waste and shall be required to repair or
rebuild such buildings or Improvements. Lessee may remove existing Improvements or construct
new Improvements on the Demised Premises subject to all of the terms and conditions of this
Lease provided Lessee has received the prior approval of Lessor, which approval Lessor shall not
unreasonably withhold.
Page 303 of 567
ARTICLE 8
ALTERATIONS
Lessee shall have the right, with Lessor's prior written consent which consent shall not be
unreasonably withheld for any such alteration, addition, or modification that exceeds Fifty
Thousand and 00/100 Dollars (550,000.00) in cost, at Lessee's expense, from time to time during
the term of this Lease to make any alteration, addition or modification to the Demised Premises
or the Improvements thereon.
ARTICLE 9
USE OF DEMISED PREMISES
Lessee shall operate the Improvements for the purposes outlined in the Development
Agreement and shall not knowingly use or allow the Demised Premises or any buildings or
Improvements thereon or any appurtenances thereto, to be used or occupied for any unlawful
purpose or in violation of any certificate of occupancy. Lessee shall not suffer any act to be done
or any condition to exist within the Demised Premises or in any Improvement thereon, or permit
any article to be brought therein, which is dangerous, unless safeguarded as required by law, or
which, in law, constitute a nuisance, public or private, or which may make void or voidable any
insurance in force with respect thereto.
During the exclusivitv period referred to in Section 4.2 of the Development Agreement,
Lessee agrees that at least seventy-five percent (75%), or not less than one hundred forty two
(142) rooms, of the hotel shall be reserved for group room reservations provided such group
room reservations are made with the Developer at least one (1) year in advance. In the event the
Phase 11 Improvements are constructed, Lessee agrees that at least sixty-five percent (65%), or
not less than two hundred (200) rooms, of the hotel shall be reserved for group room reservations
provided such group room reservations are made with Lessee at least one (1) year in advance.
For purposes of this Agreement, a suite shall be deemed to be one (1) room. After the
exclusivity period referred to in Section 4.2 of the Development Agreement, this paragraph shall
only apply if Lessee, or an entity affiliated with Lessee, is managing the conference and
education center owned by Lessor in the Ice Harbor District.
ARTICLE 10
INSURANCE
I0.I Lessee shall provide and maintain or cause to be maintained at all times during the
process of constructing Improvements (and, from time to time at the request of City, furnish City
with proof ofpayrnent of premiums on):
A. Builder's risk insurance, written on the Special Perils Form in an amount equal to
one hundred percent ( 100"•0) of the replacement value of Improvements as the same shall
exist frorn time to time during the construction process;
B. Commercial general liability insurance (including operations, contingent liability,
operations of subcontractors, completed operations and contractual liability insurance)
together with an Owner's Contractor's Policv with limits against bodily injury and
Page 304 of 567
property damage of not less than $2,000,000.00 for each occurrence (to accomplish the
above -required limits, an umbrella excess liability policy may be used); and
C. Worker's compensation insurance, with statutory coverage.
10.2 Upon completion of constnrction of Improvements, Lessee shall maintain, or
cause to be maintained, at its cost and expense (and from time to time at the request of City shall
famish proof of the payment of premiums on) insurance as follows:
A. Property insurance against loss and/or damage to Improvements under an
insurance policy written on the Special Perils Form in an amount not less than the full
insurable replacement value of Improvements, but any such policy may have a deductible
amount of not more than S50,000.00. No policy of insurance shall be so written that the
proceeds thereof will produce less than the minimum coverage required by the preceding
sentence, by reason of co-insurance provisions or otherwise, without the prior consent
thereto in writing by City. The term "replacement value" shall mean the actual
replacement cost of Improvements (excluding foundation and excavation costs and costs
of wtdergrowid flues, pipes, drains and other uninsurable items) and equipment, and shall
be determined from time to time at the request of City, but not more frequently than once
every three years, and paid for by Lessee.
B. Commercial general liability insurance, including personal injury liability for
injuries to persons and/or property, in the minimum amount for each occurrence and for
each year of $2,000,000.00.
10.3 All insurance required by this Article shall be taken out and maintained in
responsible insurance companies selected by Lessee which are authorized under the laws of the
State of Iowa to assume the risks covered thereby. Lessee shall deposit annually with City copies
of policies evidencing all such insurance, or'a certificate or certificates or binders of the
respective insurers stating that such insurance is in force and effect. Unless otherwise provided in
this Section, each policy shall contain a provision that the insurer shall not cancel or modify it
without giving written notice to Lessee and City at least thirty (30) days before the cancellation
or modification becomes effective. Lessee shall furnish City evidence satisfactory to City that the
policy has been renewed or replaced by another policy conforming to the provisions of this
Section, or that there is no necessity therefor under the terms hereof. In lieu of separate policies,
Lessee may maintain a single policy, or blanket or umbrella policies. or a combination thereof,
which provide the total coverage required herein, in which event Lessee shall deposit with City a
certificate or certificates of the respective insurers as to the amount of coverage in force upon
Improvements, provided, however, the specific limit shall riot be impaired.
10.4 Lessee agrees to notify City immediately in the case of damage exceeding
$500,000.00 in amount to, or destruction of, Improvements or any portion thereof resulting from
fire or other casualty. Net proceeds of any such insurance ("Net Proceeds"), shall be paid
directly to Lessee, and Lessee shall forthwith repair, reconstruct and restore the Improvements to
substantially the same or an improved condition or value as they existed prior to the event
causing such damage and, to the extent necessary to accomplish such repair, reconstruction and
restoration, Lessee shall apply the Net Proceeds of anv insurance relating to such damage
received by Developer to the payment or reimbursement of the costs thereof, subject. however, to
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the terms of any mortgage encumbering title to the Property.
10.5 Lessee shall complete the repair, reconstruction and restoration of Improvements,
whether or not the Net Proceeds of insurance received by Lessee for such purposes are sufficient.
ARTICLE. 1 I
LESSOR'S WARRANTIES AND REPRESENTATIONS
11.1 Lessor's Representation of Good Title. Lessor covenants and warrants that Lessor
is lawfully seized in possession of the Demised Premises, shall take all necessary steps to acquire
fee simple title to the Premises as required by law, and that it has full right and authority to enter
into this Lease for the full term hereof, and covenants and agrees that upon paying the rent
provided for herein, and upon Lessee's performing the covenants and agreements of this Lease
required to be performed by said Lessee, that it will have, hold and enjoy quiet possession of the
Demised Premises. Lessor warrants to Lessee that the Demised Premises are properly zoned for
the conduct of the operation of Lessee's business.
ARTICLE 12
LESSEE'S WARR,kNTIES AND REPRESENI-ATION
12.1 Lessee Compliance With I aw.
A. Lessee shall comply with all applicable local, state and federal laws, rules,
regulations and permits with regard to the Demised Premises and its use, occupancy and control
of the Demised Premises,
B. Without limiting the obligations of Lessor under Section 3.2, Lessee shall
be responsible for obtaining any and all applicable permits, licenses or authorizations as may be
necessary for Lessee's use, occupancy and control of the Demised Premises.
12.2 Environmental Matters.
A. Lessee covenants and agrees that Lessor shall have no responsibility for or liability
arising from any release of a Hazardous Substance which is caused by Lessee or its agents or
invitees. Notwithstanding any other provision of this Lease, Lessor agrees that Lessee shall not
have any responsibility for any Pre -Existing Condition (as defined below) nor shall Lessor seek
indemnification from Lessee for any such Pre -Existing Condition. There is a rebuttable
presumption that any Hazardous Substances found on the Demised Premises were not deposited
by Lessee and are a Pre -Existing Condition. A pre-existing condition ("Pre -Existing Condition")
shall be defined as (i) any Hazardous Substances found on the Demised Premises which were not
deposited by Lessee or its agents or invitees on the Demised Premises, Gi) any Hazardous
Substances on the Demised Premises prior to the Initial Term of this Lease, and (iii) any
Hazardous Substances which leach or migrate on to the Demised Premises from any adjoining
properties, including properties owned by the Lessor.
B. Notwithstanding any other provision of this Lease, the Lessor, in its capacity as both
owner of the Demised Premises as landlord under this Lease, shall retain any legal responsibility
or liability, subject to available defenses, the Lessor may have under law for any Pre -Existing
Page 306 of 567
Condition. This retained responsibility and duty includes the duty to assess, remove and
remediate Pre -Existing Conditions on or affecting the Demised Premises as ordered by a state or
federal agency, subject to the availability of a comfort letter. This provision shall not inure to the
benefit of third parties and shall not be interpreted to enlarge any liabilities owed by the Lessor or
to require the Lessor to absorb any duties, responsibilities or liabilities that it does not already
have for the Pre -Existing Conditions.
C. Lessee agrees to provide reasonable notice to the Lessor of any claims by adjoining or
affected property owners, thud parties, or parties making claims through a citizen action or
private right of action under applicable law, environmental statutes or regulations which arise out
of or are related to Pre -Existing Conditions on the Demised Premises. Upon receipt of such
notice, to the fullest extent allowed by law, the Lessor agrees to defend, hold harmless and
indemnify Lessee for costs and expenses associated with responding to any claims by adjoining
property owners, third parties, or parties making claims through a citizen action or private right
of action under applicable environmental statutes or regulations which arise out of or are directly
related to Pre -Existing Conditions on the Demised Premises.
D. To the fullest extent allowed by law, the Lessor agrees to indemnify Lessee for reasonable
costs and expenses associated with responding to any legally enforceable order regarding Pre -
Existing Conditions from any governmental agency or court with proper jurisdiction to the extent
that the Lessor, after Lessee has given reasonable notice of the governmental order to the City,
does not timely and reasonably respond to said inquiry or order and if the Lessee allows full
access to the Premises as necessary, as provided herein. The Lessor's right of appeal and
negotiation are not waived by the foregoing and the filing of h appeal or negotiation with the
governmental agency are considered timely and reasonable response. However, the Lessor
agrees to indemnify Lessee for any penalties and fines Lessee incurs as a result of any such
appeal or negotiation.
