Exhibit 10.19
OPERATOR'S CONTRACT
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This agreement is made and entered into by and between the Riverboat
Development Authority (Authority) and The Xxxxxxxx Group, L.P. (Xxxxxxxx) as of
this 28th day of December, 1989.
WHEREAS, in April of 1989, the State of Iowa enacted the Gambling Excursion
Riverboat Xxxx, which authorities, by local option, limited gambling activity on
excursion boats on the Mississippi, Missouri, and inland rivers, lakes and
reservoirs in Iowa; and
WHEREAS, pursuant to the provisions of the enactment, residents of Xxxxx
County, Iowa, approved such gambling activity for any area within Xxxxx County,
Iowa; and
WHEREAS, the Authority is an Iowa non-profit corporation with its principal
place of business in Xxxxx County, Iowa, which corporation was formed for the
purpose of making an application to the Iowa Racing and Gaming Commission for an
excursion gambling boat license; and
WHEREAS, Xxxxxxxx has or will enter into a development agreement with the
City of Davenport, Iowa for the implementation of certain development within the
City of Xxxxxxxxx provided that the Authority and Xxxxxxxx are granted licenses
to operate excursion boats; and
WHEREAS, Xxxxxxxx has or will enter into a lease with the City of Xxxxxxxxx
for the use of the Davenport levee to dock and operate an excursion gaming boat;
and
WHEREAS, Xxxxxxxx wishes to enter into a contract with the Authority as an
operator of an excursion gambling boat pursuant to the rules and regulations of
the Iowa Racing and Gaming Commission.
NOW THEREFORE, for and in consideration of the mutual covenants herein
contained, it is agreed as follows:
1. That Xxxxxxxx acknowledges and requests that the Authority make an
application for an Iowa excursion boat gambling license designating Xxxxxxxx as
an operator all pursuant to the provisions of the Iowa Code Chapter 99F, and all
related chapters of the Iowa Code.
2. That the application so submitted to the Iowa Racing and Gaming
Commission on behalf of the Authority and on behalf of Xxxxxxxx as an operator
shall provide that Xxxxxxxx will operate a gambling excursion boat docked
exclusively in the City of Davenport, Iowa.
3. That Xxxxxxxx shall be responsible for the payment of all application
fees to the Iowa Racing and Gaming Commission and all fees or expenses charged
by the Iowa Department of Criminal Investigation for background check and
investigation of all Authority Board members and Xxxxxxxx. It is understood that
Xxxxxxxx will pay, in addition to any initial fees, any and all additional fees
or charges made by the Iowa Racing and Gaming Commission and/or the Iowa
Department of Criminal Investigation.
4. Xxxxxxxx will provide advances against future admissions fees as
hereinafter provided for to pay for all reasonable costs incurred by the
Authority. The Authority anticipates that such expenses shall not exceed
$25,000, which amount shall include, but not be limited to all
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legal and accounting expenses, secretarial and general administration and office
start-up costs. Additional advances will be made by Xxxxxxxx on an "as needed"
basis up to a total of $50,000. Xxxxxxxx shall have the right to review any
request for such additional advances. All reasonable requests by the Authority
up to $50,000 will be granted.
All advances shall be repaid at the end of the first year of operation from
the admissions fees provided for in paragraph 8 hereof. In the event that the
license application on behalf of the Authority and/or Xxxxxxxx is denied, the
Authority shall return to Xxxxxxxx, all remaining unspent advances. The
Authority shall not be required to reimburse Xxxxxxxx for any advances spent by
the Authority prior to the denial of the license.
5. This contract shall run form the date of execution until the termination
of the initial license period for the Authority and for Xxxxxxxx as issued by
the Iowa Racing and Gaming Commission. It is anticipated that the license will
be issued for a three year period to commence in May of 1991, and run through
May of 1994. It is agreed that in any event, this contract shall terminate on
May 1, 1994. Provided, however, that so long as Xxxxxxxx has substantially
complied with the Iowa Racing and Gaming Commission rules, and the Authority's
gaming license is renewed. Xxxxxxxx is hereby granted the right to renew this
agreement for succeeding three year periods, the last of which shall terminate
on the anniversary date of the license in the year 2000 or at such later date to
which Xxxxx County may extend its referendum and the Authority's license is
extended.
6. Xxxxxxxx as operator, shall be responsible for the payment of all annual
licensing fees as required by the Iowa Racing and Gaming Commission, the payment
of all premiums or any additional fees required by the Iowa Racing and Gaming
Commission under the provisions of Chapter 997 and its regulations and any
amendments thereto, or any other provisions of the Iowa Code, all of which are
required in order to maintain an excursion boat gambling license. The operator
shall be responsible for the payment to the Authority of all wagering taxes as
assessed upon the adjusted gross receipts pursuant to Iowa Code Section 99F, and
assessed by the Iowa Racing and Gaming Commission. All such payments shall be
made by the operator in a timely fashion to the Authority, to enable the
Authority to make payments as required by statute and by the rules and
regulations of the Iowa Racing and Gaming Commission.
