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Approving the Consent to Assignment and Assumption Agreement_Hotel Dubuque L.L.C. and Novelty Iron Landlord, LLC and Eight Amendment to Development AgreementCity of Dubuque City Council Meeting Consent Items # 016. Copyrighted April 17, 2023 ITEM TITLE: Resolution Approving the Consent to Assignment and Assumption Agreement Between the Hotel Dubuque L.L.C., and Novelty Iron Landlord, LLC and Approving the Eight Amendment to Development Agreement Between and among the City of Dubuque, Iowa, The Hotel Dubuque L.L.C., and Novelty Iron Landlord, LLC SUMMARY: City Manager recommending City Council adopt a resolution approving the Assignment and Assumption of Contract Rights and Obligations between the Hotel Dubuque L.L.C., and Novelty Iron Landlord LLC and approves the attached Eighth Amendment to Development Agreement between and among the City of Dubuque, Iowa, The Hotel Dubuque L.L.C., and Novelty Iron Landlord LLC. RESOLUTION Approving the Consent to Assignment and Assumption Agreement between the Hotel Dubuque L.L.C., and Novelty Iron Landlord LLC and approving the Eighth Amendment to Development Agreement between and among the City of Dubuque, Iowa, the Hotel Dubuque L.L.C., and Novelty Iron Landlord LLC SUGGESTED Suggested Disposition: Receive and File; Adopt Resolution(s) DISPOSITION: ATTACHMENTS: Description Type MVM Memo City Manager Memo Memo Staff Memo Resolution Resolutions 8th Amendment Supporting Documentation Partial Assignment and Assumption Supporting Documentation Termination Prior to Assignment of DA Supporting Documentation Exhibit C Supporting Documentation THE CITY OF Dubuque DUB TEE1. All -America City Masterpiece on the Mississippi � pp zoo�•*o 13 zoi720zoi9 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Resolution Approving the Consent to Assignment and Assumption Agreement Between the Hotel Dubuque L.L.C., and Novelty Iron Landlord, LLC and Approving the Eighth Amendment to Development Agreement Between and among the City of Dubuque, Iowa, The Hotel Dubuque L.L.C., and Novelty Iron Landlord, LLC DATE: April 14, 2023 Senior Counsel Barry Lindahl is recommending City Council adopt a resolution approving the Consent to Assignment and Assumption Agreement between the Hotel Dubuque L.L.C., and Novelty Iron Landlord LLC and approving the attached Eighth Amendment to Development Agreement between and among the City of Dubuque, Iowa, The Hotel Dubuque L.L.C., and Novelty Iron Landlord LLC. I concur with the recommendation and respectfully request Mayor and City Council approval. Mic ael C. Van Milligen MCVM:sv Attachment cc: Crenna Brumwell, City Attorney Cori Burbach, Assistant City Manager Barry Lindahl, Senior Counsel Jill Connors, Economic Development Director THE CITY OF t DUB ---- Masterpiece on the Mississippi BARRY A. LINDAHL, ESQ. SENIOR COUNSEL MEMO To: Michael C. Van Milligen City Manager DATE: April 12, 2023 Dubuque MI•Aseriea City I I 2007.2012.2013 2017*2019 RE: Resolution Approving the Consent to Assignment and Assumption Agreement Between the Hotel Dubuque L.L.C., and Novelty Iron Landlord, LLC and Approving the Eighth Amendment to Development Agreement Between and among the City of Dubuque, Iowa, The Hotel Dubuque L.L.C., and Novelty Iron Landlord, LLC The City of Dubuque, Iowa and Warehouse Trust, LLC, entered into a Development Agreement, dated for reference purposes the 17th day of June 2013, as amended, which Development Agreement was subsequently assigned by Warehouse Trust, LLC to Novelty Landlord, LLC with the consent of the City. There have been seven prior amendments to the Development Agreement, namely: First Amendment, dated the 21s' day of August 2013; Second Amendment, dated the 61h day of January, 2014; Third Amendment. Dated the 16th day of March, 2015; Fourth Amendment, dated the 21st day of December, 2015; Fifth Amendment, dated the 19t' day of June, 2017; Sixth Amendment, dated the 4th day of October, 2022 and a Seventh Amendment, dated the 31d of January. The Development Agreement pertains to Property now comprises Condominium Units and legally described as follows: Unit 1, Unit 2 and Unit 3 of NOVELTY IRON WORKS CONDOMINIUMS located on Lot 1 of Lot 1 of CENTER CITY PLACE #2, in the City of Dubuque, Iowa, according to Declaration of Submission to Horizontal Property Regime, Instrument #2014-2934 and the recorded Plat thereof (hereinafter "Unit I", "Unit 2°, and "Unit 3", and together with all corresponding common areas, collectively, the "Property"; and Novelty Landlord, LLC and The Hotel Dubuque L.L.C. previously entered an Assignment and Assumption of Contract Rights and Obligations, dated as of September 15, 2022 and OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 583-4113 I FAx (563) 583-10401 EMAIL balesq@cityofdubuque.org consented to by the City on September 20, 2022, pursuant to which Novelty Landlord, LLC agreed to assign the Development Agreement to The Hotel Dubuque L.L.C. (the "Contemplated Prior Assignment"), contingent and effective upon closing under a Purchase and Sale Agreement whereby The Hotel Dubuque L.L.C. would acquire the entire Property from Novelty Landlord, LLC (the "Prior Purchase Agreement". Closing under the Prior Purchase Agreement has not occurred and, accordingly, the Contemplated Prior Assignment has not been consummated. The Sixth Amendment and Seventh Amendment anticipated the Contemplated Prior Assignment and the effect of such amendments was necessarily depend upon consummation of the Contemplated Prior Purchase Agreement. Novelty Landlord, LLC and The Hotel Dubuque L.L.C. have Amended and Restated the Prior Purchase Agreement to provide for (a) The Hotel Dubuque L.L.C. acquisition of Unit 3 from Novelty Landlord, LLC (the "Unit 3 Acquisition") and (b) the option, in favor of The Hotel Dubuque L.L.C. to subsequently purchase Unit 1 and Unit 2 from Novelty Landlord, LLC. Novelty Landlord, LLC and The Hotel Dubuque L.L.C. are rescinding the Contemplated Prior Assignment Agreement and entering into a new Assignment and Assumption of Contract Rights and Obligations, subject to City's consent thereto, in order to provide for partial assignment of the Development Agreement pertaining to Unit 3, upon the Unit 3 Acquisition. Novelty Landlord, LLC and The Hotel Dubuque L.L.C. also desire to amend the Development Agreement to (a) clarify the rights and obligations of the parties following the attached Assignment and Assumption of Contract Rights and Obligations, and (b) to explicitly rescind the Sixth Amendment and the Seventh Amendment. The attached letter dated April 7, 2023 from Vantage Law Group, counsel for The Hotel Dubuque L.L.C. explains the need for the Assignment and Assumption of Contract Rights and Obligations and the Eight Amendment to the Development Agreement. As The Hotel Dubuque L.L.C. attorney explained it to me in an email: Acquisition of the Project will now be conducted in phases. THD [The Hotel Dubuque L.L.C.] intends to first acquire Unit 3 on the heels of resolving the 8th Amendment to Development Agreement, and to subsequently exercise purchase options on the balance of the Project. Following closing on Unit 3, THD will need to update the scope of the hotel and other improvements to the Project. Specific details regarding the updated scope of improvements are in progress. THD's current focus is on closing the Unit 3 acquisition and related transactions, including debt financing and the 8th Amendment, and anticipates increased focus on updated scope details following that closing. THD will be working through OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL tsteckle@cityofdubuque.org those details with the City and assumes that THD and the City will ultimately memorialize the same in a clean new Development Agreement. At present, it does not work to carry forward minimum improvement provisions that are known to be obsolete, and THD cannot delay acquisition to finalize those details without seriously jeopardizing its financing package for the acquisition (particularly in light of the current lending environment). Time is of the essence for THD to consummate closing on Unit 3. Ideally a final updated scope of minimum improvements would be ready concurrent with THD's acquisition of the balance of the Project. That would make it easy to memorialize all Project related matters between the City and THD in the new Development Agreement and with no further amendment. However, if the final updated scope of improvements is agreed prior to THD's acquisition of the remaining property, I still envision a new DA between the City and THD for Unit 3 and related minimum improvements, and the existing DA could be simply amended to remove Unit 3 from the scope of the property subject to the existing DA. I recommend that the attached resolution be submitted to the Mayor and City Council for consideration and adoption. In the resolution, the City consents to the attached Assignment and Assumption of Contract Rights and Obligations and approves the attached Eighth Amendment to Development Agreement. BAL:JLM Attachments cc: Crenna Brumwell, City Attorney Jill Connors, Economic Development Director OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 583-4113 / FAX (563) 583-1040 / EMAIL tsteckle@cityofdubuque.org ';/LAWGROUP VANTAGE VIA E-MAIL TO CITY ATTORNEY April 7, 2023 City Council City of Dubuque, IA balesgAcitvofdubumue. gov TVLER J. ADAMS (612)201-IJ50 cell tylcr.adams(`vanthge.law Re: Novelty Iron Work Project (the "Project") — Proposed 8' Amendment to Development Agreement (the "DA") between Novelty Iron Landlord, LLC ("Seller") and the City of Dubuque (the "City") Dear Council Members: Our firm represents The Hotel Dubuque L.L.C., prospective Buyer of the Project ("Saver"). This letter explains the need for, and general content of, the enclosed 81h Amendment to DA (the "Amendment"). Buyer anticipates acquiring a portion of the Project ("Unit 3"), and options to subsequently acquire the balance of the Project, pursuant to an Amended and Restated Purchase and Sale Agreement (the "ESA") between Buyer and Novelty Iron Landlord, LLC ("Seller"). Financing and closing on the purchase and sale of Unit 3 (the "Closing") requires: (a) partial assignment of the DA from Seller to Buyer, and (b) execution of the Amendment. The Amendment will allocate the rights and obligations of Buyer, Seller, and the City under the DA during the period between the Closing and execution of a clean new Development Agreement between the City and Buyer (a "New DX). The Amendment is otherwise generally intended to maintain the terms of the DA as of the 51M1 Amendment thereto, without increasing developer benefits or City obligations. Specifically, the 81h Amendment is required to: 1. Provide clarity around the status of the 6D and 7'h Amendments to DA. • Buyer cannot take assignment of the DA under the terms of an Assignment and Assumption previously entered by Buyer and Seller and consented to by the City, because Buyer will not acquire the Project in a single transaction as previously contemplated. • Buyer is incapable of agreeing to amend the DA as contemplated by the Oh and 7`h Amendments without assuming the entire DA and becoming the "Developer" thereunder. • Accordingly, the 61h and 7s' Amendments are necessarily ineffective, and the Amendment would clarify as much. 1. Give effect to, and provide clarity in connection with, a partial assignment of the DA from Seller to Buyer concurrent with the Closing. • The entire DA cannot be assigned to Buyer because it is only acquiring a portion of the Project at Closing. Assignment of the DA must be limited to Unit 3. n1918783 2: 125 S2 Main Street • S.1W 250 • Mlnnnpolk, MN 55414 V ANTAG O.LAW City Council, City of Dubuque, IA April 7, 2023 Page 2 • The Amendment will help clarify the effect of moving from a two-party DA to a three -party DA. 2. Ensure preservation of certain 6"' Amendment concepts important to the City. • Namely, the execution and effectiveness of an Irrevocable License and certain developer improvement obligations related to the Project's bridge over Washington Street. Please note that the Amendment would not include increases to the duration of the City's TIF grant payment obligations or corresponding hotel minimum improvement commitments, as previously reflected in the 6`" Amendment. The minimum improvement obligations of the 6th Amendment are now obsolete and work necessary to update necessary details regarding the same cannot be completed within the required timeline for Closing. Updated minimum improvement details and corresponding City incentives would be addressed in the New DA, to be developed and executed by Buyer and the City following Closing and resolution of updated minimum improvement details. Thank you for your time and consideration. Please contact David Rachie (drachic(a,msccan.com) or the undersigned with any questions. Regards, VANTAGE LAW GROUP, PLLC Tyler J. Adams cc: Barry Lindahl (by e-mail); Jill Connors (by e-mail) Bob Johnson (by e-mail); David Rachie (by e-mail); Susan Hess (by e-mail); Rodney Carroll (by e-mail); and Thomas Collins (by e-mail). 100418783 21 Prepared by Barry A. Undal, Esq. 300 Main St., Ste. 330, Dubuque !A 52001-6944, (563) 583-4113 Return to Adrienne N. Breitfelder, City Clerk, 50 W. 1311 St., Dubuque, IA 52001, (563) 589-4100 RESOLUTION NO. 113-23 APPROVING THE CONSENT TO ASSIGNMENT AND ASSUMPTION AGREEMENT BETWEEN THE HOTEL DUBUQUE L.L.C., AND NOVELTY IRON LANDLORD LLC AND APPROVING THE EIGHTH AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN AND AMONG THE CITY OF DUBUQUE, IOWA, THE HOTEL DUBUQUE L.L.C., AND NOVELTY IRON LANDLORD LLC WHEREAS, the City of Dubuque, Iowa and Warehouse Trust, LLC, entered into a Development Agreement, dated for reference purposes the 17th day of June 2013, as amended, which Development Agreement was subsequently assigned by Warehouse Trust, LLC to Novelty Landlord LLC with the consent of the City; and WHEREAS, there have been seven prior amendments to the Development Agreement, namely: First Amendment, dated the 21st day of August 2013; Second Amendment, dated the 6th day of January, 2014; Third Amendment. Dated the 16th day of March, 2015; Fourth Amendment, dated the 215t day of December, 2015; Fifth Amendment, dated the 19th day of June, 2017; Sixth Amendment, dated the 4th day of October, 2022 and a Seventh Amendment, dated the 31d of January, 2023; and WHEREAS, the Development Agreement pertains to Property now comprised of Condominium Units and legally described as follows: Unit 1, Unit 2 and Unit 3 of NOVELTY IRON WORKS CONDOMINIUMS located on Lot 1 of Lot 1 of CENTER CITY PLACE #2, in the City of Dubuque, Iowa, according to Declaration of Submission to Horizontal Property Regime, Instrument #2014-2934 and the recorded Plat thereof (hereinafter "Unit 1", "Unit 2", and "Unit 3", and together with all corresponding common areas, collectively, the `Property"; and WHEREAS, Novelty Landlord LLC and The Hotel Dubuque L.L.C. previously entered an Assignment and Assumption of Contract Rights and Obligations, dated as of September 15, 2022 and consented to by the City on September 20, 2022, pursuant to which Novelty Landlord LLC agreed to assign the Development Agreement to The Hotel Dubuque L.L.C. (the "Contemplated Prior Assignment"), contingent and effective upon closing under a Purchase and Sale Agreement whereby The Hotel Dubuque L.L.C. would acquire the entire Property from Novelty Landlord LLC (the "Prior Purchase Agreement"); and WHEREAS, closing under the Prior Purchase Agreement has not occurred and, accordingly, the Contemplated Prior Assignment has not been consummated; and WHEREAS, the Sixth Amendment and Seventh Amendment anticipated the Contemplated Prior Assignment and the effect of such amendments was necessarily depend upon consummation of the Contemplated Prior Purchase Agreement; and WHEREAS, Novelty Landlord LLC and The Hotel Dubuque L.L.C. have Amended and Restated the Prior Purchase Agreement to provide for The Hotel Dubuque L.L.C. acquisition of Unit 3 from Novelty Landlord LLC (the "Unit 3 Acquisition"), and WHEREAS, concurrent with this Amendment, the parties are rescinding the Contemplated Prior Assignment Agreement and entering the Partial Assignment and Assumption of Contract Rights and Obligations attached hereto as Exhibit A, subject to City's consent thereto, in order to provide for partial assignment of the Development Agreement pertaining to Unit 3, upon the Unit 3 Acquisition, and WHEREAS, as further set forth in the Eighth Amendment to Development Agreement, the parties also desire to amend the Development Agreement to (a) clarify the rights and obligations of the parties following the attached Partial Assignment and Assumption of Contract Rights and Obligations, and (b) to explicitly rescind the Sixth Amendment and the Seventh Amendment. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBQUUE, IOWA AS FOLLOWS: Section 1. The City consents to the attached Assignment and Assumption of Contract Rights and Obligations. Section 2. The City approves the attached Eighth Amendment to Development Agreement. Section 3. The Mayor and City Clerk are hereby authorized and directed to execute the Consent to Assignment and Assumption of Contract Rights and Obligations and the Eighth Amendment to Development Agreement. Passed, approved, and adopted this 17th day of April, 2023. � pe�.—Pi -� �MN . • :;a.. • ATTEST: Adrienne N. Breitfelder, City Clerk EIGHTH AMENDMENT TO DEVELOPMENT AGREEMENT This Eighth Amendment to Devel pment Agreement (this "Amendment"), dated for reference purposes the � day of A ri , 2023, is made and entered into by and among the City of Dubuque (hereinafter "City'), The Hotel Dubuque L.L.C., a Minnesota limited liability company (hereinafter "Developer I") and Novelty Iron Landlord, LLC, an Iowa limited liability company (hereinafter "Developer II"). WHEREAS, City and Warehouse Trust, LLC, entered into a Development Agreement, dated for reference purposes the 171h day of June 2013 (as amended, the "Development Agreement") which Development Agreement was subsequently assigned to Developer II with the consent of City; and WHEREAS, there have been seven prior amendments to the Development Agreement, namely: First Amendment, dated the 2 1 " day of August 2013; Second Amendment, dated the 61h day of January, 2014; Third Amendment. Dated the 16dt day of March, 2015; Fourth Amendment, dated the 215t day of December, 2015; Fifth Amendment, dated the 19' day of June, 2017; Sixth Amendment, dated the 4th day of October, 2022 (the "Sixth Amendment"); and a Seventh Amendment, dated the Yd day of January, 2023 (the "Seventh Amendment"); and WHEREAS, the Development Agreement pertains to Property now comprised of Condominium Units and legally described as follows: Unit 1, Unit 2 and Unit 3 of NOVELTY IRON WORKS CONDOMINIUMS located on Lot I of Lot 1 of CENTER CITY PLACE #2, in the City of Dubuque, Iowa, according to Declaration of Submission to Horizontal Property Regime, Instrument #2014-2934 and the recorded Plat thereof (hereinafter "Unit 1" (Parcel No. 1024480032), "Unit 2" Parcel No. 1024480033), and "Unit 3" (Parcel No. 1024480034), and together with all corresponding common areas, collectively, the "Property"); and WHEREAS, Developer I and Developer I1 previously entered an Assignment and Assumption of Contract Rights and Obligations, dated as of September 15, 2022 and consented to by City on Sept. 20, 2022 pursuant to which Developer I1 agreed to assign the Development Agreement to Developer I (the "Contemplated Prior Assignment"), contingent and effective upon closing under a Purchase and Sale Agreement whereby Developer I would acquire the entire Property from Developer It (the "Prior Purchase Agreement"); and WHEREAS, closing under the Prior Purchase Agreement has not occurred and, accordingly, the Contemplated Prior Assignment has not been consummated; and WHEREAS, the Sixth Amendment and Seventh Amendment anticipated the Contemplated Prior Assignment and the effect of such amendments was necessarily depend upon consummation of the Contemplated Prior Assignment. 