E. Lessor shall provide reasonable notice to Lessee prior to requesting access for the
Purposes set forth above. Lessee agrees to allow the Lessor to have access to and use of the
Demised Premises to times and locations which will minimize any disruption and which will not
materially or unreasonably interfere with the operation or possession of the Demised Premises as
required to respond to any governmental inquiry or order as described above. Except as set out
below, the terms of this provision shall not be construed to require that the Lessee is under any
obligation to Lessor to move, damage, or modify personal property, fixtures, or buildings on the
Demised Premises or to allow Lessor to affect or modify this Lease, whether by lien. easement,
or governmental order, except to the extent that use limitations and environmental protection
easements may be placed on the Demised Premises which do not change or interfere with the
actual or proposed use of the Demised Premises by Lessee. The Lessee agrees that it will not
install drinking water wells or otherwise obtain potable water for the purpose of consumption or
bodily contact from the groundwater underneath the Demised Premises and agrees to execute any
necessary waivers or easements to that effect. If the Lessor is required by a state or federal
agency to take such action which materially or unreasonably interferes with the operation or
Possession of the Demised Premises, or otherwise damages the propem, of Lessee, then the
Lessor shall be required to pay the reasonable costs associated with, such activity, including,
without limitation, loss of income, economic damages, property damage, and other costs and
expenses, whether temporary or permanent in nature, incurred by Lessee by reason of the
interference.
Page 307 of 567
B. Lessee covenants and agrees to promptly notify Lessor of any release of
Hazardous Substance in, on or about the Demised Premises of which Lessee has actual
knowledge.
C. Lessee covenants and agrees to promptly take any and all necessary and
appropriate response to address any release of Hazardous Substance for which Lessee is
responsible under Section 12.2A. Such response shall include, without limitation, notification to
appropriate governmental authorities, as may be required by law.
D. Lessee covenants and agrees to not manufacture, treat or dispose of
Hazardous Substances at the Dcmised Premises or knowingly allow the manufacture, treatment,
or disposal of Hazardous Substances same on the Demised Premises.
For the purposes of this Lease, "Hazardous Substance" or "Hazardous
Substances" means any hazardous or toxic substance, material or waste which is or becomes
regulated by any local government, the State of Iowa or the United States Government. It
includes, without limitation, any material or substance that is (i) defined as a "hazardous
substance" or "hazardous waste" under Chapter 4558, Iowa Code, (ii) petroleum and petroleum
products, (iii) asbestos containing materials in any forth or condition, (iv) designated as a
"hazardous substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33
U.S.C. § 1321), (v) defined as a "hazardous waste pursuant to § 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi) defined as a "hazardous
substance" pursuant to § I01 of the Comprehensive Environmental Response, Compensation and
Liability Act, U.S.0 § 9601 et seq., or (vii) defined as a "regulated substance" pursuant to
Subchapter [{, Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C.
§ 6991 et seq.] The term "Hazardous Substance" shall not include any air emissions discharged
into the atmosphere as allowed by a duly issued permit from the applicable governmental agency.
ARTICLE 13
INDEM UICATION
13.1 Indemnification of Lessee.
A. To the extent allowed by law, Lessor will indemnify and save harmless
Lessee from and against all liabilities, obligations, claims, damages, penalties, causes of action,
costs and expenses (including, without limitation, reasonable attorneys' fees and expenses)
imposed upon or incurred by or asserted against Lessee by reason of (a) any accident, injury to or
death of persons or loss of or damage to property occurring on or about the Demiscd Premises
and resulting from any act or omission of Lessor, (b) any failure on the part of Lessor to perform
or comply with any of the terms of this Lease and (c) any breach on the part of Lessor of any
warranty or representation contained in Article 11. In case any, action, suit or proceeding is
brought against Lessee by reason of such occurrence, Lessor will, at Lessor expense and
discretion, either defend such action, suit or proceeding, or cause the same to be defended by
counsel approved by Lessee, which approval will not be unreasonably withheld.
B. Lessee shall have the right to perform environmental site assessments of
the Demised Premises to assess the environmental condition of the Demised Premises for the
Page 308 of 567
purpose of constructing a hotel. Any results or reports created by such site assessment shall be
the property of Lessee and may be used by Lessee and Lessor for any purpose provided that
Lessor shall not disclose any such report or the information contained therein to any third party
unless required to do so by law or legal process.
13.2 Indemnification of Lessor. Lessee will indemnify and save harticss Lessor from
and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and
expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon
or incurred by or asserted against Lessor by reason of (a) any accident, iniury to or death of
persons or loss of or damage to property occurring on or about the Demised Premises during the
term of this Lease and resulting from any negligence of Lessee or anyone claiming by, through or
under Lessee during the term of the Lease and (b) any failure on the part of Lessee to perform or
comply in any material respect with any of the material terms of this Lease, and (c) any material
breach on the part of Lessee of any warranty or representation contained in Article I) In case
any action, suit or proceeding is brought against Lessor by reason of such occurrence, Lessee
will, at Lessee's expense and discretion, either defend such action, suit or proceeding, or cause
the same to be defended by counsel approved by Lessor, which approval will not be unreasonably
withheld.
13.3 Survival. The obligations and liabilities under this Article shall survive and
continue in full force and effect and shall not be terminated, discharged or released, in whole or
in pan, irrespective of the termination or expiration of the term of this Lease.
ARTICLE 14
CONDEMNATION
14.1 Entire Condemnation. If at any time during the term of this Lease all or
substantially all of the Demised Premises or the Improvements thereon shall be taken in the
exercise of the power of eminent domain by any sovereign, municipality or other public or
private authority, then this Lease shall terminate on the date of vesting of title in such taking and
any, prepaid rent shall be apportioned as of said date. Substantially all of the Demised Premises
and the Improvements thereon shall be deemed to have been taken if the remaining portion of the
Demised Premises shall not be of sufficient size to permit Lessee, in Lessee's sole discretion, to
operate its business thereon in a manner similar to that prior to such taking.
14.2 Allocation of Award. Any award for such taking of all or substantially all of the
Demised Premises shall be paid to the parties hereto in accordance with the following:
A. To Lessor, the amount of the award attributable to the Demised Premises,
determined as if this Lease was not in effect at the time of such award, excluding
therefrom the amount of the award attributable to the Improvements, and all other sums
not directly attributable to the value of the land constituting the Demised Premises;
B. To Lessee, the entire award except that portion allocated to Lessor above.
3.3 Partial Conde ru atiQn. If less than all or substantially all of the Demised Premises
or the Improvements thereon shall be taken inthe exercise of the power of eminent domain by
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any sovereign, municipality or other public or private authority, then Lessee, at its option, may
elect to continue this Lease ut full force and effect or terminate this Lease. If Lessee shall elect to
maintain this Lease in hill force and effect, the award for such partial condemnation shall be
allocated as provided in Section 14.2, and Lessee shall proceed with reasonable diligence to carry
out any necessary repair and restoration so that the remaining Improvements and appurtenances
shall constitute a complete structural unit or units which can be operated on an economically
feasible basis tinder the provisions of this Lease. In the event Lessee elects to continue this Lease
in full force and effect after a partial condemnation, the Base Rent shall be reduced in proportion
to the area of the Demised Premises taken.
Should Lessee elect to terminate this Lease upon a partial condemnation, Lessee shall
provide Lessor with written notice of such election within thirty (30) days after the date of
vesting of title for such taking. Lessee shall specify in such written notice the date on which this
Lease shall terminate, which date shall be not less than 60 days nor more than 360 days after
delivery of such notice to Lessor (the "Termination Date"). In the event Lessee terminates this
Lease, as provided for in this Section 13.3. Lessee shall be entitled to the entire award for such
partial taking.
14.4 Temporary Taking. If the temporary_ use of the whole or any part of the Demised
Premises or the Improvements thereon or the appurtenances thereto shall be taken at any time
during the term of this Lease in the exercise of the power of eminent domain by any sovereign,
municipality, or other authority, the term of this Lease shall not be reduced or affected in any
way, and Lessee shall continue to pay in full the rent, additional rent and other stun or sums of
money and charges herein reserved and provided to be paid by Lessee, and the entire award for
such temporary taking shall be paid to Lessee. Lessee shall repair and restore any and all damage
to the Demised Premises and the Improvements as soon as reasonably practicable after such
temporary taking.
14.5 Effect of Taking. If any taking renders the construction of the hotel and'or water
park impossible. any financial penalties set forth in Section 1.3 due after such taking shall not be
applicable.
ARTICLE 15
ASSIGNMENT AND SUBLE7TLNG
Prior to the issuance of the Certificate of Completion ("as defined in Section 3.4 of the
Development Agreement) for the Minimum Improvements, this Lease may not be assigned by
Lessee without the prior written consent of the Lessor. After the issuance of the Certificate of
Completion, the Lessee shall have the right to transfer and assign this Lease to a third party,
subject to the consent of Lessor which consent shall not be unreasonably withheld, provided said
third parr agrees to comply with the terms and conditions of this Lease.
ARTICLE 16
DEFAULT
16.1 Lessor's Rights in the Event of Lessee's Default. If Lessee shall fail or neglect to
observe, keep or perform any of the covenants. terms or conditions contained in this Lease on its
Page 310 of 567
pan to be observed, kept or performed, and the default shall continue for a period of thirty (30)
days after written notice from Lessor setting forth die nature of Lessee's default (it being
intended that in connection with a default not susceptible of being cured with diligence within
thirty (30) days, the time within which Lessee has to cure the same shall be extended for such
period as may be necessary to complete the same with all due diligence, but in no event longer
than ninety (90) days), then and in any such event, Lessor shall have the right at its option, on
written notice to Lessee, to terminate this Lease. Lessor shall thereafter have the right to enter
and take possession of the Demised Premises with process of law and to remove all personal
propert}, from the Demised Premises and all persons occupying the Demised Premises and to use
all necessary force therefor and in all respects to take the actual, full and exclusive possession of
the Demised Premises and every part of the Demised Premises as of Lessor's original estate,
without incurring any liability to Lessee or to any persons occupying or using the Demised
Premises for any damage caused or sustained by reason of such entry on the Demised Premises or
the removal of persons or property from the Demised Premises.
