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Proposed Development Agreement with Kinseth Hospitality Company, Inc.City of Dubuque Special Meeting ITEM TITLE: SUMMARY: SUGGESTED DISPOSITION: Copyrighted August 14, 2024 Items to be set for Public Hearing # 01. Setting Public Hearing fora Proposed Development Agreement between the City of Dubuque, Iowa and Kinseth Hospitality Company, Inc. City Manager recommending City Council approval of a resolution that sets a public hearing for September 16, 2024 on the proposed Development Agreement between the City of Dubuque, Iowa and Kinseth Hospitality Company, Inc. RESOLUTION (1) Approving the minimum requirements, competitive criteria, and offering procedures for the development and the sale of certain real property and improvements in the Greater Downtown Urban Renewal District; (2) determining that the offer to purchase submitted by Kinseth Hospitality Company, Inc. satisfies the offering requirements with respect to the real property and improvements and declaring the intent of the City Council to approve the sale to Kinseth Hospitality Company, Inc.in the event that no competing proposals are submitted; and (3) soliciting competing proposals Receive and File; Adopt Resolution(s), Set Public Hearing for September 16, 2024Suggested Disposition: ATTACHMENTS: Description MVM Memo Staff Memo Development Agreement Resolution to Set Public Hearing Conceptual Rendering Type City Manager Memo Staff Memo Supporting Documentation Resolutions Supporting Documentation Masterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager Dubuque All -America City 1IIr II 2007.2012.2013 2017*2019 SUBJECT: Setting Public Hearing for a Proposed Development Agreement between the City of Dubuque, Iowa and Dubuque and Kinseth Hospitality Company, Inc. DATE: August 12, 2024 Economic Development Director Jill Connors is recommending City Council approval of a resolution that sets a public hearing on the proposed Development Agreement between the City of Dubuque, Iowa and Kinseth Hospitality Company, Inc. Kinseth Hospitality Company, Inc. (Developer) is the developer of three existing hotel properties in the City of Dubuque — the Hampton Inn by Hilton, the TownePlace Suites by Marriott in the Historic Millwork District (recently built and opened in December 2018), and the Holiday Inn Dubuque/Galena, an IHG Hotel. This Developer has a portfolio of over 125 hotels across the country. City staff have been in conversations with Mr. Ben Kinseth for several years about the idea of bringing an additional hotel to the City of Dubuque, to be potentially located in the Port of Dubuque. Mr. Kinseth recently proposed the development of two hotels — a Courtyard by Marriott or AC Marriott Hotel and a Residence Inn by Marriott. The two hotels are proposed to be connected by a shared check -in desk and other shared amenities. Staff have recognized the need for additional hotel accommodations in the Port of Dubuque to support the operations of the Grand River Convention Center. It would open doors to larger events and conferences that require a hotel within walking distance. Adding multiple brands offers a choice of hotels and potentially different price points depending upon the hotel brand. This can be attractive to persons on different budgets. The proposed Development Agreement includes the following: • Developer will purchase approximately 2 acres of a 12.65-acre site in the Port of Dubuque at $400,000/acre for a total of approximately $800,000, to be adjusted based on the acreage determined by the final Plat. • Developer will construct the two hotels with a combined total of approximately 160 rooms at an investment of approximately $30,000,000. • Developer has until December 31, 2026, to construct the project, with a $50,000/month penalty if the project is not complete by that date. • City and Developer will execute a mutually agreeable parking agreement to accommodate parking for hotel employees and guests in the surface lot located immediately east of the hotel. • City will provide 10 years of tax increment financing. • City agrees to a restrictive covenant prohibiting City from granting a building permit for the development of any additional hotel/hospitality facilities on the 12.65-acre site until the hotel has obtained a certificate of occupancy or by December 31, 2026, whichever first occurs. • City has the option to construct streets built to City standards adjacent to the hotel, to provide access to accommodate future development of the remainder of the 12.65 acres. The attached resolution directs City staff to publish a notice of public hearing to consider this Development Agreement, and by Iowa Code the public hearing must be held at least 30 days following the public notice. During those 30 days, other potential developers have the opportunity to bring forward a competing proposal for development of the property. If a competing proposal is received, the City Council may consider the two proposals and select the proposal it determines is in the best interest of the community. There is no hotel developer or hotel operator that knows the Dubuque market better than the Kinseth group. Not only do they currently operate three hotels here in Dubuque, the Downtown Holiday Inn, the TownePlace Suites in the Historic Millwork District and the Hampton Inn, but they were the last hotel developer to build a new hotel in Dubuque when they built the new TownePlace Suites in the Historic Millwork District. The TownePlace Suites is one of the highest occupancy hotels in the Dubuque market. If the Kinseth Group wants to build two new hotels adding 160 hotel rooms to the Dubuque market it is because they not only see the current demand but they see the demand that is being created by all of the new projects coming to Dubuque. Kinseth has provided reasons the City would select them as the hotel developer: • "Kinseth has the size and scope of operation to develop the properties and amenities as described. • Kinseth has been chosen by Marriott as a top franchise partner, receiving the Marriott golden circle award multiple times. • Kinseth has been recognized as Developer of the year for both Marriott and Hilton multiple times. • Kinseth has earned the Management/Franchise Partner legacy award for Hilton. • Kinseth has developed destination hotels similar in size and scope of the proposed properties including the following: o Hilton Garden Inn and Vue in downtown Iowa City. o AC by Marriott in the 1st and 1st in Cedar Rapids — Currently under development. o Homewood Suites & Vue Rooftop — Dillion, Colorado 2 • Kinseth has been part of the Dubuque business community since 1996 and currently operates 3 Dubuque hotels including the Holiday Inn, TownePlace Suites, and the Hampton Inn." Enticing more youth sports tourism activities and development to the Dubuque region will take more hotel rooms. The TBK Bettplex sports tourism facility in Bettendorf generates demand for over 30,000 hotel rooms a year and has led to the construction of at least 2 new hotels in that market. Adding more hotel rooms to the Port of Dubuque will provide support for the following: • Grand River Center. • National Mississippi River Museum and Aquarium. • Soon to be renovated Five Flags. • Downtown and Historic Millwork District businesses. • Efforts to bring more sports tourism development to Dubuque beyond the Field of Dreams. • Miracle Field. • Alliant Energy Outdoor Amphitheater at the Star Brewery Building. • Efforts to entice further investment in the Port of Dubuque by increasing activity in the district. • The regional tourism industry especially the flourishing arts and entertainment industry with a new art museum soon to be built. • The new Wanderwoods Garden — Butler's Children's Garden. • The many visitors related to the local college students and college activities and events. This will not be competition to the Grand Harbor Hotel & Water Park but will be complementary because with more events drawn to the Grand River Center and elsewhere there will be more room rentals and the Grand Harbor is a unique property with the waterpark, and the direct connection to the river walk and the Grand River Center. The Grand River Center deserves special mention here as it is known that if there were only more hotel rooms in close proximity to the Grand River Center there would be more and larger conventions, conferences, trade shows and other activities at the facility increasing the spending at local businesses and decreasing the need for city property tax subsidies at the facility. Also, local businesses would not need to take their large scale business, sales and training activities out of town. 3 This project will increase the city hotel/motel tax revenues with 50% supporting the Convention and Visitors Bureau (Travel Dubuque) and 50% providing property tax relief and the new hotel will add to the community property tax base. Adding visitors to Dubuque also supports workforce development as the Iowa Economic Development Authority reports that over 60% of the people that move to a new community discovered that community through a vacation visit or business trip visit. Travel Dubuque President and CEO Keith Rahe, Dyersville Economic Development Corporation Executive Director Jacque Rahe, and Travel Dubuque Field of Dreams Operations Vice President John Sutter recently presented to the Greater Dubuque Development Corporation Board of Directors. The Vision for the Field of Dreams site is as follows: • Preserve and build upon the iconic Field of Dreams destination in Dubuque County, that has drawn over 4,000,000 visitors, for generations to come. • Create a world -class venue to host a variety of state, regional, and national events including future MLB games. • Carry the momentum and excitement of past events and the MLB relationship to a multi -year level. • Elevate and showcase the history, opportunities, and vitality of the Tri-State Region: the place we call home. The two Major League Baseball games that have been played on the field drew over 9.3 million viewers with the first game being the most watched regular season game since 2005. They have a feasibility study that shows their project to build a permanent Major League Baseball field and a world class youth sports complex will lead to over $10 million in annual spending and over 300 new jobs in the region. In 2022, travel related expenditures in Dubuque County were $439 million supporting over 2,900 jobs. The 7% Hotel/Motel tax revenues are projected to be $3,239,545 in 2025 (prior to completion of any Field of Dreams improvements) an increase of 43% ($965,500) from 2019, the year before the pandemic, which was $2,269,045. Even without the improvements being completed, over 400 youth baseball teams came to Dubuque County for Field of Dreams tournaments in 2024. 