Approving the Development Agreement with 400 Ice Harbor, LLC, and Hodge Company_HearingCity of Dubuque
City Council Meeting
Public Hearings # 01.
Copyrighted
December 18, 2023
ITEM TITLE: Resolution Approving the Development Agreement by and among the
City of Dubuque, Iowa, 400 Ice Harbor, LLC, and Hodge Company
Providing for the Sale of City -owned Real Estate to 400 Ice Harbor, LLC
and the Issuance of Urban Renewal Tax Increment Revenue Grant
Obligations Pursuant to the Development Agreement
SUMMARY: Proof of publication on notice of public hearing to consider City Council
adopt the attached resolution approving the Development Agreement by
and among the City of Dubuque, Iowa, 400 Ice Harbor, LLC, and Hodge
Company Providing for the Sale of City -owned Real Estate to 400 Ice
Harbor, LLC and the City of Dubuque providing for the sale of City -
owned real estate in Greater Downtown Urban Renewal District to 400
Ice Harbor, LLC and the issuance of Urban Renewal Tax Increment
Revenue Grant Obligations, and City Manager recommending approval.
RESOLUTION Approving a Development Agreement by and among the
City of Dubuque, 400 Ice Harbor, LLC, and Hodge Company Including
the disposal of an interest in real property owned by the City of Dubuque
by sale pursuant to the Development Agreement
SUGGESTED Suggested Disposition: Receive and File; Adopt Resolution(s)
DISPOSITION:
ATTACHMENTS:
Description
MVM Memo
Staff Memo
Development Agreement
Resolution
Proof of Publication
Type
City Manager Memo
Staff Memo
Supporting Documentation
Resolutions
Supporting Documentation
THE CITY OF
Dubuque
DUB TEE1.
All -America City
Masterpiece on the Mississippi
� pp
zoo�•*o 13
zoi720zoi9
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Resolution Approving the Development Agreement by and among the City
of Dubuque, Iowa, 400 Ice Harbor, LLC, and Hodge Company Providing
for the Sale of City -owned Real Estate to 400 Ice Harbor, LLC and the
Issuance of Urban Renewal Tax Increment Revenue Grant Obligations
Pursuant to the Development Agreement
DATE: December 12, 2023
Economic Development Director Jill Connors is recommending City Council adopt the
attached resolution approving the Development Agreement by and among the City of
Dubuque, Iowa, 400 Ice Harbor, LLC, and Hodge Company Providing for the Sale of City -
owned Real Estate to 400 Ice Harbor, LLC and the City of Dubuque providing for the sale
of City -owned real estate in Greater Downtown Urban Renewal District to 400 Ice Harbor,
LLC and the issuance of Urban Renewal Tax Increment Revenue Grant Obligations.
The key elements of the Development Agreement include the following:
1. The Developer must purchase an office facility located at 400 Ice Harbor
Drive.
2. Hodge Company must maintain its existing 24 FTE and create 10 new full
time equivalent jobs at the new facility by October 1, 2026. The 34 full time
equivalent jobs must be maintained through the term of the Development
Agreement.
3. Hodge Company will receive 10 years of years of tax increment financing
incentives in the form of semi-annual rebates. These incentives are
calculated in relation to the number of jobs committed in the Development
Agreement. Tax increment financing incentives are estimated to not exceed
$296,598.
4. 400 Ice Harbor, LLC has a two-year option to purchase approximately 0.68
acres of City owned parking property for $571,400.
5. If 400 Ice Harbor, LLC purchases City owned parking property, City agrees
to make a loan to 400 Ice Harbor, LLC in an amount of $571,400 repayable
over 10 years at zero percent interest.
6. 400 Ice Harbor, LLC must obtain a revocable permit to construct two
sidewalks on City owned property adjacent to the facility.
7. City of Dubuque will amend the Greater Downtown Urban Renewal District
Plan to accommodate the issuance of tax increment financing incentives.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
v
Mic ael C. Van Milligen
MCVM:sv
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Jill Connors, Economic Development Director
Dubuque Economic Development
Department
THE CITY OF ' 50 West 131h Street
All•AmerieaNy Dubuque, Iowa 52001-4864
DUB &http://www.cityofdubuque.org
E
1111.
Office (563) 589-4393
TTY (563) 690-6678
f '
2007*2012.2013
Masterpiece on the Mississippi 2017*2019
TO: Michael C. Van Milligen, City Manager
FROM: Jill M. Connors, Economic Development Director
SUBJECT: Resolution Approving the Development Agreement by and among the City
of Dubuque, Iowa, 400 Ice Harbor, LLC, and Hodge Company Providing
for the Sale of City -owned Real Estate to 400 Ice Harbor, LLC and the
Issuance of Urban Renewal Tax Increment Revenue Grant Obligations
Pursuant to the Development Agreement
DATE: December 11, 2023
INTRODUCTION
This memorandum is a request for the City Council to adopt the attached resolution
approving the Development Agreement by and among the City of Dubuque, Iowa, 400
Ice Harbor, LLC, and Hodge Company Providing for the Sale of City -owned Real Estate
to 400 Ice Harbor, LLC and the City of Dubuque providing for the sale of City -owned
real estate in Greater Downtown Urban Renewal District to 400 Ice Harbor, LLC and the
issuance of Urban Renewal Tax Increment Revenue Grant Obligations.
:T_T41 Xel:;Wfl L1I ar�
Hodge Company is a family owned and operated company in its fourth generation of
family ownership and leadership. Founded in 1958, Hodge offers services to the
industrial sector, spanning business operations in material handling, third -party logistics
& warehousing, and industrial real estate development.
Currently located at 7465 Chavenelle, Hodge currently employs 24 full-time equivalent
employees at the corporate level. Hodge is looking to expand its enterprise offices
which support its growing operations in warehousing and logistics, material handling,
and real estate. Increased operations require an immediate need to expand corporate
departments including accounting, IT, marketings, safety, engineering/analytics, and
human resources. 400 Ice Harbor, LLC is a development organization created by
Hodge Company to act as Developer for the project.
DISCUSSION
400 Ice Harbor, LLC intends to purchase 400 Ice Harbor Drive in the Port of Dubuque.
400 Ice Harbor, LLC will renovate the building to meet its corporate expansion needs.
The project would also include a two-year purchase option for the City -owned parking
property adjacent to the building for a price of $571,400. This two-year purchase option
represents a sale of City -owned property. The parking lot is currently public, although it
serves the owners of the building at 400 Ice Harbor Drive during normal business hours.
If 400 Ice Harbor, LLC purchases the City -owned parking property, the City will loan to
Ice Harbor Drive, $571,400 repayable over 10 years at zero percent interest. 400 Ice
Harbor, LLC will also be required to obtain a revocable license to construct two
sidewalks on City -owned property adjacent to the facility. The project is anticipated to
begin in the spring of 2024.
In addition to the physical improvements made by 400 Ice Harbor, LLC, Hodge
Company is proposing to create ten (10) new jobs with this expansion. All 34 corporate
positions will be housed at 400 Ice Harbor Drive.
The key elements of the Development Agreement include the following:
1. The Developer must purchase an office facility located at 400 Ice Harbor
Drive.
2. Hodge Company must maintain its existing 24 FTE and create 10 new full
time equivalent jobs at the new facility by October 1, 2026. The 34 full time
equivalent jobs must be maintained through the term of the Development
Agreement.
3. Hodge Company will receive 10 years of years of tax increment financing
incentives in the form of semi-annual rebates. These incentives are
calculated in relation to the number of jobs committed in the Development
Agreement. Tax increment financing incentives are estimated to not
exceed $296,598.
4. 400 Ice Harbor, LLC has a two-year option to purchase approximately
0.68 acres of City owned parking property for $571,400.
5. If 400 Ice Harbor, LLC purchases City owned parking property, City
agrees to make a loan to 400 Ice Harbor, LLC in an amount of $571,400
repayable over 10 years at zero percent interest.
6. 400 Ice Harbor, LLC must obtain a revocable permit to construct two
sidewalks on City owned property adjacent to the facility.
2
7. City of Dubuque will amend the Greater Downtown Urban Renewal District
Plan to accommodate the issuance of tax increment financing incentives.
Iowa 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 municipality may 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.
This notice was published on November 10, 2023. No proposals were received by City
staff as of December 11th at 10:00 a.m.
RECOMMENDATION/ ACTION STEP
I recommend the City Council adopt the attached resolution approving the Development
Agreement by and among the City of Dubuque, Iowa, 400 Ice Harbor, LLC, and Hodge
Company Providing for the Sale of City -owned Real Estate to 400 Ice Harbor, LLC and
the City of Dubuque providing for the sale of City -owned real estate in Greater
Downtown Urban Renewal District to 400 Ice Harbor, LLC and the issuance of Urban
Renewal Tax Increment Revenue Grant Obligations.
3
DEVELOPMENT AGREEMENT
BY AND AMONG
THE CITY OF DUBUQUE, IOWA,
400 ICE HARBOR, LLC AND
HODGE COMPANY
n
This Agreement, dated for reference purposes the 13 day of
Dfcce rn �)cr , 2023, by and among the City of Dubuque, Iowa, a municipality (City),
established pursuant to the Iowa Code and acting under authorization of Iowa Code
Chapter 403, as amended (Urban Renewal Act), 400 Ice Harbor, LLC, an Iowa limited
liability company with its principal place of business at Dubuque, Iowa (Developer), and
Hodge Company, an Iowa corporation, or any of its affiliated entities, with its principal
place of business in Dubuque, Iowa (Employer).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City has
undertaken an Urban Renewal Project as described herein to advance the community's
ongoing economic development efforts; and
WHEREAS, the Project is located within the Greater Downtown Urban Renewal
District (the District) which has been so designated by City Council Resolution 123-67 as
a slum and blighted area (the Project Area) defined by Iowa Code Chapter403 (the Urban
Renewal Law); and
WHEREAS, as of the date of this Agreement there has been prepared and
approved by City an Urban Renewal Plan for the Project Area consisting of the Urban
Renewal Plan for the Greater Downtown Urban Renewal District, adopted by the City
Council of City on May 18, 1967, and as subsequently amended through and including
the date hereof (the Urban Renewal Plan) attached hereto as Exhibit A; and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of this
Agreement, is on file with the County Auditor and the City of Dubuque City Clerk; and
WHEREAS, Developer and Employer have determined that they require a new
office facility to maintain and expand their operations and employment in the Project Area
(the Facility); and
WHEREAS, Developer is purchasing the following described real estate:
1
Ba111022022
Lot Two (2) of Lot (2) of Adam's Company's 4th Addition in the City of Dubuque,
Iowa, according to the recorded plat thereof, subject to easements and restrictions
of record
(the Property), with all easements, tenements, hereditaments, and appurtenances
belonging thereto so that Developer may develop the Property, located in the Project
Area, for the construction, use, and occupancy of the Facility in accordance with the uses
specified in the Urban Renewal Plan and Developer agrees to comply with any
amendments to the Urban Renewal Plan, in accordance with this Agreement; and
WHEREAS, Developer has requested that City sell to Developer or its Affiliate the
parking lot adjacent to the Property (the Parking Property) shown on Exhibit G; and
WHEREAS, Developer and Employer will occupy the building (the Building) on the
Property and employ employees as provided herein; and
WHEREAS, Developer will make a capital investment in building improvements,
equipment, furniture and fixtures in the Facility, all of the foregoing referred to herein as
the Project; and
WHEREAS, Employer desires to join in this Agreement and assume the rights and
responsibilities provided herein; and
WHEREAS, Developer will undertake the purchase and modification of the
Building; and
WHEREAS, Employer will lease the Building from Developer (the Lease) and
employ Employees as provided herein; and
WHEREAS, Developer or Employer will make a capital investment in Building
improvements, equipment, furniture and fixtures in the Facility, all of the foregoing
referred to herein as the Project; and
WHEREAS, City believes that the Project and the development of the Property
pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital
and best interests of City and in accord with the public purposes and provisions of the
applicable federal, state and local laws and the requirements under which the Project has
been undertaken and is being assisted.
2
NOW, THEREFORE, in consideration of the premises and the mutual obligations
of the parties hereto, each of them does hereby covenant and agree with the other as
follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES
1.1 Representations and Warranties of City. In order to induce Developer and
Employer to enter into this Agreement, City hereby represents and warrants to Developer
and Employer that to the best of City's knowledge:
(1) 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.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit B.
(2) City shall exercise its best efforts to cooperate with Developer in the
development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) 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
charter of City, any evidence of indebtedness, agreement or instrument of
whatever nature to which City is now a party or by which it or its property is bound,
or constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City 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 financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) No ordinance or hearing is now before any local governmental body that
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
3
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.
(7) The representations and warranties contained in this article 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.
1.2 Representations and Warranties of Developer and Employer. Developer and
Employer each make the following individual representations and warranties with respect
to their own company (without making any warranties with respect to the other):
(1) Developer and Employer are duly organized and validly existing or
authorized under the laws of the State of Iowa and have all requisite power and
authority to own and operate their properties, to carry on their respective business
as now conducted and as presently proposed to be conducted, and to enter into
and perform their obligations under the Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer and Employer, and assuming due authorization, execution and delivery
by City, is in full force and effect and is a valid and legally binding instrument of
Developer and Employer 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 and
Employer's counsel shall issue legal opinions to the City, at time of closing,
confirming the representations contained herein, in the form attached hereto as
Exhibit C and Exhibit D.
(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
articles of incorporation or the bylaws of Developer or Employer or any contractual
restriction, evidence of indebtedness, agreement or instrument of whatever nature
to which Developer or Employer is now a party or by which it or its property is
bound, or constitute a default under any of the foregoing.
12
(4) There are no actions, suits or proceedings pending or threatened against or
affecting Developer or Employer 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 Employer or which affects the validity of the
Agreement or Developer's or Employer's ability to perform its obligations under
this Agreement.
(5) Developer and Employer will perform their 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 good faith 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.
(7) Developer has commitments for permanent financing for the Development
Project and all of their respective obligations under this Agreement in an amount
sufficient, together with equity commitments, to successfully complete the
requirements of this Agreement and shall provide evidence thereof to City prior to
the Closing Date.
1.3 Conditions to Closing. The closing of the transaction (the Closing) contemplated
by this Agreement and all the obligations of Developer and Employer under this
Agreement are subject to fulfillment, on or before the Closing Date, of the following
conditions:
(1) The representations and warranties made by City in Section 1.1 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 E.
(2) Developer having obtained any and all necessary governmental approvals,
including without limitations approval of zoning, subdivision, or platting which might
be necessary or desirable in connection with the development of the Development
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 expense in
connection therewith. In connection therewith, City agrees (a) to review all of
5
Developer's plans and specifications for the Project and to either reject or approve
the same in a prompt and timely fashion; (b) to issue a written notification to
Developer, 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 and Developer agrees to comply with any amendments to the Urban
Renewal Plan, 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; (c) to identify in writing
within ten (10) working days of 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 (d) to cooperate fully with Developer to streamline and
facilitate the obtaining of such permits, approvals and consents.
(3) Developer, Employer, and City shall be in material compliance with all the
terms and provisions of this Agreement.
(4) Developer shall have furnished City with evidence, in a form satisfactory to
City (such as a letter of commitment from a bank or other lending institution), that
Developer has firm financial commitments in an amount sufficient, together with
equity commitments, to complete the Minimum Improvements (as defined herein)
in conformance with the 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.
(5) Employer shall have furnished City with evidence in a form as required by
Section 5.2 and satisfactory to City of Employer's fulltime equivalent employees
(FTE) at 7465 Chavenelle Road in the City of Dubuque, Iowa, as of January 1,
2023.
(6) Receipt of an opinion of counsel to Developer in the form attached hereto
as Exhibit C.
(7) Receipt of an opinion of counsel to Employer in the form attached hereto as
Exhibit D.
(8) Developer and Employer shall have the right to terminate this Agreement at
any time prior to the consummation of the closing on the Closing Date if Developer
or Employer determines in its sole discretion that conditions necessary for the
successful completion of the Project contemplated herein have not been satisfied
to the full satisfaction of such party in such party's sole and unfettered discretion.
