Approving a Development Agreement by and between the City of Dubuque, Iowa and Union a the Marina, LP Providing for the Sale of City-owned Real Estate to Union at the Marina, LP and the Issuance of Urban Renewal Tax Increment Revenue Grant Obligations Pur Copyrighted
October 16, 2023
City of Dubuque Public Hearings # 02.
City Council Meeting
ITEM TITLE: Approving a DevelopmentAgreement by and between the City of
Dubuque, lowa and Union atthe Marina, LP Providing forthe Sale of
City-owned Real Estate to Union at the Marina, LP and the Issuance of
Urban Renewal Tax Increment Revenue Grant Obligations Pursuantto
the DevelopmentAgreement
SUMMARY: Proof of Publication on notice of public hearing to considerapproving a
Development Agreement by and between the City of Dubuque, lowa and
Union at the Marina, LP providing for the sale of city-owned real estate to
Union at the Marina, LP and the issuance of Urban Renewal Tax
I ncrement Revenue Grant Obligations pursuant to the Development
Agreement and City Manager recommending approval.
RESOLUTION Approving the Disposal of an I nterest in Real Property
Owned by the City of Dubuque by Sale Pursuant to a Development
Agreement with Union at the Marina, LP
SUGGESTED Suggested Disposition: Receive and File;Adopt Resolution(s)
DISPOSITION:
ATTACHMENTS:
Description Type
MVM Memo City Manager Memo
Staff Memo Staff Memo
Resolution Resolutions
Development Agreement Supporting Documentation
Dubuque
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TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Approving a Development Agreement by and between the City of
Dubuque, lowa and Union at the Marina, LP Providing for the Sale of City-
owned Real Estate to Union at the Marina, LP and the Issuance of Urban
Renewal Tax Increment Revenue Grant Obligations Pursuant to the
Development Agreement
DATE: October 11, 2023
Economic Development Director Jill Connors is recommending City Council adopt the
attached resolution approving a Development Agreement by and between the City of
Dubuque, lowa and Union at the Marina, LP and the City of Dubuque providing for the
sale of City-owned real estate in Greater powntown Urban Renewal District to Union at
the Marina, LP and the issuance of Urban Renewal Tax Increment Revenue Grant
Obligations.
Union at the Marina, LP is a subsidiary of The Annex Group. The Annex Group is an
Indiana based multifamily housing developer that creates market-rate, workforce,
affordable, and student housing communities. The Group has successfully completed
housing creation projects across the Midwest and is currently constructing a 216-unit
development in Des Moines.
The Annex Group began communication with City staff in September 2022, expressing
interest in developing a multi-residential project in Dubuque with the assistance of the
state's 4% Low Income Housing Tax Credit program. The Group identified 1860
Hawthorne Street —the former Bowling and Beyond site — as a prime location for their
project. The project will create 201 affordable rental units in the North End of the
Greater powntown Area. Subject to State of lowa and City of Dubuque approval, Union
at the Marina, LP is proposing to purchase from the City of Dubuque the property
located at 1860 Hawthorne Street as a site to construct its latest housing
development. The project is anticipated to begin in August of 2024.
The key elements of the Development Agreement include the following:
1. Developer must purchase property located at 1860 Hawthorne Street for $777,546
per acre for a total purchase price of approximately $4,082,117.
2. Developer must construct 201 rental units on the property.
3. Developer will receive a Land Acquisition Grant in an amount of $20,000 per
unit created but not to exceed the purchase price.
4. Developer will receive 15 years of tax increment financing incentives in the form of
semi-annual rebates. Tax increment financing incentives are estimated to not
exceed $10,261,927.
5. City of Dubuque will sell approximately 5.25 acres of property to Developer.
6. City of Dubuque will amend the Greater powntown Urban Renewal District Plan to
accommodate the issuance of tax increment financing incentives.
The city will also need to invest just over one million dollars to replace an aging and
undersized sanitary sewer lift station and these funds will be budgeted through the FY
25 city budget process.
This site is ideal for workforce housing as it is next to Sutton Pool, AY McDonald Park
and the Jaycees hike/bike trail along the Peosta Channel. Also, numerous job
opportunities are within walking distance in the Kerper Boulevard Industrial Park, the
industrial riverfront and Chaplain Schmitt Island. The site is also easily accessible with a
highway interchange for Highway 61/151 close by. The Jule bus system serves this
area for easy access to public transportation. This all combines with the beautiful views
of the Mississippi River and the rock bluffs to make this a highly desirable place to live
and a perfect place for workforce housing.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Mic ael C. Van Milligen
MCVM:sv
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Jill Connors, Economic Development Director
2
Dubuque Economic Development
Department
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TO: Michael C. Van Milligen, City Manager
FROM: Jill M. Connors, Economic Development Director
SUBJECT: Approving a Development Agreement by and between the City of
Dubuque, lowa and Union at the Marina, LP Providing for the Sale of City-
owned Real Estate to Union at the Marina, LP and the Issuance of Urban
Renewal Tax Increment Revenue Grant Obligations Pursuant to the
Development Agreement
DATE: October 10, 2023
INTRODUCTION
This memorandum is a request for the City Council to adopt the attached resolution
approving a Development Agreement by and between the City of Dubuque, lowa and
Union at the Marina, LP and the City of Dubuque providing for the sale of City-owned
real estate in Greater powntown Urban Renewal District to Union at the Marina, LP and
the issuance of Urban Renewal Tax Increment Revenue Grant Obligations.
BACKGROUND
Union at the Marina, LP is a subsidiary of The Annex Group. The Annex Group is an
Indiana based multifamily housing developer that creates market-rate, workforce,
affordable, and student housing communities. The Group has successfully completed
housing creation projects across the Midwest and is currently constructing a 216-unit
development in Des Moines.
DISCUSSION
The Annex Group began communication with City staff in September 2022, expressing
interest in developing a multi-residential project in Dubuque with the assistance of the
state's 4% Low Income Housing Tax Credit program. The Group identified 1860
Hawthorne Street — the former Bowling and Beyond site — as a prime location for their
project. The project will create 201 affordable rental units in the North End of the
Greater powntown Area. Subject to State of lowa and City of Dubuque approval, Union
at the Marina, LP is proposing to purchase from the City of Dubuque the property
located at 1860 Hawthorne Street as a site to construct its latest housing development.
The project is anticipated to begin in August of 2024.
The key elements of the Development Agreement include the following:
1. Developer must purchase property located at 1860 Hawthorne Street for
$777,546 per acre for a total purchase price of approximately $4,082,116.
2. Developer must construct 201 rental units on the property.
3. Developer will receive a Land Acquisition Grant in an amount of $20,000
per unit created but not to exceed the purchase price.
4. Developer will receive 15 years of tax increment financing incentives in the
form of semi-annual rebates. Tax increment financing incentives are
estimated to not exceed $5,109,369.
5. City of Dubuque will sell approximately 5.25 acres of property to
Developer.
6. City of Dubuque will amend the Greater powntown Urban Renewal District
Plan to accommodate the issuance of tax increment financing incentives.
7. City of Dubuque will invest just over $1 Million dollars to replace an aging
and undersized sanitary sewer lift station. These funds will be budgeted
through the FY25 City budget process.
The procedure for the disposition of this urban renewal property includes additional
requirements not required for other development agreements. lowa Code § 403.8(2)(a)
provides that a municipality may dispose of real property in an urban renewal area to
private persons only under reasonable "competitive bidding procedures." A municipality,
by public notice by publication in a newspaper having a general circulation in the
community, thirty days prior to the execution of a contract to sell, lease or otherwise
transfer real property, and prior to the delivery of an instrument of conveyance with
respect to the real property, may invite proposals from and make available all pertinent
information to any persons interested in undertaking to redevelop or rehabilitate an
urban renewal area, or a part of the area. The notice must identify the area, or portion of
the area, and must state that proposals must be made by those interested within thirty
days after the date of publication of the notice, and that further information available
may be obtained at the office designated in the notice. The municipality must consider
all redevelopment or rehabilitation proposals, and the financial and legal ability of the
persons making the proposals to carry them out, and the municipality may negotiate
with any persons for proposals concerning the purchase, lease or other transfer of real
property acquired by the municipality in the urban renewal area. The municipality may
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accept the proposal it deems to be in the public interest and in furtherance of the
purposes of the urban renewal law. However, a notification of intention to accept the
proposal must be filed with the governing body not less than thirty days prior to the
acceptance. Thereafter, the municipality may execute a contract and may deliver deeds,
leases and other instruments and may take all steps necessary to effectuate the
contract.
The City of Dubuque has complied with these requirements for the disposition of this
urban renewal property. No competitive bids have been received.
RECOMMENDATION/ ACTION STEP
I recommend, following the public hearing, the City Council adopt the attached
approving the Development Agreement providing for the sale of City-owned property
and the issuance of Urban Renewal Tax Increment Revenue Grant Obligations.
3
Prepared By: Jill Connors, City of Dubuque 1300 Main St. Dubuque, IA 52001 (563) 589-4393
Return To: Jill Connors, City of Dubuque 1300 Main St. Dubuque, IA 52001 (563) 589-4393
RESOLUTION NO. 345-23
APPROVING THE DISPOSAL OF AN INTEREST IN REAL PROPERTY OWNED BY
THE CITY OF DUBUQUE BY SALE PURSUANT TO A DEVELOPMENT AGREEMENT
WITH UNION AT THE MARINA, LP
WHEREAS, the City Council of Dubuque, Iowa, did on June 5, 2023 adopt an
Amended and Restated Urban Renewal Plan for the Greater Downtown Urban Renewal
District ("the Plan") for the Urban Renewal Area described therein; and
WHEREAS, the City of Dubuque, Iowa, is interested in stimulating reinvestment in
the Greater Downtown Urban Renewal District; and
WHEREAS, the Plan provides, among other things, for the disposition of properties
for private development purposes; and
WHEREAS, Union at the Marina, LP submitted to the City a proposal in the form
of an offer to purchase (the "Development Agreement") for the purchase of certain City-
owned real property hereinafter described ("the Property"), which Development
Agreement proposes Union at the Marina, LP will undertake the purchase of property
located at the corner of Kerper Boulevard and Hawthorne Street as described therein,
which Property is the real estate consisting of approximately 5.25 acres shown on Exhibit
A, and which Development Agreement requests that this Property be made available for
sale as rapidly as possible; and
WHEREAS, Iowa Code Chapter 403 authorizes cities to dispose of property in
furtherance of an urban renewal project and to take other actions as may be necessary
to carry out the purposes of said Chapter, and the Plan similarly authorizes the City to
dispose of property; and
WHEREAS, in compliance with Iowa Code Section 403.8, and to the extent
required by law, Iowa Code Section 364.7, the City Council has set forth its proposal to
dispose of
its interests in the Property and the City Clerk published a notice on May 19, 2023 as
required by law soliciting competitive proposals for the Property; and
WHEREAS, as of 10:00 a.m. on October 16, 2023 the City Clerk received no
competitive proposals for the Property; and
WHEREAS, the City Council believes it is in the best interest of the City of Dubuque
to approve the Development Agreement proposed by Union at the Marina, LP and the
sale of the Property as provided in the Development Agreement.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1 . The Council finds that the transfer of the Property will promote the
purposes of the urban renewal law, Iowa Code Ch. 403 in the City and, together with the
other consideration provided for in the Agreement, that these benefits constitute fair value
for the City's disposal of interests in the Property under Iowa Code Section 403.8.
Section 2. The Development Agreement between the City and Union at the
Marina, LP including the sale of the Property as provided therein, is hereby approved.
Section 3. The Mayor is authorized and directed to execute said Development
Agreement on behalf of the City of Dubuque.
Passed, approved and adopted this 16th day of October, 2023.
Brad M. Cvanagfi, Mayor
Attest:
Trish L. Gleason, Assistant City Clerk
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PURCHASE AGREEMENT AND DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE,IOWA
AND
UNION AT THE MARINA,LP
This Purchase Agreement and Development Agreement (hereinafter,the
"Agreement'1),dated for reference purposes the day of ,2023,is
entered into by and between the City of Dubuque,Iowa,a municipality (“City"),acting
under authorization of Iowa Code Chapter 403,as amended,and Union at the Marina,
LP,an Iowa limited partnership (“Developer”).