04122023bzII00416967 51 WHEREAS, Developer I and Developer II have Amended and Restated the Prior Purchase Agreement to provide for (a) Developer I's acquisition of Unit 3 from Developer II (the "Unit 3 Acquisition"); and (b) the option, in favor of Developer I to subsequently purchase Unit 1 and Unit 2 from Developer II; and WHEREAS, concurrent with this Amendment, the parties are rescinding the Contemplated Prior Assignment and entering into the Assignment and Assumption of Contract Rights and Obligations attached hereto as Exhibit A or providing consent thereto, in order to provide for partial assignment of the Development Agreement pertaining to Unit 3, upon the Unit 3 Acquisition (the "Partial Assignment"); and WHEREAS, as further set forth in this Amendment, the parties also desire to amend the Development Agreement to (a) clarify the rights and obligations of the parties following the Partial Assignment, and (b) to explicitly negate the Sixth Amendment and the Seventh Amendment. THEREFORE, in consideration of the mutual terms and covenants contained herein, the parties agree as follows: 1. Prior Amendments. The parties acknowledge and agree that conditions precedent to the effectiveness of the Sixth Amendment and Seventh Amendment have not occurred and will not occur and that, as a result, the Sixth Amendment and the Seventh Amendment are voided and of no further force and effect. 2. Assignment Agreement. The parties shall execute a recission of the Contemplated Prior Assignment and execute the Partial Assignment concurrent with execution of this Amendment. 3. Effect of Assignment. Subject to and effective simultaneous with consummation of the Partial Assignment at the time of the Unit 3 Acquisition (the "Closing Date"), Developer I shall become a party to the Development Agreement, entitled to all the rights and subject to all of the obligations of "Developer" thereunder, except as follows: (a) The term "Property", as used in the Development Agreement, shall be deemed to mean Unit 3 (and a pro-rata portion of the Property common areas) when applied to Developer I, and shall mean Unit 1 and Unit 2 (and a pro-rata portion of the Property common areas) when applied to Developer II. The term "Minimum Improvements", as used in the Development Agreement, shall be deemed to mean those completed Minimum Improvements located on Unit 3 when applied to Developer I, and shall mean those completed Minimum Improvements located on Unit 1 and Unit 2 when applied to Developer II. Developer I and Developer II shall be jointly and severally liable for compliance with Section 8 of this Amendment. (b) As of the Closing Date Developer I shall be deemed to have made to the City the representations and warranties contained in Section 1.2 of the Agreement, except for 04122023bal{00416967 5} those representations and warranties contained in Sections 1.2(1), 1.2(6), and 1.2(7) of the Development Agreement. Developer I also represents and warrants to the City that Developer is a limited liability company duly organized and validly existing under the law of the State of Minnesota, and has all requisite power and authority to own and operate its properties, to carry on business as now conducted, and to enter into and perform its obligations under the Agreement. (c) The closing and subsequent development of the Property as contemplated by the Development Agreement have been completed, including completion of the Minimum Improvements and the Project. For purposes of clarification, the parties agree that Section 4.3 of the Development Agreement shall not apply to Developer I because Developer I did not participate in the completion of the Minimum Improvements and does not have or maintain books and records related thereto. 4. The parties acknowledge receipt of all Economic Development Grants payable prior to the date of this Amendment. Section 3.3 of the Development Agreement is hereby amended to read as follows in order to properly allocate the Economic Development Grants among Unit 1, Unit 2 and Unit 3: 3.3 Semi-annual Economic Development Grants. For, and in consideration of the urban renewal plan for the Project Area and the Urban Renewal Law, City agrees, subject to Development being and remaining in compliance with the terms of this Agreement to make eighteen (18) consecutive semi-annual payments on the following dates (such payments being referred to collectively as the "Economic Development Grants") to Developer I and Developer II as follows: November 1, 2022 May 1, 2023 November 1, 2023 May 1, 2024 November 1, 2024 May 1, 2025 November 1, 2025 May 1, 2026 November 1, 2026 May 1, 2027 November 1, 2027 May 1, 2028 November 1, 2028 May 1, 2029 November 1, 2029 May 1, 2030 November 1, 2030 May 1, 2031 pursuant to Iowa Code Section 403.9 of the Urban Renewal Law, in amounts equal to a portion of the tax increment revenues collected by City under Iowa Code Section 403.19 (without regard to any averaging that may otherwise be utilized under Iowa Code Section 403.19 and excluding any interest that may accrue thereon prior to payment to Developer) during the preceding six-month period in respect of the Minimum Improvements located on Unit 3 (Parcel No. 1024480034) (the "Developer I Tax Increments") and on Unit 1 (Parcel No. 1024480032) and Unit 2 (Parcel No. 1024480033) (the "Developer II Tax Increments" and, together with the Developer I Tax Increments, the "Developer Tax Increments"). For purposes of calculating the amount of the Economic Development Grants provided in this Section, (a) the 04122023bal{00416967 5} Developer I Tax Increments shall be only those tax increment revenues collected by City in respect of the increase in the assessed value of Unit 3 above $277,496.70, and (b) the Developer II Tax Increments shall be only those tax increment revenues collected by the City in respect of the increase in the assessed value of Unit 1 and Unit 2 above $438,003.30, such values reflecting the agreed allocated portion of the January 1, 2012 assessed value for all of Unit 1, Unit 2 and Unit 3. The Developer Tax Increments shall not include (i) any property taxes collected for the payment of bonds and interest of each taxing district, (ii) any taxes for the regular and voter - approved physical plant and equipment levy and instructional support levy, (iii) the remaining actual amount of tax increment revenues collected by City in respect of the valuations of the Property prior to January 1, 2012, and (iv) any other portion required to be excluded by Iowa law, and thus such incremental taxes will not include all amounts paid by Developer I or Developer II, as applicable, as regular property taxes. (1) To fund the Economic Development Grants, City shall certify to the County prior to December 1, 2015, its request for the available Developer I Tax Increments and Developer II Tax Increments resulting from the assessments imposed by the County as of January 1 of that year and each year thereafter through the Termination Date, to be collected by City as taxes paid during the following fiscal year and which shall thereafter be disbursed to Developer I and Developer II on November 1 and May 1 of that fiscal year in accordance with Section 3.3(2) below. (Example: if City so certifies in December 2022, the Economic Development Grants in respect thereof would be paid to the Developer on November 1, 2023, and May 1, 2024.) (2) The Economic Development Grants shall be payable from and secured solely and only by the Developer I Tax Increments and Developer II Tax Increments, as applicable, paid to City that, upon receipt, shall be deposited and held in two (2) special accounts created for such purpose and designated, respectively, as the Hotel Dubuque TIF Account of City (for the Developer I Tax Increments) and the Novelty Iron Works TIF Account of the City (for the Developer II Tax Increments). City hereby covenants and agrees to maintain its TIF ordinance in force during the term hereof and to apply the incremental taxes collected in respect of (a) the Minimum Improvements located on Unit 3, and allocated to the Hotel Dubuque TIF Account, to pay the Economic Development Grants pertaining to the Developer I Tax Increments, and (b) the Minimum Improvements located on Units 1 and Unit 2, and allocated to the Novelty Iron Works TIF Account to pay the Economic Development Grants pertaining to the Developer II Tax Increments, as and to the extent set forth in Section 3.3.