4 According to a feasibility study conducted by Sports Facility Advisors, the Field of Dreams Youth Sports Complex alone is expected to generate new demand for 60,068 hotel room nights a year. The Field of Dreams Youth Sports Complex is expected to generate over $17 million in total direct spending for the local economy. This only includes the impact of the new Youth Sports Complex and does not include the impact on hotel room demand or the local economy of the new Major League Baseball Stadium being built at the Field of Dreams, where they will play Major League and College baseball games and host concerts and other activities drawing visitors to this region. While they have not done a feasibility study on the economic impact of the Major League Baseball stadium component of the Field of Dreams Project, Keith Rahe estimates it could generate an additional 40,000 hotel room nights. This would be a grand total of 100,000 new hotel room nights a year. With the continued expansion of our business community, in July 2024 Dubuque hit an all time high for number of jobs at 62,200, there will be increased hotel demand by business travel, and they prefer to stay at a branded hotel like Hilton or Marriott so they can add to the travel club points. The expansion of the Mississippi River Cruise boat industry with the arrival of 4 new boats and the arrival of Viking Cruise Lines is expanding the exposure of the international traveler to Dubuque. While they do not stay in hotels while on their cruise, some of these people will come back to Dubuque and most of these passengers will go back to their homes and tell their family and friends about this new place they have discovered in the heartland of America, Dubuque — the Masterpiece on the Mississippi. The same is true for the international exposure that will be created through the Field of Dreams. Some of those people will come back and they will tell their families and friends about Dubuque. A May 2024 McKinsey & Company report titled, "The State of Tourism and Hospitality 2024," has several important conclusions: "Global Travel is back and buzzing. More regional trips, newly emerging travelers and a fresh set of destinations are powering steady spending." "As global tourism grows, it's crucial for destinations to be ready. How can the tourism ecosystems prepare to host unprecedented volumes of visitors -while also managing the challenges." McKinsey surveyed current day travelers with the following results: "Travel has become a top priority, especially for younger generations. Sixty-six percent of the travelers we surveyed say they're more interested in travel now than they were before the COVID-19 pandemic. This pattern holds across all surveyed age groups and nationalities. Respondents also indicate that they're planning more trips in 2024 than they did in 2023." 5 "Travel isn't merely an interest these days. It's become a priority -even amid uncertain economic conditions that can make budgeting a challenge. Travel continues to be one of the fastest -growing consumer spending areas, rising 6 percent over a recent 12- month period in the United States, even when adjusted for inflation. Only 15 percent of our survey respondents say they're trying to save money by reducing the number of trips they go on. And in the February 2024 McKinsey ConsumerWise Global Sentiment Survey of more than 4,000 participants, 33 percent of consumers said they planned to splurge on travel, ranking it the third -most -popular splurge category -trailing only eating at home and eating out at restaurants." "Younger generations appear to propel much of the rising interest in travel. In 2023, millennials and Gen Zers took, on average, nearly five trips, versus less than four for Gen Xers and baby boomers. Millennials and Gen Zers also say they devote, on average 29 percent of their incomes to travel, compared with 26 percent for Gen Zers and 25 percent for baby boomers." "Younger generations are prioritizing experiences over possessions. Fifty-two percent of Gen Zers in our survey say they splurge on experiences, compared with only 29% of baby boomers." McKinsey concludes that, "Tourism and hospitality are on a journey of disruption. Shifting sources markets and destinations, growing demand for experiential and luxury travel, and innovative business strategies are all combining to dramatically alter the industry landscape." Las Vegas talks about the "Fun Economy." They say they are at the intersection of a massively intertwined fun economy of tourism, sports and entertainment. Dubuque is no Las Vegas, nor do we want to be, but we are, a beneficiary of the, "Fun Economy." If we expect to be a premier tourism destination, we need to have the infrastructure in place to support those visitors to our signature tourist attractions like, the Mississippi River, the National Mississippi River Museum and Aquarium, the Field of Dreams, and the many supporting attractions including the gambling industry. In my research I have found that tourism significantly impacts a local economy in various ways: • Tourism generates employment opportunities in various sectors, including hospitality, transportation, retail, and entertainment. This helps reduce unemployment rates and supports local livelihoods. 6 • Visitors spend money on accommodations, food, attractions, and services, contributing to the local economy. This influx of cash helps businesses thrive and can lead to increased tax revenue for local governments. • Tourism encourages the growth of local businesses, from restaurants and shops to tour operators and attractions. This can lead to a more vibrant local economy and community. • Tourism fosters cultural exchange and appreciation, which can enhance the community's cultural offerings and create a more diverse and inclusive environment. • Successful tourism can enhance a region's reputation, attracting further investment and visitors. This positive branding can lead to long-term economic benefits. Overall, tourism acts as a catalyst for economic development, bringing diverse benefits to local communities while fostering a sense of pride and cultural identity. Hotels affiliated with well-known brands like Marriott or Hilton often attract more guests. This is due to several factors: • Established brands have a strong reputation, which can instill trust and confidence in potential guests. • Many major hotel chains offer loyalty programs that reward frequent travelers with points, discounts, and special perks, encouraging repeat customers. • Brand -affiliated hotels typically adhere to strict quality and service standards, ensuring a consistent and reliable experience for guests. • Major brands have substantial marketing budgets, allowing them to reach a wider audience through various channels, including online advertising and partnerships. • Branded hotels often choose prime locations and offer a range of amenities, which can make them more appealing to travelers. Overall, the brand association can significantly influence a guest's choice when selecting accommodations. Nearby hotel rooms play a crucial role in supporting a convention and conference center in several ways: • They provide convenient lodging for attendees, speakers, and exhibitors, making it easier for them to participate in events without long commutes. 7 • Proximity to hotels can boost attendance, as attendees are more likely to register for events if they know comfortable accommodations are readily available. • Hotels often collaborate with conference centers to offer package deals that include lodging, meals, and event registration, making it more appealing for potential attendees. • Staying at nearby hotels allows attendees to network outside of formal sessions, enhancing relationship -building and collaboration. • Event organizers benefit from the convenience of having accommodations close by, simplifying logistics and enabling easier management of event -related needs. • Attendees often extend their stays for leisure purposes, benefiting the local economy and tourism. Overall, the synergy between nearby hotels and convention centers enhances the overall experience for attendees while driving economic benefits for the local community. I concur with the recommendation and respectfully request Mayor and City Council adoption of the attached resolution setting a public hearing for September 16, 2024, to consider the attached Development Agreement for the construction of two Marriott hotels in the Port of Dubuque. Michael C. Van Milligen MCVM:sv Attachment cc: Crenna Brumwell, City Attorney Cori Burbach, Assistant City Manager Jill Connors, Economic Development Director 8 Masterpiece on the Mississippi Dubuque All-Aeenn %,IX rm:Ii'lI 2007.2012.2013 2017*2019 Economic Development Department 1300 Main Street Dubuque, Iowa 52001-4763 Office (563) 589-4393 TTY (563) 690-6678 http://www.cityofdubuque.org TO: Michael C. Van Milligen, City Manager FROM: Jill Connors, Economic Development Director SUBJECT: Setting Public Hearing for a Proposed Development Agreement between the City of Dubuque, Iowa and Kinseth Hospitality Company, Inc. DATE: August 12, 2024 INTRODUCTION This memo presents for City Council consideration a resolution that sets a public hearing on the proposed Development Agreement between the City of Dubuque, Iowa and Kinseth Hospitality Company, Inc. BACKGROUND Kinseth Hospitality Company, Inc. (Developer) is the developer of three existing hotel properties in the City of Dubuque — the Hampton Inn by Hilton, the TownePlace Suites by Marriott