Vision Iowa, 28E Agreement_Historical SocietyCITY OF DUBUQUE, IOWA
MEMORANDUM
July 12, 2001
TO:
FROM:
SUBJECT:
The Honorable Mayor and City Council Members
Michael C. Van Milligen, City Manager
Vision Iowa Resolution and 28E Agreement with the Dubuque County
Historical Society
On July 10, 2001, the City Council held a special meeting to discuss the Funding
Agreement with the Vision Iowa Board and the 28E Agreement with the Dubuque
County Historical Society in relation to the implementation of the America's River
project. Since that meeting, the Vision Iowa Funding Agreement has been approved by
the Dubuque County Historical Society Board and the Vision Iowa Board. Also, the
Dubuque County Historical Society has approved the 28E Agreement.
I respectfully request Mayor and City Council final approval of the Vision Iowa Funding
Agreement and the 28E Agreement with the Dubuque County Historical Society.
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
28E AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
THE DUBUQUE COUNTY HISTORICAL SOCIETY
FOR THE CONSTRUCTION AND OPERATION OF
THE AMERICA'S RIVER PROJECT
This Agreement is made and entered into by and between the City of
Dubuque, Iowa and the Dubuque County Historical Society pursuant to Chapter
28E of the Iowa Code.
WHEREAS, the Vision Iowa Program was established by the Iowa
Legislature and the Governor of Iowa to support community projects that build on
Iowa's unique assets and values and expand the recreational, cultural,
educational, and entertainment opportunities in Iowa; and
WHEREAS, the City, the Society and the Dubuque Area Chamber of
Commerce submitted a joint application to Vision Iowa requesting assistance in
financing their America's River Project. The America's River Project consists of
several components, including the Mississippi River National Education and
Conference Center and the Mississippi River Discovery Center and Aquarium, as
well as other components set forth in Recipients' Vision Iowa Application; and
WHEREAS, Vision Iowa found the America's River Project to meet the
requirements established for participation in the Vision Iowa Program; and
WHEREAS, the Board, on April 11,2001, unanimously voted to award a
grant not to exceed forty million dollars (US$40,000,000) for construction of the
America's River Project, subject to the terms and conditions of the Vision Iowa
Grant Agreement (Grant Agreement) attached hereto.
WHEREAS, the City and the Society desire to provide for their mutual
cooperation with respect to the construction and operation of the America's River
Project.
NOW THEREFORE, in consideration of the mutual promises
contained herein the City and the Society agree as follows:
ARTICLE 1
IDENTITY OF THE PARTIES
1.1 The City of Dubuque (the City) is a municipality of the State of Iowa,
organized and operating pursuant to Iowa Code chapter 364. Its address is 50
W. 13th St, Dubuque, IA 52001.
1.2 The Dubuque County Historical Society (the Society) is an Iowa
nonprofit corporation established pursuant to Iowa Code chapter 504A. Its
address is P.O. Box 266, Dubuque, IA 52001.
1.3 The America's River Project (the Project) consists of the components
including the Mississippi River National Education and Conference Center, the
Mississippi River Discovery Center and Aquarium, a Riverfront Hotel and Indoor
Water Park, and Amenities, Greenways, Smart Growth, Riverwaik and
Infrastructure.
1.4 The Society's Component will be constructed on real property owned
by the City and leased to the Society pursuant to a lease between the City and
the Society (the Lease).
ARTICLE 2
DURATION
2.1 This Agreement shall remain in effect during the term of the Award
Agreement.
ARTICLE 3
NO SEPARATE ENTITY CREATED
3.1 No separate legal or administrative entity shall be created by this
Agreement.
3.2 A joint board of the parties known as the America's River Board (the
Board) shall be responsible for coordinating the construction and operation of
the Project. The joint board shall comprise the City's Mayor and City Manager
and the Society's Executive Director and Board Chairperson.
3.3 The Board shall meet from time to time dudng the term of this
Agreement to review the construction and operation of the Project.
ARTICLE 4
PURPOSE
4.1 The purpose of this Agreement is to provide for the manner in which
the parties shall cooperate with one another to successfully complete the Project.
ARTICLE 5
MANNER OF FINANCING
5.1 Each of the parties shall be responsible for financing, constructing,
operating and maintaining its respective Component of the Project without any
additional financial assistance from the other party. Additional financial
assistance means any financial assistance that was not agreed to by the parties
prior to the date of this Agreement.
ARTICLE 6
TERMINATION
6.1 The Agreement shall automatically terminate upon termination of the
Award Agreement unless the parties agree otherwise.
ARTICLE 7
EFFECTIVE DATE
7.1 This Agreement shall take effect upon execution by the parties as
required by law, filing with the secretary of state and recording with the county
recorder.
ARTICLE 8
AMENDMENT OF AGREEMENT
8.1 This Agreement may be amended by the same procedure by which
this Agreement was executed.
ARTICLE 9
DISPUTE RESOLUTION
9.1 Any dispute between the parties arising out of or within the scope of
the interpretation, construction or application of this Agreement shall, prior to the
commencement of any formal legal proceedings, be submitted to arbitration.
Either party may submit to the other a written request for arbitration. Within ten
days after the date of such request, the City and the Society shall each select
one arbitrator and notify the other party of the name and address of such
arbitrator. The arbitrators so selected shall within ten days after being notified of
their selection, select a third arbitrator and after doing so, shall notify the City and
the Society in writing forthwith of the name and address of the third arbitrator.
The arbitrator proceedings shall be gevemed by Iowa Code Chapter 679A.
ARTICLE 10
EFFECT OF DEFAULT UNDER AWARD AGREEMENT
10.1 The Society and the City shall indemnify and hold each other harmless from
any and all claims, costs, damages, payments and expenses arising out of the
other party's default under the Grant Agreement. If the Society fails to so
indemnify and hold the City harmless within ninety days after demand therefor by
the City, such failure shall constitute a default under the terms of the Lease and
the City shall be entitled to any remedy set forth in the Lease or otherwise
allowed by law. If the City elects to forfeit the Lease and if the fair market value of
the Leased Premises at the time of such forfeiture exceeds the amount of the
City's demand for indemnity, then the City's exclusive remedy for the Society's
failure to indemnify shall be by such forfeiture. Fair market value shall be
determined by an appraisal of the Leased Premises by a certified appraiser
experienced in appraising similar types of properties in the Dubuque area
mutually selected by the City and the Society. If either party is dissatisfied with
the appraisal or the parties cannot agree on an appraiser, each shall, not later
than forty-five (45) days after the City's demand for indemnity, appoint its own
appraiser, each of which shall be experienced in appraising similar types of
properties in the Dubuque area and the two appointed by the parties shall select
a third experienced appraiser. The average appraised values of the three
appraisers shall be the appraised value of the Leased Premises for the purposes
of this paragraph.
10.2 The failure by the Society to finance, construct, operate or maintain
its Component of the Project without additional financial assistance from the City
shall constitute a default under the terms of the Lease and the City shall be
entitled to any remedy set forth in the Lease or otherwise allowed by law.
10.3 This Article 10 shall not be subject to the arbitration requirement set
forth in Article 9.
FOR THE CITY OF DUBUQUE
BY:
Terry Duggan, Mayor
Date
FOR THE DUBUQUE COUNTY HISTORICAL SOCIETY
BY:
Jerry Enzler, Executive Director Date
RESOLUTION NO. 325-01
APPROVING THE VISION IOWA GRANT AWARD AGREEMENT
WHEREAS, the Vision Iowa Program was established by the Iowa Legislature
and the Governor of Iowa to support community projects that build on Iowa's unique
assets and values and expand the recreational, cultural, educational, and entertainment
opportunities in Iowa; and
WHEREAS, the City of Dubuque, the Dubuque County Historical Society and the
Dubuque Area Chamber of Commerce submitted a joint application to Vision Iowa
requesting assistance in financing their America's River Project. The America's River
Project consists of several components, including the Mississippi River National
Education and Conference Center and the Mississippi River Discovery Center and
Aquarium, as well as other components; and
WHEREAS, Vision Iowa found the America's River Project to meet the
requirements established for participation in the Vision Iowa Program; and
WHEREAS, the Board, on April 11, 2001, unanimously voted to award a grant
not to exceed forty million dollars, for construction of the America's River Project; and
WHEREAS, the Board, on July 11, 2001, approved the Grant Award Agreement
for the America's River Project, a copy of which is attached hereto; and
WHEREAS, the City Council of the City of Dubuque finds that it is in the best
interests of the City to approve the Grant Award Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA AS FOLLOWS:
1. The Vision Iowa Grant Award Agreement attached hereto is hereby approved.
2. The Mayor is hereby authorized and directed to execute the Grant Award
Agreement on behalf of the City of Dubuque.
Passed, approved and adopted this 16th day of July, 2001.
Terrance M. Duggan, Mayor
Attest:
Jeanne F. Schneider, City Clerk
RESOLUTION NO. 326-01
APPROVING THE 28E AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA
AND THE DUBUQUE COUNTY HISTORICAL SOCIETY FOR THE CONSTRUCTION
AND OPERATION OF THE AMERICA'S RIVER PROJECT
WHEREAS, the Vision Iowa Program was established by the Iowa Legislature
and the Governor of Iowa to support community projects that build on Iowa's unique
assets and values and expand the recreational, cultural, educational, and entertainment
opportunities in Iowa; and
WHEREAS, the City of Dubuque, the Dubuque County Historical Society and the
Dubuque Area Chamber of Commeme submitted a joint application to Vision Iowa
requesting assistance in financing their America's River Project. The America's River
Project consists of several components, including the Mississippi River National
Education and Conference Center and the Mississippi River Discovery Center and
Aquarium, as well as other components; and
WHEREAS, Vision Iowa found the America's River Project to meet the
requirements established for participation in the Vision Iowa Program; and
WHEREAS, the Board, on April 11, 2001, unanimously voted to award a grant
not to exceed forty million dollars, for construction of the America's River Project; and
WHEREAS, the Board, on July 11, 2001, approved the Grant Award Agreement
for the America's River Project, a copy of which is attached hereto; and
WHEREAS, the City Council of the City of Dubuque has approved the Grant
Award Agreement; and
WHEREAS, the Grant Award Agreement requires that the City and the Dubuque
County Historical Society enter into an agreement to provide for their mutual
cooperation with respect to the construction and operation of the America's River
Project; and
WHEREAS, the City Council of the City of Dubuque finds that it is in the best
interests of the City of Dubuque to approve the 28E Agreement Between the City of
Dubuque, Iowa and the Dubuque County Historical Society for the Construction and
Operation of the America's River Project, attached hereto.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA AS FOLLOWS:
1. The 28E Agreement Between the City of Dubuque, Iowa and the Dubuque
County Historical Society for the Construction and Operation of the America's River
Project attached hereto is hereby approved.
2. The Mayor is hereby authorized and directed to execute the 28E Agreement
on behalf of the City of Dubuque.
Passed, approved and adopted this 16th day of July, 2001.
Terrance M. Duggan, Mayor
Attest:
Jeanne F. Schneider, City Clerk
VISION
IOWA
GRANT OF $40,000,000
TO THE
CITY OF DUBUQUE
AND THE
DUBUQUE COUNTY HISTORICAL SOCIETY
BY THE
VISION IOWA BOARD
FOR THE CONSTRUCTION OF
AMERICA'S RIVER PROJECT
July 11, 2001
VISION IOWA NUMBER: 01-Vl-002
TABLE OF CONTENTS
VISION IOWA PROGRAM GRANT AWARD AGREEMENT
ARTICLE 1 THE PARTIES AND THE PROJECT
ARTICLE 2 AGREEMENT AMONG THE PARTIES
ARTICLE 3 AGREEMENT DURATION
ARTICLE 4 AGREEMENT ELEMENTS
ARTICLE 5 FUNDING
ARTICLE 6 AWARD OF GRANT
ARTICLE 7 CONDITIONS TO GRANT AND DISBURSEMENTS
ARTICLE 8
8.1
8.2
8.3
8.4
8.5
8.6
DISBURSEMENT OF FUNDS
Disbursement
Method of Payment
Suspension of Disbursement
Cost Variation
Investment of Grant Funds
Disbursement of Less Than the Total Award Amount
ARTICLE
9.1
9.2
9.3
9.4
9.5
9.6
9.7
9.8
9.9
9.10
9
TERMS AND CONDITIONS OF GRANT
Use of Funds
Accounting Records
Documentation
Bonds and Insurance
Notice of Proceedings
Covenants of Recipients
General Indemnification
Timely Performance
Vision Iowa Recognition
Representations and Warranties of Recipients
ARTICLE 10 CONVEYANCE OF REAL PROPERTY
ARTICLE 11 DEFAULT AND REMEDIES
11.1 Notice of Event(s) of Default
11.2 Events of Default
11.3 Notice of Default
11.4 Remedies Upon Default
11.5 Funding Failure
2
3
3
3
4
4
5
6
6
7
7
7
8
8
8
8
9
9
9
11
11
14
14
14
14
16
16
16
16
18
18
18
-i-
11.6 Procedure Upon Termination
18
ARTICLE 12 GENERAL PROVISIONS 12.1 Binding Effect
12.2 Compliance with Laws and Regulations
12.3 Survival of Agreement
12.4 Choice of Law and Forum
12.5 Modification
12.6 Notices
12.7 Waivers
12.8 Limitation
12.9 Enforcement Expenses
12.10 Headings
12.11 Event of Board Dissolution
12.12 Integration
12.13 Counterparts
18
18
19
19
19
19
20
2O
20
2O
2O
20
21
21
SIGNATURES 21
EXHIBIT A VISION IOWA APPLICATION, AS APPROVED BY VISION IOWA
(On file with the Iowa Department of Economic Development)
EXHIBIT B LEGAL DESCRIPTION OF CITY'S REAL PROPERTY
EXHIBIT C LEGAL DESCRIPTION OF SOCIETY'S REAL PROPERTY
EXHIBIT D UST OF LEGALLY BINDING FINANCIAL COMMITMENTS
EXHIBIT E FORM OF OPINION OF THE CITY'S LEGAL COUNSEL
EXHIBIT F FORM OF OPINION OF THE SOCIETY'S LEGAL COUNSEL
EXHIBITG DISBURSEMENT SCHEDULE
EXHIBIT H ELECTRONIC PAYMENT INSTRUCTION FORM
EXHIBIT I HOTEL DEVELOPMENT AGREEMENT
-ii-
VISION IOWA PROGRAM
GRANT AWARD AGREEMENT
VISION IOWA NUMBER:
01-VI-002
TOTAL AMOUNT OF GRANT: $40,000,000
RECIPIENTS:
CITY OF DUBUQUE
50 W. 13m ST
DUBUQUE, IA 52001
and
DUBUQUE COUNTY HISTORICAL SOCIETY
P.O. BOX 266
DUBUQUE, IA 52001
PROJECT:
AMERICA'S RIVER PROJECT
AGREEMENT EFFECTIVE DATE: July 11, 2001
PROJECT COMPLETION DATE: June 30, 2005
THIS VISION IOWA GRANT AWARD AGREEMENT is made by and
among the Vision Iowa Board, the City of Dubuque, and the Dubuque County
Historical Society.
WHEREAS, the Vision Iowa Program was established by the Iowa
Legislature and the Govemor of Iowa to support community projects that build on
Iowa's unique assets and values and expand the recreational, cultural,
educational, and entertainment opportunities in Iowa; and
WHEREAS, the City, the Society and the Dubuque Area Chamber of
Commerce submitted a joint application to Vision Iowa requesting assistance in
financing their America's River Project. The America's River Project consists of
several components, including the Mississippi River National Education and
Conference Center and the Mississippi River Discovery Center and Aquarium, as
well as other components set forth in Recipients' Vision Iowa Application; and
WHEREAS, Vision Iowa found the America's River Project to meet the
requirements established for participation in the Vision Iowa Program; and
Vision Iowa Grant Award to the
City of Dubuque and t~e
Dubuque County Historical Society
July 11, 2001
-1-
WHEREAS, the Board, on Apdl 11,2001, unanimously voted to award a
grant not to exceed forty million dollars (USS40,000,000) for construction of the
America's River Project, a project with a total value over one hundred eight
million five hundred eighty thousand eight hundred fifty eight dollars
(US$108,580,858), subject to the terms and conditions herein.
