Medline Industries, Inc._Amended & Restated Development Agreement Copyrighted
June 4, 2018
City of Dubuque Consent Items # 16.
ITEM TITLE: Medline Industries, Inc. -Amended & Restated
Development Agreement
SUMMARY: City Manager recommending approval of the Amended and
Restated Development Agreement and the Assignment,
Acceptance and Notice with Medline Industries, LLC
RESOLUTION Approving an Amended and Restated
DevelopmentAgreement between the Cityof Dubuque,
lowa and Medline Industries, LLC
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt
Resolution(s)
ATTACHMENTS:
Description Type
Medline Amended and Restated Development City Manager Memo
Agreement-NNM Memo
Staff Memo Staff Memo
Resolution Approving Amended and Restated Resolutions
Development Agreement
Amended and Restated Development Agreement Supporting Documentation
Assignment, Acceptance& Notice Supporting Documentation
05/21/2018 DevelopmentAgreement Supporting Documentation
THE CITY OF Dubuque
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Masterpiece on the Mississippi Z°°'�w'2
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TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Amended and Restated Development Agreement between the City of
Dubuque and Medline Industries, LLC
DATE: May 30, 2018
Senior Counsel Barry Lindahl recommends City Council approval of the Amended and
Restated Development Agreement and the Assignment, Acceptance and Notice with
Medline Industries, LLC
I concur with the recommendation and respectfully request Mayor and City Council
approval.
�� �� ���
Mic ael C. Van Milligen �� �
MCVM:jh
Attachment
cc: Crenna Brumwell, City Attorney
Teri Goodmann, Assistant City Manager
Cori Burbach, Assistant City Manager
Barry Lindahl, Senior Counsel
THE CTTY OF Dubuque
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2013 2017
BARRY A. LINDAHL, ESQ.
SENIOR COUNSEL
To: Michael C. Van Milligen
City Manager
Dare: May 29, 2018
Re: Amended and Restated Development Agreement Between the City of
Dubuque and Medline Industries, LLC
On May 21 , 2018, the City Council approved a Development Agreement between City of
Dubuque and Medline Industries, LLC providing for the sale of city real estate to Medline
for the construction of a new facility in Dubuque Industrial Center North Third Addition.
Medline has requested authority to assign the right to acquire title to the real estate to a
wholly-owned subsidiary. It is a common practice for companies to hold title to real estate
in the name of a subsidiary.
Attached is an Amended and Restated Development Agreement which authorizes the
assignment. In amended Section 1.2, the City agrees to convey good and marketable fee
simple title in the Property to Developer, "or its Designee." "Designee" means a
corporation, limited liability company or other entity, which will be a wholly-owned
subsidiary of Developer. References to "Developer" throughout the Amended and
Restated Development Agreement also include the "Designee" language, which is the
only change in the original Development Agreement.
Also attached is an Assignment, Acceptance and Notice, which assigns the right to
acquire title to MRE DIA, LLC, the wholly-owned subsidiary.
MRE DIA, LLC has also agreed to be bound by all of the terms and conditions of the
Amended and Restated Development Agreement. Medline Industries, LLC will continue
to be fully responsible for all of the terms and conditions of the original Development
Agreement.
I would request that the Amended and Restated Development Agreement and the
Assignment, Acceptance and Notice by submitted to the City Council for consideration
and approval.
OFFICE OF THE CITYATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563)583-4113/Fnx (563)583-1040/Ennni� balesq@cityofdubuque.org
BAL:tIs
Attachment
cc: Crenna Brumwell, City Attorney
Maurice Jones, Economic Development Director
Jill Connors, Project Coordinator
F:\Users�isteckle\Lindahl\Medline\MVM Amended&RestatedDA 052918.docx
2
Prepared by/Return to: Barry A. Lindahl, Senior Counsel, Suite 330, 300 Main Street, Dubuque IA 52001, 563 583-4113
RESOLUTION NO. 170-18
APPROVING AN AMENDED AND RESTATED DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF DUBUQUE, IOWA AND MEDLINE INDUSTRIES, LLC
Whereas, on May 21, 2018, the City Council approved a Development Agreement
between City of Dubuque (City) and Medline Industries, LLC (Medline) providing for the
sale of city real estate to Medline for the construction of a new facility in Dubuque
Industrial Center North Third Addition; and
Whereas, Medline has requested authority to assign the right to acquire title to the
real estate to a wholly-owned subsidiary; and
Whereas, the Amended and Restated Development Agreement attached hereto
authorizes such assignment; and
Whereas, the Assignment, Acceptance and Notice attached hereto, assigns the
right to acquire title to MRE DIA, LLC, the wholly-owned subsidiary; and
Whereas, MRE DIA, LLC has also agreed to be bound by all of the terms and
conditions of the Amended and Restated Development Agreement and Medline will
continueto be fully responsible for all of the terms and conditions of the original and
amended and restated Development Agreement; and
Whereas, the City Council finds that the Amended and Restated Development
Agreement and the Assignment, Acceptance and Notice should be approved.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The Amended and Restated Development Agreement and the
Assignment, Acceptance and Notice are hereby approved.
Section 2. The Mayor is authorized and directed to sign the Amended and
Restated Development Agreement and the Assignment, Acceptance and Notice on
behalf of the City of Dubuque.
Passed, approved and adopted this 4th day of .June, 2018.
ISJ
Roy D. Bu cJ Mayor
Attest:
Kevin Firnstahl, ity erk
F:\Users\tsteckle\Lindahl\Medline\Resolution_ApprovingAmended&Restated DA_052918.docx
Assignment, Acceptance and Notice
(Replacement Property Parked)
Closing File No.:
Property: Lot 1 of Dubuque Industrial Center North Third Addition in Dubuque, IA
NEXT1031 File No.: 18-1324-D
I. Assignment
Medline Industries, Inc., an Illinois corporation ("Assignor") and the City of Dubuque, Iowa ("Seller")
are parties to that certain Amended and Restated Development Agreement effective as of June _, 2018
(the "Agreement"). Assignor hereby transfers and assigns its right to take title to the Property at the
closing to MRE DIA, LLC, a Delaware limited liability company ("Assignee"). Notwithstanding such
assignment, Assignor shall remain bound by all the tetras and conditions of the Agreement.
AS SIGNOR:
Medline Industries, c
By: it<i 0-7 -4...)
Name: Dmitry Dukhan
Its: Vice President of Real Estate Operations
II. Acceptance:
Assignee hereby accepts the assignment of Assignor's right to take title to the Property at the closing and
agrees that it is bound by all of the terms and conditions of the Agreement and that such terms and
conditions shall survive the closing on the Development Property.
ASSIGNEE:
MRE DIA, LLC, a Delaware limited liability company
By: National Exchange Titleholder 1031 Co., an Arizona corporation
Its: Sole Member
III. Notice to Seller
By:
Name: Dana R. Sobrado
Its: Chief Executive Officer
Seller is hereby notified that Assignor has assigned its right to take title to the Property to Assignee at the
closing.
Receipt and Acknowledged:
City of Dubuque
By:
Name:
Title:
39694850
a
'1
Roy D. Ruol
Mayor
AMENDED AND RESTATED
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
MEDLINE INDUSTRIES, INC.