16.2 Rights of Holder of Encumbrance in Event Lessee Defaults. If Lessee fails or
neglects to observe, keep or perform any of the covenants, terms or conditions contained in this
Lease on its part to be observed, kept or performed, the Holder of any indebtedness secured by an
encumbrance on the leasehold estate under this Lease shall have thirty (30) days after receipt of
written notice from Lessor setting forth the nature of Lessee's default and a reasonable time
thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature
thereof within such thirty (30) days and is diligently prosecuting such proceedings, but in no
event longer than ninety (90) days, within which to endeavor to make good or remove the default
or cause for termination of the Lease. All right of Lessor to terminate this Lease on the failure or
neglect of Lessee to observe, keep and perform the covenants, terms and conditions of this Lease
is, and shall continue to be, at all times prior to payment in full of the indebtedness to the Holder
of Lessee, subject to and conditioned on Lessor's having first given the Holder written notice
thereof and the Holder having failed to cause the default or cause for termination to be made
good or removed within thirty (30) days after receiving written notice of default or cause for
termination or within a reasonable time thereafter if it shall have commenced foreclosure or other
appropriate proceedings in the nature of foreclosure within such thirty (30) days and is diligently
prosecuting such proceedings, but in no event longer than ninety (90) days. In the event that the
Lease is terminated due to the Lessee's bankruptcy, insolvency or other proceedings, and in the
event the Holder has complied with the terms of this Section 16.2, then Lessor at Holder's
option., shall enter into a new lease with Holder or the successful bidder at foreclosure on the
same terms as this Lease, for the term then remaining, and specifically preserving all unexercised
options.
16.3 Lessee's Rights in the Event of Lessee's Default. if Lessor shall faii or neglect to
observe, keep or perform any' of the covenants, terms or conditions contained in this Lease on its
pan to be observed, kept or performed, and the default shall continue for a period of thirty (30)
days after wTitten notice from Lessee setting forth the nature of Lessoi s default (it being intended
that in connection with a default not susceptible of being cured with diligence within thirty (30)
days, the time within which Lessor has to cure the same shall be extended for such period as may
be necessary to complete the same with all due diligence, but in no event longer than ninety (90)
days). then and in any such event. Lessee shall have all rights available to t provided by law or
equity.
ARTICLE 17
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RIGHT TO CURE OTHER'S DEFAULTS
Whenever and as often as a party shall fail or neglect to comply with and perform any
term, covenant, condition or agreement to be complied with or performed by such party
hereunder, then, following thirty (30) days' prior written notice to such defaulting party (or such
additional time to cure as may be accorded Lessee pursuant to Section 16.1 above, but in no
event longer than ninety (90) days), the other party, at such other party's option, in addition to all
other remedies available to such other party, may perform or cause to be performed such work,
labor, services, acts or things, and take such other steps, including entry onto the Demised
Premises and the Improvements thereon, as such other party may deem advisable, to comply with
and perform any such term, covenant, condition or agreement which is in default, in which event
such defaulting party shall reimburse such other party upon demand, and from time to time, for
all costs and expenses suffered or incurred by such other party in so complying with or
performing such term, covenant, condition or agreement The commencement of any work or the
taking of any other steps or performance of any other act by such other party pursuant to the
immediately preceding sentence shall not be deemed to obligate such other party to complete the
curing of any term, covenant, condition or agreement which is in default.
ARTICLE 18
QUIET ENJOY'vTENT
Lessor covenants that at all times during the term of this Lease, so long as Lessee is not in
default hereunder, Lessee's quiet enjoyment of the Demised Premises or any part thereof shall
not be disturbed by any act of Lessor, or of anyone acting by, through or under Lessor.
ARTICLE 19
ESTOPPEL CERTIFICATES
Each party hereto agrees that at any time and from time to time during the term of this
Lease, within ten (10) days after request by the other party hereto or by any lender having an
interest in Lessee's leasehold estate, it will execute, acknowledge and deliver to the other party or
to such lender or any prospective purchaser, assignee or any mortgagee designated by such other
party, a certificate stating (a) that this Lease is unmodified and in force and effect (or if there
have been modifications, that this Lease is in force and effect as modified, and identifying the
modification agreements), (b) the date to which rent has been paid, (c) whether or not there is any
existing default by Lessee in the payment of any rent or other sum of money hereunder, and
whether or not there is any other existing default by either party hereto with respect to which a
notice of default has been served, and, if there is any such default, specifying the nature and
extent thereof, and (d) whether or not there are any setoffs, defenses or counterclaims against
enforcement of the obligations to be performed hereunder existing in favor of the party executing
such certificate.
ARTICLE 20
WAIVER
No waiver by either party hereto of any breach by the other of any tom, covenant,
condition or agreement herein and no failure by any party, to exercise any right or remedy in
respect of any breach hereunder, shall constitute a waiver or relinquishment for the fume of any
Page 312 of 567
such term, covenant, condition or agreement or of any subsequent breach of any such term,
covenant, condition or agreement, nor bar any right or remedy of the other party in respect of any
such subsequent breach, nor shall the receipt of any rent, or any portion thereof, by Lessor,
operate as a waiver of the rights of Lessor to enforce the payment of any other rent then or
thereafter in default, or to terminate this Lease, or to recover the Demised Premises, or to invoke
any other appropriate remedy which Lessor may select as herein or by law provided.
ARTICLE 21
SURRENDER
Lessee shall, on the last day of the term of this Lease or upon ary termination of this
Lease, surrender and deliver up the Demised Premises, with the improvements then located
thereon into the possession and use of Lessor, without fraud or delay and in good order, condition
and repair, reasonable wear and tear excepted, free and clear of all lettings and occupancies, free
and clear of all liens and encumbrances other than those existing on the date of this Lease and
those, if any, created by Lessor, without (except as otherwise provided herein) any payment or
allowance whatever by Lessor on account of or for any buildings and Improvements erected or
maintained on the Demised Premises at the time of the surrender, or for the contents thereof or
appurtenances thereto. Lessee's Trade Fixtures, personal property and other belongings of I.essee
or of any sublessee or other occupant of space in the Demised Premises shall be and remain the
property of Lessee, and Lessee shall have a reasonable time after the expiration of the term of
this Lease (not to exceed thirty (30) days) to remove the same.
ARTICLE 22
MEMORANDUM OF LEASE
Each of the parties hereto will, promptly upon request of the other, execute a
memorandum of this Lease in a form suitable for recording setting forth the names of the parties
hereto and the term of this Lease, identifying the Demised Premises, and also including such
other clauses therein as either party may desire, except the amounts of Basic Rent payable
hereunder.
ARTICLE 23
NOTICES
23.1 All notices, demands or other writings in this Lease provided to be given or made
or sent, or which may be given or made or sent, by either party to the other, shall be deemed to
have been fully given or made or sent when made in writing and deposited in the United States
mail. registered and postage prepaid, and by facsimile addressed as follows:
TO LESSOR: City of Dubuque, Iowa
City 4fanager
Citv Hall
13d, and Central Avenue
Dubuque IA 42001
Fax 319 589.4149
TO LESSEE: Platinum Holdings, LLC
Page 313 of 567
801 Jackson St.
Dubuque, lA 52001
23.2 The address and/or fax number to which any notice, demand or other writing may
be given or made or sent to any party as above provided may be changed by written notice given
by the party as above provided.
ARTICLE 24
MISCELLANEOUS
24.1 Time of the Essence. Time is of the essence of this Lease and all of its provisions.
24.2 Governing Law. It is agreed that this Lease shall be governed by, construed and
enforced in accordance with the laws of the State of Iowa.
24.3 Paraeravh Heading. The titles to the paragraphs of this Least are solely for the
convenience of the parties and shall not be used to explain, modify, simplify or aid in the
interpretation of the provisions of this Lease.
24.4 Modification of Agreement. Any modification of this Lease or additional
obligation assumed by either party in connection with this Lease shall be binding only if
evidenced in a writing signed by each party or an authorized representative of each party.
24.5 Parries Bound. This Lease shall be binding on and shall inure to the benefit of
and shall apply to the respective successors and assigns of Lessor and Lessee. All references in
this Lease to "Lessor" or "Lessee" shall be deemed to refer to and include successors and assigns
of Lessor or Lessee without specific mention of such successors or assigns.
24.6 Force Majeure. In the event that either party hereto shall be delayed or hindered
in or prevented from the performance of any act required hereunder by reason of strikes,
lockouts, labor troubles, unavailability of construction materials, unavailability or excessive price
of fuel, power failure, riots, insurrection, war, terrorist activities, explosions, hazardous
conditions, fire, flood, weather or acts of God, or by reason of any other cause beyond the
exclusive and reasonable control of the party delayed in performing work or doing acts required
under the terms of this Lease (collectively "Force Majeure"), then performance of such act shall
be excused for the period of the delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay.
24.7 Conflict. To the extent there is a conflict of terms between the Development
Agreement and this Lease, the terms of the Development .Agreement shall control.
24.8 Entire Agreement. This Agreement, along with the Development Agreement and
,Minimum Assessment Agreement, constitutes the entire agreement between the Lessor and the
Lessee regarding the tease of the Demised Premises and supercedes all previous oral or written
agreements between the parties regarding the subject matter of this Lease.
Page 314 of 567
LESSOR:
CITY OF DUBUQUE, IOWA
�!� / J
Attest: / l� � � _. �.: �J By:
eanne F. Schneider, City Clerk JpRobbins, Mayor Pro Tem
LESSEE:
PLATINUM HOLDINGS, LLC
By:
J= P. Rix, Manager
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this —r day of /� , _ 2001, before me, the undersigned, a Notary Public
in and for the State of Iow"ersonally appeared James P. Rix, to me personally known, who
being by me duly swom, did say, that he is the Manager of the limited liability company
executing the within and foregoing instrument to which this is attached; that said instrument was
signed on behalf of the limited liability company by authority of its Managers; and that James P.
Rix, as Manager, acknowledged the execution of the foregoing instrument to be the voluntary act
and deed of the limited liability company, by it and by him vo tarily executed.
I otary Public, State of Iowa
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this �/ day of 2001, before me, the undersigned, a Notary Public
vta�
in and for the State of lopersonally appeared James T. Robbins and Jeanne F. Schneider, to
me personally known, who, being by me duly sworn, did say, that they are the Mayor Pro Temp
and City Clerk, respectively, of the City of Dubuque, Iowa, executing the within and foregoing
instrument, that no seal has been procured by the corporation; that said instrument was signed on
behalf of the City, by authority of its City Council; and that Joseph T. Robbins and Jeanne F.
