Sale of City Owned Property_1126 White StreetTO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Sale of City-Owned Property at 1126 White Street
DATE: July 15, 2008
The City Council authorized the purchase of the vacant and derelict nine-unit apartment
building on White Street from the Dubuque Community School District with the intent of
selling it to a developer to create some owner-occupied condominiums in the
neighborhood. The School District had purchased the properties as part of the Prescott
School Construction project.
A Request for Proposal was issued and three responses were received. Housing and
Community Development Department Director David Harris is recommending sale of
the property to Horsfall, Inc.
The proposal submitted by Doug Horsfall has received the committee's unanimous
recommendation. A total of five condominiums will be developed in the former nine-unit
building. These will consist of two first-floor units, measuring about 1,400 square feet
for the two-bedroom and 750 square feet for the one-bedroom. On the upper two floors,
three two-story condominiums will be developed, each with two bedrooms and two
bathrooms, measuring approximately 1,450 square feet each.
Five garages will be constructed in the rear of the site, at the alley; five additional
surface parking spaces will be included. A gated entry will provide security at the rear
courtyard. A covered stairway will allow an exterior entrance to the units at the rear;
decks will be constructed for each condominium, on each of the three floors.
In addition to the previously approved financing package, the Development Agreement
includes the following to respond to the developer's request that the City share in the
risk of this untested housing model in this neighborhood:
1. The developer receives no less than $10,000 from the sale proceeds of any unit.
2. Subject to 1 above, at sale of each condo unit, the developer will pay to the City a
mortgage release amount equal to 80% of the sale proceeds (after real estate
commissions), to be applied against the Iowa Finance Authority $500,000
construction loan and will receive a release of the unit from that construction loan
mortgage. The buyer will assume one-fifth of the $125,000 loan, which is a City
furnished second mortgage in addition to the IFA loan.
3. The sale price of any unit must be approved by the City.
4. After the approved sale of the last condominium unit, the City will forgive any unpaid
balance on the IFA loan.
5. After completion of construction, the City will pay the developer one-half of the on-
going property taxes, condominium fees, insurance, utilities and maintenance costs
incurred by the developer for unsold units.
The risk-sharing agreement requested by the developer results in open-ended financing
for the City. If the total sale price for the units does not cover the IFA construction loan,
the City will subsidize the difference. For instance, if, instead of selling the
condominiums at the break-even prices of $110,000 -151,000, they were sold at
$84,000 -131,000, the additional write-down on the IFA loan could be $90,000, or
$18,000 per unit. This is not inconsistent with some of the Washington Neighborhood
deals approved by the Housing Commission during the past two years, particularly for
the HEART Program homes. General Funds for homeownership financing in the
neighborhood are available for this purpose.
In addition, by agreeing to share in the carrying cost of unsold units, the City will incur
expenses in an unknown amount, until all the condominiums are purchased. These will
primarily consist of condominium fees and insurance. Interest costs on the IFA
construction loan are not included in this obligation.
As the project was conceived, an additional benefit was the participation of HEART
Program students. This was included as an optional feature in the RFP and the City
encouraged responding developers to consider ways to involve the students. With the
Horsfall proposal, there will be significant involvement. In particular, the new garages
constructed at the rear of the property will be HEART-built. The students have already
completed some preliminary demolition work and will resume their activities once school
resumes in August.
The benefits to the City include:
1. Re-occupancy of along-derelict apartment building, a source of blight to the area for
many years.
2. Restoration of a significant 1890's-era historic property, a contributing structure to
the original Old Town Residential Neighborhood.
3. Addition of five owner-occupied units to the neighborhood.
4. A `test' of the condominium market in the area, particularly of the feasibility of
converting older `excess' rental units for the young professionals/singles market in
the downtown.
5. Fulfillment of an agreement with the Dubuque Community School District - in
exchange for a considerable write-down of their purchase cost - to restore this
property and enhance the Prescott School campus.
6. A significant partnership with the HEART Program
7. Promotion of 'green' approach: recognizing that adaptive re-use of existing buildings
is the best way to "recycle" those resources, while respecting the historic
environment of Dubuque's older downtown neighborhoods.
8. Ahigh-profile implementation project of the Washington: Revitalize strategy, to
improve the quality of life in the Washington Neighborhood.
This continues the partnership between the City of Dubuque and the Dubuque
Community School District to revitalize the Washington Street Neighborhood. Previous
elements of this partnership include the Dubuque Community School District
construction of Prescott School, the incorporation of a Neighborhood Resource Center
in the school, the new City policy allowing City employees 30 minutes a week on City
time to mentor a student at the Dubuque Community School District, the numerous City-
sponsored after school programs in the targeted schools, the sale of the Kephart's
Building to the City for the expansion of the Multi-Cultural Center and the inclusion of
the Dubuque Community School District English Language Learner instructional
services in the Multi-Cultural Center.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM/jh
Attachment
cc: John Burgart, Dubuque Community School District Superintendent
Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David Harris, Housing and Community Development Department Director
TO: Michael Van~igen, City Manager
FROM: David ~ ris, Housing and Community Development Department
SUBJECT: Sale of City-owned Property at 1126 White Street
DATE: 7 July 08
Introduction
The purpose of this memorandum is to request the City Council to authorize sale of the
property at 1126 White Street to Horsfall Inc, for the purpose of its conversion to
condominiums and resale to owner occupants.
Background
The City Council authorized purchase of the vacant and derelict 9-unit apartment
building on White Street, from the Dubuque Community School District, in June 07, for
$50 000. Prior to purchase, the Housing Department had published a Request for
Proposals, in April, seeking interest from a developer to purchase and convert the
building to condos for `young professionals' working in the downtown. This project was
conceived to complement the Washington Neighborhood revitalization strategy
promoting homeownership and a mix of household incomes, as part of an effort to
stabilize the area and reverse the imbalance of renter-occupied properties.
In response to the RFP, proposals were received from Tricon Construction and Winger
Construction. A review committee, consisting of AI Lundh, John Gronen, Building
Department Manager Rich Russell, and Housing staff Dick Firzlaff, Bob Boge, Joe Kirk
and David Harris reviewed the proposals and interviewed the respondents. A
preliminary choice was made for Tricon, which requested and was granted additional
time to conduct a market survey in order to determine pricing and amenities for the
units.
Unfortunately, Tricon subsequently withdrew their proposal, due to health
considerations of one of the principal owners of the firm. A second RFP was then
published by the Housing Department in January 08.
In response, the review committee received proposals from Dubuque Property
Management LLC, Freedom Development Company and Horsfall Inc.
Discussion
The proposal submitted by Doug Horsfall has received the committee's unanimous
recommendation. A total of five condominiums will be developed in the former nine unit
building. These will consist of two first-floor units, measuring about 1400 square feet for
the two-bedroom and 750 square feet for the one-bedroom. On the upper two floors,
three two-story condos will be developed, each with two bedrooms and two bathrooms,
measuring approximately 1450 square feet each.
Five garages will be constructed in the rear of the site, at the alley; five additional
surface parking spaces will be included. A gated entry will provide security at the rear
courtyard. A covered stairway will allow an exterior entrance to the units at the rear;
decks will be constructed for each condo, on each of the three floors.
Doug Horsfall, dba Horsfall Inc., is based in Asbury; Doug has primary experience as a
builder of quality new homes in the area. His work and reputation are excellent. He has
been represented in discussions with City staff by Chad Wagoner, from DB&T; and by
attorney Bill Conzett.
To further review the project design and concept, an ad hoc group of market
professionals was convened. This included Lynn Juergens, Chad Wagoner and Bill
Callahan from DB&T; realtor Doris Hingtgen and appraiser Tom Kane. The design,
including open floor plans, secured entries, off-street parking and individual decks, was
endorsed. It was agreed that unit sale prices in the $100/square foot range could be
supported by appraised values. In particular, it was agreed that the financing available
for this project would be of major benefit in marketing the condos.