WHEREAS,City is the owner of the real estate located in the City of Dubuque,
County of Dubuque,State of Iowa,consisting of approximately 5.25 acres,of which
approximately 5.25 acres are usable,shown on Exhibit B-2 attached hereto (the
“Property");and
WHEREAS,Developer has requested that City sell to Developer the Property
together with all easements,tenements,hereditaments and appurtenances belonging
thereto (the “Property"),and City has agreed to sell the Property to Developer subject to
and in accordance with the terms of this Agreement;and
WHEREAS,Developer desires to construct residential building(s)(together,the
“Buildings”,and each a "Building"),consisting of a total of approximately 201 apartment
units,substantially as shown on the site plan set forth in Exhibit B-1 attached hereto (as
may be amended as hereinafter provided in this Agreement,the “Site Plan”),on the
Property;and
WHEREAS,Developer and City agree that upon approval of the Plat (as defined
in Section 4.8 of this Agreement),this Agreement will be amended to include the legal
description of the Property;and
WHEREAS,the Property is located in the Greater Downtown Urban Renewal
District which has been so designated by City Council Resolution 123-67,as
subsequently amended,as a slum and blighted area (the “Project Area")defined by Iowa
Code Chapter 403 (the “Urban Renewal Law”);and
WHEREAS,subject to the terms of this Agreement,Developer intends to
undertake the development of the Buildings to be located on the Property;and
WHEREAS,Developer will make a capital investment in building improvements,
equipment,furniture and fixtures in the Property including,without limitation,any public
or site related improvements specifically needed for the development (e.g.utility
extensions to the Property)(the “Project”),as shown on the Site Plan,Exhibit B-1 attached
16th October
hereto; and
WHEREAS, pursuant to Iowa Code Section 403.6(1), and in conformance with the
Urban Renewal Plan for the Project Area adopted on May 18, 1967 and last amended on
June 5, 2023 (the "Urban Renewal Plan"), City has the authority to enter into contracts
and agreements to implement the Urban Renewal Plan, as amended; and
WHEREAS, the Dubuque City Council believes it is in the best interests of the City
to encourage Developer in the development of the Property by providing certain
incentives as set forth herein.
NOW, THEREFORE, the parties to this Agreement, in consideration of the
promises, covenants and agreements made by each other, do hereby agree as follows:
SECTION 1. CONVEYANCE OF THE PROPERTY TO DEVELOPER.
1. 1 Purchase Price. Subject to the terms and conditions herein, the purchase price
for the Property (the "Property Purchase Price") shall be Seven Hundred Seventy-Seven
Thousand Five Hundred Forty-Six Dollars ($777,546) per acre for approximately 5.25
acres for a total Property Purchase Price of$4,082,117. The actual Property Purchase
Price shall be adjusted based on the acreage of the Property as shown on the Plat (as
defined in Section 4.8 of this Agreement); provided, that, the Property Purchase Price
shall not exceed the amount of the Property Acquisition Grant (as hereinafter defined) to
be made by the City to Developer in accordance with Section 11.1 hereof.
1.2 Title to Be Delivered. At the Closing (as defined in Section 5 below), City agrees
to convey good and marketable fee simple title in the Property to Developer subject only
to easements, restrictions, conditions and covenants of record as of the date hereof to
the extent not objected to by Developer as set forth in this Agreement, and subject to the
conditions set forth in Section 4 of this Agreement.
1) City, at its sole cost and expense, shall deliver to Developer an abstract of
title to the Property continued through a date within thirty (30) days of the Closing
Date reflecting merchantable title in City in conformity with this Agreement,
applicable state law and the Title Standards of the Iowa State Bar Association (the
Abstract"). The Abstract shall be delivered together with full copies of any and all
encumbrances and matters of record applicable to the Property, and such Abstract
shall become the property of Developer at Closing. Also, Developer, at its sole
cost and expense, may obtain a commitment for an ALTA owner's policy of title
insurance issued by First American Title Insurance Company (the "Title
Company") for the Property (the "Title Commitment"), in which the Title Company
shall agree to issue an ALTA owner's policy to Developer ("Owner's Policy"),
insuring good and marketable title to the Property in Developer, upon delivery of
the Deed (as hereinafter defined) from the City to Developer.
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4811-6768-1178.10
2) Developer shall have until the Closing Date to render objections to title and
the Plat with respect to the Property being conveyed, including any easements or
other encumbrances not satisfactory to Developer, in writing to City. Developer
agrees, however, to review the Abstract and Title Commitment promptly following
Developer's receipt of Developer's land survey, Plat, the Abstract, and the Title
Commitment and to promptly provide City with any objections to title identified
therein. Nothing herein shall be deemed to limit Developer's rights to raise new
title objections with respect to matters revealed in any subsequent title
examinations and surveys and which were not identified in the Abstract provided
by City or the Title Commitment. City shall promptly exercise its best efforts to
have such title objections removed or satisfied and shall advise Developer of
intended action within ten (10) days of such action. If City shall fail to have such
objections removed as of the Closing, or any extension thereof consented to by
Developer, Developer may, at its sole discretion, either (1) terminate this
Agreement without any liability on its part, or (2) take title subject to such
objections. City agrees to use its best reasonable efforts to promptly satisfy any
such objections. City acknowledges that Developer needs to acquire the Property
as described in Section 10 to meet construction and delivery deadlines, and City
agrees to exercise its best reasonable efforts to facilitate completion of City's
duties under this Agreement in order to accommodate a Closing before such date.
1.3 Rights of Inspection, Testing and Review. Developer, and its consultant(s), shall
have access to the Property and all parts thereof pursuant to the terms and conditions of
the Site Access Agreement attached hereto as Exhibit H and incorporated herein by
reference, and shall have the further right to make such inquiries of governmental
agencies and utility companies, etc. as it considers appropriate.
1) Environmental Investigation/Confidential Information. Developer shall have
the right to inspect the Property prior to the Closing Date and to take whatever
tests or perform such examination, as Developer shall deem appropriate, at its own
risk and its sole cost and expense, to evaluate the environmental condition of the
Property. Prior notice of such activity by Developer shall be provided to City(which
such notice may be made by electronic mail), and written results of such activity
shall be shared with City promptly after City's written request for such results.
Developer shall not disclose the information from the investigation or the report of
the investigation to any party prior to the Closing, other than City without the prior
consent of City except as required by law or court order, and except that to the
extent that such information is necessary to Developer's architects, engineers,
surveyors, contractors, attorneys, investors, lenders, consultants and advisors,
provided, however, such persons shall agree to keep such information confidential
as provided in this Section. Notwithstanding the foregoing, within thirty (30) days
of the date hereof, City, at City's expense, using proceeds obtained from a grant
from the Environmental Protection Agency, will obtain and deliver to Developer a
Phase I Environmental Assessment Report for the Property prepared by
Blackstone Environmental.
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4611-676B-1178.10
2) Hazardous Substance Remediation.
a) Prior to the Closing, if Developer determines, upon receipt and
consideration of any report of investigation of the Property that applicable
law requires removal and/or remediation of Hazardous Substances on the
Property prior to construction of any of the Minimum Improvements (as
hereinafter defined), then Developer, at Developer's election, may retain, at
its sole cost and expense, an environmental consultant to prepare a plan
the "Environmental Remediation Plan) for the removal and/or remediation
of the identified Hazardous Substances to a level as may be required by
law and/or to a level sufficient to allow construction of the Minimum
Improvements.
b) Based on findings of any Phase I or Phase 2, Environmental
Remediation Plan or other report or investigation, Developer, in its sole
discretion, may elect to terminate this Agreement prior to Closing by giving
written notice to City, without any further obligation on the part of Developer
or City.
3) Definitions. For the purposes of this Agreement, the following definitions
shall apply:
a) Environmental Law. Any and all federal, state and/or local laws,
regulations and legal requirements pertaining to (i) the protection of health,
safety and the indoor and outdoor environment, (ii) the conservation,
management or use of natural resources and wildlife, (iii) the protection,
access to or use of surface water and groundwater, (iv) the management,
manufacture, possession, presence, use, generation, transportation,
treatment) storage, disposal, Release, threatened Release, abatement,
removal, remediation or handling of, or exposure to, any Hazardous
Substance or (v) pollution (including, without limitation, any Release to air,
land, surface water and groundwater), and includes, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended by the Superfund Amendment and Reauthorization
Act of 1986, 42 U.S.C. 9601 et seq.,; the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976 and the
Hazardous and Solid Waste Amendments of 1984, 42 U.S.G. 6901 et seq.;
the Federal Water Pollution Control Act, as amended by the Clean Water
Act of 1977, 33 U.S.C. 1251 et seq.; the Clean Air Act of 1966, as amended,
41 U.S.C. 7401 et seq.; the Toxic Substances Control Act of 1976, 15
U.S.C. 2601 et seq.; the Hazardous Substances Transportation Act, 49
U.S.C. App. 1801 et seq.`the Occupational Safety and Health Act of 1970,
as amended, 29 U.S.C. 651 et sea.; the Oil Pollution Act of 1990, 33 U.S.G.
2701 et seq.; the Emergency Planning and Community Right-to-Know Act
of 1986, 42 U.S.C. 11001 et seq.; the National Environmental Policy Act of
1969, 42 U.S.C. 4321 et seq.; the Safe Drinking Water Act of 1974, as
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481I-6768-1178.10
amended, 42 U.S.C. 300(f) et seq.; Chapter 455E of the Iowa Code; any
similar, implementing or successor law to any of the foregoing and any
amendment, rule, regulation, order or directive issued thereunder.
b) Hazardous Substance or Hazardous Substances. Any hazardous or
toxic substance, material or waste, which is or becomes regulated by any
local government, the State of Iowa or the United States Government. It
includes, without limitation, any material or substance that is (i) defined as
a "hazardous substance" or "hazardous waste" under Chapter 455B, Iowa
Code, (ii) petroleum and petroleum products, (iii) asbestos containing
materials in any form or condition, (iv) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control
Act (33 U.S.C. § 1321), (v) defined as a "hazardous waste pursuant to
1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq., (vi) defined as a "hazardous substance" pursuant to§ 101 of
the Comprehensive Environmental Response, Compensation and Liability
Act, U.S.0 § 9601 et seq., or (vii) defined as a "regulated substance"
pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation of
Underground Storage Tanks), 42 U.S.C. § 6991 et seq.] The term
Hazardous Substance" shall not include any air emissions discharged into
the atmosphere as allowed by a duly issued permit from the applicable
governmental agency.
c) Release. Any spilling, migrating, seeping, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping or disposing of any Hazardous Substance into the indoor or
outdoor environment, including, without limitation, the abandonment or
discarding of barrels, drums, containers, tanks and other receptacles
containing or previously containing any Hazardous Substance and including
without limitation the migration of any Hazardous Substance onto the
Property from an adjacent property.
SECTION 2. REPRESENTATIONS OF CITY. To induce Developer to enter into this
Agreement and purchase the Property, City hereby represents and warrants to
Developer, that:
2.1 There is no action, suit or proceeding pending, or to the best of City's knowledge,
threatened against City which might result in any adverse change in the Property being
conveyed or the possession, use or enjoyment thereof by Developer for Developer's
intended use, including, but not limited to, any action in condemnation, eminent domain
or public taking.
2.2 No ordinance or hearing is pending or, to the best of City's knowledge,
contemplated before any local governmental body which either contemplates or
authorizes any public improvements or special tax levies, the cost of which may be
assessed against the Property. To the best of City's knowledge, there are no plans or
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4811-6768.1178.10
efforts by any government agency to widen, modify, or re-align any street or highway
providing access to the Property and there are no pending or intended public
improvements or special assessments affecting the Property which will result in any
charge or lien be levied or assessed against the Property.
2.3 All leases, contracts, licenses, and permits between City and third parties in
connection with the maintenance, use, and operation of the Property have been provided
to Developer and City has provided true and correct copies of all such documents to
Developer.
2.4 City has good and marketable fee simple title interest to the Property.
2.5 There are no notices, orders, suits, judgments or other proceedings relating to fire,building, zoning, air pollution, health violations or other matters that have not been
corrected. City has notified Developer in writing of any past notices, orders, suits,
judgments or other proceedings relating to fire, building, zoning, air pollution or health
violations as they relate to the Property of which it has actual notice.
2.6 The Property will as of the date of the Closing Date be free and clear of all liens,
security interests, and encumbrances and payment has been made for all labor or
materials that have been furnished to the Property or will be made prior to the Closing
Date so that no lien for labor performed or materials furnished can be asserted against
the Property.
2. 7 City has duly obtained all necessary approvals and consents for its execution,
delivery and performance of this Agreement, and that it has full power and authority to
execute, deliver and perform its obligations under this Agreement including, withoutlimitation, the execution and delivery of all documents contemplated under this
Agreement. City's attorney shall issue a legal opinion to Developer at the time of the
Closing confirming the representation contained herein, in form and substance attached
hereto as Exhibit C.