Schneider, as Mayor Pro Tern and City Clerk, respectively, acknowledged the execution of the
foregoing instrument to be the voluntary act and deed of the City, by it and by them voluntarily
executed.
Notary Public. State of Iowa
Page 315 of 567
Page 316 of 567
ASSIGNMENT OF LEASE AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, WESTDALE CAPITAL INVESTORS 3, LP AS
SUCCESSOR IN INTEREST TO PLATINUM HOLDINGS, LLC., TO RG
HOSPITALITY, LLC
This Assignment Agreement, dated for reference purposes the day of
, is made and entered into by and between the City of
Dubuque, Iowa, a municipal corporation ("City"), Westdale Capital Investors 3, LP, a
limited partnership doing business in Iowa ("Westdale") as successor in interest to
Platinum Holdings, LLC and RG Hospitality, LLC, a South Dakota limited liability
corporation.
WHEREAS, Platinum Holdings, LLC (Platinum) and the City of Dubuque, Iowa
(City) entered into a Lease Agreement dated June 4, 2001 (the Lease Agreement), as
amended, shown in Exhibit A; and
WHEREAS, Westdale is the successor in interest to Platinum pursuant to a
foreclosure judgment and sale; and
WHEREAS, Westdale desires to assign the Lease Agreement to RG Hospitality,
LLC; and
WHEREAS, City Council finds that consenting to the Assignment on the terms and
conditions set forth herein is in the best interests of the City of Dubuque.
NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS
FOLLOWS:
Section 1. Westdale here assigns to RG Hospitality, LLC all of its rights, title
and interest in the Lease Agreement with the City.
Section 2. RG Hospitality, LLC accepts the assignment of all of Westdale's
rights, title and interest in the Lease Agreement with the City and agrees to assume all
obligations and responsibilities in the Lease Agreement.
WESTDALE CAPITAL INVESTORS RG HOSPITALITY, LLC
3, LP AS SUCCESSOR IN INTEREST
TO PLATINUM HOLDINGS, LLC.
By: _ By: -
CONSENT TO ASSIGNMENT AGREEMENT
Page 317 of 567
The City of Dubuque, Iowa hereby consents to the foregoing Assignment
Agreement.
Brad M. Cavanagh, Mayor
Attest:
Adrienne N. Breitfelder, City Clerk
Page 318 of 567
Exhibit A
Lease Agreement
LEASE AGRFEME.NT
11-ITS LEASF AGREFIVMNT (the "Lease") made is of the 4' day of June, 2001, by and
between the CITY OF DUBUQUE I JOWA, a municipal corporation (Les=), and PLAT]ilum
HOLDINGS, LLC, an Iowa limited liability company (Us.sce).
WHEREAS, Lessor and Lessee have entered into a certain Amended Development
Agreement dated as of January 15,2001 (the "Development Agreement"); and
WHEREAS, the DeVeloprrtent Agreement COnteMP13W5 that the parties enter into a lease
for certain real estate in Dubuque County, Iowa:
NOW, THEREFORE, in consideration of the mutual covenants and agreen-jents set forth
herein., the parties hereto agree as follows-.
ARTICLE I
,DENUSE AND TERIM
Ll Demise and Term. It, consideration of the rents hereinafter reserved and the
terms. Covenants. conditions and agreements set forth in this Lease, Lessor li-reby leases to
Lessee the real property described in Fxhlbit A attached to and made a part of this Lease.
together with any and all casements and appurtenances therew and subject to any easements and
restrictions of record. (the "Demised Prcinises"), to have and to hold for an initial term
commencing as of the date of this Lease and ending on the 3a day of June, 2051 (the "Initial
Term"), subject to all of the terms, covenants, Conditions- and agreements contained herein. On
completion of the Phase IT Improvements (as defined in Section 11 of the Development
Agreement), the ien-ashallbe extended for the appropriate period of time in order that the Lease
term shall be fifty (50) Ye -us from the time the Lessee receives the Certificate of Completion
related to the completion of the Phase 11 Improvements.
1.2 MinirnqLn �Im kqytuLents. Lessee shall construct the Minimum improvements (as
defined in Sec-ii7on-3.1 of the Development Agreement) in the time and manner required by tltc
Development Agreement,
L3 Parking Use Agreemen. In connection with this Lease, the Lessor and Lessee
shall enter into , _ a Parking Use Agreement, in substantially the form of Exhibit G (tht "Parking
Use Agreement"), pursuant to which the Lessor shall provide parking to Lessee '1: no cost. The
Parking Use Agreement shall be transferable with this Lease and shall remain in effect *or the
length of the hiiiial Term and any extension or renewal of this I, ease.
ARTICLE
IKE N[T
Lesse,4 shall Pay Lessor (in addition to taxes. assess.-nents, and other charges required w
be paid under this Lease by Lessee) rent for the Demised Premises as follows:
2.1 Base Rent, Until Lessee has received a Certificate of Compietion for the
Exhibit A
Page 319 of 567
Minimum improvements (as set forth in Section 3.4 of the Development 'agreement), Lessee
shalt pay lase Rent in the amount of 51.00 per year. 'For the first ten rears of this Lease
following receipt of such Certificate of Completion, Lessee shall Fay Lessor rent as fallotivs:
Year Atriutuit
One throe _ Threes $22,8G0.t)f!
Toter through five i 530,E&0.C!0
Six through Seven S45,7:6.00
--- —�
Eight titrouP,h Kline j 553,341).0{1
Ten — S66.040.00
All such Base (tent shall be payable in twelve { € 2}equal monthly installments on the first
day of each month. Notwithstanding the foregoing, in the event that Developer completes the
Phase R Improvements in accordance with Section 3.1 of the Development Agreement, the Base
Rent in effect at such time of -completion shall become the Base Rent for an extended period of
three (3) years following such completion, and thereafter. the above scheduiv shall resume
unabated and in full and shall be extended by such additional three (3) year period.
Rental payable after the time such schedule has completed shall be computed as follows
{il The annual rental in effect at the completion of the above rental schedule
shall. be adjusted: by the percentage increase, if any, in the Consumer Price Index
for All Urban Consumers, U.S. City Averaste, Ali Items published by the Bureau
of Labor Statistics of the U.S. Depaaiment of Labor in effect on the
commencement date of the rental period immediately following the completion of
the above rental schedule over the base Consumer Price Index in effect on the date
one ( I) year prior thereto. The annual rental computed under this subparagraph (i)
shall be the Annual Base Rent for the Dernised Premises fur the one (1) year
period immediately following the completion of the above rental schedule. The
annual Base Rent shall be paid in twelve (12) equal monthly installments.
(ii) The annual rental for the one (1) year period followving the rental period in
subparagraph (i) above, and for each one (1) year period thereafter, shall be
adjusted by the percentage increase, if any, in the Consumer Prkc Index foe All
Urban Consumers, U.S. City Average, All 1_ems published by the Bureau of Labor
Statistics of the U.S. Depanment of Labor in effect on the commencement date of
the new one (1) year period over the base Consumer Pricc Indent in effect an the
eommmcement date of the immediately preceding one (1) year period. The
annual rentals computed under this subparagraph (ii) shall be the annual Base
Rent for the Deanised Premises for the one 0') year period immediately following
the completion of the prior one I'.) year period. Tk annual Base Rent shall be
paid in twelve (121 equ24' tnondtly installments.
If during the Initial Term of this Lease, or any extgnsion o_ renewal thereof,
the Bureau of Labor Statistics, U.S, Department of Labor, ceases to maintain said
Consumer Price Index, such tither index or standard as ,will most nearrly
accomplish the intent aid purpose of the Consumer Price h-,dex and the use
thereof by fic parties hereto shall be used i , deternuaing Elie amount of fany such
Page 320 of 567
adjustment.
ARTICLE 3
TITLE TO EMP1 OVEIVIFFNTS AND TRADE FLXT IRES
3.1 Trade Fixtures. For the purposes of this Lease, "Trade Fixtures'shall mean all of
Lessees personal property located on the Demised Premises used ui Lessee's business. Title to
Lessee's trade fixtures (the "Trade Fixtures') is and shall be the sole and exclusive property of
Lessee during the term of this Lease and shall remain the sole and exclusive property of Lessee
after the expiration or tenninatiun.of this Lease, for whatever reason. Lessor acknowledges and
understands that it shall have no right, title or interest in or to Lessee's Trade Fixtures either
during the term of this Lease; or thereataer (except as hereinafter provided), lessor
acknowledges and agrees that Lessce shall have &c right to encumber, sell, or hypothecate
Lessee's Trade Fixtures, to remove them from the Demised Premises, or to otherwise deal with
all or any portion of such Lessee's Trade Fixtures, at Lessec's sole discretion. Upon ten (10)
days' prior written notice to Lessor, Lessor shall execute and deliver to Lessee a certificate in
recordable form prepared by Lessee slating that Lessor has no interest or right in or to Lessee's
Trade 'Fixtures, as well as arty other or further document which Lessee may reasonably request
from Lessor.