This Agreement, dated for reference purposes the 7day of June, 2018, by and
between the City of Dubuque, Iowa, a municipality (City), established pursuant to the Iowa
Code and acting under authorization of Iowa Code Chapter 403, as amended (Urban
Renewal Act), and Medline Industries, Inc., an Illinois corporation authorized to do
business in Iowa (Developer).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City has
undertaken an urban renewal project (the Project) to advance the community's ongoing
economic development efforts; and
WHEREAS, the Project is located within the Dubuque Industrial Center Economic
Development District (the 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 for the Dubuque Industrial Center Economic Development District,
approved by the City Council of City on May 2, 1988, and as subsequently amended
through and including the date hereof (the Urban Renewal Plan); and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of this
Agreement, attached hereto as Exhibit A, has been recorded among the land records in
the office of the Recorder of Dubuque County, Iowa; and
WHEREAS, Developer has determined that they require a new building to maintain
and expand their operations and employment in the Project Area; and
WHEREAS, Developer has entered into an agreement for the construction of a
new office building (the Facility); and
WHEREAS, the Facility will be the home office for a multistate business; and
WHEREAS, Developer has requested that City sell to Developer 20.47 acres of
which 20.47 acres are usable, legally described as Lot 1 of Dubuque Industrial Center
North Third Addition in the City of Dubuque, Iowa together with all easements, tenements,
hereditaments, and appurtenances belonging thereto (the Property) so that Developer
may develop the Property, located in the Project Area for the construction of the Facility
for use and occupancy with appurtenant uses which City has determined and represented
39669802v2
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to Developer is in accordance with the uses specified in the Urban Renewal Plan 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 Property consists of three separately identified parcels,
referred to herein and in Exhibit B-2 as Parcel A [comprising Area A-1 (building/parking),
Area A-2 (amenity space), and Area A-3 (drainage way)] and Parcel B (future parking
expansion). The aggregate purchase price for the Property (the Purchase Price) shall be
the sum of $2,456,400 ($120,000.00 per acre) with a total acquisition of 20.47 usable
acres, as follows:
Parcel A
Area A-1 14.71 usable acres $1 ,765,200
Area A-2 3.05 usable acres $366,000
Area A-3 1 .11 usable acres $133,200
Parcel B 1 .60 usable acres $192,000
which shall be due and payable by Developer in immediately available funds in favor of
City, on or before May 31 , 2018, 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, or its Designee (as defined below), subject only to
easements, restrictions, conditions and covenants of record as of the Closing 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. "Designee" means a corporation,
limited liability company or other entity, which will be a wholly-owned subsidiary of
Developer.
(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
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shall become the property of Developer when the Purchase Price is paid in full in
the aforesaid manner.
(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 Riqhts of Inspection, Testinq 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 agents 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, but not limited to,
inspecting, surveying, engineering, test boring, and performing 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 or its agents, or representatives upon the 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, etc. and to make such feasibility studies
and analyses as they consider 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:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse change in
the Property being conveyed or the possession, use or enjoyment thereof by
Developer, including, but not limited to, any action in condemnation, eminent
domain or public taking.
(2) No ordinance or hearing is now or before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies,
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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 in the Property.
(5) The Property has a permanent right of ingress or egress to a public roadway
for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings relating
to fire, building, zoning, air pollution, health violations or other matters that have
not been corrected. City has notified Developer in writing of any past notices,
orders, suits, judgments or other proceedings relating to fire, building, zoning, air
pollution or health violations as they relate to the Property of which it has actual
notice. The Property is in material compliance with all applicable zoning, fire,
building, and health statutes, ordinances, and regulations. The Property is
currently zoned PUD; the intended use of the Property as a corporate office is a
permitted use in such zoning classification.
(7) Payment has been made for all labor or materials that have been furnished
to the Property or will be made prior to the Closing Date so that no lien for labor
performed or materials furnished can be asserted against the Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not and
shall not result in any material breach of any terms or conditions of any mortgage,
bond, indenture, agreement, contract, license, or other instrument or obligation to
which City is a party or by which either the City or the Property being conveyed are
bound, nor shall the execution, delivery and performance of this Agreement violate
any statute, regulation, judgment, writ, injunction or decree of any court threatened
or entered in a proceeding or action in which City may be bound or to which either
City or the Property being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power and
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authority to execute, deliver and pertorm its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit C.
(11) The Property is free and clear of any occupants, and no party has a lease
to or other occupancy or contract right in the Property that shall in any way be
binding upon the Property and Developer.
(12) City represents and warrants that any fees or other compensation which
may be owed to a broker engaged directly or indirectly by City in connection with
the purchase and sale contemplated in this Agreement are the sole responsibility
and obligation of City and that City will indemnify Developer and hold Developer
harmless from any and all claims asserted by any broker engaged directly or
indirectly by City for any fees or other compensation related to the subject matter
of this Agreement.
(13) City shall exercise its best efforts to assist Developer in the development
process.
(14) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied the
Property, and to City's knowledge after reasonable investigation with respect to
the time before City owned or occupied the Property, no person or entity has
caused or permitted materials to be stored, deposited, treated, recycled, or
disposed of on, under or at the Property, which materials, if known to be present,
would require cleanup, removal or some other remedial action under
environmental laws.
(16) All city utilities necessary for the development and use of the Property as
an office facility adjoin the Property and Developer shall have the right to connect
to said utilities, subject to City's connection fees.
(17) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing Date
which representations and warranties shall continue and survive the Closing Date.
1 .5 Conditions to Closina. 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
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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 having obtained any and all necessary governmental approvals,
including without limitations approval of zoning, subdivision or platting which might
be necessary or desirable in connection with the sale, transfer and development
of the Property. Any conditions imposed as a part of the zoning, platting or
subdivision must be satisfactory to Developer, in its sole opinion. City shall
cooperate with Developer in attempting to obtain any such approvals and shall
execute any documents necessary for this purpose, provided that City shall bear
no expense in connection therewith. In connection therewith, the City agrees (a)
to review all of Developer's plans and specifications for the project and to either
reject or approve the same in a prompt and timely fashion; (b) to issue a written
notification to Developer, following City's approval of same, indicating that the City
has approved such plans and specifications, and that the same are in compliance
with the Urban Renewal Plan, this Agreement and any other applicable City or
affiliated agency requirements, with the understanding that Developer and its
lenders shall have the right to rely upon the same in proceeding with the project;
(c) to identify in writing within ten (10) working days of submission of said plans
and specifications, any and all permits, approvals and consents that are legally
required for the acquisition of the Property by Developer, and the construction, use
and occupancy of the project with the intent and understanding that Developer and
its lenders and attorneys will rely upon same in establishing their agreement and
time frames for construction, use and occupancy, lending on the project and
issuing legal opinions in connection therewith; and (d) to cooperate fully with
Developer to streamline and facilitate the obtaining of such permits, approvals and
consents.
(4) City, having given all required notices to or obtaining prior approval, consent
or permission of any federal, state, municipal or local governmental agency, body,
board or official to the sale of the Property; and consummation of the closing by
City shall be deemed a representation and warranty that it has obtained the same.
(5) Developer and City shall be in material compliance with all the terms and
provisions of this Agreement.
(6) Developer shall have furnished City with evidence, in a form satisfactory to
City (such as a letter of commitment from a bank or other lending institution), that
Developer has firm financial commitments in an amount sufficient, together with
equity commitments, to complete the Minimum Improvements (as defined herein)
in conformance with the Construction Plans (as defined herein), or City shall have
received such other evidence of Developer's financial ability as the reasonable
judgment of the City requires.
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(7) Developer shall have furnished City with evidence in a form as required by
Section 4.2 and satisfactory to City of Developer's full-time equivalent employees
(FTE) in Dubuque, lowa, as of January 1 , 2018.
(8) Receipt of an opinion of counsel to Developer in the form attached hereto
as Exhibit D.
(9) The parties agree that City will reserve unto itself a 25' wide permanent
sanitary sewer easement along the south and east sides of the Property for a
sanitary sewer main extension as shown on Exhibit B-1 .
(10) The parties agree that City will reserve unto itself a 50' wide permanent
storm water drainage easement along the west side of the Property for ownership
and maintenance of existing stormwater drainage swale as shown on Exhibit B-1 .
(11) The parties agree that City will reserve unto itself a temporary street right of
way easement at the northeast corner of the Property for ownership and
maintenance of the existing cul-de-sac pavement as shown on Exhibit B-1 .