Financing
According to the project concept initially approved by the City Council, the building is to
be sold to the developer for $1.00. In addition, a $50 000 grant from General Funds
allocated for this purpose is to be made to the developer. A $500 000 FirstHome loan
has been obtained by the City from the Iowa Finance Authority, to be made available as
construction financing, at 3% interest. This loan has a 10-year term.
Additional financing will be made available as part of the Washington Neighborhood
revitalization lending package. This consists of $125 000 -initially used by the
developer as construction financing and then assumed by the unit buyers - at no
interest and no payments.
Horsfall's development budget has been calculated at $700 000. Realtor fees added to
this total are estimated at $35 000. With the City grant of $50 000, the $500 000 IFA
construction loan and the additional $125 000 in City "pass-through" funds, the
developer is receiving 92% financing for the project. With a profit calculation of
$50 000, the return to the developer is 7%.
Unit buyers would each assume $25 000 in "pass-through" financing (the $125 000
divided by five units), as a second mortgage from the City. In addition, each would
receive a forgivable $5000 loan for downpayment financing. A total of $30 000 in City
financing will be received by each unit buyer (a combination of forgivable, deferred-
payment and 0% interest loans), at a total monthly payment of $42. Dubuque Bank and
Trust, our current lending partner in the Washington revitalization effort, is offering
4.95% interest on first mortgage financing.
In summary, the financing scenario:
$700 000 development cost
35 000 realtor fees
$735 000 total project cost
$ 50 000 City grant
500 000 IFA FirstHome first mortgage
125 000 City second mortgage -passed thru to unit buyers
$675 000
Unit buyer financing:
$110 000 - $151 000 unit sale prices
- 25 000
$ 85 000 - $126 000
- 5 000
$ 80 000 - $121 000
City pass-thru financing
City downpayment loan
First mortgage needed by unit buyer
As the property is located in an Urban Revitalization District, no taxes are paid on
improvements for ten years. Coupled with the residential roll-back, unit buyers will
literally pay no real estate taxes for their homes.
For these reasons, the cost of purchasing and operating the condominiums is quite
market competitive. To realize break-even on the project budget, the developer must
sell the units at a range of $110 000 to $151 000; prices vary according to size. The
PITT (principal, interest, taxes and insurance) cost on a unit selling for $150 000 is $723
per month. For this, the buyer purchases a 1450 square foot unit, with two bedrooms,
two baths and off-street parking (one garage.) For a unit selling at $110 000, the PITI
payment is about $488. Only IFA income limits apply: for atwo-person household, this
is $71 400.
Development agreement
We are reasonably certain that we have a quality developer and a project design and
financing package that can compete in the market. The unknown variable is buyer
interest. Given that the project is "ahead of the curve" of the downtown condo/town
home market, its marketability is an unanswered question. For this reason, the
developer has requested some hedge against risk, i.e., his inability to sell the units at
the break-even prices, or within a reasonable time frame.
A development agreement has been prepared by Assistant City Attorney Tim O'Brien to
reflect the negotiations with the developer. The points of the agreement which respond
to the developer's concerns are as follows:
1. The developer receives no less than $10 000 from the sale proceeds of any unit.
2. Subject to 1. above, at sale of each condo unit, the developer will pay to the City
a mortgage release amount equal to 80% of the sale proceeds (after real estate
commissions), to be applied against the IFA $500 000 construction loan and will
receive a release of the unit from that construction loan mortgage. The buyer will
assume 1/5 of the $125 000 loan.
3. The sale price of any unit must be approved by the City.
4. After the approved sale of the last condominium unit, the City will forgive any
unpaid balance on the IFA loan.
5. After completion of construction, the City will pay the developer one-half of the
on-going property taxes, condominium fees, insurance, utilities and maintenance
costs incurred by the developer for unsold units.
The risk-sharing agreement requested by the developer results in open-ended financing
for the City. If the total sale price for the units does not cover the IFA construction loan,
the City will subsidize the difference. For instance, if, instead of selling the condos at
the break-even prices of $110 000 -151 000, they were sold at $84 000 -131 000, the
additional write-down on the IFA loan could be $90 000, or $18 000 per unit. This is not
inconsistent with some of the Washington Neighborhood deals approved by the
Housing Commission during the past two years, particularly for the HEART Program
homes. General Funds for homeownership financing in the neighborhood are available
for this purpose.
In addition, by agreeing to share in the carrying cost of unsold units, the City will incur
expenses in an unknown amount, until all the condominiums are purchased. These will
primarily consist of condo fees and insurance. Interest costs on the IFA construction
loan are not included in this obligation.
HEART Program
As we conceived this project, an additional benefit was the participation of HEART
Program students. This was included as an optional feature in the RFP and we
encouraged responding developers to consider ways to involve the students. With the
Horsfall proposal, we will have significant involvement. In particular, the new garages
constructed at the rear of the property will be HEART-built. The students have already
completed some preliminary demolition work and will resume their activities once school
resumes in August.
Recommendation
It is recommended that the Council approve sale of the property to Doug
Horsfall/Horsfall Inc, under the terms and conditions of the Development Agreement,
attached. Although some financial uncertainty results for the City, the Agreement
represents a reasonable sharing of risk on amarginally-profitable project. And the
benefits to the City are numerous, including:
1. Re-occupancy of along-derelict apartment building, a source of blight to the area
for many years.
2. Restoration of a significant 1890's-era historic property, a contributing structure
to the original Old Town Residential Neighborhood.
3. Addition of five owner-occupied units to the neighborhood.
4. A `test' of the condominium market in the area, particularly of the feasibility of
converting older `excess' rental units for the young professionals/singles market
in the downtown.
5. Fulfillment of an agreement with the Dubuque Community School District - in
exchange for a considerable write-down of their purchase cost - to restore this
property and enhance the Prescott School campus.
6. A significant partnership with the HEART Program
7. Promotion of `green' approach: recognizing that adaptive re-use of existing
buildings is the best way to "recycle" those resources, while respecting the
historic environment of our older downtown neighborhoods.
8. Ahigh-profile implementation project of our Washington: Revitalize strategy, to
improve the quality of life in the Washington Neighborhood.
Action Step
The action requested of the City Council is to approve the attached resolution,
authorizing the sale of real estate located at 1126 White Street to Horsfall Inc., for
$50 000.
att
RESOLUTION NO. 249 - 08
A RESOLUTION APPROVING THE SALE OF REAL ESTATE LOCATED AT
1126 WHITE STREET, IN THE CITY OF DUBUQUE, IOWA
WHEREAS, the City acquired the property at 1126 White Street for the purpose
of its redevelopment and re-use for owner-occupied housing; and
WHEREAS, such purpose supports the Washington Neighborhood revitalization
strategy as approved by the City Council; and
WHEREAS, a qualifying proposal has been reveived from Horsfall Inc. to
accomplish these objectives.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the City of Dubuque hereby approves the acquisition of the
following legally-described property:
The South Middle One-fifth (1/5) of Out Lot 480 in the City of Dubuque, Iowa
according to the United States Commissioners Map thereof,
at the cost of One dollar ($1.00)
Section 2. That the City of Dubuque be and is hereby authorized to provide a
Special Warranty Deed to the buyer, conveying the City's interest to Horsfall Inc for the
herein described real estate.
Section 3. That the City Clerk be and she is hereby authorized and directed to
case said Special Warranty Deed to be recorded in the Office of the Dubuque County
Recorder, together with certified copy of the Resolution.
Section 4. That the City Clerk be and she is hereby directed to forward a copy of
this Resolution to the Dubuque County Assessor and the Dubuque County Auditor.
PASSED, APPROVED AND ADOPTED this 21st day of July, 2008
Roy D. Buol, Mayor
Attest:
Jeanne Schneider, CMC, City Clerk
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DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE
AND
HORSFALL, INC.