in the Historic Millwork District (recently built and opened in December 2018), and the Holiday Inn Dubuque/Galena, an IHG Hotel. This Developer has a portfolio of over 125 hotels across the country. City staff have been in conversations with Mr. Ben Kinseth for several years about the idea of bringing an additional hotel to the City of Dubuque, to be potentially located in the Port of Dubuque. DISCUSSION Mr. Kinseth recently proposed the development of two hotels — a Courtyard by Marriott or AC Marriott Hotel and a Residence Inn by Marriott. The two hotels are proposed to be connected by a shared check -in desk and other shared amenities. Staff have recognized the need for additional hotel accommodations in the Port of Dubuque to support the operations of the Grand River Convention Center. It would open doors to larger events and conferences that require a hotel within walking distance. Adding multiple brands offers a choice of hotels and potentially different price points depending upon the hotel brand. This can be attractive to persons on different budgets. The proposed Development Agreement includes the following: • Developer will purchase approximately 2 acres of a 12.65-acre site in the Port of Dubuque at $400,000/acre for a total of approximately $800,000, to be adjusted based on the acreage determined by the final Plat. • Developer will construct the two hotels with a combined total of approximately 160 rooms at an investment of approximately $30,000,000. • Developer has until December 31, 2026 to construct the project, with a $50,000/month penalty if the project is not complete by that date. • City and Developer will execute a mutually agreeable parking agreement to accommodate parking for hotel employees and guests in the surface lot located immediately east of the hotel. • City will provide 10 years of tax increment financing. • City agrees to a restrictive covenant prohibiting City from granting a building permit for the development of any additional hotel/hospitality facilities on the 12.65-acre site until the hotel has obtained a certificate of occupancy or by December 31, 2026, whichever first occurs. • City has the option to construct streets built to City standards adjacent to the hotel, to provide access to accommodate future development of the remainder of the 12.65 acres. The attached resolution directs City staff to publish a notice of public hearing to consider this Development Agreement, and by Iowa Code the public hearing must be held at least 30 days following the public notice. During those 30 days, other potential developers have the opportunity to bring forward a competing proposal for development of the property. If a competing proposal is received, the City Council may consider the two proposals and select the proposal it determines is in the best interest of the community. RECOMMENDATION I recommend the City Council adopt the attached resolution setting a public hearing for September 16, 2024 to consider the attached Development Agreement for the construction of two Marriott hotels in the Port of Dubuque. 2 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF DUBUQUE, IOWA, AND KINSETH HOSPITALITY COMPANY, INC. This Development Agreement, dated for reference purposes the day of , 2024, by and between 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) and Kinseth Hospitality Company, Inc., an Iowa corporation with its principal place of business in Iowa (Developer). WHEREAS, City is the owner of the following described real estate: LOT 2 RIVERWALK 9TH ADDITION and WHEREAS, Developer has requested that City sell to Developer approximately 2 acres of LOT 2 RIVERWALK 9TH ADDITION (the Property) upon which Developer will construct dual hotels, branded Marriott Hotels & Resorts, as generally shown on Exhibit G (the Hotels); and 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 Property is located in the Greater Downtown Urban Renewal District (the District) which has been so designated by City Council Resolution 410-23 as a slum and blighted area (the Project Area) defined by Iowa Code Chapter 403 (the Urban Renewal Law); and WHEREAS, Developer will construct and operate the Hotels on the Property as provided herein; and WHEREAS, Developer will make a capital investment in building construction, equipment, furniture and fixtures in the Hotels, all of the foregoing referred to herein as the Project; and WHEREAS, pursuant to Iowa Code Section 403.6(1), and in conformance with the Urban Renewal Plan for the Project Area adopted on May 18, 1967 and last amended on December 18, 2023, City has the authority to enter into contracts and agreements to implement the Urban Renewal Plan, as amended; and WHEREAS, the City Council believes it is in the best interests of the City to encourage Developer in the development of the Property by providing certain incentives as set forth herein. 08082024ba1 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 to enter into this Agreement, City hereby represents and warrants to Developer that to the best of City's knowledge: 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 substantially the form attached hereto as Exhibit B. City shall exercise its best efforts to cooperate with Developer in the development process. (1) City shall exercise its best efforts to resolve any disputes arising during the development process in a reasonable and prompt fashion. (2) 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. (3) 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. (4) City has good and marketable title in fee simple to the Property. As of the date of this Agreement, the Property has not been assigned or conveyed to any party. As of the date of City Council approval of the Agreement following a public hearing, no person (other than Developer pursuant to this Agreement) has a right to acquire any interest in the Property. (5) 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 08082024ba1 such representations and warranties had been made on and as of the Closing Date. 1.2 Representations and Warranties of Developer. Developer makes the following individual representations and warranties: (1) Developer is duly organized and validly existing or authorized under the laws of the State of Iowa and has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as presently proposed to be conducted, and to enter into and perform its obligations under the Agreement in the State of Iowa. (2) This Agreement has been duly authorized, executed and delivered by Developer, 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 enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. Developer's counsel shall issue legal opinions to the City, at time of closing, confirming the representations contained herein, in substantially the form attached hereto as Exhibit C. (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 any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which Developer is now a party or by which it or its property is bound, or constitute a default under any of the foregoing. (4) There are no actions, suits or proceedings pending or threatened against or affecting Developer in any court or before any arbitrator or before or by any governmental body in which there is a reasonable possibility of an adverse decision which could materially adversely affect the business, financial position or result of operations of Developer or which affects the validity of the Agreement or Developer's ability to perform its obligations under this Agreement. (5) Developer will perform its obligations under this Agreement in accordance with the material terms of this Agreement, the Urban Renewal Plan and all local, state and federal laws and regulations. (6) Developer will use 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 shall obtain commitments for construction and permanent 08082024ba1 financing and/or sufficient 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 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 substantially 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 Property. Any conditions imposed as a part of the zoning, platting or subdivision must be satisfactory to Developer, in its sole opinion. Prior to and after Closing, 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 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 contemplated by this Agreement, this Agreement and any other applicable City or affiliated agency requirements, with the understanding that Developer and its lenders, if any, 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 and City shall be in material compliance with all the terms and provisions of this Agreement. (4) Receipt of an opinion of counsel to Developer in substantially the form attached hereto as Exhibit C. (5) Developer shall have the right to terminate this Agreement at any time prior to the consummation of the Closing on the Closing Date if Developer determines 08082024ba1 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 Developer in Developer's sole and unfettered discretion. Upon the giving of notice of termination by Developer to City, this Agreement shall be deemed null and void. (6) Developer shall have prepared and shall be prepared to record at Closing a plat of survey of Property acceptable to Developer (the "Plat"), which shall be sufficient to convey title to the Property in compliance with all applicable subdivision statutes and ordinances and, at Developer's option, shall include location and depiction of all applicable easements and other substantial contemplated improvements. (7) Within fourteen (14) days after the effective date of this Agreement, City shall deliver to Developer an abstract of title covering the Property prepared by an abstractor qualified by the Title Guaranty Division of the Iowa Finance Authority and continued at least through such effective date (the "Abstract of Title"), and any existing as -built ALTA or other survey of the Property prepared by a surveyor licensed in the State of Iowa (the "Existing Survey"). Developer may, at Developer's cost, update the Exiting Survey and have it recertified or obtain a new survey in accordance with Developer's requirements (the "Survey"). The