7. The operator agrees to provide all necessary accounting and verification
required by the Iowa Racing and Gaming Commission to determine the adjusted
gross receipts in order to determine the gaming taxes as assessed pursuant to
Iowa Code Chapter 99F, and shall comply with all reasonable requests of the
Authority and/or Iowa Racing and Gaming Commission, or any other regulating
body, to determine the extent of the gaming tax, and further agrees to make any
payments required in a timely fashion.
8. During the initial term of this lease, the operator shall pay an
admissions charge to the Authority equal to $2.00 for all admissions either paid
or complimentary, excepting only actual and necessary officials and employees of
the Authority and operator, and all other persons actually working on the
excursion gambling boat as more particularly set forth under the rules of the
Iowa Racing and Gaming Commission and Chapter 997. From said sum, the Authority
shall be responsible for all of its administrative costs, the annual DCI
investigation of its board members as required, all legal expenses, salaries,
and all related costs associated with the administration of the license. In
addition, the Authority covenants and agrees to pay to the City of Xxxxxxxxx an
amount of up to $.50 per admission as set by city ordinance, and shall further
pay an amount of $.50 on the admissions as required by the Iowa Racing and
Gaming Commission thereunder. Any increase in the $.50 charge per admission for
the City of Xxxxxxxxx
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or the Iowa Racing and Gaming Commission shall be born by Xxxxxxxx. The operator
shall provide at its expense, all necessary accounting and documentation to
establish to the reasonable satisfaction of the Authority and the Iowa Racing
and Gaming Commission the number of all admissions. The operator agrees to pay
to the Authority and to account to the Authority as required to comply with the
Iowa Racing and Gaming Commission rules and regulations.
In the event that this contract is extended as contemplated in Paragraph 5,
during the first three year extension, (the years beginning April 1, 1994,
through March 31, 1997), the Authority shall have the right to increase the per
person admissions charge in an amount equal to one-half of the percentage
increase, if any, in the Consumer Price Index hereafter called "Index" for
Chicago, Illinois for all items of the Bureau of Labor Statistics of the United
States Department of Labor. Such an increase shall be calculated by multiplying
the $2.00 admissions charge by the fraction which is obtained by utilizing the
Index rate as of April 1, 1991, (Base Rate) as the denominator, and the excess
of the Index rate as of April 1, 1994, over the Base Rate as the numerator and
dividing the resulting fraction by 2. The resulting fraction, when multiplied by
the present rate of $2.00 will constitute the increase which when added to $2.00
will constitute the extension rate, provided, however, that the extension rate
shall not exceed $3.00. Any such increase shall be included within an extension
agreement. In the event that this contract is extended for an additional, or
third, three year period (the years beginning April 1, 1997 and ending March 31,
2000), the Authority shall have the right to increase the admissions charge in
an amount equal to one-half of the percentage increase, if any, in the Consumer
Price Index, hereinafter called "Index" for Chicago, Illinois for all items of
the Bureau of Labor Statistics of the United States Department of Labor. Such an
increase shall be calculated by multiplying the initial $2.00 admissions charge
by the fraction which is obtained by utilizing the Base Rate, as the denominator
and the excess of the rate as of April 1, 1997, over the Base Rate, as the
numerator and dividing the resulting fraction by 2. The resulting fraction, when
multiplied by the initial rate of $2.00 will constitute the increase, which when
added to $2.00 will constitute the extension rate; provided, however that the
extension rate shall not exceed $4.00. Any such increase shall be included
within an extension agreement. For all purposes hereof, in the event this
"Index" is no longer in existence, then the successor index, it if exists, or
the index most similar to the "Index" shall be used for purposes of this
agreement. Notwithstanding the right of the Authority to increase the per person
admissions charge as set forth above, no such increase shall be permitted,
implemented or paid for any year if the Xxxxxxxx Group's gambling operations
will not generate a net profit for such year after taking into account such
increase. By way of example, assume for the year beginning on April 1, 1994, and
ending March 31, 1995, that Xxxxxxxx'x net profit on gambling operations was
$100,000, that 400,000 persons has been charged admissions for such year, and
that the increase calculated as set forth above, before this limitation, would
be $.50. In this example, the Authority could not collect the increase in the
admissions rate for such year because the effect of the increase would be to
make Xxxxxxxx unprofitable for the year (e.g., 400,000 admissions x $.50 =
$200,000 of additional Xxxxxxxx expense which exceeds $100,000 of net profits).