(12) Developer shall have the right to terminate this Agreement at any time prior
to the consummation of the closing on the Closing Date if Developer determines
in its sole discretion that conditions necessary for the successful completion of the
Project contemplated herein have not been satisfied in Developer's sole and
unfettered discretion. Upon the giving of notice of termination by such terminating
party to the other parties to this Agreement, this Agreement shall be deemed null
and void.
1 .6 Closinq. 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 have been
satisfied or waived.
1 .7 Citv's Obliqations at Closinq. At or prior to the Closing Date, City shall:
(1) Deliver to Developer, or its Designee, City's duly recordable Special
Warranty Deed to the Property (in the form attached hereto as Exhibit E (Deed)
and appropriate resolutions of the City Council conveying to Developer, or its
Designee, 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.
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(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; Obliqations At Closinq. 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 Closinq 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.
(� The cost of recording the satisfaction of any existing mortgage and
any other document necessary to make title marketable.
(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.
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 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.
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SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. City acknowledges that Developer is building
the Facility, an office building, on Parcel A as shown on the Site Plan attached hereto as
Exhibit B-2. 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 Minimum Improvements), all as more particularly depicted and
described on the plans and specifications to be delivered to and approved by City as
contemplated in this Agreement. Developer hereby agrees that the Facility shall be not
less than one hundred twenty thousand (120,000) square feet of floor space along with
necessary site work as contemplated in this Agreement at an estimated cost of
approximately $18,400,000.
2.2 Plans for Construction of Minimum Improvements. Plans and specifications with
respect to the development of Parcel A and the construction of Minimum Improvements
thereon (the Construction Plans) shall be in conformity with the Urban Renewal Plan, this
Agreement, and all applicable state and local laws and regulations, including but not
limited to any Covenants, Conditions, Restrictions, Reservations, Easements, Liens and
Charges, recorded as Instrument No. 201 4-00001 1 47, in the records of Dubuque County,
lowa. Developer shall submit to City, for approval by City, plans, drawings, specifications,
and related documents with respect to the improvements to be constructed by Developer
on Parcel A. All work with respect to the Minimum Improvements shall be in substantial
conformity with the Construction Plans approved by City.
2.3 Timinq of Improvements.
(1) Developer hereby agrees that construction of Minimum Improvements on
Parcel A shall be commenced on or before July 1 , 2018, and shall be substantially
completed by December 31 , 2019. The time frames for the pertormance 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 labortroubles, unusual shortages of materials or labor,
unusually severe or prolonged bad weather, acts of God, fire or other casualty to
the Minimum Improvements, litigation commenced by third parties which, by
injunction or other similarjudicial 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 delays. The time for performance of such obligations shall be
extended only for the period of such delay.
(2) Developer acknowledges that the proposed amenity space on Area A-2 as
shown on Exhibit B-2 is not required by City Code, but the construction of the
proposed amenity space shall be substantially completed by December 31 , 2019.
Construction of the proposed amenity space shall be in conformity with the Urban
Renewal Plan, this Agreement, and all applicable state and local laws and
regulations. Developer shall submit to City, for approval by City, plans, drawings,
specifications, and related documents with respect to the proposed amenity space.
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All work with respect to the proposed amenity space shall be in substantial
conformity with the plans, drawings, specifications, and related documents with
respect to the proposed amenity space approved by City.
Developer acknowledges that Parcel B is being conveyed by City to Developer
solely for the purpose of facilitating the future expansion of the Facility being
constructed by Developer on Parcel A, and not for purposes of land speculation or
future re-sale by the Developer to other parties, and Developer agrees to hold and
use such Parcel B exclusively for such purpose. If Parcel B is not utilized by
Developer for such purposes and is not substantially developed with improvements
similar to the Minimum Improvements, which improvements shall consist of not
less than Thirty Thousand (30,000) square feet of floor space along with the
necessary site work, machinery and equipment at an estimated cost of at least
$4,500,000 within ten years from the Closing Date, Developer shall, within thirty
days of such date and without further notice from or demand by the City, re-pay to
City the Acquisition Grant paid by City to Developer under Section 3.1 for Parcel
B ($96,000).
2.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements to Parcel A, the City Manager shall furnish
Developer with an appropriate instrument so certifying. Such certification (the Certificate
of Completion) shall be in recordable form and shall be a conclusive determination of the
satisfaction and termination of the agreements and covenants in this Agreement and in
the Deed with respect to the obligations of Developer to construct the Minimum
Improvements to Parcel A and pay the portion of the Purchase Price applicable to Parcel
A. The Certificate of Completion, in the form attached hereto as Exhibit H, shall waive all
rights of re-vestment of title to Parcel A as provided in Section 5.3, and the Certificate of
Completion shall so state.
2.5 Developer's Lender's Cure Riqhts. The parties agree that if Developer shall fail to
complete the Minimum Improvements on Parcel A as required by this Agreement such
that re-vestment of title may occur (or such that the City would have the option of
exercising its re-vestment rights), then Developer's lender shall have the right, but not the
obligation, to complete such Minimum Improvements on Parcel A.
SECTION 3. CITY PARTICIPATION
3.1 Acquisition Grant to Developer. For and in consideration of Developer's
obligations hereunder to construct the Minimum Improvements, City agrees to make an
Acquisition Grant to Developer on the Closing Date in the following amount:
Area A-1 : $882,600 ($60,000 per acre x 14.71 usable acres)
Area A-2: $ 0
Area A-3: $66,600 ($60,000 per acre x 1 .11 usable acres)
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Parcel B: $96,000 ($60,000 per acre x 1 .60 usable acres)
The parties agree that the Acquisition Grant shall be payable in the form of a credit
favoring Developer at time of Closing with the effect of directly offsetting a portion of the
purchase price obligation of Developer.
3.2 Economic Development Grants.
(1) For and in consideration of Developer's obligations hereunder, and in
furtherance of the goals and objectives of the Urban Renewal Plan for the Project
Area and the Urban Renewal Law, City agrees, subject to Developer being and
remaining in compliance with the terms of this Agreement, to make twenty (20)
consecutive semi-annual payments (such payments being referred to collectively
as the Economic Development Grants) to Developer as follows:
November 1 , 2021 May 1 , 2022
November 1 , 2022 May 1 , 2023
November 1 , 2023 May 1 , 2024
November 1 , 2024 May 1 , 2025
November 1 , 2025 May 1 , 2026
November 1 , 2026 May 1 , 2027
November 1 , 2027 May 1 , 2028
November 1 , 2028 May 1 , 2029
November 1 , 2029 May 1 , 2030
November 1 , 2030 May 1 , 2031
pursuant to lowa Code Section 403.9 of the Urban Renewal Law in amounts equal
to the actual amount of tax increment revenues collected by City under lowa Code
Section 403.19 (without regard to any averaging that may otherwise be utilized
under lowa Code Section 403.19 and excluding any interest that may accrue
thereon prior to payment to Developer) during the preceding six-month period in
respect of the Property and Minimum Improvements constructed by Developer (the
Developer Tax Increments). The Developer Tax Increments shall not include (i)
any property taxes collected for the payment of bonds and interest of each taxing
district, (ii) any taxes for the regular and voter-approved physical plant and
equipment levy and instructional support levy, and (iii) any other portion required
to be excluded by lowa law, and thus such incremental taxes will not include all
amounts paid by Developer as regular property taxes.
(2) To fund the Economic Development Grants, City shall certify to the County
prior to December 1 of each year, commencing December 1 , 2020, its request for
the available Developer Tax Increments resulting from the assessments imposed
by the County as of January 1 of that year, to be collected by City as taxes are
paid during the following fiscal year and which shall thereafter be disbursed to
Developer on November 1 and May 1 of that fiscal year. (Example: if City so
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certifies by December 1 , 2020, the Economic Development Grants in respect
thereof would be paid to Developer on November 1 , 2021 and May 1 , 2022.)
