Grand Harbor Hotel - Assignment of Lease AgreementCity of Dubuque
City Council
PUBLIC HEARINGS
# 2.
Copyrighted
January 20, 2026
ITEM TITLE: Grand Harbor Hotel - Assignment of Lease Agreement
SUMMARY: Proof of publication on notice of public hearing to consider
City Council approval of the assignment of the Lease
Agreement for the Grand Harbor Hotel from Westdale Capital
Investors 3, LP to RG Hospitality, LLC, and City Manager
recommending approval.
RESOLUTION Approving The Assignment Of The Lease
Between The City Of Dubuque, Iowa And Westdale Capital
Investors 3, LP As Successor In Interest To Platinum Holding
LLC To RG Hospitality, LLC
SUGGUESTED Receive and File; Adopt Resolution(s)
DISPOSITION:
ATTACHMENTS:
1. MVM Memo
2. MVM_Assignment from Westdale to RG Hospitality_1-15-26
3. Lease —Assignment Resolution_12-23-25
4. Assignment of Lease Agreement-Westdale
5. Assignment of Lease-RG Hospitality
Page 1135 of 1459
THE CITY OF
Dubuque
DUB TEE
All -America City
Masterpiece on the Mississippi
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13
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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: January 15, 2026
City Attorney Crenna Brumwell is recommending City Council approval of the
assignment of the Development Agreement and Lease Agreement for the Grand Harbor
Hotel from Westdale Capital Investors 3, LP to RG Hospitality, LLC.
Platinum Holdings, LLC and the City of Dubuque, Iowa 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
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.
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 1136 of 1459
THE CITY OF
DU-- B E
Masterpiece on the Mississippi
CRENNA M. BRUMWELL, ESQ.
CITY ATTORNEY
TO: MICHAEL C. VAN MILLIGEN, CITY MANAGER
DATE: JANUARY 15, 2026
Dubuque
MI-Anariea City
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.
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 1137 of 1459
Prepared by Crenna Brumwell, Esq., 300 Main St., Ste. 330 Dubuque IA 52001-6944 (563) 583-4113
Return to Adrienne N. Breitfelder, City Clerk, 50 W. 13"' St., Dubuque, IA 52001, (563) 589-4100
RESOLUTION NO. 22-26
APPROVING THE ASSIGNMENT OF THE LEASE BETWEEN THE CITY OF
DUBUQUE, IOWA AND WESTDALE CAPITAL INVESTORS 3, LP AS SUCCESSOR
IN INTEREST TO PLATINUM HOLDING LLC TO RG HOSPITALITY, LLC
WHEREAS, Platinum Holdings, LLC and the City of Dubuque, Iowa (City) entered
into a Lease Agreement dated June 4, 2001, as amended; and
WHEREAS, Westdale Capital Investors 3, LP (Westdale) is a successor in interest
to Platinum Holdings, LLC pursuant to a foreclosure judgment and sale; and
WHEREAS, Westdale desires to assign the Lease Agreement to RG Hospitality,
LLC; and
WHEREAS, Article 15 of the Lease requires consent of the City to assignment of
lease, which consent shall not be unreasonably withheld; and
WHEREAS, the City Council of the City of Dubuque finds that the City of Dubuque
should consent to the assignment.
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.
Section 3. The City of Dubuque hereby approves of the Assignment of the
Lease, a copy of which is attached hereto, from Westdale to RG Hospitality, LLC.
Section 4. The Mayor is authorized and directed to sign the Assignment of
Lease on behalf of the City of Dubuque.
Passed, approved and adopted this 20t" day of January, 2026.
Brad-M. Cav , ayor
Attest:
g4n, ��, &S, 0, A �, I
Adrienne N. Breitfelder, tity Clerk
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 aOfll day of
J-011ni�0,I'\ I , X)k , is made and entered into by and between the City of
Dubuque, I wa, 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
3, LP AS SUCCESSOR IN INTEREST
TO PLATINUM HOLDINGS, LLC.
am
RG, IP%U1 r-b ITA 1 ATV 1 1 P•
CONSENT TO ASSIGNMENT AGREEMENT
The City of Dubuque, Iowa hereby consents to the foregoing Assignment
Agreement.
Attest:
By:
- 4'-'tj
Adrienne N. Breitfelder, tity Clerk
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 =Y�1 day of
� 7/10, , �, Z , 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.