(2) hereof. The Economic Development Grants shall not be payable in any manner by other tax increment, revenues, or by general taxation or from any other City funds. City makes no representation with respect to the amounts that may be paid to Developer I or Developer II in any one year and under no circumstances shall City in any manner be liable to (i) Developer I so long as City timely applies the Developer I Tax Increments 04122023bal{00416967 5} actually collected and held in the Hotel Dubuque TIF Account (regardless of the amounts thereof) to the payment of the Economic Development Grants pertaining to Unit 3 to Developer I, as and to the extent described in this Section, or (ii) Developer II so long as City timely applies the Developer II Tax Increments actually collected and held in the Novelty Iron Works TIF Account (regardless of the amounts thereof) to the payment of the Economic Development Grants pertaining to Unit 1 and Unit 2 to Developer II, as and to the extent described in this Section, (3) Except as otherwise provided herein, City shall be free to use any and all tax increment revenues collected in respect of other properties within the Project Area and the remaining actual amount of the property taxes paid by Developer I or Developer II to City, or any available Economic Development Grants under Section 3.3(2) hereof, for any purpose for which such tax increment revenues may lawfully be used pursuant to the provisions of the Urban Renewal Law, and City shall have no obligations to Developer I or Developer II with respect to the use thereof. (4) Non-appropriation/Limited Source of Funding. Notwithstanding anything in this Agreement to the contrary, the obligation of City to pay any installment of the Economic Development Grants shall be an obligation limited to currently budgeted funds, and not a general obligation or other indebtedness of City or a pledge of its full faith and credit under the meaning of any constitutional or statutory debt limitation, and shall be subject in all respects to the right of non -appropriation by the City Council as provided in this Section 3.3(4). City may exercise its right of non -appropriation as to the amount of the installments to be paid during any fiscal year during the term of this Agreement without causing a termination of this Agreement. The right of non -appropriation shall be exercised only by resolution affirmatively declaring City's election to non -appropriate funds otherwise required to be paid in the next fiscal year under this Agreement. (a) In the event the City Council elects to not appropriate sufficient funds in the budget for any future fiscal year for the payment in full of the installments on the Economic Development Grants due and payable in that fiscal year, then: (i) City shall make a pro-rata allocation of any funds appropriated between Developer I and Developer II in accordance with the agreed valuations set forth in this Section 3.3; (ii) City shall have no further obligation to Developer I or Developer II for the payment of all installments due in the next fiscal year which cannot be paid with the funds then appropriated for that purpose; and (iii) Developer I and Developer II shall be released from all further obligations under this Agreement during that same fiscal year. (b) Each installment of the Economic Development Grant shall be paid by City solely from funds appropriated for that purpose by the City Council 04122023bal{00416967 5} from taxes levied on Unit 3 or Unit 1 and Unit 2, as applicable, that are allocated to the special fund pursuant to Iowa Code §403.19(2). (c) The right of non -appropriation reserved to City in this Section 3.3(4) is intended by the parties, and shall be construed at all times, so as to ensure that City's obligation to pay future installments on the Economic Development Grants shall not constitute a legal indebtedness of City within the meaning of any applicable constitutional or statutory debt limitation prior to the adoption of a budget which appropriates funds for the payment of that installment or amount. In the event that any of the provisions of this Agreement are determined by a court of competent jurisdiction to create, or result in the creation of, such a legal indebtedness of City, the enforcement of the said provision shall be suspended, and the Agreement shall at all times be construed and applied in such a manner as will preserve the foregoing intent of the parties, and no event of default shall be deemed to have occurred as a result thereof. If any provision of this Agreement or the application thereof to any circumstance is so suspended, the suspension shall not affect other provisions of this Agreement which can be given effect without the suspended provision. To this end the provisions of this Agreement are severable. 5. With regard to Developer I, Section 5.2(3) of the Development Agreement shall only apply as to applicable amounts actually received by Developer I following the Closing Date as set forth above. 6. Section 6.1 of the Agreement is hereby amended to read as follows: 6.1 Notices and Demands. Whenever this Agreement requires or permits any notice or written request by one party to another, it shall be deemed to have properly given if and when delivered in person, one (1) day after being deposited with a prepaid nationally recognized overnight delivery service, or three (3) business days after having been deposited in any U.S. Postal Service receptacle and sent by registered or certified mail, postage prepaid, addressed as follows: If to Developer I: The Hotel Dubuque L.L.C. c/o Ms. Kim McDermott 333 East loth Street Dubuque, Iowa 52001 With copy to: Vantage Law Group, PLLC Tyler Adams 125 SE Main St., Suite 250 Minneapolis, MN 55414 If to Developer II: Novelty Iron Landlord, L.L.C. c/o Ms. Kim McDermott 04122023bal{00416967 5} 333 East loth Street Dubuque, Iowa 52001 With copy to: Hammer Law Firm, PLC Susan M. Hess 590 Iowa Street, Suite #2 Dubuque, Iowa 52001 If to City: City Manager City Hall 50 West 13th Street Dubuque, Iowa 52001 With copy to: City Attorney City Hall 50 West 13th Street Dubuque, Iowa 52001 Or at such other address with respect to either party as that parry may, from time to time designate in writing and forward to the other as provided in this Section. 7. Section 6.3 of the Agreement is hereby amended to read as follows: 6.3 Termination Date. This Agreement and the rights and obligations of the parties hereunder shall terminate on June 1, 2031 (the "Termination Date"). 8. License and Code Conformity. On the Closing Date the parties shall execute, where appropriate, the Irrevocable License attached hereto as Exhibit B (the "License") to clarify certain rights related to an existing bridge over Washington Street and to address certain findings regarding City Building Code nonconformances, issued on July 18, 2022, as reflected in the License. Following full execution of the License, Developer I and Developer II agree to complete the repairs identified in the License within the timeframes identified therein or as those timeframes may be adjusted in the future as agreed to between Developer I, Developer II and the City on or after the Closing Date. 9. Compliance Improvements. Each of Developer I and Developer II shall complete improvements to their respective Property as reasonably necessary to remediate the City Building Code nonconformances identified on Exhibit C (the "Compliance Improvements"). Developer I and Developer II shall complete their respective Compliance Improvements within 90 days of the date this Amendment is signed by the City and approved by the Dubuque City Council, unless any such Compliance Improvements cannot reasonably be cured within such 90 days and Developer I or Developer II, as applicable, shall have commenced to complete such Compliance Improvements within such 90 days and continues diligently to pursue completion of the same. 04122023bal{00416967 5} 10. Counterparts. This Amendment may be executed in multiple counterparts which, when taken together as a whole, constitute one document. A signed copy of this Amendment transmitted by email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Amendment for all purposes. [END OF AMENDMENT — SIGNATURE PAGE FOLLOWS] 04122023bal{00416967 5} The parties have executed this Amendment as of the date set forth above. CITY OF DUBUOUE. Itti f THE HOTEL BY: Signer 04122023bal[OO416967 5) BY: t Atv Clerk NOVELTY IRON LANDLORD, LLC Au AoriSigner The parties have executed this Amendment as of the date set forth above. CITY OF DUBUQUE, IOWA BY: Mayor THE HOTEL DUBUQUE L.L.C. NX Authorized Signer B Y City Clerk BY: Authorized Signer 04122023balfOO416967 91 FXHTRTT A Partial Assignment and Assumption of Contract Rights and Obligations PARTIAL ASSIGNMENT AND ASSUMPTION OF CONTRACT RIGHTS AND OBILIGATIONS This Partial Assignment and Assumption of Contract Rights and Obligations (the "Partial Assignment") is made and entered into as of A prii 17 , 2023, by and between Novelty Iron Landlord LLC, an Iowa limited Iiability company ("Assignor") and The Hotel Dubuque L.L.C., a Minnesota limited liability company ("Assignee"). WHEREAS, Assignor is a party to that certain Development Agreement dated June 17, 2013, as amended (the "Contract"), pursuant to which the City of Dubuque, Iowa, (the "City") has agreed to provide certain benefits to Assignor and Assignor has agreed to develop that real property within the City described as follows: Unit 1, Unit 2 and Unit 3 of NOVELTY IRON WORKS CONDOMINIUMS located on Lot 1 of Lot 1 of CENTER CITY PLACE #2, in the City of Dubuque, Iowa, according to Declaration of Submission to Horizontal Property Regime, Instrument #2014-2934 and the recorded Plat thereof (hereinafter "Unit 1", "Unit 2", and "Unit 3", and together with all corresponding