2.8 Unless otherwise agreed to in writing by Developer and City, Developer shall be
responsible for the cost to modify or relocate all city utilities deemed necessary for the
development and use of the Property, including but not limited to the water main.
Developer shall have the right to connect to said utilities, subject to City's connection fees.
2.9 The Property is free and clear of any occupants, and no party has a lease to or
other occupancy or contract right in the Property which shall in anyway be binding uponthePropertyorDeveloper.
2.10 City shall exercise its best efforts to cooperate with Developer in the development
process.
2.11 City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
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4811- 6768-k/78.W
2.12 The Property will be properly zoned for the various uses described in this
Agreement.
2.13 City makes no warranties or representations as to the condition of the Property
other than those which are expressly stated in this Agreement.
2.14 City has completed all required notice to or prior approval, consent or permission
of any federal, state or municipal or local governmental agency, body, board or official to
the sale of the Property, and consummation of the Closing by City shall be deemed a
representation and warranty that it has obtained the same.
2.15 City represents and agrees that use of the Property as described in this Agreement
is in full compliance with the Urban Renewal Plan.
2.16 The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated by this Agreement do not and shall not result in any
material breach of any terms or conditions of any mortgage, bond, indenture, agreement,
contract, license, or other instrument or obligation to which City is a party or by which
either the City or the Property being conveyed are bound, nor shall the execution, delivery
and performance of this Agreement violate any statute, regulation, judgment, writ,
injunction or decree of any court threatened or entered in a proceeding or action in which
City may be bound or to which either City or the Property being conveyed may be subject.
2.17 The representations and warranties contained in this Section shall be correct in all
respects on and as of the Closing Date with the same force and effect as if such
representations and warranties had been made on and as of the Closing Date, and such
representations and warranties shall survive the Closing.
SECTION 3. REPRESENTATIONS OF DEVELOPER. The Developer makes the
following representations and warranties:
1) Developer is an Iowa limited partnership duly organized and validly existing
under the laws of the State of lowa and has all requisite power and authority to
own and operate its properties, to carry on its business as now conducted and as
presently proposed to be conducted, and to enter into and perform its obligations
under this Agreement.
2) This Agreement has been duly authorized, executed and delivered by
Developer and, assuming due authorization, execution and delivery by the City, is
in full force and effect and is a valid and legally binding instrument of Developer
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting
creditors' rights generally. Developer's counsel shall issue a legal opinion to the
City, at time of closing, confirming the representations contained herein, containing
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the opinions set forth in the form attached hereto as Exhibit E which such opinions
shall be subject to customary exceptions, exclusions and limitations.
3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
certificate of limited partnership or the limited partnership agreement of Developer
or any contractual restriction, evidence of indebtedness, agreement or instrument
of whatever nature to which Developer is now a party or by which it or its property
is bound, or constitute a default under any of the foregoing.
4) There are no actions, suits or proceedings pending or to Developer's
knowledge, threatened against or affecting Developer in any court or before any
arbitrator or before or by any governmental body in which there is a reasonable
possibility of an adverse decision which could materially adversely affect the
business, financial position or result of operations of Developer or which affects
the validity of the Agreement or Developer's ability to perform its obligations under
this Agreement.
5) Developer will perform its obligations under this Agreement in accordance
with the material terms of this Agreement, the Urban Renewal Plan and all local,
State and federal laws and regulations.
6) Developer will use its best efforts to obtain, or cause to be obtained, in a
timely manner, all material requirements of all applicable local, state, and federal
laws and regulations which must be obtained or met for the Project.
7) Developer will use its best efforts to obtain firm commitments for
construction financing for the Project in an amount sufficient, together with equity
commitments, to successfully complete the Project in accordance with the
requirements of this Agreement and if obtained, shall provide evidence thereof to
City prior to the Closing Date,
SECTION 4. CONDITIONS TO CLOSING. The Closing and all the obligations of
Developer under this Agreement are subject to fulfillment, on or before the Closing Date
of the following conditions:
4.1 The representations and warranties made by City in Section 2 shall be correct as
of the Closing Date with the same force and effect as if such representations were made
at such time. At the Closing, City shall deliver a certificate, in the form of Exhibit D, to
that effect.
4. 2 Title to the Property shall be in the condition warranted in Section 2.
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461i-6768- l7B.10
4.3 Developer shall have obtained at its sole expense any and all necessary
governmental approvals, including without limitations building permits, approval of
zoning, subdivision or platting which might be necessary or desirable in connection with
the sale and transfer and development of the Property. Any conditions imposed as a part
of the zoning, platting or subdivision must be satisfactory to Developer, in its sole opinion.
City shall cooperate with Developer in attempting to obtain any such approvals and shall
execute any documents necessary for this purpose, provided that City shall bear no out-
of-pocket expense in connection therewith. In connection therewith, City agrees (1) to
review all of Developer's plans and specifications for the Project and to either reject or
approve the same in a prompt and timely fashion, but in no event more than thirty (30)
days; (2) to issue a written notification to Developer, promptly following City's approval of
same, indicating that City has approved such plans and specifications, and that the same
are in compliance with the Urban Renewal Plan (as defined in Section 10.2 of this
Agreement) and/or that the appropriate waivers have been obtained, this Agreement and
any other applicable City or affiliated agency requirements, with the understanding that
Developer and its lenders shall have the right to rely upon the same in proceeding with
the Project; (3) to identify in writing as soon as practicable after submission of said plans
and specifications, any and all permits, approvals and consents that are legally required
for the acquisition of the Property by Developer, and the construction, use and occupancy
of the Project with the intent and understanding that Developer and its lenders and
attorneys will rely upon same in establishing their agreement and time frames for
construction, use and occupancy, lending on the Project and issuing legal opinions in
connection therewith; and (4) to cooperate fully with Developer to facilitate the obtaining
of such permits, approvals and consents.
4.4 As of the date of this Agreement, City has completed all required notice to or prior
approval, consent or permission of any federal, state or municipal or local governmental
agency, body, board or official to the sale of the Property; and consummation of the
Closing by City shall be deemed a representation and warranty that it has obtained the
same.
4.5 Developer shall be in material compliance with all the terms and provisions of this
Agreement.
4.6 Developer shall have received or determined that it will be able to receive all
necessary loan approvals and commitments that Developer, in its sole and absolute
discretion, determines necessary or appropriate in connection with Developer's
development of the Project so that Developer can comply with its obligations hereunder
and Developer has confirmed to City that Developer has (or will have) firm financial
commitments in an amount sufficient, together with equity commitments, to complete the
Minimum Improvements, as the case may be, in conformance with applicable
Construction Plans (as defined herein), or City shall have received such other evidence
of such party's financial ability as in the reasonable judgment of City is required.
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4811-6768.1178,10
4.7 Receipt of an opinion of counsel to Developer in the form attached hereto as
Exhibit E, which such opinions shall be subject to customary exceptions, exclusions and
limitations.
4.8 City shall have prepared and shall be prepared to record at Closing a plat of survey
of Property acceptable to Developer (the "Plat"), including location and depiction of all
applicable easements and other substantial improvements. Pursuant to the Plat, and such
easement agreements, as applicable, as are in form and substance acceptable to
Developer and the City, City shall reserve the proposed utility and flood levee easements
as shown on Exhibit K.
4.9 Developer shall have the right to terminate this Agreement, for any reason or for
no reason, at any time prior to the Closing. Upon the giving of notice of termination by
Developer to City to this Agreement, this Agreement shall be deemed null and void, and
thereafter the parties shall be relieved of any and all further obligations hereunder other
than those obligations which are specifically set forth hereunder to survive termination.
4.10 Developer shall have otherwise satisfied itself with all other aspects of proceeding
with this transaction and the development of the Project as contemplated herein,
including, without limitation in any way, the financial viability of developing the Project, the
costs and expenses to be incurred in connection therewith, and all other aspects of the
planning, designing, development, construction and completion of the Project, all as
determined necessary or appropriate by Developer in its sole discretion.
4.11 The Title Company shall be irrevocably committed to issue to Developer effective
as of the date and time of the recording of the Deed, the Owner's Policy in a form
acceptable to Developer.
SECTION 5. CLOSING. The closing of the purchase and sale of the Property (the
Closing") shall take place on a date designated by Developer in a written notice to the
City delivered at least ten (10) business days prior to the date of Closing designated by
Developer, but in no event shall the Closing take place later than August 1, 2024 ("Outside
Closing Date"), unless agreed to in writing by the parties (the date on which the Closing
occurs shall be defined in this Agreement as the "Closing Date") via an escrow Closing
through the office of the Title Company. Notwithstanding the foregoing, if Developer
determines that it may not be able to obtain and close on all of its necessary debt and
equity financing for the Project prior to the Outside Closing Date, then Developer shall
have the right upon written notice to City prior to the Outside Closing Date, to extend the
Outside Closing Date for an additional period of one hundred twenty (120) days.
Exclusive possession of the Property shall be delivered on the Closing Date, in current
condition and in compliance with this Agreement. All of City's representations and
warranties regarding the Property in Section 2 shall survive the Closing.
SECTION 6 CITY'S OBLIGATIONS AT CLOSING. At or prior to the Closing Date,
City shall:
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18I1-676E-lI78.E0
6.1 Deliver to Developer City's duly recordable Warranty Deed to the Property, in theformattachedheretoasExhibitF (the "Deed"), conveying to Developer marketable fee
simple title to the Property necessary to construct the Project, and all rights appurtenantthereto, including appurtenant easements, subject only to easements, restrictions,
conditions and covenants of record as of the date hereof and not objected to by Developer
as set forth in this Agreement, and to the conditions subsequent set forth in thisAgreement;
6.2 Deliver to Developer a duly executed and acknowledged title affidavit in form and
substance acceptable to Developer and the Title Company, but which in any event shall
be in a form sufficient to enable the Title Company to issue the Owner's Policy, to delete
the removable standard pre-printed exceptions to the Owner's Policy, and to insure the
6.3 Deliver to Developer such other documents as may be required by this Agreement
or as may be reasonably required by the Title Company, or as may be necessary to
consummate the transactions contemplated by this Agreement, all in a form satisfactorytoDeveloper;
6.4 Deliver to Developer a statement at the Closing that all representations and
warranties in Section 2 are correct.
SECTION P. DELIVERY OF PURCHASE PRICE. Provided that Developer has not
elected to terminate this Agreement, at the Closing, and subject to the terms, conditions,
and provisions hereof and the performance by City of its obligations as set forth herein,
including City's obligation to make the Property Acquisition Grant in accordance with
Section 11.1 hereof, Developer shall pay the Property Purchase Price to City pursuant toSection1.1 hereof.
SECTION 8. CLOSING COSTS. The following costs and expenses shall be paid inconnectionwiththeClosing:
8.1. City shall pay:
1) The transfer fee imposed on the conveyance, if any;
2) All special assessments whether levied, pending or assessed, if any;
3) City's attorneys' fees;
4) City's broker and/or real estate commissions and fees, if any; and
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46„-6768-1 178.10
5) The cost of recording the satisfaction of any existing mortgage and any
other document necessary to make title marketable.
8.2. Developer shall pay:
1) The documentary fee necessary to record the Deed;
2) Developer's attorneys' fees;
3) The Owner's Policy premium, Title endorsements requested by Developer
for the Owner's Policy, and any lender's title insurance premium;
4) The escrow closing fee charged by the Title Company; and
5) Developer's broker and/or real estate commissions and fees, if any.
At Closing, City and Developer shall each execute and deliver into escrow a closing
statement prepared by the Title Company in form and substance mutually acceptable to
City and Developer.
SECTION 9. REAL PROPERTY TAXES. From and after Closing, Developer shall pay
or cause to be paid, when due, all real property taxes, assessments, fees and charges,
including but not limited to water, sanitary and storm water fees, connection and tap fees,
payable with respect to the Minimum improvements and Property.
SECTION 10. MINIMUM IMPROVEMENTS.
10.1 Minimum Improvements. Subject to Sections 10.2 and 10.3 and provided that
Developer purchases the Property, Developer hereby agrees to construct the Buildings
on the Property, consisting of approximately 201 residential units, along with necessary
site work as contemplated in this Agreement at an aggregate cost of approximately Forty-
Five Million Seven Hundred Thousand Dollars ($45,700,000.00) (the 'Minimum
Improvements"); provided, however, Developer reserves the right to reconfigure the
Minimum Improvements to substitute residential space with commercial/retail space, or
to substitute commercial/retail space with residential space, based on Developer's
determination, in its sole discretion. If Developer exercises such right, the Site Plan shall
be amended to reflect such reconfiguration and changes to the Project.