CONSENT TO ASSIGNMENT AGREEMENT
Page 1140 of 1459
Exhibit A
Lease Agreement
LEASE AGREENENT
THUS LEASE AGREEMENT (the "Lease") made as of the ¢th day of tune, 2001, by and
between the CITY OF DUBUQUE, I()WA, a municipal corporation (Lessor), and PLATR*TU q
HOLDINGS. LLC;, an Iowa limited liabifiry company (lessee).
WHEREAS, Lessor and Lessee have entemd into a certain Amended Development
Agreement dated as of January 15, 2001 (tire "Developmern Agreement"); and
WlMRF-AS, 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 agreetttents set forth
herein, the parties hereto agree as follows:
A R11CLE 1
DENGSE AND TERM
1.1 Demise and Te . In consideration of the rents hereinafter reserved and the
terms, covenants, conditions and agreements set forth in this Lease, Lessor hereby leases io
Lessee the real property described in Exhibit A attached to and trade 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 teruri
commetrcing as of the date of this Lease and ending on the Yd day of June, 2051 (the "Initial
Term"), subject to all of the terms, covenants, conditions and agreements contained herein. On
completion of the Phase U 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 (Sa) years from the time the Lessee receives the Certificate of completion
related to the completion of the Phase U Improvements.
L2 Mini 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 Paxking Use A ement. In connection with this Lesee, 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 at no cost. The
Parking Use Agreement snail be transferable with this Lease and shall remain in effect for the
length of the Initial Term and any exteusion or renewal of this Lease.
ARTICLE 2
RENT
Lessee shall pay Lessor (in addition to taxes, assessmen(s, 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 1142 of 1459
Minim+am improvements (as set forth in Section 3.4 of the Development Agreement), Lessee
shall Pay Base Rent in the amount of SI.00 per year. For the fast 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,$60.00
Four through
Five
$30.480.00
Six through
Seven
$45,720.00
EiF,ht through
Nine
S53,340.00
Ten
S66,040.114
All such Base Rent shall be payable in twelve (12) equal monthly installments on the first
day of each month. Notwithstanding the .fgresoing, in the event that Developer completes the
Phase 13 %provements 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 fallowing 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:
(i) The annual rental in effect at the completion of the above anted schedule
shall be adjusted by the percentage increase, if any, in the Consumer Price Index
for All Urban Cons trners, ULS. 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 effecd on the date
one (1) year prior thereto. The armual rental computed under this subparagraph (i)
shall be the annual Base bent for the Demised Premises for the one (1) year
period immediately following the completion of the above rental schedule. The
annual Base Aeat 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 thereafer, 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 ULS. Depamnertt oflAbor in effect on the commencement date of
the new one (1) year period over the base Consumer Price Index in effect an 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 (1) year period immediately following
the completion of the prior one (1) year period, The annual 13ase Rent shall be
paid in twelve (12) equal monthly installments.
(ill) If during the Initial Tenn of this Lease, or anv 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 patties hereto shall be used in dcternuning the amount of any such
Page 1143 of 1459
adjustment.
ARTICLE 3
TITLE TO IMPROVEMENTS AND TRADE FrXTURES
3.1 TradeTrade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean all of
Lessee's personal praparty 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 retrain 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 sucb i.cssee's Trade Fixtures, at Lessee's sole discretion. Upon t" (10)
days' prior written nodee to Lessor, Lessor shall execute and deliver to Lessee a certificate in
recordable form 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 docutnem which Lessee may reasonabiy request
from Lessor.
3.2 Improvements. On delivery of possession of the Dernised 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 outer such
buildings in the area. Subject to applicable law and the obligations imposed an Lessor as a
gave=ental entity, Lessor agrees to process as expeditiously as possible all permits, vasianees
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 Promises are and shall he 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
lmprovernents or any part tlzereof 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 Irnpravetaents or the part thereof then within the Derntised premises shall be
surrendered by Lessee to Lessor. No further deed or other instrument shall bG necessary to
confirm the vesting in Lessor of title to the Improvements. However, upon any termination of
This Lease, Lessee, upon request ofLess*r, shall execute, acknowledge and deliver to Lessor a
quitclaim deed cotrfrrming 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 d
ENCUINMRANCE OF LESSEE'S LEASEHOLD INTEREST
4.1 I es ee's Right to Encumber Leasehold interest. Lessee may encumber by
mortgage, deed of trust or other proper insir=ent, its leasehold interest and estate in the
Demised Premises, together with all Lmprovernents on the Demised Premises. as security for any
Page 1144 of 1459
indebtedness of Lessee, provided that no such encumbrance shall extend beyead the term of this
Lease. Lessee shall provide prompt written notice to Lessor of any such encurnb=ce together
with a copy of such encumbrance. In the event of arty 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 safe, recogain the
purchaser thereunder as lessee under this Lease, provided such purchaser expressly agrees in
writing to he mound by the terms of this Lease.