For purposes of this agreement, net profit shall mean the net profit reflected
on the financial statement submitted to the Iowa Racing and Gaming Commission at
year end, reduced by the principal portion of Xxxxxxxx'x debt service. For
fiscal years beginning on April 1, 1994, any increases as set forth above will
be calculated on a year to year basis using the above formula and any permitted
increases shall be paid to the Authority by Xxxxxxxx in a lump sum within
fifteen (15) days after the submission of the above year and financial
statements to the Iowa Racing and Gaming Commission for the year in question
beginning with the year ending March 31, 1995.
9. The operator agrees to hold the Authority harmless and to defend it from
any and all claims arising out of the operator's operation of its gambling and
excursion boat and any
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related activity of the operator as required by this agreement, city and county
ordinances, or state or federal statutes, and all regulations promulgated
thereunder. The operator shall be responsible for the payment of all legal
expenses incurred by the Authority in defense of any such claim, and all costs
attributable thereto including payment of any settlements, damage awards and
interest thereon. The operator shall not be responsible for any acts or
omissions of the Authority, and the indemnity shall not apply thereto.
10. The Authority agrees to submit to the Iowa Racing and Gaming Commission
on behalf of the operator, any reasonable requests of the operator to amend its
operation or its authority. The parties recognize that Xxxxxxxx anticipates the
need for additional excursion gaming boat(s) and the Authority does agree to
support requests with the Iowa Racing and Gaming Commission for additional
boat(s) at such time as Xxxxxxxx believes such additions to be financially
feasible.
11. The operator, its parent, successor or assigns, or any entity that it,
its parent, successor or assigns affiliate with, hereby agree not to enter into
any agreement to operate a gambling excursion boat from any port-of-call or
docking facility within the areas of Xxxxx, County, in Iowa, and Rock Island,
County in Illinois during the term of this agreement and any extensions, and for
a period of eighteen (18) months after the termination of this agreement
provided, however that this clause shall not be effective if this contract is
terminated by the Authority without cause.
12. The operator agrees to provide the Authority approximately 1,200 square
foot of suitable office space at its Davenport facility without charge to the
Authority.
13. The Authority agrees with the operator that it will not enter into any
agreements with any operators, and will not make application to the Racing and
Gaming Commission for any operator, to operate gambling excursion boats within
the City of Davenport, Iowa without first obtaining the written consent of the
operator which may be withheld by the operator for any reason in operator's sole
and absolute discretion. In addition, the Authority agrees to take all
reasonable steps available to the Authority to prevent any other operator or
excursion boat gambling license holder from having or acquiring a port-of-call
or operations site within the City of Xxxxxxxxx without the written prior
permission of the operator.
14. The operator agrees, subject to all applicable Iowa and federal laws,
to dock its gambling excursion boat during the winter or off season, at the
facilities it leases from the City of Xxxxxxxxx, and to the extent permitted by
the Iowa Racing and Gaming Commission and consistent with prudent business
judgment, to maintain casino style gambling operation on he boat on a year
around basis.
15. It is agreed that this contract is intended to comply with, and is
subject to all the rules and regulations of the Iowa Racing and Gaming
Commission, the ordinances of the City of Xxxxxxxxx, and the laws of the State
of Iowa and of the United States of America. The terms of this contract are
subject to amendment to comply with any of said requirements or any changes in
any laws or regulations. In the event that any provision of this contract is
determined to be invalid by a court of competent jurisdiction, the remaining
provisions of the contract shall remain in full force and effect.
16. The operator agrees that it will provide, at its expense, within the
time requirements set forth by the regulations of the Iowa Racing and Gaming
Commission, all necessary audits of financial transactions and conditions of the
operations conducted by the
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operator, as well as audits of the financial transactions, and conditions of the
operator's total operations as required by the rules and regulations of the Iowa
Racing and Gaming Commission.
17. The Authority agrees that in the event the Authority enters into a
contract with another operator, the financial terms of which are, in the
judgment of Xxxxxxxx, more favorable than those provided for herein, this
contract shall be amended to provide for any such more favorable financial terms
from and after the date of the execution of any such contract with another
operator.
18. The operator and the Authority do hereby agree and covenant with each
other to comply with the terms of Iowa Code Section 997, all chapters of the
Iowa Code, the U.S. Federal Code, all City ordinances of the City of Xxxxxxxxx,
and any and all regulations promulgated pursuant to any such laws as duly
adopted. Both parties represent and covenant with each other that they will
cooperate with each other in order to achieve their mutual goals.