3.2 i� WLo.vements. On delivery of possession of the Demised Premises to Lessee,
Lessee shall construct on the Dernised Premises the Minimum improvements as required by the
Development At�reement (the "Improvements"). It shall be unreasonable for Lessor to withhold
such consent if such design, appearance and quality are generally compatible with other such
buildings in the, area. Subject to applicable law and the obligations imposed on Les!ior as a
governmental entity, Lessor agrees to process as expeditiously as possible all permits, variances
and approvals reasonably required to develop and. construct the Irnprovernents on the Dernised
Premises. All improvements presently on the Demised Premises and all Improvements hereafter
constructed on the Demised Premises are and shall be the property of Lessee daring the
continuance of the term of this Lease and no longer. Subject to the payment obligations of Lessor
set forth below, upon any termination of this Lease, by reason of any cause whatsoever, if the
Improvements or any part thereof shall then be on the Demised Premises.. ail of Lessee's right.
tide, and interest therein shall cease and terminate, and title to the improvements Shall vest in
Lessor, and the Improvements or the part thereof there .within the Demised Premises shall be
surrendered by Lessee to Lessor. N,o further deed or cutter instrarrnent shall be necessary to
confirm the vesting in Lessor of title to the Improvements. However, upon any termination of
this Lease, Lessee, upon request of Lessor, shall execute, acknowledge and deliver to Lessor a
quitclaim deed cotifirming that all of Lessee's right, title aced interest in or to the Improvements
have expired, and that title to the Improvements has vested in Lessor.,
I
ARTICLE 4
ENCLTrlftRAltiCE OF LESSEE'S LE:ASI�.FiOLT) INTEREST
4.1 Lessee's ltitxht to Fntitmiser Leasghoid interest.. Lessee may encumber by
mortgage, deed of trust or other proper instrument, its leasehold interest and estate in the
Demised Premises.. together with all lmprovements ore the Demised Premises_ as security for any
Page 321 of 567
indebtedness of Lessee, provided that no such encumbrance shall extend beyond the term of this
Lease. Lessee shall provide prompt written notice to Lessor of any such encumbrance together
with a copy of such encumbrance. In the event of any judicial or nonjudicial foreclosure under
any mortgage, deed of trust or other similar instrument made by Lessee, covering its leasehold
interest in the Deraised Premises, Lessor shall, upon such foreclosure or sale, rccogtii2e the
purchaser thereunder as lessee under this Lease, provided such purchaser expressly agrees in.
writing to be bound by the terms ofthis Lease.
4.2 ?notice to I[older of Encumbrance: —Rig ht of Holder to Cure Lessee's T�efault. If
Lessee shall encumber its leasehold interest and estate in the Demised Premises and if Lessee, nr
the holder of the indebtedness, its successors andlor assigns (the "Holder") secured by the
encumbrance shall give notice to Lessor of the existence of the encumbrance and the address of
the Holder, then Lessor shall mail or deliver to the holder; at such address, a duplicate copy of
all notices in writing which Lessor may, from time to rime, give or serve on Lessee under and
pursuant to the terms and provisions of&is Lease, The copies shall be mailed or delivered to the
Holder at, or near as possible to, the saute time The notices are given to or served an lessee. The
.Holder may, at its option, at any time before the rights of Lessee shall be terminated as provided
in this .Lease, pay any of the rents due under this Lease or pay any taxes and assessments, or do
any other act or thing required of Lessee by the terms of this Leasc. or do any act or thing that
may be necessary and proper to be done in the observance of the covenants and conditions of this
Lease or to prevent the tennination of this Lease; provided, however., that the doing or arty act or
thing requiring possession of the Demised Premises shall be subject to the fatt:-er rights of
Holder as set forth in Section 16.'. All payments so made and all things so done and performed
by the Holder shall be effective to prevent a foreclosure of the rights of Lessee theremder as the.
same would have been if done and performed by Lessee.
AM ICLE 5
TAXES
Lentil Lessee has received a Certificate of Completion for the Minimum Improvements (as
set forth in Section =.4 of the Development Agreement). the Lessor ,shah be responsible for all
real estate taxes levied, taxed or imposed upon the Real Fstate. After the-omplciion of the
Mirnimum lmprovetments, Lessee agrees To pay as additional tent an amount equal to rear estate
taxes upon the real estate of the Remised Premises that become payable during the term hereof
and which would become del nqut m if not so paid during the term hereof. Lessee shalt further
provide to Lessor afficial receipts of the appropriate taxiing authority or other evidence
satisfactory to Lessor evidencing payment thereof.
During the term of this Lease, Lessee further agrees to pay all other taxes, rates, charges..
levies and assessments, general and special, of every name, nature ar<d kind, t+Whether now known
to the lave or hereafter created which may be taxed, charged, assessed, levied or imposed upon
said real estate and which become payable during the term hereof and which would become.
delinquent if not so paid dewing the term hereof, any buildings or improvements :hereon which
may be taxed, charged, assessed levied or imposed upon thee leasehold estate hereby creatcJ and
upon the reversionary estate in said real estate during the term hereof and whi,.h become payable
during the term hereofand which would become delinquent if not so -paid during the term hereof,
and all such other taxes, rates, charges, levies aatd assessments shall be paid Iry Lessee as they
become due and before they become delinquent during the terra hereof.
Page 322 of 567
Lessee agrees to timely pay all taxes, assessments or other public charges IcOed or
assessed by lawfijI authority (but reasonably preserving Lessees rights of appeal) against its
personal property on the premises, during thetermof this Lease.
Nothing herein shall require Lessee to pay any of Lessor's income taxes, surtaxes, excess
profit taxes or any taxes on the rents reserved
to Lessor hereunder.
Lessee shall at all times have the right to contest in good faith, in any proper proceedings,
in the -name of Lessor if necessary, the payment or satisfaction of any such taxes, assessments,
rates, charges or levies so agreed,to be paid by Lessee, if the Validity thereof, or the right to
assess or lcvry the same against or collect the same from said Demised Premises or
Improvements, shall be disputed, but 0111Y IG the extent permitted under the Ntinimurn
Assessment Agreement between Lessor and Lessee with respect to the Demised Premises. Upon
the conclusion of any such suit or proceedings, or not less than three (31 months prior to the date
when the right to redeem therefrom expires, whichever will be the: earli-cr. Lessee shall promptly
pay and satisfy such disputed tax, assessment or other charge as finally deter -mined, together with'
all expenses, costs and attorneys' fees whatsoever incurred in connection. therewith.
ARTICLE 6
REPA IRS
Lessee shall at all times during the term of this Lease, at Lessee's own costs and expense,
keep the Dert-dsed Premises and the Improvements thereon, and all sidewalks, curbs, and all
appurtenances to the Demised Premises, in good order, condition and repair, casualties and
ordinary wear and tear excepted, Lessee shall keep and maintain the Demised Premises and Al
Improvernents; in a condition consistent with other similarly classed operations. Lessee shall
keep the Demised Premises in such condition as may be required by law and by the terms of the
insurance policies furnished pur
suant to this Lease, whether or not such repair shall be interior or
exterior, and whether or not such repair shaft be of structural nature. L.'pon reasonable notice to
Lessee, Lessor rray,
at its discretion and at its cost, conduct an aria" inspection of the Dernised
Premises to determine Lessee's compliance with This Article 6.
ARTICLE 7
COMPLLANCE Wl 1711 LAW
7,1 During the term of this Lease. Lessee shall comply with all local. state and federal
laws applicable to Lessee's use of the Demised Premises. including but not limited to the
Americans with Disabilities Act.
7-2 Lessee SWI not commit waste on the Demised Premises except as necessary for
its business Purposes including the removal or cQnstti;:tion or
f any buildings and Improvernenis
on the Demised Premises, and shalt be liable for any damages to or destrualon ol' ally
buildings
or 1 4
mprovernents on the Demised Premises resulting from waste anJ shall be required to repair or
rebuild such buildings or Improvements. Lessee may remove existing Irnprovements or S.onstnic(
new Improvements on the Demised Premises subject to all of The terms and conditions of this
Lease provided Lessee has received the prior approval of"Lessor, which approval Lessor shall no,
unreasonably withhold -
Page 323 of 567
ARTICLE: &
ALTERATIONS
Lessee shall have the right, with Lessor's prior written consent which consent shall not be
unreasonably withheld for tent such alteration, addition, or modification that exceeds Fifty
Tbousand and 00 100 Dollars (S50,000.00) in cost, at Lessee's expense:, from time to time during
the terrn of this [.ease to [Hake any alteration, addition or modification to the Demised Premises
Or tht llnprovetnents thereon.
ARTICLE 9
USE. OF DENGSEI7 PREMISES
Lessee shall operate the Improvements for the purposes outlined. in the .Development
Agreement and shall not knowingly use or allow the Demised Premises or any buildings or
itnproveinents thereon ur any appurtenances thereto, to be used or occupied for any unlawfiil
purpose or in violation of any certificate. of occupancy. Lessee shall trot suffer any act to be done
or any condition to exist widen the Demised Premises or in any Improvement thereon, or permit
any article to be brought therein, which is dangerous, unless safeguarded as required by lain, or
which, in law, constitute a nuisance, public or private, or which may make void or voidable any
insurance in force with respect therein.
During the exclusivity period referred to in Section 4." of the Development Agreement,
Lessee agrees that at least seventy-five percent (75%), or not less than one hundred forty two
(142) rooms, of the .hotel shall be reserved for group room reservations provided such group
roorn reservations are [trade with the Developer at least one (1) year in advance. In the event the
Phase I1 Improvements are constructed, Lessee agrees that at least sixty-fiVe percent (65%), or
not less than tvvo hundred (2010) rooms,, of the hotel shall be reserved for group room reservations
provided such group room reservations are made with Lessee at least one (1) year in advance..
For purposes of this Agreement, a suite shall be deemed to be one (t) room. After the
exclusivity period referred to in Section 414 ofthe Development Agreement, this paragraph shall
only apply if Lessee, or an entity affiliated with Lessee, is managing the conference and
education center owned by Lessor in the ice Harbor District.
ARTICLE 10
WSURANICE
10.I Lessee shall provide and maintain or cause to be tnainmined at 11 titrles daring; the
process of constructing Improvements (and, from time to time at the requesi of City. furnish City
with proof rtf pa ment of premiums on)
A. Builder's risk insurance; written on tite Special Perils Forms in at: amount equal to
one hundred percent (1005io) of the replacement value ofimprovemcnts as the same shall
exist f:orn time to time during the construction process,
B, Commercial general liability insurance (including operations, Conti scent liabilityE
operations of subcontractors. completed operations and contractual liability insurance)
together with an Owner's Contractor's Polit'v with limas against 1odily miury and
Page 324 of 567
property damage of not less than S2,00o,000.00 for each occurrence (to accomplish the
above.: -required limits, an umbrella excess liability policy may be used); and
C . Worker's compensation insurance, withstatutory coverage_
10.2 Upon completion of construction of improvements, Lessee shall maintain, or
cause to be maintained, at its cost and. expense (and from time to time at the request of City shall.
htmish proof of the payment of premituns on) insurance as follows:
A. property insurance against loss an(Vor damage to Improvements under art
insurance policy vwhtten on the Special Perils Form in an amount not less than the full
insurable replacement value of Improvements, but any such policy may have a deductible
amount of not more than .S50,00[1.M No policy of insurance shall be so written that the
proceeds thereof will produce less than the minimum coverage required by the preceding
sentence, by reason of co-insurance provisions or otherwise, without the prior consent
thereto in writing by City. The term "replacement value" shall mean the actual
replacement cost of Improvements (excluding foundation and excavation costs and costs
of underground flues, pipes, drains and oche; uninsurable items) and equipment; and shall
be determined from time to time at the request of City, but not more frequently than once
every three years, and paid for by Lessee.