4.2 Notice to Holder of l ncunsbrance• Right of Holder to Cure Lessee's Default. if
Lessee shall encumber its leasehold interest and estate in the demised Premises and if I essm, 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 or the encumbrance arzd the address of
the Holder, then Lessor shalt mail or deliver to the Bolder, 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 givers 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 thug that
may be necessary and proper to be done is the ohsenmance of the covenants and conditions of this
Lease or trt prevent the ternLnation of this Lease; provided, however, that thr doing of any act or
thing requiring possession of the Demised Premises shall be subject to the further rights of
Holder as set fortis in Section 16.2. All payments so made and all things so done and per%rmed
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.
ARUCLE 5
TAXES
Until Lessee has received a Certificate of Completion, for the Minimum bnprovemcnts (as
set forth in Section 3.4 of the Development Agreement), the Lessor shall be responsible for all
Mill estate taxes levied, taxed or imposed upon the heal Estate. After the completion of the
Minimum hnprovements, Lessee agrees to pay as additional rent 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 deaqueut if not so paid during the term hereof. Lessee shall further
provide to lessor official receipts of the appropriate taxing authority or other evid=oe
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 naive, 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 irnprvvements thereon which
may he taxed, charged, assessed, levied or imposed upon the leasehold estate hmby 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, charge$, levies and assessments shall be paid by Lessee as they
become due and before they becnrne delinquent during the term hereof.
Page 1145 of 1459
Lessee agrees to timely pay all taxes, assessments or other public charges levied or
assessed by lawful authority (but reasonably preserving Lessee's rights of appeal) against its
personal property Or, 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 any taxes un 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 he paid by Lessee, if the validity thereof, or the right to
assess or levy the same against or collect tht same from said Demised Premises or
Improvements, shall be disputed„ but only to the extent permitted tinder the Minimum
Assessment Agreement between Lessor and Lessee with respect to the Demised Premises. Upon
the ccnclusian of any such suit or proceedings, or not less than three (3) months prier to the date
when the right to redeem therefrom expires, whichever will be the earlier. Lessee shall protmptiv
pay and satisfy such disputed tax, assessment er other charge as #finally determined, together with
all expenses, costs and attorneys' fees whatsoever incurred in connection therewith.
ARTICLE 6
REPAIRS
Lessee sh2l) at all times during the term of this Lease, at Lessee's own costs and expense,
keep the Demised Premises and the 1mprovemmis 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 ali
Improvements in a condition consistcot with other similarly classed operations. Lessee shail
keep the Demised Premises in such condition as may be required by law and by the terms of the
insurance policies furnished pursuant to this Lease, whether or not such repair shall be interior or
exterior, and whether or not such repair shall be of a structural nature. Upon reasonable notice to
Lessee„ Lessor may, at its discretion and at its cast, 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 shalt carrzply with a]I 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 contndt waste on the Demised Premises except as necessary for
its business purposes includ* the removal or [,Qnstruct on of any buildings and Improvements
nn the Demised 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 lmpmvements 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 1146 of 1459
ARTICLE 8
ALTERATIONS
Lessee shall have the right, with I essor's prior written consent which consent shall not be
unreasonably withheld for any such alteration, addition, or modiEcation that exceeds Fifty
Thousand and 00/100 Dollars (S5G,00o.o0) in cost, at Lessee's expense, from time to time during
the term of this Lease to make any alteration, addition or modf fscatiou to the .Demised Premises
or the Improvements thereon.