Abstract of Title shall become Developer's property when the Property Purchase Price is paid in full. The Abstract of Title and Survey shall show marketable title in City in conformity with this Agreement, Iowa law, and the title standards of the Iowa State Bar Association. Developer shall deliver to City in writing a specific list of any objections to matters appearing in the Abstract of Title or the Survey (all such objections to be delivered in a single written notice from Developer to City). Any items constituting encumbrances upon or adversely affecting title to the Property (as reflected by the Abstract of Title or the Survey) approved by Developer shall be deemed "Permitted Exceptions". City shall make every reasonable effort to promptly perfect title. If City is unable to cure any of Developer's objections prior to Closing, or if any matters adversely affecting title to the Property arise after the date of the Abstract of Title and Survey and prior to Closing and City is unable to cure such matters, Developer, at its election, may either (i) terminate this Agreement, and neither party will have any further rights, duties or obligations hereunder (other than those which expressly survive a termination hereof) or (ii) waive such objection and consummate the transactions contemplated hereby. Notwithstanding the foregoing, if the Abstract of Title indicates title to the Property is encumbered by or subject to any mortgages, security interests, financing statements, judgment liens, tax liens (except for taxes not yet due and payable), mechanic's and materialman's liens, or other voluntary or involuntary liens, that were granted by City or that arise from City's acts or omissions (hereinafter referred to collectively as "Liens"), then City shall discharge (by payment or otherwise obtaining a release of such Liens for the Property) the same of record. It shall not be necessary for Developer to list any such Liens in Developer's notice of title objections and none of such Liens shall ever constitute, be or become Permitted Exceptions. 08082024ba1 1.4 Rights of Inspection, Testing and Review. Developer, and its consultant(s), shall have access to the Property and all parts thereof pursuant to the terms and conditions of the Site Access Agreement attached hereto as Exhibit H and incorporated herein by reference, and shall have the further right to make such inquiries of governmental agencies and utility companies, etc. as it considers appropriate. (1) Environmental Investigation/Confidential Information. Developer shall have the right to inspect the Property prior to the Closing Date and to take whatever tests or perform such examination, as Developer shall deem appropriate, at its own risk and its sole cost and expense, to evaluate the environmental condition of the Property. Prior notice of such activity by Developer shall be provided to City (which such notice may be made by electronic mail), and written results of such activity shall be shared with City promptly after City's written request for such results. Developer shall not disclose the information from the investigation or the report of the investigation to any party prior to the Closing, other than City without the prior consent of City except as required by law or court order, and except that to the extent that such information is necessary to Developer's architects, engineers, surveyors, contractors, attorneys, investors, lenders, consultants and advisors, provided, however, such persons shall agree to keep such information confidential as provided in this Section. Notwithstanding the foregoing, within thirty (30) days of the date hereof, City, at City's expense, using proceeds obtained from a grant from the Environmental Protection Agency, will obtain and deliver to Developer a Phase I Environmental Assessment Report for the Property prepared by Blackstone Environmental. (2) Hazardous Substance Remediation. (a) Prior to the Closing, if Developer determines, upon receipt and consideration of any report of investigation of the Property that applicable law requires removal and/or remediation of Hazardous Substances on the Property prior to construction of any of the Minimum Improvements (as hereinafter defined), then Developer, at Developer's election, may retain, at its sole cost and expense, an environmental consultant to prepare a plan (the "Environmental Remediation Plan") for the removal and/or remediation of the identified Hazardous Substances to a level as may be required by law and/or to a level sufficient to allow construction of the Minimum Improvements. (b) Based on findings of any Phase I or Phase 2, Environmental Remediation Plan or other report or investigation, Developer, in its sole discretion, may elect to terminate this Agreement prior to Closing by giving written notice to City, without any further obligation on the part of Developer or City. 08082024ba1 (3) Definitions. For the purposes of this Agreement, the following definitions shall apply: (a) Environmental Law. Any and all federal, state and/or local laws, regulations and legal requirements pertaining to (i) the protection of health, safety and the indoor and outdoor environment, (ii) the conservation, management or use of natural resources and wildlife, (iii) the protection, access to or use of surface water and groundwater, (iv) the management, manufacture, possession, presence, use, generation, transportation, treatment) storage, disposal, Release, threatened Release, abatement, removal, remediation or handling of, or exposure to, any Hazardous Substance or (v) pollution (including, without limitation, any Release to air, land, surface water and groundwater), and includes, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendment and Reauthorization Act of 1986, 42 U.S.C. 9601 et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. 6901 et seq.; the Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C. 1251 et seq.; the Clean Air Act of 1966, as amended, 41 U.S.C. 7401 et seq.; the Toxic Substances Control Act of 1976, 15 U.S.C. 2601 et seq.; the Hazardous Substances Transportation Act, 49 U.S.C. App. 1801 et seq.; the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. 651 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq.; the Emergency Planning and Community Right -to -Know Act of 1986, 42 U.S.C. 11001 et seq.; the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.; the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. 300(f) et seq.; Chapter 455B of the Iowa Code; any similar, implementing or successor law to any of the foregoing and any amendment, rule, regulation, order or directive issued thereunder. (b) Hazardous Substance or Hazardous Substances. Any hazardous or toxic substance, material or waste, which is or becomes regulated by any local government, the State of Iowa or the United States Government. It includes, without limitation, any material or substance that is (i) defined as a "hazardous substance" or "hazardous waste" under Chapter 455B, Iowa Code, (ii) petroleum and petroleum products, (iii) asbestos containing materials in any form or condition, (iv) designated as a "hazardous substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1321), (v) defined as a "hazardous waste pursuant to § 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi) defined as a "hazardous substance" pursuant to § 101 of the Comprehensive Environmental Response, Compensation and Liability Act, U.S.0 § 9601 et seq., or (vii) defined as a "regulated substance" pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. § 6991 et seq.] The term 08082024ba1 "Hazardous Substance" shall not include any air emissions discharged into the atmosphere as allowed by a duly issued permit from the applicable governmental agency. (c) Release. Any spilling, migrating, seeping, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing of any Hazardous Substance into the indoor or outdoor environment, including, without limitation, the abandonment or discarding of barrels, drums, containers, tanks and other receptacles containing or previously containing any Hazardous Substance and including without limitation the migration of any Hazardous Substance onto the Property from an adjacent property. 1.5 Closing. The closing shall take place on the Closing Date which shall be on or before the 1st day of February, 2025, or such other date as the parties shall agree in writing but in no event shall the Closing Date be later than the 1st day of March, 2025 without written consent of City in its sole discretion. 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. 1.6 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. CONVEYANCE OF PROPERTY TO DEVELOPER. Purchase Price. Subject to the terms and conditions herein, the purchase price for the Property (the "Property Purchase Price") shall be the following: $400,000/acre for approximately 2 acres shown on Exhibit G for a total Property Purchase Price of approximately $800,000. The actual Property Purchase Price shall be adjusted based on the acreage of the Property as shown on the Plat as defined in Section 1.3(6) of this Agreement. SECTION 3. PARKING PROPERTY City agrees to grant Developer the following relating to the Parking Property shown on Exhibit F upon the following terms and conditions: 3.1 Developer, employees and guests may utilize the Parking Property any time twenty-four hours per day seven days per week. 3.2 City reserves the right to charge for parking except that parking will be free for overnight hotel room guests with validation from the hotel registration desk. City hasthe right to audit such activity to ensure it is in compliance with this agreement. 3.3 At Closing, City and Developer shall execute and record a parking agreement in a 08082024ba1 mutually agreeable form ensuring that the provisions of this Section 3 shall be binding upon the Parking Property and benefit the Property for the life of the Hotels. SECTION 4. DEVELOPMENT ACTIVITIES 4.1 Required Minimum Improvements. Developer shall make a total capital investment of approximately $30,000,000 in land acquisition, design, building construction, equipment, furniture and fixtures, and carrying costs to construct an approximately 160 room dual Hotel (approximately 80-room Courtyard by Marriott or AC Marriott Hotel and approximately 80-room Residence Inn by Marriott) on the Property (the Minimum Improvements). 