NOW THEREFORE, in consideration of the mutual promises contained
herein and intending to be legally bound, Vision Iowa, the City, and the Society
agree to the following terms of this grant:
ARTICLE 1
THE PARTIES AND THE PROJECT
1.1 The Vision Iowa Board ("Board" or "Vision Iowa") is a public
instrumentality of the State of Iowa that was legislatively created to organize,
establish, oversee and approve the administration of the Vision Iowa Program
and the Community Attraction and Tourism Program. Iowa Code chapter 15F
authorizes the Board and its programs. The Board's address is 200 East Grand
Avenue, Des Moines, IA 50309.
1.2 The City of Dubuque (hereinafter the "City or "Recipient") is a
municipality of the State of Iowa, organized and operating pursuant to Iowa Code
chapter 364. Its address is 50 W. 13= St, Dubuque, IA 52001.
1.3 The Dubuque County Historical Society (hereinafter the "Society" or
"Recipient") is an Iowa nonprofit corporation established pursuant to Iowa Code
chapter 504A. The historical society sponsors and supports community and
tourism attractions and activities. Its address is P.O. Box 266, Dubuque, IA
52001.
1.4 The City and the Society may hereinafter be collectively referred to as the
"Recipients."
1.5 The America's River Project (the "Project"), as approved by the Board
prior to the date hereof, consists of the components set forth in more detail in
Exhibit A, including the Mississippi River National Education and Conference
Center ("Conference Center"), the Mississippi River Discovery Center and
Aquadum ("Aquarium"), a Riverfront Hotel and Indoor Water Park ("Hotel and
Water Park"), and Amenities, Greenways, Smart Growth, Riverwalk and
Infrastructure. Hereinafter, the Conference Center together with the Amenities,
Greenways, Smart Growth, Riverwalk and Infrastructure may be referred to as
the "City's Component," and the Aquarium may be referred to as the "Society's
Component." Vision Iowa Fund moneys shall not be used for the construction or
development of the Hotel and Water Park component. Platinum Hospitality
Group, LLC, will privately fund the Hotel and Water Park component.
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
-2-
1.6 The City's Conference Center shall be constructed on the real property
legally described in Exhibit B ("City's Real Property").
1.7 The Society's Component shall be constructed on real property owned by
the City and leased to the Society, and which is legally described in Exhibit C
("Society's Real Property").
1.8 The parties agree that the City's Component, the Society's Component,
and the Hotel and Water Park component together were presented to and
approved by the Board as a single project.
ARTICLE 2
AGREEMENT AMONG THE PARTIES
The Recipients shall be responsible for the financing, construction, operation and
maintenance of their respective components of the Project and in consideration
thereof the Board shall award a grant (the "Grant~) not to exceed forty million
dollars (US$40,000,000) to the Recipients, all subject to the terms and conditions
of this Agreement.
ARTICLE 3
AGREEMENT DURATION
This Agreement shall be in effect for a period of twenty-one years from the
Agreement effective date, or for such shorter period as the Board may determine.
ARTICLE 4
AGREEMENT ELEMENTS
This Agreement shall include as integral parts hereof:
(a) Exhibit A - Vision Iowa Application, as approved by the Board
(b) Exhibit B -- Legal Description of City's Real Property
(c) Exhibit C - Legal Description of Society's Real Property
(d) Exhibit D - List of Legally Binding Financial Commitments
(e) Exhibit E - Form of Opinion of the City's Legal Counsel
(f) Exhibit F - Form of Opinion of the Society's Legal Counsel
(g) Exhibit G - Disbursement Schedule
(h) Exhibit H - Electronic Payment Instruction Form
(i) Exhibit I - Hotel Development Agreement
Due to its size, Exhibit A will not be attached to this Agreement, but will be kept
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
-3-
on file at the Iowa Department of Economic Development. It shall, nevertheless,
be considered an incorporated element of this Agreement.
In the case of any inconsistency or conflict between the specific provisions of this
document and the Exhibits, any inconsistency or conflict shall be resolved as
follows: First by giving preference to the specific provisions of this document;
second, by giving preference to the previsions of the exhibits.
ARTICLE 5
FUNDING
The sole funding source for the Grant shall be funds legally available from the
Vision Iowa Fund established pursuant to Iowa Code section 12.72 (2001). The
funds of the State of Iowa, other than those of the Vision Iowa Fund, shall under
no circumstances be obligated or available to meet any obligations of the Board.
This Agreement shall not constitute an obligation or debt of the Board or the
State except to the extent expressly described herein from Vision Iowa funds that
are legally available for such purposes. Pursuant to Iowa Code section 15F. 103,
the Board shall request the Treasurer of the State of Iowa to issue bonds on
behalf of the Board for purposes of the Vision Iowa Program. Proceeds from the
sale of Vision Iowa Bonds will be placed in the Vision Iowa Fund for the benefit of
the Vision Iowa Program and the projects the Board chooses to finance.
ARTICLE 6
AWARD OF GRANT
In consideration of the Recipients' financing, constructing, operating and
maintaining their respective components of the Project, the Board, subject to the
terms and conditions set forth herein, awards a grant not to exceed forty million
dollars (US$40,000,000) to the Recipients to assist in the construction of the
Project. The total of all payments by the Board to Recipients for Project activities
shall not exceed the award amount. The Grant shall be allocated as follows:
* Society's Component (Aquarium)
US$20,000,081.00
City's Component
(Conference Center, Amenities,
Greenways, SmartGrowth, Riverwalk
and Infrastructure)
USS19,999,919.00
Total Project Grant US$40,000,000.00
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
-4-
ARTICLE 7
CONDITIONS TO GRANT AND DISBURSEMENTS
Recipients must satisfy all the following conditions prior to any disbursement:
7.1.1 This Agreement shall have been properly executed and returned to the
Board within forfy-five (45) days of the Board's transmittal of the final
Agreement to the Recipients. Its retum shall be accompanied by the
acceptable Opinions of Recipients' respective legal counsel that this
Agreement has been duly authorized, executed and delivered by each
Recipient and constitutes the valid, legal and binding obligation of each in
accordance with its terms, and that each is obligated to perform in
accordance with the Agreement including performance of all future
conditions and payments and does not violate any constitutional, statutory,
or other limitations placed on the City or the Society.
7.1.2 Recipients shall obtain, to the satisfaction of the Board, all other legally
binding financial commitments necessary to complete the Project, as set
forth on Exhibit D. Failure to obtain and submit documentation of all of the
binding commitments to the Board within ninety (90) days of the Effective
Date of this Agreement shall be grounds for termination of this Agreement.
7.1.3 The Society shall become certified by the Auditor of the State of Iowa
pursuant to Iowa Code section 11.36.
7.1.4 Within 45 days of the Agreement Effective Date, Recipients shall enter
into an agreement, conforming to Iowa Code chapter 28E (~28E
Agreement") that establishes the manner in which they will cooperate with
one another to successfully complete this Project. The 28E Agreement
shall specifically create a method for resolving any disputes between the
Recipients.
7.1.5 This Agreement shall be recorded as a restrictive covenant, with the
County Recorder of Dubuque County, Iowa, in the chain of title of the
City's Real Property and the Society's Real Property.
7.1.6 The City shall submit the following documents to the Board:
1) A resolution of the City's City Council authorizing the execution and
delivery by the City of this Agreement and such other documents as.
the Board or the Board's legal counsel may reasonably request,
and specifying the officer(s) authorized to execute the Agreement
and such other documents that are necessary to bind the City.
2) An opinion of the City's legal counsel, in the form attached hereto
as Exhibit E, opining that this Agreement is a binding obligation of
the City and that the City is obligated to perform in accordance with
the Agreement, including the performance of all future conditions
and payments; and that this Agreement does not violate any
constitutional, statutory, or other limitations placed on the City.
Legal counsel's opinion shall also opine that the City owns the
City's Real Property and the Society's Real Property in fee simple,
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
-5-
free and clear of all liens, claims and encumbrances of any kind
whatsoever.
3) Evidence, acceptable to the Board or the Board's legal counsel,
that all other funding sources necessary to the Project have been
committed by means of legally binding agreements.
4) A fully executed copy of the 28E agreement between the
Recipients.
7.1.7
The Society shall submit the following documents to the Board:
1) Certified copies of the Society's Articles of Incorporation and By-
Laws.
2) A Certificate of Incumbency naming the Society's current officers
and directors.
3) A Resolution of the Society's Board of Directors authorizing the
execution and delivery by the Society of this Agreement and such
other papers as the Vision Iowa Board or its legal counsel may
reasonably request; and specifying the officer(s) authorized to
execute the Agreement and such other documents that are
necessary on the Society's behalf.
4) Documentation of satisfactory credit history of the Society with no
outstanding judgments or unsatisfied liens.
5) A certificate of good standing issued by the Iowa Secretary of State
confirming that the Society is an Iowa nonprofit corporation in good
standing.
6) Documentation satisfactory to the Board confirming the Society's
non-profit status.
7) An opinion of the Society's legal counsel, in the form attached
hereto as Exhibit F, opining that this Agreement is a binding
obligation of the Society and that the Society is obligated to perform
in accordance with the Agreement including performance of all
future conditions and payments and that this Agreement does not
violate any constitutional, statutory, or other limitations placed on
the Society.
ARTICLE 8
DISBURSEMENT OF FUNDS
8.1 DISBURSEMENT. Funds disbursed hereunder shall be distributed to the
City and the Society in scheduled installments, as set forth in the schedule
attached hereto as Exhibit G. Subsequent to the initial disbursement of funds to
each Recipient, the City and the Society shall each, no more than 40 and no Jess
than 20 days prior to the scheduled date of each installment, provide to the
Board's designee a statement accounting for the disposition of all funds
previously disbursed to it hereunder. Such statement shall certify the percentage
of the total cost to such date of the relevant component which has been paid for
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
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with Vision Iowa grant funds (the "Grant Pementage"). In the event the Grant
Percentage for a given component exceeds the maximum Grant Percentage
established for the next scheduled installment, as set forth on Exhibit G, no
further disbursement for such component shall be made until the City or the
Society (as the case may be) certifies that the Grant Pementage has been
reduced to an amount which is equal to or less than the maximum Grant
Percentage specified on Exhibit G. The Recipients shall maintain for 5 years
documentation adequate to support the claimed costs incurred for each of the
components.
By way of example of the foregoing, Exhibit G schedules an installment on July
1,2002 for the City Component in the amount of $1,700,000. The maximum
Grant Pementage for that installment is 21%. If the City's statement certifies that
the amount of Vision Iowa grant money spent on the City Component as of the
date of the Statement is more than 21% of the total amount spent on the City
Component to that date, then no further Vision Iowa grant funds shall be
disbursed for the City Component until such time as the City spends enough
money from other sources to bring the Grant Percentage below 21% and certifies
such fact to the Board's designee.
Recipients shall notify the Board within thirty (30) days if the estimated cost to
complete or the value of any component of the Project changes by more than five
percent (5%).
At the Board's sole discretion or its designee's discretion, funds may be
disbursed earlier, more frequently or in greater installment amounts.
8.2 METHOD OF PAYMENT. Payment shall be effected through electronic funds
transfer. Prior to disbursement, the Recipients shall specify the account to
receive the funds. (See Ex. H - Electronic Payment Instruction Form). Vision
Iowa Grant Funds shall not be commingled with other funds not pertaining to the
Project.
8.3 SUSPENSION OF DISBURSEMENT. Upon the occurrence of an event of
default (as defined in this Agreement) by the Recipients, or either of them, the
Board or its designee may suspend payments to the Recipients until such time
as the default has been cured to the Board's satisfaction. Notwithstanding
anything to the contrary in this Agreement, upon a termination of this Agreement
by the Board on account of an event of default by the Recipients, or either of
them, the Board may terminate both Recipients', or either one of the Recipient's,
rights to receive any disbursements after the effective date of default.
8.4 COST VARIATION. in the event the aggregate cost of the City's Component
and the Society's Component is less than one hundred eight million five hundred
eighty thousand eight hundred fifty eight dollars (US$108,580,858), the amount
Vision Io~a Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
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of grant to be awarded hereby shall be calculated by multiplying forty million
dollars ($40,000,000.00) by a fraction, the numerator of which shall be the actual
aggregate cost of the City's Component and the Society's Component as
determined by the Board in its good faith sole discretion, and the denominator of
which shall be one hundred eight million five hundred eighty thousand eight
hundred fifty eight dollars (US$108,580,858). Any grant monies disbursed in
excess of such amount shall be returned immediately to the Board. In the event
the aggregate cost of the City's cOmponent and the Society's Component
exceed one hundred eight million five hundred eighty thousand eight hundred
fifty eight dollars (US$108,580,858), the Recipients shall provide any and all
additional funding necessary to complete the Project.
8.5 INVESTMENT OF GRANT FUNDS. In the event that the grant funds are not
immediately utilized, temporarily idle grant funds may be invested provided such
investments shall be in accordance with State law, including but not limited to the
provisions of Iowa Code chapter 12C concerning the deposit of public funds.
Interest accrued on temporarily idle grant funds held by the Recipients shall be
credited to and expended on the Project prior to the expenditure of other grant
proceeds. In the event interest earned on temporarily idle funds is expended on
the City's Component or the Society's Component, the total amount of grant
proceeds to be disbursed for such component shall be reduced by an amount
equal to the interest so expended. All proceeds remaining, including accrued
interest, after all allowable Project costs have been paid or obligated shall be
returned to the Board within thirty (30) days after the Project Completion Date.
Within ten (10) days of receipt of a written request from the Board, Recipients
shall inform the Board in writing of the amount of unexpended grant funds in the
Recipients' possession or under the Recipients' control, whether in the form of
cash on hand, investments, or otherwise.
8.6 DISBURSEMENT OF LESS THAN THE TOTAL AWARD AMOUNT. If, in
the sole discretion of the Board, substantial progress toward financing and
construction of the Project has not been made within one hundred eighty (180)
days of the Effective Date of this Agreement, then the Board shall be under no
obligation to make any disbursement hereunder. In such an event, the
Recipients shall repay to the Board an amount equal to all grant proceeds
received by the Recipients pursuant to this Agreement.
ARTICLE 9
TERMS AND CONDITIONS OF GRANT
9.1 USE OF FUNDS. The Recipients hereby agree to cause the Project to be
constructed and operated and to maintain their respective components of the
Project in accordance with the representations in this Agreement and Exhibit A
during the term of this Agreement. The funds granted hereunder shall be used
primarily for constructing the vertical infrastructure described in Exhibit A and as
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
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mandated by the laws governing Vision Iowa. The Recipients shall allow the
Board, its intemal or external auditors, the Iowa Department of Economic
Development, the Auditor of the State of Iowa, the Treasurer of the State of Iowa,
the Attomey General of the State of Iowa or the Iowa Division of Criminal
Investigation to inspect the Project facilities at all times in order to audit, monitor
and evaluate compliance with federal, state, and local law, as well as the terms
of this Agreement.
9.2 ACCOUNTING RECORDS. The Recipients shall maintain or be able to
readily convert all books, records and all other financial documents pertaining to
this Agreement in accordance with generally accepted accounting principles for
proprietary activities as established by the Governmental Accounting Standards
Board. These records shall be available for inspection and copying by the Board,
its internal or external auditors, the Iowa Department of Economic Development,
the Auditor of the State of Iowa, the Treasurer of the State of Iowa, the Attorney
General of the State of Iowa and the Iowa Division of Criminal Investigation at all
times within the term of this Agreement and during the term of any extension
thereof, and for three (3) full years from the expiration date.