ARTICLE 9
USE OF DEM15EID PREMISES
Lessee shall operate the Improvements far the purposes outlirIcd in the Development
Agreement and shall not knowingly use or allow the IDensised Premises or any buildings or
Improvements thereon or an_v appurtenances thereto, to be used or occupied for any ualawful
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 Irnprovernent thereon, or pernvt
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
imursmce in force with respect thereto,
i?urins the exclusivity period referred to in Section 4.2 of the Development Agremnent,
Lessee agrees that at least seventy-five percent (75%), or not less than one hundred forty two
(i 42) 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 evdai the
Phase II Improvements are constructed, Lessee agrees that at least sixty-five percent (55ent or
not less than two hundred (200) rooms, of the hotel shall be reserved for group roam reservations
provided such group room reservations are made with Lessee at least one (1) y=x in advance.
For purposes of this Ag eement, a suite shall be deemed to be one (1) room, After the
exclusivity period referred to in Section 4.2 of the Development Agteernent, 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
10.I Lessee shall provide and maintain or cause to be maintained at all limes during the
process of constructing Improvements (and, from time to time at the request of City, furnish City
with proof of payment of premiums on);
A. Builder's risk insurance, written on the Special Perils Form in an amount equal to
one hundred percent (I00%) Of the replacement value of Improvements as the same shall
exist fiorn time to rime during the consutrction process;
B. Commercial general liability insurance (including operations, contingent liability,
operations of subeentractors, completed operations and contractual liability insurance)
together with an Owner's Contractor's Policy with limits against Lodilv injury and
Page 1147 of 1459
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 completiurt of construction of Impruvements, Lessee shall Maintain, or
cause to be maintained, at its cost and expense (and from time to time at the request of City shall
furnish 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 Fonn in an amount nat less than the, full
insurable replacement value of Improvements, but any such policy may have a deductible
amount of not more than $50,000,00. NO policy of insurance shall he so written that the
proceeds thereof wii] produce less than the minimtun coverage required by the preceding
sentence, by reason Of co-insurance provisions or otherwise, without the prior consent
thereto in writing by City. The tenon "replacement value" shall rneu the actual
replacement cost of Improvements (excluding foundation and excavation costs and costs
of underground flues, pipes, drains and other uninsurable items) and equipment, and shall
be detennined 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 orctnrrence and for
each year of $2,00,000,00_
10.3 All insurance required by this Article shall he takers out and maintained in
resPOnsible insurance companies selected by Lessee which are authorized under the laws of the
State oflowa to assume the risks covered thereby. Lessee shall deposit amivaIly with City copies
of policies evideneiing all such insurance, or a certificate or certificates or binders of the
respective insurers statins 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 co 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 undea the terms hereof. In lieu of separate policies,
Lessee may maintain a single policy, or b1micet or umbrella pulicics, or a combination thereof,
which provide the tote! 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 fairs upon
Improvements, provided, however, the specific limit shall not be impaired.
10A Lessee agrees to notify City immediately in the case of damage excleding
S500,00.00 in amount to, or destruction of, IrnproverneM er 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 ro
suhstantially 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 any insurance relating to such damage
received by Developer to the payment or reimbursement of the costs thereof, subject. however, to
Page 1148 of 1459
the terms of any mortgage encumbering title to the Property.
14.5 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 11
LESSOR'S WARRANMS AND REPRESENTATIONS
11, I 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 hereo� and covenants and agrees that upon paying the rent
provided for herein, and upon Lessee's performing the covenants and agreements of this Lease
rewired to be performed by said Lessee, that it wi11 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 WARRANTIES AND REPRESENTATION
12.1 Lessee Cgmpliance With Law.
A. Lessee shall comply with all applicable local, state and federal laws, rules,
regulations and permits with regard to the Dernised Premises and its use, occupancy and tontml
of the Demised Premises.