(3) The Economic Development Grants shall be payable from and secured
solely and only by the Developer Tax Increments paid to City that, upon receipt,
shall be deposited and held in a special account created for such purpose and
designated as the "Medline TIF AccounY' of City. City hereby covenants and
agrees to maintain its TIF ordinance in force during the term and to apply the
incremental taxes collected in respect of the Property and Minimum Improvements
and allocated to the Medline TIF Account to pay the Economic Development
Grants, as and to the extent set forth in Section 3.2(1) hereof. The Economic
Development Grants shall not be payable in any manner by other tax increments
revenues or by general taxation or from any other City funds. City makes no
representation with respect to the amounts that may be paid to Developer as the
Economic Development Grants in any one year and under no circumstances shall
City in any manner be liable to Developer so long as City timely applies the
Developer Tax Increments actually collected and held in the Medline TIF Account
(regardless of the amounts thereo� to the payment of the Economic Development
Grants to Developer as and to the extent described in this Section.
(4) City shall be free to use any and all tax increment revenues collected in
respect of other properties within the Project Area, or any available Developer Tax
Increments resulting from the termination of the annual Economic Development
Grants under Section 3.2 hereof, for any purpose for which such tax increment
revenues may lawfully be used pursuant to the provisions of the Urban Renewal
Law, and City shall have no obligations to Developer with respect to the use
thereof.
3.3 Non-appropriation/Limited Source of Fundinq. Notwithstanding anything in this
Agreement to the contrary, the obligation of City to pay any installment of the Economic
Development Grant shall be an obligation limited to currently budgeted funds, and not a
general obligation or other indebtedness of City or a pledge of its full faith and credit under
the meaning of any constitutional or statutory debt limitation, and shall be subject in all
respects to the right of non-appropriation by the City Council as provided in this Section
3.3. City may exercise its right of non-appropriation as to the amount of the installments
to be paid during any fiscal year during the term of this Agreement without causing a
termination of this Agreement. The right of non-appropriation shall be exercised only by
resolution affirmatively declaring City's election to non-appropriate funds otherwise
required to be paid to Developer in the next fiscal year under this Agreement.
(1) In the event the City Council elects to not appropriate sufficient funds in the
budget for any future fiscal year for the payment in full of the installments on the
Economic Development Grant due and payable in that fiscal year, then: i) City shall
have no further obligation to Developer for the payment of all installments due in
the next fiscal year which cannot be paid with the funds then appropriated for that
purpose; and, ii) Developer shall be released from all further obligations under this
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Agreement during that same fiscal year.
(2) Each installment of the Economic Development Grant shall be paid by City
solely from funds appropriated for that purpose by the City Council from taxes
levied on the Property that are allocated to the special fund pursuant to lowa Code
(2013) § 403.19(2).
(3) The right of non-appropriation reserved to City in this Section 3.3 is intended
by the parties, and shall be construed at all times, so as to ensure that City's
obligation to pay future installments on the Economic Development Grants shall
not constitute a legal indebtedness of City within the meaning of any applicable
constitutional or statutory debt limitation prior to the adoption of a budget which
appropriates funds for the payment of that installment or amount. In the event that
any of the provisions of this Agreement are determined by a court of competent
jurisdiction to create, or result in the creation of, such a legal indebtedness of City,
the enforcement of the said provision shall be suspended, and the Agreement shall
at all times be construed and applied in such a manner as will preserve the
foregoing intent of the parties, and no event of default shall be deemed to have
occurred as a result thereof. If any provision of this Agreement or the application
thereof to any circumstance is so suspended, the suspension shall not affect other
provisions of this Agreement which can be given effect without the suspended
provision. To this end the provisions of this Agreement are severable.
SECTION 4. COVENANTS OF DEVELOPER
4.1 Job Creation.
(1) Developer shall create One Hundred Five (105) full-time equivalent (FTE)
employees in Dubuque, lowa prior to January 1 , 2023 and shall maintain those
jobs and the existing 481 FTE employees at the Facility during the Term of this
Agreement. It is agreed by the parties that Developer has 481 FTE employees in
Dubuque, lowa, as of January 1 , 2018. FTE employees shall be calculated by
adding full-time and part-time employees together using 2080 hours per year as
one FTE employee. In the event that the certificate provided to City under Section
4.2 hereof on January 1 , 2031 discloses that Developer does not as of that date
have at least 586 FTE employees as provided hereinabove, Developer, shall pay
to City, promptly upon written demand therefor, an amount equal to $1 ,783.62 per
job not created or maintained [$1 ,045,200 (amount of Section 3.1 Acquisition Grant
for Parcel A and Parcel B) divided by 586 FTE employees = $1 ,783.62].
(2) In addition to the payment required by subsection 4.1 (1), for the FTE
employee positions that Developer fails to create and maintain for any year during
the Term of this Agreement, the semi-annual Economic Development Grants for
such year under Section 3.2 shall be reduced by the percentage that the number
of such FTE employee positions bears to the total number of FTE employee
positions required to be created and maintained (586 FTE employees) by this
Section 4.1 . (For example, if Developer has 400 FTE employees on January 1 ,
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2023, the semi-annual Economic Development Grants would be 68.26°k (400/586
employees) of the Tax Increment Revenues received by City would be paid by
City).
(3) The foregoing payment and reduction of the semi-annual Economic
Development Grants shall be the City's sole remedies for the failure of Developer
to meet the job creation requirements of this Section 4.1 .
4.2 Certification. To assist City in monitoring the performance of Developer hereunder,
not later than January 1 , 2023, and again not laterthan January 1 of each year thereafter
during the term of this Agreement, a duly authorized officer of Developer shall certify to
City in a form acceptable to City (a) the number of FTE employees employed by
Developer at the Facility in Dubuque, lowa on the first day of each of the preceding 12
months, and (b) to the effect that such officer has re-examined the terms and provisions
of this Agreement and that at the date of such certificate, and during the preceding twelve
(12) months, Developer is not or was not in default in the fulfillment of any of the terms
and conditions of this Agreement and that no Event of Default (or event which, with the
lapse of time or the giving of notice, or both, would become an Event of Default) is
occurring or has occurred as of the date of such certificate or during such period, or if the
signer is aware of any such default, event or Event of Default, said officer shall disclose
in such statement the nature thereof, its period of existence and what action, if any, has
been taken or is proposed to be taken with respect thereto.
4.3 Books and Records. During the term of this Agreement, Developer shall keep at
all times proper books of record and account in which full, true and correct entries will be
made of all dealings and transactions of or in relation to the business and affairs of
Developer 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.
4.4 Real Propertv 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.
4.5 No Other Exemptions. During the term of this Agreement, Developer and, as
applicable, its Designee, agree not to apply for any state or local property tax exemptions
which are available with respect to the Development Property or the Minimum
Improvements located thereon that may now be, or hereafter become, available under
state law or city ordinance during the term of this Agreement, including those that arise
under lowa Code Chapters 404 and 427, as amended.
4.6 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all times
during the process of constructing the Minimum Improvements (and, from time to
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time at the request of City, furnish City with proof of insurance in the form of a
certificate of insurance for each insurance policy):
All risk builder's risk insurance, written on a Completed Value
Form in an amount equal to one hundred percent (100°k) of the
replacement value when construction is completed;
(2) Upon completion of construction of the Minimum Improvements and up to
the Termination Date, Developer shall maintain, or cause to be maintained, at its
cost and expense (and from time to time at the request of City shall furnish proof
of insurance in the form of a certificate of insurance) all-risk property insurance
against loss and/or damage to Minimum Improvements under an insurance policy
written in an amount not less than the full insurable replacement value of Minimum
Improvements. The term "replacement value" shall mean the actual replacement
cost of the Minimum Improvements (excluding foundation and excavation costs
and costs of underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be reasonably determined from time to time at the request of
City, but not more frequently than once every three (3) years.