13. C'onunaercial general liability insurance, including personal injury liability for
injuries to persons and/or property, in the minimum amount for each occurrence and for
each year of S2,000,000,W
10.3 All insuratice required by this Article shall be taken out and maintained in
responsible insurance companies selected by Lessee which are authorized under the laws of the
State of Iowa to assume the risks covered thereby. Lessee shall deposit annually with City, copies,
of policies evidencing all such insurance, or a certificate or certificates or binders of the
respective insurers stating that such insurance is in force and effect. (,unless otherwise provided in
this Section, each policy shall contain a provision that the insurer shall not cancel or modify it
without giving written notice to Lessee and City w least thirty (30) days before the cancellation
or modification becomes effective._ Lessee shall furnish City evidence satisfactory to City that the
policy has been renewed or replaced by another policy conforming to the provisions of this
Section, or that there is no necessity therefor under the terms hereof. In lieu of separate policies,
Lessee truly maintain a single policy, or blanket or umbrella policies., or a combination thereof,
which provide the total coverage required herein, in which event Lessee shall deposit with City a
ceriticate or certificates ref the respective insurers a,; to the amount o ' coverage in force upon.
Improvement:;, provided however, the specific l trait shall. not be impairer'.
I0A Lessee agrees to notify City immediately in the case of darnaue exceeding
SSt70'wo_oo in Mount to, or destruction of. Improvements or any portion ther�or resulting from
fire or other casualty_ Net proceeds of any such insurance ("Net proceeds"), shall be paid
directly to Lessee, and Lessee shall forthwith repair, reconstruct and restore the Improvements to
substantially the same or an improved condition, or value as they existed prior to the event
causing such darnage and, to the extent necessary to accomplish such repair, reconstruction and
restoration, Lessee shall apply the Net Proceeds of any insurance relating to such damage
received by Developer to the payment or reimbursement of the costs thereof.. subject. however, to
Page 325 of 567
the tertrss of any mortgage encumbering title to the Propertv.
10-5 Lessee shall complete the repair, reconstruction and restoration of Improvements,
whether or not the Net Proceeds of insurance received by Lessee for such purposes are sufficient,
ARTICLI~ II
LESSOR'S WARR.AItITIES AND REPRI'.SENTATIONS
11.1 Lessor's.R esentation ofCood Title. Lessor covenants and warrants that i essor
is Ia`4vfully seized in possession of the Dernised Premises, shalll take all necessary steps to acquire
fee simple title to the Premises4 as required by law, and that it has full right and authority to enter
into this Lease for the full term hereof, and covenants and agreea that upon paying the rent
provided for herein, acid upon Lessee's performing the covenants and agreements of this Lease
required to be performed. by said Lessee, that it will have, hold and enjoy quiet possession of the
Demised Premises. Lessor warrants to Lessee that the Demised Premises are properly zoned for
the conduct of the operation of Lessee's business.
ARTICLE 12
LESSEE'S WARRANT1ES AND REPRESENTATION
1.2.1 Lessee C_e.mpliance. With I aw.
A. Lessee shall comply with all applicable local, state and federal laws, rules,
regulations .and permits with regard to the Demised Premises and its use, occupancy and control
of the Demised Prentises.
B_ Without limiting the obligations of Lessor under Section 3 Lessee shall
be responsible for obtaining any and all applicable permits, licenses or authorizations as Play be
necessary for Lessee `s use, occupancy and control of the Dernised. Premises.
12.2 Environmental. Matters,
A. Lessee covenants and agrees that Lessor shall have no responsibility for or I;ability
arising from any release of a Hazardous Substance which is caused by Lessee or its agents or
invitees. Notwithstanding any ether provision of this Lease, Lessor awes that Lessee shall not
have any responsibility for any Pre -Existing Condition (as defined below) nor shall Lessor seek
indemnification from Lessee for any such Pre -Existing Condition,. There is a rebuttable
presumption that any Hazardous Substances found on the Remised Premises were not deposited
by Lessee and are a Pre -Existing Condition. A pre-existing condition ("Pre -Existing Condition')
shall be detned as (i) any hazardous Substances found on the Demised Premises which were not
deposited by Lessee or its agents or invitees on the D.-mised Prerruses, (ii} any Hazardous
Substances on the Demised Premises prior to the Initial Terris of this Lease, and fiii) any
Hazardous Substances which leach or migrate on to the D=ised Premises from any adjoining
properties, including properties owned by the Lessor.
B. Nomithstanding any other provision of this Lease, the Lessor, itt its capacity as both
owner of the Dernised Premises as landlord under this Lease. shall retain any legal responsibility
or liability, subjczt to available defenses. the 'Lessor ma-, have under law for any Prc-Existing
Page 326 of 567
Condition, This retained responsibility and duty includes the duty to assess, remove and
remediate Pre -Existing Conditions on or afftcting the Demised Premises as ordered by a state or
federal agency, subject to the availability of a comfort letter. This provision shall not inure to the
benefit of third parties and shall not be interpreted to enlarge any liabilities owed by the Lessor or
to require the Lessor to absorb any duties, responsibilities or liabilities that it does not already
have for the Pre -Existing Conditions,
C, Lessee agrees to provide reasonable notice to the Lessor of any claims by adjoining or
affected property owners, third parties, or parties making claims through a citizen action or
private right of action under applicable law, environmental statutes or regulations which an
out
of or arerelated to Pre -Existing Conditions on the Demised .Premises. Upon receipt of such.
notice, to the fullest extent Allowed by law, the Lessor agrees to defend, hold harmless and
indemnify Lessee for costs and expenses associated with responding to. any claims by adjoining
Property owners, third parties, or parties making claims through a citizen action or private right
of action under applicable environmental statutes or regulations which arise out of or are directly
related to pre -Existing Conditions on ILe Demised Premises.
D. To the fullest extent allowed by law, the Lessor agrees to indemnify Lessee for reasonable
costs and expenses associated with responding to any legally enforceable order regarding Pre -
Existing Conditions from any governmental agency or court with proper jurisdiction to the extent
that die Lessor, after Lessee has given reasonable notice of the governmental order to the City,
does not timely and reasonably- respond to said inquiry or order and if the Lessee allows fun
access to the Premises as necessary, as provided herein. The Lessor's right of appeal and
negotiation are not waived by the foregoing. and the filing of an appeal or negotiation with the
governmental agency are considered. timely and reasonable response. However, the lessor
agrees to indemnify Lessee for arty penalties and fines lessee incurs as a result of anv such
appeal or negotiation.
E. Lessor shall provide reasonable notice to lessee prior to requesting access for the
Purposes set forth above. Lessee awes to allow the Lessor to have access to and use of the
Demised. Premises to tunes and locations which will minimize any disruption and which will not
materially or unreasonably interfere with the operation or possession of the Remised Premises as
required to respond to any governmental inquiry or order as described above. Except as set out
below, the terms of this provision shall not be construed to require that the Lessee is under any
obligation to Lessor to move, damage; or modify personal property, fixtures. or buildings on the
Demised Premises or to allow Lessor to affect or modify this Lease, whether by Iien. easement,
or governmental order, except to the extent that use limitations and envi.ronrnenta! protection
easements may be placed on the Demised Premises which do not change or interfere with die
actual or proposed use of the Demised Premises by Lessee. The Lessee agrees that it will not
install drinking water wells or otherwise obtain potable water for the purpose of consumption or
bodily contact from thegroundwater underneath the Dernised Premises and agrccs to execute any
necessary -waivcr.1 or castnwnts to that effect, if the Lessor is required by a state or federal
agency to take such action which tnateria]hv or unreasonably interferes with rate operatic-) or
possession of the Demised Premises, or otherwise damages the propertY of Lessee• then the
Lassos shall be required to pay the reasonable costs associated With- such activity, including,
without limitation, loss of income, economic dit mages, property damage, an other costs; and
expenses, whether temporary or permanent in nature, incurred by Lessee by reason of the
interference.
Page 327 of 567
B. Lessee covenants and agrees to PrOMPtlY notify Lessor Of any release of
FlazardotLs Substance in, on or about the Demise-' premises of which Lessee' has actual
knowledge.
C. Lessee covenants and agrees to promptly take aiiy and all necessary and
appropriate response to address any release of Hazardous 'Substance for which Lessee is
responsible under Section ]21,22A. Such response shall include, without limitation.. notification t I o
appropriate gu+,'etnmenl-d Butl'Oriiiel;, as may be required by law.
D, Lessee covenants and agrees to not manufacture, treat or dispose of
Hazardous Substances at the Demised Premises or knowingly allow the rnanufactu!e, treatment,
or disposal of flazardous Substances same an the Dernised Premises_
For the purposes of this Lease, "Hazardous Substance" or "Hazardous
Substances" meam any hazardous or toxic substance, material or waste which is or becomes
regulated by any local government, the state of Iowa or the United States Government. Tt
includes, without limitation, any material or substance that is (i) defined as a "hazardous
L
substance- or "hazardous waste" under Chapter 45SH, Iowa Code, (n) petroleum and petroleum
products, (iii) asbestos containing materials in any form or condition, (M designated as a
"hazardous substance pursuant to. Section 3 j ] of the Federal Water Pollution Control Act (33
U-S,C. § 1121), (v) defined as a "hazardous Waste pursuant to § 1004 of the Federal Resource
Conservation and Recovery Act, 42 US.C. §6901 et seq., (vi) defined as a "hazardous
substance" pursuant to § i0l of tile Coinprehensive Environmental Response. Comperisatior and
Liability Act.. U-S.0 § 9601 et seq. , or (vii) defined as a "regulated substance" puUtizat to
Subchapier JX, Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U,S-C,
§ 6991 ex, seqj The term "Hazardous Substance" shall not include any air emissions discharged
into the atmosphere as allowed by a duly issued Per-rili(finni the appli,;able goverrianc.ital agency
ARTICLE 13
I-NMENNIFICAMN
1.3.1 Indemnification of J,tssce.
A-1 To the extent illowed by law. Lessor will indemnity ,;nd save harmless
Lessee ttorn and aga
inst all liabilities, obligations, claims, damages, penalties, causes of action,
costs and expenses (includinj�, without limitation, reasonable attorneys' fees and expenses)
imposed upon or incurred by orrice tc f against Lessee by reason of 0j 0 an accidem. injury to or
death of persons or loss of Or daMdge to Proptr[v Occurring on or a . bout the Deritised Prep -uses
and resulting ftorn art} act (g, omission of Lessor, b) any -failure on the pan of Lessor to perform
or comply with any of the terms; (if this 1,Ljse and (6 any breach on the par. of Lessor of any
WalTwIry or representatior, contained ui Article I I, In case any action, suit or prOceedirg is
brought against by reason 04' such occurrence, Lessor ' twill, at Lessor I expense . and
discretion, either defend such action. suit or proceeding, or causL the same to be defended by
counsel approved lay Lcs5ec..which approval will not be unreasonably withlield.