This Agreement, dated for reference purposes the day of , 2008,
by and between the City of Dubuque, Iowa, a municipality (City), established
pursuant to the Iowa Code, and Horsfall, Inc., with its principal place of business in
Dubuque, lowa(Developer).
WHEREAS, in furtherance of the objectives of the Washington
Neighborhood Urban Revitalization Area, City has issued a Request for Proposal
for the development of property known as 1126 White St. in Dubuque,
lowa(Project); and
WHEREAS, the Project is located within the Washington Neighborhood
Urban Revitalization Area; and
WHEREAS, the Developer has submitted a proposal for the development of
the Property which is acceptable to the City; and
WHEREAS, Developer has requested that City sell to Developer the property
known as 1126 White St., legally described on Exhibit B, attached, in the City of
Dubuque, Dubuque County, Iowa, together with all easements, tenements,
hereditaments, and appurtenances belonging thereto (the Property), so that
Developer may develop the Property, for the construction, use and occupancy of
the property as a five unit residential condominium, in accordance with the City's
Request for Proposal and the Developer's proposal in response thereto and in
accordance with this Agreement; and
WHEREAS, City believes that the development of the Property pursuant to
this Agreement, and the fulfillment generally of this Agreement, are in the vital and
best interests of City and in accord with the public purposes and provisions of the
applicable federal, state and local laws and the requirements under which the
Project has been undertaken and is being assisted.
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. CONVEYANCE OF PROPERTY TO DEVELOPER
1.1 Purchase Price. The purchase price for the Property (the Purchase Price)
shall be the sum of $1.00 which shall be due and payable by Developer in
immediately available funds in favor of City, on or before , 2008, or on
such other date as the parties may mutually agree (the Closing Date).
1.2 Title to Be Delivered. City agrees to convey good and marketable fee simple
title in the Property to Developer subject only to easements, restrictions, conditions
and covenants of record as of the date hereof to the extent not objected to by
Developer as set forth in this Agreement, and to the conditions subsequent set forth
in Section 5.3, below:
(1) City, at its sole cost and expense, shall deliver to Developer an
abstract of title to the Property continued through the date of this Agreement
reflecting merchantable title in City in conformity with this Agreement and
applicable state law. The abstract shall be delivered together with full copies
of any and all encumbrances and matters of record applicable to the
Property, and such abstract shall become the property of Developer when
the Purchase Price is paid in full in the manner as aforesaid.
(2) Developer shall have until time of the Closing Date to render
objections to title, including any easements or other encumbrances not
satisfactory to Developer, in writing to City. Developer agrees, however, to
review the Abstract promptly following Developer's receipt of Developer's
land survey and the Abstract and to promptly provide City with any objections
to title identified therein. Nothing herein shall be deemed to limit Developer's
rights to raise new title objections with respect to matters revealed in any
subsequent title examinations and surveys and which were not identified in
the Abstract provided by the City. City shall promptly exercise its best efforts
to have such title objections removed or satisfied and shall advise Developer
of intended action within ten (10) days of such action. If City shall fail to
have such objections removed as of the Closing Date, or any extension
thereof consented to by Developer, Developer may, at its sole discretion,
either (a) terminate this Agreement without any liability on its part, and any
sums previously paid to City by Developer (or paid into escrow for City's
benefit) shall be returned to Developer with interest, or (b) take title subject
to such objections. City agrees to use its best reasonable efforts to promptly
satisfy any such objections.
1.3 Rights of Inspection, Testing and Review. Developer, its counsel,
accountants, agents and other representatives, shall have full and continuing
access to the Property and all parts thereof, upon reasonable notice to City.
Developer and its agent and representatives shall also have the right to enter upon
Property at any time after the execution and delivery hereof for any purpose
whatsoever, including inspecting, surveying, engineering, test boring, performance
of environmental tests, provided that Developer shall hold City harmless and fully
indemnify City against any damage, claim, liability or cause of action arising from or
caused by the actions of Developer, its agents, or representatives upon the
2
Property (except for any damage, claim, liability or cause of action arising from
conditions existing prior to any such entry upon the Property), and shall have the
further right to make such inquiries of governmental agencies and utility companies,
and to make such feasibility studies and analyses as it considers appropriate.
1.4 Representations and Warranties of City. In order to induce Developer to
enter into this Agreement and purchase the Property, City hereby represents and
warrants to Developer that to the best of City's knowledge:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or enjoyment
thereof by Developer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
(2) No ordinance or hearing is now before any local governmental body
that either contemplates or authorizes any public improvements or special
tax levies, the cost of which may be assessed against the Property. To the
best of City's knowledge, there are no plans or efforts by any government
agency to widen, modify, or re-align any street or highway providing access
to the Property and there are no pending or intended public improvements or
special assessments affecting the Property which will result in any charge or
lien be levied or assessed against the Property.
(3) All leases, contracts, licenses, and permits between City and third
parties in connection with the maintenance, use, and operation of the
Property have been provided to Developer and City has provided true and
correct copies of all such documents to Developer.
(4) City has good and marketable fee simple title interest to the Property.
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other
matters that have not been corrected. City has notified Developer in writing
of any past notices, orders, suits, judgments or other proceedings relating to
fire, building, zoning, air pollution or health violations as they relate to the
Property of which it has actual notice
(7) Payment has been made for all labor or materials that have been
furnished to the Property or will be made prior to the Closing Date so that no
lien for labor performed or materials furnished can be asserted against the
Property.
3
(8) The Property will as of the Closing Date be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not
and shall not result in any material breach of any terms or conditions of any
mortgage, bond, indenture, agreement, contract, license, or other instrument
or obligation to which City is a party or by which either the City or the
Property being conveyed are bound, nor shall the execution, delivery and
performance of this Agreement violate any statute, regulation, judgment, writ,
injunction or decree of any court threatened or entered in a proceeding or
action in which City may be bound or to which either City or the Property
being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and that it has full
power and authority to execute, deliver and perform its obligations under this
Agreement.
(11) The Property is free and clear of any occupants, and no party has a
lease to or other occupancy or contract right in the Property that shall in
anyway be binding upon the Property or Developer.
(12) City represents and warrants that any fees or other compensation
which may be owed to a broker engaged directly or indirectly by City in
connection with the purchase and sale contemplated in this Agreement are
the sole responsibility and obligation of City and that City will indemnify
Developer and hold Developer harmless from any and all claims asserted by
any broker engaged directly or indirectly by City for any fees or other
compensation related to the subject matter of this Agreement.
(13) City shall exercise its best efforts to cooperate with Developer in the
development process.
(14) City shall exercise its best efforts to resolve any disputes arising
during the development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied
the Property, and to City's knowledge after reasonable investigation with
respect to the time before City owned or occupied the Property, no person or
entity has caused or permitted materials to be stored, deposited, treated,
recycled, or disposed of on, under or at the Property, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under environmental laws.
4
(16) The representations and warranties contained in this article shall be
correct in all respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on and as of
the Closing Date.
(17) All city utilities necessary for the development and use of the Property
as an industrial manufacturing facility adjoin the Property and Developer
shall have the right to connect to said utilities, subject to City's connection
fees.
1.5 Conditions to Closing. The closing of the transaction contemplated by this
Agreement and all the obligations of Developer under this Agreement are subject to
fulfillment, on or before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.4 shall
be correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the closing, City shall deliver a
certificate to that effect in the form of Exhibit G.
(2) Title to the Property shall be in the condition warranted in Section 1.4.
(3) Developer, in its sole and absolute discretion, having completed and
approved of any inspections done by Developer hereunder.
(4) Developer and City shall be in material compliance with all the terms
and provisions of this Agreement.
1.6 Closin The closing of the purchase and sale shall take place on the
Closing Date. Exclusive possession of the Property shall be delivered on the
Closing Date, in its current condition and in compliance with this Agreement,
including City's representations and warranties regarding the same. Consummation
of the closing shall be deemed an agreement of the parties to this Agreement that
the conditions of closing shall have been satisfied or waived.