10.2 Timing of Improvements. Developer hereby agrees that it will use commercially
reasonable efforts to commence construction of the Minimum Improvements on the
Property by not later than the date which is six (6) months after the Closing Date, or such
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481 I-6768-1 l 78.10
later date as may be mutually agreed upon by the parties ("Commencement Date") and
to substantially complete the Minimum Improvements by not later than the date which is
twenty-four (24) months after the Commencement Date, or such later date as may be
mutually agreed upon by the parties ("Completion Date"). The time frames for the
performance of these obligations shall be suspended due to unavoidable delays meaning
delays, outside the control of the party claiming its occurrence in good faith, which are the
direct result of strikes, other labor troubles, unusual shortages of materials or labor,
unusually severe or prolonged bad weather, acts of God, fire or other casualty to the
Minimum Improvements, litigation commenced by third parties which, by injunction or
other similar judicial action or by the exercise of reasonable discretion directly results in
delays, or acts of any federal, state or local government which directly result in
extraordinary delays. The time for performance of such obligations shall be extended
only for the period of such delay.
10.3 Plans for Construction of Minimum Improvements. Prior to the Closing Date and
provided that Developer purchases the Property, Developer shall submit to City elevation
drawings, site plan, building plans and specifications, and related documents with respect
to the Minimum Improvements to be constructed by Developer on the Property (the
Construction Plans"). City shall promptly review all Construction Plans submitted and
approve or disapprove such Construction Plans which approval shall not be unreasonably
withheld, conditioned or delayed; The Construction Plans shall be in conformity with
Urban Renewal Plan, this Agreement, and all applicable state and local laws and
regulations. All work with respect to the Minimum Improvements shall be in substantial
conformity with the Construction Plans approved by City. Upon approval of the final site
plan for the Minimum Improvements and other related Project improvements, this
Agreement shall be amended to reflect the final approved site plan, which shall replace
Exhibit B-1 attached hereto.
10.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall furnish Developer with an
appropriate instrument so certifying. Such certification (the "Certificate of Completion")
shall be in recordable form and shall be a conclusive determination of the satisfaction or
waiver and termination of Developer's agreements, covenants, and obligations in this
Agreement with respect to the obligations of Developer to construct the Minimum
Improvements. The Certificate of Completion shall terminate all rights of revestment of
title in City as provided in Section 15 and the Certificate of Completion shall so state.
10.5 Developer Lender's Cure Rights. The parties agree that if Developer shall fail to
complete the Minimum Improvements as required by this Agreement such that
revestment of title may occur (or such that City would have the option of exercising its
revestment rights), then Developer or Developer's Lender(as defined in Section 15.1(4)),
if any, shall have the right, but not the obligation, to complete such Minimum
Improvements according to the terms and conditions in this Agreement.
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10.6. Sidewalk Installation and Maintenance. Developer shall be responsible for the
installation and maintenance of the sidewalk, including snow removal, abutting the
Property on Kerper Boulevard and Hawthorne Street.
SECTION 11. CITY PARTICIPATION.
11.1 Acquisition Grant to Developer. For and in consideration of Developer's
obligations hereunder to construct the Minimum Improvements, City agrees to make the
Property Acquisition Grant (defined below) to Developer on the Closing Date in the
following amounts:
The housing incentive acquisition grant for the Property (the "Property Acquisition
Grant") shall be the sum of Twenty Thousand Dollars ($20,000) for every new
residential rental unit created in connection with the Project (which, as of the date
hereof, is contemplated to include 201 residential rental units) but not to exceed
the Property Purchase Price.
The parties agree that the Property Acquisition Grant shall be payable in the form of a
credit favoring Developer at time of Closing with the effect of directly offsetting all the
Property Purchase Price obligation of Developer.
11.2 Economic Development Grants.
1) Minimum Improvements. For and in consideration of Developer's
obligations hereunder, and in furtherance of the goals and objectives of the Urban
Renewal Plan for the Project Area and the Urban Renewal Law, City agrees, so
long as no Event of Default exists under this Agreement, to make thirty (30)
consecutive semi-annual payments (such payments being referred to collectively
as the "Economic Development Grants", together with Property Acquisition Grant,
the "Grants") to the Developer on the following dates (subject to change based on
the actual Completion Date):
November 1, 2028 May 1, 2029
November 1, 2029 May 1, 2030
November 1, 2030 May 1, 2031
November 1, 2031 May 1, 2032
November 1, 2032 May 1, 2033
November 1, 2033 May 1, 2034
November 1, 2034 May 1, 2035
November 1, 2035 May 1, 203E
November 1, 2036 May 1, 2037
November 1, 2037 May 1, 2038
November 1, 2038 May 1, 2039
November 1, 2039 May 1, 2040
November 1, 2040 May 1, 2041
November 1, 2041 May 1, 2042
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4811-6768. 1178.10
November 1, 2042 May 1, 2043
pursuant to 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 Property, the Minimum Improvements constructed
by Developer (the "Developer Tax Increments"). For purposes of calculating the
amount of Economic Development Grants provided in this Section, the Developer
Tax Increments shall be only those tax increment revenues collected by City in
respect to the increase in the assessed value of the Property above the assessed
value on January 1, 2023 ($2,561,900). 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, and (iii) any other portion
required to be excluded by Iowa law, and thus such incremental taxes will not
include all amounts paid by Developer as regular property taxes. Notwithstanding
the foregoing, however, no tax increment revenues collected by City with respect
to a hotel constructed by Developer on the Property shall be included in the
calculation of payments in this Section 11.2(1)
3) To fund the Economic Development Grants, City shall certify to the County
prior to December 1 of each year, commencing December 1, 2027, its request for
the available Developer Tax Increments resulting from the assessments imposed
by the County as of January 1 of that year, to be collected by City as taxes are
paid during the following fiscal year and which shall thereafter be disbursed to
Developer on November 1 and May 1 of that fiscal year. (Example: if City so
certifies in December 2027, the Economic Development Grants in respect thereof
would be paid to the Developer on November 1, 2028, and May 1, 2029).
4) The Economic Development Grants shall be payable from and secured
solely and only by the Developer Tax Increments (which, upon receipt, shall be
deposited and held in a special account created for such purpose and designated
as the "Union Marina TIF Account" of City. 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 the Minimum Improvements and allocated
to the Union Marina TIF Account to pay the Economic Development Grants, as
and to the extent set forth in Section 11.2(1) hereof. The Economic Development
Grants shall not be payable in any manner by other tax increments 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 as the Economic
Development Grants in any one year and under no circumstances shall City in any
manner be liable to Developer so long as City timely applies the Developer Tax
Increments actually collected and held in the Union Marina TIF Account
regardless of the amounts thereof) to the payment of the Economic Development
Grants to Developer as and to the extent described in this Section 11.2(3).
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4811. 6768-1178.10
5) City shall be free to use any and all tax increment revenues collected in
respect to other properties within the Project Area, or any of the available
Developer Tax Increments resulting from the termination of the annual Economic
Development Grants under Section 11.2(1) 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 with respect
to the use thereof. City shall also be free to use for any lawful purpose the actual
tax increment revenues collected by the City and not required to be paid to
Developer in respect of the Minimum Improvements.
11.3 Sanitary Sewer Lift Station. City will make necessary upgrades to the
sanitary sewer lift station serving the Property. City will be responsible for all costs related
to the upgrades. The upgrades will be completed prior to the Project connection to the
sanitary sewer main.
11.4 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 Grant 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
11.4. 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 to Developer in the next fiscal year under this Agreement.
1) 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 Grant due and payable in that fiscal year, then: (i) City
shall have no further obligation to Developer 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, (ii) Developer shall be released from all further obligations
under this Agreement during that same fiscal year.
2) Each installment of the Economic Development Grant shall be paid by City
solely from funds appropriated for that purpose by the City Council from taxes
levied on the Property that are allocated to the special fund pursuant to Iowa Code
2013) § 403.19(2).
3) The right of non-appropriation reserved to City in this Section 11.4 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
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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.
SECTION 12. COVENANTS OF DEVELOPER.
12.1 Operation of Property; Housing Vouchers. For and in consideration of the Grants
offered under this Agreement, during the operation of the Property, including the
Buildings, as a rental residential property, Developer shall accept, or cause to be
accepted, applications from prospective tenants with housing vouchers (issued under the
U.S. HUD's Section 8 voucher program or a similar program) that are otherwise qualified
prospective tenants, as determined by Developer.
12.2 Insurance Requirements:
Insurance Requirements.
1) Developer shall provide and maintain or cause to be maintained at all times
during the process of constructing the Minimum Improvements and at its sole cost
and expense (and, from time to time at the request of City, furnish City with proof
of insurance in the form of a certificate of insurance for each insurance policy):
Builder's risk insurance, written on a completed value in an amount equal to one
hundred percent (100%) of the replacement value of the Minimum Improvements,
naming City as a named insured and lender loss payable. Coverage shall include
the "special perils"form.
The City of Dubuque, Owners, Contractors, Subcontractors, and Sub-
Subcontractors shown as additional named insureds are only additional named
insured with respect to their interest in the Covered Property at the premises
shown in the declarations.
2) Upon completion of construction of the Minimum Improvements and up to
the Termination Date, Developer shall maintain, or cause to be maintained, at its
cost and expense (and from time to time at the request of City shall furnish proof
of insurance in the form of a certificate of insurance) property insurance against
loss and/or damage to the Minimum Improvements under an insurance policy
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4811.6768-1178.10
written in an amount not less than the full insurable replacement value of Minimum
Improvements naming City as lender loss payable. Coverage shall include the
special perils" form.
3) The term "replacement value" shall mean the actual replacement cost of
Minimum Improvements (excluding foundation and excavation costs and costs of
underground flues, pipes, drains and other uninsurable items) and equipment, and
shall be reasonably determined from time to time at the request of City, but not
more frequently than once every three (3) years.
4) Reserved.
5) Contractor shall be responsible for deductibles and self-insured retention.
6) Developer shall notify City immediately in the case of damage exceeding
500,000 in amount to, or destruction of, the Minimum Improvements or any
portion thereof resulting from fire or other casualty. Net proceeds of any such
insurance ("Net Proceeds"), shall be paid directly to Developer as its interests may
appear, and Developer shall forthwith repair, reconstruct and restore the Minimum
Improvements to substantially the same or an improved condition or value as they
existed prior to the event causing such damage and, to the extent necessary to
accomplish such repair, reconstruction and restoration, Developer shall apply the
Net Proceeds of any insurance relating to such damage received by Developer to
the payment or reimbursement of the costs thereof, subject, however,to the terms
of any mortgage encumbering title to the Property (as its interests may appear),
and the rights of Developer's mortgagee(s) to such Net Proceeds ("Superior
Rights"). Subject to the Superior Rights, Developer shall complete the repair,
reconstruction and restoration of Minimum Improvements provided sufficient Net
Proceeds of insurance are received by Developer for such purposes.
Notwithstanding the foregoing, if(a) a Building(s) is damaged or destroyed and the
cost of repair or restoration of such Building(s) would exceed 25% of the value of
the Property as of the date of such damage or destruction, or (b) a Building(s) is
damaged or destroyed by a casualty that is not covered by insurance or, if covered,
such insurance proceeds are not released by any mortgagee entitled thereto or
are insufficient to rebuild the Building(s), then Developer shall not be obligated to
rebuild, reconstruct and restore such Building on the Property and may:
a) Replace the Minimum Improvements, including the Building(s),
subject to the approval of the plans by City, with a project of equal to or
greater value than the Minimum Improvements, including the Building(s),
required by this Agreement; or
b) Terminate this Agreement by delivering written notice to City within
sixty (60) days after the event causing such damage or destruction. If
Developer elects to terminate this Agreement as set forth in this Section,
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48 1-d168.I 17s.1 a
Developer agrees to raze the remaining improvements, clear the site of the
building materials and return the Property to substantially the grade existing
prior to construction of the Building(s). Subject to the Superior Rights, upon
written notice by City delivered to Developer that the Property has been
returned to substantially the grade existing prior to construction of the
Buildings, City shall have a one-time exclusive option to purchase the
Property upon the terms and conditions set out in the Option Agreement
attached hereto as Exhibit I.
7) This covenant shall survive the termination of this Agreement.
12.3 Non-Discrimination. In carrying out the Project, Developer shall not discriminate
against any employee or applicant for employment or housing because of race, religion,
color, sex, sexual orientation, gender identity, national origin, age, or disability.