19. This agreement embodies the entire agreement between the parties and
may be amended or supplemented only by an instrument in writing executed by the
parties against whom the enforcement is sought.
20. All representations, warranties and indemnities set forth in this
agreement shall survive the execution hereof.
21. This agreement may be executed in a number of identical counterparts,
and if so executed, each such counterpart is deemed an original for all
purposes, and all such counterparts shall collectively constitute one agreement.
22. This agreement binds the parties hereto and inures to the benefit of
their respective heirs, personal representatives, successors or assigns.
23. In addition to the acts and deeds recited in this agreement and
contemplated herein, the parties hereto shall execute any and all additional
agreements as may be necessary to consummate the transactions contemplated by
this agreement and to fulfill the intentions of this agreement.
24. Time is of the essence of this agreement and each and every provision
contained herein.
25. In the event a dispute arises between the parties, hereto, each party
shall be responsible for paying its own attorney's fees and court costs, if any,
incurred in connection with such dispute.
26. If and in the event of a dispute arising hereunder, venue is vested in
the Iowa District Court where venue is proper, or in any Federal District Court
which has jurisdiction. Xxxxxxxx acknowledges that it has negotiated this
agreement in Xxxxx County, Iowa, and has made numerous business contacts and
entered into agreements relating to matters sufficient to confer jurisdiction on
the Iowa District Court in and for Xxxxx County.
27. The parties hereto represent to each other that each has the full
right, power and authority to enter into this agreement and to fully perform its
obligations. The persons executing this agreement warrant and represent that
each has the authority to executed in the capacity stated and to bind the
parties hereto.
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28. Xxxxxxxx shall not have the right to assign this agreement without the
prior written consent of the Iowa Racing and Gaming Commission and the
Authority.
29. If, and in the event, any provision of this agreement is determined to
be invalid for any reason, it shall be severed and all other provisions not
determined invalid shall continue with full force and affect.
30. No failure by either party hereto, at any time, to require the
performance by the other of any term of this agreement, shall in any way affect
the right of either party to enforce such terms, nor shall any waiver, by either
party of any terms hereof be taken or held to be a waiver of any other provision
of this agreement. No waiver of any term or provision of this agreement shall be
effective unless the same is in writing, signed by the parties hereto.
31. This agreement is entered into in the State of Iowa and shall be
construed in accordance therewith, and all of the rights and obligations
hereunder shall be determined in accordance with the laws of the State of Iowa.
This agreement is signed and entered into the day and year first written.
THE XXXXXXXX GROUP, L.P. RIVERBOAT DEVELOPMENT AUTHORITY
By: Dalls III, Inc. By: /s/ Xxxx Xxxxx Xxxxxxxxxx
------------------------------------- ---------------------------------
Its General Partner
By:_____________________________________ By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxx Xxxxxxxxxx, ---------------------------------
Vice-President
AMENDMENT TO OPERATOR'S CONTRACT
--------------------------------
WHEREAS, the Riverboat Development Authority (Authority) and the Xxxxxxxx
Group L.P. (Xxxxxxxx) have entered into an operator's contract dated December
28, 1989; and
WHEREAS, the parties wish to amend the contract.
NOW THEREFORE for and in consideration of the mutual covenants herein
contained, it is agreed to amend the original contract by adding the following:
1. Paragraph 8 of the original agreement shall be amended by adding the
following language, to-wit:
In no event shall Xxxxxxxx receive any portion of any admissions fee
charged to admit an individual onto an excursion gaming boat operated
pursuant to this Operator's Contract. All such admissions fees collected by
Xxxxxxxx shall be paid exclusively to the Authority.
2. It is understood that neither Xxxxxxxx nor the Authority shall by lease,
contract, understanding or arrangement of any kind, grant, assign, or turn over
to any person or entity the operation of any excursion gambling boat operated
pursuant to the authority of a license issued to either Xxxxxxxx or the
Authority by the Iowa Racing and Gambling Commission. This paragraph in no way
prohibits Xxxxxxxx from entering into a management contract providing same is
approved by the Authority and by the Iowa Racing and Gaming Commission.
3. Any management contract entered into by Xxxxxxxx shall provide that it
is subject to the terms and conditions of this operator's contract and further
that all the obligations, rights, privileges, and duties provided for in the
operator's contract shall apply to any such management contract.
4. Xxxxxxxx and the Authority hereby jointly accept the responsibility for
compliance with the act and all laws of the State of Iowa and the rules of the
Commission.
5. Xxxxxxxx and the Authority agree that the Commission and each of them
shall have the right to audit each other's records to the extent necessary to
provide verification of compliance under this Agreement.