9.3 DOCUMENTATION. Within twenty (20) days of receipt of a written request
from the Board to the Recipients, the Recipients shall deliver to the Board: (i)
copies of all agreements or documents relating to the Project, (ii) copies of all
invoices, receipts, statements or vouchers relating to the Project, (iii) a list of all
unpaid bills for labor and materials in connection with the Project, (iv) budgets
and revisions showing estimated Project costs and funds required at any given
time to complete and pay for the Project.
9.4 BONDS AND INSURANCE.
The Recipients shall maintain in effect, with insurance companies of recognized
responsibility, at their own expense, insurance and bonds adequately covering
their respective components of the Project. The insurance shall be of a scope
and coverage that is acceptable to the Board or its designee. The Recipients
must submit copies of each insurance agreement or certificates attesting to such
insurance coverage and any renewals thereof, to the Board. The Project shall, at
a minimum, be insured and bonded as set forth below:
The Recipients shall obtain Builders Risk Insurance. The named
insureds shall be the Recipient, the State of Iowa and the Board, all
contractors, subcontractors and sub-subcontractors. Coverage
shall be effective on the inception date of construction and may
terminate when construction is completed, and shall include a
provision for the partial occupancy of the Project.
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
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The Recipients shall, to the extent such insurance is available at
commemiaily reasonable rates, maintain property insurance during
the life of the Agreement that shall: (i) insure the Project for the
maximum possible amount, not to exceed its replacement value,
and (iN provide funds to compensate for the loss of revenues
resulting from the destruction of the property by fire, flood,
earthquake or other insurable hazards.
The City and the Society shall require their general contractors
each to obtain a performance bond for the anticipated full value
upon completion of their respective components of the Project. The
performance bonds shall remain in effect until construction is
completed at which time two-year maintenance bonds shall be
substituted for the performance bonds. The bonds shall clearly
specify that the Board may draw upon the bonds in the event of a
default in the activities required by this Agreement.
The City shall maintain its current fidelity bond in the amount of one
million dollars (USS1,000,000) covering any loss or misuse of grant
proceeds due to any fraudulent or dishonest act on the part of the
City's City Manager, Administrative Services Director, Finance
Director and Assistant Finance Director and one hundred thousand
dollars (US$100,000) on all other officers and employees during the
term of this Agreement. The fidelity bond shall remain in effect until
December 31, 2005, or later if the Board, in its sole discretion,
deems it necessary. The Board may draw upon the fidelity bond if
grant funds become unavailable due to loss or misuse.
The Society shall obtain a fidelity bond in the amount of one million
dollars (US$1,000,000) covering any loss or misuse of grant
proceeds due to any fraudulent or dishonest act on the part of its
officers, employees or agents. The fidelity bonds shall remain in
effect until the completion of construction of its Component of the
Project, or later if the Board, in its sole discretion, deems it
necessary. The Board may draw upon a fidelity bond if grant funds
become unavailable due to loss or misuse by the employees,
officers, or agents of the Recipient covered by such bond.
The State of Iowa and the Board shall be named as additional
insureds or loss payees on all insurance policies and bonds.
All required bonds and insurance purchased from private insurance
providers must be issued by companies which have earned at least
an "A" rating by A.M. Best & Co. for the last three years, are duly
licensed, admitted, and authorized to do business in the State of
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
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Iowa. The insurance carder must also have combined capital and
unassigned surplus of at least one hundred million dollars
($100,000,000).
The City is a member of the Iowa Communities Assurance Pool
(ICAP) and has submitted to the Board a copy of its agreement with
ICAP. The City shall maintain its membership in ICAP during the
term of this Agreement or shall provide evidence of insurance
consistent with its ICAP agreement.
9.5 NOTICE OF PROCEEDINGS. The Recipients shall promptly notify Vision
Iowa of the initiation of any claims, lawsuits, bankruptcy proceedings or other
proceedings brought against the Recipients that could potentially adversely
impact the Project.
9.6 COVENANTS OF RECIPIENTS.
9.6.1 AFFIRMATIVE COVENANTS. Until the terms of this Agreement
are fulfilled, the Recipients covenant to Vision Iowa that:
(a) PROJECT WORK. The Recipients shall complete their respective
components of the Project by June 30, 2005. For the purposes of this
section "complete" means the Project is fully constructed and
operational.
(b) OPERATION AND MAINTENANCE. For the duration of this
Agreement, the Recipients shall operate and maintain their respective
components of the Project at a professional level consistent with the
highest industry standards.
(c) REPORTS. The Recipients shall submit the requests and reports
as specified below in the form specified by the Board.
1) The Recipients' annual audited financial statements shall be
prepared according to generally accepted accounting principles for
proprietary activities ("GAAP") as established by the Governmental
Accounting Standards Board. If required by the Board, the
Recipients shall submit more frequent financial statements, such as
an income, expense, and retained earnings statement covering the
period having elapsed from the date of the last prior submission
and a balance sheet that is not more than thirty (30) days old. The
more frequent financial statements need not be audited, and,
unless the Board specifically requests in writing that they be
prepared according to GAAP, the more frequent financial
statements need not be prepared according to GAAP. Year-end
Vision Iowa Grant AWard to the
City of Dubuque ancl the
Dubuque County Historical Society
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statements must be certified by a Certified Public Accountant (CPA)
and must be received by the Board within one hundred eighty (180)
days following the Recipients' fiscal year ends. All audits of the
Recipients for purposes hereof shall be conducted in accordance
with the Government Auditing Standards issued by the Comptroller
General of the United States;
2) Final Performance and Status of Funds Reports within sixty days
after the date on which the Project is first permanently opened to
the public; and
3) A final accounting upon completion of the Project.
(d) PROJECT FEES. The Recipients shall promptly pay all
construction, appraisal, survey, recording, title, license, permit and
other fees and expenses incurred incident to the Project.
(e) INTEREST AND SURPLUS PROCEEDS. The Recipients shall
return all unexpended proceeds and interest accrued on grant
proceeds to the Board within thirty (30) days after the Project
Completion Date.
(f) CITY BONDS. The City of Dubuque shall, no later than July 30,
2002, successfully issue $12,360,000 in general obligation bond(s)
exclusively for the purpose of financing portions of the Project (the
UGeneral Obligation Bonds"). The proceeds of all tranches of the
General Obligation Bonds shall be deposited in a separate
construction fund and shall be fully expended on the City's Component
of the Project no later than June 30, 2003, except with the Board's
prior written approval which shall not be unreasonably withheld.
Failure of the City to issue the General Obligation Bonds or to expend
the proceeds thereof by the dates set forth above shall be deemed a
default of this Agreement, resulting in the loss of this grant award by
the City and the Society. In the event of such a failure, the Board may
immediately reallocate the full grant amount or any part(s) thereof to
other Vision Iowa projects. Evidence of the issuance and sale of
bonds, and the spending of resulting proceeds for Project use, as well
as certified copies of the approving opinion(s), evidence of sale and
the certified transcript(s) for the $12,360,000 general obligation
bond(s) issued for this Project shall be provided to the Board upon
request and in any event no later than June 30, 2003.
Notwithstanding anything to the contrary herein, the City may, with the
Board's consent, postpone the issuance or sale of all or part of the
General Obligation Bonds or the deadline for spending of the proceeds
thereof.
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City of Dubuque and the
Dubuque County Historical Society
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9.6.2 NEGATIVE COVENANTS. Throughout the term of this Agreement,
the Recipients shall not, without prior written disclosure to the Board and
prior written consent of the Board (unless Board prior approval is
expressly waived below), directly or indirectly:
(a) Assign, waive or transfer any of Recipients' dghts, powers, duties
or obligations under this Agreement, except for the Facility
Management Agreement previously entered into by the City.
(b) Sell, transfer, convey, assign, encumber or othenNise dispose of
any real property described in Exhibits B and C, or any leasehold
interest in any such real property.
(c) Except as required or permitted by this Agreement, place or permit
any restrictions, covenants or any similar limitations on the real
property.
(d) Except in the ordinary course of operation or maintenance, remove
from the Project site or the State all or any part of the Project.
(e) Materially change the ownership, structure, or control of the
Recipients affecting the Project, including but not limited to, entering
into any merger or consolidation with any person, firm or corporation or
permitting substantial distribution, liquidation or other disposal of
Recipients' assets directly associated with the Project. Changes in the
Recipients' ownership, structure or control which do not materially
affect the Project shall require forty-five (45) days prior written notice to
the Board, but not written consent of, the Board. The Board shall
determine the materiaiity of the change and whether or not the change
affects the Project.
(f) Materially change the scope or use of the Project or the nature of
the business and activities being conducted, or proposed to be
conducted by Recipients, as described in Exhibit A, unless approved in
writing by the Board and its bond counsel prior to the change.
(g) Use or permit the use of any proceeds of Bonds issued by the
Treasurer of the State of Iowa pursuant to Iowa Code Sections 12.71
to12.77, directly or indirectly, in any manner, and shall not take or
permit to be taken any other action or actions, including without
limitation, use, management and disposition of the Project, which
would cause the interest on any Bond to be included in gross income
for federal income tax purposes.
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City of Dubuque and I~e
Dubuque County Historical Society
July 11, 2001
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9.7 GENERAL INDEMNIFICATION.
The Recipients shall, to the extent permitted by the laws and the
Constitution of the State of Iowa, indemnify, defend and hold harmless the
Board, the State of Iowa, its departments, divisions, agencies, sections,
commissions, officers, employees and agents from and against all losses,
liabilities, penalties, fines, damages and claims (including taxes), and all
related costs and expenses (including reasonable attorneys' fees and
disbursements and costs of investigation, litigation, settlement, judgments,
interest and penalties), arising from or in connection with any of the
following:
Any claim, demand, action, citation or legal proceeding arising out
of or resulting from the Project;
Any claim, demand, action, citation or legal proceeding arising out
of or resulting from a breach by the Recipients of any
representation or warranty made by the Recipients in the
Agreement;
Any claim, demand, action, citation or legal proceeding arising out
of or related to occurrences that the Recipients are required to
insure against as provided for in this Agreement; and
Any claim, demand, action, citation or legal proceeding which
results from an act or omission of the Recipients or any of their
agents in its or their capacity as an employer of a person.
9.8 TIMELY PERFORMANCE. The parties agree that the dates and time
periods specified in this Agreement are of the essence to the satisfactory
performance of this Agreement.
9.9 VISION IOWA RECOGNITION. The Project shall permanently recognize, in
a manner mutually acceptable to the Parties, the financial contribution to the
Project made by the State of Iowa through the Vision Iowa Program.
9.10 REPRESENTATIONS AND WARRANTIES OF RECIPIENTS. To induce
the Board to make the Award referred to in this Agreement, the Recipients
represent, covenant, and warrant that:
9.10.1 AUTHORITY. The Recipients are duly organized and validly
existing under the laws of the State and are in good standing, and have
complied with all applicable laws of the State of Iowa. The Recipients are
duly authorized and empowered to execute and deliver this Agreement. All
action on the part of the Recipients, such as appropriate resolutions of
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County HlStOlJCal Society
July 11, 2001
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their governing bodies for the execution and delivery of the Agreement,
have been effectively taken.
9.10.2 FINANCIAL INFORMATION. All financial statements and related
materials concerning the Recipients and the Project provided to the Board
are true and correct in all material respects and completely and accurately
represent the subject matter thereof as of the effective date of the
statements and related materials, and no material adverse change has
occurred since that date.
9.10.3 APPLICATION. The contents of the Vision Iowa Application
submitted by the Recipients on behalf of Recipients to the Board for Vision
Iowa funding is a complete and accurate representation of the Recipients
and the Project as of the date of submission and there has been no
material adverse change in the organization, operation, fixed properties,
key personnel or Project plan of the Recipients since the date the
Recipients' Vision Iowa Application was approved by the Board.
9.10.4 CLAIMS AND PROCEEDINGS. There are no actions, lawsuits or
proceedings pending or, to the knowledge of the Recipients, threatened
against the Recipients affecting in any manner whatsoever their right to
execute the Agreement, or to otherwise comply with the obligations of the
Recipients contained under the Agreement. There are no actions,
lawsuits or proceedings at law or in equity, or before any governmental or
administrative authority pending or, to the knowledge of the Recipients,
threatened against or affecting the Recipients or any property or collateral
pledged as security.
9.10.5 PROJECT VALUE. Based on all information known or that should
be known by the Recipients the estimated value of the Project is one
hundred eight million five hundred eighty thousand eight hundred fifty
eight dollars (US$108,580,858). The estimated value of the City's
Component is US$71,707,391, and the estimated value of the Society's
Component is US$36,873,467.
9.10.6 COMPLIANCE. Each of the Recipients declares that it has
complied or will comply, in a timely fashion, with all federal, state and local
laws regarding permits, licenses, and clearances that may be required to
cam/out the Project..
9.10.7 EFFECTIVE DATE. The covenants, warranties and
representations of this Article are made as of the date of this Agreement
and shall be deemed to be renewed and restated by the Recipients at the
time each request for disbursement of funds is submitted to the Board.
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
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9.10.8 REAL PROPERTY. The City hereby represents and warrants that
it owns the City's Real Property and the Society's Real Property in fee
simple, free and clear of all liens, claims and encumbrances of any kind
whatsoever.
ARTICLE 10
CONVEYANCE OF REAL PROPERTY
During the term of this Agreement no Recipient shall sell, transfer, convey,
assign, encumber or otherwise dispose of any real property of the Project, as
described in Exhibits B and C, without the written permission of the Board, which
permission may be withheld in the sole discretion of the Board. Should the
Board grant permission to the Recipients to sell, transfer, convey, assign,
encumber or otherwise dispose of any real property of the Project, the Recipients
shall repay the full amount of the grant award plus a pro-rata share of the profits
realized by the sale of the real property. The Vision Iowa Program shall be
entitled to a percentage of the profit realized on any real property sale. The
percentage of profit to be allocated to the Vision Iowa Board shall be
commensurate with the financial assistance contributed to the Project by the
Board. Provided, however, that the Board may waive its right to reimbursement,
in whole or in part, if the Board determines, in its sole discretion, that the public
interest would best be served thereby.
ARTICLE 11
DEFAULT AND REMEDIES
11.1 NOTICE OF EVENT(S) OF DEFAULT. The Recipients shall promptly notity
Vision Iowa upon becoming aware of an actual or imminent Event of Default by
the Recipients, or by either of them individually.
11.2 EVENTS OF DEFAULT. Each of the following shall constitute an Event of
Default under this Agreement:
(a) MATERIAL MISREPRESENTATION. If at any time any
representation, warranty or statement made or furnished to the Board
by, or on behalf of, the Recipients in connection with this Agreement or
the Application is fraudulent, incorrect, false, misleading or erroneous
in any material respect when made or fumished or if it becomes untrue
due to some occurrence, act, or omission.
(b) NONCOMPLIANCE. If Recipients fail to comply in any material
respect with any applicable federal, state, and local laws, rules,
ordinances, regulations and orders or if Recipients fail materially to
comply with this Agreement.
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Soctety
July 11, 2001
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(c) FAILURE TO COMPLETE. If the Project, in the sole judgment of
the Board, is not completed on or before June 30, 2005. For the
purposes of this section "completed" means the Project is fully
constructed and operational.
(d) FAILURE TO OPERATE AND MAINTAIN. If the Recipients fail to
operate and maintain the Project facilities for the duration of this
Agreement.
(e) RECIPIENT CHANGES. If there is a material change in the
Recipients' structure or control that occurs without the prior written
disclosure to, and, if required, written permission of, the Board.
(f) MISSPENDING. If the Recipients expend Vision Iowa funds in
contravention of the laws or rules restricting the use of Vision Iowa
funds or if Recipients expend Vision Iowa funds for purposes not
described in this Agreement or the exhibits that are integral parts of
this Agreement.