12.4 Conflict of Interest. Developer agrees that no member, officer or employee of City,
or its designees or agents, nor any consultant or member of the governing body of City,
and no other public official of City who exercises or has exercised any functions or
responsibilities with respect to the Project during his or her tenure, or who is in a position
to participate in a decision-making process or gain insider information with regard to the
Project, shall have any interest, direct or indirect, in any contract or subcontract, or the
proceeds thereof, for work to be performed in connection with the Project, or in any
activity, or benefit therefrom, which is part of the Project at any time during or after such
person's tenure. In connection with this obligation, Developer shall have the right to rely
upon the representations of any party with whom it does business and shall not be
obligated to perform any further examination into such party's background.
12.5 Non-transferability; Permitted Transfers. Until such time as the applicable
Minimum Improvements are complete (as certified by City under Section 10.4), except as
provided in this Section, this Agreement may not be assigned by Developer nor may the
Property be transferred by Developer to another party without the prior written consent of
City, which consent shall not be unreasonably withheld; provided, that, Developer may
without the City's consent, assign this Agreement to an affiliate of Developer under
common ownership or control (provided such affiliate agrees to assume in writing the
obligations of Developer hereunder); and provided further, that Developer may collaterally
assign this Agreement to its mortgage lender as may be required to secure financing for
the Minimum improvements.
12.6 Restrictions on Use. Developer agrees for itself, its successors and assigns, and
every successor in interest to the Property or any part thereof that they and their
respective successors and assigns, shall:
1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that, use of
the Property as described in this Agreement is in full compliance with the Urban
Renewal Plan); and
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4811-6768.1 l78.10
2) Not discriminate upon the basis of race, religion, color, sex, national origin,
age, sexual orientation, gender identity or disability in the sale, lease, rental, use
or occupancy of the Property or any improvements erected or to be erected
thereon, or any part thereof(however, Developer shall not have any liability to City
to the extent that a successor in interest shall breach this covenant and City shall
seek enforcement of this covenant directly against the party in breach of same).
12.7 Compliance with Laws. Subject to City's representations, warranties and
covenants with respect to City's obligation to comply with laws, rules and regulations
relating to the Property as set forth in this Agreement, Developer will comply with all laws,
rules and regulations relating to the Property and the Minimum Improvements, other than
laws, rules and regulations the failure to comply with which or the sanctions and penalties
resulting therefrom, would not have a material adverse effect on the business, property,
operations, financial or otherwise, of Developer.
12.8 Flood Levee Easement Permit. For the proposed driveway encroachment,
Developer agrees to sign a flood levee easement permit for the driveway encroachment
on Hawthorne Street; provided, such permit is in form and substance reasonably
acceptable to Developer.
12.9 Hawthorne Street Right-of-Way Parking. Pursuant to a written agreement to be
entered into between Developer and City which is in form and substance reasonably
acceptable to Developer and City (the "Parking Agreement"), the City, at the City's cost
and expense, agrees to construct parking on the Hawthorne Street right-of-way, and City
agrees to grant Developer a non-exclusive permit for the residents of the Building(s) to
park within such constructed parking area. The Parking Agreement shall be executed by
Developer and City and delivered at Closing.
SECTION 13. COVENANTS OF DEVELOPER FOLLOWING CONSTRUCTION OF
THE PROJECT.
13.1 Books and Records. During the term of this Agreement and from and after
completion of the Minimum Improvements, Developer shall keep at all times and make
available to City upon reasonable request proper books of record and account in which
full, true and correct entries will be made of all dealings and transactions of or in relation
to the business and affairs of Developer with respect to the Property and the Minimum
Improvements in accordance with generally accepted accounting principles consistently
applied throughout the period involved, and Developer shall provide reasonable
protection against loss or damage to such books of record and account. Notwithstanding
anything contained herein to the contrary, City and its agents and employees shall not
disclose any information contained in such books of record and account to any party
without the Developer's prior written consent except as required by law or court order,
and except that to the extent that such information is necessary to City's consultants and
advisors, provided, however, such persons shall agree to keep such information
20
4811.6768-1178.10
confidential, and Developer may require that the City enter into a confidentiality
agreement in a form acceptable to Developer prior to granting City access to such books
of record and account.
13.2 No Exemptions. During the term of this Agreement, and except as otherwise
permitted by this Agreement, Developer agrees not to apply for any state or local property
tax exemptions which are available with respect to the Property or the Minimum
Improvements located thereon that may now be, or hereafter become, available under
state law or city ordinance during the term of this Agreement, including those that arise
under Iowa Code Chapters 404 and 427, as amended.
13.3 Reserved.
13.4 Repairs.
1) Developer shall at all times at Developer's own costs and expense, keep
the Property and the improvements thereon, and all sidewalks, curbs, and all
appurtenances to the Property, in good order, condition and repair, casualties and
ordinary wear and tear excepted. Developer shall keep the Property in such
condition as may be required by law and by the terms of the insurance policies
furnished pursuant to the Agreement, whether or not such repair shall be interior
or exterior, and whether or not such repair shall be of a structural nature.
2) Intentionally Deleted.
3) City shall have no obligation to Developer for any maintenance expense of
any kind including legal fees on the Property, including but not limited to, private
roads, parking areas, utility connections or buildings.
4) This Section 13.4 shall survive the termination of this Agreement.
SECTION 14. EVENTS OF DEFAULT. The following shall be "Events of Default"
under this Agreement and the term "Event of Default" shall mean, whenever it is used in
this Agreement, any one or more of the following events:
14.1 Failure by Developer to pay or cause to be paid, before thirty days after such
payments are due, all real property taxes assessed with respect to the applicable
Minimum Improvements and Property, subject to Developer's right to contest such real
property taxes in good faith in accordance with applicable law;
14.2 Failure by Developer to cause the construction of the applicable Minimum
Improvements (or applicable phases of Minimum Improvements) to be commenced and
completed pursuant to the terms, conditions and limitations of this Agreement, subject to
extension for delays caused by Force Majeure Events (as defined in Section 18.4 hereof);
14.3 Subject to Section 12.5, transfer of any interest by Developer of the Property or
21
481 1-67 68-1178.JQ
this Agreement in violation of this Agreement prior to the issuance of the final Certificate
of Completion for any applicable phase; or
14.4 Failure by Developer to substantially observe or perform any other material
covenant, condition, obligation or agreement on its part to be observed or performed
under this Agreement.
SECTION 15. REMEDIES ON DEFAULT BY DEVELOPER.
15.1 Whenever any Event of Default referred to in Section 14 occurs and is continuing,
City, as specified below, may take any one or more of the following actions after the giving
of written notice by City to Developer (and the holder of any mortgage encumbering any
interest in the Property of which City has been notified of in writing) of the Event of Default,
but only if the Event of Default has not been cured within sixty (60) days following such
written notice, or if the Event of Default cannot be cured within sixty (60) days and
Developer or if applicable, the mortgagee, does not provide assurances to City that the
Event of Default will be cured as soon as reasonably possible thereafter:
1) City may suspend its performance under this Agreement until it receives
assurances from Developer deemed adequate by City, that Developer will cure its
default and continue its performance under this Agreement;
2) Until the Closing, City may cancel and terminate this Agreement;
3) City may withhold the Certificate of Completion; and
4) In the event that subsequent to conveyance of the Property to Developer by
City and prior to receipt by Developer of the Certificate of Completion, but subject
to the terms of the mortgage(s) granted by Developer to secure a loan(s) obtained
by Developer from a commercial lender or other financial institution ("Developer's
Lender(s)") to fund the acquisition of the Property or construction of the applicable
Minimum Improvements and other Project related improvements (the "Mortgage
Financing") an Event of Default under Section 14.2 of this Agreement occurs and
is not cured within the times specified in Section 15, then City shall have the right
to re-enter and take possession of the Property and any portion of the applicable
Minimum Improvements thereon and to terminate (and revest in City pursuant to
the provisions of this Section 15 subject only to any rights in any holder of
mortgages on the Property in connection with the Mortgage Financing ("Mortgage
Holder") the estate conveyed by City to Developer. The intent of this provision,
together with other provisions of this Agreement, that the conveyance of the
Property to Developer shall be made upon the condition that, in the event of default
under Section 14.2, prior to the receipt of the Certificate of Completion, on the part
of Developer and failure on the part of Developer to cure such default within the
period and in the manner stated herein, City may declare a termination in favor of
City of the title and of all Developer' rights and interests in and to the Property
conveyed to Developer, and that such title and all rights and interests of Developer,
22
481I-676S-I178.I0
and any assigns or successors in interests of Developer, and any assigns or
successors in interest to and in Property, shall revert to City (subject to the
provisions of this Section 15 of this Agreement), but only if the events stated in
Section 14.2 of this Agreement, which occurs prior to the receipt of the Certificate
of Completion, have not been cured within the time period provided above, or, if
the events cannot be cured within such time periods, Developer does not provide
assurance to City, reasonably satisfactory to City, that the events will be cured as
soon as reasonably possible. Notwithstanding the foregoing, however, City agrees
to execute a Subordination Agreement in favor of Developer's Lender(s), in form
and substance acceptable to Developer's Lender(s) subordinating the City's rightsunderthisSection15.1(4), and any other option or purchase rights with respect to
the Property granted to the City under this Agreement, including the option granted
under Section 12.2, to the rights of the Developer's Lender(s) in connection with
the Mortgage Financing (the "Subordination Agreement"). At Closing, the City, at
the City's election, may execute and record a memorandum of the City's right of
revestment hereunder, provided such memorandum is in form and substance
reasonably acceptable to Developer and Developer's Lenders, and such
memorandum references the Subordination Agreement and City's subordinationofsuchrevestmentrighttotherightsofDeveloper's Lenders.
5) Upon the revesting in City of title to the Property as provided in Section
15.1(4) of this Agreement, City may resell the Property, and if it elects to do so, it
shall, pursuant to its responsibility under law, use its best efforts, subject to any
rights or interests in such property or resale granted to any Mortgage Holder, to
resell the Property or part thereof as soon and in such manner as City shall find
feasible and consistent with the objectives of such law and of the Urban Renewal
Plan to a qualified and responsible party or parties (as determined by City in itssolediscretion) who will assume the obligation of making or completing the
applicable Minimum improvements or such other improvements in their stead as
shall be satisfactory to City and in accordance with the uses specified for such
Property or part thereof in the Urban Renewal Plan. Subject to any rights orinterestsinsuchpropertyorproceedsgrantedtoDeveloper's Lender upon such
resale of Property the proceeds thereof shall be applied:
a) First, to pay and discharge the Mortgage Financing debt;
b) Second, to pay the principal and interest on mortgage(s) created on
the Property, or any portion thereof, or any improvements thereon, in
connection with the Mortgage Financing. If more than one mortgage on the
Property, or any portion thereof, or any improvements thereon, exists in
connection with the Mortgage Financing and insufficient proceeds of the
resale exist to pay the principal of, and interest on, each such mortgage in
full, then such proceeds of the resale as are available shall be used to pay
the principal of and interest on each such mortgage in their order of priority,
or by mutual agreement of all contending parties including Developer, or byoperationoflaw;
23
48]1-67681 I78.10
c) Third, to reimburse City for all allocable third party costs and
expenses incurred by City, in connection with the recapture, management
and resale of the Property or part thereof (but less any income derived by
City from the Property or part thereof in connection with such management);
any payments made or necessary to be made to discharge any
encumbrances or liens (except for mortgage(s) granted by Developer in
connection with the Mortgage Financing) existing on the Property or part
thereof at the time of revesting of title thereto in City or to discharge or
prevent from attaching or being made any subsequent encumbrances or
liens due to obligations, default or acts of Developer, its successors or
transferees (except with respect to such mortgage(s)), any expenditures
made or obligations incurred with respect to the making or completion of
applicable Minimum Improvements or any part by City on Property or part
thereof, and any amounts otherwise owing to City (including water and
sewer charges) by Developer and its successors or transferees; and
d) Fourth, to reimburse Developer up to the amount equal to (1) the
sum of the Property Purchase Price paid to City for the Property and the
cash actually invested by Developer in making any of the applicable
Minimum Improvements on Property, less (2)any sums previously received
by Developer with respect to the Property Purchase Price or sums
expended with respect to the Minimum Improvements.
6) Upon revesting in the City to the Property as provided in Section 15.1(4) of
this Agreement, if the City does not resell the Property within one year of the date
of such revesting, the City shall reimburse Developer up to the amount equal to (1)
the sum of the Property Purchase Price paid to City for the Property and the cash
actually invested by Developer in making any of the applicable Minimum
Improvements on Property and such other costs invested by Developer in
connection with the Project and the transactions contemplated hereunder, less (2)
any sums previously received by Developer with respect to the Property Purchase
Price.