1.7 City's Obligations at Closing. At or prior to the Closing Date, City shall:
(1) Deliver to Developer City's duly recordable Special Warranty Deed (in
the form attached hereto as Exhibit C) to the Property conveying to
Developer marketable fee simple title to the Property and all rights
appurtenant thereto, subject only to easements, restrictions, conditions and
covenants of record as of the date hereof and not objected to by Developer
as set forth in this Agreement, and to the conditions subsequent set forth in
Section 5.3 below.
(2) Deliver to Developer the Abstract of Title to the Property.
(3) Deliver to Developer such other documents as may be required by
this Agreement, all in a form satisfactory to Developer.
1.8 Delivery of Purchase Price; Obligations At Closing. At closing, and subject
to the terms, conditions, and provisions hereof and the performance by City of its
obligations as set forth herein, Developer shall pay the Purchase Price to City
pursuant to Section 1.1 hereof, but subject to Developer receiving an offsetting
credit pursuant to Section 3.1 below.
1.9 Closing Costs. The following costs and expenses shall be paid in connection
with the closing:
(1) City shall pay:
(a) The transfer fee, if any, imposed on the conveyance.
(b) A pro-rata portion of all taxes, if any, as provided in Section
1.10.
(c) All special assessments, if any, whether levied, pending or
assessed.
(d) City's attorney's fees, if any.
(e) City's broker and/or real estate commissions and fees, if any.
(2) Developer shall pay the following costs in connection with the closing:
(a) The recording fee necessary to record the Deed.
(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 1.10.
(e) The cost of recording any mortgages.
1.10 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years that
end prior to the Closing Date. Real estate taxes for the fiscal year in which the
6
Closing Date occurs shall be prorated between City and Developer to the Closing
Date on the basis of a 365-day calendar year. Developer shall pay or cause to be
paid all real estate taxes due in subsequent fiscal years. Any proration of real
estate taxes on the Property shall be based upon such taxes for the year currently
payable.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Improvements. City acknowledges that Developer is building a five
unit residential condominium on the Property. Specifically, Developer is charged
with constructing the building and certain internal systems thereto, and with
finishing the building including, without limitation, all interior improvements (the
Project); all as more particularly depicted and described in the Developers response
to City's Request for Proposals delivered to City
2.2 Timing of Improvements. Developer hereby agrees that construction of the
Project on the Property shall be commenced within three (3) months after the
Closing Date, and shall be substantially completed by 2009. The time
frames for the performance of these obligations shall be suspended due to
unavoidable delays meaning delays, outside the control of the party claiming its
occurrence in good faith, which are the direct result of strikes, other labor troubles,
unusual shortages of materials or labor, unusually severe or prolonged bad
weather, acts of God, fire or other casualty to the Project, litigation commenced by
third parties which, by injunction or other similar judicial action or by the exercise of
reasonable discretion directly results in delays, or acts of any federal, state or local
government which directly result in extraordinary delays. The time for performance
of such obligations shall be extended only for the period of such delay.
SECTION 3. CITY PARTICIPATION
3.1 Acquisition Grant to Developer. For and in consideration of Developer's
obligations hereunder to construct the Project, City agrees to make a Grant to
Developer on the Closing Date, or such other date as the parties shall mutually
agree upon in writing, in the amount of $50,000.00 Dollars
3.2 Loans to Developer. For and in consideration of Developer's obligations
hereunder to construct the Project, City agrees to make the following loans to
Developer on the Closing Date, or such other date as the parties shall mutually
agree upon in writing:
a. Construction loan secured by a first mortgage in the principal amount of
$500,000.00 at 3% interest per annum, with a term of up to ten years and a unit
release amount equal to 80% of the sale proceeds of the unit after payment of real
estate sale commissions, provided that in no event shall the developer receive less
than $10,000.00 from the sale proceeds of any unit. The sale price of any unit must
7
have the approval of the City in writing prior the execution of any agreement for the
sale of the unit by the Developer, which approval shall not be unreasonably
withheld. After the approved sale of the last condominium unit by Developer, City
shall forgive any unpaid balance on this loan.
b. Construction loan secured by a second mortgage in the principal amount
of $125,000.00 at 0% interest per annum, with a term of up to ten years. The entire
balance of this loan shall be due ten years from the date of Closing. A portion of
this loan may be assigned assumed by the purchaser of each of the condominium
units. The maximum amount assumable by any condominium unit purchaser shall
be $25,000.00. City agrees to subordinate this assigned and assumed portion of
this loan to purchaser's permanent financing. At the time of closing on the sale of
any condominium unit City agrees to rewrite the loan terms of the assumed loan of
$25,000.00 as follows: $5,000.00 of the loan will be forgiven after occupancy by the
purchaser for 5 years; if sold by purchaser prior to five years of occupancy by
purchaser, the entire $5,000.00 shall be due on sale of the unit; $10,000.00 at 0%
interest, no monthly payment, due on sale of the unit; $10,000.00 at 0% interest per
annum payable over 20 years at the rate of $42.00 per month, due on sale of the
unit.
3.3 Sharing of Certain Costs. After completion of the Project, City agrees to pay
Developer one-half of the real property taxes, condominium fees, insurance, utilities
and maintenance costs incurred by the Developer for unsold condominium units.
3.4 Disbursement and Use of Grant and Loan Proceeds. City shall disburse
Grant and Loan funds to Developer for Qualifying Project Expenses only. The first
disbursements shall be from the $125,000.00 loan. Developer shall furnish to City
written requests for disbursement of funds in the form attached hereto as Exhibit E,
detailing Developer=s Project expenses and including appropriate documentation of
such expenses. It is expressly understood that all funds advanced under this
Agreement shall be specifically earmarked and used by Developer only for the
purpose of paying the Qualifying Project Expenses listed in the applicable written
request. City shall not be obligated to pay any funds not drawn by Developer as of
said date of completion of the Project and any undrawn funds shall be credited
against the balance due on the $500,000.00 loan.
3.5 Qualifying Project Expenses. Qualifying Project Expenses shall mean only
those expenditures or expenses incurred by Developer during and for the Project,
whether paid to third parties or incurred as wage expense, fringe benefit expense or
other costs of Developer's employees, agents and contractors. Payment of interest
on the $500,000.00 loan shall be considered a Qualifying Project Expense.
SECTION 4. COVENANTS OF DEVELOPER
4.1 Books and Records. During the term of this Agreement, Developer shall
8
keep at all times proper books of record and account in which full, true and correct
entries will be made of all dealings and transactions of or in relation to the business
and affairs of Developer in accordance with generally accepted accounting
principles consistently applied throughout the period involved, and Developer shall
provide reasonable protection against loss or damage to such books of record and
account.
4.2 Real Property Taxes. From and after the Closing Date, Developer shall pay
or cause to be paid, when due, all real property taxes and assessments payable
with respect to all and any parts of the Property unless Developer's obligations have
been assumed by another person pursuant to the provisions of this Agreement.
4.3 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all
times during the process of constructing the Project (and, from time to time
at the request of City), furnish City with proof of insurance in the form of a
certificate of insurance for each insurance policy:
(a) All risk builder's risk insurance, written on a Completed Value
Form in an amount equal to one hundred percent (100%) of the
replacement value when construction is completed;
(b) Insurance as set forth in the attached Insurance Schedule A.
(2) Upon completion of construction of the Project, Developer shall
maintain, or cause to be maintained, at its cost and expense (and from time
to time at the request of City shall furnish proof of insurance in the form of a
certificate of insurance) insurance as follows:
(a) All risk property insurance against loss and/or damage to
Minimum Improvements under an insurance policy written in an
amount not less than the full insurable replacement value of
Project. The term "replacement value" shall mean the actual
replacement cost of the Project (excluding foundation and
excavation costs and costs of underground flues, pipes, drains
and other uninsurable items) and equipment, and shall be
reasonably determined from time to time at the request of City,
but not more frequently than once every three (3) years.