(g) INSOLVENCY OR BANKRUPTCY If either of the Recipients: (i)
becomes insolvent or bankrupt; (ii) admits in writing its inability to pay
its debts as they mature; (ii~ makes an assignment for the benefit of
creditors; (iv) applies for or consents to the appointment of a trustee or
receiver for the Recipient or for the major part of its property; has a
trustee or receiver appointed for it or for all or a substantial part of its
assets, and the order of such appointment is not discharged, vacated
or stayed within sixty (60) days after such appointment; or (vi) if
bankruptcy, reorganization, arrangement, insolvency, or liquidation
proceedings or other proceedings for relief under any bankruptcy or
similar law or laws for the relief of debtors, are instituted by or against
either of the Recipients'and, if instituted against either of the
Recipients, is consented to, or, if contested by the Recipients is not
dismissed by the adverse parties or by an order, decree or judgment
within sixty (60) days after such institution.
(h) INSURANCE. If the Recipients fail to obtain and maintain any of
the bonds or insurance required by this Agreement or if loss, theft,
damage or destruction of any substantial portion of the Project property
occurs for which there is either no insurance coverage or for which, in
the opinion of the Board, there is insufficient insurance coverage.
(i) CONVEYANCE OF RESPONSIBILITIES. If Recipients assign,
waive or transfer any of Recipients' rights, powers, duties or
obligations under this Agreement, without written permission of the
Board.
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City of Dubuque and the
Dubuque County Historical Society
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(j) CONVEYANCE OF PROPERTY. If Recipients sell, transfer,
convey, assign, encumber or otherwise dispose of all or any portion of
the real property described in Exhibits B and C, without wdtten
permission of the Board.
11.3 NOTICE OF DEFAULT. Prior to exercising any remedy herein for an Event
of Default, the Board shall issue a written notice of default providing therein a
thirty (30) day period in which the Recipients shall have an opportunity to cure,
provided that cure is possible and feasible.
11.4 REMEDIES UPON DEFAULT. Upon the happening of any Event of
Default, the Board shall have the right to terminate this Agreement and, during
the first ten (10) years of this Agreement, to require immediate repayment of the
full amount of funds disbursed to the Recipients under this Agreement plus
interest at the rate of ten percent (10%) per annum (which interest shall begin to
accrue from the date of default) without presentment, demand, protest, notice of
protest, notice of intention to accelerate or other notice of any kind, all of which
are expressly waived by the Recipients. Beginning on the tenth (10th)
· . anniversary of the effective date of this Agreement, the principal amount to be
repaid by the recipients shall reduce by ten percent (10%) per year.
11.5 FUNDING FAILURE. Any termination, reduction or delay of funds available
to the Board due, in whole or in part, to (i) a deappropriation of revenues
previously appropriated to the Board by the legislature, or (ii) any other reason
beyond the Board's control, may, in the Board's discretion, result in the
termination, reduction or delay of Vision Iowa funds to the Recipient(s).
11.6 PROCEDURE UPON TERMINATION. If the Agreement is terminated by
unanimous agreement of the parties, due to an Event of Default, or pursuant to
section 11.5 hereof, disbursements may be allowed, in the discretion of the
Board, for costs incurred prior to the date of termination. The Recipients shall
return to the Board all unencumbered Grant proceeds, if any, within one (1) week
of receipt of Notice of Termination. Any costs previously paid by the Board that
are subsequently determined to be unallowable through audit procedures shall
be returned to the Board within thirty (30) days of the disallowance.
ARTICLE 12
GENERAL PROVISIONS
12.1 BINDING EFFECT. This Agreement shall be binding upon and shall inure
to the benefit of the Board, Recipients, and their respective successors, legal
representatives and assigns. The obligations, covenants, warranties,
acknowledgments, waivers, agreements, terms, provisions and conditions of this
Agreement shall be jointly and severally enforceable against the parties to this
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
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Agreement.
12.2 COMPLIANCE WITH LAWS AND REGULATIONS.
12.2.1 The Recipients shall comply with all applicable federal, state, and
local laws, rules, ordinances, regulations and orders when performing
within the scope of this Agreement, including, without limitation, those
applicable to the Vision Iowa Program, prevention of discrimination,
wages, competitive bidding, environmental protection, occupational safety
and health standards, payment of taxes, Conflicts of interest, lobbying, and
those relating to the use of targeted small businesses as contractors or
suppliers.
12.2.2 As required by Iowa Code section 15F. 106, the Recipients shall
provide and pay at least fifty pement of the costs of a standard medical
insurance plan for all full-time employees working at the Project after the
completion of the Project.
12.2.3 This Agreement is a public record governed by Iowa Code chapter
22.
12.3 SURVIVAL OF AGREEMENT. Each provision of this Agreement shall be
deemed to be severable from all other provisions of the Agreement and, if one or
more of the provisions of the Agreement shall be declared invalid, the remaining
provisions of the Agreement shall remain in full force and effect.
12.4 CHOICE OF LAW AND FORUM. The laws of the State of Iowa shall
govem and determine all matters arising out of or in connection with this
Agreement without regard to the choice of law provisions of Iowa law.
In the event any proceeding of a quasi-judicial or judicial nature is commenced in
connection with this Agreement, the proceeding shall be brought in Des Moines,
Iowa, in Polk County Distdct Court for the State of Iowa, if such court has
jurisdiction.
This provision shall not be construed as waiving any immunity to suit or liability,
in state or federal court, which may be available to the Vision Iowa Board, the
State of Iowa or their Board members, officers, employees or agents.
12.5 MODIFICATION. Neither this Agreement nor any documents incorporated
by reference in connection with this Agreement may be changed, waived,
discharged or terminated orally, but only as provided below:
(a) WRITING REQUIRED. The Agreement may only be amended
through written prior approval of the Board. Examples of situations where
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Hlstorfcal Society
July 11, 2001
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amendments are required include extensions for completion of Project
activities, changes to the Project including, but not limited to, altera~on of
existing approved activities or inclusion of new activities.
(b) BOARD REVIEW. The Board will consider whether an amendment
request is so substantial as to necessitate reevaluating Vision Iowa's
original funding decision on the Project. An amendment will be denied by
the Board if it substantially alters the circumstances under which the
Project funding was originally approved or if it does not meet requirements
set forth in Iowa Code chapter 15F or 261 Iowa Administrative Code,
Chapter 212.
12.6 NOTICES. Whenever this Agreement requires or permits any notice or
written request by one party to another, it shall be in writing, enclosed in an
envelope, addressed to the party to be notified at the address heretofore stated
(or at such other address as may have been designated by written notice),
properly stamped, sealed and deposited in the United States Mail. Any such
notice given hereunder shall be deemed delivered upon the earlier of actual
receipt or three (3) days after posting. The Board may rely on the addresses of
the Recipients as set forth heretofore.
12.7 WAIVERS. No waiver by the Board or the Recipients of any default
hereunder shall operate as a waiver of any other default or of the same default
on any future occasion. No delay on the part of the Board or the Recipients in
exercising any right or remedy hereunder shall operate as a waiver thereof. No
single or partial exercise of any right or remedy by the Board or the Recipients
shall preclude future exercise thereof or the exercise of any other right or
remedy.
12.8 LIMITATION. It is agreed by the Recipients that the Board shall not, under
any circumstances, be obligated financially under this Agreement except to
disburse funds according to the terms of the Agreement.
12.9 ENFORCEMENT EXPENSES. The Recipients shall pay upon demand any
and all reasonable fees and expenses of the Board relating to the successful
enforcement of this Agreement, including the fees and expenses of its attorneys,
experts and agents, in connection with the exercise or enforcement of any of the
rights of the Board under the Agreement.
12.10 HEADINGS. The headings in this Agreement are intended solely for
convenience of reference and shal! be given no effect in the construction and
interpretation of this Agreement.
12.11 EVENT OF BOARD DISSOLUTION. Recipients hereby acknowledge
that the Vision Iowa Board is a public instrumentality of the State of Iowa and
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
.July 11, 2001
- 20 -
that, in the event that the Board or its programs are terminated by statute, the
State of Iowa shall be entitled to enforce any right, title or interest held by the
Board and all Recipients' obligations hereunder shall be owed to the State of
Iowa. In the event of such a termination, the approval or consent of the designee
of the Govemor of the State of Iowa shall be deemed sufficient in any instance
where the approval or consent of the Board is required or allowed by this
Agreement, unless otherwise provided by statute.
12.12 INTEGRATION. This Agreement contains the entire understanding
between the Recipients and the Board relating to this Project and any
representations that may have been made before or after the signing of this
Agreement, which are not contained herein, are non-binding, void and of no
effect. None of the Parties have relied on any such prior representation in
entering into this Agreement.
12.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, in consideration of the mutual covenants set
forth above and for other good and valuable consideration, the receipt, adequacy
and legal sufficiency of which are hereby acknowledged, the parties have
entered into the above Agreement and have caused their duly authorized
representatives to execute this Agreement.
FOR THE VISION IOWA BOARD:
By: ....Michael Gartner, Chairperson 7-11-01
By: /s/ Dianne Dethmers Paca, Vice-Chairperson
7-11-2001
For the City of Dubuque (Recipient):
FOR THE CITY OF DUBUQUE (RECIPIENT):
BY: Terry Duggan, Mayor Date 7 -11- 2001
FOR THE DUBUQUE COUNTY HISTORICAL SOCIETY (RECIPIENT):
By: /s/ Jerry Enzler, Executive Director Date 7-11-01
v,.,i. ,e JJ~a~nt~tr~m~xe~/Direct°r - Date
-21 -
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
EXHIBIT A
DUBUQUE'S VISION IOWA APPLICATION
(On file with the Iowa Department of Economic Development)
EXHIBIT B
Leqal Description of City's Real Property
Lot 3 of Riverwaik 3rd Addition in the City of Dubuque, Iowa
EXHIBIT C
Lesal Description of Society's Real Property
Page 1 of .3
MISSISSIPPI RIVER DISCOVER CENTER
{-rASE BOUNDARy
LECAL DESCP,.iPTION
Commencing at d~e northeasterly comer of rot 4 of Ice Harbor Development in tho City of
Dubuque, Iowa, said point being tile point of beginning;
Thence South 58 degrees 59 minutes 05 seconds East, 24.18 feet to a point;
Thenco South 31 degrees 0l minutes 22 seconds West, 251.98 feet to a po/at;
Thence South 8] degre~ 45 minutes 38 seconds West, 133.50 feet to a point;
i-hence South 31 degrees 0] minutes 22 seconds West, 200.00 feet to a point;
Thenco North $8 degrees $8 minutes 38 seconds West, 300..28 fee! to a point;
Thenco North 0d degrees 46 minutes 12 aeccods '~st, 3 ! 1.70 feet to a point;
Thenc.- Honh 07 degrees 17 minute: 33 seconds East, 176.8S feet to a point;
Thence South 83 degrees 0g minutes 25 seconds }~as{, Sd.g3 f~et lo a point:
Thence Nonl~ 06 degrees 50 minutes 35 seconds East, 12.67 feet to a point;
Thence South g3 degrees 09 minutes 2S seconds ~.ast, 126.52 feet to apoint;
Thence South 58 degrees $9 minutes l)~ seconds East 5.30 feet to the northwestarly corner of Lot
4 oflco Harbor Development; '
Thence North 85 degrees 37 minuce.~ l0 ~econds West, 23.$6 Feet to a point of curvature;
Thence Suuth $0 degrees 48 minute~ 30 seconds West, 20.68 f~et along the citord ora 15.00 foot
radius curve conCave southeasteHy to a point of tangency;
Thenco South 07 degrees 14 rninut~s 05 ~coonds West, 25.2g feet to r, point of curvature;
Thence South 25 degrees $5 minutes 20 seconds ~t, 32.82 feet ainng the chord ora ~0.00 Coot
radius curve concave norlhe=stcrly to a point of tangtn~7;
Tl~nc¢ South $3 degrees 04 minutes 45 seconds East, $4.0~ feet to a point;
Thence Horth 2g degree~ $8 minute~ 30 seconds East, 8.47 feet to a point;
Thence South $8 degrees 59 minute{,:0 seconds -F~$t, 340.35 feet to a point;
Thel;cc North 30 de-re -^ ·
~ ~ ~Y mmutes O0 seconds East, 25.38 feet to a point;
Thence ~outl{ $~ degr~ 0l ininute$ 00 seconds F~agt, 10.36 Feet to a point;
EXHIBIT C
F'~OM :
Legal 'Descr5
Page 2 of 3
,tion of Society's Real Propert7
/ul. ~9 21~)l 09:23~t P~
8.47'
S58'5g%0'
C-2
L--34.72 LOT 3
D[LTA,-66nS'$O' ICE: HARBOR DEVELOP~E
C~D BRG-~S2E'55'20'E
5.03 ACRES
80 - ~60
SCALE:
NSB~58'38*'W
3DO.2B'
IUL-09-200~ 09:~2 P. G3
EXHIBIT C
, F~< NO. : ful. ~9 2001 09:2,~'4
of z s Real ~o~rty
(LOT A - ICE HARBOR
o'r 5
~ D~..LOPI,~E~T
'T
LEASE BOUNDARY,~--..,.
MISSISSIPPI RIVER
DISCOVERY CENTER
DUBUQUE., IOWA
· LEASE EXHIBIT "A"
IUL-~2001 09:22 94Y. P. 04
EXHIBIT D
List of Leqall¥ Bindinq Financial Commitments
· Development Agreement with Platinum Hospitality Group
Vision Iowa Grant Award to the
City of Dubuque anel the
Dubuque County Historical Society
July 11, 2001
CITY OF DUBUQUE, IOWA
AMENDED DEVELOPMENT AGREEMENT
THIS AMENDED DEVELOPMENT AGREEMENT (the ~Agreement"), made on er as of the ~
day of January, 2001. by and between the City of Dubuque, Iowa. a municipelity (hereinafter
called 'CITY'), established pursuant te the Code of Iowa of the State of Iowa and acting under
au~orizafion of Chapter 403 of the Code of Iowa., as amended (hereinafter called 'URBAN RENEWAL
ACT') and Platinum Holdings, LLC (hereinafter called 'DEVELOPER').
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act. City has undertaken an
Urban Renewal project (hereinafter coiled 'PROJECT~ to advance the community's ongoing economic
development efforts; and
WHEREAS, said Project is located within the Ice Harbor Urban Renewal Distdct (hereinafter
called "PROJECT AREA"); and
WHEREAS, as of the date of this Agreement there has been prepared and approved by City an
Urban Renewal Plan for the Project Area consisting of the Urban Renewal Plan approved by City Council
of City on the 5th of June, 2000 (attached hereto as Exhibit A and hereinafter called ~URBAN RENEWAL
PLAN'); and
WHEREAS. a copy of the Urban Renewal Plan, as constituted on the date of this Agreement. has
been recorded among the land records in the office of the Recorder of Dubuaue County, Iowa: and
WHEREAS, Developer has requested that City acquire and lease to Developer approximately 3.5
acres located in the Project Area as more specifically identified on Exhibit B attached hereto (hereinafter
called 'PROPERTY") so that Developer may redevelop said Property, located in the Project Area, for and
in accordance with the uses specified in the Urban Renewal Plan and in accordance with this Agreement;
and
WHEREAS, City believes that the redevelopment of Property pursuant to this Agreement, and the
fulfillment generally of this Agreement. are in the vital and best interests of City and in accord with the
public purposes and provisions of the applicable federal, state and local laws and the requirements under
which the Project has been undertaken and is being assisted; and
WHEREAS, this Deveio=ment Agreement is exempt from the competitive Didding procedures of
Iowa Code Section 403.8(2) as a result of the agreement of Developer to enter into a minimum
assessment agreement as provided in iowa Code Section 403.6 and the development of home/regional
offices of a mulfistate business at the Property.
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, ACQUISITION OF PROPERT7 BY CiTY
Subject to all the terms, covenants and conditions of this Agreement, City shall use its best efforts,
including the exercise of its eminent domain powers, if necessary, to acquire Property for the purpose of
conveying the same to Developer.
