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Platinum Holdings - 3rd Amendment to DACITY OF DUBUQUE, IOWA MEMORANDUM May 3, 2001 TO: FROM: SUBJECT: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager Amendment to Development Agreement I respectfully recommend Mayor and City Council approval of the Third Amendment to Development Agreement with Platinum Holdings, LLC amending the closing date to be on or before June 4, 2001, for the land lease for the riverfront hotel and indoor water park. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel THIRD AMENDMENT TO DEVELOPMENT AGREEMENT THIS THIRD AMENDMENT TO DEVELOPMENT AGREEMENT ("Amendment No. 3") is executed as of the day of ,2001, by and between the CITY OF DUBUQUE, IOWA, a municipality (the "City") established pursuant to the Code of Iowa of the State of Iowa and acting under authorization of Chapter 403 of the Code of Iowa, as amended (the "Urban Renewal Act") and PLATINUM HOLDINGS, LLC, an Iowa limited liability company, with its principal place of business in Dubuque, Iowa (the "Developer"). WHEREAS, the above-identified parties have executed a certain Development Agreement dated June 19, 2000 (the "Development Agreement"), pertaining to, inter alia the purchase, sale, development and use of certain real property located in the City of Dubuque, County of Dubuque, State of)owa (the "Property"); and WHEREAS, the Development Agreement has been amended pursuant to that ce~m Amendment to Development Agreement between the above-identified parties dated January 15, 2000 (the "Amendment No. 1') a Second Amendment to Development Agreement dated ,2001 (the "Amendment No. 2); and WHEREAS, due to unforeseen circumstances and delays, the parties were unable to satisfy all conditions and requirements related to the Development Agreement as amended; and WI-IEREAS, the parties desire to fimher amend the Development Agreement to satisfy various conditions. NOW, THEREFORE, in consideration of the Development Agreement, the foregoing recitals, the mutual covenants, terms and conditions hereinafter set forth and other valuable consideration, the receipt and sutTmiency of which are hereby acknowledged, the City and Developer hereby agree to modify, amend and supplement the Development Agreement, as amended, as set forth below. 1. Capitalized terms used but not defined herein shall have the meanings set forth in the Development Agreement. 2. Section 2.7 of the Development Agreement, as amended by Amendment No. 2, is hereby deleted in its entirety and replaced with the following: "2.7 Closing. The closing shall take place on or before June 4, 2001 (the "Closing Date"), or such other date as the parties may agree in wrifmg. Exclusive possession of Property shall be delivered on the Closing Date, in compliance with the terms of this Agreement, including City's representations and warranties regarding the same. Consummation of the Closing shall be deemed an agreement of the parties to Agreement that the conditions of closing shall have been satisfied or waived. If the conditions set forth in Section 2.6 are not satisfied at Closing Date, this Agreement shall terminate unless a new Closing Date is established by amendment to this Agreement. The termination of this Agreement shall be the sole remedy in the event a condition set forth in Section 2.6 is not satisfied. Prior to the Closing Date, the City shall cause its environmental consultant to prepare a supplemental Phase I1 f'mal report summarizing the environmental condition of the Property. The report shall include a legible copy of all laboratory results, maps, and boring logs, together with a narrative describing the investigation. The report shall also discuss the ice conditions found under the surface." 3. This Amenciment No. 3 shall not alter or amend any obligation of the City to remedy any underground ice problems that may exist under the Property so that Developer can immediately commence constructing the Minimum Improvements as of the Closing Date. 4. The parties hereby ratify and reaffirm all terms and conditions of the Development Agreement, as amended by Amendment No. I and Amendment No. 2, which are not expressly modified, amended or supplemented by this Amendment No. 3, and acknowledge and agree that the Development Agreement, as modified, amended and supplemented by Amendment No. 1, Amendment No. 2 and Amendment No. 3 shall be and hereby is reinstated and shall confmue in full force and effect for the duration and the extant therein provided. If there are conflicts between the terms of the Development Agreemant, as amended by Amendment No. 1 and Amendment No. 2, and the terms of this Amendment No. 3, the terms of this Amendment No. 3 shall control. IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to Development Agreement to be executed by their respective duly authorized officers or representatives as of the date and year first above written. CITY: CITY OF DUBUQUE, IOWA DEVELOPER: PLATINUM HOLDINGS, LLC By: By: James P. RLx, Chief Executive Officer Terrance M. Duggan, Mayor By: By:_ Jeanne F. Schneider, City Clerk Donald Iverson, Member RESOLUTION NO. -01 APPROVING THIRD AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBUQUE AND PLATINUM HOLDINGS, LLC WHEREAS, the City of Dubuque (City) and Platinum Holdings, LLC (Developer) have entered into a Development Agreement pttrsum~t to which City will lease to Developer certain real property for Developer's construction and operation of a hotel and water park; AND WHEREAS, the Closing Date established in the Amended Development Agreement is May 15, 2001; AND WHEREAS, City and Developer now desire to further amend the Development Agreement to establish a new closing date of June 4, 2001. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA AS FOLLOWS: I. The Third Amendment to Development Agreement attached hereto is hereby approved. 2. The Mayor is authorized and directed to sign the Third Amendment on behalf of the City of Dubuque. Dated this day of ,2001. Terrance M. Duggan, Mayor Attest: Jeanne F. Schneider, City Clerk RESOLUTION NO. -01 APPROVING THIRD AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBUQUE AND PLATINUM HOLDiNGS, LLC WHEREAS, the City of Dubuque (City) and Platinum Holdings, LLC (Developer) have entered into a Development Agreement pursuant to which City will lease to Developer certain real property for Developer's construction and operation of a hotel and water park; AND WHEREAS, the Closing Date established in the Amended Development Agreement is May 15, 2001; AND WHEREAS, City and Developer now desire to further amend the Development Agreement to establish a nexv closing date of June 4, 2001. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA AS FOLLOWS: 1. The Third Amendment to Development Agreement attached hereto is hereby approved. 2. The Mayor is authorized and directed to sign the Third Amendment on behalf of the City of Dubuque. Dated this day of ,2001. Terrance M. Duggan, Mayor Attest: Jeanne F. Schneider, CityClerk