common areas, collectively, the "Property" WHEREAS, Assignor and Assignee have entered an Amended and Restated Purchase and Sale Agreement under which Assignee would purchase and acquire from Assignor Unit 3 "Purchase Agreement"). WHEREAS, immediately prior to entering this Partial Assignment, the parties have rescinded and terminated that certain Assignment and Assumption of Contract Rights and Obligations, dated as of September 15, 2022, under which consummation of the assignment and assumption contemplated therein has not occurred. WHEREAS, Assignor desires to assign, and Assignee desires to accept and assume, all of Assignor's rights and obligations under the Contract pertaining to Unit 3 (the "Assumed Rights and Obligations"); NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: 1. Assignment and „Assumption. Effective concurrent with the latter to occur of (i) closing on the purchase and sale of Unit 3 as contemplated by the Purchase Agreement, (ii) consent of the City hereunder, and (iii) execution by the parties and the City of an Eighth Amendment to Development Agreement (the "Eighth 100416967 5) Amendment") that, among other things, clarifies certain rights and obligations of the parties following the Effective Date (such later date, the "Effective Date"): (a) Assignor hereby assigns, sells, transfers and sets over to Assignee all of Assignor's right, title, benefit, privileges and interest in and to the Assumed Rights and Obligations (collectively, the "Assignment"); (b) Assignee hereby accepts the Assignment and assumes and agrees to observe and perform all of the corresponding duties, obligations, terms, provisions and covenants, and to pay and discharge all of the liabilities of Assignor to be observed, performed, paid or discharged under or in connection with the Assumed Rights and Obligations under the Contract on or after the Effective Date, and shall be the "Developer" thereunder for all purposes pertaining to Unit 3; (c) Following the Effective Date Assignor shall retain title to Unit 1 and Unit 2 and shall remain the "Developer" under the Contract for all purposes pertaining to Unit 1 and Unit 2, unless and until Unit 1 and Unit 2 are acquired by Assignee; and (d) Assignor shall remain fully responsible for all of its obligations under the Contract, notwithstanding any transfer of the property to Assignee and the assumption of any of the Assignor's obligations thereunder. 2. Representations and Warranties of Assignor. Assignor hereby represents and warrants to Assignee: (a) The Contract is in full force and effect and is valid and enforceable in accordance with its terms; (b) Assignor is and has been in compliance with the terms of the Contract since the effective date of the Contract; (c) To Assignor's knowledge, the City is and has been in compliance with the terms of the Contract since the effective date of the Contract; (d) The City has not exercised its right of non -appropriation under Section 3.3(4) of the Contract and Assignor has no knowledge of the City's intent to so exercise such right of non -appropriation; and (e) Assignor has not received notice of any alleged or potential breach of the Contract. 3. Indemnification. (a) Assignor hereby agrees to indemnify and to hold Assignee harmless from and against any and all loss, cost, liability, damage or expense, including without (00416967 51 limitation, reasonable attorneys' fees (collectively, "Costs"), (i) originating or relating to the period on or prior to the Effective Date, and arising out of or with respect to the failure of Assignor to have performed any of the obligations of the Developer under the Contract which accrued on or prior to the date hereof, and (ii) until such time as Assignee acquires Unit 1 and Unit 2, any failure of Assignor to perform any of the obligations of the Developer under the Contract pertaining to Unit 1 or Unit 2. (b) Assignee hereby agrees to indemnify and to hold Assignor harmless from and against any and all Costs, originating or relating to the period after the Effective Date and arising out of or with respect to the failure of Assignee to perform any of the obligations of the Developer under the Contract accruing after the date hereof and pertaining to the Assumed Rights and Obligations. 4. Further Actions. Each of the parties hereto covenants and agrees, at its own expense, to execute and deliver, at the request of the other party hereto, such further instruments of transfer and assignment and to take such other action as such other party may reasonably request to more effectively consummate the assignments and assumptions contemplated by this Partial Assignment. 5. Governing Law. This Partial Assignment shall be governed by and construed in accordance with the laws of the State of Iowa without giving effect to the principles of conflicts of laws thereof. 6. Merger. Except as may be set forth in the Eighth Amendment, this Partial Assignment contains the entire agreement among the parties with respect to the matters contained herein, and supersedes all prior oral or written agreements, commitments or understandings with respect to the matters provided for herein. 7. Counterparts. This Partial Assignment and any amendments hereto, may be executed in one or more counterparts, each of which constitutes an original, and all of which, collectively, constitutes one agreement. The signatures of all parties need not appear on the same counterpart and any counterpart signature pages, to the extent signed and delivered by means of a facsimile machine or other electronic means, including transmission of .pdf copies by electronic mail, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. {END OF AGREEMENT — SIGNATURE PAGE FOLLOWS} (00416967 51 IN WITNESS WHEREOF, the parties have executed this Partial Assignment as of the date first above written. ASSIGNOR: ASSIGNEE: NOVELTY IRON LANDLORD LLC TITS HOTEL DUITUQUE L.L.C. By: Novelty Iron Master Tenant, LLC Its: Managing Member By: Sustainable Neighborhood Builders, Inc. Its: Managing Member By: John Stoltz, President By: Na} Its: [0041696] 5} IN WITNESS WHEREOF, the parties have executed this Partial Assignment as of the date first above written. By; Novelty Iron Master Tenant. LLC Its: Managing Member By: Sustainable Neighborhood Builders, Inc. Its: Managing Member By: "oljgv J � Stoltz, President oll ASSIGNEE: THE HOTEL DUBUQUE L.L.C. ft� Its: Authorized Person 100416967 51 CONSENT The undersigned, on behalf of the City of Dubuque, Iowa (the "City"), does hereby consent to the partial assignment and assumption of the Development Agreement by and between the City and Novelty Iron Landlord, LLC, as successor by assignment to Warehouse Trust, LLC, dated June 17, 2013, as amended (the "Contract") in accordance with the terms of the foregoing Assignment and Assumption of Contract Rights and Obligations. CITY: CITY OF DUBUQUE, IOWA a � By: g ; Cavc�nar�h Its: 0 yo!` Date: April f 1 j0a3 City Clerk (60417001 3) EXHIBIT B Irrevocable License IRREVOCABLE LICENSE AUTHORIZING THE HOTEL DUBUQUE L.L.0 AND NOVELTY IRON LANDLORD, LLCTO CONSTRUCT AND MAINTAIN A BRIDGE OVER WASHINGTON STREET PUBLIC RIGHT-OF-WAY This Irrevocable License is dated for reference purposes the 17 day of r r � , 2023. 1 Section 1. THE HOTEL DUBUQUE L.L.C. and NOVELTY IRON LANDLORD, LLC as the owners of the premises, (Licensees), known as the Bridge over Washington Street between the Voices Building, 1000 Jackson Street, and Novelty Iron Works , 333 East 10th Street, shown on Exhibit A, and located in Lot 1 of Wilmac Place in the City of Dubuque, Iowa, is hereby granted an Irrevocable License and authority to construct and maintain the Bridge over Washington Street public right-of- way between the Voices Building and Novelty Iron Works, (Encroachment) under the terms and conditions set forth in this License. Section 2. The permission herein granted is expressly conditioned on Licensees' agreement to: a) Assume any and all liability for damages to persons or property which may result from the existence, location, installation, construction or maintenance of said Encroachment; b) Procure and maintain in force during the term of this License a policy of liability insurance as set forth in the attached Insurance Schedule A; {00416967 51 15 c) Pay on behalf of the City of Dubuque, all sums which the City of Dubuque shall become obligated to pay by reason of the liability imposed upon the City of Dubuque for damages of any kind resulting from the location, installation, existence, construction or maintenance of said Encroachment sustained by any person or persons, caused by accident or otherwise to defend at its own expense and on behalf of said City any claim against the City of Dubuque arising out of the location, installation, existence, construction or maintenance of Encroachment and to pay reasonable attorney fees therefor; and d) Indemnify, defend and hold the City of Dubuque free and harmless from any and all claims, including but not limited to damages, loss, liability and expense for death and/or injuries to third persons or damages to property of third persons, or for damage to any property of the City of Dubuque which may occur as a result of or in connection with the location, installation, existence, construction, maintenance and repair of Encroachment. e) Special conditions: The Encroachment shall be initially inspected by a licensed Professional Engineer (PE) and/or certified bridge inspector familiar with bridge inspection protocol as per 1997 AASHTO Pedestrian Bridge Guide Specifications. The Licensee shall provide a Structural Inventory and