Upon the giving of notice of termination by such terminating party to the other
parties to this Agreement, this Agreement shall be deemed null and void.
(9) Developer and Employer shall have provided City with a copy of the
executed Lease.
1.4 Closing. The closing shall take place on the Closing Date which shall be the 1st
day of January, 2024, or such other date as the parties shall agree in writing but in no
event shall the Closing Date be later than the 31 st day of January, 2024. Consummation
of the closing shall be deemed an agreement of the parties to this Agreement that the
conditions of closing shall have been satisfied or waived.
1.5 City's Obligations at Closing. At or prior to Closing Date, City shall deliver to
Developer such other documents as may be required by this Agreement, all in a form
satisfactory to Developer.
SECTION 2. PARKING PROPERTY OPTION.
2.1 If Developer exercises the Parking Property Option, Exhibit K, City will provide to
Developer a loan on the terms set out in Exhibit L (the Loan) and subject to a Promissory
Note and Mortgage in the form of Exhibits I and J.
SECTION 3. DEVELOPMENT ACTIVITIES
3.1 Required Minimum Improvements. City acknowledges that the Facility Developer
is renovating on the Property is an office building/facility. Developer agrees to renovate
the Building and Employer agrees to add certain internal systems thereto, including all
interior improvements to the building (the Minimum Improvements); all as more
particularly depicted and described on the plans and specifications to be delivered to and
approved by City as contemplated in this Agreement. Developer hereby agrees the
Facility will be not less than twenty-three thousand (23,000) square feet of floor space
and the total project cost including the necessary site work, and equipment is estimated
at approximately Four Million Seven Hundred Fifty -Five Thousand Dollars ($4,755,000).
7
3.2 Plans for Construction of Minimum Improvements. Developer shall provide City
with an approved Site Plan, at City's sole discretion. The parties agree that this
Development Agreement shall be amended to include such Site Plan. Plans and
specifications with respect to the development of the Property and the construction of the
Minimum Improvements thereon (the Construction Plans) shall be in conformity with the
Urban Renewal Plan, this Agreement, and all applicable state and local laws and
regulations. Developer shall submit to City, for approval by City, plans, drawings,
specifications, and related documents with respect to the improvements to be constructed
by Developer on the Property. All work with respect to the Minimum Improvements shall
be in substantial conformity with the Construction Plans approved by City.
3.3 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced on or before March 1, 2024
and shall be substantially completed by December 31, 2024. The time frame 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, shut down due to COVID-19, 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.
3.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, the City Manager 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 and
termination of the agreements and covenants in this Agreement and in the Deed with
respect to the obligations of Developer to construct the Minimum Improvements. The
Certificate of Completion, in the form attached hereto as Exhibit F, shall waive all rights
of re -vestment of title to the Property as provided in Section 7.3(1), and the Certificate of
Completion shall so state.
3.5 Construction of Sidewalks. Prior to commencement of the Minimum
Improvements, Developer hereby agrees to execute a revocable permit in the attached
form for the construction of sidewalks on adjacent property as shown on Exhibit G.
SECTION 4. CITY PARTICIPATION.
n.
4.1 Economic Development Grants.
(1) Employer Economic Development Grants
(a) For and in consideration of Developer's and Employer'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, subject to Developer and Employer being and remaining in
compliance with the terms of this Agreement, to make twenty (20)
consecutive semi-annual payments (such payments being referred to
collectively as the Employer Economic Development Grants) to Employer,
as follows:
November 1, 2026
May 1, 2027
November 1, 2027
May 1, 2028
November 1, 2028
May 1, 2029
November 1, 2029
May 1, 2030
November 1, 2030
May 1, 2031
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, 2036
pursuant to Iowa Code Section 403.9 of the Urban Renewal Law, in
amounts equal to the actual amount of tax increment revenues collected by
City under Iowa Code Section 403.19 (without regard to any averaging that
may otherwise be utilized under Iowa Code Section 403.19 and excluding
any interest that may accrue thereon prior to payment to Employer) during
the preceding six (6) month period in respect of the Property and Minimum
Improvements constructed by Developer (the Developer Tax Increments).
City, Developer, and Employer agree that for purposes of this Section
4.1(1), the assessed value of the Property as of January 1, 2023 is
$2,473,700. Employer recognizes and agrees that the Employer Economic
Development Grants shall be paid solely and only from the incremental
taxes collected by City in respect to the Property and Minimum
Improvements, which does not include property taxes collected for the
payment of bonds and interest of each taxing district, and taxes for the
regular and voter -approved physical plant and equipment levy, instructional
support levy, and any other portion required to be excluded by Iowa law,
9
and thus such incremental taxes will not include all amounts paid by
Developer as regular property taxes.
(b) To fund the Employer Economic Development Grants, City shall
certify to the County prior to December 1 of each year, commencing
December 1, 2025, 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 Employer on November 1
and May 1 of that fiscal year. (Example: If City so certifies by December 1,
2025, the Employer Economic Development Grants in respect thereof
would be paid to Employer on November 1, 2026, and May 1, 2027.)
(c) The Employer Economic Development Grants shall be payable from
and secured solely and only by the Developer Tax Increments paid to City
that, upon receipt, shall be deposited and held in a special account created
for such purpose and designated as the 400 Ice Harbor TIF Account of City.
City hereby covenants and agrees to maintain its TIF ordinance in force
during the term and to apply the incremental taxes collected in respect of
the Property and Minimum Improvements and allocated to the 400 Ice
Harbor TIF Account to pay the Employer Economic Development Grants,
as and to the extent set forth in Section 4.1(1) hereof. The Employer
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 Employer as the Employer Economic Development Grants in any one
year and under no circumstances shall City in any manner be liable to
Employer so long as City timely applies the Developer Tax Increments
actually collected and held in the 400 Ice Harbor TIF Account (regardless
of the amounts thereof) to the payment of the Employer Economic
Development Grants to Employer or Developer as and to the extent
described in this Section.
(2) City shall be free to use any and all tax increment revenues collected in
respect of other properties within the Project Area, or any available Developer Tax
Increments resulting from the termination of the annual Economic Development
Grants under this Section 3.1 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.
10
(3) All of City's obligations under this Agreement, including but not limited to
City's obligation to pay the Economic Development Grants to Employer or
Developer, shall be subject to City having completed all hearings and other
procedures required to amend the Urban Renewal Plan to describe the Urban
Renewal Project being undertaken in accordance with this Agreement by no later
than December 31, 2024.
4.2 Parking Property Loan.
(1) City agrees to loan to Developer (the Loan) for the purchase of the Parking
Property on the terms and conditions set forth herein Five Hundred Seventy -One
Thousand Four Hundred Dollars ($571,400) which shall consist of the Loan
Program funds, if and only if such funds are available.
(2) The term of the Loan shall be ten (10) years. Interest on the Loan shall be
zero percent (0.0%) per annum. Monthly principal payments, amortized over a
ten-year period, shall become due and payable beginning the first day of the first
month after the Closing of the Parking Property and on the first day of each month
thereafter until the entire balance of the Loan is paid. The entire balance of the
Loan shall become due and payable not later than the 120t" month after the Closing
of the Parking Property. At the time of the initial disbursement of Loan funds to
Developer, Developer shall execute the Promissory Note in the form attached
hereto as Exhibit I payable to the order of the City in the principal amount of Five
Hundred Seventy -One Thousand Four Hundred Dollars ($571,400) and the
Mortgage, attached as Exhibit J.
(3) The value of the Parking Property shall at no time be less than the unpaid
balance of the Mortgage.
(4) Loan funds shall be disbursed to Developer by City at the Closing of the
Parking Property.
4.3 Other than the Economic Development Grants and Parking Property Loan required
by this Section 4, City shall have no obligation to provide any other funds to Developer.
4.4 City shall confirm in a written and recorded instrument that the parking rights of the
owner of the Property on the Parking Property, as set forth in Section 12 of the previous
Development Agreement between City, Port of Dubuque Adams Development, LLC and
Durrant Group dated on or about January 23, 2006, shall continue in perpetuity. However,
11
in addition, all provisions related to parking in Section 12 of such Development Agreement
shall terminate upon purchase of the Parking Property by Developer.
SECTION 5. NON- APPROPRIATION / LIMITED SOURCE OF FUNDING.
5.1 Non -Appropriation.
(1) Notwithstanding anything in this Agreement to the contrary, the obligation
of City to pay any installment of the Economic Development Grants from the
pledged tax increment revenues 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 within 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 of City as provided in this Section. City may exercise its right of
non -appropriation as to the amount of the installments to be paid during any fiscal
year during the term of this Agreement without causing a termination of this
Agreement. The right of non -appropriation shall be exercised only by resolution
affirmatively declaring City's election to non -appropriate funds otherwise required
to be paid in the next fiscal year under this Agreement.
(2) In the event the City Council of City elects to not appropriate sufficient funds
in the budget for any future fiscal year for the payment in full of the installments on
the Economic Development Grants due and payable in that future fiscal year, then
City shall have no further obligation to Employer or Developer for the payment of
any installments due in that future fiscal year which cannot be paid with the funds
then appropriated for that purpose.
5.2 The right of non -appropriation reserved to City in this Section is intended by the
parties, and shall be construed at all times, so as to ensure that City's obligation to pay
future installments on the Economic Development Grants shall not constitute a legal
indebtedness of City within the meaning of any applicable constitutional or statutory debt
limitation prior to the adoption of a budget which appropriates funds for the payment of
that installment or amount. In the event that any of the provisions of this Agreement are
determined by a court of competent jurisdiction to create, or result in the creation of, such
a legal indebtedness of City, the enforcement of the said provision shall be suspended,
and the Agreement shall at all times be construed and applied in such a manner as will
preserve the foregoing intent of the parties, and no event of default shall be deemed to
have occurred as a result thereof. If any provision of this Agreement or the application
thereof to any circumstance is so suspended, the suspension shall not affect other
12
provisions of this Agreement which can be given effect without the suspended provision,
and to this end the provisions of this Agreement are severable.
SECTION 6. COVENANTS OF EMPLOYER.
6.1 Job Creation and Maintenance. During the term of this Agreement, Employer
shall comply with the following employment -related covenants for the Property:
(1) Employer represents that the number of fulltime equivalent (FTE)
employees employed by Employer in corporate services to the affiliated companies
of Employer at 7465 Chavenelle Road as of January 1, 2023 is Twenty -Four (24).
Employer shall create and maintain 10 additional FTE employees employed by
Employer at the Facility by October 1, 2026 and during the remaining Term of this
Agreement for a total of Thirty -Four (34) FTE employees in Dubuque, Iowa. FTE
employees shall be calculated by adding fulltime and part-time employees together
using 2080 hours per year as a FTE employee.
(2) For the FTE positions that Employer fails to create and maintain for any
year during the term of this Agreement, the semi-annual Employer Economic
Development Grants for such year under Section 4.1(1) shall be reduced by the
percentage that the number of positions Employer fails to create or maintain as
required by this Section 6.1 bears to the total number of positions required to be
created and maintained (34 FTEs) by this Section 6.1. (For example, if the
certification shows 26 FTE on October 1, 2026 the semi-annual Economic
Development Grants would be 75% (26/34) of the allowable Developer Tax
Increments received by City which would be paid by City to Developer. The
percentage reduction of the semi-annual Economic Grants as calculated under this
Section shall be the City's sole and exclusive remedy for the failure of the
Developer to meet the job creation requirements in this Agreement.
(3) Employer's job creation and maintenance obligation under Section 6.1(1)
terminates upon completion of the final certification on October 1, 2035.
6.2 Certification. To assist City in monitoring the performance of Employer hereunder,
as of October 1, 2026, and again as of October 1 of each year thereafter during the term
of this Agreement, a duly authorized officer of Employer shall certify to City in a form
acceptable to City (a) the number of FTE positions employed by Employer at the Facility,
and (b) to the effect that such officer has re-examined the terms and provisions of this
Agreement and that at the date of such certificate, and during the preceding twelve (12)
months, Employer is not or was not in default in the fulfillment of any of the terms and
13
conditions of this Agreement and that no Event of Default (or event which, with the lapse
of time or the giving of notice, or both, would become an Event of Default) is occurring or
has occurred as of the date of such certificate or during such period, or if the signer is
aware of any such default, event or Event of Default, said officer shall disclose in such
statement the nature thereof, its period of existence and what action, if any, has been
taken or is proposed to be taken with respect thereto. Such certificate shall be provided
not later than October 15, 2026, and by October 15 of each year thereafter. Employer's
certification obligations under this Section 6.2 terminate following the final certification on
October 1, 2035 (due by October 15, 2035).
6.3 Books and Records. During the term of this Agreement, Developer and Employer
shall keep at all times 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 and Employer in accordance with generally accepted accounting
principles consistently applied throughout the period involved, and Developer and
Employer shall provide reasonable protection against loss or damage to such books of
record and account.
6.4 Real Property Taxes. From and after the Closing Date, Developer shall pay or
cause to be paid, when due and before delinquency, all real property taxes and
assessments payable with respect to all and any parts of the Property unless Developer's
obligations have been assumed by another person pursuant to the provisions of this
Agreement.
6.5 No Other Exemptions. During the term of 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.
6.6 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):
All risk builder's risk insurance, written on a Completed Value Form in an amount
equal to one hundred percent (100%) of the replacement value when construction
14
is completed Minimum Improvements, naming City as an additional insured and
loss payee. Coverage shall include the "special perils" form.
(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) all risk property insurance
against loss and/or damage to the Minimum Improvements under an insurance
policy written in an amount not less than the full insurable replacement value of
Minimum Improvements naming City as loss payee. Coverage shall include the
"special perils" form.
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.
(3) Developer agrees to notify City immediately in the case of damage
exceeding One Hundred Thousand Dollars ($100,000.00) in amount to, or
destruction of, the Minimum Improvements or any portion thereof resulting from
fire or other casualty. The net proceeds of any such insurance (the 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).
Developer shall complete the repair, reconstruction and restoration of Minimum
Improvements whether or not the Net Proceeds of insurance received by
Developer for such Purposes are sufficient.
6.7 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, Minimum
Improvements in good repair and working order, ordinary wear and tear excepted, and
from time to time shall make all necessary repairs, replacements, renewals and additions.
Nothing in this Agreement, however, shall be deemed to alter any agreements between
15
Developer or any other party including, without limitation, any agreements between the
parties regarding the care and maintenance of the Property.
6.8 Non -Discrimination. In carrying out the project, Developer shall not discriminate
against any employee or applicant for employment because of age, color, familial status,
gender identity, marital status, mental/physical disability, national origin, race,
religion/creed, sex, or sexual orientation.
6.9 Conflict of Interest. Developer and Employer agree 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 this project at any time
during or after such person's tenure. In connection with this obligation, Developer and
Employer 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.
6.10 Non -Transferability. During the Term of this Agreement, this Agreement may not
be assigned by Developer or Employer nor may any portion of the Property be sold or
otherwise transferred by Developer without the prior written consent of City, which
consent shall not be unreasonably withheld. City has no obligation to consent to any
assignment or sale.
6.11 Restrictions on Use. Developer agrees for itself, and 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 consistent with its current zoning is in full compliance with the Urban
Renewal Plan and Developer agrees to comply with any amendments to the Urban
Renewal Plan,) (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); and
16
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, gender identity, national origin, age 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).
6.12 Release and Indemnification Covenants. Developer and Employer agree to the
following conditions of release and indemnification, except that each company only
agrees to indemnify the Indemnified Parties (defined below), with respect to the
negligence, misrepresentation, or misconduct of their own respective acts. Developer and
Employer do not individually agree to any indemnification from conduct of another party.
(1) Developer and Employer release City and the governing body members,
officers, agents, servants and employees thereof (hereinafter, for purposes of this
Section, the Indemnified Parties) from and covenants and agrees that the
Indemnified Parties shall not be liable for, and agrees to indemnify, defend and
hold harmless the Indemnified Parties against any loss or damage to property or
any injury to or death of any person occurring at or about or resulting from any
defect in the Minimum Improvements.