SECTION 2. LEASE OF PROPERT7 TO DEVELOPER
2.1 Lease. On the Closing Date. City shall transfer possession of Property pursuant to a lease with
the Developer (the "Lease~) for a term of fifty (50) years. The Lease shall be substantially in the form of
Exhibit C attached hereto. On completion of the Phase II Improvements (as defined in Seciton 3.1
below), the Lease shall be extended for the appropriate period of time in order that the Lease shall be for
a term of fifty (50) years commencing on the date the Developer receives the certificate of completion
from the City related to the completion of the Phase II Improvements. The City and Developer shall enter
into a Parking Use Agreement, substantially in the form of Exhibit G attached hereto, pursuant to which
the City shall provide Developer with proprietary vehicular parking as more specifically designated on
Exhibit B attached hereto, for a minimum 290 vehicles for the Minimum Improvements an~. if constructed
as provided herein, for an add~onat minimum 110 vehicles for the Phase tl Improvements (total minimum
par~ing for both Phase I and Phase II of 400 vehicles).
2.2 Recordation of Lease. On the Closing Date, Developer shall record a Memorandum of Lease as
stipulated in the Lease among the land records in the office of the Recorder of Dubuque County, Iowa.
Developer shall pay all the costs for so recording.
2.3 Condition of Pmpem~. City shall deliver the Property to the Developer in a condition that the
Developer can immediately commence conslzucting the Minimum Improvements (as defined in Section
3.1 below), including without limitation, the demolition by the City of all pm-existing structures on the
Property, and shall deliver the Property to Developer in a condition that satisfies the following standards:
(a) Environmental Investidation. City shall retain an environmental consultant to conduct a Phase
environmental assessment that shall comply with the ASTM E 1527-97 standard with the exception of
those reasonable and documented exceptions agreed upon by Developer. The City shall aisc retain an
environmental consultant to complete a Phase II environmental assessment that shall compty with the
ASTM E 1903-97 standard with the exception of those reasonable and documented exceptions agreed
upon by Developer. The Phase II shall consider those concerns identified in the Phase t. The City and
Developer shall consult concerning the identity of the environmental consultant, and Developer shall not
unreasonably withhold approval ofthe environmental consultant. Developer approvas Preston
Engineering as an acceptable environmental consultant for the purposes of this Agreement. The City and
Developer shall consult concerning the scope of work to be included in the Phase II, and Developer shall
not unreasonably withhold approval of the Phase II scope of work. Upon completion of the Phase i and
Phase 11 environmental assessment reports, City may in its sole discretion undertake additional
environmental assessment ('$uppiemantal Phase I1') after consultation with Developer. Developer shall
have the dght to lospect the Property pdor to the Closing Date and to take whatever tests or perform such
examination, as Developer shall deem appropriate, at its own dsk and its sole cost and expense. Prior
notice of such activity by Developer shall be provided to the City and written results of such ac~vity shall
be shared with the City. Any test, examination or inspection of the Property by Developer shall not
eliminate or relieve the City of its obligations under this Section2.3. Notwithstanding any provision to the
contrary, prior to Closthg, following adequate demolition and availability of the Property., the City agrees to
conduct additional groundwater and sell sampling at locations within the proposed foundation of the hotel
as shown on Exhibit B and as agreed upon by the City, the Developer and the environmental consultant.
The City agrees to monitor the demolition of existing structures and to notify the Developer if any
environmental concerns are discovered.
(b) Comfort Letter. If the environmental assessments or if under any other circumstances
Developer or the City or their contractors determine prior to the Closing Date that Hazardous Substances
on the Property are in excess of any appticeble action level, as defined at 5(~7 Iowa Administrative Code §
133.2, 567 Iowa Administrative Code Chapter 135, or applicable statewide standard developed under
Iowa Code Chapter 45,5H, if the Property is statutorily eligible, whichever is less stringent, then City shall
obtain a "no-action letter" from the Iowa Department of Natural Resources and if the Environmental
Protection Agency ("EPA'3 has concurrent or primary jurisdiction over the pa~ficutar Hazardous
Substance identified, then City shall also obtain the appropriate comfort letter/status letter pursuant to the
EPA's Policy on the Issuance of Comfort/Status Letters, Nov. 8, 1996. The nc-actien letter and/or
comfoff/status letter ("collectively termed "Comfort Letters") shall be subject only to such restrictions,
impairments, and conditions that do not substantially impair the use of the property and which are
approved by Developer, which approval shall not be unreasonably withheld. Any requirement, restriction
or condition that the Property be moved more than one hundred thirty (130) fee{ from the location
identified in this Agreement and the Lease shall be defined as a substantial impairment. After Closing, no
requirement, restriction or condition shall require the Property to be moved. If the environmental
assessments indicate any Hazardous Substances on the Property or on any proposed location of the
Phase ii Improvements, Developer shall have the option to move the location of the Prol3erty up to one
hundred thirty (130) feet north of the current location Of the Property as reflected on Exhibit B atta~ed
hereto. In the event that the Property is moved, the City shall add to the parking ama under the Parking
Use Agreement that part of the current Property location that will no longer be used as the Property
location. The City will also expend the parking area under the Parking Use Agreement to include the
additional lend directty to the west of the Property as a result of the move of the Property location to the
north. The parking area south and west of the Property at all times shall provide parking for a minimum
290 vehicles for the Minimum Improvements and an additional minimum 110 vehicles for the Phase II
Improvements (total minimum parking of 400 vehicles for both Phase I and Phase II). In the event that
the Property Ioca~;on is moved, the City and Developer will prepare a revised Exhibit B reflecting the new
Property location. Any Comfort Letter shall be based on the anticipated use of the Property as outithed in
this Agreement, including all anticipated expansions.
(c) Remediation. If the City or a governmental agency having jurisdiction over Environmental
Laws determines that the concentrations of H~7nn3ous Substances on the Property renuire removat
and/or remediafion prior to the issuance of a required Comfort Letter as defined above, then City shall
retain an environmental consultant to prepare a plan ("Environmental Remediation Plan") for the removal
and/or remediation of the identified Hazardous Substances as required by applicable environmental
agency or agencies. The Environmental Remediation Plan shall provide for the removal and/or
remediation of the identified Hazardous Substances to a level sufficient to obtain the aforementioned
"Comfort Letter''. The Environmental Remediation Plan shall include an estimate of the total costs of
conducting the removal and/or remediation required by the applicable government agency or agencies to
obtain the required Comfort Letters. The estimate of costs shall be based on the coat of local contractors.
provided local contractors are qualified and available to pedorm such work. The estimate of costs shall
not include internal staff costs to the City. Following the completion of the Environmental Remediation
Plan, the City shall cause the removal and/or remediation of Hazardous Substances as redUired by the
applicable governmental agency or agencies to be accomplished prior to obtaining the required Comfort
Letters and prior to Closing unless otherVase agreed to by the Developer. All of the costs of obtaining the
Phase I, Phase II, Supplemental Phase II, Environmental Remediation Plan and any remediafion and/or
monitedng as required by Comfort Letter shall be bome by the City. City shall not be responsible for costs
generated by Developer if Developer retains a consultant to assist it in reviewing the aforementioneo
reports. The requirement to obtain a the required Comfort Letters shall be a matedal precondition to
closing.
(d) $'200.000 CaD on Additional Costs for Developer. Neither the Comfort Letters required by
2.3(b) of this Agreement, nor any Environmental Remediation Plan provided by 2.3(c) of this Agreement
shall result in a substantial impairment of the planned and intended use of the Property by Developer. A
substantial impairment shall include, but not be limited to, additional costs for the construction of the
Minimum Improvements which in total exceed the sum of $200,000. The determination of the additional
costs shall be based upon those changes or other modifications which would not need to be made were it
not for the environmental condition of the Property as dissiosed in the environmental assessments
(Phase l, Phase II and Suppismectat Phase II) and, if applicable, the Environmental Remediation Plan.
tn the event that the Remediation PTan results in a substantial impairment, which includes additional costs
that exceed $200,000, then Developer at its option may declare that the City has defauitad in its dub/to
obtain the required Comfort Lefters acceptable to Developer. In the event that the City pays all additional
costs that exceed $200,000, the Developer shall be prohibited from declaring the City in default under this
subsection 2.:3(d). Notwithstanding the foregoing, the City shall have no obligation or responsibility to pay
any additional costs as a reset of any substantial impairment of the Property.
(e) $1,000,000 Cap on Remediation Costs for City. If after submitting a Remediation Plan to the
applicable governmental agencies as may be required under 2.3(c) of this Agreement, it is reasonably
determined by the City Coundl of the City, based upon a recommendation by the environmental
consultant, that the casts of the removal and/or remediafion necessary to obtain the required Comfort
Letters will exceed the sum of one million dollars ($1,000,000), then City shall have the option to
terminate this Agreement within fi~een days after receiving the Environmental Remecilation Plan or
December 19, 2000, whichever date occurs first.
(f) Release of Reports and Data. The City shall promptly provide Developer with a copy of ail
environmental consulting or engineering reports, separate laboratory analysis reports, and other matadai
information and data received by City, in the possession of the City, or generated by the environmental
consultant, regarding the environmental condition of the properS, or which are otherwise received or
generated as part of the Phase I. Phase II and Supplemental Phase II environmental assessments or
removal and/or remediation action, except for attorney-client privileged documents.
(g) Reciprocal Covenants.
(i) Developer covenants and agrees that City shall have no responsibility for or liability
arising from any release of a Hazardous Substance, which is caused by Developer or its agents
or invitees. Notwithstanding any other provision of this Agreement, City agrees that Developer
shall not have any responsibility for any Pre-Existing Condition (as defined below) nor shall City
seek indemnification from Developer for any such pm-Existing Condition. There is a rebuttable
presumption that any Hazardous Substances found on the Property after the Closing Date were
not deposited by the Developer and are a Pre-Existing Condition. A pre-existing condition ("Pre-
Existing Condition') shall be defined as (i) any Hazardous Substances found on the property,
prior to or after the Closing Date, which were not deposited by Developer or its agents or invitees
on the Property, and (in any Hazardous Substances which leach or migrate on to the property
after the Closing Data from any adjoining properties, including properties owned by the City.
(in Notwithstanding any other provision of this Agreement. the City, in Rs capacity as
both owner under this Agreement and as landlord of the Property under the Lease contemplated
by this Agreement, shall retain any legal responsibility or liability, subject to available defenses.
the City may have under law for any Pre-Existing Condition. This retained responsibility and duty
includes the duty to assess, remove and remediate Pre-Existing Conditions on or affecting the
Property as ordered by a state or federal agency, subject to the availability of a comfort letter.
This prevision shall not inure to the benefit of third parties and shall not be interpreted to enlarge
any liabilities owed by the City or to require the C~ to absorb any duties, responsibilities or
liabilities that it does not already have for the Pre-Existing Conditions.
(iii) The Developer agrees to provide reasonable notice to the City of any claims by
adjoining or affected property owners, third parties, or parties making claims through a dtizen
action or private right of action under applicable law, environmental statutes or regulations which
arise out of or are related to Pre-Existing Conditions on the Property. Upon receipt of such
notice, to the fullest extent allowed by law, the City agrees to defend, hold harmless and
indemnify Developer for costs and expenses associated with responding to any claims by
adjoining property owners, third parties, or parties making claims througt~ a citizen action or
private dght of action under applicable environmental statutes or regulations which adse out of or
are directly related to Pre-Existing Conditions on the Property.
(iv) To the fullest extent allowed by law, the City agrees to indemnify Developer for
reasonable costs and expenses associated with responding to any legally enforceable order
regarding Pre-Existing Conditions from any governmental agency or court with proper jurisdiction
to the extent that the City, after Developer has given reasonable notice of the governmental order
to the City, does not timely and reasonably respond to said inquiry or order and Jf the Developer
allows full access to the Property as necessary, as provided herein. The City's ngnt of appeal and
negotiation are not waived by the foregoing and the filing of an appeal or negotiation with the
governmental agency are considered timely and reasonable response. However, the City agrees
to indemnify Developer for any penalties and fines Developer incurs as a result of any such
appeal or negotiation.
(v) The City shall provide reasonable notice to Developer prior to requesting access for
the purposes set forth above. Developer agrees to allow the City to have access to and use of
the Property to times and locations which will minimize any disruption and which will not
materially or unreasonably interfere with the operation or possession of the Property as required
to respond to any governmental inquiry or order as described above. Except as set out below.
the terms of this provision shall not be construed to require that the Developer is under any
obligation to the City to move, damage, or modify personal property, f'm'tures, or buildings on the
Property or to allow the City to affect or modify the Lease described in this Agreement, whether
by lien, easement, or governmental order, except to the extent that use iimitatiens and
environmental protection easements may be placed on the Property which do not change or
interfere with the actual or proposed use of the Property by Developer. The Developer agrees
that it will not install drinking water wells or otherwise obtain potable water for the purpose of
consumption or bodity contact from the groundwater underneath the Property and agrees to
execute any necessary waivers or easements to that effect. If the City is required by a state or
federal agency to take such a~on which materially or unreasonably interferes with the operation
or possession of fie Property, or othep~ise damages the property of Developer, then the Cb
shall be required to pay the reasonable costs associated with such activity, including, without
limitation, loss of income, economic damages, propeA7 damage, and other costs and expenses.
whether temporary or permanent in nature, incurred by Developer by reason of the interference.
(h) Utilities. The City shall provide all necessary utilities to the Properly in order to develop,
construct and operate the Minimum Improvements.
apply:.
(i) Definitions., For the purposes of this Development Agreement, the following definitions shall
(0 "Environmental Law" means any and all federal, state and/or local laws, regulations
and legal requirements pertaining to (0 the protection of health, safety and the indoor and outdoor
environment, (ii) the conservation, management or use of natural resources and wildlife, (ii0 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. ',he Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended by the
Superfund Amendment and Reauthodzation Act of 1986, 42 USC 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, 4,2 USC 6901 et seq.; the Federal Water
Pollution Conffol ACt, as amended by the Clean Water Act of 1977, 33 USC 1251 et seq.; the
Clean Air ACt of 1966, as amended, 41 USC 7401 et seq.; the Toxic Substances Control Act of
1976, 15 USC 2601 et seq.; the Hazardous Substances Transportation Act, 49 USC App. 1801 et
sen.: the Occupational Safety and Health Act of 1970, as amended, 29 USC 651 et seq.; the Oil
Pollution Act of 1990, 33 USC 2701 et seq.; the Emergency Planning and Community
Right-to-Know Act of 1986, 42 USC 11001 et seq.; the National Environmental Policy Act of 1969,
42 USC 4321 et seq.; the Safe Drinking Water ACt of 1974, as amended, 42 USC 300(f) et seq.;
Chapter 455B of the Iowa Code; any similar, implementing or successor taw to any of the
foregoing and any amendment, rule, regulation, order or directive issued thereunder.
(i0 "Hazardous Substance" or "Hazan~ous Substances~ means any haza~ous or toxic
substance, matedai or waste, which is or becomes regulated by any Iocat government, the State
of Iowa or the United States Government. It includes, without limitation, any material or
substance that is (0 defined as a "hazardous substance" or "hazardous waste' under Chapter
455B, Iowa Code, (i0 petmlaum and petmlaum products, (i~ 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
p~Jrsuant to § 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 et
seq., (w') defined as a 'hazardous substance" pursuant to § 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, U.S.C § 9601 et seq., or (vi;') defined
as a 'regulated substance' pursuant to Subchapter IX, Solid Waste Disposal Act (Reguiefion of
Underground Storage Tanks), 42 U.S.C. § 6991 et seq.] The term '~lazardous Substance" shall
not include any air emissions discharged into the atmosphere as allowed by a duty issued permit
from the applicable governmental agency.
(i~ "Release" means 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 receptaclas containing or previously
containing any Hazardous Substance and including without, limitation the migration of any
H~7=rdous Substance onto the Property from an adjacent property.
2.4 Representations of City. In order to induce Developer to enter into this Agreement. City hereby
represents and warrants to Developer:
(1) City is the owner of the Property.
(2) At the Closing Date, unless waived by Developer, City has been awarded Vision iowa funding
in an amount sufficient to construct a minimum 100,000 square foot conference and education
center facility and parking facility.
(3) City has duly obtained all necessary authorizations, 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.