(3) Developer shall notify City immediately in the case of damage
exceeding $100,000.00 in amount to, or destruction of, the Project or any
portion thereof resulting from fire or other casualty. Net proceeds of any such
insurance (Net Proceeds), shall be paid to Developer and City as their
interests may appear, and Developer shall forthwith repair, reconstruct and
9
restore the Project to .substantially the same or an improved condition or
value as they existed prior to the event causing such damage and, to the
extent necessary to accomplish such repair, reconstruction and restoration,
Developer shall apply the Net Proceeds of any insurance relating to such
damage received by Developer to the payment or reimbursement of the
costs thereof, subject, however, to the terms of any mortgage encumbering
title to the Property (as its interests may appear
4.4 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, the
Project in good repair and working order, ordinary wear and tear accepted, and
from time to time shall make all necessary repairs, replacements, renewals and
additions. Nothing in this Agreement, however, shall be deemed to alter any
agreements between Developer or any other party including, without limitation, any
agreements between the parties regarding the care and maintenance of the
Property.
4.5 Non-Discrimination. In carrying out the project, Developer shall not
discriminate against any employee or applicant for employment because of race,
religion, color, sex, sexual orientation, national origin, age or disability.
4.6 Conflict of Interest. Developer agrees that no member, officer or employee
of City, or its designees or agents, nor any consultant or member of the governing
body of City, and no other public official of City who exercises or has exercised any
functions or responsibilities with respect to the project during his or her tenure, or
who is in a position to participate in adecision-making process or gain insider
information with regard to the project, shall have any interest, direct or indirect, in
any contract or subcontract, or the proceeds thereof, for work to be performed in
connection with the project, or in any activity, or benefit therefrom, which is part of
this project at any time during or after such person's tenure. In connection with this
obligation, Developer shall have the right to rely upon the representations of any
party with whom it does business and shall not be obligated to perform any further
examination into such party's background.
4.7 Non-Transferability. This Agreement may not be assigned by Developer, nor
may the Property be transferred by Developer to another party without the prior
written consent of City, which shall not be unreasonably withheld
4.8 Restrictions on Use. Developer agrees for itself, and its successors and
assigns, and every successor in interest to the Property or any part thereof that
they, and their respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Request for Proposals and Developers proposal
dated
10
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, national origin, age or disability in the sale, lease, rental, use or
occupancy of the Property or any improvements erected or to be erected
thereon, or any part thereof (however, Developer shall not have any liability
to City to the extent that a successor in interest shall breach this covenant
and City shall seek enforcement of this covenant directly against the party in
breach of same).
4.9 Release and Indemnification Covenants.
(1) Developer releases City and the governing body members, officers,
agents, servants and employees thereof (hereinafter, for purposes of this
Section, 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 Parties against, any loss or damage to
property or any injury to or death of any person occurring at or about or
resulting from any defect in the Project.
(2) Except for any gross negligence, 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 arising or purportedly arising from (1) any
violation of any agreement or condition of this Agreement (except with
respect to any suit, action, demand or other proceeding brought by
Developer against City based on an alleged breach of any representation,
warranty or covenant of City under this Agreement and/or to enforce its
rights under this Agreement) or (2) the acquisition, construction, installation,
ownership, and operation of the Minimum Improvements or (3) the condition
of the Property and any hazardous substance or environmental
contamination located in or on the Property, occurring after Developer takes
possession of the Property.
(3) The Indemnified Parties shall not be liable to Developer for any
damage or injury to the persons or property of Developer or its officers,
agents, servants or employees or any other person who may be on, in or
about the Project due to any act of negligence of any person, other than any
act of negligence on the part of any such Indemnified Party or its officers,
agents, servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of
City contained herein shall be deemed to be the covenants, stipulations,
promises, agreements and obligations of City, and not of any governing body
11
member, officer, agent, servant or employee of City in the individual capacity
thereof.
(5) The provisions of this Section shall survive the termination of this
Agreement.
4.10 Compliance with Laws. Developer shall comply with all laws, rules and
regulations relating to its businesses, other than laws, rules and regulations the
failure to comply with or the sanctions and penalties resulting therefrom, would not
have a material adverse effect on the business, property, operations, financial or
otherwise, of Developer.
4.11 Condominium Formation. Developer agrees to establish the condominium
and record the condominium covenants and other required documents, including
the incorporation of the condominium association and qualifying it for tax exempt
status, all prior to April 1, 2009
SECTION 5. EVENTS OF DEFAULT AND REMEDIES
5.1 Events of Default Defined. The following shall be Events of Default under
this Agreement and the term Event of Default shall mean, whenever it is used in
this Agreement, any one or more of the following events:
(1) Failure by Developer to pay or cause to be paid, before delinquency,
all real property taxes assessed with respect to the Property.
(2) Failure by Developer to cause the construction of the Project to be
commenced and completed pursuant to the terms, conditions and limitations
of this Agreement.
(3) Transfer of any interest by Developer of the Project in violation of the
provisions of this Agreement prior to completion.
(4) Failure by Developer or City to substantially observe or perform any
other material covenant, condition, obligation or agreement on its part to be
observed or performed under this Agreement.
5.2. Remedies on Default by Developer. Whenever any Event of Default referred
to in Section 5.1 of this Agreement occurs and is continuing, City, as specified
below, may take any one or more of the following actions after the giving of written
notice by City to Developer (and the holder of any mortgage encumbering any
interest in the Property of which City has been notified of in writing) of the Event of
Default, but only if the Event of Default has not been cured within sixty (60) days
following such notice, or if the Event of Default cannot be cured within sixty (60)
12
days and Developer does not provide assurances to City that the Event of Default
will be cured as soon as reasonably possible thereafter:
(1) City may suspend its performance under this Agreement until it
receives assurances from the defaulting party deemed adequate by City, that
the defaulting party will cure its default and continue its performance under
this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) City shall be entitled to recover from Developer the sum of all
amounts expended by City in connection with the funding of the Grant and
loans to Developer, and City may take any action, including any legal action
it deems necessary, to recover such amounts from the defaulting party;
(4) City may take any action, including legal, equitable or administrative
action, which may appear necessary or desirable to collect any payments
due under this Agreement or to enforce performance and observance of any
obligation, agreement, or covenant under this Agreement.
5.3 Re-Vesting Title in City Upon Happening of Event Subsequent to
Conveyance to Developer. In the event that subsequent to conveyance of the
Property to Developer by City and prior to receipt by Developer of the Certificate of
Completion, an Event of Default under Section 5.1 of this Agreement occurs and is
not cured within the times specified in Section 5.2, then City shall have the right to
re-enter and take possession of the Property and any portion of the improvements
thereon and to terminate and re-vest in City pursuant to the provisions of this
Section 5.3 the estate conveyed by City to Developer, it being the intent of this
provision, together with other provisions of this Agreement, that the conveyance of
the Property to Developer shall be made upon the condition that (and the Deed
shall contain a condition subsequent to the effect that), in the event of default under
Section 5.1 on the part of Developer and failure on the part of Developer to cure
such default within the period and in the manner stated herein, City may declare a
termination in favor of City of the title and of all Developer's rights and interests in
and to Property conveyed to Developer, and that such title and all rights and
interests of Developer, and any assigns or successors in interests of Developer,
and any assigns or successors in interest to and in Property, shall revert to City
(subject to the provisions of Section 5.3 of this Agreement), but only if the events
stated in Section 5.1 of this Agreement have not been cured within the time period
provided above, or, if the events cannot be cured within such time periods,
Developer does not provide assurance to City, reasonably satisfactory to City, that
the events will be cured as soon as reasonably possible
5.4 Resale of Reacquired Property; Disposition of Proceeds. Upon the re-
vesting in City of title to the Property as provided in Section 5.3 of this Agreement,
13
City shall, pursuant to its responsibility under law, use its best efforts, to resell the
Property or part thereof as soon and in such manner as City shall find to a qualified
and responsible party or parties (as determined by City in its sole discretion) who
will assume the obligation of making or completing the Project or such other
improvements in their stead as shall be satisfactory to City.