13. 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
indernnifirxion front Lessee for any such Pre-Existirg Condition. There is a rebuttahle
presumption that any Hazardous Substances found on she Demised Premises were not deposited
by Lessee and are a Pre -Existing Condition. A pre-existing condition ("pre -Existing Condition")
small be defined as (i) any Hazardous Substances fotmd on the Demised Premises which were not
deposited by Lessee ❑r its agents or invitees on the Der ised Premises, (ii) any Hazardous
Substances on the Demised Premises prior to the Initial 'Perin of this Lease, and (W) any
Hazardous Substances which leach or migrate on to the Demised Premises from any adjoining
properties, including properties ovmed 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 responsibifity
or liability, subject to available defenses, the Lessor may have under law for any Pre -Existing
Page 1149 of 1459
Condition. This retained responsibility and duty inuJludes the fluky to assess, remove and
fedctal
recral to Pre -Existing Conditions on or affecting the Demised Premises as ordered by a state pr
agency, subject to the availability Of 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
hove 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 clairns through a citizen action or
Private right of action under applicable law, environmental statutes or regulations winith 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 harrriless and
indmnnify Lessee for costs and expenses associated with responding to any claims by adjoining
pyopertY 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
telated to Pre -Existing Conditions on the Itemised 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 govcmmentaI 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 an 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 fat- 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 ar 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, easerfient,
or governmental order, except to the extent that use limitations and environmental protection
easements may be placed on the Demised Pfernises which do not change or interfere with the
actual or proposed use of the Dernised Premises by Lessee. The Lessee agrees that it will not
install drtnlcing water wells or otherwise obtain potable water for the purpose of consumption or
bodily contact from the groundwater underneath the Remised Premises and agrees to execute any
necessary waivers or casements to that effect. If the Lessor is required by a state or federal
agency to take such action which materially or wueasonably interferes with the operation or
Possession of the demised Premises, or otherwise damages the property of Lessee, then the
Lessor shall be required tp pay the reasonable costs associated with. such activity, includiag,
without limitation, lass of income, economic damages, property damage, and other costs sod
expenses, whether temporary or permanent in nahire, incurred by Lessee by reason of the
interference.
Page 1150 of 1459
B. Lessee covenants and agrees to promptly notify Lessor of any release of
Hazardous Substance in, On ar about the Demised Premises of which Lessee has actual
knowledge.
C. Lessee covenants and agrees to promptly take any and all necessary arsd
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 lave.
D. Lessee covenants and agrees to not manufacture, treat or dispose of
Hazardous Substances at the Remised Premises or knowingly allow the manufacture, treatment,
or disposal of Hazardous Substances same on the Dernised Premises.
For the purposes of this Lease, L,Marardous Substance" or "Hazardous
Substances" means any hazardous or toxic substance, material or waste which is or becomes
regulated by any local government. the Stare of Iowa or the United States Ugvernment. It
includes, without limitation, any material or substance that is (i) defined as a "hazardous
substance" or "hazardous waste" under Chapter 455S, Iowa Code, (u) petroleum and petroleum
products, (1) asbestos containing materials in any form or condition, (iv) designated as a
"hazardous substance" pursuant to Section 311 of the Federal Water Pollutions Con"] Act (33
U.&C. § 021), (v) defined as a "hazardous waste pursuant to § 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. §69a1 et seq., (vi) defused as a "hazardous
substance" p=uant to § 101 of the Comprehensive Environmental Response, Compensation and
Liability Act, U.S.0 § 9601 et seq., ar (vii) defimed as a "regulated substance" pursuant to
Subchapter IX, 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
INDENN71CATTDN
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 {inc)uding, without limitation, reasonable attomeys' 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 Demised Premises
artd 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 pail of Lessor of any
warranty 4r 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 Withlseld.
B. Lessee riba11 have the right to performs environmental site assessments of
the Demised premises to assess the environmental condition of the Dcrnised Premises for the
Page 1151 of 1459
purpose of constructing a hotel. Any results or reports created by such site assessment shah be
the property of Lessee and may be used by Lessee and Lessor for any purpose provided that
Lessor shall not disclose any sucb report or the information contained therein to any third party
unless required to do so by lake or legal process.
13.2 lndenutification of Lessor. Lessee will indenumify and save harmless Lessor from
and against all Iiabilities, obligations, claims, damages, penalties, causes of action, costs and
expenses (including, without Iimitation, reasonable attorneys' fees and expenses) imposed upon
or incurred by or asserted against Lessor by reason of (a) any accident, injury to or death of
persons or loss of or damage to property occurring on or about the Itemised 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 immaterial terms of this Lease, amtd (c) any material
breach on the part of Lessee of any warranty or representation contained in Article 12. 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 is full force and effect and shall not be terminated, discharged or released, in whole or
Ln part, irrespective ofthe terrrmivation or expiration of the tarn 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 DdW 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 Prerrrisca shall riot be of suffirient 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 A[locatio of Award. Any award for such taking of all or substantially all of the
Dernised Premises shall be paid to the parties hereto in accordance with the foiirt%ing:
A. To Lessor, the arimVunt of the award attributable to the Demised Premises,
determined as if this Lease was not in effect at the time of such award, exc[uding
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;