(3) Developer shall notify City immediately in the case of damage exceeding
$500,000.00 in amount to, or destruction of, the Minimum Improvements or any
portion thereof resulting from fire or other casualty. Net proceeds of any such
insurance (Net Proceeds), shall be paid directly to Developer as its interests may
appear, and Developer shall forthwith repair, reconstruct and restore the Minimum
Improvements to substantially the same or an improved condition or value as they
existed prior to the event causing such damage and, to the extent necessary to
accomplish such repair, reconstruction and restoration, Developer shall apply the
Net Proceeds of any insurance relating to such damage received by Developer to
the payment or reimbursement of the costs thereof, subject, however, to the terms
of any mortgage encumbering title to the Property (as its interests may appear).
Developer shall complete the repair, reconstruction and restoration of Minimum
Improvements whether or not the Net Proceeds of insurance received by
Developer for such Purposes are sufficient.
4.7 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, the
Minimum Improvements in good repair and working order, ordinary wear and tear
excepted, and from time to time shall make all necessary repairs, replacements, renewals
and additions. Nothing in this Agreement, however, shall be deemed to alter any
agreements between Developer or any other party including, without limitation, any
agreements between the parties regarding the care and maintenance of the Property.
4.8 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, gender identity, national origin, age or disability.
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4.9 Conflict of Interest. Developer agrees that no member, officer or employee of City,
or its designees or agents, nor any consultant or member of the governing body of City,
and no other public official of City who exercises or has exercised any functions or
responsibilities with respect to the project during his or her tenure, or who is in a position
to participate in a decision-making process or gain insider information with regard to the
project, shall have any interest, direct or indirect, in any contract or subcontract, or the
proceeds thereof, for work to be performed in connection with the project, or in any
activity, or benefit therefrom, which is part of 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.
4.10 Non-Transferabilitv. Until such time as the Minimum Improvements are complete
(as certified by City under Section 2.4) and Developer has complied with Section 2.3(3) ,
this Agreement may not be assigned by Developer nor may the Property be transferred
by Developer, or, as applicable, its Designee, to another party without the prior written
consent of City, which shall not be unreasonably withheld. Thereafter, Developer shall
have the right to assign this Agreement and upon assumption of the Agreement by the
assignee, Developer shall no longer be responsible for its obligations under this
Agreement.
4.11 Restrictions on Use. Developer agrees for itself, and its successors and assigns,
and every successor in interest to the Property or any part thereof that they, and their
respective successors and assigns, shall:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that use of
the Property as an office building is in full compliance with the Urban Renewal
Plan) (however, Developer shall not have any liability to City to the extent that a
successor in interest shall breach this covenant and City shall seek enforcement
of this covenant directly against the party in breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, gender identity, national origin, age or disability in the sale, lease,
rental, use or occupancy of the Property or any improvements erected or to be
erected thereon, or any part thereof (however, Developer shall not have any
liability to City to the extent that a successor in interest shall breach this covenant
and City shall seek enforcement of this covenant directly against the party in
breach of same).
4.12 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 agree to indemnify, defend and hold harmless the Indemnified
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Parties against, any loss or damage to property or any injury to or death of any
person occurring at or about or resulting from any defect in the Minimum
Improvements.
(2) Except for any gross negligence, willful misrepresentation or any willful or
wanton misconduct or any unlawful act of the Indemnified Parties, Developer
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, caused and 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, seroants or
employees or any other person who may be on, in or about the Minimum
Improvements due to any act of negligence of any person, other than any act of
negligence on the part of any such Indemnified Party or its officers, agents,
servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of City
contained herein shall be deemed to be the covenants, stipulations, promises,
agreements and obligations of City, and not of any governing body member,
officer, agent, servant or employee of City in their individual capacity thereof.
(5) The provisions of this Section shall survive the termination of this
Agreement.
4.13 Compliance with Laws. Developer shall comply with all laws, rules and regulations
relating to its businesses, other than laws, rules and regulations for which the failure to
comply with or the sanctions and penalties resulting therefrom, would not have a material
adverse effect on the business, property, operations, financial or otherwise, of Developer.
4.14. During the Term of this Agreement, neither Developer nor, as applicable, its
Designee, shall in any manner encumber the Property without the prior written consent
of City.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES
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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 Minimum Improvements and the
Property.
(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms, conditions
and limitations of this Agreement.
(3) Transfer of any interest by Developer of the Minimum Improvements in
violation of the provisions of this Agreement prior to the issuance of the final
Certificate of 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) Bankruptcy, insolvency or appointment of a receiver for Developer or, as
applicable, its Designee.
5.2 Remedies on Default bv 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) 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 pertormance under this Agreement until it receives
assurances from the defaulting party, deemed adequate by City, that Developer
will cure its default and continue its performance under this Agreement;
(2) 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 Acquisition Grant to
Developer, and City may take any action, including any legal action it deems
necessary, to recover such amounts from Developer;
(4) City may withhold the Certificate of Completion; or
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(5) 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 pertormance and observance of any obligation,
agreement, or covenant under this Agreement.
5.3 Re-vestinq Title in Citv Upon Happeninq of Event Subsequent to Convevance to
Developer. In the event that, subsequent to conveyance of the Property to Developer or,
as applicable, its Designee, by City, and prior to receipt by Developer of the Certificate of
Completion, but subject to the terms of the mortgage granted by Developer to secure a
loan obtained by Developer from a commercial lender or other financial institution to fund
the acquisition of Property or construction of the Minimum Improvements (First
Mortgage), 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 Minimum Improvements
thereon and to terminate (and re-vest in City pursuant to the provisions of this Section 5.3
subject only to any superior rights in any holder of the First Mortgage) the estate
conveyed by City to Developer or, as applicable, its Designee, it being the intent of this
provision, together with other provisions of this Agreement, that the conveyance of the
Property to Developer or, as applicable, its Designee, 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 or, as applicable, its Designee, and
failure on the part of Developer or, as applicable, its Designee, 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 and, as applicable, its Designee's, rights and interests
in and to Property conveyed to Developer and, as applicable, its Designee, and that such
title and all rights and interests of Developer and, as applicable, its Designee, and any
assigns or successors in interests of Developer, or, as applicable, its Designee, 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 and, as applicable, its
Designee, do not provide assurance to City, reasonably satisfactory to City, that the
events will be cured as soon as reasonably possible. Notwithstanding the foregoing,
however, City agrees to execute a Subordination Agreement in favor of Developer's or,
as applicable, its Designee's, first mortgage lender, in a form reasonably acceptable to
City and to such first mortgage lender.
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, City shall,
pursuant to its responsibility under law, use its best efforts, subject to any rights or
interests in such property or resale granted to any holder of a First Mortgage, to resell the
Property or part thereof as soon and in such manner as City shall find feasible and
consistent with the objectives of such law and of the Urban Renewal Plan to a qualified
and responsible party or parties (as determined by City in its sole discretion) who will
assume the obligation of making or completing the Minimum Improvements or such other
improvements in their stead as shall be satisfactory to City and in accordance with the
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uses specified for such the Property or part thereof in the Urban Renewal Plan. Subject
to any rights or interests in such property or proceeds granted to any holder of a First
Mortgage upon such resale of the Property the proceeds thereof shall be applied:
(1) First, to pay and discharge the First Mortgage;
(2) Second, to pay the principal and interest on mortgage(s) created on the
Property, or any portion thereof, or any improvements thereon, previously
acquiesced in by City pursuant to this Agreement. If more than one mortgage on
the Property, or any portion thereof, or any improvements thereon, has been
previously acquiesced in by City pursuant to this Agreement and insufficient
proceeds of the resale exist to pay the principal of, and interest on, each such
mortgage in full, then such proceeds of the resale as are available shall be used
to pay the principal of and interest on each such mortgage in their order of priority,
or by mutual agreement of all contending parties, including Developer, or by
operation of law;
(3) Third, to reimburse City for all allocable costs and expenses incurred by
City, including but not limited to salaries of personnel, in connection with the
recapture, management and resale of the Property or part thereof (but less any
income derived by City from the Property or part thereof in connection with such
management); any payments made or necessary to be made to discharge any
encumbrances or liens (except for mortgage(s) previously acquiesced in by the
City) existing on the Property or part thereof at the time of re-vesting of title thereto
in City or to discharge or prevent from attaching or being made any subsequent
encumbrances or liens due to obligations, default or acts of Developer or, as
applicable, its Designee and any of their respective successors or transferees
(except with respect to such mortgage(s)), any expenditures made or obligations
incurred with respect to the making or completion of the Minimum Improvements
or any part thereof on the Property or part thereof, and any amounts otherwise
owing to City (including water and sewer charges) by Developer or, as applicable,
its Designee and any of their respective successors or transferees; and
(4) Fourth, to reimburse Developer up to the amount equal to (1) the sum of the
Purchase Price paid to City for the Property and the cash actually invested by such
party in making any of the Minimum Improvements on the Property, less (2) any
gains or income withdrawn or made by Developer from this Agreement or the
Property.