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6. In addition to any other monies paid to the Authority, hereunder,
Xxxxxxxx agrees that if the win from gambling in any given year exceeds
$44,000,000 the Authority will be paid an amount equal to two percent (2%) of
any such excess win over $44,000,000.
7. In the event either Xxxxxxxx or the Authority is deemed by the other or
the Commission not to be in compliance with the terms of this Agreement, the
non-breaching party or the Commission shall be entitled to specific performance
of the terms of this Agreement. Further, the parties agree that in the event of
any operational default, the defaulting party shall be required to cure such
default to the satisfaction of the Commission. In the event said party does not
cure the default to the satisfaction of the Commission, then the non-defaulting
party may, at its option, after obtaining written approval from the Commission
and giving the other party thirty (30) days written notice and opportunity to
cure, declare this Agreement terminated.
8. That in all other respects, the original contract and amendment thereto
are hereby ratified and confirmed.
Dated this 1/st/ day of March, 1990.
THE XXXXXXXX GROUP, L.P. RIVERBOAT DEVELOPMENT AUTHORITY
By: Dalls, III, Inc By:______________________________
---------------------------------------- Xxxx Xxxxx Xxxxxxxxxx
Its General Partner President
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------- ------------------------------
Xxxx Xxxxxxxx, President Xxxxxx X. Xxxxxxxxx
Secretary
AMENDMENT TO OPERATOR'S CONTRACT
--------------------------------
WHEREAS, the Riverboat Development Authority (Authority) and the Xxxxxxxx
Group L.P. (Xxxxxxxx) have entered into an operator's contract dated December
28, 1989; and
WHEREAS, the parties wish to amend the contract.
NOW THEREFORE for and in consideration of the mutual covenants herein
contained, it is agreed to amend the original contract by adding the following:
1. Paragraph 8 of the original agreement shall be amended by adding the
following language, to-wit:
In no event shall Xxxxxxxx receive any portion of any admissions fee
charged to admit an individual onto an excursion gaming boat operated
pursuant to this Operator's Contract. All such admissions fees collected by
Xxxxxxxx shall be paid exclusively to the Authority.
2. It is understood that neither Xxxxxxxx nor the Authority shall by lease,
contract, understanding or arrangement of any kind, grant, assign, or turn over
to any person or entity the operation of any excursion gambling boat operated
pursuant to the authority of a license issued to either Xxxxxxxx or the
Authority by the Iowa Racing and Gaming Commission. This paragraph in no way
prohibits Xxxxxxxx from entering into a management contract providing same is
approved by the Authority and by the Iowa Racing and Gaming Commission.
3. Any management contract entered into by Xxxxxxxx shall provide that it
is subject to the terms and conditions of this operator's contract and further
that all the obligations, rights, privileges, and duties provided for in the
operator's contract shall apply to any such management contract.
4. Xxxxxxxx and the Authority hereby jointly accept the responsibility for
compliance with the act and all laws of the State of Iowa and the rules of the
Commission.
5. Xxxxxxxx and the Authority agree that the Commission and each of them
shall have the right to audit each other's records to the extent necessary to
provide verification of compliance under this Agreement.
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6. In the event either Xxxxxxxx or the Authority is deemed by the other or
the Commission not to be in compliance with the terms of this Agreement, the
non-breaching party or the Commission shall be entitled to specific performance
of the terms of this Agreement. Further, the parties agree that in the event of
any operational default, the defaulting party shall be required to cure such
default to the satisfaction of the Commission. In the event said party does not
cure the default to the satisfaction of the Commission, then the non-defaulting
party may, at its option, after obtaining written approval from the Commission
and giving the other party thirty (30) days written notice and opportunity to
cure, declare this Agreement terminated.
7. That in all other respects, the original contract between the parties is
hereby ratified and confirmed.
Dated this 9/th/ day of February, 1990.
THE XXXXXXXX GROUP, L.P. RIVERBOAT DEVELOPMENT AUTHORITY
By: Dalls, III, Inc. By: /s/ Xxxx Xxxxx Xxxxxxxxxx
------------------------------------ --------------------------------
Its General Partner Xxxx Xxxxx Xxxxxxxxxx
President
By:____________________________________ By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxx Xxxxxxxxxx --------------------------------
Vice-President Xxxxxx X. Xxxxxxxxx
Secretary
AMENDMENT TO OPERATOR'S CONTRACT
--------------------------------
WHEREAS, the Riverboat Development Authority (Authority) and the
Xxxxxxxx Group L.P. (Xxxxxxxx) have entered into an operator's contract dated
December 28, 1989; and
WHEREAS, the parties wish to amend Paragraph 8 of the contract in order
to provide that Xxxxxxxx will pay the $.50 per admission directly to the City of
Xxxxxxxxx, and will further pay the admissions charges as required by the Iowa
Racing and Gaming Commission; and
WHEREAS, it is the intention of the parties hereto that the Authority
be placed in the same position substantially as it was at the time the original
contract between the parties was executed on December 28, 1989.