(4) This Agreement is a valid and legally binding instrument of the City enforceable in
accordance with its material terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditere' rights generally.
(5) The execution and delivery of this Agreement, the consummation of the transactions
contemptated hereby, and the fulfillrcent of or compliance with the terms and conditions of this
Agreement are not prevented by, limited by, in conflict with, or resutt in a violation or breach of,
the any cor~t~actuat restri~on, evidence of indebtedness, agreement or instrument of whatever
nature to which the City is now a party or by which it or its property is bound, or constitute a
default under any of the foregoing.
(6) Other than as disclosed on Schedule 2.4(6) attached hereto, there are no a~ons, suits or
proceedings pending or threatened against or affecting the City Jn any court or before any
arb~[,u[or or before or by any governmental body in whfch there is a reasonable possibility of a
adverse decision which could materially adversely affect the validEy of the Agreement or the
City's ability to perform its obligations under this Agreement.
(7) The City will cooperate with the Developer to resolve any traffic, paining, trash removal or
public safety problems which may arise in connection with the construction and operation of the
Minimum Improvements.
2.5. Representations and Warranties of Develo~3er. The Developer makes the following representations
and warranties;
(1) The Developer is a limited liability company duly organized and validly existing 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 obligat~ens under the Agreement.
(2) This Agreement has been duly authorized, executed and delJverea by the Developer an(J.
assuming due authorization, execution and delivery by the City, is in full force and effect and
is a valid and legalty binding instrument of the 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.
(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 organization or the operating
agreement of the Developer or any contractual restriction, evidence of indebtedness,
agreement or instrument nf whatever nature to which the 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 a~ons, suits or proceedings pending or threatened against or affecting the
Developer in any court or before any arbitrator or before or by any governmental body in
which there is a reasonable possibility of a adverse decision which couid matadally adversely
affect the business, financial position or result of operations of the Developer or which affects
the validity of the Agreement or the Developer's ability to perform its obligations under this
Agreement.
The Developer will cause the Minimum Improvements to be constructed in accordance with
the material terms of this Agreement, the Urban Renewal Plan and all local State and federal
laws and regulations, except for variances necessary to construct the Minimum
Improvements contemplated in the Construction Plans.
The Developer will use its best efforts to obtain, or cause to be obtained, in a timely manner,
all material requirements of all appiicable local, state, and federal laws and regulations which
must be obtained or met before the Minimum improvements may be tawfully constructed.
(7) At the CZosing Date. the Developer shall have firm commitments for commercially reasonable
canstmction and permanent financing for the Project in an amount sufficient, together with
equity commitments, to successfully complete the Minimum Improvements in accordance
with the construction Plans contemplated in this Agreement.
The Developer will cooperate with the City to resolve any traffic, parking, trash removal or
public safety problems which may adse in connection with the construction and operation of
the Minimum Improvements.
2.8 Conditions to ClosinG. The c~osing of the transaction contemplated by this Agreement and all the
obligations of Developer and City under this Agreement are subject to fulfillment, cn or before the Closing
Date, of the following conditions:
(1) The representations and warranties made by City in Section 2.3 and Section 2.4 and by
Developer in Section 2.5 shall be correct and satisfied as of the Closing Date with the same
force and effect as if such representations were made at such time.
(2) Developer, in its sole and absolute discretion, having completed and approved of any
inspections done by Developer hereunder.
(3) City shall have acquirecl lawful possession of all of the Property.
(4) City shall have approved all appropriate zoning, subdivision, or platting of the Property.
necessary for the lease and immediate development and construction of the Property. Any
extraordinary conditions imposed, as a part of the zoning, platting or subdivision must be
satisfactory to Developer, in its sole opinion.
(5) Developer shall be in matedal compliance with all the terms and provisions of this Agreement.
(6) Developer shall have furnished City with evidence, in a form satisfactory to Cb (such as a
letter of commitment from a bank or other lending institution), that Developer has firm financial
and/or equity commitments sufficient in amount to lease Property and complete ccnstru~on of
M/nimum Improvements (as defined herein) in conformance with Construction Plans (as defined
herein), or City shall have received such other evidence of Developer's financial ability as in the
reasonable judgment of City is required. Developer shall provide evidence of a c~mmitrnent of
equity funds for the Phase I hotel complex described in Section 3.1A in an amount not less than
30% equity of total project costs.
(7) Receipt of an opinion of counsel to Developer in the form attached hereto as Exhibit D.
(8) All obligations under of the City under Section 2.3 and Section 2.4 have been satisfied.
(9) Developer and the City shall have entered into a (i) Minimum Assessment Agreement, in the
form attached hereto as Exhibit E, (ii) a Lease, in the form attached hereto as Exhibit C. (iii)
a Parking Use Agreement. in the form attached hereto as Exhibit G. and (iv) a Management
Agreement, in substantially the form attached hereto as Exhibit F, for the conference and
education center.
2.7 Closinq. Theclosing shalltake ptaceon orbefore March 15,2001 (the'C~caing Date"), orsuch
other date as the parties may agree in writing; provided, however, in the event that the additional
groundwater and soil sampling of the Property conducted after the demolition of the Property., as provided
for in Section 2.3(a), indicate Hazardous Substances on the Property in excess of any applicable action
level (as defined in Section 2.3(0)), the Closing Date shall be on or before April 1, 2001. Exclusive
possession of Property shall be delivered on the Closing Date, in compliance with the terms of this
Agreement, including City's represe.~i~ons and warranties regarding the same. Consummation of the
Closing shall be deemed an agreement of the parties to Agreement that the conditions of dosing shall
have been satisfied or watved. If the conditions set forth in Section 2.6 are not satisfied at CIcaing Date.
this Agreement shall terrnthate untess a new Closing Date is established by amendment to this
Agreement. The termination of this Agreement shall be the sole remedy in the event a condition set forth
in Section 2.6 is not satisfied.
2.8 Closina Costs. The Developer shall pay the following costs and expenses in connection with the
dosing:
(a) The documentary fee necessary to record the Memorandum of Lease.
(b) Developer's attorney's fees.
(c) Developer's broker and/or real estate commissions and fees, if any.
(d) A pro-rata portion of all taxes as provided in Section 2.9.
The City shall pay the costs and expenses in connection with the closing as set forth in Section 4.1(5),
2.9 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years which end prior to
Closing Date. Real estate taxes for the fiscal year in which CIosing Date occurs shall be prorated
between City and Developer to Closing Date on the basis of a 365 day calendar year, Developer shall
pay all real estate taxes due in subsequent fiscal yearn pursuant to the Lease. Any proration of real
estate taxes on Preperty shall be based upon such taxes for the year currently payable.
SECTION 3. REDEVELOPMENT ACTIVITIES
3.1 Required Minimum Improvements. Developer hereby agrees to consffuct on the Property the
following, hereinafter "Minimum Improvements":
A. A hotel project costing not less than $21,500,000.00 consisting of at least:
(1) 190 guest rooms, which include:
(a) Four (4) guest rooms which are part of two (2) three-room suites consisting of a
sitting area and upgraded amenities,
(b) Sixteen (16) guest rooms which are part of eight (8) two-room suites consisting of a
sitling area and upgraded amenities, and
(c) Ten (10) percent of the guest rooms shall be specialty (parlor) suites with unique or
upgraded amenities;
(2) a 24,000 square foot indoor watar park;(3) a restaurant;,
(4) a lounge; and
(5) a gift shop.
B. A 45,000-50,000 square foot office and commercial building at a probable cost of $5.5 miltion
and associated proprietary parking which shall be constructed not later than twelve (12) months after the
completion of the conference and education center and which shall be the location of the home or
regional office of The Dun'ant Group. The const]'uction of the office and commercial building by The
Durrant Group is subject to the following conditions:
(a) The Developer shall have constructed the hotel complex referred to in Section 3.1A..
(b) The City shall have constructed the conference and education center of 100,000
square feet or more.
(c) The City shall have constructed sufficient parking for the proposed development.
(d) The Duram Group shall have obtained commercially reasonable financing for the
development and construction of the home/regional office.
(e) The City Councii determines that the office and commemial building is consistent with
the Master Plan.
Developer shall lease from the City two (2) acres upon substantially the same terms as the Lease for
sublease to the Dun'ant Group for the home or regional office and proprietary parking as determined by
the Durrant Group unless the Durrant Group agrees to lease two (2) acres directly from the City upon
substantially the same terms as the Lease.
C. Furthermore, plans shall be submitted by Developer indicating the location of future
expansions of the Minimum Improvements on the Property to provide 160 additional guest moms, and an
18,000 square foot addition to the water park (the "Phase II Improvements"). The City and the Developer
agree that the Phase Jl Improvements shall be constructed on the parking area to be provided to the
Developer for parking use pumuant to that certain Parking Use Agreement. Prior to commencement of
the construction of the Phase II Improvements, the City and the Developer shall enter into a lease
agreement pursuant to which the City shall lease to Platinum that part of the parking area necessary for
the construction of the Phase 11 Improvements. Prior to completion of the constn~ction of the Phase il
Improvements, the City shall provide, at no cost to Developer, additional proprietary parking (minimum
110 spaces) for the Phase II Improvements and replacement parking for the parking area used for the
location of the Phase il Improvements. Parking shall be provided pursuant to a parking use agreement-
Developer shall be responsible for the routine day to day custodial maintenance of the oar~ing area.
including snow removal, landscaping ~mming, sweeping and trash collection. The City. shall be
responsible for all replacement, repair and other maintenance associated with such par~ing, including,
without limitation, the repair, replacement and maintenance of surface potholes, surface reconstruction
and restoration, landscaping replacements, parking space striping and re-caulking of the parking area.
The development of the Phase 11 Improvements shall not be required unless the following conditions are
satisfied:
(a) Developer obtaining commercially reasonable financing for the development and construction
of the Phase II Improvements.
(b)
The occupancy average with respect to the hotel portion of the Minimum Improvements
during any consecutive twenty-four (24) month period of operations of the hotel shall be at
least 85%. Commencing the twenty-fifth (25t~) month following the date Developer receives
the certificate of completion from the City for the Minimum improvements as provided in
Section 3.4 below (the "Certificate of Completion Date=), and every month thereafter,
Developer shall make the occupancy figures for the immediately preceding twenty-four (24)
month pedod available to the City to review. The foregoing obligation to make available the
occupancy figures shall terminate effective the forty-third month (43rd) following the
Certificate of Completion Date.
(c) The City shall have constructed the conference and education center and parking facilities
within reasonable proximity to the Minimum Improvements.
(d) Environmental assessments of the location ofthe Phase II Improvements. conducted
immediately prior to the constTuctJon of the Phase II Improvements. or any other identification
or discovery by the Deveinper or any third party, shall not indicate any Hazamous
Substances on the proposed location of the Phase II Improvements that are in excess of any
applicable action level, as defined at 567 lowa Administrative Code § 133.2. 567 Iowa
Adminialzative Code Chapter 135, or applicable statewide standard developed under Iowa
Code Chapter 455H, if the Property is statutodly eligible, whichever is less stringent.
However, City shall have the dght to meet this condition by obtaining a Comfort Letter as
defined at paragraph. 2.3 of this Agreement subject only to such restrictions, impairments,
and conditions that do not substantially impair the proposed or actual use of the property,
including Phase 11. Any Comfort Letter shall be based on the anticipated use of Phase 11 and
the Property as outlined in this Agreement. The provisions herein shall not abddge but shall
be in addition to the reciprocal covenants set forth in this Agreement.
If the above conditions are satisfied. Developer shall be obligated to develop and construct the Phase II
Irnpmvements. If the above conditions are satisfied, the Developer shall have five (5) years ,'rom the
Certificate of Completion Date to complete construction of the Phase II Improvements. The obligation of
Developar to construct the Phase II Improvements shall terminate if the above conditions have not been
satisfied within forty-two (42) months of the Certificate of Completion Date.
D. The Minimum Improvements shall be of quality architectural design and shall be compatible
with neighboring buildings and adjoining conference and education canter facilities. The design of
Minimum Improvements shall be compatible with the pedestrian orientation of adjoining streets. The
Minimum Improvements shall provide for reasonable public accessibility to the Riverwaik and Harborwaik
improvements and the conferenca and education canter facility, including a public access easement
through a designated common area of the Property. Consultants recommended by a work group to the
City Manager and agreed upon by the City Council and Developer and retained by the City shall develop
architecturel standards and prepare site planning for the entire urban renewal area encompassing the
Property. The work group shall make a recommendation to the City Manager on the selection of an
architect to design the conference and education canter. Final determination of erchitecturat standaras
and site planning and the selection of the conferenca and education center architect shall be made by the
C~7 Council. Determination of whether the standards are met in the area shall be made by the work
group.
E. On the Closing Date, Developer and the City shall enter into a minimum assessment
agreement as provided in Iowa Code Section 403.6 (the "Minimum Assessment Ag[eement') in the form
attached hereto as Exhibit E. The Minimum Assessment Agraement shall establish a minimum
assessment of the Property equal in amount to the amount determined necassary by the City in its sole
judgment to permit the collection of incremental tax revenues sufficient in amount to cause the
indebtedness and all other costs incurred by the City with respect to the Property to be repaid within four
(4) years following the commencament of full operation of the Minimum improvements. The City shall use
Iowa Code Section 403.6(18) with respect to the collection and payment of taxes under the Minimum
Assessment Agreement.
F. Public gains and benef'~ generated by the Developer's undertaking the obligations under this
Agreement are in the best interest of the City and the residents thereof, and warrant the prevision of the
economic asststanca set forth in this paragraph. In consideration of the Developar~s obligation to develop
the Minimum Improvements and promptly constructing the Minimum Improvements in accordanca with
this Agreement and creating the employment resulting therefrom, the City shall cause to be provided to
the Developer an annual economic developmant grant as identified in this paragraph during each year of
the four-yeer term of the Minimum Assessment Agreement. Each annual grant shall be equal to the
differenca between (i) the amount of the property taxes levied upon the value of the Property and the
Minimum Improvements for that year and (i~ Two Hundred Fifty Thousand Dollars ($250,000.{30). Each
economic devatopment grant shall be paid Jn two equal semi-annual installments and shatl be paid
immeC~iataiy upon the City's receipt of incremental taxes in respect of the Property and Minimum
Improvements for the applicable year, and shail be payable solely and only from said incremental taxes
and not from any other source or other City Funds.
G. On the Closing Date, the City and the Developer shall enter into that certain Parking Use
Agreement (the 'Parking Use Agreement') in the form attached hereto as Exhibit G. The Parking Use
Agreement shall provide at. no cost to the Devaloper, dudng the term of the Lease, the use of the parking
area designated on Exhibit B. There shall be a minimum 290 parking spaces for the Minimum
Improvements and an additional minimum 110 parking spaces for the Phase I1 Improvements (total
minimum 400 parking spaces). The Developer shall be responsible for the re.ne day to day custodial
maintenance of the parking area, including without limitation, sweeping, landscape trimming, snow
removal and trash collection. The City shall, at no cost to Devaioper, be responsible for ail replacement.
repair and other maintenance associated with such parking area, including, without limitstlon, the repair,
replacement and maintenance of surface potholes, surface reconstruction and restoration, landscabing
replacements, parking space striping and re-caulking of the parking area. The Parking Use Agreement
shall also, during the term of the Lease, grant to the Developer a right of flint refusal to lease and/or
acquire the Phase II parking area and the Phase ii Water Park area and other Development Property as
designated on Exhibit B in the event that the City receives a third party offer to purchase or lease such
parking area or Development Properly or in the event that the City determines to condemn or develop
said property. The dght of first refusal with respect to the other Development Property shall only be
effective for the first 15 years of the term of the Lease. The Parking Use Agreement shall be transferable
with the Lease and shall remain in effect for the length of the Lease and any extension or renewal of the
Lease.