(2) Except for any gross negligence, willful misrepresentation or any willful or
wanton misconduct or any unlawful act of the Indemnified Parties, Developer and
Employer agree to protect and defend the Indemnified Parties, now or forever, and
further agrees to hold the Indemnified Parties harmless, from any claim, demand,
suit, action or other proceedings whatsoever by any person or entity whatsoever
arising or purportedly arising from (1) any violation of any agreement or condition
of this Agreement (except with respect to any suit, action, demand or other
proceeding brought by Developer or Employer against City based on an alleged
breach of any representation, warranty or covenant of City under this Agreement
and/or to enforce its rights under this Agreement); or (2) the acquisition,
construction, installation, ownership, and operation of the Minimum Improvements
or (3) the condition of the Property and any hazardous substance or environmental
contamination located in or on the Property, caused and occurring after Developer
takes possession of the Property.
(3) The Indemnified Parties shall not be liable to Developer or Employer for any
damage or injury to the persons or property of Developer or its officers, agents,
servants or employees or any other person who may be on, in or about the
17
Minimum Improvements due to any act of negligence of any person, other than
any act of negligence on the part of any such Indemnified Party or its officers,
agents, servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of City
contained herein shall be deemed to be the covenants, stipulations, promises,
agreements and obligations of City, and not of any governing body member,
officer, agent, servant or employee of City in their individual capacity thereof.
(5) The provisions of this Section shall survive the termination of this
Agreement.
6.13 Compliance with Laws. Developer and Employer shall comply with all federal,
state, and local laws, rules and regulations relating to its businesses, other than laws,
rules and regulations for which the failure to comply with or the sanctions and penalties
resulting therefrom, would not have a material adverse effect on the business, property,
operations, financial or otherwise, of Developer or Employer.
SECTION 7. EVENTS OF DEFAULT AND REMEDIES.
7.1 Events of Default Defined. 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:
(1) Failure by Developer to pay or cause to be paid, before delinquency, all real
property taxes assessed with respect to the Minimum Improvements and the
Property.
(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms, conditions
and limitations of this Agreement.
(3) Transfer of any interest by Developer in any portion of the Property or the
Minimum Improvements in violation of the provisions of this Agreement.
(4) Failure by Developer or Employer to substantially observe or perform any
other material covenant, condition, obligation or agreement on its part to be
observed or performed under this Agreement.
In
7.2 Remedies on Default by Developer. Whenever any Event of Default referred to in
Section 6.1 of this Agreement 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 notice, or if the Event of
Default cannot be cured within sixty (60) days and the Developer 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 the Developer, deemed adequate by City, that the Developer will
cure its default and continue its performance under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) City may withhold the Certificate of Completion; or
(4) City 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.
7.3 No Remedy Exclusive. No remedy herein conferred upon or reserved to City 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. No
delay or omission to exercise any right or power accruing upon any default shall impair
any such right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed expedient.
7.4 No Implied Waiver. 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.
7.5 Agreement to Pay Attorneys' Fees and Expenses. 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
19
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 that may be awarded.
7.6 Remedies on Default by City. If City defaults in the performance of this Agreement,
Developer or Employer may take any action, including legal, equitable or administrative
action that may appear necessary or desirable to collect any payments due under this
Agreement, to recover expenses of Developer or Employer, or to enforce performance
and observance of any obligation, agreement, or covenant of City under this Agreement.
Developer or Employer may suspend performance under this Agreement until it receives
assurances from City, deemed adequate by Developer or Employer, that City will cure its
default and continue its performance under this Agreement.
SECTION 8. GENERAL TERMS AND PROVISIONS.
8.1 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:
(1) If to Developer:
400 Ice Harbor, LLC
Attn: Michael Fullan
400 Ice Harbor Drive
Dubuque, IA 52002
Phone: (563) 583-9781
(2) If to Employer:
Hodge Company
Attn: Zach Hodge
400 Ice Harbor Drive
Dubuque, IA 52001
Phone: (563) 583-9781
With copy to:
Drake Law Firm, P.C.
20
D. Flint Drake
300 Main Street, Suite 323
Dubuque, IA 52001
(3) If to City:
City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to:
City Attorney
City Hall
50 W. 13th Street
Dubuque, Iowa 52001
or at such other address with respect to any party as that party may, from time to time
designate in writing and forward to the other as provided in this Section.
8.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of City and Developer and Employer and their respective successors and assigns.
8.3 Force Majeure. A party shall be excused from its obligations under this Agreement
if and to the extent and during such time as the party is prevented, impeded, or hindered,
unable to perform its obligations or is delayed in doing so due to events or conditions
outside of the party's reasonable control and after the party has taken reasonable steps
to avoid or mitigate such event or its consequences (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, pandemic, epidemic, quarantines, government stay-at-home orders, municipal
and other government orders, 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 identifying the Force Majeure Event, explaining
how it impacts performance and the estimated duration, identifying the relief requested,
agreeing to limit damages to the other party and to immediately resume performance
upon termination of the Force Majeure Event, and agreeing to supplement the notice as
more information becomes available, and thereafter the parties shall meet and confer in
good faith in order to identify a cure of the condition affecting its performance as
21
expeditiously as possible. No obligation to make a payment required by this Agreement
is excused by a Force Majeure Event. The nonperforming party shall not be entitled to
any damages or additional payments of any kind for any such delay.
8.4 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on June 1, 2036 (the Termination Date),
8.5 Execution By Facsimile. The parties agree that this Agreement may be transmitted
among them by email or facsimile machine. The parties intend that the emailed or faxed
signatures constitute original signatures and that an emailed or faxed Agreement
containing the signatures (original, emailed or faxed) of all the parties is binding on the
parties.
8.6 Memorandum of Development Agreement. City shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit H in the
office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for so
recording.
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 and
Employer has caused this Agreement to be duly executed.
CITY OF DUBUQUE, IOWA
at
w . • ��
;;# .
Attest:
By: kZ
Adrienne N. Breitfelder, City Clerk
400 ICE HARBOR, LLC
(DEVELOPER)
By:
Michael Fullan, Organizer
22
HODGE COMPANY
(EMPLOYER)
By:
D Yy� (/
Zach Hodge, President
23
LIST OF EXHIBITS
Exhibit A
Urban Renewal Plan
Exhibit B
Opinion of Counsel to City
Exhibit C
Opinion of Counsel to Developer
Exhibit D
Opinion of Counsel to Employer
Exhibit E
City Certificate
Exhibit F
Certificate of Completion
Exhibit G
Revocable Permit
Exhibit H
Memorandum of Development Agreement
Exhibit I
Promissory Note
Exhibit J
Mortgage
Exhibit K
Parking Property Option
Exhibit L
Loan Agreement
Exhibit M
Special Warranty Deed
24
EXHIBIT A
J1:117_101N4LIIATi%1111111Jw_1L11
(on file in City Clerk's office, 50 W. 13' Street, Dubuque, IA 52001)
25
EXHIBIT B
A7:j1ki1[670[6]09161110614mtexelkw1
26
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(a�cityofdubuque. org
RE:
Dear
THE CITY OF
DUB E
Masterpiece on the Mississippi
(DATE)
Dubuque
AFA�io GEC
II
2007.2012.2013
2017*2019
I have acted as counsel for the City of Dubuque, Iowa, in connection with the execution
and delivery of a certain Development Agreement by and among 400 Ice Harbor, LLC
(Developer), Hodge Company (Employer) 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 this Agreement and has full power and authority to execute,
deliver and perform its obligations under this Agreement, and to the best of my
knowledge, the representations of the City Manager in his letter dated the day of
, 20 , are correct.
10014ky,
Very sincerely,
Barry A. Lindahl, Esq.
Senior Counsel
27
EXHIBIT C
101:21►IIs] ki Eel al]:kv/40]:24:4mole1l1z69:11
Mayor and City Councilmembers
City Hall
1311 and Central Avenue
Dubuque IA 52001
Re: Development Agreement By and Among the City of Dubuque, Iowa, 400 Ice Harbor,
LLC and Hodge Company
Dear Mayor and City Councilmembers:
We have acted as counsel for 400 Ice Harbor, LLC, (Developer) in connection with
the execution and delivery of a certain Development Agreement (Development
Agreement) between Developer and the City of Dubuque, Iowa (City) dated for reference
purposes the day of 12022.
We have examined the original certified copy, or copies otherwise identified to our
satisfaction as being true copies, of the Development 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, we are of the opinion that-
1 . Developer is an Iowa limited liability company with its principal place of
business at Dubuque, Iowa and has full power and authority to execute, deliver and
perform in full Development Agreement. The Development 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 Development
Agreement and the carrying out of the terms thereof, will not result in violation of any
provision of, or in default under, the articles of incorporation and bylaws of Developer,
any indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree,
order, statute, rule, regulation or restriction to which Developer is a party or by which
Developer's property is bound or subject.
3. To the best of our knowledge, there are no actions, suits or proceedings
29
pending or 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 (present or
prospective), financial position or results of operations of Developer or which in any
manner raises any questions affecting the validity of the Agreement or the Developer's
ability to perform Developer's obligations thereunder.
We have examined such documents and certificates of public officials and officers
of the Developer as we have deemed necessary for the purposes of this opinion. As to
the existence of facts which are material to this opinion, we have relied upon certificates
of public officials, statements by officers and resolutions of the Members of the Developer.
In rendering our opinion, we have assumed (i) the legal capacity of all natural persons
and the capacity and corporate power of all parties to the documents examined by us
other than the Developer, (ii) the due authorization, execution and delivery of each
document examined by us, by all parties to such documents other than the Developer,
(iii) the genuineness of all signatures other than the signatures of the representatives of
the Developer, (iv) the authenticity of all documents submitted to us as originals; (v) the
conformity to original documents of all documents submitted to us as copies; and (vi) the
City has no knowledge, direct or through their counsel, which would render any of the
representations set forth herein inaccurate or incorrect. We have not made any
independent investigation to verify any assumptions made herein, and have not
undertaken any factual investigation into the business, properties, agreements or litigation
of the Developer for the purpose of rendering the opinions expressed herein. There may
exist matters of a factual nature which could have a bearing on our opinions expressed
herein, with respect to which we have not been consulted or are otherwise unaware.
Where used herein, the language "to the best of our knowledge" or language of similar
nature means to our actual knowledge with no duty to inquire further of any person or
document. Said language is intended to be limited to the actual knowledge of the
attorneys within our firm who have been directly involved in representing the Developer,
or whom we reasonably believe have knowledge of the affairs of the Developer. We have
assumed that all representations and warranties made by any party to the Development
Agreement are true and correct. We have examined the law, the resolutions of the
members of Developer, the Development Agreement, and such company proceedings of
the Developer and such other documents, certificates, instruments and matters as we
deem necessary to render this opinion.
The foregoing opinions are subject to:
(a) Equitable principles of general applicability (including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, public policy,
equitable subordination and the possible unavailability of specific performance or
30
injunctive relief), regardless of whether considered in a proceeding in equity or at law or
whether codified by statute;
(b) The unenforceability of provisions purporting to waive rights, claims,
demands, liabilities or defenses to obligations, known or unknown, suspected or
unsuspected, where such waivers are contrary to any applicable law or against public
policy;
(c) The unenforceability, under certain circumstances, of provisions of
agreements to the effect that rights or remedies are not exclusive, that every right or
remedy is cumulative and may be exercised in addition to or with any other right or
remedy, or that the election of some particular remedy or remedies does not preclude
recourse to one or another remedy;
(d) The unenforceability under certain circumstances, of provisions which
purport to govern forum selection or consent to jurisdiction; and
(e) The potential to vary the terms of the Development Agreement on the basis
of parol evidence.
The opinions set forth herein are given as of the date hereof. We disclaim any
obligation to notify you or any other person after the date of this letter if any change in
fact and/or law should change our opinion with respect to any matters set forth herein.
This opinion is for your benefit only and may not be quoted in whole or in part or otherwise
referred to in any documents, or delivered to or filed with any person or entity, or relied
upon by any other person or entity, without our prior written consent.
Very truly yours,
31
EXHIBIT D
C9]:21LlIMLl110104MI:m9Y14: meloillZ6141
32
Mayor and City Councilmembers
City Hall
1311 and Central Avenue
Dubuque IA 52001
Re: Development Agreement By and Among the City of Dubuque, Iowa, 400 Ice Harbor,
LLC (Developer), and Hodge Company (Employer)
Dear Mayor and City Councilmembers:
We have acted as counsel for Hodge Company, (Employer) in connection with the
execution and delivery of a certain Development Agreement (Development Agreement)
among 400 Ice Harbor, LLC (Developer), and Hodge Company (Employer) 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 Development 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, we are of the opinion that:
1. Employer is a corporation organized and existing under the laws of the State
of Iowa and has full power and authority to execute, deliver and perform in full
Development Agreement. The Development Agreement has been duly and validly
authorized, executed and delivered by Employer and, assuming due authorization,
execution and delivery by City, is in full force and effect and is valid and legally binding
instrument of Employer 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 Employer of the Development
Agreement and the carrying out of the terms thereof, will not result in violation of any
provision of, or in default under, the articles of incorporation and bylaws of Employer, any
indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree, order,
statute, rule, regulation or restriction to which Employer is a party or by which Employer's
property is bound or subject.
33
3. To the best of our knowledge, there are no actions, suits or proceedings
pending or threatened against or affecting Employer 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 (present or
prospective), financial position or results of operations of Employer or which in any
manner raises any questions affecting the validity of the Agreement or the Employer's
ability to perform Employer's obligations thereunder.
We have examined such documents and certificates of public officials and officers
of the Employer as we have deemed necessary for the purposes of this opinion. As to
the existence of facts which are material to this opinion, we have relied upon certificates
of public officials, statements by officers and resolutions of the Board of Directors of the
Employer. In rendering our opinion, we have assumed (i) the legal capacity of all natural
persons and the capacity and corporate power of all parties to the documents examined
by us other than the Employer, (ii) the due authorization, execution and delivery of each
document examined by us, by all parties to such documents other than the Employer, (iii)
the genuineness of all signatures other than the signatures of the representatives of the
Employer, (iv) the authenticity of all documents submitted to us as originals; (v) the
conformity to original documents of all documents submitted to us as copies; and (vi) the
City has no knowledge, direct or through their counsel, which would render any of the
representations set forth herein inaccurate or incorrect. We have not made any
independent investigation to verify any assumptions made herein, and have not
undertaken any factual investigation into the business, properties, agreements or litigation
of the Employer for the purpose of rendering the opinions expressed herein. There may
exist matters of a factual nature which could have a bearing on our opinions expressed
herein, with respect to which we have not been consulted or are otherwise unaware.
Where used herein, the language "to the best of our knowledge" or language of similar
nature means to our actual knowledge with no duty to inquire further of any person or
document. Said language is intended to be limited to the actual knowledge of the
attorneys within our firm who have been directly involved in representing the Employer,
or whom we reasonably believe have knowledge of the affairs of the Employer. We have
assumed that all representations and warranties made by any party to the Development
Agreement are true and correct. We have examined the law, the resolutions of the Board
of Directors of Employer, the Development Agreement, and such company proceedings
of the Employer and such other documents, certificates, instruments and matters as we
deem necessary to render this opinion.
The foregoing opinions are subject to:
(a) Equitable principles of general applicability (including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, public policy,
34
equitable subordination and the possible unavailability of specific performance or
injunctive relief), regardless of whether considered in a proceeding in equity or at law or
whether codified by statute;
(b) The unenforceability of provisions purporting to waive rights, claims,
demands, liabilities or defenses to obligations, known or unknown, suspected or
unsuspected, where such waivers are contrary to any applicable law or against public
policy;
(c) The unenforceability, under certain circumstances, of provisions of
agreements to the effect that rights or remedies are not exclusive, that every right or
remedy is cumulative and may be exercised in addition to or with any other right or
remedy, or that the election of some particular remedy or remedies does not preclude
recourse to one or another remedy;
(d) The unenforceability under certain circumstances, of provisions which
purport to govern forum selection or consent to jurisdiction; and
(e) The potential to vary the terms of the Development Agreement on the basis
of parol evidence.
The opinions set forth herein are given as of the date hereof. We disclaim any
obligation to notify you or any other person after the date of this letter if any change in
fact and/or law should change our opinion with respect to any matters set forth herein.