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, it is agreed to amend the original contract as follows:
1. The original Paragraph 8 contained in the Operator's Contract dated
December 28, 1989, is hereby deleted, and the following language is substituted
therefore.
During the initial term of this lease, the operator shall pay an
admissions charge to the Authority equal to $1.00 for the first 500,000
admissions, and $1.50 for all admissions in excess thereof. Payment shall be for
all admissions, either paid or complimentary, excepting only actual and
necessary officials and employees of the Authority and Operator, and all other
persons actually working on the excursion gambling boat as more particularly set
forth under the rules of the Iowa Racing and Gaming Commission and Chapter 99F.
From said sum, the Authority shall be responsible for all of its administrative
costs, the annual DCI investigation of its Board members as required, all legal
expenses, salaries, and all related costs associated with the administration of
the license. Xxxxxxxx covenants and agrees to pay to the City of Xxxxxxxxx, all
amounts as required by the City of Xxxxxxxxx, and shall further be responsible
for the payment of all charges as required by the Iowa Racing and Gaming
Commission. Xxxxxxxx agrees to hold the Authority Harmless for any charge,
except as specifically stated in the immediately preceding sentence, required by
the City of Xxxxxxxxx, and/or any charges required by the Iowa Racing and Gaming
Commission. The Operator shall provide at its expense, all necessary accounting
and documentation to establish to the reasonable satisfaction of the Authority,
the City of Xxxxxxxxx, and the Iowa Racing and Gaming Commission, the number of
all admissions. The Operator agrees to pay to the Authority and to account to
the Authority as required to comply with the Iowa Racing and Gaming Commission's
rules and regulations. The Operator shall pay said sums as required herein
weekly by 12:00 Noon on the Friday following the completion of each calendar
week.
In the event that this contract is extended as contemplated in
paragraph 5, during the first three year extension, (The years beginning April
1, 1994 through March 31, 1997), the Authority shall have the right to increase
the per person admissions charge in an amount equal to one-half of the
percentage increase, if any, in the Consumer Price Index hereinafter called
"Index" for Chicago, Illinois for all items of the Bureau of Labor Statistics of
the United States Department Labor. Such an increase shall be calculated by
multiplying the $1.00 or the $1.50 admissions charge, depending on the number of
admissions, by the fraction which is obtained by utilizing the index rate as of
April 1, 1991, (Base Rate) as the denominator, and the excess of the Index Rate
as of April 1, 1994, over the Base Rate as the numerator and dividing the
resulting fraction by two. The resulting fraction, when multiplied by the
present rate of $1.00 or $1.50 depending on the number of admissions, will
constitute the increase which, when added to the present rate will
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constitute the extension rate provided, however, that the extension rate shall
not exceed the maximum of $2.25. Any increase shall be included within an
extension agreement. In the event that this contract is extended for an
additional, or third, three year period, (the years beginning April 1, 1997, and
ending March 31, 2000), the Authority shall have the right to increase the
admissions charge in an amount equal to one-half of the percentage increase, if
any, in the "index". Such an increase shall be calculated by multiplying the
initial $1.00 or $1.50 admissions charge, depending on the number of admissions,
by the fraction which is obtained by utilizing the Base Rate, as the denominator
and the excess of the rate as of April 1, 1997, over the Base Rate, as the
numerator, and dividing the result by two. The resulting fraction, when
multiplied by the initial rate of $1.00 or $1.50 depending on the number of
admissions, constitutes the extension rate, provided, however, that the
extension rate shall not exceed $3.00. Any such increase shall be included
within an extension agreement. For all purposes hereof, in the event this
"Index" is no longer in existence, then the successor index, if it exists, or
the Index most similar to the "Index" shall be used for purposes of this
agreement. Notwithstanding the right of the Authority to increase the per person
admissions charge as set forth above, no such increase shall be permitted,
implemented or paid for any year if the Xxxxxxxx Group's gambling operations
will not generate a net profit for such year after taking into account such
increases. By way of example, assume for the year beginning on April 1, 1994,
and ending March 31, 1995, that Xxxxxxxx'x net profit on gambling operations was
$100,000, that 400,000 persons had been charged admissions for such year, and
that the increase calculated as set forth above, before this limitation, would
be $.50. In this example, the Authority could not collect the increase in the
admissions rate for such year because the effect of the increase would be to
make Xxxxxxxx unprofitable for the year (e.g., 400,000 admissions x $.50 =
$200,000 of additional Xxxxxxxx expense which exceeds $100,000 of net profits).