3.2 Plans for Construction of Minimum Imorovements. Plans and specifications with respect to the
redevelopment of Property and the construction of Minimum Improvements thereon (the -Construction
Plans~) shall be in substantial conformity with the Urban Renewal Plan, this Agreement, and all appiicable
State and local laws and regulations. Developer shall submit to City, for approval by City plans, drawings,
specifications, and related documents with respect to the Minimum Improvements to be constructed by
Developer on the Property. Ail work with respect to the Minimum Improvements shall be in substantial
conformity with the ConstnJction Plans approved by City and shall be coordinated with City improvements
in the general vicinity of Property, including, but not limited to, the Riverwalk, the conference and
education center and street and utility improvements.
3.3 Timing3 of Improvements. Developer hereby agrees that construction of the Minimum
Improvements on Property shall be commenced within six (6) months after the Closing Date, and shall be
substantially completed within eighteen (18) months after the Closing Date. The time frames for the
performance of these obligations shall be suspended during the period of any delays caused by acts of
God and matters not within the co~-oJ of Developer including, but not limited to, extreme weather
conditions and/or other natural causes, casualty, labor problems (including, but not limited to, strikes.
waJk-outs, picketings, boycotts and shutdowns), governmental restrfction upon the availability or use of
labor or materials, or, insurrection, embargoes, or delays in providing necessary consents or approvals.
The time for pedormance of such obligations shall be extended only for the pedod of such delay.
3.4 Cerl~cate of Completion. Promptly upon substantial completion of the Minimum Improvements
in accordance with those provisions of this Agreement relating solely to the obligations of Developer to
construct the Minimum Impmvemerrts (including the dates for baginning and completion thereof), City
shall furnish Developer with an appropriate instrument so cerff~ng. Such certification shall be a
conclusive determination of the satisfaction and termination oflhe agreements and covenants in this
Agreement and in the Lease with respect to the obligations of Developer to construct the Minimum
Improvements.
SECTION 4. CITY PARTICIPATION
4.1 Improvements by City. For and in consideration of Developer's obligations hereunder to
construct Minimum Improvements, City agrees to:
(1) Apply for Vision iowa Funds to construct a minimum 100,000 square foot conference and
education center facility and parking facility in the Project Area.
(2) At the time of Cbsing, enter into a ten (10) year management contract, in substantially the
form of Exhibit F attached hereto, with Developer, or a related affi~ate controlled by James P.
Rix, to manage said conference and education center facility.
(3) By the Certificate of Completion Date, have constructed and provided access to sufficient
additional parking spaces within reasonable proximity to the Minimum Improvements.
(4) At the time of Closing, enter into that certain Parking Use Agreement, in substantially the
form of Exhibit G attached hereto, with Developer to provide parking for the Minimum
Improvements in the area designated on Exhibit B.
(4) ConsthJct Riverwaik improvements as provided in the City's FY 2001-2005 Capital
Improvement Program as approved by the City Council in March 2000.
(5) Pay the following costs and expenses in connection with the ctosing:
(a) The transfer fee imposed on the conveyance, if any.
(b) A pro-ram potion of all taxes as provided in Section 2.9.
(c) All special assessments whether levied, pending or assessed.
(d) City's attorney's fees.
(e) City's broker and/or raat estate commissions and fees, if any.
(f) Such other costs as ara imposed upon the City as moro particularly set forth in this
Agreement.
(6) Pay all costs associated with construction of any streets, sidewalks, landscaping end lighting
on property not leased by Developer, such streets, landscaping and lighting shall be consistent
with the character and reqCuraments recommended to the City Manager by the work group
agraed upon by the City and the Develober.
4.2 Exclusivity. City agraes that it shall not enter into any other agreement that includes the
construction of a hotel on publicly owned land in the Ice Harbor Urban Renewal District with any other
party for a pedod of fifteen (15) years after completion of Developer% project (the "Exclusivity Period").
On completion of the Phase I1 Improvements, the Exclusivity Period shall be extended for the appropriate
period of time in order that the Exclusivity Pedod shall be for a period of fifteen (15') years commencing on
the date the Developer receives the certificate of completion from the City raiated to the completion of the
Phase II Improvements.
SECTION 5. COVENANTS OF DEVELOPER
5.1 Insurance Coveraqes. Developer shall maintain insurance as set forth in the Lease.
5.2 Non-Discrimination. in carrying out the project, Developer shall not discriminate against any
employee or applicant for employment because of race, religion, color, sex, national origin, age or
disability.
5.3 Conflict of Interast. Developer agrees that no member, officer or employee of C~, or its
designees or agents, nor any consuitent or member of the governing body of City, and no other public
official of City who exercises or has exemised any functions or rasponsibilities with raspect to the project
during his or her tenura, orwho 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 theraof, for work to be performed in connection with the project, or in any
activity, or benefi{ therefrom, which is part of this project at any time during or after such person's tenure.
5.4 Non-transferability. Prior to the issuance of the Certificate of CompLetion. this Agreement may
not be assigned by Developer nor may the Lease be transferred without the prior written consent of the
City. After the issuance of the Certificate of Completion, the Developer shall have the right to transfer and
assign this Agreement and the Lease to a third party, subject to the consent of the Ci[y, which consent
shall not be unreasonably withheld, provided said third party transferee agrees to comply with the terms
and conditions of this Agreement. Notwithstanding the foregoing, Developer shall have the right to assign
a designated portion of the Lease to The Durant Group with respect to the home or regional office.
5.5 Restrictions on Use. Developer agrees for itself, and its successors and assfgns, and every
successor in interest to Property or any part thereof, and the Lease shall contain covenants on the part of
Developer for itself, and such successors and assigns, that Developer and such successors and assigns,
shall:
(1) Devote Property to, and only to and in accordance with, the uses specked in this Agreement
and the Urban Renewst Plan;
(2) Operate the Minimum Improvements only as a hotel, water park and related necessary
activities and purposes unless the City consents to an alternative use in City's sole discretion;
and
(3) Not discriminate upon the basis of race, religion, color, sex, national origin, age or disability in
the sale, lease, rental, use or occupancy of Property or any improvements erected or to be
erected thereon, or any part thereof.
5.6 Maintenance of Properties. The Developer will maintain, preserve and kee~ the Minimum
Improvements in good repair and working order, ordinary wear and tear accepted, ant from time to time
will make ail necessary repairs, replacements, renewals and additions.
5.7 Maintenance of Records. The Developer will keep at all times proper books of recora and
account in which full, true and correct entries will be made of all dealings and transactions of or in relation
to fie business and affairs of the Developer in accordance with generally accepted accounting principles,
consistently applied throughout the period involved, and the Developer will provide reasonable protection
against loss or damage to such books of record and account.
5.8 Compliance with Laws. The Developer will comply with all laws, rules and regulations relating to
the Minimum Improvements, other than laws, rules and regulations the failure to comply with or which the
sanctions and penalties resulting therefrom, would not have a material adverse effect co the business,
property, operations, or condition, financial or otherwise, of the Developer.
5.9 Non-Discrimination. The Developer shall substantially comply with ail federal, State of Iowa and
local laws prohibiting discrimination. The Developer shall not discriminate against any person or group of
persons on account of age, race, religion, creed, color, sex, natienal odgin, ancestzy, or disability.
5.10 Available Information. Upon request, the Developer shall make available to the City to review
copies of its financial statements for the preceding fiscal year, prepared in accordanCe with generally
accepted accounting principles and accompanied by a report of an independent public accountant
selected by the Developer to tile effect that sucfl financial statements have been prepared in conformity
with generally accepted accounting principles and present fairly, in all material respects, the financial
condition of the Developer and that the examination of such financial statements by such accountant has
been undertaken in accordance with generally accepted auditing standards. Any financial statements
that are requested and reviewed by the City shall be treated by the City as confidential trade secrets of
Developar under Iowa Code Chapter 22, to the extent permitted by law.
SECTION 6. INDEMNIFICATION
(I) Developer releases City and the governing body members, officers, agents, servants and
employees thereof (hereinafter, for purposes of this Section 6, the "Indemnified Parties~) from,
covenants and agrees that the Indemnified Parties shall not be liable for, and agrees to
indemnify, defend and hold harmless the indemnified pa~es against any loss or damage to
property or any injury to or death of any person occurring at or about or resulting fi'om any defect
in Minimum Improvements.
(2) Except for any willful misrepresentation or any willful or wanton misconduct or any unlawful
act of the indemnified Parties. Developer agrees to protect and defend the Indemnified Parties.
now or forever, and further agrees to hold the Indemnified Parties harmless, from any claim.
demand, suit. action or other proceedings whatsoever by any person or entity whatsoever adsing
or purportedly arising from (i) any violation by Developer of any agreement or condition of this
Agreement (except with respect to any suiL action, demand or other proceeding brought by
Developer against City to enforce its rights under this Agreement) or (lO the construction,
installation, ownership and operation of Minimum Improvements or (iS environmental
contamination which affects the condition of the Property and which is caused by the Developer
and occurs after the Developer takes possession of the Property.
(3) Except for any misrepresentation or any willful or wanton misconduct or any unlawful act of
Developer, the City agrees to protect and defend Developer, now or forever, and further agrees to
held Developer harmless, from any claim, demand, suit, action or other proceedings whatsoever
by any person or entity whatsoever arising or purportedly arising from (i) any violation by the City
of any agreement or condition of this Agreement (except with respect to any suit. action, demand
or other proceeding Drought by the City against Developer to enforce its dghts under this
,AGreement).
(4) The Indemnified Parties shall not be liable for any damage or injury to the persons or property
of Developer or its officers, agents, servants or employees or any other person who may be about
Minimum Improvements due to any act of negligence of any person, other than any act of
negligence on the part of any such indemnified party or its officers, agents, servants or
employees.
(5) mi covenants, stipulations, promises, agreements and obligations of City contained herein
shall be deemed to be the covenants, stipulations, promises, agreements and obligations of City.
and not of any governing body member, officer, agent, ~ervant or employee of City in the
individual capacity thereof.
(6) The provisions of this Section 6 shall survive the termination of this Agreement.
SECTION 7. EVENTS OF DEFAULT AND REMEDIES
7.1 Events of Default Defined. The following shall be "Events of Defauit' under this Agreement and
the term 'Event of Default" shaft mean, whenever it is used in this Agreement, any one or more of the
following events:
(1) Any event of default by Developer or the City under the Lease.
(2) Failure By Developer to cause the construction of Minimum Improvements to be commenced
and completed pursuant to the terms, conditions and limitations of th!s Agreement.
(:3) Failure by Developer to cause Minimum Improvements to be reconstructed when required
pursuant to the Lease.
(4) Transfer of any interest by Developer of Minimum Improvements in violation of the previsions
of this Agreement.
(5) Failure by Developer to substantially observe or perform any other covenant, condition,
obligation or agreement on its part to be observed or performed under this Agreement or the
Lease.
(6) Failure By the City to substantially observe or perform any other covenant, condition,
obligation or agreement on its part to be observed or performed under this Agreement or the
Lease.
(7) Commencement of forecJosure proceedings by the holder of any mortgage on Developer's
interest in the Property, or any improvements thereon, or any portion thereof, as a result of any
default under the applicable mortgage documents.
(8) Developer shall:
(a) file any pe~on in bankruptcy or for any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy
Act of 1978, as amended, or under any similar federal or state law:. or
(b) make an assignment for the benefit of its creditors; or
(c) admit in writing its inability to pay its debts generally as they become due; or
(d) be adjudicated a bankrupt or insolvent: or if a petition or answer proposing the
adjudication of Developer as a bankrupt or its reorganization under any present or futura
federal bankruptcy act or any similar federal or state law shall be filed in any court and
such petition or answer shall not be discharged or denied within ninety (90) days after the
fil~g thereof, or a receiver, trustee or liquidator of Developer or of Minimum
Improvements, or part thereof, shall be appointed in any proceedings brought against
Developer, and shall not be discharged within ninety (90) days after such appointment, or
if Developer shall consent to or acquiesce in such appointment.
7.2 Notice of Default. The non-defaulting party shall issue a written notice of default providing
therein a thirty (30) day period in which the defaulting party shall have an opportunity to cure such default,
provided that cure is possible and feasible.
7.3 Remedies Upon Default. if the default remains unremedied after such thirty (30) day period, the
non-defaulting party shall have the right to do one or more of the following:
(1) exercise any remedy provided by law or available to a party under the Lease;
(2) suspend the non-defaulting party's performance under this Agreement:
(3) terminate this Agreement and the Lease;
(4) withhold certification af completion with respect to the Minimum Improvements:
(5) require payment by the defaultthg party of any costs incurred by the non-~efauitJng party in
connection with the default; and
(6) take sucfl action as may be necessary to remove Developer from Property.
7.4 No Implied Waiver. In the event any agreement contained in this Agreement should be breeched
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.
SECTION 8. GENERAL TERMS AND PROVISIONS
8.1 Notices and Demands. Whenever this Agreement requires or permits any notice or written
request by one party to another, it shall be in writing, enclosed in an envalope, addressee to the party to
be notified, properly stamped, sealed and deposited in the United States Mail, and
(1) in the case of Devaloper, is addressed to Platinum Holdings, LLC, 801 Jackson Street,
Dubuque, Iowa 52001.
(2) in the case of City, is addressed to the City Manager, CityHalL 50W. 13thStreet, Dubuque,
Iowa 52001.
or at such other address with respect to either party as that party may, from time to time designate in
writing and forward to the other as provided in this Section. Any notice delivered hereunder shall be
deemed delivered upon the eadier of the actual receipt or two (2) business days after posting.
8~. Compliance with Laws and Requlations. Developer and the City shall comply with ail applicable
City, State and federal laws, rules, ordinances, regulations and orders.
8.3 Biedina EffecL
This Agreement shall be binding upon and shall inure to the benefit of City and Developer and their
respective successors and assigns.
8.4 Entire Aoreement This Agreement, along with the Lease and Minimum Assessment Agreement,
constitutes the entire agreement between the City and the Developer regarding the deveJopment of the
Property and supercedes ail previous agreements between the parties, including, without limitation, that
certain Development Agreement dated June 19, 2000, by and between the City and Platinum Hospitality
Group, LLC, which Development Agreement was subsequently assigned to Developer.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its name ana
behalf by its Mayor and attested by its City CleriC, and Developer has caused this Agreement to be duly
exect;ted in its name and behalf by James P. Rix, its Chief Executive Officer on or as of the day first
above written.
CITY OF DUBUQUE, IOWA DEVELOPER
By:/s/ Terrance M. Duggan, Mayor /s/ James P. Rix, Chief Executive Officer
By: /s/ Karen M. Chesterman, Deputy City Clerk
Donald Iverson, Member
January 15, 2001
AMENDMENT
TO
DEVELOPMENT AGREEMENT
THIS AMENDMENT (the "Amendment"), made and executed as of this 17 day of January, 2001, by and between
the CITY OF DUBUQUE, IOWA, a murdcipality (the "City"), established pursuant to the Code of Iowa of the Sram of Iowa
and acting under authorization of Chapter 40/of the Code of Iowa, as ammded (the "Urban Renewal Act") and PLATINUM
HOLDINGS, LLC, aa Iowa limited liability company, with its principal place of bnsines~ in Dubuque, Iowa (the "D~velopff').
WITNESSETH:
WHEREAS, the above-idendfied parties have executed a certain Development Agreement dated June 19, 2000, ( the
"Development Agree. meat"), pertaining m, inter alia, the purchase, sale, development and use of certain real property, located in
the City of Dubuque, County of Dubuque, State of Iowa (the "Property"); and
WHEREAS, due to unforeseen ciroumstances and delays, the pames were unable to satisfy, all conditions and
rcqun'ements mlamd to the Development Agreement; and
WHEREAS, the pan/es desire to amead the Development Agreement to satisfy various conditions.
NOW, THEREFORE, in consideration of the Development Agreement, the foregoing recitals, the mutual covenants.
terms and conditions here/naf'ter set forth and other valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the City and Developer do hereby agree to modify, amend and supplemeat the Development Agreement,
indiudhig all of its attachments (the Lease, the Facility Management Agreement and the Parking Use Agreement), as provided in
the attached Amended Development Agreement.