This opinion is for your benefit only and may not be quoted in whole or in part or otherwise
referred to in any documents, or delivered to or filed with any person or entity, or relied
upon by any other person or entity, without our prior written consent.
Very truly yours,
35
EXHIBIT E
[a] I wKel 4 A 111 a [OY_114
36
Dubuque
THE CITY OF "
All-Aneria My
-IN - , RA.I:.YA
DUrB E 11111111
2o"•2oi2►2oi3
Masterpiece on the Mississippi z0i7*zoi9
(DATE)
City Manager's Office
City Hall
50 West 131h Street
Dubuque, Iowa 52001-4864
(563) 589-4110 office
(563) 589-4149 fax
ctymgr@cityofdubuque.org
Re: Development Agreement By and Among the City of Dubuque, Iowa, 400 Ice Harbor,
LLC and Hodge Company
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 Development Agreement by and
among 400 Ice Harbor, LLC, (Developer), and Hodge Company (Employer), and the City
of Dubuque, Iowa (City) dated for reference purposes the day of , 202_.
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 now or before any local governmental body that
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.
37
(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 in the Property.
(5) The Property has a permanent right of ingress or egress to a public roadway
for the use and enjoyment of the Property.
(6) 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. The Property is in material compliance with all applicable zoning, fire,
building, and health statutes, ordinances, and regulations. The Property is
currently zoned PUD and Developer's intended use of the Property as a corporate
office/industrial facility is a permitted use in such zoning classification.
(7) 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.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) 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.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power and
authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit C.
(11) 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 that shall in any way be
binding upon the Property or Developer.
(12) City represents and warrants that any fees or other compensation which
may be owed to a broker engaged directly or indirectly by City in connection with
this Agreement are the sole responsibility and obligation of City and that City will
indemnify Developer and hold Developer harmless from any and all claims
asserted by any broker engaged directly or indirectly by City for any fees or other
compensation related to the subject matter of this Agreement.
(13) City shall exercise its best efforts to assist with Developer in the
development process.
(14) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied the
Property, and to 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, which materials, if known to be present,
would require cleanup, removal or some other remedial action under
environmental laws.
(16) All city utilities necessary for the development and use of the Property as an
industrial manufacturing facility adjoin the Property and Developer shall have the
right to connect to said utilities, subject to City's connection fees.
(17) The representations and warranties contained in this article 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.
Sincerely,
39
MCVM:jh
Michael C. Van Milligen
City Manager
,E
EXHIBIT F
41
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
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, Iowa, a municipal corporation (City) has entered
into a Development Agreement with 400 Ice Harbor, LLC (Developer) dated as of [Date],
related to certain real property located within the Greater Downtown Urban Renewal
District of the Grantor and as more particularly described as follows:
Lot Two (2) of Lot (2) of Adam's Company's 4th Addition in the City of Dubuque, Iowa,
according to the recorded plat thereof, subject to easements and restrictions of record
(the "Property"); and
WHEREAS, the Development Agreement contained certain covenants and
conditions with respect to the development of the Property, and obligated Developer to
construct certain Minimum Improvements in accordance with the Agreement; and
WHEREAS, Developer has to the present date performed said covenants and
conditions insofar as they relate to the construction of the Minimum Improvements in a
manner deemed sufficient by City to permit the execution and recording of this
certification; and
NOW, THEREFORE, pursuant to Section 3.4 of the Agreement, this is to certify
that all covenants and conditions of the Development Agreement with respect to the
obligations of Developer, and its successors and assigns, to construct the Minimum
Improvements on the Property have been completed and performed by Developer to the
satisfaction of City and such covenants and conditions are hereby terminated.
The Recorder of Dubuque County is hereby authorized to accept for recording and
to record the filing of this instrument, to be a conclusive determination of the satisfaction
of the covenants and conditions of the Development Agreement and the Development
42
Agreement shall otherwise remain in full force and effect.
CITY OF DUBUQUE, IOWA
Michael C. Van Milligen, City Manager
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
On this day of , 20 , before me, the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Michael C. Van Milligen, to me
personally known, who, being by me duly sworn, did say that he is the City Manager of
the City of Dubuque, Iowa, a municipal corporation, and that the instrument was signed
on behalf of the corporation, and Michael C. Van Milligen acknowledged the execution of
the instrument to be his voluntary act and deed.
Notary Public in and for said State
43
EXHIBIT G
N ATIoZay_1 311 =1:2 4 N M I I I
REVOCABLE LICENSE
AUTHORIZING 400 ICE HARBOR, LLC
TO CONSTRUCT AND MAINTAIN CERTAIN ENCROACHMENTS
ON CITY OWNED PROPERTY
Section 1. 400 Ice Harbor, LLC (Licensee), as the owner of the premises legally
described as Lot Two (2) of Lot (2) of Adam's Company's 4th Addition in the City of
Dubuque, Iowa, according to the recorded plat thereof, subject to easements and
restrictions of record, be and is hereby granted by the City of Dubuque, effective XXXX,
XX, 202, a Revocable License and authority to construct and maintain the following
encroachments as shown on Attachment A:
One North Sidewalk
One South Sidewalk
(collectively the "Encroachments") under the terms and conditions set forth in this
Revocable License.
Section 2. The permission herein granted is expressly conditioned on
Licensee's agreement to:
a. Assume any and all liability for damages to persons or property which may
result from the existence, location, installation, construction or maintenance
of said Encroachments;
b. Procure and maintain in force during the term of this License a policy of
liability insurance as set forth in the attached Insurance Schedule as such
Insurance Schedule may from time to time be revised after notice to
Licensee;
C. Pay on behalf of the City of Dubuque, all sums which the City of Dubuque
shall become obligated to pay by reason of the liability imposed upon the
City of Dubuque for damages of any kind resulting from the location,
installation, existence, construction or maintenance of said Encroachments
sustained by any person or persons, caused by accident or otherwise to
defend at its own expense and on behalf of said City any claim against the
City of Dubuque arising out of the location, installation, existence,
construction or maintenance of Encroachments and to pay reasonable
attorney fees therefor;
d. Indemnify, defend and hold the City of Dubuque free and harmless from any
and all claims, including but not limited to damages, loss, liability and
expense for death and/or injuries to third persons or damages to property
of third persons, or for damage to any property of the City of Dubuque which
may occur as a result of or in connection with the location, installation,
existence, construction, maintenance and repair of Encroachments.
45
e. Any special conditions as set forth for this License as identified:
Section 3. The Encroachments shall be maintained in accordance with all
applicable state and federal laws and regulations and the Ordinances of the City of
Dubuque.
Section 4. The permission herein granted is expressly conditioned upon
Licensee's further agreement that should the privilege herein granted be rescinded or
revoked by the City Manager, with or without cause, Licensee, shall within ten (10) days
after receipt of written notice from the City Manager, so to do, at its own expense, remove
said Encroachments at Licensee's expense and dispose of the same, and Licensee shall
have no claim against the City or its officers, agents, or employees for damages resulting
from the removal of said Encroachments.
Section 5. Licensee covenants and agrees that the Revocable License herein
granted does not constitute an approval of the design, erection, location, construction,
repair or maintenance of said Encroachments and Licensee hereby covenants and
agrees not to assert such claim or defense against the City of Dubuque in the event of
claim asserted for death, personal injuries and/or property damage against Licensee
arising out of or in any way connected with the location, installation, construction, design,
repair and maintenance of the Encroachments.
Section 6. This Revocable License shall become effective, and the rights
hereunder accrue to Licensee when this License has been approved by the City Manager
and the terms and conditions thereof accepted by Licensee by acceptance endorsed on
this License. This Revocable License is not assignable or transferable to another
location. This Revocable License is for the above -described property only.
Section 7. The City Clerk shall file a copy of this Revocable License at
Licensee's expense in the Office of the Recorder in and for Dubuque County, Iowa.
Section 8. Iowa One -Call registration may be required by the Code of Iowa. When
applicable Licensee shall submit documentation to the City Engineer of Iowa One -Call
registration membership.
Signed this day of
Attest:
Adrienne N. Breitfelder, City Clerk
,20
Michael C. Van Milligen, City Manager
MA
State of Iowa )
) ss:
County of Dubuque )
On this day of before me, the undersigned,
a Notary Public in and for the State of Iowa, personally appeared Michael C. Van Milligen
and Adrienne N. Breitfelder, to me personally known, who, being by me duly sworn, did
say that they are the City Manager and City Clerk, respectively, of the City of Dubuque,
Iowa, a municipal corporation, that the seal affixed to the foregoing instrument is the
corporate seal of the corporation, and that the instrument was signed and sealed on
behalf of the corporation, on the day of , and Michael
C. Van Milligen and Adrienne N. Breitfelder acknowledged the execution of the instrument
to be their voluntary act and deed.
Notary Public in and for said State
47
ATTACHMENT A
INSURANCE SCHEDULE
City of Dubuque Insurance Requirements for Lessees of City Property and Right of Way
Licensees or Permittees
INSURANCE SCHEDULE A
1. shall furnish a signed certificate of insuranceto the City of Dubuque, Iowa for the
coverage required in Exhibit I prior to the lease, license, or permit commencement. All lessees of
City property and right of way licensees or permittees shall submit an updated certificate
annually. Each certificate shall be prepared on the most current ACORD form approved by the
Iowa Insurance division or an equivalent. Each certificate shall include a statement under
Description of Operations as to why the certificate was issued_ Lease Agreement d ated
2 All policies of insurance required hereiJnder shall be with an Insurer authorized to do business In
Iowa and all Insurers shall have -a rating ofwor better in the currentA_M. Best's Rating Guide_
3_ Each certificate shall be furnished to the Finance department of the City of Dubuq ue.
4_ The lesseer licensee, or permittee shall be required to carry the minimum coverageA snits, or
greater If required by law or other legal agreement, In Exhibit I_ Failure to provide the required
minimum coverage shall not be deemed a waiver of such requirements by the City of Dubuque-
5- Failure to obtain or maintain the required Insurance shall be considered a material breach of the
lease, licenser or permit_
6_ All req uifed endorsements shall be attached to certificate-
7- Whenever a specific ISO form is referenced the current edition of the farm must be used unless
an equivalentform is approved bythe.directorof Finance and Budget_ The lessee, licensee, or
permittee must identify and list in writing all deviations and exclusions from the ISO form_
$ if lessee's, licensee's, orpermittee's limits of liability are higherthan the required minimum limits
then the lessee's, licensee'sr orpermittee's limits shall bethis agreement's required limits.
9. Lessee, licensee, or permittee shall require all subcontractors and sub -subcontractors to obtain
and maintain during the performance ofwork insurancefor the coverages described in this
Insurance Schedule and shall obtain certificates of insurance from all such subcontractors and
sub -subcontractors. Lessee, licensee, or permittee agrees that it shall be liable forthe failure of a
subcontractor and sub -subcontractor to Obtain and maintain such coverage. The City may
request a copy of such certificates from the lessee, licensee, or permittee.
10. Lessee, license & permittees shall be responsible for deductibles and self -insured retention and
for payment of all policy premiums and other costs associated with the insurance policies
required below.
11. All certificates of insurance must include agents name, phone number and email address.
12-_ The City of Dubuque reserves the right to require completer certified copies of all required
Insurance policies, includiflg endorsements, required by this Schedule at any time.
13_ The City of Dubuque reserves the right to modify these requirements, including Iirn"sr based on
changes in the risk or other special circumstances during the term of the agreemenL subject to
mutu al agreement of the parties _
Page 1 of 4 Schedule A Lessees of City Property; Flight of Way Licensees or Permittees April 2021
50
City of Dubuque Insurance Requirements for Lessees of City Property and Right of Way
Licensees or Permittees
INSURANCE SCHEDULE A (Continued)
EXHIBIT I
A) COMMERCIAL GENERAL LIABILITY
General Aggregate Llmit $2,1500,000
Products -Completed Operations Aggregate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence $1,000,000
Fire damage Limit (anyone occurrence) $50,000
Medical Payments $5,000
1) Coverage shall be written on an occurrencer not claims made, farm_ The general
liability coverage shall be written In accord with ISOform CG 00 01 or business
owners form BP 00 02. All deviations from the standard ISO commercial general
liability form CG 0001, or Business owners form BP 00 04 shall be clearly
identified_
2j IncludeISO endorsementform CG 25 04 "Designated Location(s) General
Aggregate Limit_"
3) Include endorsement indicating that coverage is primary and non-contributory_
4) Include Preservation of Governmental Immunities Endorsement (Sample.
attached).
5) Include.additignal Insured endorsement for:
The City of Dubuquer including all its elected and appointed officials, all its
employees and volunteers, all its boardsr commissions andlor authorities antl
their board members, employees and volunteers. Use ISOform CG 20 10
(Ongoing operations) or its equivalent_
6) Policy shall include Waiver of Rightto Recoverfrom Others Endorsement.
B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory Benefits covering all employees injured on thejob by accident or disease as
prescribed by Iowa Cade Chapter 85_
Coverage A Statutory —State of Iowa
Coverage B Employers Liability
Each Accident $100,000
Each Employee -disease $100,000
Policy Urnit-disease $500,000
Policy shall Include Waiver of Rightto Recoverfrom Others endorsement.
Coverage B limits shall be greater if required by the umbrellalexcess insurer.
:r
Ifr by Iowa Cade Section 85.1A, the lesseer licenseer or permittee is not req uired to
purchase Workers' Compensation Insurance, the lessee, licensee, or permittee shall
have a copy of the Statas Nonelection of Workers' Compensation or Employers' Liability
Coverage form on file with the Iowa Workers' Compensation Insurance Commissioner, as
required by Iowa Code Section 87.22. Completed form must be attached_
Page 2 of 4 Schedule A Lessees of City Property; Flight of Way Ucenseesor Perm itteesApri1 2021
51
City of Dubuque Insurance Requirements for Lessees of City Property and Right of Way
Licensees or Penn ittees
INSURANCE SCHEDULE A (Continued)
C) POLLUTION LIABILITY
Coverage required- _Yes —)(—No
Pollution liability coverage shall he required if the lessee, cordraeting party, or perrnittee
has any pollution exposureforabalement of hazardous orcontaminated malehals
including, but not limited to, pelroleum products, the removal of lead, asbeslos, or PGBs_
Pollution product and completed operations coverage shall also be covered.
Each occurrence $2,000,000
Policy Aggregate $4,000,00U
1 j Policy to include jab site and transportation coverage.
2) Include additional insured for:
The City of Dubuque, including all its elected and appointed officials, all its
employees and volunteers, all its boards, commissions and+or aulhorilies and
their board members, employees and volunteers. Use ISO form CG 2410.
(Ongoing operations) or its equivalent and CG2-037(completed operations) or
its equivalent.
al Include Preservation of Governmental Immunities Endorsement.
41 PrmJde evidence of coverage for 5 years after completion of project.
D) PROPERTY INSURANCE REQUIRED BY LEASE. LICENSE, OR PERMIT
Yes No
Evidence of property coverage provided: _ Yes
Include the On of Dubuque as Lender Loss Payable.
E) RIGHT-OF-WAY VVO RK ONLY;
UMBRELLA -'EXCESS $1,000,000
-- Yes _ No
The General Liability, Automccile'-iaa=lity and Workers Compersa".ion insurance
requirements may be sai 31arl .'Jin a cvmv ration of pr wa-.: and -i-bre la or Excess
Liability Insurance. If I-e Un•rfel a cr Excess In3ur;nre ry ic,- cccs rod =cllc-,: -7e =.Drni of
the primary policies, i; snail inclure the Same erccrs3111en-s as recIared o- tl,e primary
policies including Waiver of Subroaa:iv7 !41-D Pr iv r.: and Non-contributory in favor of
the City.
FJ FLOOD INSURANCE
_Yes _ -LNO
If Required Gc•,erage S
Page 3 of 4 SchedLde A Lessees of Ciby Property, Right of Way Liepnacwa ar Permitteee April 2021
52
City of Dubuque Insurance Requirements for Lessees of City Property and might of Way
Licensees or Permittees
Please be aware that naming the City of Dubuque as an additional insured as is required by this
Insurance Schedule may result in the waiver of the City's government'al immunities provided in low Cade
sec_ 670.4_ If you would like to preserve those Immunitiesr please use this endorsement or an equivalent
farm .
PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmental Immunity. The insurer expressly agrees and states that the purchase
cf this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any
cf the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa
Section 670.4 as it is now exists and as it may be amended from time to time.
2 Claims Coverage. The insu rer further agrees that this policy of insurance shall cover only those
claims not subjectto the defense of governmental immunity underthe Code of Iowa Section 670.4 as it
now exists and as it may be amended from time to time. Those claims rrot subject to Code of Iowa
Section 670.4 shall be. covered by the terms and cond itions of this insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting
any defense of govern mental immunity, and may do so at any time and shall da so upon the timely written
requestofthe Insurer_
4- Non -Denial of Coverage_ The insurer shall not deny coverage under this policy and the insurer
Shall rrot deny any of the rights and benefits accruing to the City of Dubuque, Iowa u nderthis policy for
reasons of governmental Immunity unless and until a court of competent Jurisdiction has ruled in favor of
the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa.
No Other Change in Policy- The above preservation of governmental immunities shall not otherwise
change or alter the coverage available under the policy_
SPECIMEN
(DEPARTMENT MANAGER: FILL IN ALL BLANKS AND CHECK BOXES)
Page 4 of 4 Schedule A Lessees of City Property; Flight of Way Licensees or Permittees April 2021
53
EXHIBIT H
M14Mlei s7_1kiIBill Lvi[01011AT/axo7:j►vi14►k W-1wN44►Vi14kik0
54
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 Development Agreement by and among the City of Dubuque, Iowa, an Iowa municipal
corporation, of Dubuque, Iowa, and 400 ICE HARBOR, LLC, and HODGE COMPANY
was made regarding the following described premises:
Lot Two (2) of Lot (2) of Adam's Company's 4th Addition in the City of Dubuque, Iowa,
according to the recorded plat thereof, subject to easements and restrictions of record
The Development Agreement is dated for reference purposes the day of
202_, and contains covenants, conditions, and restrictions concerning the
use of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the terms
and provisions of the Development Agreement shall prevail. A complete counterpart of
the Development 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 1202 _
CITY OF DUBUQUE, IOWA
Barry A. Lindahl, Esq., Senior Counsel
STATE OF IOWA
55
: SS:
DUBUQUE COUNTY
On this day of , 202_, 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.
Notary Public, State of Iowa
56
EXHIBIT I
PROMISSORY NOTE
57
City of Dubuque, Iowa
PROMISSORY NOTE
Date:
2023
Loan Number: DRLP # 3 - 23
Fund Source: Downtown Rehabilitation Loan Program (TIF)
$571,400
FOR VALUE RECEIVED, the undersigned, 400 Ice Harbor, LLC , 400 Ice Harbor Drive, Dubuque, Iowa,
promises to pay to the order of the City of Dubuque, Iowa, 50 W. 13th Street, Dubuque, Iowa, 52001, or at
such place as it may direct, the sum of FIVE HUNDRED SEVENTY-ONE THOUSAND FOUR HUNDRED
DOLLARS ($571,400), together with interest at the rate of 0 % per annum, upon the unpaid balance, in
monthly principal payments beginning the first day of the first month following the Closing of the Parking
Property and on the first day of each month thereafter until paid in full. The entire outstanding principal
balance, if not sooner paid, shall be paid in full on the first day of the 120t" month following the Closing of
the Parking Property.
If a default occurs under this Promissory Note or any of the other agreements between the undersigned
and the holder and is not cured within TEN (10) DAYS after written notice to the undersigned, then the
holder may, as its right and option, declare immediately due and payable the principal balance of this
Promissory Note and interest accrued hereon. The undersigned further agrees to pay all costs of collection,
including reasonable attorneys' fees. The City of Dubuque may at any time renew this Promissory Note or
extend its maturity date for any period and release any security for, or any party to this Promissory Note,
all without notice to or consent of and without releasing any maker, accommodation maker, endorser or
guarantor from any liability on the Promissory Note. Presentment or other demand for payment, notice of
dishonor and protest are hereby waived by the undersigned and each endorser and guarantor.
This Promissory Note is subject to the Loan Agreement, if any, of same date by and between the
undersigned and the City of Dubuque and any default under said Loan Agreement is a default under this
Promissory Note.
Signed,
400 Ice Harbor, LLC
Michael Fullan, Organizer
EXHIBIT J
MORTGAGE
59
Prepared by: Jill M. Connors City Hall, 50 W. 13th Street, Dubuque, Iowa 52001 Phone: 563-583-4213
Return to: same
MORTGAGE
THIS MORTGAGE is made between 400 Ice Harbor, LLC ("Mortgagor") and City of Dubuque, Iowa ("Mortgagee").
[ ] If this box is checked, this Mortgage is a Purchase Money Mortgage as defined in the Iowa Code.
1. Grant of Mortgage and Security Interest. Mortgagor hereby sell, convey and mortgage unto Mortgagee, and grant a
security interest to Mortgagee in the following described property:
a. Land and Buildings. All of Mortgagor's' right, title and interest in and to the following described real estate situated
in Dubuque County, Iowa (the "Land");
b. Personal Property. All fixtures and other personal property integrally belonging to, or hereafter becoming an integral
part of the Land or Buildings. whether attached or detached, including but not limited to, light fixtures, shades, rods,
blinds, Venetian blinds, awnings, storm windows, screens, linoleum, water softeners, automatic heating and air-
conditioning equipment and all proceeds, products, increase, issue, accessions, attachments, accessories, parts,
additions, repairs. replacements and substitutes of, to, and for the foregoing (the "Personal Property").
c. Revenues and Income. All rents, issues, profits, leases, condemnation awards and insurance proceeds now or
hereafter arising from the ownership, occupancy or use of the Land, Buildings and Personal Property, or any part thereof
(the "Revenues and Income").
TO HAVE AND TO HOLD the Land, Buildings, Personal Property and Revenues and Income (collectively called the
"Mortgaged Property"), together with all privileges, hereditaments thereunto now or hereafter belonging, or in any way
appertaining and the products and proceeds thereof, unto Mortgagee, its successors and assigns.
2. Obligations. This Mortgage secures the following (hereinafter collectively referred to as the "Obligations"):
a. The payment of the loan made by Mortgagee to 400 Ice Harbor, LLC evidenced by a promissory note dated
, 2023 in the principal amount of $571,400.00, any renewals, extensions, modifications or refinancing
thereof and any promissory notes issued in substitution therefor; and
b. All other obligations of Mortgagor to Mortgagee, now existing or hereafter arising, whether direct or indirect, contingent
or absolute and whether as maker or surety, including, but not limited to, future advances and amounts advanced and
expenses incurred by Mortgagee pursuant to this Mortgage.
3. Representations and Warranties of Mortgagor. Mortgagor represents, warrants and covenants to Mortgagee that (i)
Mortgagors hold clear title to the Mortgaged Property and title in fee simple in the Land; (ii) Mortgagor has the right, power and
authority to execute this Mortgage and to mortgage, and grant a security interest in the Mortgaged Property; (iii) the Mortgaged
Property is free and clear of all liens and encumbrances, except for real estate taxes not yet delinquent and except as otherwise
stated in subparagraph 1 a. herein; (iv) Mortgagor will warrant and defend title to the Mortgaged Property and the lien and priority of
this Mortgage against all claims and demands of all persons, whether now existing or hereafter arising; and (v) all buildings and
improvements now or hereafter located on the Land are, or will be, located entirely within the boundaries of the Land.
4. Payment and Performance of the Obligations. Mortgagor will pay all amounts payable under the Obligations in
accordance with the terms of the Obligations when and as due and will timely perform all other obligations of Mortgagor under the
Obligations. The provisions of the Obligations are hereby incorporated by reference into this Mortgage as if fully set forth herein.
5. Taxes. Mortgagor shall pay each installment of all taxes and special assessments of every kind, now or hereafter levied
against the Mortgaged Property before the same become delinquent, without notice or demand, and shall deliver to Mortgagee proof
of such payment within fifteen (15) days after the date in which such tax or assessment becomes delinquent.
6. Liens. Mortgagor shall not create, incur or suffer to exist any lien, encumbrance, security interest or charge on the
Mortgaged Property or any part thereof which might or could be held to be equal or prior to the lien of this Mortgage, other than the
lien of current real estate taxes and installments of special assessments with respect to which no penalty is yet payable. Mortgagor
shall pay, when due, the claims of all persons supplying labor or materials to or in connection with the Mortgaged Property.
7. Compliance with Laws. Mortgagor shall comply with all present and future statutes, laws, rules, orders, regulations and
ordinances affecting the Mortgaged Property, any part thereof or the use thereof.
8. Permitted Contests. Mortgagor shall not be required to (i) pay any tax, assessment or other charge referred to in
paragraph 5 hereof, (ii) discharge or remove any lien, encumbrance or charge referred to in paragraph 6 hereof, or (iii) comply with
any statute, law, rule, regulation or ordinance referred to in paragraph 7 hereof, so long as Mortgagor shall contest, in good faith, the
existence, amount or the validity thereof, the amount of damages caused thereby or the extent of Mortgagor's liability therefor, by
appropriate proceedings which shall operate during the pendency thereof to prevent (A) the collection of, or other realization upon
the tax, assessment, charge or lien, encumbrances or charge so contested, (B) the sale, forfeiture or loss of the Mortgaged Property
or any part thereof, and (C) any interference with the use or occupancy of the Mortgaged Property or any part thereof. Mortgagor
shall give prompt written notice to Mortgagee of the commencement of any contest referred to in this paragraph 8.
9. Care of Property. Mortgagor shall take good care of the Mortgaged Property; shall keep the Buildings and Personal
Property now or later placed upon the Mortgaged Property in good and reasonable repair and shall not injure, destroy or remove
either the Buildings or Personal Property during the term of this Mortgage. Mortgagor shall not make any material alteration to the
Mortgaged Property without the prior written consent of Mortgagee.
10. Insurance.
a. Risks to be Insured. Mortgagor, at its sole cost and expense, shall maintain insurance on the Building and other
improvements now existing or hereafter erected on the Land and on the Personal Property included in the Mortgaged
Property against loss by fire, extended coverage perils and such other hazards as Mortgagee may from time to time
require, such insurance to have a "Replacement Cost" endorsement attached thereto, with the amount of the insurance at
least equal to the balance of the Obligations. Such insurance shall name Mortgagee as a loss payee. At Mortgagor's
option, such policy may have a coinsurance clause of not less than 90% of replacement cost provided the policy contains
an appropriate form of cost escalation endorsement. Mortgagor will at its sole cost and expense, from time to time, and at
any time at the request of Mortgagee, provide Mortgagee with evidence satisfactory to Mortgagee of the replacement cost
of Mortgaged Property. Mortgagor will maintain such other insurance as Mortgagee may reasonably require.
b. Policy Provisions. All insurance policies and renewals thereof maintained by Mortgagor pursuant to this Mortgage
shall be written by an insurance carrier satisfactory to Mortgagee, contain a mortgagee clause in favor of and in form
acceptable to Mortgagee, contain an agreement of the insurer that it will not amend, modify or cancel the policy except
after thirty (30) days prior written notice to Mortgagee, and be reasonably satisfactory to Mortgagee in all other respects.
c. Delivery of Policy or Certificate. If requested by Mortgagee, Mortgagor will deliver to Mortgagee original policies
satisfactory to Mortgagee evidencing the insurance which is required under this Mortgage, and Mortgagor shall promptly
furnish to Mortgagee all renewal notices and, upon request of Mortgagee, evidence of payment thereof. At least ten (10)
days prior to the expiration date of a required policy, Mortgagor shall deliver to Mortgagee a renewal policy in form
satisfactory to Mortgagee.
d. Assignment of Policy. If the Mortgaged Property is sold at a foreclosure sale or if Mortgagee shall acquire title to
the Mortgaged Property, Mortgagee shall have all of the right, title and interest of Mortgagor in and to any insurance
policies required hereunder, and the unearned premiums thereon, and in and to the proceeds thereof resulting from any
damage to the Mortgaged Property prior to such sale or acquisition.
e. Notice of Damage or Destruction; Adjusting Loss. If the Mortgaged Property or any part thereof shall be
damaged or destroyed by fire or other casualty, Mortgagor will, within five (5) calendar days after the occurrence of such
damage or destruction, give written notice thereof to the insurance carrier and to Mortgagee and will not adjust any
damage or loss which is estimated by Mortgagor in good faith to exceed $25,000 unless Mortgagee shall have joined in or
concurred with such adjustment; but if there has been no adjustment of any such damage or loss within four (4) months
from the date of occurrence thereof and if an Event of Default shall exist at the end of such four (4) month period or at any
time thereafter, Mortgagee may alone make proof of loss, adjust and compromise any claim under the policies, and
appear in and prosecute any action arising from such policies. In connection therewith, Mortgagor do hereby irrevocably
authorize, empower and appoint Mortgagee as attomey-in-fact for Mortgagor (which appointment is coupled with an
interest) to do any and all of the foregoing in the name and on behalf of Mortgagor.
f. Application of Insurance Proceeds. All sums paid under any insurance policy required by this Mortgage shall be
paid to Mortgagee, which shall, at its option, apply the same (after first deducting therefrom Mortgagee's expenses
incurred in collecting the same including but not limited to reasonable attorney's fees) to the reduction of the Obligations
or to the payment of the restoration, repair, replacement or rebuilding of Mortgaged Property that is damaged or destroyed
in such manner as Mortgagee shall determine and secondly to the reduction of the Obligations. Any application of
insurance proceeds to principal of the Obligations shall not extend or postpone the due date of the installments payable
under the Obligations or change the amount of such installments.
g. Reimbursement of Mortgagee's Expenses. Mortgagor shall promptly reimburse Mortgagee upon demand for all of
Mortgagee's expenses incurred in connection with the collection of the insurance proceeds, including but not limited to
reasonable attorneys fees, and all such expenses shall be additional amounts secured by this Mortgage.
11. Inspection. Mortgagee, and its agents, shall have the right at all reasonable times, to enter upon the Mortgaged Property
for the purpose of inspecting the Mortgaged Property or any part thereof. Mortgagee shall, however, have no duty to make such
inspection. Any inspection of the Mortgaged Property by Mortgagee shall be entirely for its benefit and Mortgagor shall in no way
rely or claim reliance thereon.
12. Protection of Mortgagee's Security. Subject to the rights of Mortgagor under paragraph 8 hereof, if Mortgagor fails to
perform any of the covenants and agreements contained in this Mortgage or if any action or proceeding is commenced which affects
the Mortgaged Property or the interest of the Mortgagee therein, or the title thereto, then Mortgagee, at Mortgagee's option, may
perform such covenants and agreements, defend against or investigate such action or proceeding, and take such other action as
Mortgagee deems necessary to protect Mortgagee's interest. Any amounts or expenses disbursed or incurred by Mortgagee in good
faith pursuant to this paragraph 12 with interest thereon at the rate of 10% per annum, shall become an Obligation of Mortgagor
secured by this Mortgage. Such amounts advanced or disbursed by Mortgagee hereunder shall be immediately due and payable by
Mortgagor unless Mortgagor and Mortgagee agree in writing to other terms of repayment. Mortgagee shall, at its option, be
subrogated to the lien of any mortgage or other lien discharged in whole or in part by the Obligations or by Mortgagee under the
61
provisions hereof, and any such subrogation rights shall be additional and cumulative security for this Mortgage. Nothing contained
in this paragraph shall require Mortgagee to incur any expense or do any act hereunder, and Mortgagee shall not be liable to
Mortgagor for any damage or claims arising out of action taken by Mortgagee pursuant to this paragraph.
13. Condemnation. Mortgagor shall give Mortgagee prompt notice of any action, actual or threatened, in condemnation or
eminent domain and hereby assign, transfer and set over to Mortgagee the entire proceeds of any award or claim for damages for
all or any part of the Mortgaged Property taken or damaged under the power of eminent domain or condemnation. Mortgagee is
hereby authorized to intervene in any such action in the names of Mortgagor, to compromise and settle any such action or claim,
and to collect and receive from the condemning authorities and give proper receipts and acquittances for such proceeds. Any
expenses incurred by Mortgagee in intervening in such action or compromising and settling such action or claim, or collecting such
proceeds shall be reimbursed to Mortgagee first out of the proceeds. The remaining proceeds or any part thereof shall be applied to
reduction of that portion of the Obligations then most remotely to be paid, whether due or not, or to the restoration or repair of the
Mortgaged Property, the choice of application to be solely at the discretion of Mortgagee.