5.5 No Remedv Exclusive. Except as otherwise provided in this Agreement, 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
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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.
5.6 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such waiver
shall be limited to the particular breach so waived and shall not be deemed to waive any
other concurrent, previous or subsequent breach hereunder.
5.7 Aqreement to Pav Attornevs' 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.
5.8 Remedies on Default by City. If City defaults in the pertormance of this Agreement,
Developer or, as applicable, its Designee, 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, as applicable, its
Designee, or to enforce performance and observance of any obligation, agreement, or
covenant of City underthis 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 having been deposited in
any U.S. Postal Service and sent by registered or certified mail, postage prepaid,
addressed as follows:
If to Developer: Eric Gerstein, Vice President Tax
Medline Industries, Inc.
Three Lakes Drive
Northfield, IL 60093
Phone: (847) 643-4603
With copy to: Alexander M. Lieberman
Medline Industries, Inc.
Three Lakes Drive
Northfield, IL 60093
Phone: (847) 949-3015
If to City: City Manager
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With copy to:
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: , (563) 589-4149
City Attorney
City Hall
50 W. 13th Street
Dubuque, IA 52001
Or at such other address with respect to any party as that party may, from time to time
designate in writing and forward to the other as provided in this Section.
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 June 1, 2031 (the Termination Date).
6.4. Execution By Facsimile or Email. The parties agree that this Agreement may be
transmitted among them by facsimile machine or email. The parties intend that the faxed
or scanned signatures constitute original signatures and that a faxed or scanned
Agreement containing the signatures (original, faxed, or scanned) of all the parties is
binding on the parties.
6.5 Memorandum of Development Agreement. City shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit F in the
office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for so
recording.
CITY OF DUBUQUE, IOWA
MEDLINE INDUSTRIES, INC
By: By: til
Roy. Buol, Mayor
By
Kevin •. Firnstai l,'
City Clerk
39669802V3
22
Dmitry Dukhan, Vice President of
Real Estate Opeartions
LIST OF EXHIBITS
Exhibit A Urban Renewal Plan
Exhibit B-1 Plat
Exhibit B-2 Site Plan
Exhibit C City Attorney Certificate
Exhibit D Opinion of Counsel to Developer
Exhibit E Deed
Exhibit F Memorandum of Development Agreement
Exhibit G City Certificate
Exhibit H Certificate of Completion
EASEMENT EXHIBITS
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EXHIBIT A
URBAN RENEWAL PLAN
On file at the Office of the City Clerk, City Hall, 50 West 13�h Street, Dubuque, lowa
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EXHIBIT B-1
PLAT
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SITE PLAN
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EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
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Barry A.Lindahl,Esq.
Dubuque THE CITY OF
City Attomey �
Suite 33Q Harbor View Place �T 7� �
300 Main Street All•IlmericaCiry U
Dubuque,Iowa 52001-6944
(563)583-4113 of&ce Masterpiece on the Mississippi
(563)583-1040 fax m
balesq@cityofdubuque.org zoo�•zoiz•zois
(DATE)
RE:
Dear �
I have acted as counsel for the City of Dubuque, lowa, in connection with the execution and delivery of
a certain Development Agreement between (Developer) and the City of Dubuque,
lowa (City) dated for reference purposes the _ day of , 20_
The City has duly obtained all necessary approvals and consents for its execution, delivery and
performance of this Agreement and has full power and authority to execute, deliver and perform its
obligations under this Agreement, and to the best of my knowledge, the representations of the City
Manager in his letter dated the _ day of , 20_, are correct.
Very sincerely,
Barry A. Lindahl, Esq.
Senior Counsel
BAL:tIs
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EXHIBIT D
OPINION OF DEVELOPER'S COUNSEL
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Mayor and City Councilmembers
City Hall
13�h and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, lowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for , (Developer) in connection with the
execution and delivery of a certain Development Agreement (Development Agreement) between
Developer and the City of Dubuque, lowa (City) dated for reference purposes the _ day of
, 20_
We have examined the original certified copy, or copies otherwise identified to our satisfaction
as being true copies, of the Development Agreement and such other documents and records as we
have deemed relevant and necessary as a basis for the opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries as we have
deemed appropriate, we are of the opinion that:
1 . Developer is a limited liability company organized and existing under the laws of the State
of and has full power and authority to execute, deliver and perform in full Development
Agreement. The Development Agreement has been duly and validly authorized, executed and
delivered by Developer and, assuming due authorization, execution and delivery by City, is in full force
and effect and is valid and legally binding instrument of Developer enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting creditors' rights generally.
2. The execution, delivery and performance by Developer of the Development Agreement
and the carrying out of the terms thereof, will not result in violation of any provision of, or in default
under, the articles of incorporation and bylaws of Developer, any indenture, mortgage, deed of trust,
indebtedness, agreement, judgment, decree, order, statute, rule, regulation or restriction to which
Developer is a party or by which Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened against or affecting
Developer in any court or before any arbitrator or before or by any governmental body in which there
is a reasonable possibility of an adverse decision which could materially adversely affect the business
(present or prospective), financial position or results of operations of Developer or which in any manner
raises any questions affecting the validity of the Agreement or the Developer's ability to perform
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Developer's obligations thereunder.
Very truly yours,
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EXHIBIT E
DEED
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Prepared by: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583-4113
Tax Statement to:
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, lowa, a municipal
corporation of the State of lowa (Grantor), in consideration of the Grantee named below undertaking
certain obligations of the Developer under the Development Agreement (Developer) as 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 lowa,
does hereby GRANT, SELL AND CONVEY unto , an lowa
limited liability company (Grantee), the following described parcel(s) situated in the County of Dubuque,
State of lowa, to wit (the Property):
This Deed is exempt from transfer tax pursuant to lowa 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 Developer 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, lowa, Instrument Number -_
Promptly after completion of the improvements in accordance with the provisions of the
Agreement, Grantor will furnish Developer and 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
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Agreement and ofthis Deed with respect to the obligation of Developer and Grantee, and its successors
and assigns, to construct improvements and the dates forthe 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 Developer and 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, lowa. 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 Developer or Grantee, provide Developer and Grantee with a written statement
indicating in adequate detail in what respects Developer or 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 Developer or 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 or Developer
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 re-
vest 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, lowa.