The parties hereby ratify and reaffirm all terms and conditions ofthe Development Agr~mcm which are not expressly
modified, amended or supplemented and acknowledge and agree that the Development Agreement, as modified, amended and
supplemented, shall be and hereby is remstamd and shall conauue in full force and eff'eet for the duration and the extent therein
provided.
IN WITNESS WHEREOF, the parUes have caused this Amendment to Development Agreement m be executed by
their respective duty authorized officers or repmseatatives as of the date and year first above written
CITY OF DUBUQUE, IOWA
(the "City")
By: /s/ TErrance M. Duggan, Mayor
By: /s/ Karen M. Chesterman, Deputy City Clerk
PLATINUM HOLDINGS, LLC
(the "Developer")
By:/s/ James P. Rix, Chief Executive Officer
by:
Donald Iverson, Member
SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
This Second Amendment to DEVELOPMENT AGreement ("Amendment No. 2") is execued as of this 6th day of April, 2001,
by and between the Ctiy of OF DUBUQUE, IOWA, a municipality (the City) established pursuant to the
Code of Iowa of the State of Iowa and acting under authorization of Chapter 403 of the Code ofIowa, as amended (the "Urban REneal Act") and PLATINUM HOLDINGS, LLC< AN
iOWA LIMITED LIABILITY COMPANY, WITH ITS PRINCIPAL PLACE OF BUSINESS IN DUBUQUE, Iowa (the Developer)
Whereas, the above-identified parties have executed a certain Development Agreemen dated June `19, 2000 (the
Development Agreement), pertaining to inter alia, the purchase, sale, development and use of certain real property located in the
City of Dubuque, County of Dubuque, State o Iowa (the "Property"); and
Whereas, the Development Agreement has been amended pursuant to that certain Amendment to Development
Agreement between the above-identified parties dated January 15, 2001 (the "Amendment No. 1"); and
Whereas, due to unforeseen circumstances and delays, the parties were unable to satisfy all conditions and reuqirements related to the Develoment Agreement as amended:
Whereas, the parties desire to further amend the Development Agreement to satisfy various conditions.
NOW. THEREFORE. in consideration of the Development Agreement, the foregoing recitals, the mutual covenants, terms and conditions set forth and other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the City and Developer hereby agree to modify, amend and supplement the Development Agreement
as amended as set forth below.
fiom ho-~Oer set forth and other valuable consideration, the receipt and sufficiency of which a~ h~oy
uelmowiedged, ~ City ami Developer hereby agree to modify, amend and suppiem~: lhe Development: Ag~emem, as
ammded, as set forth betow.
1. ~ terms used but not de~.~i he.in shall have the me-~-i-? set forth in the Developmem Agreem~.r
2. Section 2.7 of the Development Agreement, as amended by Amendment No. I, ii hereby deleted in its entirety, and
~ptaend with the following:
"2.7 Closing. The closing shall take place on or before May 15. 2001 (the "Closing Date"), or
such other dale as the parties may agree in writing. Exclusive possession of Prepeny shall be delivered on
the Closing Date, in compliance with the terms of this Agreement. including City's representations and
warranties regarding the same. Consurr~ution of the Closing st'lall be de~ned an agre~men~ of the parties
to Agreement lira the conditions of ¢Io..,i%v shall have been ,satisfied or waived. Ii' the conditions set forth
in Section 2.6 are nol satisfied a Clo~nv.. Date, this Agreement ~hu!l termlnur~ ollless a llew Closing Date is
e~ablished by ammdmem to this Air. mem. TI~ termination of tlfis Agreemem sh.l! be the sole remedy
in the eve~ a condilion set forth in Section 2.6 is nor satisfied. Prior to th~ Clo~-~ Date, the City shall
came its enviro.m~l con~thaut to prepare a supplemental Phase II 6..! report summarizing the
~virunme~al condition of the Property. The repo~ shall include a legible copy of all laboratory results,
rasps, and bori~ logs, together with a narrative describing the invesfigatiou. The report shall also discuss
~ ice cenditions found under lha surface."
3. This Ameudmem No. 2 ~ not alter or emend any obligation of the City to ,=.,~edy any. underground
ice problems that may ex/st under the Property so that Developer can iramedlately comm~lCe couslrllct~g the
Minimum Improvements as of the Closing Date.
4. The parties hereby ratify and reaffirm all terms and conditions of the Development
Agreement, as amended by Amednment NO. 2, which are not expressly modified,
amended or supplemented by this Amendment No. 2, and acknowlege and agree that the Development Agreement, as modified, amended and supplemental by Amendment No. 2 and Amendment No. 2 shall be and hereby is reinstated and shall continue
in full force and effect for the duration oand the extent therein provided. If there are conflicts between the
terms of the Development Agreement, as amended by Amendment No. 2, and the terms of this Amendment No.2, the terms of this Amendment No. 2 shall control.
IN WITNESS WHERE, the parties hereto have caused this Second Amendment to
Development Agreement to be executed by their respective duly authorized officers or representatives as of the date and year
first above written.
CITY OF DUBUQUE., IOWA
By: /s/ Terrnace M. Duggan, Mayor
By: /s/ Jeanne F. Schneider, City Clerk
DEVELOPER:
PLATINUM HOLDINGS, LLC
By: /s/ James P. Rix, Chief Executive Officer
By: /s/ Donald Iverson, Memer
THIRD AMENDMENT
TO
DEVELOPMENT AGREEMENT
~ THIS THIRD AMENDMENT TO DEVELOPMENT AGREEMENT ("Amendment No. S")/s executed as of the
I~'~clav of ~.~ .2001, by and between the CITY OF DUBUQUE, IOWA. a menicipalin, (the "City") eslablished
pursuant to the Code of Iowa of the State of Iowa and acting under authorization of Chapt~ 403 of the Code of low~. as
amended (the "UFoz~ Renewal Act") and PLATINUM HOLDINGS, LLC, an Iowa limited liability, company, wi~ its
principal place of bus/nets in Dubuque, Iowa (the "Deye oper").
WHEREAS, the above-identified pa~ies have executed a cemin Development Agreement ~ed June 19, 2000 (the
De elopment, A,, greement'.'), pertaining to, mm'alia, the p~ _u~,,h, ase, sale, development and use of cenaln real property locked in
the City of D~uque, County. of Dubuque, State of iowa (the Property"); and
WH~REAS',.the Development Agreement has been amended pursuant to that certain Amendment to Development
Agreement between the above-identified.partier dat~ January 15, 2000 (the
Development Agreem~t dated l~l~?,;l.l~_(,t~,__~ 2001 (the ,,Amendment No. 2)i'anA~andment N°' I') a Sec°nd Amendment to
. WHEREAS. d~b to unforeseen circumsmncas and delays, the partier were unable to sanSfv a/l conditions and
requirements related to the De~e. iopment Agreement as amended; and '
WHEREAS, the partier desire to further amend the Deyelopment Agreement to satis~ various conditions.
NOW, THEREFORE, in considemUon of the Development Agrecmenr. the foregoing retire/s, the
covenants, terms and conditienx hereinafter set forth and other valuable consideration, the receipt and sufficiency of which am
hamby acknowledged, the City and Developer hereby agree to modify, amend and supplement the Development Agr~ment,
as zmended, as set forth below. '
1. Capi~ized terms used but not defined herein shall have the meanings set forth in the Deveinpmen~ Agreement.
2. Sec~un 2.7 of the Development Agreement, as amended by Amendmen~ No. 2, is hereby deleted in its entirem and
replaced with the following:
"2.7 ~losin~. The closing shall rz, ke place on or before June 4. 2001 (the "Closing Date:'), or
such other date m the paruer may agree in wr/tmg. Exclusive possession of Prope~. shall be delivered on
the CIosing Date, in compliance with the terms of this Agreement, including City's represen~ions and
wzn'antier regarding the same. Consummatiun of the Closing shall be deemed an agreement of the parries
to. Agreement that the conditions of closing shall have been satisfied or waived. If the conditions set forth
in $..e~un 2.6 are not satisfied at Closing Date, this Agreement shall terminate unless a new Closing Date is
eatablished by amendment to this Agreement. The termination of this Agreement shall be the sole remedy
in the event a condition set forth in Section 2.6 is not satisfied. Prior to the Closing Date. the City shal'l
cause its environmental consultant to prepare a supplemental Phase 1I final report summarizing the
envirunmenm/condition of the Property. The repor~ shall include a legible copy of all labomte~ results.
maps, and boring logs, together with a narrative describing the investigation. The report shall also discuss
the/ce conditions found under the surface."
3. This Amendment No. 3 shall not alter or amend uny obligation of the City to remedy any under~ound
ice problems that may e×ist under the Property. so that Developer c~m immediately commenc~ consm~cim§ the
Minimum Improvements as oft~e Closing Date.
4. The paties hereby ralffy and reaffirm ail terms and conditions o£ the Development Agreement. as emended by
Amendment No. I ~ Amendmem No. 2, which are not expressly modified, amended or supplemented b.v this Amendment
NO. 3, and acknowledge and agree that the Development Agreement, as modified, amended and supplemented by Am-,~clment
No. 1, Amendment No. 2 and Amendment No. 3 shall be and hereby is reinstated and shall continue in full force and effeat for
the duration and ~he extent therein provided. If them are conflicts between the terms of the Development Agr~ment. as
amended by Amendment No. I and Amendment No. 2, and the terms of this Amendment No. 3, the terms of diis Amendment
No. 3 shall control.
IN WITNE,~ WHEREOF, the parties hereto have caused this 'laird Amendment ~o Development Agreemem to be
executed by their respective duly authorized officers or representmives as of the date and year ~ above xvdaea.
CITY OF DUBUQUE, IOWA
By: /s/ Terrance M. Duggan, Mayor
By: /s/ Jeanne F. Schneider, City Clerk
DEVELOPER:
PLATINUM HOLDINGS, LLC
By: /s/ James P. Rix, Chief Executive Officer
By: /s/ Donald Iverson, Member
EXHIBIT E
Form of Legal Opinion of Counsel for
Municipal Recipient
,2001
Visionlowa Boa~
2015 Grand Avenue
Des Moines, lowa
RE:
Vision Iowa Program Grant Award Agreement
Among the Vision Iowa Board, the City of Dubuque, Iowa, and the
Dubuque County Historical Society
Ladies and Gentlemen:
I have acted as legal counsel for the City of , Iowa (the
"City") in connection with the execution and delivery by the City of that certain Vision
Iowa Program Grant Award Agreement (the "Grant Agreement") between the City and
the Vision Iowa Board dated as of ,2001. This opinion is being
furnished to you pursuant to Section 7 of the Grant Agreement.
In rendering the opinions expressed herein, I have examined the Grant
Agreement and the resolution of the City Council of the City authorizing the same. I
also have examined originals or copies certified or otherwise identified to my
satisfaction of such certifications of officers and proceedings of the City and other
documents and records as I have deemed relevant and necessary for the basis of such
opinions, without undertaking to verify the same by independent investigation. In all
such examinations, I have assumed (except in the case of the City and its officers) the
genuineness of all signatures and the authenticity of all documents submitted to me as
copies.
Based on the foregoing and an investigation of such other considerations of law
and fact as I have deemed to be relevant, I am of the opinion that:
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
1. The City has full power and authority under Iowa law to execute and
deliver the Grant Agreement and to carry out the terms thereof.
2.The Grant Agreement has been duly and validly authorized, executed and delivered
by the City and, assuming due authorization, execution and delivery by the Vision Iowa
Board, is in full force and effect and is a valid and binding obligation of the City
enfomeable in accordance with its terms (including, interalia, performance of all future
conditions and payments), except to the extent that the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium and other similiar laws
affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally
applicable and to the exemise of judicial discretion in appropriate cases.
3. Full performance by the City under the Grant Agreement will not violate
any constitutional, statutory, or other limitations placed on the City.
4. The City owns the real property described in Exhibits B and C to the Grant
Agreement in fee simple, free and clear of any liens, claims, and encumbrances of any
kind whatsoever with the exception of Exhibit C which is leased by the City to the
Dubuque County Historical Society for ape. riod of __ years.
Respectfully submitted,
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
EXHIBIT F
Form of Legal Opinion of Counsel for
The Dubuque County Historical Society
,2001
Vision Iowa Board
2015 Grand Avenue
Des Moines, Iowa
RE:
Vision Iowa Program Grant Award Agreement
among the Vision Iowa Board, the City of Dubuque, Iowa, and the Dubuque
County Historical Society
Ladies and Gentlemen:
I have actedas legal counsel for the Dubuque County Historical Society (the
"Society") in connection with the execution and delivery by the Society of that certain Vision
Iowa Program Grant Award Agreement (the "Grant Agreement") among the Society, the
City of Dubuque, and the Vision Iowa Board dated as of ,2001. This
opinion is being fumished to you pursuant to Section 7 of the Grant Agreement.
In rendering the opinions expressed herein, I have examined the Grant Agreement
and the resolution of the Society's Board of Directors of the Society authorizing the same.
I also have examined originals or copies certified or otherwise identified to my satisfaction
of such certifications of officers and proceedings of the Society and other documents and
records as I have deemed relevant and necessary for the basis of such opinions, without
undertaking to verify the same by independent investigation. In all such examinations, I
have assumed (except in the case of the Society and its officers) the genuineness of all
signatures and the authenticity of all documents submitted to me as copies.
Based on the foregoing and an investigation of such other considerations of law and
fact as I have deemed to be relevant, I am of the opinion that:
1. The Society has full power and authority under Iowa law, its Articles of
Incorporation and its Bylaws to execute and deliver the Grant Agreement and to carry out
the terms thereof.
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
2.The Grant Agreement has been duly and validly authorized, executed and delivered by
the Society and, assuming due authorization, execution and delivery by the Vision Iowa
Board, is in full force and effect and is a valid and binding obligation of the Society
enforceable in accordance with its terms (including, inter alia, performance of all future
conditions and payments), except to the extent that the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium and other similiar laws
affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally
applicable and to the exercise of judicial discretion in appropriate cases.
3. Full performance by the Society under the Grant Agreement will not
violate any constitutional, statutory, or other limitations placed on the Society.
Respectfully submitted,
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
EXHIBIT G
DISBURSEMENT SCHEDULE
DUBUQUE PROJECT BY COMPONENT
CITY COMPONENT:
DATE MAXIMUM GRANT PERCENTAGE AMOUNT
10-1-01 N/A $600,000.00
1-1-02 2% $4,600,000.00
4-1-02 17% $2,600,000.00
7-1-02 21% $1,700,000.00
1-1-03 20% $1,388,771.00
4-1-03 21% $1,100,000.00
7-1-03 21% $3,100,000.00
10-1-03 25% $4,000,000.00
1-1-04 29% $911,148.00
TOTAL:
SOCIETY COMPONENT:
$19,999,919.00
DATE MAXIMUM GRANT PERCENTAGE AMOUNT
10-1-01 N/A $3,000,000.00
1-1-02 32% $3,000,000.00
4-1-02 41% $3,000,000.00
7-1-02 46% $3,000,000.00
10-1-02 49% $3,000,000.00
1-1-03 51% $3,500,000.00
4-1-03 52% $1,500,081.00
TOTAL:
$20,000,081.00
TOTAL GRANT FOR ALL COMPONENTS: $40,000,000.00
TOTAL PROJECT VALUE: $108,580,858.00
PERCENTAGE OF PROJECT PAID FOR BY VISION IOWA FUNDS: 36.84%
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001
EXHIBIT H
Vision Iowa Electronic Payment Instruction Form
Grantee:
Grant No.:
Agreement Date:
Grant Amt.: $
Please provide the following banking information:
(type or print clearly)
Full name of your bank (do not use acronym)
For U.S. banks only: ABA number
;or non-U.S, banks only: Swift code
=ull name of your account (do not use acronym)
(our account number
Full address of your bank
FOR VISION IOWA USE ONLY
Approved:
Grant Administrator
Date
Vision Iowa Grant Award to the
City of Dubuque and the
Dubuque County Historical Society
July 11, 2001