14. Fixture Filing. From the date of its recording, this Mortgage shall be effective as a financing statement filed as a fixture
filing with respect to the Personal Property and for this purpose the name and address of the debtor is the name and address of
Mortgagor as set forth in paragraph 20 herein and the name and address of the secured party is the name and address of the
Mortgagee as set forth in paragraph 20 herein.
15. Events of Default. Each of the following occurrences shall constitute an event of default hereunder ("Event of Default"):
a. Mortgagor shall default in the due observance or performance of or breach its agreement contained in paragraph 4
hereof or shall default in the due observance or performance of or breach any other covenant, condition or agreement on
its part to be observed or performed pursuant to the terms of this Mortgage.
b. Mortgagor shall make an assignment for the benefits of its creditors, or a petition shall be filed by or against Mortgagor
under the United States Bankruptcy Code or Mortgagor shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of a material part of its properties or of the Mortgaged Property or shall not, within thirty (30)
days after the appointment of a trustee, receiver or liquidator of any material part of its properties or of the Mortgaged
Property, have such appointment vacated.
c. A judgment, writ or warrant of attachment or execution, or similar process shall be entered and become a lien on or be
issued or levied against the Mortgaged Property or any part thereof which is not released, vacated or fully bonded within
thirty (30) days after its entry, issue or levy.
d. An event of default, however defined, shall occur under any other mortgage, assignment or other security document
constituting a lien on the Mortgaged Property or any part thereof.
16. Acceleration; Foreclosure. Upon the occurrence of any Event of Default and at any time thereafter while such Event of
Default exists, Mortgagee may, at its option, after such notice as may be required by law, exercise one or more of the following
rights and remedies (and any other rights and remedies available to it):
a. Mortgagee may declare immediately due and payable all Obligations secured by this Mortgage, and the same shall
thereupon be immediately due and payable, without further notice or demand.
b. Mortgagee shall have and may exercise with respect to the Personal Property, all the rights and remedies accorded
upon default to a secured party under the Iowa Uniform Commercial Code. If notice to Mortgagor of intended disposition
of such property is required by law in a particular instance, such notice shall be deemed commercially reasonable if given
to Mortgagor at least ten (10) days prior to the date of intended disposition.
c. Mortgagee may (and is hereby authorized and empowered to) foreclose this Mortgage in accordance with the law of
the State of Iowa, and at any time after the commencement of an action in foreclosure, or during the period of redemption,
the court having jurisdiction of the case shall at the request of Mortgagee appoint a receiver to take immediate possession
of the Mortgaged Property and of the Revenues and Income accruing there from, and to rent or cultivate the same as he
may deem best for the interest of all parties concerned, and such receiver shall be liable to account to Mortgagor only for
the net profits, after application of rents, issues and profits upon the costs and expenses of the receivership and
foreclosure and upon the Obligations.
17. Redemption. It is agreed that if this Mortgage covers less than ten (10) acres of land, and in the event of the foreclosure
of this Mortgage and sale of the property by sheriffs sale in such foreclosure proceedings, the time of one year for redemption from
said sale provided by the statues of the State of Iowa shall be reduced to six (6) months provided the Mortgagee, in such action files
an election to waive any deficiency judgment against Mortgagor which may arise out of the foreclosure proceedings; all to be
consistent with the provisions of Chapter 628 of the Iowa Code. If the redemption period is so reduced, for the first three (3) months
after sale such right of redemption shall be exclusive to the Mortgagor, and the time periods in Sections 628.5, 628.15 and 628.16 of
the Iowa Code shall be reduced to four (4) months. It is further agreed that the period of redemption after a foreclosure of this
Mortgage shall be reduced to sixty (60) days if all of the three following contingencies develop: (1) The real estate is less than ten
(10) acres in size; (2) the Court finds affirmatively that the said real estate has been abandoned by the owners and those persons
personally liable under this Mortgage at the time of such foreclosure; and (3) Mortgagee in such action files an election to waive any
deficiency judgment against Mortgagor or their successors in interest in such action. If the redemption period is so reduced,
Mortgagor or their successors in interest or the owner shall have the exclusive right to redeem for the first thirty (30) days after such
sale, and the time provided for redemption by creditors as provided in Sections 628.5, 628.15 and 628.16 of the Iowa Code shall be
reduced to forty (40) days. Entry of appearance by pleading or docket entry by or on behalf of Mortgagor shall be a presumption that
the property is not abandoned. Any such redemption period shall be consistent with all of the provisions of Chapter 628 of the Iowa
Code. This paragraph shall not be construed to limit or otherwise affect any other redemption provisions contained in Chapter 628 of
the Iowa Code.
18. Attorneys' Fees. Mortgagor shall pay on demand all costs and expenses incurred by Mortgagee in enforcing or
protecting its rights and remedies hereunder, including, but not limited to, reasonable attorneys' fees and legal expenses.
19. Forbearance not a Waiver, Rights and Remedies Cumulative. No delay by Mortgagee in exercising any right or
remedy provided herein or otherwise afforded by law or equity shall be deemed a waiver of or preclude the exercise of such right or
remedy, and no waiver by Mortgagee of any particular provisions of this Mortgage shall be deemed effective unless in writing signed
by Mortgagee. All such rights and remedies provided for herein or which Mortgagee or the holder of the Obligations may have
otherwise, at law or in equity, shall be distinct, separate and cumulative and may be exercised concurrently, independently or
62
successively in any order whatsoever, and as often as the occasion therefor arises.
20. Notices. All notices required to be given hereunder shall be in writing and deemed given when personally delivered or
deposited in the United States mail, postage prepaid, sent certified or registered, addressed as follows:
a. If to Mortgagor, 400 Ice Harbor, LLC, 400 Ice Harbor Drive, Dubuque, Iowa 52001
b. If to Mortgagee, to: Economic Development Department; City Hall; 1300 Main St., Dubuque, Iowa 52001
or to such other address or person as hereafter designated in writing by the applicable party in the manner provided in this
paragraph for the giving of notices.
21. Severability. In the event any portion of this Mortgage shall, for any reason, be held to be invalid, illegal or unenforceable
in whole or in part, the remaining provisions shall not be affected thereby and shall continue to be valid and enforceable and if, for
any reason, a court finds that any provision of this Mortgage is invalid, illegal, or unenforceable as written, but that by limiting such
provision it would become valid, legal and enforceable then such provision shall be deemed to be written, construed and enforced
as so limited.
22. Further Assurances. At any time and from time to time until payment in full of the Obligations, Mortgagor will, at the
request of Mortgagee, promptly execute and deliver to Mortgagee such additional instruments as may be reasonably required to
further evidence the lien of this Mortgage and to further protect the security interest of Mortgagee with respect to the Mortgaged
Property, including, but not limited to, additional security agreements, financing statements and continuation statements. Any
expenses incurred by Mortgagee in connection with the recordation of any such instruments shall become additional Obligations of
Mortgagor secured by this Mortgage. Such amounts shall be immediately due and payable by Mortgagor to Mortgagee.
23. Successors and Assigns bound; Number; Gender; Agents; Captions. The rights, covenants and agreements
contained herein shall be binding upon and inure to the benefit of the respective legal representatives, successors and assigns of
the parties. Words and phrases contained herein, including acknowledgment hereof, shall be construed as in the singular or plural
number, and as masculine, feminine or neuter gender according to the contexts. The captions and headings of the paragraphs of
this Mortgage are for convenience only and are not to be used to interpret or define the provisions hereof.
24. Governing Law. This Mortgage shall be governed by and construed in accordance with the laws of the State of Iowa.
25. Release of Rights of Dower, Homestead and Distributive Share. Each of the undersigned hereby relinquishes all
rights of dower, homestead and distributive share in and to the Mortgaged Property and waives all rights of exemption as to any of
the Mortgaged Property.
26. Acknowledgment of Receipt of Copies of Debt Instrument. Mortgagor hereby acknowledge the receipt of a copy of
this Mortgage together with a copy of each promissory note secured hereby.
27. Additional Provisions.
Dated: 2023.
400 Ice Harbor, LLC, Mortgagor
Michael, Fullan, Organizer
I UNDERSTAND THAT HOMESTEAD PROPERTY IS IN MANY CASES PROTECTED FROM THE CLAIMS OF CREDITORS
AND EXEMPT FROM JUDICIAL SALE; AND THAT BY SIGNING THIS MORTGAGE, I VOLUNTARILY GIVE UP MY RIGHT TO
THIS PROTECTION FOR THIS MORTGAGED PROPERTY WITH RESPECT TO CLAIMS BASED UPON THIS MORTGAGE.
Dated:
STATE OF IOWA
ss:
COUNTY OF DUBUQUE
On this day of , 2023, before me, the undersigned, a Notary Public, personally appeared Michael Fullan, to me
known to be the identical person named in and who executed the foregoing instrument, and acknowledged that they executed the
same as their voluntary act and deed.
63
EXHIBIT K
:7_1 N M I' M:ZO]» A WAID] 2111010
ml
OPTION AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
400 ICE HARBOR, LLC
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the CITY OF DUBUQUE, IOWA (hereafter "Grantor") hereby grants to
400 ICE HARBOR, LLC (or an assignee thereof,) (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 "City Real Estate").
Grantor hereby grants to Grantee an exclusive option to purchase the above
described property as provided in that certain Development Agreement wherein the
Grantor is the City and the Grantee is the Developer dated 2023,
incorporated herein by this reference (the "Development Agreement").
The total option purchase price shall be $571,400.
Grantor shall produce marketable title to the City Real Estate pursuant to the Iowa
Land Title Standards prior to or at the closing of the purchase described above.
Grantee shall exercise this option, if at all, by giving written notice of such intent to
exercise this option during the period commencing January 1, 2024 and ending al
midnight on January 1, 2026 by delivery of an Offer to Buy and Acceptance to City
providing for terms as set forth in this Option and in the Offer to Buy Real Estate and
Acceptance attached hereto.
Notice shall be given as provided in the Development Agreement.
Grantor, at its expense, shall promptly continue and pay for the abstract of title to
the above -described property continued through a date not more than thirty (30) days
prior to the closing date stated in the notice of the exercise of the option. Such abstract
shall show merchantable title in the Grantor in conformity with this agreement, Iowa law
and title standards of the Iowa State Bar Association. The abstract shall become the
property of the Grantee when the purchase price is paid in full. Grantor shall pay costs of
additional abstracting or title work due to acts or omissions of the Grantor.
Upon payment of the purchase price of $571,400, Grantor shall convey the City
Real Estate to Grantee or its assignees, by Special Warranty Deed, free and clear of all
liens, restrictions and encumbrances.
65
This option shall terminate if notice of the exercise thereof is not given pursuant to
this Agreement and the Development Agreement on or before midnight on the 1 st day of
January, 2025.
This agreement shall apply to and bind personal representatives, successors in
interest, and permitted assigns of the parties. This option shall be governed by and
construed in accordance with the laws of the State of Iowa.
Dated this day of 12023.
CITY OF DUBUQUE, IOWA 400 ICE HARBOR DRIVE, LLC
go
Attest:
Brad M. Cavanagh, Mayor Michael Fullan, Organizer
Adrienne N. Breitfelder, City Clerk
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this day of 202_, before me, a Notary Public in and for
the State of Iowa, personally appeared Brad M. Cavanagh and Adrienne N. Breitfelder,
to me personally known, and, who, being by me duly sworn, did say that they are the
Mayor and City Clerk, respectively, of the City of Dubuque, Iowa; that the seal affixed to
the foregoing instrument is the corporate seal of the City, and that the instrument was
signed and sealed on behalf of the City, and that they acknowledged the execution of the
instrument to be their voluntary act and deed and the voluntary act and deed of the City,
by it voluntarily executed.
Notary Public in and for the State of Iowa
601 11We] 0Eel TA/_1
0
DUBUQUE COUNTY ) ss:
On this day of , 202_, before me, the undersigned, a Notary
Public in and for the State of Iowa, personally appeared
, to me personally known, who being by me duly sworn,
did say that he is of said 400 Ice Harbor, LLC, the corporation
executing the within and foregoing instrument; that the instrument was signed on behalf
of said corporation by authority of its Board of Directors; and the said
acknowledged the execution of said instrument to be the voluntary act and deed of said
corporation, by it and him voluntarily executed.
Notary Public in and for the State of Iowa
67
I WA I11.]1r_�
LEGAL DESCRIPTION
Lot 1 in Adam's Company's 2nd Addition, in the City of Dubuque, Iowa according to the
recorded plat thereof
OFFER TO BUY REAL ESTATE AND ACCEPTANCE
TO: City of Dubuque (hereafter "Seller")
The undersigned Buyer (or its assignee) hereby offers to purchase certain real estate
located in the City of Dubuque, Iowa, from the Seller, upon the following terms and conditions:
1. Real Estate Description. Buyer offers to buy real estate in Dubuque County, Iowa,
described as follows:
Lot 1 in Adam's Company's 2nd Addition, in the City of Dubuque, Iowa according to the
recorded plat thereof
hereafter designated the "Real Estate";
2. Price. The purchase price shall be $571,400.00 and paid as follows:
(a) $10,000.00 paid herewith as earnest money, the receipt of which
is acknowledged, and shall be applied to the purchase price at the
closing; and,
(b) The balance of the purchase price to be paid in full at the time of
closing by reasonable means acceptable to Seller.
3. Real Estate Taxes. Seller shall pay real estate taxes prorated to the date of
possession and any unpaid real estate taxes payable for prior years. Buyer shall pay all
subsequent real estate taxes. Any proration of real estate taxes on the Real Estate shall be
based upon such taxes for the year currently payable.
4. Special Assessments. Seller shall pay all special assessments which are a lien on the
Real Estate as of the date of closing. All other special assessments shall be paid by Buyer.
5. Risk of Loss and Insurance. Prior to Seller's delivery of possession of the Real Estate
to Buyer, all risk of loss shall remain with Seller until possession of the Real Estate shall be
delivered to Buyer.
6. Care and Maintenance. The Real Estate shall be preserved in its present condition
and delivered intact at the time possession is delivered to Buyer.
7. Possession. If Buyer timely performs all obligations hereunder, possession of the
Real Estate shall be delivered to Buyer on or before the _ day of , 202_ (DATE
TO BE WITHIN 60 DAYS OF THE DATE OF EXERCISE OF THE OPTION) (herein sometimes referred
to as the "Closing Date"), with any adjustments of rent, insurance and interest to be made as of
the date of transfer of possession.
8. Improvements. All improvements that integrally belong to or are part of the Real
Estate shall be considered a part of the Real Estate and included in this sale.
9. Use of the Purchase Price. At time of settlement, funds of the purchase price may be
used to pay taxes and other liens and to acquire outstanding interests, if any, of others.
10. Abstract of Title. Seller, at its expense, shall promptly obtain an abstract of title for
the Real Estate continued through a date within thirty (30) days of the closing date and deliver
it to Buyer for examination. It shall show merchantable title in Seller in conformity with this
agreement, Iowa Law & Title Standards of the Iowa State Bar Association. The abstract shall
become the property of the Buyer when the purchase price is paid in full. Seller shall pay the
cost of any additional abstracting and title work due to any act or omission of Seller.
11. Deed. Upon payment of the purchase price, Seller shall convey the Real Estate to
Buyer or Buyer's assignee by Warranty Deed free and clear of all liens, restrictions and
encumbrances. Any general warranties of title shall extend only to the time of acceptance of
this Offer, with special warranties as to acts of Seller continuing up to time of delivery of the
Deed.
12. Time is of the Essence. Time is of the essence in this contract.
13. Remedies of the Parties
(a) If Buyer fails to timely perform this contract, Seller may forfeit it as provided by Iowa
Code Chapter 656 (2020) and all payments made shall be forfeited or, at Seller's option, upon
thirty (30) days written notice of intention to accelerate the payment of the entire balance
because of such failure (during which thirty (30) days such failure is not corrected) Seller may
declare the entire balance immediately due and payable. Thereafter this contract may be
foreclosed in equity and the Court may appoint a receiver.