B. Lessee shall have the rigla to perform enviroorrien,31 site assessments nt
Lhe Denii.,;cd Premises To assess the cnvironrrienla7 condition of tile Dcmise� .
I . I F7eaii�i— for the
Page 328 of 567
purpose of constructing a hotel. Arty results or reports created by such site assessment shall be
the property of Lessee and may be used by Lessee and Lessor for any purpose provided that
Lessor shall not. disclose any such report or the, information contained therein to any third party
unless required to do so by law or legal process.
13.2 Indemnification of Lessor. Lessee will indem—nify and save hart dess Lessor from
and against all liabilities. obligations, claims, damages, penalties, causes of action, costs and
expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon
or incurred by y or asserted against Lessor by reason of (a) any accident, injury tLv or death of
persons or loss of or damage to property occurring on or about the Demised Premises during the
te
st of this Lease and resu iting from any n I - - negligence of Lessee or anyone claiming by, through or
under Lessee during the term of the Lease and (b) any failure on the part of Lessee to perforin or
comply in any material respect with any of the material terms of this Lease, and (c) any material
breach on the part of Lessee of any warranty or representation contained in Article 12, In case
any action, suit of proceedLng is brought against Lessor by reason of such occurrence, Lessee
will, at Lessee's expense --tid discretion, either defend such action, suit or proceeding, or cause
the same to be defended by counsel approved by Lessor, which approval will rut be unreasonably
withheld
13.3 Survival. 'I'he obligations and liabilities under this Article shall survive and
continue in full fort; and effect and shall not be terminated, discharged or released, in whole or
in part, irrespective of the termination or expiration of the term of this Lease.
ARTICLE 14
COINJOEMNATION
143 Entire Condemnation. If at any time during the term of this Lease all or
substantially all of theDemised Premises or the �L e en the
Improvements therro. shall b rake in
exercise of the power of eminent domain by any sovereign, municipality or other public or
private authority, then this Lease shall terminate ori the date of vesting of title in such taking and
any prepaid rear shall be apportioned as of said daze. Substantially all of the Demised Premises
and the Improvements thereon shall be, deemed it) have been taken if trite remaining portion of the
Demised Premises shall not be of sufficient size to permit Lessee, in Lessee's so?a discretion, to
operatic its business thereon in a manne-, similar to that prior to such taking.
14.2 Allocatio ofkAyard. Any award for such taking of all or substannaNy all of the
Demised Premises shall be paid to the parties hereto in accordance with the foJowin'.1
A, To Lessor, the amount of the award attributable to the DeqtiseJ Prervises,
determined as if this Lease was not in effect at the time of such award, esccluding
therefrom the amount of the award attributable to the Improvements. and 11: cattier sums
not directly attributable to the value of the Land constituting the Demised Premises,-
B. To Les5ct, the entire award except that portion allocated Lessor above.
:4 3 Partial Cqp4emiation. If less than all or subsmntiafly ail of the Demised premises
or the lmprov4t.ments thereon shall be taken in the exercise of the power of arnirlent domain by
Page 329 of 567
any sovereign, municipality or other public or private authority, then Lessee, at its option. may
elect to continue this Lease iri full force and efilect or terminate this Lease. If Lessee shall elect to
maintain this Lease in full force and effect, the award for such partial condemnation shall be
allocated as provided in Section 14.2, and Lessee shall proceed with reasonable diligence to carry
out any neces".ry repair and restoration so that the remaining bnrrovementF and appurtenances
shall constimte a complete structural unit or tinits which can be operated on an economically
feasible basis under the provisions of this Lease. In the event Lessee elects to continue this Lease
.in full force and effect after a partial condemnation, the Base Rent shall be reduced in proportion
to the area of the Demised Premises taken.
Should J.tssee elect to terminate this [.ease upon a partial. condemnation. Lessec shall
provide LCSSOT with written notice of such election within thirty (30) days aftei t!ic date of
vesting of title for such taking. Lessee shall specify in such written notice the date on which this
Lease shall terminate, which date -shall be not less than 60 days nor more than 360 days after
delivery of such notice to Ussor (the "Termiriation gate"}. In the event Lessee terminates this
Lease, as provided for in this Section 13.3 Lessee shall be entitled to the entire award for such
partial taking.
14.4 'Y akt, If the teinporan, use of the whole or any part of the Dernised
Premises or the Improvements thereon or the appurtenariccs 'thereto shall be taken at any time
during the term of this Lease in the exercise of the power of eminent domain by a.-,v sovereign,
municipality, or other authority, the term of this Lease shall not be reduced or affected in any
wmy, and Lessee shall continue to pay in full the rent, additional. rent and other surn or sums of
money and charges herein reserved and provided to be paid by Lessee, and the entire award for
such temporary taking shall be paid to Lessee. Lessee shall repair and restore any and all damage
to the I)em;scd Premises and the Improvements as soon as reasonably practicable after such
temporary taking,
14.5 Effect of Taking. If any taking renders the construction of the hotel andior water
park impossible, any financial peralties set forth in Section I.! due after such taking shall not be
applicable.
ARTICLE 13
ASSIGNIN1ENT AMN) SUBLF17UNG
Prior to the issuance of the Certificate of Completion (as defined irt `Section' 3-4 of the
Development Agreement'i for the Minimum Improvements, this Lease may' not be assigned by
I.essce without the prior %witlen -=sent of the Lessor. After the issuance of the Certificate of
Completion, the Lessee shall have the right to transfer and issign this Lease to a third party,
subject to the consent of Lessor which consent shall not be unreasonably withhe!d16 provided said
third parry agrees to comply with :he it!mis and conditions of this Lease.
ARTICLE 16
DEFAULT
16.1 L-evior s Right, injjig E cent of I. essec's ]Default. If Lessee shill fail or neglect to
observe. keep or perform any orthe covenants- terms or conditions contained in 'h;, I ease on its
Page 330 of 567
pan to be observed, kept or performed, and the default shall continue for e period of thirty (30)
days after written notice from Lessor setting f6rth the nature of Lessee's default (it being
intended that in connection with a default not susceptible of being cured with diligence, within
thirty (30) days, the time within which Lessee has to cure the same shall be extended for such
period as may be necessary to compete the sauii, with all due diligence, but m. jio event longer
than ninety (4O) days), then and in any such event, Lessor shall have the right at its option, Oil
written no
tice otice to Lessee, to terminate this Lease. Lessor shall thereafter have the right to enter
and take possession of the Dernised Premises with process of law and to remove all personal
property from ihe Demised Premises and all persons occupying the Demised Premises and to use
all necessary force therefor and in all respects to take the actual, full and exclusive possession of
the Demised Premises and every.
part of the Demised Premises as of Lessor's original estate,
wld,out inctwring any liability to Lessee or to any parsons occupying or using the Demised
Premises for any damage caused or sustained by reason of such entry art the Demised Promises or
the removal of persons or property from the Demised Prerrdses.
16,? R hts of holder of Enciplibrance in Fvqnt Lessee Defaults., if Lessee fails or
neglects to observe, keep or perform any of the covenants, terms or conditions contained in this
Lease on its part to be observed, kepj or performed, the Holder of any indebtedness secured by an
encumbrame on the leaqclioid estate under this Lease shall have thirty (30) days after receipt of
written notice from Lessor setting forth the nature of Lessce's defatilt and a reasonable time
thereafter if it shall have commenced foreclosure or othler appropriate proceedings in the nature
thereof within such thirty (30) days and is diligewdy prosecuting such proceedings, but in no
event longer than ninety (90) days, within which to endeavor to make good or ramove the default
or cause for termination of tlac Lease- All right of Lessor to terminate this Lease on the failure or
neezbo of Lessee to obser,,e, keep and perform the covenants, terms aad conditions of this Lease
is- and shall continue to be, at all times prior to paNment in ful I of the indebtedness to the Holder
of Lessee, subject to and conditioned on Lessor's having first given the Holder written notice
thereof and the Holder having failed to cause the default or cause for tenilination to be made
good or removed withij- thirty (30) days after receiving written notice of &,fiult o., cause for
termination or within a reasonable time ilicteafter if it -.hall have commenced fbrcolosure or other
appropriate proceedings in the nature of foreclosure wiihin such thirty (30) dly�- and is diligently
pro5ccuting such proceedings. but in no event loaner than ninety (90) days. fn the event that the
[-ease is terminated daze to the Lessee's bankruptcy, insolvency or other proceedings, and in the
event the, Holder has complied with the terns of this Section 16,2, then Lessor at Holder's
option, shall enter into a new lease with Holder o,- ilia successful bidder ai foreclosure on the
same terms as this Lease, tier the term then mmaining, and specifically prescn ing; all, itnexercised
options
163 Ussee's Rights in the Fvenl of Lessee's Default. If Lessor shall fail OT neglect to
observe, keep Or perform any or the coveaints, terms or conditions contained in this Lease on its
pan to br. onserved, kept or performed, and the default sha;1 continue for a period if thirty (30)
day-, air Nvritten notice from Lessee setting faith the nature of Lessors default (it being intended
that in connection with a default not susceptible of being cured with diligence within thirty (30)
:noes, the time within which Lessor his to curt the same shalt' !,a extended for sij,:h period as may
be it"essary to Cr mpiete the Salute
. , with sli disc diligence, but in no event longer than nineqy (90)
days,), that: and in any such even'. Lessee shall h3vc ,if! rights avail to i:p1m,-idc,I bvl:allv Of
equiry.