4.2 At the City's option, City may construct access roads built to City standards to the 12.65-acre site, along the north and west borders of the Property. City shall pay the difference between proposed drive lanes built to Hilton standards and roads built to City standards. The parking stalls remain the property of the Developer. 4.3 Security Cameras. Developer shall install security cameras on the exterior of all newly constructed buildings on the Property and register said cameras with the "Secure Dubuque Personal Surveillance System" described at https://cityofdubuque.orq/2980/Secure-Dubuque; provided, however, Developer's obligations under this Section 4.2 shall be modified to the extent necessary to ensure Developer's compliance with all applicable requirements of the Hotel franchise agreements. 4.4 Plans for Construction of Minimum Improvements. 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 Urban Renewal Plan, this Agreement, and all applicable state and local laws and regulations, including but not limited to any covenants, conditions, restrictions, reservations, easements, liens and charges, recorded in the records of Dubuque County, Iowa. 4.5 Timing of Improvements. Developer hereby agrees that construction of the Minimum Improvements on the Property shall have been commenced by July 1, 2025, and shall be substantially completed by December 31, 2026. For each month or part of a month after December 31, 2026 if the certificate of occupancy has not been issued, Developer shall pay to City $50,000 on the first day of each month until the certificate of occupancy is issued. The time frames for the performance of these obligations shall be subject to suspension and/or extension due to Force Majeure Event in accordance with the terms of Section 9.3 of this Agreement. 4.6 Certificate of Completion. Promptly following the request of Developer upon completion of the Minimum Improvements, City shall furnish Developer with an appropriate instrument so certifying. Such certification (the Certificate of Completion) shall be in recordable form and shall be a conclusive determination of the satisfaction and termination of the agreements and covenants in this Agreement. 08082024ba1 SECTION 5. CITY PARTICIPATION. 5.1 Economic Development Grants. (1) Developer Economic Development Grants (a) For and in consideration of Developer's obligations hereunder, and in furtherance of the goals and objectives of the Urban Renewal Plan for the Project Area and the Urban Renewal Law, City agrees, subject to Developer being and remaining in compliance with the terms of this Agreement, to make twenty (20) semi-annual payments (such payments being referred to collectively as the Developer Economic Development Grants) to Developer as follows: November 1, 2028 November 1, 2029 November 1, 2030 November 1, 2031 November 1, 2032 November 1, 2033 November 1, 2034 November 1, 2035 November 1, 2036 November 1, 2037 May 1, 2029 May 1, 2030 May 1, 2031 May 1, 2032 May 1, 2033 May 1, 2034 May 1, 2035 May 1, 2036 May 1, 2037 May 1, 2038 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 Developer) during the preceding six (6) month period in respect of the Property and Minimum Improvements constructed by Developer (the Developer Tax Increments). City and Developer agree that for purposes of this Section 5.1(1), the assessed value of the Property as of January 1, 2024 is approximately $624,000. The actual assessed value of the Property shall be adjusted based on the acreage of the Property, at $312,000/acre, as shown on the Plat as defined in Section 1.3(6) of this Agreement. Developer recognizes and agrees that the Economic Development Grants shall be paid solely and only from the incremental taxes collected by City in respect to the Property and any improvements thereon, 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, and thus such incremental taxes will not include all amounts paid by Developer as regular property taxes. 08082024ba1 (b) To fund the Developer Economic Development Grants, City shall certify to the County prior to December 1 of each year, commencing December 1, 2026, its request for the available Developer Tax Increments resulting from the assessments imposed by the County as of January 1 of that year, to be collected by City as taxes are paid during the following fiscal year and which shall thereafter be disbursed to Developer on November 1 and May 1 of that fiscal year. (Example: If City so certifies by December 1, 2026, the Developer Economic Development Grants in respect thereof would be determined on November 1, 2027, and May 1, 2028.) If construction of the Minimum Improvements is delayed, the first certification to the County shall be on December 1 immediately following the completion. The twenty (20) semi-annual payments shall begin on November 1 of the second subsequent year. (c) The Developer 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 Kinseth 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 Kinseth TIF Account to pay the Developer Economic Development Grants, as and to the extent set forth in Section 5.1(1) hereof. The Developer Economic Development Grants shall not be payable in any manner by other tax increments revenues or by general taxation or from any other City funds. City makes no representation with respect to the amounts that may be paid to Developer as the Developer Economic Development Grants in any one year and under no circumstances shall City in any manner be liable to Developer so long as City timely applies the Developer Tax Increments actually collected and held in the Kinseth TIF Account (regardless of the amounts thereof) to the payment of the Developer Economic Development Grants to 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 5.1 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. (3) All of City's obligations under this Agreement, including but not limited to City's obligation to pay the Economic Development Grants to 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. 08082024ba1 5.2 No Obligation to Provide Other Funds. Other than the Economic Development Grants required by Section 5.1, City shall have no obligation to provide any other funds to Developer related to the Property or Parking Property except as it relates to and/or forms part of the City's performance of its obligations under this Agreement. 5.3 Restrictive Covenant. At Closing, City shall record a restrictive covenant, in form and substance approved by Developer, prohibiting the City from granting a building permit for the development of any additional hotel/hospitality facilities (excluding bed and breakfast establishments) in the 12.65 acre site shown on Exhibit I by any person other than Developer or a Developer affiliate, which covenant shall be binding until the issuance of the certificate of occupancy for the Hilton hotel or December 31, 2026, whichever first occurs. SECTION 6. NON- APPROPRIATION / LIMITED SOURCE OF FUNDING. 6.1 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 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. 6.2 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 08082024ba1 preserve the foregoing intent of the parties, and no event of default shall be deemed to have occurred as a result thereof. If any provision of this Agreement or the application thereof to any circumstance is so suspended, the suspension shall not affect other provisions of this Agreement which can be given effect without the suspended provision, and to this end the provisions of this Agreement are severable. SECTION 7. COVENANTS OF DEVELOPER. 7.1 Books and Records. During the term of this Agreement, Developer shall keep at all times and make available to City upon reasonable request proper books of record and account in which full, true and correct entries will be made of all dealings and transactions of or in relation to the business and affairs of Developer in accordance with generally accepted accounting principles consistently applied throughout the period involved, and Developer shall provide reasonable protection against loss or damage to such books of record and account. City may only request and inspect Developer's books of record and account pursuant to this Section 7.1 in good faith and for a proper purpose related to confirming Developer's performance under this Agreement, and City shall execute any reasonable confidentiality agreement consistent with applicable law and requested by Developer. 7.2 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. 7.3 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 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. 7.4 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 builder's risk insurance, written on a Completed Value Form in an amount equal to one hundred percent (100%) of the building (including Minimum Improvements) replacement value when construction is completed. Coverage shall include the "special perils" form and developer shall furnish City with proof of insurance in the form of a certificate of insurance. (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 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). Developer shall 08082024ba1 furnish to City proof of insurance in the form of a certificate of insurance. (3) The term "replacement value" shall mean the actual replacement cost of the Improvements (excluding foundation and excavation costs and costs of underground flues, pipes, drains and other uninsurable items) and equipment, and shall be reasonably determined from time to time at the request of City, but not more frequently than once every three (3) years. (4) Developer agrees to notify City immediately in the case of damage exceeding Two Hundred Thousand Dollars ($200,000.00) in amount to, or destruction of, the 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 Improvements to substantially the same or an improved condition or value as they existed prior to the event causing such damage to the extent such net insurance proceeds are sufficient for the same, 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) (5) Developer shall be responsible for deductibles and self -insured retention. 