Notwithstanding anything contained in this Agreement to the contrary, if the City
does not exercise its right hereunder to have the Property reverted in the City upon
written notice to Developer within thirty (30) days of Developer's Event of Default
under Section 14.2 of this Agreement, then such revesting right in favor of the City
shall automatically terminate and be deemed null and void and of no further force
and effect.
SECTION 16. REMEDIES ON DEFAULT BY CITY. if City defaults in the performance
of this Agreement or any of its representations and warranties contained herein or
otherwise fails to observe or perform any material covenant, condition, obligation or
agreement on its part to be observed or performed under this Agreement, Developer may
take any action, including legal, equitable or administrative action which may appear
necessary or desirable to collect any payments due under this Agreement, to recover
24
4811-6768. 1178.10
expenses of Developer, or to enforce performance and observance of any obligation,
agreement, or covenant of City under this Agreement. Developer may suspend its
performance under this Agreement until it receives assurances from City, deemed
adequate by Developer, that City will cure its default and continue its performance under
this Agreement. Additionally, City will reimburse Developer ail costs and expenses
incurred by Developer, including, but not limited to salaries of personnel and reasonable
attorney fees and expenses, incurred as a result of City's default(s) in the performance of
this Agreement or any of City's representations and warranties contained herein.
SECTION 17. REMEDIES GENERALLY.
17,1 A non-defaulting party may take any action, including legal, equitable or
administrative action, which may appear necessary or desirable to collect any payments
due under this Agreement or to enforce performance and observance of any obligation,
agreement, or covenant under this Agreement.
17.2 No remedy herein conferred upon or reserved to a party is intended to be exclusive
of any other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Agreement or
now or hereafter existing at law or in equity or by statute.
17,3 In the event any agreement contained in this Agreement should be breached by
any party and thereafter waived by any other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other concurrent,
previous or subsequent breach hereunder.
17.4 If any action at law or in equity, including an action for declaratory relief or
arbitration, is brought to enforce or interpret the provisions of this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees and costs of
litigation from the other party. Such fees and costs of litigation may be set by the court in
the trial of such action or by the arbitrator, as the case may be, or may be enforced in a
separate action brought for that purpose. Such fees and costs of litigation shall be in
addition to any other relief which may be awarded.
SECTION 18. GENERAL TERMS AND CONDITIONS.
18.1 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 been properly given
if and when delivered in person or three (3) business days after having been deposited in
any U.S. Postal Service and sent by registered or certified mail, postage prepaid,
addressed as follows:
If to Developer:Union at the Marina, LP
Attn: Kyle D. Bach, General Manager
409 Massachusetts Ave, Suite 300
Indianapolis, IN 46204
25
481 i-67sa-1»a.10
574) 876-2478
With a copy to:Union at the Marina, LP
Attn: Angela Mendenhall, General Counsel
409 Massachusetts Ave, Suite 300
Indianapolis, IN 46204
765) 717-4436
If to City: City Manager
City Hall
50 W. 13th Street
Dubuque, IA 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With a copy to:City Attorney
City Hall
50 W. 13th Street
Dubuque, IA 52001
Or at such other address with respect to either party as that party may, from time to time
designate in writing and forward to the other as provided in this Section 18.1.
18.2 Binding Effect; Assignment. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of the parties.
18.3 Termination Date. Unless terminated sooner under the terms of this Agreement,
this Agreement and the rights and obligations of the parties hereunder shall terminate on
June 1, 2042 (the "Termination Date"), unless otherwise extended as provided herein.
18.4 Force Maieure. A party shall be excused from its obligations under this Agreement
if and to the extent and during such time as the party is unable to perform its obligations
or is delayed in doing so due to events or conditions outside of the party's reasonable
control (each a "Force Majeure Event") including, without limitation in any way, as the
result of any acts of God, war, fire, or other casualty, riot, civil unrest, extreme weather
conditions, terrorism, strikes, and/or labor disputes or other matter beyond the control of
such party. Upon the occurrence of a Force Majeure Event, the party incurring such
Force Majeure Event will promptly give notice to the other party, and thereafter the parties
shall meet and confer in good faith in order to identify a cure of the condition affecting its
performance as expeditiously as possible.
18.5 Applicable Law: Severability. This Agreement shall be subject to, construed and
enforced in accordance with the laws of the state of Iowa. If any provision of this
Agreement is held invalid under applicable law, such invalidity shall not affect any other
provision of this Agreement that can be given effect without the invalid provision, and to
this end, the provisions hereof are severable.
26
4alI-6758-1178.10
18.6 Interpretation; Headings. Words and phrases herein shall be interpreted and
understood according to the context in which they are used. The headings of the articles,
sections, paragraphs and subdivisions of this Agreement are for convenience of reference
only, are not to be considered a part hereof and shall not limit or expand or otherwise
affect any of the terms hereof.
18.7 Entire Agreement; Counterparts; Remedies Cumulative. This Agreement,
including any Exhibits, all of which are incorporated by this reference, and the documents
executed and delivered pursuant hereto, constitute the entire agreement between the
parties, and may be amended only by a writing signed by each party. All agreements,
instruments and documents referred to in this Agreement are by this reference made a
part of this Agreement for all purposes. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of which together
shall constitute but one and the same instrument. The parties shall have, in addition to
the rights and remedies provided by this Agreement, all those allowed by all applicable
laws, all of which shall be in extension of and not in limitation of those provided hereunder.
18.8 Waivers. Prior to issuance of the Certificate of Completion, no waiver by either
party of any breach of this Agreement, or of any warranty or representation hereunder,
shall be deemed to be a waiver by the same party of any other breach of any kind or
nature (whether preceding or succeeding the breach in question, and whether or not of
the same or similar nature).
1) No acceptance by a party of payment or performance after any such breach
shall be deemed to be a waiver of any breach of this Agreement or of any
representation or warranty hereunder, whether or not the party knows of the
breach when it accepts such payment or performance.
2) No failure by a party to exercise any right it may have under this Agreement
or under law upon another party's default, and no delay in the exercise of that right,
shall prevent it from exercising the right whenever the other party continues to be
in default. No such failure or delay shall operate as a waiver of any default or as
a modification of the provisions of this Agreement.
18.9 Construction Against Drafter. it is acknowledged that each of the parties have had
substantial input individually, and by their attorneys, into the drafting of this agreement.
It is therefore agreed that the Agreement shall not be construed for or against either of
the parties based upon the identity of the drafter of the final Agreement.
18. 10 Execution by Facsimile. The parties agree that this Agreement may be transmitted
between them by facsimile machine or electronic transmission. The parties intend that
the faxed or electronic transmission signatures constitute original signatures and that a
faxed or electronically transmitted Agreement containing the signatures (original, faxed
or electronically transmitted) of all the parties is binding on the parties.
27
48l t-6768-1 176.1 a
18.11 Memorandum of Agreement. The parties acknowledge that this Agreement will not
be recorded of record. However, the City shall promptly record a Memorandum of
Purchase Agreement and Development Agreement in the form attached hereto as Exhibit
G in the office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs
for so recording.
18. 12 No Personal Liability. Notwithstanding anything herein, no member, shareholder,
director, partner, manager, officer or employee of Developer shall have any personal
liability under this Agreement, whether to City or otherwise, including, without limitation,
as a result of a default or breach by Developer, or for any amount which becomes owing
hereunder by Developer, or any obligation not performed by Developer.
18.13 Estoppel Certificates; Financing. City, at any time and from time to time, upon not
less than ten (10) days' notice from Developer, shall execute, acknowledge and deliver
to Developer (or any party upon Developer's request, including any lender or prospective
lender of Developer), a statement in writing: (a) certifying that this Agreement is
unmodified and in full force and effect (or if modified, stating the nature of such
modification and certifying that this Agreement, as so modified, is in full force and effect);
and (b) acknowledging that there are not, to City's knowledge (as applicable), any
uncured defaults on the part of Developer hereunder, or specifying such defaults if they
are claimed. Any such statement may be relied upon by any existing or prospective
lender, title insurer, purchaser, assignee, or other third party. City further agrees to
provide such other reasonable assurances as may be necessary or required by a lender
to facilitate the financing of any aspect of the Project, including the individual financing of
only a portion of the Project or Property.
Signatures appear on following page.]
28
461I-6768-[MUD
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in
its name and behalf by its Mayor and attested to by its City Clerk and Developer has
caused this Agreement to be duly executed on or as of the first above written.
CITY OF DUBUQUE, IOWA UNION AT THE MARINA, LP
an Iowa limited partnership
y By: Union at the Marina GP, LLC,
Brad M. Cavanag,, Mayor an Indiana limited liability company,
its general partner
By: ea,
By. Kyle D. Bach, General Manager
A rienne-N -reitfeIder; --it lerk-
rr-i 5\n L. G1 Rss',S'-kq C;-i Gc-s
City Seal)
29
481 l-67684178_M
STATE OF IOWA
SS
COUNTY ?DUBUQUE
On this Wl, day of ,t1Q,Q/t.. 20 before me the undersigned, a Notary
Public in and for the said County and State, personally appeared Brad M. Cavanagh and
itfclde to me personally known, who, being by me duly sworn, did say
that they are the Mayor and dly Cl rk, respectively, of the City of Dubuque, Iowa, a
municipal corporation executing the instrument to which this is attached; that the seal
affixed hereto is the seal of said municipal corporation; that said instrument was signed
and sealed on behalf of the City of Dubuque, Iowa, by authority of its City Council; and
that said Mayor and City Clerk acknowledged the execution of said instrument to be the
voluntary act and deed of said City, by it and by them voluntarily executed.
et tm CRENNA BIWMWELL '
91(
N ry ubliC
dddA
Commission Number 743373
iontcoT- -,O
STATE OF 1 htt 404
COUNTY OF Moor;avA
SS
On this It, day of S9 kw 20-' before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Kyle D. Bach, to me personally
known, who, being by me duly sworn, did say that he is the General Manager of Union at
the Marina GP, LLC, the General Partner of Union at the Marina, LP, the limited
partnership executing the instrument to which this is attached and that as said General
Manager, acknowledged the execution of said instrument to be the voluntary act and
deed of said limited partnership, by it and by them voluntarily executed.
N tary Public
r -
f, ADAM CALLOWAY
t`a.• ' .:,,9(? Nolary Public, State of Indiana
z SEAL:n= Marion County
q.*., * Commission Numbar 718824
ap,r,;Pyt. My Commission ExpiresebrFuary25,2027
30
4811-5768-1178.10
4811-6768-1178.10
31
LIST OF EXHIBITS
EXHIBIT A Reserved
EXHIBIT B-1 Site Plan
EXHIBIT B-2 The Property
EXHIBIT C City Attorney Certificate
EXHIBIT D City Certificate
EXHIBIT E Opinion of Counsel to Developer
EXHIBIT F Warranty Deed
EXHIBIT G Memorandum of Purchase Agreement and Development Agreement
EXHIBIT H Site Access Agreement
EXHIBIT I Option Agreement
EXHIBIT J Insurance Schedule
EXHIBIT K Proposed Easements
4811-6768-1178.10
32
EXHIBIT A
Reserved.
4811-6768-1178.10
33
EXHIBIT B-1
PROPOSED SITE PLAN
4811-6768-1178.10
34
4811-6768-1178.10
35
EXHIBIT B-2
THE PROPERTY
4811-6768-1178.10
36
4811-6768-1178.10
37
EXHIBIT C
CITY ATTORNEY’S CERTIFICATE
4811-6768-1178.10
38
Barry A. Lindahl, Esq.
Senior Counsel
Suite 330, Harbor View Place
300 Main Street
Dubuque, Iowa 52001-6944
(563) 583-4113 office
(563) 583-1040 fax
balesq@cityofdubuque.org
(DATE)
RE:
Dear :
I have acted as counsel for the City of Dubuque, Iowa, in connection with the execution
and delivery of a certain Purchase Agreement and Development Agreement
("Agreement") between _______________ (Developer) and the City of Dubuque, Iowa
(City) dated for reference purposes the ___ day of __________, 20__.
The City has duly obtained all necessary approvals and consents for its execution,
delivery and performance of the Agreement and has full power and authority to execute,
deliver and perform its obligations under th e Agreement, and to the best of my knowledge,
the representations of the City Manager in his letter dated the ___ day of _________,
20__, are correct.
Very sincerely,
Barry A. Lindahl, Esq.
Senior Counsel
BAL:tls
4811-6768-1178.10
39
EXHIBIT D
CITY’S CERTIFICATE
4811-6768-1178.10
40
City Manager’s Office
City Hall
50 West 13th Street
Dubuque, Iowa 52001-4864
(563) 589-4110 office
(563) 589-4149 fax
ctymgr@cityofdubuque.org
(DATE)
Dear ________________:
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity in
connection with the execution and delivery of a certain Purchase Agreement and
Development Agreement (Agreement) between _______________ (Developer) and the
City of Dubuque, Iowa (City) dated for reference purposes the ___ day of __________,
20__.