Appraisal (SI&A) report showing whether there is compliance with all applicable federal and state bridge standards. Based on the inspection / assessment, a load rating of the bridge structure may also be required, and a recommendation shall be made if the Encroachment should be inspected on a 2-year cycle or if annually would be more appropriate. The Licensees shall provide within sixty (60) days after initial inspection, a copy of the SI&A form(s) and summary report to the City along with a plan for the correction of any deficiencies shown in the inspection report(s). The Licensees shall provide within thirty (30) days after each annual or bi- annual inspection is completed, a copy of the SI&A form(s) and summary report to the City. The Licensees shall provide a plan acceptable to the City within ninety (90) days after the Closing Date for Unit 3 which may include evidence that the following corrections have been completed: • Remove longitudinal deck boards from the west end of the 3rd floor walkway to expose the transverse structural timber deck and re -assess the structural condition of the transverse deck and develop an appropriate repair solution • Re -secure deck boards, drive deck screws flush with deck, and install deck boards at determined voids to prevent tripping hazards • Secure pedestrian handrail at toe -rail and resecure at top -rail • Remove metal ramp from east access of 2nd floor walkway if elevated walkway will be utilized by pedestrians J00416967 5} 16 • Permanently attach or remove signage at north and south trusses to prevent a falling debris hazard • Remove short lengths of steel angle to improve visual aesthetics • Remove or re -secure holiday lights to prevent a falling debris hazard • Remove abandoned wires and holiday lights that hang below deck to ensure safety of traveling public • Perform a lead paint analysis to determine the presence and amount of lead in the structure paint and develop a plan of action accordingly • Re -paint truss members • Apply timber sealer to longitudinal deck boards • Repair and or reconstruct H-Frame lateral supports • Perform load ratings of all (4) elevated walkways to determine the structural capacity. Section 3. The Encroachment shall be maintained in accordance with all applicable state and federal laws and regulations, and the Ordinances of the City of Dubuque. Section 4. Licensees covenant and agree that the Irrevocable License herein granted does not constitute an approval of the design, erection, location, construction, repair or maintenance of said Encroachment and Licensees hereby covenant and agree not to assert such claim or defense against the City of Dubuque in the event of claim asserted for death, personal injuries and/or property damage against Licensee arising out of or in any way connected with the location, installation, construction, design, repair and maintenance of the Encroachment. Section 5. This Irrevocable License shall become effective and the rights hereunder accrue to Licensees when this License has been approved by the City Council and the terms and conditions thereof accepted by Licensees by acceptance endorsed on this License. This Irrevocable License is not assignable or transferable to another location. This license is for this property only. Section 6. The City Clerk is authorized and directed to file at Licensee's expense a copy of this License in the Office of the Recorder in and for Dubuque County, Iowa. [Executed on the following page] J00416967 5} 17 Signature page to Irrevocable License, Signed this f day of p I 2023. Brad M. Cgverfa-gh, Mayor Attest: Adrienne N. Breitfelder, City Clerk STATE OF IOWA, COUNTY OF DUBUQUE, SS: On this I( day of ,r,' \ , �,�. =' , before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Brad N. Cavanagh and Adrienne N. Breitfelder, to me personally known, who, being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Dubuque, Iowa, a municipal corporation, that the seal affixed to the foregoing instrument is the corporate seal of the corporation, and that the instrument was signed and sealed on behalf of the corporation, by authority of its City Council on the i -I day of k.�,-,' 1 , 2023, and Brad N. Cavanagh and Adrienne N. Breitfelder acknowledged the execution of the instrument to be their voluntary act and deed. ar°& ,. I TUSDEE LYHN 84U3 Notary Public in and far said State Commleslon NUM r 842478 «w. My Comm. Up. c (00416967 5) 18 ACCEPTANCE OF TERMS AND CONDITIONS OF LICENSE The undersigned, being duly authorized to execute this Acceptance on behalf of THE HOTEL DUBUQUE L.L.C. and having read and being familiar with the terms and conditions of the Irrevocable License, for itself and, its successors, accepts the same and agrees to be bound by the terms and conditions herein contained. THE HOTEL DUBUQUE L.L.C. By: NOTARY PUBLIC STATE OF Yy�++�,11tSu ��,.� COUNTY OF it�0.S��:in� CroY� , SS: On this i �-;fij day of /-��ri � , 2023 before me, the undersigned, a Notary Public in and for said County, rn said State, personally appeared Ua. to R-o.ctL e , the mn+, o ec1 straw of THE HOTEL DUBUQUE L.L.C. to me known to be the identical person named in and who executed the within and foregoing instrument, to which this is attached, and acknowledged that he has executed the same as his voluntary act and deed. Notary Public In and For Said State (004169675) ],9 The undersigned, being duty authorized to execute this Acceptance on behalf of NOVELTY IRON LANDLORD, L.L.C. and having read and being familiar with the terms and conditions of the Irrevocable License, for itself and, its successors, accepts the same and agrees to be bound by the terms and conditions herein contained. By: Managing Member STATE OF IOWAI On this day of , 2022 before me, the undersigned, a Notary Public in and for said County, in said State, personally appeared I managing member of NOVELTY IRON LANDLORD, LLC to rne- -known to be the identical person named in and who executed the within and foregoing instrument, to which this is attached, and acknowledged that he has executed the same as his voluntary act and deed- (00416967 51 20 INSURANCE SCHEDULE A Developers shall furnish a signed certificate of insurance to the City of Dubuque, Iowa for the coverage required in Exhibit I prior to the lease, license, or permit commencement. All lessees of City property and right of way licensees or permittees shall submit an updated certificate annually. Each certificate shall be prepared on the most current ACORD form approved by the Iowa Insurance Division or an equivalent. Each certificate shall include a statement under Description of Operations as to why the certificate was issued. 2. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa and all insurers shall have a rating of A or better in the current A.M. Best's Rating Guide. 3. Each certificate shall be furnished to the Finance Department of the City of Dubuque. 4. The lessee, licensee, or permittee shall be required to carry the minimum coverage/limits, or greater if required by law or other legal agreement, in Exhibit I. Failure to provide the required minimum coverage shall not be deemed a waiver of such requirements by the City of Dubuque. 5. Failure to obtain or maintain the required insurance shall be considered a material breach of the lease, license, or permit. 6. All required endorsements shall be attached to certificate. 7. Whenever a specific ISO form is referenced the current edition of the form must be used unless an equivalent form is approved by the Director of Finance and Budget. The lessee, licensee, or permittee must identify and list in writing all deviations and exclusions from the ISO form. 8. If lessee's, licensee's, or permittee's limits of liability are higher than the required minimum limits then the lessee's, licensee's, or permittee's limits shall be this agreement's required limits. 9. Lessee, licensee, or permittee shall require all subcontractors and sub -subcontractors to obtain and maintain during the performance of work insurance for the coverages described in this Insurance Schedule and shall obtain certificates of insurance from all such subcontractors and sub -subcontractors. Lessee, licensee, or permittee agrees that it shall be liable for the failure of a subcontractor and sub -subcontractor to obtain and maintain such coverage. The City may request a copy of such certificates from the lessee, licensee, or permittee. 10. Lessee, license & permittees shall be responsible for deductibles and self -insured retention and for payment of all policy premiums and other costs associated with the insurance policies required below. 11. All certificates of insurance must include agents name, phone number and email address. 12. The City of Dubuque reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by this Schedule at any time. 13. The City of Dubuque reserves the right to modify these requirements, including limits, based on changes in the risk or other special circumstances during the term of the agreement, subject to mutual agreement of the parties. {00416967 51 21 INSURANCE SCHEDULE A (Continued) EXHIBIT I A) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products -Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence $1,000,000 Fire Damage Limit (any one occurrence) $50,000 Medical Payments $5,000 1) Coverage shall be written on an occurrence, not claims made, form. The general liability coverage shall be written in accord with ISO form CG 00 01 or business owners form BP 00 02. All deviations from the standard ISO commercial general liability form CG 0001, or Business owners form BP 00 02, shall be clearly identified. 