7.5 Preservation of Property. During the term of this Agreement, Developer shall maintain, preserve and keep, or cause others to maintain, preserve and keep, the 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 as dictated by property maintenance and upgrade requirements of the Marriott Hotels & Resorts brand, and take other actions to stay in good standing with Marriott Hotels & Resorts and to maintain the Marriott Hotels & Resorts brand. Nothing in this Agreement, however, shall be deemed to alter any agreements between Developer or any other party including, without limitation, any agreements between the parties regarding the care and maintenance of the Property. 7.6 Non -Discrimination. In carrying out the Project, Developer shall not discriminate against any employee or applicant for employment or guest because of age, color, familial status, gender identity, marital status, mental/physical disability, national origin, race, religion/creed, sex, or sexual orientation. 7.7 Conflict of Interest. Developer agrees that no member, officer or employee of City, or its designees or agents, nor any consultant or member of the governing body of City, and no other public official of City who exercises or has exercised any functions or responsibilities with respect to the project during his or her tenure, or who is in a position to participate in a decision -making process or gain insider information with regard to the project, shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the project, or in any 08082024ba1 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 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. 7.8 Non -Transferability. During the Term of this Agreement, this Agreement may not be assigned by Developer, 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; provided, however, Developer shall have the right to assign this Agreement to an entity controlled by Developer, and, further, City shall provide its consent to any collateral assignment of this Agreement reasonably required by Developer's first mortgage lender. City has no obligation to consent to any other assignment or sale. The sole remedy for the Developer breach of this Section 7.10 shall be the forfeiture of any Economic Grant Payments due after the unauthorized transfer of the Property. 7.9 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 for the Hotels is consistent with its current zoning and is in full compliance with the Urban Renewal Plan and Developer agrees to comply with any amendments to the Urban Renewal Plan contemplated by this Agreement,) (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 (2) Not discriminate upon the basis of age, color, familial status, gender identity, marital status, mental/physical disability, national origin, race, religion/creed, sex, or sexual orientation 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). 7.10 Release and Indemnification Covenants. Developer shall defend, indemnify and hold harmless City, its officers, agents and employees from and against any claim and cost of any kind, including without limitation, attorneys' fees and consulting fees, arising out of any negligent act or omission at the Site by or on behalf of Developer and its consultants. This obligation shall survive the termination of this Agreement. 7.11 Compliance with Laws. Developer shall comply with all federal, state, and local laws, rules and regulations relating to its businesses, other than laws, rules and 08082024ba1 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. 7.12 Negotiated Room Rates. Developer shall provide for negotiated room rates with the Grand River Convention Center. SECTION 8. EVENTS OF DEFAULT AND REMEDIES. 8.1 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 Improvements and the Property. (2) Transfer of any interest by Developer in any portion of the Property or the Improvements in violation of the provisions of this Agreement. (3) Failure by Developer to substantially observe or perform any other material covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. 8.2 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 ninety (90) days following such notice, or if the Event of Default cannot be cured within ninety (90) 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 in its reasonable discretion, 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. 08082024ba1 8.3 Re -vesting of Title. The parties understand that Title may be re -vested in the City as specified below. (1) Re -vesting Title in City Upon Happening of Event Subsequent to Conveyance to Developer and Prior to Issuance of Certificate of Completion. In the event that, subsequent to conveyance of the Property to Developer by City and prior to receipt by Developer of the Certificate of Completion, but subject and subordinate to the terms of the mortgage granted by Developer to secure a loan obtained by Developer from a commercial lender or other financial institution to fund the acquisition of the Property or construction of Minimum Improvements (First Mortgage), an Event of Default under Section 8.1 of this Agreement occurs and is not cured within the times specified in Section 8.2, then City, after providing an additional written notice 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 and City's intent to proceed under this Section 8.3, but only if the Event of Default has not been cured within ninety (90) days following such additional notice, or if the Event of Default cannot be cured within such ninety (90) days the Developer does not provide assurances to City that the Event of Default will be cured as soon as reasonably possible thereafter, shall have the right to re-enter and take possession of the Property and any portion of the Minimum Improvements thereon and to terminate (and re -vest in City pursuant to the provisions of this Section 8.3 subject only to any superior rights in any holder of the First Mortgage) the estate conveyed by City to Developer, it being the intent of this provision, together with other provisions of this Agreement, that the conveyance of the Property to Developer shall be made upon the condition that (and the Deed shall contain a condition subsequent to the effect that), in the event of default under Section 8.1 on the part of Developer and failure on the part of Developer to cure such default within the period and in the manner stated herein, City may declare a termination in favor of City of the title and of all Developer's rights and interests in and to the Property conveyed to Developer, and that such title and all rights and interests of Developer, and any assigns or successors in interests of Developer, and any assigns or successors in interest to and in the Property, shall revert to City (subject to the provisions of Section 8.3 of this Agreement), but only if the Event of Default stated in the City's notice has not been cured within the time period provided above, or, if the Event of Default cannot be cured within such time periods, Developer does not provide assurance to City, reasonably satisfactory to City, that the events will be cured as soon as reasonably possible. Notwithstanding the foregoing, however, City agrees to execute a Subordination Agreement in favor of Developer's first mortgage lender, in a form reasonably acceptable to City and to Developer's first mortgage lender. 8.4 Resale of Reacquired Property; Disposition of Proceeds. Upon the re -vesting in City of title to the Property as provided in Section 8.3 of this Agreement, City shall, pursuant to its responsibility under law, use its best efforts, subject to any rights or interests in such property or resale granted to any holder of a First Mortgage, to resell the 08082024ba1 Property or part thereof as soon and in such manner as City shall find feasible and consistent with the objectives of such law and of the Urban Renewal Plan to a qualified and responsible party or parties (as determined by City in its sole discretion) who will assume the obligation of making or completing Minimum Improvements or such other improvements in their stead as shall be satisfactory to City and in accordance with the uses specified for such the Property or part thereof in the Urban Renewal Plan. Subject to any rights or interests in such property or proceeds granted to any holder of a First Mortgage upon such resale of the Property the proceeds thereof shall be applied: (1) First, to pay and discharge the First Mortgage; (2) Second, to pay the principal and interest on mortgage(s) created on the Development, the Property, or any portion thereof, or any improvements thereon, previously acquiesced in by City pursuant to this Agreement. If more than one mortgage on the Property, or any portion thereof, or any improvements thereon, has been previously acquiesced in by City pursuant to this Agreement and insufficient proceeds of the resale exist to pay the principal of, and interest on, each such mortgage in full, then such proceeds of the resale as are available shall be used to pay the principal of and interest on each such mortgage in their order of priority, or by mutual agreement of all contending parties, including Developer, or by operation of law; (3) Third, to reimburse City for all allocable costs and expenses incurred by City, including but not limited to salaries of personnel, in connection with the recapture, management and resale of the Property or part thereof (but less any income derived by City from the Property or part thereof in connection with such management); any payments made or necessary to be made to discharge any encumbrances or liens (except for mortgage(s) previously acquiesced in by the City) existing on the Property or part thereof at the time of re -vesting of title thereto in City or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, default or acts of Developer, its successors or transferees (except with respect to such mortgage(s)), any expenditures made or obligations incurred with respect to the making or completion of the Minimum Improvements or any part thereof on the Property or part thereof, and any amounts otherwise owing to City (including water and sewer charges) by Developer and its successors or transferees; and (4) Fourth, to reimburse Developer up to the amount equal to (1) the sum of the Purchase Price paid to City for the Property and (2) the cash actually invested by such party in making any of the Minimum Improvements on the Property. 