5.4 No Remed Exclusive. No remedy herein conferred upon or reserved to City
is intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Agreement or now or hereafter existing at law or in equity
or by statute. No delay or omission to exercise any right or power accruing upon
any default shall impair any such right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time to time and as
often as may be deemed expedient.
5.5 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such
waiver shall be limited to the particular breach so waived and shall not be deemed
to waive any other concurrent, previous or subsequent breach hereunder.
5.6 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in
equity, including an action for declaratory relief or arbitration, is brought to enforce
or interpret the provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs of litigation from the other party. Such
fees and costs of litigation may be set by the court in the trial of such action or by
the arbitrator, as the case may be, or may be enforced in a separate action brought
for that purpose. Such fees and costs of litigation shall be in addition to any other
relief that may be awarded.
5.7 Remedies on Default by City. If City defaults in the performance of this
Agreement, Developer may take any action, including legal, equitable or
administrative action that may appear necessary or desirable to collect any
payments due under this Agreement, to recover expenses of Developer, or to
enforce performance and observance of any obligation, agreement, or covenant of
City under this Agreement. Developer may suspend their performance under this
Agreement until they receive assurances from City, deemed adequate by
Developer, that City will cure its default and continue its performance under this
Agreement.
SECTION 6. GENERAL TERMS AND PROVISIONS
6.1 Notices and Demands. Whenever this Agreement requires or permits any
notice or written request by one party to another, it shall be deemed to have been
properly given if and when delivered in person or three (3) business days after
14
having been deposited in any U.S.'Postal Service and sent by registered or certified
mail, postage prepaid, addressed as follows:
If to Developer: Doug Horsfall, President
Horsfall, Inc.
6167 Forest Hills Dr.
Asbury, Iowa 52002
If to City: City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
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.
6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of City and Developer and their respective successors and assigns.
6.3 Termination Date. This Agreement and the rights and obligations of the
parties hereunder shall terminate on 2018 (the Termination
Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be
transmitted between them by facsimile machine. The parties intend that the
faxed signatures constitute original signatures and that a faxed Agreement
containing the signatures (original or faxed) of all the parties is binding on the
parties.
6.5 Memorandum of Development Agreement. Developer shall promptly record
a Memorandum of Development Agreement in the form attached hereto as
Exhibit D in the office of the Recorder of Dubuque County, Iowa. Developer
shall pay the costs for so recording.
IN WITNESS WHEREOF, City has caused this Agreement to be duly
executed in its name and behalf by its Mayor and attested to by its City Clerk and
Developer has caused this Agreement to be duly executed on or as of the first
above written.
CITY OF DUBUQUE, IOWA Roy D. Buol, Mayor
By:
By:
15
Jeanne Schneider, City Clerk
HORSFALL, INC.
By:
Doug Horsfall, President
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR
VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
1. All policies of insurance required hereunder shall be with an insurer authorized to do business in
Iowa. All insurers shall have a rating of A or better in the current A.M. Best Rating Guide.
2. All policies of insurance shall be endorsed to provide a thirty (30) day advance notice of
cancellation to the City of Dubuque, except for 10 day notice for non-payment, if cancellation is
prior to the expiration date. This endorsement supersedes the standard cancellation statement
on the Certificate of Insurance.
3. Developer shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the
coverage required in Paragraph 6 below. Such certificates shall include copies of the following
policy endorsements:
a) Commercial General Liability policy is primary and non-contributing.
b) Commercial General Liability additional insured endorsement.
c) Governmental Immunity Endorsements.
4. Each certificate shall be submitted to the contracting department of the City of Dubuque.
5. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the
City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a
material breach of this agreement.
6. Developer shall be required to carry the following minimum coverage/limits or greater if required
by law or other legal agreement:
a) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000
Products-Completed Operations Aggregate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence Limit $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
This coverage shall be written on an occurrence, not a claims made form. Form CG 25 04 03 97
"Designated Location (s) General Aggregate Limit" shall be included. All deviations or exclusions
from the standard ISO commercial general liability form CG 0001, or Business Owners form BP
0002, shall be clearly identified.
16
INSURANCE SCHEDULE A (Continued)
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR
VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
Governmental Immunity Endorsement identical or equivalent to form attached.
Additional Insured Requirement:
The City of Dubuque, including all its elected and appointed officials, all its employees and
volunteers, all its boards, commissions and/or authorities and their board members,
employees and volunteers shall be named as an additional insured on General Liability
Policies using ISO endorsement CG 20 26 0704 "Additional Insured -Designated Person or
Organization," or it's equivalent. -See Specimen
b) WORKERS' COMPENSATION 8~ EMPLOYERS LIABILITY
Statutory for Coverage A
Employers Liability:
Each Accident
Each Employee -Disease
Policy Limit -Disease
c) UMBRELLA EXCESS LIABILITY
LIQUOR OR DRAM SHOP LIABILITY
Coverage to be determined on a case by case basis by Finance Director.
Completion Checklist
^ Certificate of Liability Insurance (2 pages)
^ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages)
^ Additional Insured 20 26 07 04
^ Governmental Immunities Endorsement
$100,000
$100,000
$500,000
17
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees
and states that the purchase of this policy and the including of the City of
Dubuque, Iowa as an Additional Insured does not waive any of the defenses of
governmental immunity available to the City of Dubuque, Iowa under Code of
Iowa Section 670.4 as it is now exists and as it may be amended from time to
time.
2. Claims Coverage. The insurance carrier further agrees that this policy of
insurance shall cover only those claims not subject to the defense of
governmental-immunity under the Code of Iowa Section 670.4 as it now exists
and as it may be amended from time to time. Those claims not subject to Code
of Iowa Section 670.4 shall be covered by the terms and conditions of this
insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be
responsible for asserting any defense of governmental immunity, and may do so
at any time and shall do so upon the timely written request of the insurance
carrier.
4. Non-Denial of Coverage. The insurance carrier shall not deny coverage under
this policy and the insurance carrier shall not deny any of the rights and benefits
accruing to the City of Dubuque, Iowa under this policy for reasons of
governmental immunity unless and until a court of competent jurisdiction has
ruled in favor of the defense(s) of governmental immunity asserted by the City of
Dubuque, Iowa.
No Other Change in Policy. The above preservation of governmental immunities
shall not otherwise change or alter the coverage available under the policy.
SPECIMEN
18
P~L#CY NUMI3F'R GQMf116RCifU,. {aENERAI_ IJABILITY
Cl3 28 46 47 (14
TH3S ENDQR.SEMENT CHANGES THE Pfl1.ICY, PLEASE READ IT CAREFULLY.
ADDITIQNAL IfV~UREa - pESi1CMATEE#
P'ERSQN QR i~F~GA-PJIZATIC-N
This e+ndorsemerrt modifies irta~urance provided undnt iha toil~ning~
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19
d~~~'1~„ CERTIFICATE QF LIA-BIL17Y INSUF~AN~CE _..___
a.FS Me+on~rrrl
oz~z#,,z~,s
v1:s~111Cex (5b3a5$6-0272 FA1[ (563}556-44L5
~~~~ lMGEPII'Y
] I NFt l .40P3RE53 T111$ CERTIFIIGATE IS I63UEU A5 R NMTTER OF IWEDRMATK7N
ONLY ANO CUFF MO RIGHTS UPOhI THB CERTIFICAT@
A.L,TER THE COVER ~~ AFFDF~Eb BY~1IiE A~UC~a fl~LOW,
EtIY, ]IAIE, ZIP CODE __--
INSURERS ArT4RDING CI3YEMOE
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Str~snt Addre55 res..nl-Te s ___.