For purposes of this agreement, net profit shall mean the net profit reflected
on the financial statement submitted to the Iowa Racing and Gaming Commission at
year end, reduced by the principal portion of Xxxxxxxx'x debt service. For
fiscal years beginning on April 1, 1994, any increases as set forth above will
be calculated on a year to year basis using the above formula and any permitted
increases shall be paid to the Authority by Xxxxxxxx in a lump sum within
fifteen (15) days after the submission of the above year end financial
statements to the Iowa Racing and Gaming Commission for the year in question
beginning with the year ending March 31, 1995.
In no event shall Xxxxxxxx receive any portion of any admissions fees
charged to admit an individual onto an excursion boat operated pursuant to this
operator's contract. All such admissions fees collected by Xxxxxxxx, shall be
paid to the Authority, the City of Xxxxxxxxx, or the Iowa Racing and Gaming
Commission.
2. That in all other respects, the original contract and the amendments
thereto, are hereby ratified and confirmed.
Dated this _________________ day of January, 1991.
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THE XXXXXXXX GROUP, L.P. RIVERBOAT DEVELOPMENT AUTHORITY
By /s/ Dalls III, Inc. By ____________________________
-----------------------------------
its General Partner
By /s/ Xxxxx X. Xxxxxxxx By ____________________________
-----------------------------------
Xxxxx X. Xxxxxxxx
Assistant Treasurer
AMENDMENT TO OPERATOR'S CONTRACT
--------------------------------
WHEREAS, the Riverboat Development Authority (Authority) and The
Xxxxxxxx Group, L.P., its successors and assigns (Xxxxxxxx) have entered into an
Operator's Contract dated December 28, 1989; and
WHEREAS, the contract has been, from time to time, amended; and
WHEREAS, it is the intention of the parties to amend said contract to
provide for its extension, and to provide for changes in the initial financial
provisions.
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, it is agreed to amend the original contract and amendments thereto as
follows:
1. Paragraph No. 8 of the original contract is amended to read as
follows:
"From and after the approval of this amendment, and for the period
of this contract, Xxxxxxxx shall pay the Authority as follows:
A. $27,500 per week, which payment shall be received by the
Authority by 12:00 Noon each Friday.
B. Annual payment equal to 2% of the adjusted gaming receipts
as defined in Iowa Code Section 99F.1(11), over $34,000,000
for each fiscal year, commencing July 1, 1994. Payments
shall be made on the 15th day of July of each year. The
first payment shall be due July 15, 1995.
C. Annual payment equal to $1.50 for each admission, either
paid or complimentary, excepting any actual and necessary
officials and employees of the Authority and Xxxxxxxx, and
all other persons actually working on the excursion gambling
boat as more particularly set forth under the rules of the
Iowa Racing and Gaming Commission and Chapter 99F of the
Iowa Code in excess of 1,117,579 based upon each contract
year. A contract year shall be from April 1, through March
31, of the subsequent year. Payment shall be due on or
before the 15th day of
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April of each year, the first payment to be made on
or before April 15, 1995. It is understood that the
Authority has been receiving payments weekly from
Xxxxxxxx since April 1, 1994. Xxxxxxxx shall be given
credit against the payment of $1.50 for all
admissions in excess of 1,117,579 in an amount equal
to that amount of money paid to the Authority in
excess of $27,500 per week from and after April 1,
1994, up to and including March 31, 1995.
From said sums, the Authority shall be
responsible for all of its administrative costs, the
annual DCI investigation of its board members as
required, all legal expenses, salaries, and all
related costs associated with the administration of
the license. Xxxxxxxx covenants and agrees to pay the
City of Xxxxxxxxx, all sums of money as required by
the City of Xxxxxxxxx, and further to be responsible
for the payment of all charges as required by the
Iowa Racing and Gaming Commission.
Xxxxxxxx agrees to hold the Authority
harmless any charge required by the City of Xxxxxxxxx
and/or any charges required by the Iowa Racing and
Gaming Commission. Xxxxxxxx shall provide, at its
expense, all necessary accounting and documentation
to establish to the reasonable satisfaction of the
Authority, the City of Xxxxxxxxx, and the Iowa Racing
and Gaming Commission, the number of all admissions.
Xxxxxxxx agrees to pay to the Authority and to
account to the Authority as required to comply with
the Iowa Racing and Gaming Commission's rules and
regulations.
D. In no event shall Xxxxxxxx receive any portion of
any admissions fees charged to admit an individual
onto the excursion operated pursuant to this
contract. All such admission fees collected by
Xxxxxxxx, shall be
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paid to the Authority, the City of Xxxxxxxxx, or the Iowa
Racing and Gaming Commission.