8.5 No Remedy Exclusive. Except as specifically identified as the sole or exclusive remedy of a Party, no remedy herein conferred upon or reserved to either Party is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No 08082024ba1 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. 8.6 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. 8.7 Remedies on Default by City. If City defaults in the performance of this Agreement, Developer 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 to enforce performance and observance of any obligation, agreement, or covenant of City under this Agreement. Developer may suspend performance under this Agreement until it receives assurances from City, deemed adequate by Developer, that City will cure its default and continue its performance under this Agreement. SECTION 9. GENERAL TERMS AND PROVISIONS. 9.1 Notices and Demands. Whenever this Agreement requires or permits any notice or written request by one party to another, it shall be deemed to have been properly given if and when delivered in person or three (3) business days after having been deposited in any U.S. Postal Service and sent by registered or certified mail, postage prepaid, addressed as follows: If to Developer: With copy to: if to City: With copy to: Kinseth Hospitality Company, Inc. 801 E. 2nd Ave. Suite 200 Coralville, IA 52241 Christopher S. Talcott Dentons Davis Brown PC 215 10th St. Suite 1300 Des Moines, IA 50309 City Manager 50 W. 13thStreet Dubuque, Iowa 52001 Phone: (563) 589-4110 Fax: (563) 589-4149 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. 08082024ba1 9.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of City and Developer and their respective successors and assigns. 9.3 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 provided the party takes reasonable steps in an effort 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, failure of Internet or other utilities, unusual shortages of materials or labor, unusually severe or prolonged bad weather, litigation commenced by third parties which, by injunction or other similar judicial action or by the exercise of reasonable discretion directly results in delays, acts of any federal, state or local government which directly result in extraordinary delays, default by an unaffiliated contractor, subcontractor, or supplier, or other matter beyond the reasonable control of such party. Upon the discovery 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 attempt 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 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. 9.4 Termination Date. This Agreement and the rights and obligations of the parties hereunder shall terminate on June 1 following the last payment to Developer under Section 5.1. 9.5 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, or other recognized forms of electronic signature, constitute original signatures and that an emailed or faxed Agreement containing the signatures (original, emailed, faxed, or other recognized electronic form) of all the parties is binding on the parties. 9.6 Memorandum of Development Agreement. City shall promptly record a Memorandum of Development Agreement in the form attached hereto as Exhibit E in the office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for so recording. 08082024baI IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its name and behalf by its Mayor and attested to by its City Clerk and Developer has caused this Agreement to be duly executed. CITY OF DUBUQUE, IOWA KINSETH HOSPITALITY COMPANY, INC. By: By: Brad M. Cavanagh, Mayor VP Attest: By: Adrienne N. Breitfelder, City Clerk , Its 08082024ba1 EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT G EXHIBIT H EXHIBIT I EXHIBIT J LIST OF EXHIBITS Urban Renewal Plan City Attorney Certificate Opinion of Developer Counsel City Certificate Memorandum of Development Agreement Parking Property Site Plan Access Agreement 12.65 Acre Site Special Warranty Deed 08082024ba1 EXHIBIT A URBAN RENEWAL PLAN (on file in City Clerk's office, 50 W. 13th Street, Dubuque, IA 52001) 08082024ba1 EXHIBIT B CITY ATTORNEY CERTIFICATE 08082024ba1 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 Klie4tu@ c(i‘OfJubugrtc.orV. RE: Dear THE CITY OF Masterpiece on (DATE) Dubuuue 2007.2012.2013 y1SS1pp1 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 between Kinseth Hospitality Company. Inc. (Developer) and the City of Dubuque, Iowa (City) dated for reference purposes the day of , 20 . The City has duly obtained all necessary approvals and consents for its execution, delivery and performance of 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. Very sincerely, Barry A. Lindahl, Esq. Senior Counsel BAL:JLM 08082024ba1 EXHIBIT C OPINION OF DEVELOPER'S COUNSEL 08082024ba1 Mayor and City Councilmembers City Hall 13th and Central Avenue Dubuque IA 52001 Re: Development Agreement By and Between the City of Dubuque, Iowa, and Dear Mayor and City Councilmembers: We have acted as counsel for Kinseth Hospitality Company, Inc. (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 , 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. Developer is an Iowa corporation with its principal place of business in 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 08082024ba1 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 08082024ba1 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, 08082024ba1 EXHIBIT D CITY CERTIFICATE 08082024ba1 THE CITY OF astcrpiece on tite pl 2007.2012.2013 2017*2019 (DATE) City Manager's Office City Hall 50 West 13th Street Dubuque, Iowa 52001-4864 (563) 589-4110 office (563) 589-4149 fax ctymgr@cityofdubuque.org Re: Development Agreement By and Between the City of Dubuque, Iowa, and Kinseth Hospitality Company, Inc. 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 between Kinseth Hospitality Company, Inc. and the City of Dubuque, Iowa (City) dated for reference purposes the day of , 20 . On behalf of the City of Dubuque, 1 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. (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 08082024ba1 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 [name of brand] hotel 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. 08082024ba1 (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 the purchase and sale contemplated in 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 a [name of brand] hotel 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, 08082024ba1 Michael C. Van Milligen City Manager MCVM:jh 08082024ba1 EXHIBIT E MEMORANDUM OF DEVELOPMENT AGREEMENT 08082024bai 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 between the City of Dubuque, Iowa, an Iowa municipal corporation, of Dubuque, Iowa, and Kinseth Hospitality Company, Inc. was made regarding the following described premises: legally described as The Development Agreement is dated for reference purposes the day of , 20, 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 , 20_. CITY OF DUBUQUE, IOWA By: Barry A. Lindahl, Esq., Senior Counsel STATE OF IOWA 08082024ba1 SS: DUBUQUE COUNTY On this day of , 20_, before me, a Notary Public in and for the State of Iowa, in and for said county, personally appeared Barry A. Lindahl, to me personally known, who being by me duly sworn did say that he is Senior Counsel of the City of Dubuque, a Municipal Corporation, created and existing under the laws of the State of Iowa and that 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 EXHIBIT F PARKING PROPERTY 07172024ba1 EXHIBIT G SITE PLAN RESIDENCE INN AND COURTYARD EXHIBIT H ACCESS AGREEMENT (attached) EXHIBIT I 12.65 ACRE SITE EXHIBIT J SPECIAL WARRANTY DEED 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 Kinseth Hospitality Company, Inc. the following described parcel(s) situated in the County of Dubuque, State of Iowa, to wit (the Property): This Deed is exempt from transfer tax pursuant to Iowa Code section 428A.2(6). This Deed is given pursuant to the authority of Resolution No. of the City Council of the City of Dubuque adopted the day of , 20_, the terms and conditions thereof, if any, having been fulfilled. This Deed is being delivered in fulfillment of Grantor's obligations under and is subject to all the terms, provisions, covenants, conditions and restrictions contained in that certain Development Agreement executed by Grantor and Grantee herein, dated the day of , 20_ (the Agreement), a memorandum of which was recorded on the day of , 20_, in the records of the Recorder of Dubuque County, Iowa, Instrument Number None of the provisions of the Agreement shall be deemed merged in, affected or impaired by this Deed. Grantor hereby covenants to warrant and defend the said premises against the lawful claims of all persons whomsoever claiming by, through and under it. Dated this day of , 20_, at Dubuque, Iowa. ATTEST: By: Adrienne N. Breitfelder, City Clerk STATE OF IOWA COUNTY OF DUBUQUE ) ) ) CITY OF DUBUQUE IOWA By: Brad M. Cavanagh, Mayor SS On this day of , 20_, before me a Notary Public in and for said County, personally appeared Brad M. Cavanagh and Adrienne N. Breitfelder to me personally known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation, created and existing under the laws of the State of Iowa, and that the seal affixed to the 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 Prepared by: Barry A. Lindahl 300 Main Street Dubuque IA 52001 563 583-4113 OFFECIAL NOTICE RESOLUTION NO. 252-24 RESOLUTION (1) APPROVING THE MINIMUM REQUIREMENTS, COMPETITIVE CRITERIA, AND OFFERING PROCEDURES FOR THE DEVELOPMENT AND THE SALE OF CERTAIN REAL PROPERTY AND IMPROVEMENTS IN THE GREATER DOWNTOWN URBAN RENEWAL DISTRICT; (2) DETERMINING THAT THE OFFER TO PURCHASE SUBMITTED BY KINSETH HOSPITALITY COMPANY, INC. SATISFIES THE