City, Scare, 71p Cade __ .--
rr. i 1 ,
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THE G+(5111:IP5 OF 11+~311P.ANi:JE L1'a.lEj 3£LOP~ I A'rL DC~N IiSUED FCT THE (NFj41FFD H4NEU 15tlC.Xab F{.'4E IH_ !a7LICY utKIUU IFiti#f:751 tlz. ACiI V(II ^I~ (AM1XN'
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CITY Qf OUBU01iE I5 LISTfO AS AY Al1diTIOINAL INSURED ON GENERAL LIABILITY P'lll IG'ltS uSIINt ISL] EiJD~tSE-
FORR CG i0 Zfi 07 04 "ADffiTTONN. 1NSUkEO-DESIC~fATEd PERSflN OR ORGAYIZA~TIgI+" f1R Ii`S EQKIIVIiANi.
RAL LIABILITY POLICY I5 PRIMARY AMd NON-~ONTRIBUTIhG. FUNM CG Z5 fl4 C!3 97 "CIESICMATED LOCIIII4Y~"
RAL LIABILITY AG~,REGATE LINZT SHALL BE INCLUDED. GD4ERl+FIENTAI. TMMLINI T iE_5 Et~x]itSE-IENT IS INCLUDED.
POLIICIES SHALL UE EKIORSFn rlr F'I[iY,+iD£ 30 DAY ADVANCE NOTICE Of CANCEl.LA7`IUN TO CITY OF DUBUQUE
'E
9NfJ4.LD 1t1Y4F TNEA@3f4lE l3ESCq@ED PfR)GIfS R" exycn.4ro m uue me
EXPIRATIOlJ BATE THERT?DF, THE 1861:IN& NSUR3t iMl.1. ~11`~i~l'~I Y.W.
QTY 9F OUBUWE .:;~' hJtYE YiFrtTEN 7101rF>=tiff T+E CEa-ICraaTr tln rJrre xarrraro rw_~crr,
QTY MALL I~IWmli7~l1>~16[IiMS1tlYi1L}t%iX1t
30 W. 13TH STR[ET _
WIlUf2Ut, lA 2UDI xmnr~eceerncer+ranre
asa~c+ zs E~na~aoaT
d?ACORU ODRPORATIO#I 1986
20
IMRORTANT
I~ ihC cXYtif~G.7te hAl4~e Igo an RaU-1 it»~L 13V8t~ftEC~. 7kra truli~:yfi~s~ n>n~ ~ ee,~9u~seit. A staiarnenE
Ufr Ills S:wfL~TiC7l6 ¢fi~5 npl COfR27 I1~h75 !0 the G431"11fIGaLC ItrflriGr in lirri i~f ~an~i r.+uktY:teriier~l~s}.
N SUBR4GATIS3M I~ ti':ANED, ~bfect w ttr~a 6~rria arr~i cvrrdiki~rr~ ~f Ili k~c,lia,T, ~i~Iair~ pdicles may
require ;~i ~rX1rr~nt. ~ staten-ecet on this cdrtilM:z~n +kirY ru;1 i;tei[r.~ ~iylds Ic Itrr. txililitixla
hdddt in Ii@tb of gtMt endr~rsemFni{s).
DffiCLA1MIER
the Ce~.itu_atr Uf ifls~uance fln the rpy+erse aide got ttr s fxm dues real tz~rskiluir: a c.ord+r~# ls-l•.~K~~
the wsui-rg insutr3tist, augrCxLCd r8preserrt~ive or prodrxxr, and tFie cr~rlificaus liv~lr; ,real ,h.+~ it
atlrrrratrvely rar ncrgd.iwr~iy art!; Extend or a6fer Itte co~rerage af(ordett txir 4ia pulir:irg lisir. f (lea:~ru~i
SPECIMEN
ACgRf7 2b I2~J@1A~M
21
~~rucv yu+nQEra:
G{?MMERdrIAL GENERAL LIA,BILJTY
CCi 25 i'!4 U3 8T
THIS ENi~t7RSEM~NT CHANGES 7H~ POLICY. PLEASE READ R 1rAREFUI_LY,
DESIGNATECi LQCATIQhI{}
GENERAL AGGREG~4-TE LIMIT
This e~nrlursar-iant madifl~r ir~srrr:3nr.P pmvirtr,A utx~cx une fcNaung:
COMh1ERCIAI GENERAL LI.4RIt IT`Y CC~VE~E PftiF.T
SGHEDUtg
Oeslgrtat~d Lotati~rr{a}: _ ..._t
I If no C~`;hr, 8ppeara atvrve. it#ormaticn n:s7ulrecl CO complete this enrdnrsement wit ha. r~hrn++ri in t#xe Eleclsra#ions
gas aaptcah9e to the en~cars~en~rk. }
A Ftar all sums r~hich the ir~u-ed 6er~7r:.y I~yblhr
~bligaic.c! Ira FAY as damages quaed tsy
"nccurrerces' ~uxleu t"dt7L'FRAG>~ A tSEGTIGN
tl. anal fio• all rrectirsl exFen3es mused b~ ac:c-
denls under C~V~#tACiE C iSEirTI OM I), whin
can br< .attribu6ed only to o{:eralians at a sirog`e
eiees~rvuttd "I®calion" sdiown in the Sc~:edu~ts
1. A sate De3&ig'ta~d Lcu;atiern General
f~gre~a$e Limit ap~l+es to each designated
'1oC2tiall', and lh9t imit ~ ~l`P) t4 me
Neritrurd cal the G~ntsral A~gragate Lim t
aharrn in the OeGlarat)or~s
2 Thr C~signsir=d Lacatitur C~rr2ra= /~g~$g~11B
t ir~al iy Urrr nrusl ~uc will pay for ttm sum of ell
davnagea under CC}'~CR+~GC 14, oxce~ d~rrr
ages because of "bodily inj4r~' Ot "ptcrpurt}
d2rnage' inolarJed in the'praducts-completed
operations harart+T, arxi fiver rnr?dical exFersea
under G(3VER4GE G reSlardless ofi Gte r~um-
t;et af:
a, !nsu~~s.
b, Claims mede gr"~uil~' beast°I, ur
c, taersonw cx argartaa-iona making claims
tx• t)ri~r~telg ''suits".
a. any Ray~er•Rs made w.lnd~r CtTJEft~4GE A
br damage ar unrJpr t=t7+~FR4GE G iar
mpyir~l ex~e'ises sh2rll reduce tt-e Uesrg-
nated Locetlon G~~ael A+aLsrergate Lirnil fpr
iha: deaignsrGad `location". ::~a~Ch pavmcn+s
SA1"ell ntst f6dute the Genersi fgcrr:gafia tnnit
ahr•.wn in tlsP f7wr:taralir~ns nrr mall thE+y re-
duce any other faesipnatsd Lcx:a°ian General
I~ggregata Limit fdr airy 7~er desi7nated
'lcoceriari Shrs~rn in Ihs Stheclale aboue.
+~. The 4imitra str~,vn in+the C~eeJal~aans {or Fuach
Qc~urr€v~ Fire C~rsnrag~ rand Medo~,zrl Lx-
perse continue to apply- it~aav2r, Instead of
heiryg subje>xt to the C3ensral figgr€~gate Limit
Shth~vf in ttxg L7rr:6aratign5~, SIfiCM i1rYrRS Wtl b9
buble~Y t~ thn uplrl'x:atsfa i7esigns~ieti t ncasl~n
Ganerel,f5~~regrie I ienil
22
~.t=ca III auetis wtiicl~ #h~ in~,rrs:cl I~ea~nes IegaNy
obligated hr pay 85 damages caused by
`trrree:urrenc2e" under CQVERAGE A ?SEC:71[lPt
I), and let all medical expyrw.[*5 r'ai~arxl by ars:i~
d;rrt#s vn~ier Ct1'JERkC,E C tSEGTIaN It. whCh
cannot be xtfritaul~ri anly to cfperatioz~6 at a sln-
qle desi3nated 9acatittt` shonvn in the ~ftedu~
atnva.