CITY OF DUBUQUE IOWA
By:
Roy D. Buol, Mayor
Attest:
By:
Kevin S. Firnstahl, City Clerk
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EXHIBIT F
MEMORANDUM OF DEVELOPMENT AGREEMENT
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Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, lowa, an lowa municipal
corporation, of Dubuque, lowa, 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:
Kevin S. Firnstahl, City Clerk
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STATE OF IOWA
. ss:
DUBUQUE COUNTY
On this _day of , 20 , before me, a Notary Public in and for the State of lowa, in and
for said county, personally appeared Roy D. Buol and Kevin S. Firnstahl, 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 lowa, 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 lowa
STATE OF IOWA
. ss:
DUBUQUE COUNTY
On this day of , 20_, before me, a Notary Public in and for the State of lowa,
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 lowa
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EXHIBIT G
CITY CERTIFICATE
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�UUU UQ City Managei's Office
THE CITY OF � City Hall
50 W est 13r�Street
D� T� � NI-GIIIeIicaCitV Dubuque,Iowa 52001-4864
U (563)589-4110 office
(563)589-4149 fax
� ct5ml�cityofdubuqueorg
Masterpiece on the Mississippi 2012
(DATE)
Dear �
I am the City Manager of the City of Dubuque, lowa and have acted in that capacity in connection with
the execution and delivery of a certain Development Agreement between
(Developer) and the City of Dubuque, lowa (City) dated for reference purposes the _ day of
, 20_
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) There is no action, suit or proceeding pending, or to the best of City's knowledge,
threatened against City which might result in any adverse change in the Property being conveyed
or the possession, use or enjoyment thereof by Developer, including, but not limited to, any
action in condemnation, eminent domain or public taking.
(2) No ordinance or hearing is now or before any local governmental body that either
contemplates or authorizes any public improvements or special tax levies, the cost of which may
be assessed against the Property. To the best of City's knowledge, there are no plans or efforts
by any government agency to widen, modify, or re-align any street or highway providing access
to the Property and there are no pending or intended public improvements or special
assessments affecting the Property which will result in any charge or lien be levied or assessed
against the Property.
(3) All leases, contracts, licenses, and permits between City and third parties in connection
with the maintenance, use, and operation of the Property have been provided to Developer and
City has provided true and correct copies of all such documents to Developer.
(4) City has good and marketable fee simple title interest in the Property.
(5) The Property has a permanent right of ingress or egress to a public roadway for the use
and enjoyment of the Property.
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(6) There are no notices, orders, suits, judgments or other proceedings relating to fire,
building, zoning, air pollution, health violations or other matters that have not been corrected.
City has notified Developer in writing of any past notices, orders, suits, judgments or other
proceedings relating to fire, building, zoning, air pollution or health violations as they relate to
the Property of which it has actual notice. The Property is in material compliance with all
applicable zoning, fire, building, and health statutes, ordinances, and regulations. The Property
is currently zoned PUD and Developer's intended use of the Property as a corporate
office/industrial facility is a permitted use in such zoning classification.
(7) Payment has been made for all labor or materials that have been furnished to the Property
orwill be made prior to the Closing Date so that no lien for labor performed or materials furnished
can be asserted against the Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens, security interests,
and encumbrances.
(9) The execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated by this Agreement do not and shall not result in any material breach
of any terms or conditions of any mortgage, bond, indenture, agreement, contract, license, or
other instrument or obligation to which City is a party or by which either the City or the Property
being conveyed are bound, nor shall the execution, delivery and performance of this Agreement
violate any statute, regulation, judgment, writ, injunction or decree of any court threatened or
entered in a proceeding or action in which City may be bound or to which either City or the
Property being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its execution, delivery
and performance of this Agreement, and has full power and authority to execute, deliver and
perform its obligations under this Agreement. City's attorney shall issue a legal opinion to
Developer at time of closing confirming the representation contained herein, in the form attached
hereto as Exhibit C.
(11) The Property is free and clear of any occupants, and no party has a lease to or other
occupancy or contract right in the Property that shall in any way be binding upon the Property.
(12) City represents and warrants that any fees or other compensation which may be owed to
a broker engaged directly or indirectly by City in connection with the purchase and sale
contemplated in this Agreement are the sole responsibility and obligation of City and that City
will indemnify Developer and hold Developer harmless from any and all claims asserted by any
broker engaged directly or indirectly by City for any fees or other compensation related to the
subject matter of this Agreement.
(13) City shall exercise its best efforts to assist with Developer in the development process.
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(14) City shall exercise its best efforts to resolve any disputes arising during the development
process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied the Property, and to
City's knowledge after reasonable investigation with respect to the time before City owned or
occupied the Property, no person or entity has caused or permitted materials to be stored,
deposited, treated, recycled, or disposed of on, under or at the Property, which materials, if
known to be present, would require cleanup, removal or some other remedial action under
environmental laws.
(16) All city utilities necessary for the development and use of the Property as an industrial
manufacturing facility adjoin the Property and Developer shall have the right to connect to said
utilities, subject to City's connection fees.
(17) The representations and warranties contained in this article shall be correct in all respects
on and as of the Closing Date with the same force and effect as if such representations and
warranties had been made on and as of the Closing Date.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
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EXHIBIT H
CERTIFICATE OF COMPLETION
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Prepared by: Maurice Jones, Economic Development Director, 50 West 13'"Street, Dubuque, lowa 52001 (563) 589-4393
Return to: Kevin S. Firnstahl, City Clerk, 50 West 13'" Street, Dubuque, lowa 52001 (563) 589.4121
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, lowa, a municipal corporation (the "Grantor"), by a Special
Warranty Deed recorded on , 20 , as Document Number in the office of
the County Recorder of Dubuque County, State of lowa, has conveyed to
(the "Grantee"), in accordance with a Development
Agreement dated as of , 20_, (the "AgreemenY'), certain real property located within
the Dubuque Industrial Center Economic Development District of the Grantor and as more particularly
described as follows:
WHEREAS, said Deed incorporated and contained certain covenants and restrictions with
respect to the development of the Development Property, and obligated the Developer (as defined in
the Agreement) and the Grantee to construct certain Minimum Improvements (as defined therein) in
accordance with the Agreement; and
WHEREAS, the Developer and the Grantee have as of the present date performed said
covenants and conditions insofar as they relate to the construction of the Minimum Improvements, in a
manner deemed sufficient by the Grantor to permit the execution and recording of this certification.
NOW, THEREFORE, pursuant to Section of the Agreement, this is to certify that all
agreements and covenants of the Deed and the Agreement with respect to the obligations of the
Developer and the Grantee, and their respective successors and assigns, to construct the Minimum
Improvements on the Development Property have been completed and pertormed by the Developer
and the Grantee to the satisfaction of the Grantor and such agreements and covenants are hereby
terminated.
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The County Recorder of Dubuque County is hereby authorized to accept for recording and to record
the filing of this instrument, to be a conclusive determination, except as noted above, of the satisfactory
termination of the agreements and covenants of said Deed and the Agreement which would result in a
forfeiture by the Developer or the Grantee and right of the Grantor to re-enter and take possession of
the Development Property as set forth in said Deed and the Agreement, and that said Deed and the
Agreement shall otherwise remain in full force and effect.
CITY OF DUBUQUE, IOWA
By:
Michael C. Van Milligen
City Manager
STATE OF IOWA )
) SS
COUNTY OFDUBUQUE )
On this day of , 20 , before me a Notary Public in and for said County,
personally appeared Michael C. Van Milligen, to me personally known, who being duly sworn, did say
that he is the City Manager of the City of Dubuque, lowa, a Municipal Corporation, created and existing
under the laws of the laws of the State of lowa, and acknowledged said instrument to be the free act
and deed of said Municipal Corporation by him voluntarily executed.
Notary Public in and for
Dubuque County, lowa
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39669802v2
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Assignment,Acceptance and Notice
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Closing File No.:
Property: Lot 1 of Dubuque Industrial Center North Third Addition in Dubuque,IA
NEXT1031 File No.:
L Assignment
Medline Industries, Inc., an Illinois corporation("Assignor'� and the City of Dubuque,Iowa ("Seller'�
are parties to that certain Amended and Restated Development Agreement effective as of June , 2018
(the"AgreemenY�. Assignor hereby transfers and assigns its right to take title to the Property at the
closing to MRE DIA,LLC, a Delaware limited liability company("Assignee'�. Notwithstanding such
assignment, Assignor shall remain bound by all the terxns and conditions of the Agreement.