OFFERING REQUIREMENTS WITH RESPECT TO THE REAL PROPERTY AND IMPROVEMENTS AND DECLARING THE INTENT OF THE CITY COUNCIL TO APPROVE THE SALE TO KINSETH HOSPITALITY COMPANY, INC.IN THE EVENT THAT NO COMPETING PROPOSALS ARE SUBMITTED; AND (3) SOLICITING COMPETING PROPOSALS Whereas, the City Council of Dubuque, Iowa, did on December 18, 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 Plan provides, among other things, for the disposition of properties for private development purposes as a proposed economic development action; and Whereas, Kinseth Hospitality Company, Inc. ("Developer") has submitted to the City a proposal in the form of an offer to purchase (the "Development Agreement") for the purchase of certain City -owned real property hereinafter described ("the Property"), which Development Agreement proposes the Developer will undertake the construction of a building located immediately north of Ice Harbor Drive and along East 5th Street as described therein, which Property is the real estate consisting of approximately 2 acres shown on Exhibit A, and which Development Agreement requests that this Property be made available for sale as rapidly as possible; and Whereas, in order to establish reasonably competitive bidding procedures for the disposition of the Property in accordance with the statutory requirements of Iowa Code Chapter 403, specifically, Section 403.8, and to assure that the City extends a full and fair opportunity to all developers interested in submitting a proposal, a summary of submission requirements and minimum requirements and competitive criteria for the Property offering is included herein; and Whereas, said Developer has signed a Development Agreement with the City, currently on file at the Office of the City Clerk; and Whereas, to recognize both the firm proposal for sale of the Property and improvements already received by the City in the form of the Development Agreement, as described above, and to give full and fair opportunity to other developers interested in submitting a proposal for the sale and development of the Property, this Council should by this Resolution: 1) Plan; Set the fair market value of the Property for uses in accordance with the 2) Approve the minimum requirements and competitive criteria included herein; 3) Approve as to form the Development Agreement; 4) Set a date for receipt of competing proposals and the opening thereof; 5) Declare that the proposal submitted by Developer satisfies the minimum requirements of the offering, and that in the event no other qualified proposal is timely submitted, that the City Council intends to accept such proposal and authorize the City Manager to sign the Development Agreement; 6) Approve and direct publication of a notice to advise any other person of the opportunity to compete for sale of the Property on the terms and conditions set forth herein; and 7) Declare that in the event another qualified proposal is timely submitted and accepted, another and future notice will be published on the intent of the City to enter into the resulting contract, as required by law; and Whereas, the City Council believes it is in the best interest of the City and the Plan to act as expeditiously as possible to sell the Property as set forth herein. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the Property shown on Exhibit A attached hereto, shall be offered for sale in accordance with the terms and conditions contained in this Resolution. 2 Section 2. That it is hereby determined that in order to qualify for consideration for selection, any person must submit a proposal which meets these minimum requirements: 1) Contains an agreement to purchase the Property, shown on Exhibit A, at not less than fair market value, which for the purposes of this resolution is hereby determined to be $800,000; 2) States the number of hotel rooms that will be created in the proposal's project; 3) Sets out or provides to the satisfaction of the City Council the experience of the principals and key staff who are directly engaged in the performance of contract obligations in carrying out projects of similar scale and character; and 4) Meets, at a minimum, the terms and conditions of the Development Agreement submitted by the Developer including an agreement to invest approximately $30,000,000 to complete construction of the 160 hotel rooms in the building. Section 3. That the Development Agreement by and between the City and the Developer be and is hereby approved as to form for the purposes hereinafter stated. Section 4. That for the purpose of defining the offering of the Property for sale, said Development Agreement shall be deemed to be illustrative of the terms acceptable to the City with respect to: 1) Timely completion of the construction project; 2) Construction of minimum improvements; 3) Developer and City obligations; and 4) General terms and conditions. Section 5. That the Development Agreement submitted by the Developer satisfies the requirements of this offering and, in the event that no other qualified proposals are timely submitted, that the City Council intends to accept and approve the Development Agreement. Section 6. That it is hereby determined that the Developer possesses the qualifications, financial resources and legal ability necessary to purchase the Property shown on Exhibit A and to construct, manage and operate the site in the manner proposed by this offering in accordance with the Plan. Section 7. That the City Clerk shall receive and retain for public examination the attached Development Agreement submitted by the Developer and, in the event no other 3 qualified proposals are timely submitted, shall resubmit the Development Agreement to the City Council for final approval and execution upon expiration of the notice hereinafter prescribed. Section 8. That the action of the City Council be considered to be and does hereby constitute notice to all concerned of the intention of this Council, in the event that no other qualified proposals are timely submitted, to accept the proposal of the Developer to purchase the Property shown on Exhibit A and to approve the Development Agreement by and between City and Developer. Section 9. That the official notice of this offering and of the intent of the City, in the event no other qualified proposals are timely submitted, to approve the Development Agreement, shall be a true copy of this Resolution, but without the attachments referred to herein. Section 10. That the City Clerk is authorized and directed to secure immediate publication of said official notice in the Telegraph Herald, a newspaper having a general circulation in the community, by publication of the text of this Resolution on or before the 15th day of August, 2024. Section 11. That written proposals for the sale of the Property shown on Exhibit A will be received by the City Clerk at or before 10:00 a.m., September 16, 2024, in the Office of the City Clerk, located on the first floor at City Hall, 50 West 13th Street, Dubuque, Iowa 52001. Each proposal will be opened at the hour of 10:00 a.m. in City Hall, Dubuque, Iowa on September 16, 2024. Said proposals will then be presented to the City Council at 5:00 p.m., (same date as opening), 2024, at a meeting to be held in the City Council Chambers, Historic Federal Building at 350 West 6th Street, Dubuque, Iowa. Section 12. That the method of offering the Property for sale as set forth herein is in substantial conformance with the provisions of Iowa Code Section 403.8, requiring reasonable competitive bidding procedures as are hereby prescribed and "fair value." Section 13. That the required documents for the submission of a proposal shall be in substantial conformity with the provisions of this Resolution. Section 14. That the City Clerk is hereby nominated and appointed as the agent of the City of Dubuque, Iowa to receive proposals for the sale of the Property on that date and according to the procedure hereinabove specified for receipt of such proposals and to proceed at such time to formally acknowledge receipt of each of such proposal by noting the receipt of same in the Minutes of the Council; that the City Manager is hereby authorized and directed to make preliminary analysis of each such proposal for compliance with the minimum requirements established by this Council hereinabove. For each proposal that satisfies these requirements, the City Council shall judge the strength of the proposal by the competitive criteria established hereinabove. The City Council shall then make the final evaluation and selection of the proposals. Section 15. If, and only if, competing proposals are received and determined by 4 the Council to meet the minimum requirements described herein, the Developer shall be allowed to amend its proposal in response thereto and to deliver same to the City Manager, by no later than a date determined by the City Council. In such event, the Council shall schedule a subsequent meeting to be held by the City Manager at which there shall be a bid -off conducted by the City Manager. During such bid -off, each competing bidder shall bid against the other, starting with the second proposal received and continuing until such time as each bidder shall decline to improve its proposal to acquire and redevelop the Property shown on Exhibit A in response to the last bid of the other bidder or bidders. The period of time to be allowed for such bid -off shall be determined by the City Manager. The rules of such bid -off shall be as determined by the City Manager at or before such bid -off period and shall be absolute. Section 16. That in the event another qualified proposal is timely submitted and accepted by the City, another and further notice shall be published of the intent of the City of Dubuque, Iowa, to enter into the resulting agreement, as required by law. Passed, approved and adopted this 14th day of August, 2024. Attest: Adrienne N. Breitfelder, Ci 'y Clerk rad M. C. vanag , Mayor 5 EXHIBIT A THE PROPERTY 6 .`w•:.- rr�r�.`i.-w+- 1 inch = 200 feet 100 50 0 100 200 300 EXHIBIT A Mao Freaarea 2), Ca) or Duououe EnOlneering DMsb 50'bay 13M `.Teel Duouox. tiny 52001 Dnone: (56315B9-62% Fax: (5631 569u205 7