2) Include ISO endorsement form CG 25 04 "Designated Location(s) General Aggregate Limit." 3) Include endorsement indicating that coverage is primary and non-contributory. 4) Include Preservation of Governmental Immunities Endorsement (Sample attached). 5) Include additional insured endorsement for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers. Use ISO form CG 20 10 (Ongoing operations) or its equivalent. 6) Policy shall include Waiver of Right to Recover from Others Endorsement. B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY Statutory Benefits covering all employees injured on the job by accident or disease as prescribed by Iowa Code Chapter 85. Coverage A Statutory —State of Iowa Coverage B Employers Liability Each Accident $100,000 Each Employee -Disease $100,000 Policy Limit -Disease $500,000 Policy shall include Waiver of Right to Recover from Others endorsement. Coverage B limits shall be greater if required by the umbrella/excess insurer. OR If, by Iowa Code Section 85.1A, the lessee, licensee, or permittee is not required to purchase Workers' Compensation Insurance, the lessee, licensee, or permittee shall have a copy of the State's Nonelection of Workers' Compensation or Employers' Liability Coverage form on file with the Iowa Workers' Compensation Insurance Commissioner, as required by Iowa Code Section 87.22. Completed form must be attached. {00416967 51 22 C) D) E) INSURANCE SCHEDULE A (Continued) POLLUTION LIABILITY Coverage required: _ Yes _*_ No Pollution liability coverage shall be required if the lessee, contracting party, or permittee has any pollution exposure for abatement of hazardous or contaminated materials including, but not limited to, petroleum products, the removal of lead, asbestos, or PCBs. Pollution product and completed operations coverage shall also be covered. Each occurrence Policy Aggregate $2,000,000 $4,000,000 1) Policy to include job site and transportation coverage. 2) Include additional insured for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers. Use ISO form CG 2010. (Ongoing operations) or its equivalent and CG2037(completed operations) or its equivalent. 3) Include Preservation of Governmental Immunities Endorsement. 4) Provide evidence of coverage for 5 years after completion of project. PROPERTY INSURANCE REQUIRED BY LEASE, LICENSE, OR PERMIT * Yes No Evidence of property coverage provided: _ Yes Include the City of Dubuque as Lender Loss Payable. RIGHT-OF-WAY WORK ONLY: UMBRELLA/EXCESS Yes _ No $1,000,000 The General Liability, Automobile Liability and Workers Compensation insurance requirements may be satisfied with a combination of primary and Umbrella or Excess Liability Insurance. If the Umbrella or Excess Insurance policy does not follow the form of the primary policies, it shall include the same endorsements as required of the primary policies including Waiver of Subrogation AND Primary and Non-contributory in favor of the City. F) FLOOD INSURANCE Yes * No If Required Coverage {00416967 51 23 Please be aware that naming the City of Dubuque as an additional insured as is required by this Insurance Schedule may result in the waiver of the City's governmental immunities provided in Iowa Code sec. 670.4. If you would like to preserve those immunities, please use this endorsement or an equivalent form. PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmental Immunity. The insurer expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coverage. The insurer further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurer. 4. Non -Denial of Coverage. The insurer shall not deny coverage under this policy and the insurer shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. 5. No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN (DEPARTMENT MANAGER: FILL IN ALL BLANKS AND CHECK BOXES) {00416967 51 24 EXHIBIT C City Building Code Nonconformances {00416967 51 25 THE CITY OF DUB E Masterpiece on the Mississippi NOVELTY IRON LANDLORD LLC 333 E 10TH ST DUBUQUE IA 52001 RE: 333 E 10TH ST Attention Property Owner/Manager: Housing & Community Development Department Inspection & Construction Services 350 W 6th St, Suite 312 Dubuque, Iowa 52001-4648 Office (563) 589-4231 Fax (563) 589-4244 TTY (563) 589-4230 housing@cityofdubuque.org www.cityofdubuque.org/housing DATE: April 14, 2023 On April 141h, 2023 I, along with inspectors Ben Pothoff and Jeff Zasada visited the property at 333 E 10th St. locally known as the Novelty Iron Works Building to determine if the primary priority items identified in a July 18th, notice and shown below had been completed. The findings of the inspection are noted below italicized and in red. Primary Priority — • 2018 International Building Code (IBC) Section 1020. Residential exit access corridors lack fire separation from unfinished areas of the building on 2nd, 3rd4'' floors. Partial completion. Required fire rated door assemblies (door and frame) not installed place, and there remains unprotected openings. It should be noted that there are no violations on the 4t' floor. • 2018 IBC Section 1020. Exit access corridor lacks fire separation from storage area in basement, near bike storage room. Fire separation wall was not installed. This remains a significant violation. • 2018 IBC Section 1020. Exit access corridor lacks fire separation from storage area in basement, near comedy club. Fire separation wall was not installed. This remains a significant violation. • 2018 IBC Section 713.13.4. Waste chute discharge room lacks required 2hr fire separation. Partial installation of a second layer of gypsum board was attempted. Not complete nor fire caulked. Violation remains. • Waste chute discharge room floor pit must have appropriate cover installed. Completed — no longer a violation • 2018 IBC Section 508.4. Basement (A-2) Assembly space (comedy club) lacks fire separation from unrelated storage areas and building common areas. Exit device missing from fire door. Door must latch and seal. • 2018 IBC Section 508.4. Basement (A-2) Assembly space (bar/arcade) lacks fire separation from unrelated residential storage area. Double door exit device broken at separation of storage area from bar/arcade. Discontinuous fire wall surrounding door. No smoke seals on fire doors. Large gaps in double door. Violation Remains. • 2018 IBC Section 712.1.1. Penetrations in occupied areas including vertical penetrations of the floor assembly (refrigerant line sets and wiring near opening to unfinished areas) must have fire separation restored. No work done to correct this violation. The raised floor must be temporarily removed to ensure fire separation is continuous at the structural floor line. • 2018 IBC Section 905. Sprinkler standpipe missing cap in basement exit access area. Housing & Community Development Department I Inspection & Construction Services 1 350 W. 61h St, Suite 312 1 Dubuque, IA 52001-4648 1 563.589.4231 1 www.cityofdubuque.org/housing I www.facebook.com/CityofDubuqueHousing THE CITY OF DUB E Masterpiece on the Mississippi Secondary Priority — Housing & Community Development Department Inspection & Construction Services 350 W 6th St, Suite 312 Dubuque, Iowa 52001-4648 Office (563) 589-4231 Fax (563) 589-4244 TTY (563) 589-4230 housing@cityofdubuque.org www.cityofdubuque.org/housing • 2018 IBC Section 712.1.1. Vertical ducting penetrations through floor assemblies must maintain fire separation via fire dampers or be enclosed in properly constructed shaft enclosures. Not Completed • 2018 IBC Section 1020. Exit access corridor walls in the R-2 Residential areas, require an approved 0.5 hour fire rated assembly. Corridor walls will require gypsum wall board on both faces. Not completed • 2018 IBC Section 1020 and IPMC Section 703. Breaks in fire separation throughout the structure must be repaired in accordance with the International Building Code (IBC) and International Fire Code (IFC). In several areas an appropriate corrective action would be to use an approved fire stop sealant. Partially completed. Several locations remain without fire stop sealant. • IPMC Section 703. Exit access corridor walls with damage must be repaired to maintain required fireseparation. Not completed • NEC 590.3. Temporary construction lighting must be removed from areas not under active renovation including occupied storage areas. Occupied storage areas must have permanent lighting with installed. Completed — no longer a violation. • NPPA 101. Review of emergency and exit lighting throughout first floor is necessary to verify that recent build outs including interior shops and bar build out has not resulted in obstruction. Completed — no longer a violation. • Roofing over the northwestern portion of the property has improper repairs and building management reports minor areas with ongoing leaking. Not inspected - • Pedestrian bridge engineering evaluation must be submitted to the Building Official for review prior to use at 2nd and 3rd levels. Engineering evaluation received — we have not received confirmation that outstanding bridge items have been completed. Regards, Michael Belmont Assistant Director, Building Code Official Housing and Community Development Department Housing & Community Development Department I Inspection & Construction Services 1 350 W. 61h St, Suite 312 1 Dubuque, IA 52001-4648 1 563.589.4231 1 www.cityofdubuque.org/housing I www.facebook.com/CityofDubuqueHousing ASSIGNMENT AND ASSUMPTION OF CONTRACT RIGHTS AND OBILIGATIONS This Assignment and Assumption of Contract Rights and Obligations (the "Assignment and Assumption Agreement") is made and entered into