2. Paragraph No. 5 of the original contract is hereby amended to
read as follows:
A. This contract shall run from the date of execution until
March 31, 1998; provided, however, that so long as
Xxxxxxxx has substantially complied with the Iowa Racing
and Gaming Rules, and the Authority's gaming license is
renewed and/or in effect, the parties will negotiate
thereafter for succeeding three year periods the
extension of this agreement, the last of which shall
terminate on the anniversary date of the license in the
year to which Xxxxx County may extend its referendum and
the Authority's license is so extended.
3. This amendment, and any further amendments hereto, are
expressly subject to the approval of the Iowa Racing and Gaming Commission. In
the event that the Iowa Racing and Gaming Commission requires any amendment of
this contract, all parties agree to make a best efforts attempt to negotiate in
good faith, such additional terms as are acceptable to the Iowa Racing and
Gaming Commission. Further, in the event that Chapter 99F of the Code of Iowa is
amended to permit the imposition of the state gaming taxes based on percentage
of revenue, the parties agree to make a best efforts attempt to negotiate in
good faith, a replacement operator's fee based upon a percentage of the revenue
that reasonably equates to the fees to be paid to the Authority under the terms
of the contract and amendments thereto.
4. The Authority hereby agrees that subject to the approval of
the Iowa Racing and Gaming Commission, Xxxxxxxx is granted the right to move the
turnstile from its present location to the entrance of the present guest service
center.
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5. That in all other respects, the terms of the original contract, and
the amendments thereto that are not in direct conflict with this amendment are
hereby ratified and affirmed.
Dated this 30th day of September, 1994.
RIVERBOAT DEVELOPMENT AUTHORITY
By /s/ Xxxx Xxxxx Xxxxxxxxxx
-----------------------------------------------------
Xxxx Xxxxx Xxxxxxxxxx, President
By /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------------------
Xxxxxx X. Xxxxxxxxx, Secretary
THE XXXXXXXX GROUP, L.P. by its General Partner,
PRESIDENT RIVERBOAT CASINO-Iowa, Inc,
By /s/ Xxxxxx Xxxxxx
-----------------------------------------------------
Xxxxxx Xxxxxx, President
By _________________________________________
RESOLUTION
WHEREAS, the Operator's Contract is amended between the Riverboat
Development Authority and The Xxxxxxxx Group, L.P. expires by its terms on March
1, 1998; and
WHEREAS, the Riverboat Development Authority and the The Xxxxxxxx Group,
L.P. wish to extend the Operator's Contract as originally drawn and amended
through February 28, 2002.
BE IT HEREBY RESOLVED that Xxxx Xxxxx Xxxxxxxxxx as President, and Xxxxxx
X. Xxxxxxxxx as Secretary of the Riverboat Development Authority is hereby
authorized to execute any and all documents necessary in order to extend the
contract between the Riverboat Development Authority and the President Riverboat
Casino, Inc., up to and including February 28, 2002.
BE IT FURTHER RESOLVED that in all other respects, the original written
agreements between the Riverboat Development Authority and the Xxxxxxxx Group,
L.P., including all amendments thereto, are hereby ratified and affirmed.
Dated this 24/th/ day of February, 1998.
/s/ Xxxx Xxxxx Xxxxxxxxxx
---------------------------------------
Xxxx Xxxxx Xxxxxxxxxx, President
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxxx, Secretary
AMENDMENT TO OPERATOR'S AGREEMENT
WHEREAS, the Riverboat Development Authority and the Xxxxxxxx Group, L.P.,
originally entered into an Operator's Agreement dated December 28, 1989; and
WHEREAS, the contract has from time to time been amended; and
WHEREAS, it is the intentions of the parties to amend said contract to
provide for its extension up to and including February 28, 2002.
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained, it is agreed as follows:
1. The original Operator's Agreement between the Riverboat Development
Authority and the Xxxxxxxx Group, L.P., dated December 28, 1989, is hereby
extended up to and including February 28, 2002.
2. In all other respects, the original agreement and all amendments
executed thereto, are hereby ratified and confirmed.
Dated this 1/st/ day of March, 1998.
RIVERBOAT DEVELOPMENT AUTHORITY
By /s/ Xxxx Xxxxx Xxxxxxxxxx
-----------------------------------------------
Xxxx Xxxxx Xxxxxxxxxx, President
By /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxxxx, Secretary
THE XXXXXXXX GROUP, L.P. BY
PRESIDENT RIVERBOAT CASINO IOWA, INC.
ITS GENERAL PARTNER
By_______________________________________________
Vice-President
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