ARTICLE 17
Page 331 of 567
RIGHT TO CURE O-HIER'S DEFAULTS
Whenever and as Often as a party shall fail or neglect to comply with and perform
any
term, covenant, condition or agreement to be Complied with or performed by such party
hereunder, then, following thirty ('30) days' Prior written notice TO Such defaulting party (or such
additional time to cure as may be atcorded Lessee pursuant to Section 16.1 above, but in no
event longer than ninety (90) days), the other party, at such other party's. option, it: addition to all
other remedies available to such other party., may perfinn-n or cause to be performed such work-,
labor, services, acts or things, and lake such other steps, including entry onto the Demised
Premises and the LmprovLrnents thereon, as such other part) may deem advisable, to comply wi
th
and perform any such term, covcnam, condition or agreement which is in default, in which event
such defaulting, party shall reimburse such other party upon demand. and from lime to time, for
all costs and expenses sutfered or incurred by such other party in so complying with or
performing " such term, covenant, condition or agreement The co.!runeoremcnt of any work or the
taking Of`anY Other steps or Performance of any other act by such other party pursuant to, the
immediately preceding sentence shall not be deerred to obligate such other part . % to complete the
curing Of any term, covenam, condition or agreement which is in default,
ARTICLE.18
QlAE-T ENJOYMENT
Lessor covenants that .9tall times during the term of this Lease, so long as Lessee isnot in
default hereunder, Lessee's quiet enjoy . ment of the Demised Premises or any pan thereof shall
not be disturbed by any act of Lessor, or of anyone acting by, fluough or und
er r f.cssor,
ARTICLE 19
ESTOPPEL CERf'[FJC.ATES
Each party hereto agrees that at arty time and trorn titre to time during he term of this
Lease, wMin ten (10) days after request by the other pam, hereto or by a:-'y -'ander having an
interest ir, Lessee's leasehold estate, it will execute, acknowledge anti deliver tothe Qt4cr part), or
to such lender Or arty prospective purchaser, assignee or any mortgagee designated be such other
party, a certificate stating (a) that this Lease is untriodifie'd and in force and effect. (or if there.
have been modifications, that this Lease is in force aid effect as modified, and idLn-if.ing the
modification agreements), (b) the date, to which rent has been paid, (6 whether of not [here is any
existing default by Lessee in the PaY-Ment Of any rent or other sum of irioney hereunder, and
whether or not there is any other existing default by either party hereto with respect to which a
roticc of default has been served. and, if there is any such default,, specifying She nature and
extent thereot", and (d) whether or rout there are any seloffi, defenses or coi,terc:-.1.ni.s against
crifof cement of the obtigatiQns to be Performed hereunder existing in
favor of j-'e pzrtd executing
such certificate
ARTICI L 7-10
W MVER
No -aiver by eid)CT Party hereto of any breach by the other of any covenant,
cond;110n or agreement licicia and no failure by -Y party 10 exercise any righi or remedy in
resvect of an,,.- breach hereunder, shall constitute a "'aiver or relinquishment fo- fuL-,jr--- of any
Page 332 of 567
such term, covenant, condition or agreement or of anv subsequent breach of any such term,
covenant, condition or agmement, nor bar any right or remedy of the other party in respect of any
such subsequent breach., nor shall tile receipt of any rent, or any portion on thereof, by Lessor,
operate as a waiver of -d)(.,, rights of Lessor In enforce the payment of any other rent there or
thereafter in default, or to !erminate this Lease, or to recover the Demised Premi5es, or to invoke
any other appropriate remedy which Lessor may select as herein or by law provided.
ARTICLE -11
SIYRRE-NDFR
Lessee shall, on the last day of the tern of this Lease or upon ary termination Of this
Lease swTezider and deliver up the Demised Pi-ciiiises, with the 1,n)piovements then Joeated
thereon into the possession and use of Lessor. without fraud or delay .and in good order, condition
and repair, reasonable weir and tear excepted, free and clear of all lettings and occupancies, free
and clear of all liens and encumbrances other than those existing
on the date of this Lease and
those, if any, created by Lessor, without (except as oth;mise provided herein) any payment or
allowance whatever by Lessor on account of or for any buildings and Jrriprovements erected or
maintained on the Dernised Premises at the time of the surrender, or for the c-oments thereof or
appurtenances thereto. Lessee's Trade Fixtures. per5onal properly arid Other belongin
gs of Lessee
or of any sublessee or ether occupant of space in the Dernised Premises shall be and remain the
property of Lessee, and [,t:ssee shall 11,2!vc a reasonable time after the expiration of the term of
this Lease (not to exceed thkiy (30) days) to remove the same-
ARTICIZ 22
MEMORANDUM OF LL`.ASF,
Each of the parties hereto will, promptly ution request of the other, execute a
memorandum of this Lease in -a form suitable for recording setting forth the names of the parties
hereto and tile wxm of this Lease, identifying the Dernised Premises. and also including such
other clauses therein as either party may desire, except tile arnounts of Basic Rent payable
hereunder,
AR11CLF 23
NOTICES
23.1 All notices. dcrnands ter other writings in this Lease provided to be given or made
a
or scal� or which may be given Or made or sent, by either party to the other, shall be deemed to
have been fully given or inadt- or sent whets made in writing and deposited m the United. States
rnaii. registered and postage prepaid, and by facsimile addressed as follo,ivs:
TO LESS CYR: City of Dubuque, Iowa
City Manager
Ci1V Hall
f
I Vand Central Avenue
Dubuque IA 420U]
Fax 119.589-1 i - Q
MUSSEL-' Platinum lfk4dings, LLC
Page 333 of 567
801 Jackson St.
Dubuqljze, LA 521001
23.2 The address andi"or fax nuillber to which any notice, demand or other writing may
be given or made or sent to any party as above provided may be changed
by -riven notice given
by the party as above provided.
ARTICLE 24
24.1 Tune orthe j-,ssence- 'rimc, is of the essence of 4his Lease and all of its provis'
lons.
24.2 gGoveraLnZ Law. It is agreed that this Lease shall be govemcd by, construed and
enforced in accordance with the laws of the State of Iowa,
24.3 Parasc arh Headings. The titles to the paragraphs of thi Lc se are solely for s the
convenience of the parties and shall not be used to explain, modify, simplify or aid in the
interpretation of The provisions of this Lease,
24A Modification -Yfpern -Agr ient, Any modification of this Lease or additional
- -
obligation assumed by either Party in connection vvith this Lease shall b,-- binding only if
evidenced in a writing signed, by each party or wi nwhori7xd representative of each party.
' .4.5 Ea-ules. Bound. Ilus Lease shall be binding on and shall inure to the benefit of
and shall apply to the respective successors and assign-, of Lessor and Lease;:, All references in
this Lease to "Lessor" or "Lessee" shall be deemed to refer to and. include successors and assigns
of Lessor or Lessee without specific mention of such successors or assigns.
24.6 Force Maie-ure. In the event that either party Fereto shall be delayed or hindered
in or prevented from the performance of any -act required hereunder by reason of strikes,
lockouts, labor troubles, unavailability of construction materials, unavailabili'y 01 excessive price
of fuel, Power failure, riots. insurrection, war, terrorist activities, explosions, ba -=..dous
conditions, fire, flood, weather or acts of God, or by reason of any other cause beyond the
exclusive and reasonable control of the party delayed in perjo - n-ning work or doing acts required
under the terms of this Lease (collectively "Force Majeure"), then performance of Such act shall
be excused for the period of the delay and the period 'for the performance of any such act shall be
extended for a period equivalent to the period of such delay,
24,7 Ccjnjlict, To the extent there is a conflict of terms between the Developmenr
Agreement and this Lease, ihc terms of the Developinew Agreement shall control.
24.8 Entire -Agtcmcnj. This Agreement, alone with the Duvelopillum Agreement and
Minimum Assessment A&Tcernert. constitutes the entire agreement between ihe Lessor and the
Lessee regarding the lease of the Demised premises and supercedc,- all previous o.-al or writien
agreements between the parties regarding the subject matter of this Leasi:1
Page 334 of 567
LESSOR!
Cl -rY OF DI, BUQUE, 10N'A
By;
aftne F. Schneider, City Clerk JoUphT, Robbins, Mayor Fro rem
LESSEE:
PLATINUM HOLDENIGS, UC
By:
dam p. Rix, ilvlanacr
STATE OF IOWA, Ili BUQUE COUNTY) ss:
On this day of 2001, before rne. the undersigned, a Notary Public
in. and for the State of lows persona6 appeared James P. Rix, to me personally known, who
being by ire duly swum, did say that he is the Manager of the limited liability company
executing the within and foregoing instrument to which this is attached; 0-at said instrument was
signed on behalf of the limited liability company by authority of its Managers; and that James P,
Rix, as Manager, azMow led ged the cxecufion of the foregoing instrument to be the voluntary act
and deed of the limited liability company, by it and by him VONtardy executed.
%"Ota-v Public. State of Iowa
STATE OF IONVA, DUBUQIJF COCN71-Y) ss:
On this -/ day of 2001, before nic, the undersig:
-.j-ed, a 'Notary Public
in and for the State of fo%l-" personally appeared James T. Robbins and Jeanne F.. Schneider, to
me personally known, who, being by me duly sworn, did say that they are the Mayor Pro Temp
and City Clerk, respectively, of tile City of Dubuque, lows, executing the within and foregoing
instrument, that no sea] has been procured by the corporation; that said inswument was signed on
behalf of the City by authority of its City Council; and that Joseph T. Robbins aid Jeanne F.
Schneider, as Mayor Pro Tern and City Clerk-, respectively, acknowledged the execution of the
foregoing instrument to be the voluntary act and deed of the City, by it and by them voluntarily
executed.
1V-0tary Public, State oflowa
I -
Page 335 of 567
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