1. ,A4+ty ~tyrrerri9 mrida under Ct]r+JERAGE A
for damages or .in4er GOV~RAGE C =ar
ittecii~' expenses ~haU reduo~E the ar»t~zrnt
ax~allsble under tits GFli~ti31 PtBgrb~ete Llmlt
ar the Prarlus s-Gcx•I~I~ls~l ir7p~ratrC~: A9-
gregake Limit w~ltiie~teuwr is appti :a3tla; end
Z ~t.efi peymerts shalt not r~iur.,r~ arty Deslgnat,~
L.nrarion Cxxtaral Agyrayate Litriil.
C_ Whcn ~zaverz+ge lur {inailily ~9rc3iix~ tsui rf the
'/7tQdUC'IM Completed optir~lione herd' ie Pro`
vieed, any payments for damages 15ecfiu58 tsf
'hodi~y injury` ar "prcpcxty dama~le" nclu~d in
the `~radvets-canpleGe~C Qaerauans hazard" will
reduce the Pr4ducJs-Gomple4r3d ~pgratinr>` ~i-
gregafe Limi[ aria not rt3duoe the General >~.
gt+dgate u1ni1 nor me Liesa~natad Lrxatt7n C"~e+n-
era Aggregate Limit.
t}. For tho pvlrposes of This endor~tnent. dte Uefi-
nttlons ~ecT~r~n is atr-~xt~ hY the addifion of
the following definfi,ner:
'Lvaalion" means premises ~rvoly ng tF,e same
or c~nnec~ng Tats, or pr~ntiaes w-~se crrnr~c-
tion IS Irrte-rusted Gnl'/ by a 5raet radchray. wa_
#envayr or regf•t~cf-way of a railroad.
E. I he prOMl91rJn3 a< I units f7f I nsuran~ (~EC'I'IOPJ
tlt'I rr~t ptt-errrise modified 6y ihias end~rrsrxnczat
Shall ~~~nu~e tc apply as ~lipula6ed.
23
EXHIBIT B
LEGAL DESCRIPTION
The South Middle 1/5 of Out Lot 480 in the City of Dubuque, Iowa, according the
United States Commissioners Map thereof.
24
Prepared by: James A. OBrien 300 Main Street ,Suite 330, Dubuque IA 52001 563 583-4113
Return to: James A OBrien 300 Main Street ,Suite 330, Dubuque IA 52001 563 583-4113
Tax Statement to:
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, Iowa, a
municipal corporation of the State of Iowa (Grantor), in consideration of the Grantee
named below undertaking the obligations of the Developer under the Development
Agreement described below and the sum of and
no/100 Dollars ($ ) in hand paid, and other good and valuable
consideration, and pursuant to the authority of Chapter 403, Code of Iowa, does
hereby GRANT, SELL AND CONVEY unto
(Grantee),
the following described parcel(s) situated in the County of Dubuque, State of Iowa,
to wit (the Property):
This Deed is exempt from transfer tax pursuant to Iowa Code section
428A.2(6).
This Deed is given pursuant to the authority of Resolution No. of
the City Council of the City of Dubuque adopted the day of ,
20_, the terms and conditions thereof, if any, having been fulfilled.
This Deed is being delivered in fulfillment of Grantor's obligations under and
is subject to all the terms, provisions, covenants, conditions and restrictions
contained in that certain Development Agreement executed by Grantor and
Grantee herein, dated the day of 20_ (the Agreement), a
memorandum of which was recorded on the day of , 20_, in the
records of the Recorder of Dubuque County, Iowa, Instrument Number
Promptly after completion of the improvements in accordance with the
26
provisions of the Agreement, Grantor will furnish Grantee with a Certificate of
Completion in the form set forth in the Agreement. Such certification by Grantor
shall be, and the certification itself shall so state, a conclusive determination of
satisfaction and termination of the agreements and covenants of the Agreement
and of this Deed with respect to the obligation of Grantee, and its successors and
assigns, to construct improvements and the dates for the beginning and completion
thereof, it being the intention of the parties that upon the granting and filing of the
Certificate of Completion that all restrictions, re-vesting of title and reservations of
title contained in this Deed be forever released and terminated and that any
remaining obligations of Grantee pursuant to the Agreement shall be personal only.
All certifications provided for herein shall be in such form as will enable them
to be recorded with the County Recorder of Dubuque, Iowa. If Grantor shall refuse
or fail to provide any such certification in accordance with the provisions of the
Agreement and this Deed, Grantor shall, within twenty days after written request by
Grantee, provide Grantee with a written statement indicating in adequate detail in
what respects Grantee has failed to complete the improvements in accordance with
the provisions of the Agreement or is otherwise in default, and what measures or
acts will be necessary, in the opinion of Grantor, for Grantee to take or perform in
order to obtain such certification.
In the event that an Event of Default occurs under the Agreement and
Grantee herein shall fail to cure such default within the period and in the manner
stated in the Agreement, then Grantor shall have the right to re-enter and take
possession of the Property and to terminate and revest in Grantor the estate
conveyed by this Deed to Grantee, its assigns and successors in interest, in
accordance with the terms of the Agreement.
None of the provisions of the Agreement shall be deemed merged in,
affected or impaired by this Deed.
Grantor hereby covenants to warrant and defend the said premises against
the lawful claims of all persons whomsoever claiming by, through and under it.
Dated this of , 20_ at Dubuque, Iowa.
CITY OF DUBUQUE IOWA
Attest: By:
Roy D. Buol, Mayor
By:
Jeanne F. Schneider, City Clerk
27
STATE OF IOWA
COUNTY OF DUBUQUE
SS
On this day of , 20_, before me a Notary Public in
and for said County, personally appeared Roy D. Buol and Jeanne F. Schneider to
me personally known, who being duly sworn, did say that they are the Mayor and
City Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation,
created and existing under the laws of the State of Iowa, and that the seal affixed to
the foregoing instrument is the seal of said Municipal Corporation, and that said
instrument was signed and sealed on behalf of said Municipal Corporation by
authority and resolution of its City Council and said Mayor and City Clerk
acknowledged said instrument to be the free act and deed of said Municipal
Corporation by it voluntarily executed.
Notary Public in and for Dubuque County, Iowa
28
EXHIBIT D
MEMORANDUM OF DEVELOPMENT AGREEMENT
29
Prepared by: James A. OBrien 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: James A OBrien 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, Iowa, an
Iowa municipal corporation, of Dubuque, Iowa, and
was made regarding the following described premises:
The Development Agreement is dated for reference purposes the day
of 20_, and contains covenants, conditions, and restrictions
concerning the sale and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose
of constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the
terms and provisions of the Development Agreement shall prevail. A complete
counterpart of the Development Agreement, together with any amendments
thereto, is in the possession of the City of Dubuque and may be examined at its
offices as above provided.
Dated this day of , 20_.
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
By:
Jeanne F. Schneider, City Clerk
30
a
STATE OF IOWA
DUBUQUE COUNTY
ss:
On this day of , 20_, before me, a Notary Public in and for the
State of Iowa, in and for said county, personally appeared Roy D. Buol and Jeanne
F. Schneider, to me personally known, who being by me duly sworn did say that
they are the Mayor and City Clerk, respectively of the City of Dubuque, a Municipal
Corporation, created and existing under the laws of the State of Iowa, and that the
seal affixed to said instrument is the seal of said Municipal Corporation and that
said instrument was signed and sealed on behalf of said Municipal corporation by
authority and resolution of its City Council and said Mayor and City Clerk
acknowledged said instrument to be the free act and deed of said Municipal
Corporation by it voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA
DUBUQUE COUNTY
ss:
On this day of , 20_, before me, a Notary Public in and
for the State of Iowa, in and for said county, personally appeared
to me personally known, who being by me duly sworn did say that they are
the
and that said instrument was signed on behalf of said company by authority
of its members and that they acknowledged the execution of this instrument
to be the voluntary act and deed of said company by it voluntarily executed.
Notary Public, State of Iowa
31