(b) If Seller fails to timely perform this contract, or if any of Buyer's conditions herein
are not satisfied at or prior to closing (or such other date or time as indicated in writing herein),
Buyer shall not be required to close hereunder and Buyer has the right to all payments made
returned to Buyer. (See Section 2(a) above).
(c) Buyer and Seller also are entitled to utilize any and all other remedies or actions at
law or in equity available to them and shall be entitled to obtain judgment for costs and
attorney's fees as permitted by law.
14. Contract Binding on Successors in Interest. This contract shall apply to and bind the
70
successors in interest of the parties.
15. Construction. Words and phrases shall be construed as in the singular or plural
number and as masculine, feminine or neuter gender, according to the context.
16. Time for Acceptance. If this Offer is not accepted by Seller on or before the day
of , 202_, it shall become void and all payments shall be repaid to Buyer.
17. Conditions Precedent to Buyer's Obligation to Purchase. Buyer's obligation to
purchase the Real Estate is expressly conditioned upon and contingent upon the satisfaction of
all of the following terms and conditions prior to the closing: None.
18. Legal Description. The legal description is as set forth in paragraph 1
above.
19. Groundwater Hazards. Seller represents and warrants to Buyer that, to the best of
Seller's knowledge, she has no knowledge of the presence in or beneath the Real Estate of solid
waste, radioactive waste, hazardous waste, hazardous substances, underground storage tanks,
wells or other conditions which may lead to groundwater contamination, including those
substances defined to be hazardous in 42 U.S. Code Section 9601, et seq. and Iowa Code
Chapter 455B (2020) or any other federal or state or local law with respect to groundwater
hazards.
20. Exclusive Dealing and Confidentiality. Seller agrees to not continue to offer this Real
Estate for sale or to negotiate with any other party other than the Buyer or Buyer's assignee
herein with respect to the sale and purchase of the Real Estate from the date of the acceptance
of this Offer to Buy Real Estate and Acceptance through and including the closing date set out in
Section 7 hereof. Additionally, all the parties hereto agree to keep the terms and conditions
herein confidential and all information received by Seller or Buyer with regard to the
negotiations including, but not limited to, financial and other information with respect to Seller
and Buyer, shall not at any time or in any way or manner be used or disclosed to others for any
purposes, and the parties shall take all measures necessary to insure that no agent or employee
of Seller or Buyer shall at any time use or disclose in any way such information received by the
parties as described in this agreement for any purpose other than the negotiations
contemplated by the parties to this agreement. This provision shall not, however, apply to the
financial advisors, accountants, architects, engineers or counsel of the parties. Further, the
parties acknowledge that certain disclosures relative to this Offer to Buy Real Estate and
Acceptance will be required in connection with the terms and conditions hereof, including, but
not limited to, financing, zoning, access and other conditions hereof, and the parties agree that
disclosure in connection with such activities is permissible with regard to this agreement. Any
public announcement with regard to the sale and purchase contemplated by this agreement
shall be only with the consent of the other party hereto from the date of the acceptance of this
Offer through the closing date hereof, this provision shall not apply to any of the parties hereto
on and after the closing date.
71
21. Miscellaneous. The parties agree that all understandings and agreements, if any,
previously made between the parties hereto are merged in this Agreement, which alone fully
and completely expresses their understanding with respect to the purchase and sale of the Real
Estate. This agreement may not be changed or terminated orally, but only by an instrument in
writing executed by all of the parties hereto. This agreement shall not be transferred or
assigned without the prior written consent of the other party hereto, which consent shall not
be unreasonably withheld. Notwithstanding the foregoing, Seller shall allow Buyer to assign
this agreement to purchase the Real Estate to another entity (corporation, limited partnership
or a limited liability company, or other business entity) designated by Buyer at or prior to the
time of closing. This agreement shall be governed by and construed in accordance with the
laws of the State of Iowa.
IZNU7
Buyer:
THIS OFFER IS ACCEPTED THIS DAY OF , 202_
Seller:
72
EXHIBIT L
11107_1L,I_[CIN44 M140kI
73
CITY OF DUBUQUE, IOWA
DOWNTOWN REHABILITATION LOAN PROGRAM
LOAN AGREEMENT
NUMBER: # - 2
This AGREEMENT, dated as of the day of , 202_, is entered into by and
between the CITY OF DUBUQUE, IOWA, a municipal corporation organized and existing under the laws
of the State of Iowa (hereinafter referred to as the "City") and 400 Ice Harbor, LLC (hereinafter referred to
as the "Owner").
WITNESSETH:
Whereas, a Development Agreement Concerning a Downtown Rehabilitation Loan for a Purchase
Option, was approved by the Dubuque City Council on , 2023 by Resolution No. _-23 to provide
an $571,000 Loan for the purchase of property.
Whereas, Owner's property at 400 Ice Harbor Drive, Dubuque, Iowa, legally described as follows:
Lot 1 in Adam's Company's 2nd Addition, in the City of Dubuque, Iowa according to the
recorded plat thereof
(the "Property"), is located within the boundaries of the Greater Downtown Urban Renewal District most
recently established by Resolution No. _-23 on June 5, 2023; and
Whereas, the goals and objectives of the Greater Downtown Urban Renewal Plan (the "Plan")
provide for the creation of the financial incentives needed to eliminate conditions of blight through a program
of voluntary or compulsory repair and rehabilitation of buildings and to retain or create employment and/or
housing opportunities within the District; and
Whereas, the City desires to assist Owner in its efforts to purchase adjacent property and to retain
or create employment opportunities within the District; and
Whereas, without the assistance of the Loan, Owner would be unable to purchase the adjacent
property, thereby threatening local employment opportunities.
NOW THEREFORE, in consideration of the premises and respective covenants, agreements and
representations hereinafter set forth, the parties agree as follows:
1. SOURCE OF FUNDS. City is prepared to provide financial assistance to qualified parties
through the use of tax increment financing under Chapter 403 of the Iowa Code, and has allocated funds
sufficient to carry out its obligations under this Agreement.
2. LOAN TERMS. City agrees to loan to Owner on the terms and conditions set forth herein
the amount of five hundred seventy-one thousand four hundred dollars ($571,400) that shall consist of the
Loan Program funds.
The term of the loan shall be ten (10) years. Interest on the loan shall be zero percent (0.0%) per
annum. Monthly interest payments shall become due and payable on the first day of the first month
following disbursement. The entire balance of the loan, including interest and principal, shall become due
and payable not later than the first day of the 1201" month following disbursement.
74
At the time of the initial disbursement of loan funds to Owner, Owner shall execute the Promissory
Note in the form attached hereto as Exhibit A payable to the order of the City in the principal amount of five
hundred seventy-one thousand four hundred dollars ($571,400) attached as Exhibit B.
3. DISBURSEMENT AND USE OF LOAN FUNDS. Loan funds shall be disbursed to Owner
by City upon execution of the Purchase Option, defined in the Purchase Agreement, for amounts not in
excess of the total sum of $571,400.
It shall be a condition precedent to the approval of this Agreement that Owner shall have paid all
real property taxes and assessments due and payable with respect to the Property and provide evidence
of such payment to City prior to approval of this Agreement by City.
4. SECURITY. The loan shall be secured by a Mortgage on the Property, a copy of which is
attached as Exhibit B. The value of the Property shall at no time be less than the unpaid balance of any
First Mortgage plus the unpaid balance of the City's mortgage.
5. STATUS OF OWNER. Owner represents that it is an organization duly organized and
existing under the laws of the State of Iowa; that it is authorized to borrow under this Agreement, to execute
and deliver the note and otherwise perform the obligations of this Agreement; that it has authority and power
to own its property and conduct its business as it is currently carried on; that the performance of its
obligations under this Agreement and the issuance of any note under it will not conflict with any provision
of law, the Articles of Incorporation or the Bylaws of Corporation, or any agreement binding on it. Owner
also represents, except as disclosed in writing to City, that it is not a party to any pending or threatened
litigation or to any proceeding or action for the assessment or collection of additional taxes, and that it
knows of no known contingent liabilities not provided for or disclosed in the financial statement provided to
City which would affect the ability of Owner to repay this loan.
6. FINANCIAL CONDITION OF OWNER. Owner has delivered to City a statement of
Owner's financial condition as of the date of application for financial assistance which fairly represents the
financial condition of Owner as of the date stated, all in accordance with generally accepted accounting
principles consistently applied, and that the statements still correctly reflect the financial condition and
status of its operations as of the date of this Agreement.
7. TITLE OF OWNER. Subject to the liabilities reflected on Owner's financial statement as
well as those incurred in relation to this Project, Owner represents that it has good and marketable title to
the Property, free of any mortgage, pledge, lien, security interest, encumbrance, or charge to all those
assets reflected on the financial statement and to assets since acquired. Owner shall provide to City a title
and lien search showing no unsatisfied mortgages, judgements, personal taxes, special assessments, tax
liens, mechanics liens, or liens of any kind adverse to the title of the Property at Owner's sole cost. Taxes
not due or payable or otherwise delinquent are excepted.
8. CONDITIONS OF BORROWING. On the date on which any sum is to be borrowed,
Owner, in addition to the Note, shall deliver to City such other papers and documents as may be required
to comply with the conditions of this Agreement, as counsel for City may reasonably request.
Owner shall be required at the Closing Date defined herein Paragraph 27(a) to comply, or establish
compliance, as follows:
(a) That the representations and warranties of Owner are correct on the Closing Date;
(b) That Owner has fully complied with the covenants and agreements to the extent required
before the Closing Date;
75
(c) That no default or event which might mature into a default has occurred or continues to the
Closing Date;
(d) That no litigation or proceeding is pending against Owner which would materially affect the
assets of Owner, taking into account the entire assets and overall business of Owner;
(e) That there has been no material adverse change in the financial condition of Owner from that
shown by the financial statement delivered to City under paragraph 8;
(f) That no fire or casualty has occurred in any building or to any inventories or property of
Owner that might substantially, adversely affect the conduct of its business; and
(g) That all taxes due as of the Closing date have been paid.
90. INSURANCE REQUIREMENTS. Owner agrees to comply with the following requirements
established by the City for the Loan :
(a) Developer shall provide and maintain or cause to be maintained at all times during the life of
the Loan (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):
All risk builder's risk insurance, written on a Completed Value Form in an amount equal to
one hundred percent (100%) of the replacement value when construction is completed.
(b) Up to the Termination Date, Owner shall maintain, or cause to be maintained, at its cost and
expense property insurance against loss and/or damage to the building (including the
Minimum Improvements) under an insurance policy written with the "special perils" form and
in an amount not less than the full insurable replacement value of the building (including the
Minimum Improvements), naming City as loss payee. Owner shall furnish to City proof of
insurance in the form of a certificate of insurance.
(c) The term "replacement value" shall mean the actual replacement cost of the building with
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.
(d) Owner shall notify City immediately in the case of damage exceeding $50,000 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
Owner as its interests may appear, and Owner 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, Owner shall apply the Net Proceeds
of any insurance relating to such damage received by Owner 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). Owner shall complete the
repair, reconstruction and restoration of Minimum Improvements whether or not the Net
Proceeds of insurance received by Owner for such purposes are sufficient.
10. DEFAULT. Owner shall be in default upon the occurrence of any of the following events:
(a) Owner fails to pay any installment of principal or interest on any note (whether to City or any
other public or private lender) when due or within thirty (30) days thereafter;
76
(b) Owner becomes insolvent or admits in writing its inability to pay its debts as they mature; or
applies for, consents to or acquiesces in the appointment of a trustee or receiver for any of
its property; or in the absence of an application for consent or acquiescence, a trustee or
receiver is appointed for it or a substantial part of its property and is not discharged within
ten (10) days; or it otherwise commits an act of bankruptcy; or any bankruptcy,
reorganization, debt arrangement or other proceeding under any bankruptcy or insolvency
law, or any dissolution or liquidation proceeding is instituted by or against it and if instituted
is consented to or acquiesced in by it or remains for ten days undismissed;
(c) Owner fails in the performance of any of the terms and conditions of this Agreement including
and such non-performance continues for ten (10) days after written notice thereof from City
or from the holder of a note;
(d) Any warranty made by Owner is untrue in any material respect, or any schedule, statement,
report, notice or writing furnished by Owner to City is untrue in any material respect on the
date as of which the facts set forth are stated or certified, provided any such error is not the
result of unintentional errors which are capable of correction without prejudice to the City;
(e) Any government board, agency, department, commission or public or private lender takes
possession or control of any substantial part of any property of Owner.
11. ACCELERATION AT OPTION OF CITY. If any event of default occurs, City may, after ten
days' written notice of default to Owner, declare Note immediately due and payable, at which time all unpaid
principal and interest shall immediately become due and payable. City shall promptly advise Owner in
writing of any acceleration under this paragraph, but the failure to do so shall not impair the effect of such
declaration.
12. MAINTENANCE OF RECORDS AND RIGHT TO INSPECT. Owner shall keep and
maintain books, records and other documents relating directly to the receipt and disbursement of loan
funds; and any duly authorized independent accounting representative of City shall at all reasonable times
have access to and the right to inspect, copy, audit and examine all such books and other documents of
Owner pertaining to the project until the completion of all close out procedures respecting City's loan and
the final settlement and conclusion of all issues arising out of said loan.
13. ADDRESS. Owner's principal business address is:
400 Ice Harbor, LLC
400 Ice Harbor Drive
Dubuque, Iowa 52001
Owner shall promptly give City written notice of any further change in its principal office address.
City's address is:
City Manager
City Hall
50 West 13th Street
Dubuque, Iowa 52001
14. LIMITATION OF CITY'S LIABILITY FOR PROJECT ACTIVITIES. City shall not be liable
to Owner, or to any party, for the completion of, or the failure to complete, any activities which are part of
the Project, except as may be specifically provided in this Agreement or other written agreements between
City and Owner or any of Owner's affiliates or subsidiaries. Owner agrees to indemnify, hold harmless and
defend City from any such claims.
15. CONFLICT OF INTEREST. Owner certifies that to its knowledge no member, officer or
employee of City, or its designees or agents, nor any consultant or member of the governing body of City,
77
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 inside information with regard to the Project, has nor shall have any interest, direct or
indirect, in any contract or subcontract, or in any activity, or benefit therefrom, which is part of this Project
at any time during or for one year after such person's tenure.
16. NONDISCRIMINATION. In carrying out the project, Developer shall not discriminate
against any employee or applicant for employment because of age, color, familial status, gender identity,
marital status, mental/physical disability, national origin, race, religion/creed, sex, or sexual orientation.
Owner shall post in a conspicuous place, available to employees and applicants for employment, notices
to be provided by City setting forth the provisions of this nondiscrimination clause. Owner shall state that
all qualified applicants will receive consideration for employment without regard to race, religion, color, sex,
sexual orientation, gender identity, national origin, age or disability.
17. DISCLAIMER OF RELATIONSHIPS. Nothing contained in this Agreement between the
parties, nor any act of City or Owner shall be deemed or construed by any of the parties, or by any third
persons, to create any relationship of third party beneficiary, principal or agent, limited or general
partnership, or joint venture.
18. NOTICE. Any notice, if mailed by United States certified mail, shall be deemed given when
mailed, postage prepaid, addressed to the other party at its address shown above, or at any other address
subsequently designated by either party to the other.
19. SUCCESSORS AND ASSIGNS. All covenants, representations, warranties and
agreements herein set forth shall be binding upon Owner, and its legal representatives, successors and
assigns. This Agreement may not be assigned by City or Owner without the express written consent of the
other party.
20. LEGALITY. If any provision of this Agreement shall, for any reason, be held to be invalid
or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, but this
Agreement shall be construed as if such invalid or unenforceable provision had never been contained
herein.
21. GOVERNING LAW. This Agreement and all rights and duties hereunder, including but not
limited to all matters of construction, validity and performance shall be governed by the laws of the State of
Iowa.