as of , 2023, by and between Novelty Iron Landlord LLC, an Iowa limited liability company ("Assignor") and The Hotel Dubuque L.L.C., a Minnesota limited liability company ("Assignee"). WHEREAS, Assignor is a party to that certain Development Agreement dated June 17, 2013, as amended (the "Contract"), pursuant to which the City of Dubuque, Iowa, (the "City") has agreed to provide certain benefits to Assignor and Assignor has agreed to develop that real property within the City described as follows: Unit 1, Unit 2 and Unit 3 of NOVELTY IRON WORKS CONDOMINIUMS located on Lot 1 of Lot I of CENTER CITY PLACE #2, in the City of Dubuque, Iowa, according to Declaration of Submission to Horizontal Property Regime, Instrument #2014-2934 and the recorded Plat thereof (hereinafter "Unit 1", "Unit 2", and "Unit 3", and together with all corresponding common areas, collectively, the "Property" WHEREAS, Assignor and Assignee have entered an Amended and Restated Purchase and Sale Agreement under which Assignee would purchase and acquire from Assignor Unit 3 "Purchase Agreement"). WHEREAS, immediately prior to entering this Assignment and Assumption Agreement, the parties have rescinded and terminated that certain Assignment and Assumption of Contract Rights and Obligations, dated as of September 15, 2022, under which consummation of the assignment and assumption contemplated therein has not occurred. WHEREAS, Assignor desires to assign, and Assignee dsires to accept and assume, all of Assignor's rights and obligations under the Contract pertaining to Unit 3 (the "Assumed Rights and Obligations"); NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: 1. Assignment and Assumption. Effective concurrent with the latter to occur of (i) closing on the purchase and sale of Unit 3 as contemplated by the Purchase Agreement, (ii) consent of the City hereunder, and (iii) execution by the parties and the City of an Eighth Amendment to Development Agreement (the "Eighth Amendment") that, among other things, clarifies certain rghts and obligations of the parties following the Effective Date (such later date, the "Effective Date"): (a) Assignor hereby assigns, sells, transfers and sets over to Assignee all of Assignor's right, title, benefit, privileges and interest in and to the Assumed Rights and Obligations (collectively, the "Assignment"); (00417001 31 (b) Assignee hereby accepts the Assignment and assumes and agrees to observe and perform all of the corresponding duties, obligations, terms, provisions and covenants, and to pay and discharge all of the liabilities of Assignor to be observed, performed, paid or discharged under or in connection with the Assumed Rights and Obligations under Contract on or after the Effective Date, and shall be the "Developer" thereunder for all purposes pertaining to Unit 3; (c) Following the Effective Date Assignor shall retain title to Unit 1 and Unit 2 and shall remain the "Developer" under the Contract for all purposes pertaining to Unit 1 and Unit 2, unless and until Unit 1 and Unit 2 are acquired by Assignee; and (d) Assignor shall remain fully responsible for all of its obligations under the Contract, notwithstanding any transfer of the property to Assignee and the assumption of any of the Assignor's obligations thereunder. 2. Representations and Warranties of Assignor. Assignor hereby represents and warrants to Assignee: (a) The Contract is in full force and effect and is valid and enforceable in accordance with its terms; (b) Assignor is and has been in compliance with the terms of the Contract since the effective date of the Contract; (c) To Assignor's knowledge, the City is and has been in compliance with the terms of the Contract since the effective date of the Contract; (d) The City has not exercised its right of non -appropriation under Section 3.3(4) of the Contract and Assignor has no knowledge of the City's intend to so exercise such right of non -appropriation; and (e) Assignor has not received notice of any alleged or potential breach of the Contract. 3. Indemnification. (a) Assignor hereby agrees to indemnify and to hold Assignee harmless from and against any and all loss, cost, liability, damage or expense, including without limitation, reasonable attorneys' fees (collectively, "Costs"), (i) originating or relating to the period on or prior to the Effective Date, and arising out of or with respect to the failure of Assignor to have performed any of the obligations of the Developer under the Contract which accrued on or prior to the date hereof; and (ii) until such time as Assignee acquires Unit 1 and Unit 2, any failure of Assignor to perform any of the obligations of the Developer under the Contract pertaining to Unit 1 or Unit 2. 100417001 3} (b) Assignee hereby agrees to indemnify and to hold Assignor harmless from and against any and all Costs, originating or relating to the period after the Effective Date and arising out of or with respect to the failure of Assignee to perform any of the obligations of the Developer under the Contract accruing after the date hereof and pertaining to the Assumed Rights and Obligations. 4. Further Actions. Each of the parties hereto covenants and agrees, at its own expense, to execute and deliver, at the request of the other party hereto, such further instruments of transfer and assignment and to take such other action as such other party may reasonably request to more effectively consummate the assignments and assumptions contemplated by this Assignment and Assumption Agreement. 5. Governing Law. This Assignment and Assumption Agreement shall be governed by and construed in accordance with the laws of the State of Iowa without giving effect to the principles of conflicts of laws thereof. 6. Merger. Except as may be set forth in the Eighth Amendment, this Assignment and Assumption Agreement contains the entire agreement among the parties with respect to the matters contained herein, and supersedes all prior oral or written agreements, commitments or understandings with respect to the matters provided for herein. 7. Counterparts. This Agreement and any amendments hereto, may be executed in one or more counterparts, each of which constitutes an original, and all of which, collectively, constitutes one agreement. The signatures of all parties need not appear on the same counterpart and any counterpart signature pages, to the extent signed and delivered by means of a facsimile machine or other electronic means, including transmission of .pdf copies by electronic mail, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. (END OF AGREEMENT — SIGNATURE PAGE FOLLOWS) 100417001 3} IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. ASSIGNOR: NOVELTY IRON LANDLORD LLC By: Novelty Iron Master Tenant, LLC Its: Managing Member By: Sustainable Neighborhood Builders, Inc. Its: Managing Member John Stoltz, President ASSIGNEE: THE HOTEL DUBUQUE L.L.C. By: Name: Its: Authorized Person 100417001 3} CONSENT The undersigned, on behalf of the City of Dubuque, Iowa (the "City"), does hereby consent to the partial assignment and assumption of the Development Agreement by and between the City and Novelty Iron Landlord, LLC, as successor by assignment to Warehouse Trust, LLC, dated June 17, 2013, as amended (the "Contract") in accordance with the terms of the foregoing Assignment and Assumption of Contract Rights and Obligations. CITY: CITY OF DUBUQUE, IOWA By. r-rad 11. Uav g Its: Mayor April la, 2023 Date: City Clerk 10041700131 TERMINATION OF ASSIGNMENT AND ASSUMPTION OF CONTRACT RIGHTS AND OBLIGATIONS THIS TERMINATION OF ASSIGNMENT AND ASSUMPTION OF CONTRACT RIGHTS AND OBLIGATIONS (this "Termination Agreement") is entered into as of , 2023 by and between Novelty Iron Landlord LLC, an Iowa limited liability company ("Assignor") and The Hotel Dubuque L.L.C., a Minnesota limited liability company ("Assignee"). BACKGROUND A. The parties previously entered into that certain Assignment and Assumption of Contract Rights and Obligations, dated as of September 15, 2022 (the "Assignment Agreement"), under which Assignor was to assign and Assignee was to assume all of Assignor's rights and obligations (the "Contemplated Assignment") under that certain Development Agreement, dated June 17, 2013, as amended (the "Contract"). B. The Contemplated Assignment was conditioned upon closing of Assignee's acquisition of all Property described in the Contract pursuant to a Purchase Agreement between Assignor and Assignee (the "Prerequisite Transaction"). C. The Prerequisite Transaction will not occur and, accordingly, the parties desire to formally rescind and terminate the Assignment Agreement. Accordingly, the parties agree as follows: AGREEMENT 1. Rescission and Termination. The Assignment Agreement and the Parties obligations thereunder are hereby rescinded and terminated and are of no further force or effect. 2. Defined Terms; Governing Law. Capitalized terms used but not defined herein shall have the meaning assigned to them in the Assignment Agreement. This Termination Agreement shall be governed in all respects by the laws of the State of Iowa. 3. Counterparts. This Termination Agreement may be executed electronically and in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. [Executed on the following page] (ooals744) The parties have executed this Termination Agreement as of the date set forth above. NOVELTY IRON LANDLORD LLC By: Novelty Iron Master Tenant, LLC Its: Managing Member By: Sustainable Neighborhood Builders, Inc. Its: Managing Member LOU John Stoltz, President THE HOTEL DUBUQUE L.L.C. By: Name: Its: Authorized Person (00419744)