13. To Lessee, the entire award except that portion allocated to Lcssar above.
14.3 Partial Cond t' . If less than all Of substantially all of the Demised Premises
or the Improvements thereon shall be taken in the exercise of the power of eminent domain by
Page 1152 of 1459
any sovereign, municipality or other public or private authority, then Lessee, at its aptaon, may
elect to continue this Lease in full force and effect -or terminate this Lease. If Lessee shalt elect to
maintain this Lease in full force and effect, the award for such partial condemation shall be
allocated as provided in Section 14.2, and Lessee shall proceed with reasonable diligence to tarty
out any necessary repair astd restoration so that the remaining Improvements and appurtenances
shall constitute a complete structural writ or units which can be operated on an economically
feasible ]Saris undzr the provisions of this lease. In the event Lessee elects to continue this Lease
in full force and affect after a partial condemnation, the Base Rent shaE be reduced in proportion
to the area of the Demised Premises taken.
Should Lessee elect to terminate this Lease upon a partial condemnations, 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 irnorc than 360 days after
delivery of such notice to I.exsor (the "Termination mate"). In the event Lessee terminates this
Lease, as provided for in this Section 13.3, Lessee shall be entitled to [he entire award for such
partial taking.
14A Temp ary Takin . If the temporary use of the whole ar any part of the Dcnused
Premises or the Improvements thereon or the appurtenances thereto shall be taken at any time
during the term of this Lease in the exercise cf 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 sum of sums of
money and charges heroin reserved and provided to be paid by Lessee, and the entire award for
such temporary taking shall be paid to Lessw. 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 ofTaking. If any taking renders the construction of the hotel anNor water
park impossible, any financial penalties set forth in Section 1.3 due after such taking shall not be
applicable.
ARTICLE 15
ASSIGNMENT AND SLBLETfING
Prior to the issuance of the Certificate of Completion (as defused 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 nut be unreasonably withheld, provided said
third party agrees to comply with the terms and conditions of this Lease.
ARTICLE 16
DEFAULT
16.1 Lessor's Ruts 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 1153 of 1459
part tc be observed, kept or performed, and the defaWt shall continue for a period of thirty (30)
days after written notice from Lessor setting forth 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 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 Dernised Premises with process of law and to tumove all personal
property f orn the Dernised Premises and ail persons occupying the Dernised Premises and to use
all necessary force therefor and in all respects to take the actual, full and exclusive possession of
the Demised Promises 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.
I6.2 Rights of Hol of Encumbrance in Evmt -Le Defaults. If Lessee fails or
neglects to observe, keep or perform any of the covenants, terms or conditions contained in this
Lease vn its pan to be observed, kept or performed, the Holder of any indebtedness secured by an
encumbrance an the leasehold estate under this Lease shall have thirty (30) days after receipt of
written notice frorn Lessor setting forth the nature of Lessee's default and a reasonable time
tbereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature
thereof within such thirty (30) clays and is diligently prosecuting such proceedings, but in no
event longer than ninety (90) days, within which to endoavor 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 oantiszue to be, at all times prior to payment in Ml 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 ar cause for
termination or within a reasonable time thereafter if it shall have camrrtenced 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 retraining, and specifically preserving all unexercised
options.
16.3 Lessee's Ri ghts in the Event of Lessee's Default. If Lessor shall fail or neglect to
observe, }seep or perfonn any of the covenants, terms or conditions contained in this Lease on its
part to be observed, kept or performed, and the default shall continue for a period of thirty (10)
days alter written notice front Lessee setting forth the nature of Lassor's default (it being intended
that in connection with a default not susceptible of being cured with diligence within thirty (30)
bays, 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 nc event longer than ninety (go)
days). then and in any such event. Lessee shall have all rights available to it, provided by law or
equity.
ARTICLE 17
Page 1154 of 1459
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 thuly (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 patty's option, in addition to all
other remedies availabFe to such other party, may perform or cause to be perfbrm,ed 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 agaernent 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 at agreement. The commencement of any work or the
taking of any Other steps or performance of any other act by such other party ptusuant to the
immediately preceding sentence shalt not be deemed to obligate such other party to complete the
cog of any term, covenant, condition or agreement which is in default.