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse change in
the Property being conveyed or the possession, use or enjoyment thereof by
Developer, including, but not limited to, any action in condemnation, eminent
domain or public taking;
(2) No ordinance or hearing is pending or, to the best of City’s knowledge,
contemplated before any local governmental body which either contemplates or
authorizes any public improvements or special tax levies, the cost of which may
be assessed against the Property. To the best of City's knowledge, there are no
plans or efforts by any government agency to widen, modify, or re-align any street
or highway providing access to the Property and there are no pending or intended
public improvements or special assessments affecting the Property which will
result in any charge or lien be levied or assessed against the Property.
(3) All leases, contracts, licenses, and permits between City and third parties
in connection with the maintenance, use, and operation of the Property have been
provided to Developer and City has provided true and correct copies of all such
documents to Developer;
(4). City has good and marketable fee simple title interest to the Property;
(5) There are no notices, orders, suits, judgments or other proceedings relating
to fire, building, zoning, air pollution, health violations or other matters that have
4811-6768-1178.10
41
not been corrected. City has notified Developer in writing of any past notices,
orders, suits, judgments or other proceedings relating to fire, building, zoning, air
pollution or health violations as they relate to the Property of which it has actual
notice;
(6) The Property will as of the date of the Closing Date be free and clear of all
liens, security interests, and encumbrances and payment has been made for all
labor or materials that have been furnished to the Property or will be made prior to
the Closing Date so that no lien for labor performed or materials furnished can b e
asserted against the Property;
(7) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of th e Agreement, and that it has full power
and authority to execute, deliver and perform its obligations under th e Agreement.
City’s attorney shall issue a legal opinion to Developer at the time of each Closing
confirming the representation contained herein, in form and substance attached
hereto as Exhibit C;
(8) All City utilities necessary for the development and use of the Property
adjoin the Property, and Developer shall have the right to tie into and use said
utilities upon payment to City of the required connection and tap fees and all other
applicable fees; provided, however, that the cost of any utility relocation shall be
at the sole cost of Developer;
(9) The Property is free and clear of any occupants, and no party has a lease
to or other occupancy or contract right in the Property which shall in anyway be
binding upon the Property or Developer;
(10) City shall exercise its best efforts to cooperate with Developer in the
development process;
(11) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion;
(12) With respect to the period during which City has owned or occupied the
Property, and to the best of City’s knowledge after reasonable investigation with
respect to the time before City owned or occupied the Property, no person or entity
has caused or permitted materials to be stored, deposited, treated, recycled, or
disposed of on, under or at the Property other than as described in the
environmental reports that City has provided to Developer, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under Environmental Laws;
(13) There are no fees or other charges payable by Developer for the
construction of any City utilities serving the Property other than the fees for
connecting to and installing meters and tap fees with regard to such utilities and
4811-6768-1178.10
42
all city utilities necessary for the development and use of the Property as a mixed-
use facility adjoin the Property and Developer shall have the right to connect to
said utilities, subject to City’s connection fees;
(14) The Property is properly zoned for the various uses described in th e
Agreement.
(15) City makes no warranties or representations as to the condition of the
Property other than those which are expressly stated in th e Agreement;
(16) City has completed all required notice to or prior approval, consent or
permission of any federal, state or municipal or local governmental agency, body,
board or official to the sale of the Property; and consummation of the Closing by
City shall be deemed a representation and warrant y that it has obtained the same;
(17) City represents and agrees that, use of the Property as a mixed-use building
as described in the Agreement is in full compliance with the Urban Renewal Plan ;
(18) The Property has a permanent right of ingress and egress to a public
roadway for the use and enjoyment of the Property from Bell Street;
(19) The execution, delivery and performance of th e Agreement and the
consummation of the transactions contemplated by th e Agreement do not and shall
not result in any material breach of any terms or conditions of any mortgage, bond,
indenture, agreement, contract, license, or other instrument or obligation to which
City is a party or by which either the City or the Property being conveyed are bound,
nor shall the execution, delivery and performance of th e Agreement violate any
statute, regulation, judgment, writ, injunction or decree of any court threatened or
entered in a proceeding or action in which City may be bound or to which either
City or the Property being conveyed may be subject ; and
(20) The representations and warranties of the City contained in the Agreement
shall be correct in all respects on and as of the Closing Date with the same force
and effect as if such representations and warranties had been made on and as of
the Closing Date, and such representations and warranties shall survive the
Closing.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
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EXHIBIT E
OPINION OF COUNSEL TO DEVELOPER
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Mayor and City Councilmembers
City Hall
13th and Central Avenue
Dubuque IA 52001
Re: Purchase Agreement and Development Agreement Between the City of Dubuque,
Iowa and _______________________
Dear Mayor and City Councilmembers:
We have acted as counsel for __________________ (Developer) in connection
with the execution and delivery of a certain Purchase Agreement and Development
Agreement (Agreement) between Developer and the City of Dubuque, Iowa (City) dated
for reference purposes the ____ day of __________, 20__.
We have examined the original certified copy, or copies otherwise identified to our
satisfaction as being true copies, of the Agreement and such other documents and
records as we have deemed relevant and necessary as a basis for the opinions set forth
herein.
Based on the pertinent law, the foregoing examination and such other inquiries as
we have deemed appropriate, and subject to such qualifications and limitations as
hereinafter provided, we are of the opinion that:
1. Developer is a limited partnership organized and existing under the laws of
the State of Iowa and has full power and authority to execute, deliver and perform in full
the Agreement. The Agreement has been duly and validly authorized, executed and
delivered by Developer and, assuming due authorization, execution and delivery by City,
is in full force and effect and is valid and legally binding instrument of Developer
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors’
rights generally.
2. The execution, delivery and performance by Developer of the Agreement
and the consummation of the transactions thereunder , will not result in violation of (i) any
provision of, or in default under, the certificate of limited partnership or limited partnership
agreement of Developer, or (ii) (A) to our knowledge, any indenture, mortgage, deed of
trust, indebtedness, agreement, judgment, decree, restriction or order, or (B) any statute,
rule, or regulation, to which Developer is a party or by which Developer’s property is
bound or subject and which is set forth on Schedule __ hereto.
3. We are not representing Developer in connection with any action, suit or
proceeding pending or overtly threatened against Developer before any court, arbitrator
or governmental agency that questions the validity of the Agreement. With regard to this
opinion, we have checked the records of this firm to ascertain that we are not representing
Developer with respect to the foregoing. We have made no further investigation.
4811-6768-1178.10
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[Customary exceptions, exclusions, limitations and qualifications to be inserted.]
This opinion is rendered for the sole benefit of the City of Dubuque and no other party
may rely on this opinion.
This opinion is rendered and valid as of the date of this letter and we have no duty to
update this opinion for any matters which come to our knowledge after the date of this
letter.
Very truly yours,
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EXHIBIT F
WARRANTY DEED
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Prepared by: Barry A. Lindahl 300 Main Street, Suite 330, Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street, Suite 330, Dubuque IA 52001 563 583-4113
Tax Statement to:
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, Iowa, a
municipal corporation of the State of Iowa (“Grantor”), in consideration of the Grantee
named below undertaking the obligations of the Developer under the Agreement (as
hereinafter defined) described below and the sum of ______________________ and
no/100 Dollars ($_________) in hand paid, and other good and valuable consideration,
and pursuant to the authority of Chapter 403, Code of Iowa, does hereby GRANT, SELL
AND CONVEY unto [Union at the Marina, LP, an Iowa limited partnership] (“Grantee”),
the following described parcel(s) situated in the County of Dubuque, State of Iowa, to wit
(the “Property”):
As shown in Exhibit B-2 of the Agreement.
This Deed is exempt from transfer tax pursuant to Iowa Code section 428A.2(6).
This Deed is given pursuant to the authority of Resolution No. ________of the City
Council of the City of Dubuque adopted the ____ day of __________, 20__, the terms
and conditions thereof, if any, having been fulfilled.
This Deed is being delivered in fulfillment of Grantor’s obligations under and is
subject to all the terms, provisions, covenants, conditions and restrictions contained in
that certain Purchase Agreement and Development Agreement executed by Grantor and
Grantee herein, dated the ____ day of __________, 20__ (the “Agreement”), a
memorandum of which was recorded on the ____ day of __________, 20__, in the
records of the Recorder of Dubuque County, Iowa, Instrument Number ___________ -
____.
None of the provisions of the Agreement shall be deemed merged in, affected or
impaired by this Deed.
Grantor hereby covenants to warrant and defend the said premises against the
4811-6768-1178.10
48
lawful claims of all persons whomsoever claiming by, through and under it.
Dated this ____ of __________, 20__ at Dubuque, Iowa.
CITY OF DUBUQUE IOWA
By: _____________________________
Brad M. Cavanagh, Mayor
Attest:
By: _________________________
Adrienne N. Breitfelder, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this ____ day of _______________ , 20__, before me a Notary Public in and
for said County, personally appeared Brad M. Cavanagh and Adrienne N. Breitfelder to
me personally known, who being duly sworn, did say that they are the Mayor and City
Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the for egoing
instrument is the seal of said Municipal Corporation, and that said instrument was signed
and sealed on behalf of said Municipal Corporation by authority and resolution of its City
Council and said Mayor and City Clerk acknowledged said instrument to be the free act
and deed of said Municipal Corporation by it voluntarily executed.
______________________________________
Notary Public in and for Dubuque County, Iowa
4811-6768-1178.10
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EXHIBIT G
MEMORANDUM OF AGREEMENT
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50
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF AGREEMENT
A Purchase Agreement and Development Agreement (the "Agreement") by and
among the City of Dubuque, Iowa, an Iowa municipal corporation, of Dubuque, Iowa, and
Union at the Marina, LP, an Iowa limited partnership, was made regarding the following
described premises:
As shown in Exhibit B-2 of the Agreement
The Agreement is dated for reference purposes the ____ day of _________, 20__,
and contains covenants, conditions, and restrictions concerning the sale and use of said
premises.
This Memorandum of Agreement is recorded for the purpose of constructive
notice. In the event of any conflict between the provisions of this Memorandum and the
Agreement itself, executed by the parties, the terms and provisions of the Agreement
shall prevail. A complete counterpart of the Agreement, together with any amendments
thereto, is in the possession of the City of Dubuque and may be examined at its offices
as above provided.
Dated this ____ day of __________, 20__.
CITY OF DUBUQUE, IOWA
By: __________________________
Barry A. Lindahl, Esq., Senior Counsel
4811-6768-1178.10
51
STATE OF IOWA
: ss:
DUBUQUE COUNTY
On this ____day of _________, 20__, before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Barry A. Lindahl, to me personally
known, who being by me duly sworn did say that he is Senior Counsel of the City of
Dubuque, a Municipal Corporation, created and existing under the laws of the State of
Iowa, and that the seal affixed to said instrument is the seal of said Municipal Corporation
and that said instrument was signed and sealed on behalf of said Municipal co rporation
by authority and resolution of its City Council and said Mayor and City Clerk
acknowledged said instrument to be the free act and deed of said Municipal Corporation
by it voluntarily executed.
__________________________________________
Notary Public, State of Iowa
4811-6768-1178.10
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EXHIBIT H
SITE ACCESS AGREEMENT
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SITE ACCESS AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
UNION AT THE MARINA, LP
This Agreement (the “Agreement”) is made and entered into this ___ day of
_______, 2023, by and between the City of Dubuque, Iowa, an Iowa municipal
corporation (“City”), and Union at the Marina, LP, an Iowa limited partnership
(“Developer”).
WHEREAS, City is the owner of the real estate shown on Exhibit B-1 (the “Site”),
attached hereto, which is being considered as a Development Project by City and
Developer; and
WHEREAS, Developer desires access to the Site prior or as part of a Purchase
Agreement and Development Agreement for purposes of surveying, environmental
studies, soils reports, engineering studies and other site analysis; and
WHEREAS, the City desires to allow Developer access to the Site for such
purposes prior to the closing, subject to the conditions set forth herein.
NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS
FOLLOWS:
SECTION 1. ACCESS TO SITE. Subject to the conditions herein, the City hereby
grants to Developer and its consultant(s) full and continuing access to the Site and all
parts thereof, upon reasonable notice to City, and at Developer's sole expense, for
surveying, environmental studies, soils reports, engineering studies and other site
analysis. Prior to access to the Site, Developer shall obtain approval from the City of the
following (which such approval shall not be unreasonably withheld, conditioned or
delayed): consultant(s), scope of work to be conducted on the Site, and schedule for the
work to be done on the Site.