22. SURVIVAL OF REPRESENTATIONS. All representations or warranties of Owner shall
survive the execution and delivery of this Agreement and any note executed and delivered under it, and no
investigation by City nor any closing shall affect the representations or warranties or the right of City to rely
on and enforce them.
23. DELAY. No delay on the part of City or the holder of any note in the exercise of any right
shall operate as a waiver, nor shall any single or partial exercise of any right preclude other or additional
exercise of any right.
Dated this day of 12023.
CITY OF DUBUQUE, IOWA 400 ICE HARBOR, LLC
By:
Brad M. Cavanagh, Mayor
A
Michael Fullan, Organizer
ATTEST:
Adrienne N. Breitfelder, City Clerk
79
EXHIBIT M
M:J*91F1RTi►/_1N:7_1►kva1144C
:E
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 Development
Agreement described below and the sum of Ten and no/100 Dollars ($10.00) 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 the
following described parcel(s) situated in the County of Dubuque, State of Iowa, to wit (the
Property):
Lot Two (2) of Lot (2) of Adam's Company's 4th Addition in the City of Dubuque, Iowa,
according to the recorded plat thereof, subject to easements and restrictions of record
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 2023, 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 Development Agreement executed by Grantor and Grantee herein, dated the
day of 2023 (the Agreement), a memorandum of which was recorded
on the day of 2023, 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
lawful claims of all persons whomsoever claiming by, through and under it.
Dated this day of , 2023, at Dubuque, Iowa.
CITY OF DUBUQUE IOWA
ATTEST:
Adrienne N. Breitfelder, City Clerk
STATE OF IOWA
SS
COUNTY OF DUBUQUE
Brad M. Cavanagh, Mayor
On this day of , 2023, before me a Notary Public in and
for said County, personally appeared Bard 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 foregoing
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
w
Prepared By: Jill Connors City of Dubuque 1300 Main St. Dubuque, IA 52001 (563) 589-4393
Return To: Jill Connors, CitV of Dubuque 1300 Main St. Dubuque, fA 52001 (563) 589-4393
RESOLUTION NO. 409-23
APPROVING A DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF
DUBUQUE, 400 ICE HARBOR, LLC, AND HODGE COMPANY INCLUDING THE
DISPOSAL OF AN INTEREST IN REAL PROPERTY OWNED BY THE CITY OF
DUBUQUE BY SALE PURSUANT TO THE DEVELOPMENT AGREEMENT
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, 400 Ice Harbor, LLC submitted to the City a proposal in the form of a
Development Agreement for the development of property owned by the Developer which
includes an Option Agreement to purchase certain City -owned real property hereinafter
described ("the Parking Property"), which Parking Property is the real estate consisting of
approximately 0.68 acres shown on Exhibit A, and which Development Agreement
requests that this Parking 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
approve the Development Agreement and to dispose of
its interests in the Parking Property and the City Clerk published a notice on November
10, 2023 as required by law soliciting competitive proposals for the Development
Agreement and the Parking Property; and
WHEREAS, as of 10:00 a.m. on December 11, 2023 the City Clerk received no
competitive proposals for the Development Agreement and the Parking 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 400 Ice Harbor, LLC and
the Option Agreement to purchase the Parking 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 Development Agreement and the sale of
the Parking 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 Parking
Property under Iowa Code Section 403.8.
Section 2. The Development Agreement by and among the City, 400 Ice
Harbor, LLC, and Hodge Company, including the sale of the Parking 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 18t day of December, 2023.
Attest --
Adrienne N. Breitfelder, City Clerk
Brad M. Caph, Mayor
2
EXHIBIT A
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:
11/10/2023
and for which the charge is 202.68
Subscribed to before me, a Notary Public in and for
Dubuque County, Iowa,
this loth day of November, 2023
C�� 0 "�- i<' pnnv--�
Notary lic in and for Dubuque County, Iowa.
��4tni 8F JANET K. PAPE
0 9 Commission Number 199659
My Commission Expires
Q w a 12/11/2025
s are timely submitted, to
V A G `� fa the improvemenns in the event that no other qualified proposal shown on
accept the proposal of the Developer to purchase the Property
CITY OF DUBUQUE, IOWA Whereas, to recogn¢e both the firm proposal approve the Development Agreement by and between
already received by the City in the form of the Development Exhibit A and to
OFFICIAL NOTICE Agreement, as described above, and to give full andfairs Citaley and Developer.
PUBLIC NOTICE is hereby given that the City Council of to other developers interested in submiltinthn uP°� should by th s Section 9. That the official notice of this Offeringand
t k°rfielthsubmitted,
and development of the parking Property, the City, in the event no other qualified proposalsof this
the City of Dubuque, Iowa, will hold a public hearing on the 18"' day If and development
fa uses in accordance to approve the Development Agreement, shall be a true copy
December, 2023 at 6:30 p.m. in the Historic Federal Building, 350 West Resolution:1) Set fair market of the Parking Property Resolution, but witlwutthe attachments referred to herein.
6th Street, second floor, Dntiruque, Iowa, at wh'ich meeting the City Council ed and directed to secure
proposes to approve a DevelopmentAgreement which indudes an option with the Plan; a criteria included 10. That the C'dy Clerk is authoriz
to dispose of an interest by sale pursuant to a Development Agreement 2) Approve the minimum requirements and canpetitiv immelate publication of said official notice in the iele^o h Herald,
n the following described real property to 4o0 Ice Harbor, LLC an Iowa herein;newspaper having a general circulation in the community, by publication
limited liability company with its Principal plane of business in Dubuque, 3) Approve as to form the DevelopmentAgreement,the opening thereof; the t of this Resolution on or before the 19' day of November, 2023-
limited Set a date for receipt of competing pfop the City
Iowa, or its Assignee (Developer); Driveas shown ar Declare that the proposal submitted by Developer' satisfies the will be received by
Approximately 0.68 acres along Ice Harbor 5) and that in the event no other Section 11. mat written proposals
minimum requirements of the offering, that the City Council intends Clerk at or before 10:00 a.m., December 10, City
H in the Office nt
ExhibRA. is limey submitted, Clerk, located on the first floor at City Halt, �e at the
qualified PfOP and authorize the City Manager to sign the the City will be opened
The DevelopmentAgreement also provides for the issuance to Developer to accept such proposal Street, Dubuque, Iowa 52001. Each proposal
on December 14
of Urban Renewal Tax increment Revenue Grant Obligations in the DevelgprnentAgreement hour of 10:00 am. in City Hall, Dubuque,
resented to the City Council at
estimated amount of $296,598. 6) Approve and direct publication of a notice to advise any
the terms and 2023. Said proposals will then be P
to for sale of the Property6:30 p m December 18, 2023, at a meeting to be held in the City
At the meeting, the City Council will receive oral and written commends of the opportunity to comps
e owner of said City to the above action. conditions setforth herein; and is timely submitted Council Chambers, Historic Federal Building at 350 West 6tir Street,
from any resident or Property 7) peclare that in the event another qualified proposal
The official agenda will be posted the Friday before the meeting and will for sale as set forth
ca>tactrn9 law; and Section 12 That the method of offering the Property
s Ii Iowa Code
contain public input options. me City Council agenda can be accessed at and accepted, another and future notice will be published on the intent Dubuque, Iowa.
for buque.org. Whereas, the City Council believes it is in the best interest of the City and heraln is in substantial conformance with the
erbidd nrig procedures as
Nips://ct yofdubuque.novusagendacom/A9endkocity l l by of , City to enter into the resulting contract, as required Y Section 403.8, requiring reasonable comps
the city Clerk's Office at 563-589-4100, clyclerkCcityo thous as Possible to sell the Property as set
the Plan to air as expeditiously N P°as are hereby Prescribed and "fair value:'
Written comments regarding the above public hearings may be submitted forth herein. the
to the City Clerk's Office via email al cryclerk@cityofdubuque.org a by Section 13. That the required documentsforProu lions of this Resolutiaiproposal
mail to City Clerk's Office, City Hall, 50 W.13" St, Dubuque, A5200I c Now, THEREFORE, BE IT RESOLVED BY THE CITY CWNCIL OF THE shall be to substantial conformity appointed as the
before said time of public hearing. Al said time and place P Section 1CITY OF Dmat the IIOWA' Pr°perry shown on Exhibit A attached hereto,14 That the City Clerk is for the sale of
hearings the City Council will receive any written comments. shall be offered for sale in accordance with the terms and conditions Section
of the City of Dubuque, Iowa to receive nominated
Copies of supporting documents for the public hearings are on fi6betwe n contained in this Resolution. the Property on that date and according to the proce
dure hareinabove
be viewed Monday through Friday determined that in order to qual ty spec'itied for receipt of such proposals and to Proceed at such time to
City Clerk's Office and may Section 2, That it is hereby which Y b noting the
8:00 a.m. and 5:00 p.m. act consideration for selection, any person must submit a Proposal formal) acknowledge receipt of each of such proposal y
vision, hearing, a speech meets these minimum requirements: receipt of same in the Minutes of the Council; that the CityManager such
Individuals with limited English proficiencl, hereby authorized and directed to make preliminary analysis
Impairments requiring special assistance should contact the City Clerk's for compliance with the minimum requirements established
Officeat( i63)589-4100,cryderWcityofdubuque.agasseonasfeasible. 1) Meets, at a minimum, the tevel and conditions of the Development r0 that satisfies these
d sling 711 or Agreement submitted by the Developer inducting the required Minimum proposalCouncil hereinabove. For each P of the proposal
d Dollars the City Council shall judge the strength
Deal or hard of -hearing individuals can use Relay bwa by in of Four Million Seven Hundred Fifty -Rive Ttrousan requirements, ncil shall
80O) 735-2942. ($4 755 000) and an agreementto create and maintain Ten (10) additional by the competitive criteria established hereinabove.me City Cou
Dated this 6th day of November, 2023. then make the final evaluation and selection of the proposals•
F7E employees employed by Employer by October 1, 202�fd34dun
Adrienne N. Brelteider, City Clerk term of the agreement for a total of Thirty- O competing proposals ar received and
the remaining Section 15. ff, and only if,
RESOLUTION NO.370-23 employees in the city of Dubuque, Iowa- determined by the Council to meet the minimum require'nd ��
2) Contains an agreement to purchase the Parking Property, shown on
RESOLUTION (1) APPROVING THE MINIMUM REQUIREMENTS, purposes of herein, the Developer shall be allowed to amend its proposal � a date
Exhibit A, at not less than fair market value, which for the purpo thereto and to deliver same to the City Manager, by
COMPETITIVE CRITERIA AND OFFERING PROCEDURES FOR THE this resolution is hereby determined to be Five Hundred Seventy -One determined by the City Council. In such event, the Council shall schedule
DEVELOPMENT AND THE SALE OF CERTAIN REAL PROPERTY AND Thousand Four Hundred & 00/100 Dollars ($571,400.00) and to provide a subsequent meeting to be held by the City Manager at which there
IMPROVEMENTS IN THE GREATER DOWNTOWN URBAN RENEWAL for public parking on the Parking Property shall be a bid -off conducted by the City Manager. During such bid off,
DISTRICT; (2) DETERMINING THAT THE OFFER TO PURCHASE each competing bidder shall bid against the other, starting with the
SUBMITTED BY 40o ICE HARBOR, LLC SATISFIES THE OFFERING 3) Sets out or provides to the sat of the City Council the received and continuing until such time ed each
REQUIREMENTS WITH RESPECT TO THE REAL PROPERTY AND fo acquire and redevelop
IMPROVEMENTS AND DECLARING THE INTENT OF THE CITY COUNCIL experience of the principals and key staff who are directly engaged b second proposal
the performance of contract obligations in carrying out projects of similar bidder shall decline to improve its proposal acq
the Property shown on Exhibit A in response to the lost bid of the other
TO APPROVE THE SALE TO LS ICE HARBOR, LLC IN THE EVENT THAT scale and character; and bidder or bidders. me period of time to be allowed for such bid -off shall
NO COMPETING PROPOSALS ARE SUBMITTED; AND (3) SOLICITING Becton 3.matthe DevebpmentAgreement by and between the City and be determined by the City Manager. The rules of such bid -off shall be
COMPETING PROPOSALS as to form for the Purposes as determined by the City Manager at or before such bid off period and
Council of Dubuque. Iowa. did on June 5, 2023 adopt the Developer be and is hereby approvedshall be absolute.
Whereas, the City hereinafter stated. is timely
an Amended and Restated Urban Renewal Plan lathe Greater Downtown Section 4 That for the purpose of defining the offering of the Property for Section 16. mat in the event another qualified prof
Urban Renewal District ("The Plan") for the Urban Renewal Area described sale said Development Agreement shall be deemed to be illustrative of submitted and accepted by the City, another and further notice shall be
therein; and with respect to: published of the intent of the City of Dubuque, bwa to enter into the
Whereas, the Plan provides, among other things, for the disposition of the terms acceptable to the City resulting agreement, as required by law.
properties for private development purposes as a Proposed economic
1) Developer and City obligations; and
development adios; and 2) General terms and conditions. passed, approved and adopted this 6th day of November, 2023.
Whereas, 40f1 Ice Harbor, LLC p ("Developer")
has submitted to the City a Section 5 That the Development Agreement submitted by the Developer /sBmd M Cavanagh, Mayor
proposal in the form a Development Agreement for the development porch se Council intends to Attest:IslAdrienne N. Breiffelder, City Clark
satisfies the requirements of this offering and, in the event that no other EXHIBIT A
property owned by the DevebPer which includes an Option me or a�e9 qualified proposals are timely submitted, that the Cnry
hereinafter described (` acoeptantlapprovetheDevelopmentAgreement. oearrrNfPROPERT
certain City -owned real property a the real estate consisting of
Property" ), which Parking Property Section 6. That it Is hereby determined that the Developer possesses the
approximately 0.68 acres shown on Exhibit A, and made availablhich Development
for sale qualifications, financial resources and legal ability necessary to purchase
Agreement requests that this Parking Property the Property shown on ExhibitA and to construct, manage and operate the
as rapidly as possible; and site in the manner proposed by this offering in accordance with the Plan.
Whereas, in order to establish reasonably competitive bidding procedures and
for the disposition of the parking Property to accordance with the section
DeleekWrrnation
and. in
statutory requirements of Iowa Code Chapter 403, specifically, Section the attached DevelopmentAgreement submitted by
403.8, and to assure that the City extends atull and fair opportunity to all the event no other qualified proposais are timely submitted, shall resubmit
developers interested in submitting a proposal, a summary of submission the Development Agreement to the City Council for final approval and
requirements and minimum requirements and competitive criteria for the execution upon expiration of the notice hereinafter prescribed.
altering is inducted herein; and 8. matthe action of the City Council be considered to be and does
Property 9z notice ft all concernedCouncil
of the intention of this Council, 1 t 11 /10
Whereas, said Developer has signed a Development Agreement with the hhecti°nereby
City, currently on file at the Office of the City Clerk; and
Doc ID: 011188270002 Type: GEN
Kind: AGREEMENT
Recorded: 02/02/2024 at 10:16:57 AM
Fee Amt: $12.00 Paqe 1 of 2
Dubuque County Iowa
Karol Kennedy Recorder
File2024-00000903
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 Development Agreement by and among the City of Dubuque, Iowa, an Iowa municipal
corporation, of Dubuque, Iowa, and 400 ICE HARBOR, LLC, and HODGE COMPANY
was made regarding the following described premises:
Lot Two (2) of Lot (2) of Adam's Company's 4th Addition in the City of Dubuque, Iowa,
according to the recorded plat thereof, subject to easements and restrictions of record
The Development Agreement is dated for reference purposes the 18th day of
December, 2023, and contains covenants, conditions, and restrictions concerning the use
of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the terms
and provisions of the Development Agreement shall prevail. A complete counterpart of
the Development 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 , 2024.
CITY OF DUBUQUEAIA..
By:
Barry A. Lindahb Esq., Senior Counsel
Dt6ue (I � Clem W �2cO
STATE OF IOWA
SS:
DUBUQUE COUNTY
On this Lfday of , 2024, 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.
e t JONI LYN MEDINGER
CommWlon Number BS2196
My Commission Explros
Nota ublic, State of Iowa ,o,�� ('2 j I iAC.1