ARTICLE 18
QUIET ENIOY1vENT
LcssOr covenants that at all times during the term of this Lease, so long as Lesset is nat 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 I9
ESTOPPEL CERTIFICATES
Each parry hereto agrees that at any time and from time to time during the tour of this
Lease, within tea (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 urunodi-fied and in force and effect (or if there
have been modifications, that this Lease is in farce 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 stun of money hereunder, and
whether ar 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
WOrcement of the obligations to be performed hereunder existing in favor of the party exeoming
such certificate.
ARTICLE 20
W ANER,
No waiver by either party hereto of gay breach by the other of anv tern. covenant,
condition or agreemennt herein and no failure by any party to exercise any right ar remedy in
respect of any breach hereunder, shall constitute s waiver or relinquishment for the future of any
Page 1155 of 1459
such term, covenant, condition or agreement or of any subsequent breach of any such term,
covenant, condition or agreement, nor bar any right qr remedy of the other party in respect of any
such subsequent breach, nor shall the receipt of any rent, or any portion thereof, 4y I.tssor,
operate as a waiver of the rights cf Lessor to enforce the payment of any other rent then or
thereafter in def$trlt, ar 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 any 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 Dr 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 Lessee
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 (riot 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 farm suitable for recording setting forth the names of the parties
hereto and the terra 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 Manager
City Hall
13"' and Central Avenue
Dubuque lA 42001
Fax 319 589-4149
TO LESSEE: Platinum Holdings, LLC
Page 1156 of 1459
801 lackson St.
Dubuque, LA 52401
23.2 The address and/or fax number to which any notice, demand or ether writing may
be given or made or sent to any party as above prodded may be changed by written notice given
by the party as above provided.
ARTTCU 24
MISCELLANEOUS
24.1 Time of tht: Essence, Time is of the essence of this Lease and all of its provisions.
24.2 Governing bast+. Tt is agreed that this Lease shall be governed by, construed aad
enforced in accordance with the laws of the State of Iowa.
24.3 P.
a a h Headings. The titles to the paragraphs of this Lzast: are solely for the
canverucnce 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 Affeemment. 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 Parties Round. This Lease shall be binding do and shad 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 he deemed to refer to and include successors and assigns
of Lessor or lessee without specific mention of such successors or assigns.
24.6 Force Mature. 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, &e, flood, weather or acts of God, or by reason of any Other cause beyond the
exclusive and reasonable control of the parry delayed in performing wont or doing acts required
under the terms of this Lease (collectively "Force Majeure"), theta 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 confiicl of terms between the Development
Agreement and this Lease. the terms of the Development Agreement shall control,
24.8 Entire Igmement. This Agreement, along with the Development Agreement and
Minimum Assessment Agreement, constitutes the entire agreement between &e Lessor and the
Lessee regarding the tease of the Demised Premises and supercedes all previous oral or written
agreements between the parties regardirIg the subject matter of this Lease.
Page 1157 of 1459
LESSOR:
CITY OF DUBUQUE, IOWA
Attest: z2—�, $y:['�"'�
canne F. Schneider, City Clerk ] h .Robbins, P+ syor Pro Tern
LESSEE:
PLATINUM HOLDINGS, LLC
By:
J P_ Rix, Tvlanager
STATE OF IOWA, DUBUQUE COUNTY) ss:
on this � day of ,f f• 2001, before me, the undersigned, a Notary Public
in and for the State of Iow ersonally appeared James F. Rix, to me personally known, who
being by me duly sworn, did say that he is the Manager of the limited liability company
executing the Within and foregoing instrument to which this is attarhed; that said instrument was
signed on bebalf of the Limited liability company by authority of itg Managers; and that James P.
Rix, as Manager, acknowledged the execution of the foregoing instrument to be the voluuttary act
and deed of the limited liability company, by it and by hire vo only executed.
o#aty Public, State of Iowa
STATE OF IOWA, I}UBUQI,J1; COUNTY) ss:
On this I' day of2001, before me, the undersigned, a Notary Public
in and for the State of Iowa- personally appeared James T- Robbins and leanne F_ Schneider, to
me personally known, who, being by me duly sworn, did say that they are the Mayor Pra 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 insutuent was signed on
behalf of the City by authority of its City Council; and that Joseph T. Robbins and lewme F.
Schneider, as Mayor Pro Tem 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 lava
Page 1158 of 1459
Page 1159 of 1459