SECTION 2. RESTORATION OF SITE. Developer agrees to timely pay and discharge
all claims of any kind by its consultants, contractors, subcontractors and suppliers with
respect to any work performed at the Site, including but not limited to claims for labor or
material furnished in connection therewith, and to defend, indemnify and hold harmless
City from and against any and all such claims. In the event that the Purchase Agreement
and Development Agreement is not approved by City and Developer by __________,
20__, or, if the Purchase Agreement and Development Agreement is approved but the
Site acquisition set forth in the Purchase Agreement and Development Agreement does
not close for any reason by __________, 20__, Developer shall, at Developer's sole
expense by not later than __________, 20__, restore the Site to substantially the same
condition as existed on the date of this Agreement , and upon such restoration to City’s
reasonable satisfaction, this Agreement shall then terminate.
4811-6768-1178.10
54
SECTION 3. CONDITION OF THE SITE. City makes no warranty or representation as
to the condition of the Site unless expressly stated in the Purchase Agreement and
Development Agreement. Developer acknowledges that any work performed by
Developer and/or its consultant(s) at the Site is at their sole risk. Developer shall insure
that all work at the Site is done in accordance with all applicable laws and permits (if
required) and in a good worker-like manner. Developer and its consultants shall daily
leave the Site in a condition no less safe than before the work was conducted. Developer
and its consultant(s) are solely responsible for obtaining any and all permits required for
the work to be conducted at the Site. No hazardous chemicals and wastes may be stored
or disposed of on the Site in violation of any laws, and all such materials must be used
only as allowed by law. Developer shall be responsible for identifying any and all utilities
serving the Site prior to conducting invasive work on the Site.
SECTION 4. SHARING OF INFORMATION. Developer shall provide City with copies
of any and all reports and documents resulting from the work conducted at the Site upon
the request of the City. Developer and/or its consultant(s) shall notify the City immediately
upon discovery of any hazardous or unsafe condition at the Site.
SECTION 5. INDEMNIFICATION. Developer shall defend, indemnify and hold
harmless City, its officers, agents and employees (the "City Indemnified Parties") from
and against any claim and cost of any kind, including without limitation, reasonable
attorneys’ fees and consulting fees, arising out any work at the Site by or on behalf of
Developer and its consultants, . This obligation shall survive the termination of this
Agreement. Notwithstanding the foregoing, Developer shall not be obligated to indemnify
or to hold harmless City Indemnified Parties from any damages, claims or liabilities
caused by (a) the negligence or willful misconduct of the City Indemnified Parties or their
respective agents, employees, contractors, officers, consultants or other representatives,
and/or (b) the discovery of or existence of any pre -existing condition at the Site (including,
without limitation, any pre-existing environmental contamination).
SECTION 6. INSURANCE. Developer shall provide insurance as set forth in the
attached Insurance Schedule.
CITY OF DUBUQUE, IOWA UNION AT THE MARINA, LP,
an Iowa limited partnership
By: Union at the Marina GP, LLC,
an Indiana limited liability
company, its general partner
By By
Michael Van Milligen Kyle D. Bach
City Manager General Manager
4811-6768-1178.10
55
EXHIBIT I
OPTION AGREEMENT
For valuable consideration, the receipt, sufficiency and adequacy of which is hereby
acknowledged and subject to the terms and conditions set forth herein, Union at the
Marina, LP (hereafter "Grantor"), hereby grants to the City of Dubuque, Iowa (hereafter
"Grantee"), an exclusive option to purchase the real estate legally described as follows:
See legal description attached hereto as Exhibit A and made a part hereof
(hereafter the Option Property).
Grantor hereby grants to Grantee an exclusive option to purchase the Option Property as
provided in subsection 12.2(6) of the Purchase Agreement and Development Agreement
wherein the Grantor is the City and the Grantee is the Developer, dated ________, 20 23,
incorporated herein by this reference (the "Agreement"), subject to the terms, limitations,
and restrictions in the Agreement, and the superior rights of Developer's mortgage
lenders, as set forth in the Agreement, and the Subordination Agreement recorded on the
____ day of __________, 20__, in the records of the Recorder of Dubuque County, Iowa,
Instrument Number ___________ - ____, which provides for the subordination of
Grantee's option to purchase hereunder to the superior rights of Grantor's mortgage
lenders with respect to the Property.
The total option purchase price (“Option Purchase Price”) shall be the greater of (i) the
sum of the Property Purchase Price (the “Total Property Purchase Price”) in the
Agreement or (ii) the Fair Market Value of the Option Property, or (iii) an amount
determined by increasing the Total Property Purchase Price by an amount equal to the
percentage increase in the CPI (determined as of the date Grantee exercises this option).
“Fair Market Value” of the Property shall be determined by an independent appraisa l of
the Property made by an appraiser jointly selected by Grantor and Grantee and, if Grantor
and Grantee are unable to agree on an independent appraiser, then each party shall
select an appraiser and those two appraisers shall select a third appraiser wh ich such
third appraiser shall determine the fair market value of the Property. “CPI” shall mean the
Consumer Price Index for All Urban Consumers, U.S. City Average, for all items, 1982 -
84=100, published by the United States Department of Labor on its web site at
http://www.bls.gov/cpi.
Upon Grantee’s payment to Grantor of the Option Purchase Price, Grantor shall convey
the Option Property to Grantee by Warranty Deed in the same form as delivered to
Developer upon purchase of the Option Property from Grantee, subject to only the
Permitted Exceptions. As used in this Option Agreement, the term “Permitted Exceptions”
collectively shall mean (i) all of the matters of record as of the date Grantee conveyed title
to Grantor under the Agreement; (ii) any other matters approved in writing by Grantee at
any time during Grantor’s ownership of the Property; (iii) any and all easements,
covenants, conditions, restrictions and other agreements entered into by Grantor from
4811-6768-1178.10
56
time to time in connection with Grantor’s ownership and development of the Minimum
Improvements (as defined in the Agreement), but excluding Monetary Liens. “Monetary
Liens” shall mean deeds of trust, mortgages, judgment liens, mechanics’ liens,
materialmen’s liens, and delinquent tax liens and/or assessments encumbering the
Option Property. Grantor shall pay, release or cause to be paid and released, any
Monetary Liens encumbering the Option Property at or prior to the conveyance of the
Option Property to Grantee.
Grantee shall exercise this option, if at all, by giving written notice of such intent to
exercise this option, as provided in the Agreement, which such notice shall be given within
thirty (30) days after the date upon which Developer delivers written notice to City of
Developer’s election to terminate the Agreement under Section 12.2(6) of the Agreement.
If Grantee fails to give written notice of its intent to exercise this option within the time
period provided in the prior sentence, Grantee’s option shall automatically terminate and
be of no further force and effect. Upon termination of the option und er this paragraph,
either party may record a written termination of the option in the appropriate land records
of the county in which the Option Property is located.
If Grantor timely delivers written notice of its intent to exercise this option, Grantor, at its
expense, shall promptly continue and pay for the abstract of title to the Option Property
continued through a date not more than thirty (30) days prior to the closing date stated in
the written notice of the exercise of the option made by Grantee (which such closing date
shall not be more than sixty (60) days after the date of Grantee’s written notice of the
exercise of the option). Such abstract shall show marketable title in the Grantor in
conformity with this Option Agreement, subject to the Permitted Exceptions and otherwise
in conformity with Iowa law and title standards of the Iowa State Bar Association . The
abstract shall become the property of the Grantee when the Option Purchase Price is
paid in full. Grantor shall pay costs of additional abstracting or title work due to acts or
omissions of the Grantor.
This Option Agreement shall apply to and bind personal representatives, successors in
interest and permitted assigns of the parties. This Option Agreement shall be governed
by and construed in accordance with the laws of the State of Iowa .
Dated this _____ day of __________, 20 23.
CITY OF DUBUQUE, IOWA UNION AT THE MARINA, LP,
an Iowa limited partnership
By: ____________________________ By: Union at the Marina GP, LLC,
Brad M. Cavanagh, Mayor an Indiana limited liability company,
its general partner
4811-6768-1178.10
57
By: By:
Adrienne N. Breitfelder, City Clerk Kyle D. Bach, General Manager
(City Seal)
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this _____ day of _________________ 20__, before me the undersigned, a Notary
Public in and for the said County and State, personally appeared Brad M. 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 executing the instrument to which this is attached; that the seal
affixed hereto is the seal of said municipal corporation; that said instrument was si gned
and sealed on behalf of the City of Dubuque, Iowa, by authority of its City Council; and
that said Mayor and City Clerk acknowledged the execution of said instrument to be the
voluntary act and deed of said City, by it and by them voluntarily executed.
______________________________
Notary Public
STATE OF _____________ )
) SS
COUNTY OF ___________ )
On this _____ day of _________________ 20__, before me the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Kyle D. Bach, to me personally
known, who, being by me duly sworn, did say that he is General Manager of Union at the
Marina, GP, LLC, the General Partner of Union at the Marina, LP, the limited partnership
executing the instrument to which this is attached and that as said General Manager,
acknowledged the execution of said instrument to be the voluntary act and deed of said
limited partnership, by it and by them voluntarily executed.
______________________________
Notary Public
4811-6768-1178.10
58
EXHIBIT J
INSURANCE SCHEDULE A
4811-6768-1178.10
-i-
4811-6768-1178.10
4811-6768-1178.10
4811-6768-1178.10
EXHIBIT K
PROPOSED EASEMENTS
4811-6768-1178.10
4875-6852-6207, v. 1
Doc ID: 011157330002 Type: GEN
Kind: AGREEMENT
Recorded: 10/25/2023 at 03:10:36 PM
Fee Amt: $12.00 Paqe 1 of 2
Dubuque County Iowa
Karol Kennedy Recorder
File2023-00010125
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Purchase Agreement and Development Agreement (the "Agreement") by and
between the City of Dubuque, Iowa, an Iowa municipal corporation, of Dubuque, Iowa,
and Union at the Marina, LP, an Iowa limited partnership, was made regarding the
following described premises:
Lot 1-2 of Block 2 in River Front Subdivision No. 3, in the City of Dubuque, Iowa,
according to the plat thereof recorded as Doc ID: 011154500008, File 2023-00009853, in
the public records of the Recorder's Office of Dubuque County, Iowa.
The Agreement is dated for reference purposes the day of October 16, 2023, and
contains covenants, conditions, and restrictions concerning the sale and use of said
premises.
This Memorandum of Agreement is recorded for the purpose of constructive
notice. In the event of any conflict between the provisions of this Memorandum and the
Agreement itself, executed by the parties, the terms and provisions of the Agreement
shall prevail. A complete counterpart of the Agreement, together with any amendments
thereto, is in the possession of the City of Dubuque and may be examined at its office as
above provided.
Dated this Z day of 6"$C , 2023.
CITY OF DWWQUE, IOWA
By:
arry A. Lindahl, Esq., Senior Counsel
kefl-✓n k D,6'gae Ci. *-i6re'� (`* ']to
STATE OF IOWA
: ss:
DUBUQUE COUNTY
On this o)J+Lday of Ojdoer , 2023, before me, a Notary Public in and for the
State of Iowa, in and for said county, personally appeared Barry A. Lindahl, to me
personally known, who being by me duly sworn did say that he is Senior Counsel of the
City of Dubuque, a Municipal Corporation, created and existing under the laws of the
State of Iowa and that said instrument was signed on behalf of said Municipal corporation
by authority and resolution of its City Council and said Senior Counsel acknowledged said
instrument to be the free act and deed of said Municipal Corporation by it voluntarily
executed.
c a JONI LYN MEDINGER
_ Commission Number 832198
No Public, State of low • �nw* • my Co rr�missiouExptres
ti1-
Z
STATE OF IOWA SS:
DUBUQUE COUNTY
CERTIFICATE OF PUBLICATION
I, Kathy Goetzinger, a Billing Clerk for Woodward
Communications, Inc., an Iowa corporation, publisher
of the Telegraph Herald, a 'newspaper of general
circulation published in the City of Dubuque, County
of Dubuque and State of Iowa; hereby certify that the
attached notice was published in said newspaper on the
following dates:
09/14/2023
and for which the charge is 225.20
Subscribed to before me, a Notary Public i nd for
Dubuque County, Iowa,
this 14th day of September, 2023
Notary Public in and for Dubuque County, Iowa.
P,,L JANET K. PAPE
Commission Number 199659
My Commission Expires
12/11/2025
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