ASSIGNOR:
Medline Industries,Inc.
By:
Name: Dmitry Dukhan
Its: Vice President of Real Estate Operations
IL Acceptance:
Assignee hereby accepts the assignxnent of Assignor's right to take title to the Property at the closing and
agrees that it is bound by all of the terms and conditions of the Agreement and that such terms and
conditions shall survive the closing on the Development Property.
ASSIGNEE:
MRE DIA,LLC, a Delaware limited liability company
By: National Exchange Titleholder 1031 Co., an Arizona corporation
Its: Sole Member
By:
Name: Dana R. Sobrado
Its: Chief Executive Officer
IIL Notice to Seller
Seller is hereby notified that Assignor has assigned its right to take title to the Property to Assignee at the
closing.
Receipt and Acknowledged:
City of Dubuque,Iowa
By:
Name:
Title:
39694850
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DEVELOPMENT AGREEMENT �
� BY AND BETWEEN �
THE CITY OF DUBUQUE, IOWA
AND �
MEDLINE INDUSTRIES, INC. i�
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This Agreement, dated for reference purposes the �ay of ; , 2018, j�
by and between the City of Dubuque, lowa, a municipality City), establishe pursuant to ;
the lowa Code and acting under authorization of lowa Code Chapter 403, as amended
(Urban Renewal Act), and Medline Industries, Inc., an Illinois corporatiooi authorized to I,
do business in lowa (Developer). ;
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WITNESSETH: �i
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WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City has ;�
undertaken an urban renewal project (the Project) to advance the community's ongoing '�
economic development efforts; and ;
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WHEREAS, the Project is located within the Dubuque Industrial Center Economic ;
Development District (the Project Area); and '�
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WHEF2EAS, as of the date of this Agreement there has been prepared and i�
approved by City an Urban Renewal Plan for fhe Project Area consisting of the Urban 'i
Renewal Plan for the D�bugue Industrial Center Economic Development District, �
. approved by the City Council of City on May 2, 1988, and as subsequently amended il
through and including the date hereof(the Urban Renewal Plan); and �
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of this �
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Agreement, attached hereto as Exhibit A, has been recorded among the land records in j
the office of the Recorder of Dubuque County, lowa; and ;
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�/HER�A�, Developer has deterrnined that they require a new building to maintain i{
and �xp�nd their operations a�nd err�qloyment in the Proj�ct Area; and �
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WHEREAS, Developer has entered into an agreement for the construction of a °
new office building (the Facility); and
WHEREAS, the Facility will be the home office for a multistate business; and
WHEREAS, Developer has requested that City sell to Developer 20:47 acres of
which 20.47 acres are usable, legally described as Lot 1 of Dubuque Industrial Center
North Third Addition in the City of D.ubuque, lowa together with all easements, tenements,
hereditaments, and appurtenances belonging thereto (the Property) so that Developer
may develop the Property, located in the Project Area for the construction of the Facility
for use and occupancy with appurtenant uses which City has determined and represented
to Developer is in accordance with the uses specified in the Urban Renewal Plan and in
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accordance with thas Agreement; and
WHEREAS, City believes that the development of the Property pursuant to this n
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 i
undertaken and is being assisted.
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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: ;
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SECTION 1. CONVEYANCE OF PROPERTY TO D�EVELaPER � a�
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1.1 Purchase Price. The Property consists of three separately identified parcels, ;i
referred to herein and in Exhibit B-2 as Parcel A [comprising Area A-1 (building/parking), �i
Area A-2 (amenity space), and Area A-3 (drainage way)] and Parcel � (future parking j�
expansion). The aggregate purchase price for the Property(the Purchase Price) shall be ��
the sum of $2,456,400 ($120,000.00 per acre) with a total acquisition of 20.47 usable ;
acres, as follows: i;
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Parcel A �
Area A-1 14.71 usable acres $1,765,200 �I�,
Area A-2 3.05 usable acres $366,000 ��
Area A-3 1 .11 usable acres $133,200 y�
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Parcel B 1.60 usable acres $192,000 �
which shall be due and payable by Developer in immediately available funds in favor of �
City, on or before May 31, 2018, or on such other date as the parties may mutually agree 1
(the Closing Date). f+
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1.2 Title to Be Delivered. City agrees to conv�y g�od a�r�d rx�arketable fe� sinnple titl� �
in the Property to Developer subject only to easements, restrictions, conditions and �
covenants of record as of the Closing 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 i,
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 aforesaid manner.
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(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 I
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 j
exercise its best efforts to have such title objections removed or satisfied and shall j
advise Developer of intended action within ten (10) days of such action. If City 1,
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 i
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 I�
to use its best reasonable efforts to promptly satisfy any such objections. �;
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1.3 Riqhts of Inspection, Testinq and Review. Developer, its counsel, accountants, '
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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 agents and 'i
representatives shall also have the right to enter upon Property at any time after the P
execution and delivery hereof for any purpose whatsoever, including, but not limited to, ;i
inspecting, surveying, engineering, test boring, and perForming environmental tests, �;
provided that Developer shall hold City harmless and fully indemnify City against any �
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damage, claim, liability or cause of action arising from or caused by the actions of �;
Developer or its agents, or representatives upon the Property (except for any damage, I��
claim, liability or cause of action arising from conditions existing prior to any such entry �I
upon the Property), and shall have the further right to make such inquiries of '!
governmental agencies and utility cornpanies, etc. and to make such feasibility studies
and analyses as they consider appropriate.
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1.4 Repre�entation� and Warranties of Citv. In order to induce Developer to enter into I,
this Agreement and purchase the Property, Gity her�by r�pr�sent� and vvarrants to �
Developer that: h
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(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse change in
the Property being conveyed or the possession, use or enjoyment thereof by
Developer, including, but not limited to, any action in condemnation, eminent
domain or public taking.
(2) No ordinance or hearing is now or before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies,
the cost of which may be assessed against the Property. To the best af 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
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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 I�
in connection with the maintenance, use, and operation of the Property have been 1
provided to Developer and City has provided true and correct copies of all such ;
documents to Developer. �;;
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(4) City has good and marketable fee simple title interest in the Property. �
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(5) The Property has a permanent right of ingress or egress to a public roadway i;
for the use and enjoyment of the Property. �;
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(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 Deveioper in writing of any past notices, j;
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
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notice. The Property is in material compliance with all applicable zoning, fire,
building, and health statutes, ordinances, and regulations. The Property is
currently zoned PUD; the intended use of the Property as a corporate office is a ��,;
permitted use in such zoning classification. ��
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(7) Payment has been made for all labor or materials that have been furriished I;
to the Property or will be made prior to the Closing Date so that no lien for labor i
perFormed or materials furnished can be asserted against the Property. ;
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(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances. I
(9) The execution, delivery and performance of this Agreement and the ,
consummation of the transactions �ontemplatec� by this Agr�ement 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 obli ation to 'ry
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which City is a party or by which either the City or the Property being conveyed are �
bound, norshall the execution, delivery and perFormance of this Agreement violate
any statute, regulation, judgment, writ, injunction or decree of any court threatened
or entered in a proceeding or action in which City may be bound or to which either
City or the Property being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and perFormance of this Agreement, and has full power and
authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit C.
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(11) The Property is free and clear of any occupants, and no party has a lease �
to or other occupancy or contract right in the Property that shall in any way be ;
binding upon the Property and Developer. �
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(12) City represents and warrants that any fees or other compensation which ij
may be owed to a broker engaged directly or indirectly by City in connection with h
the purchase and sale contemplated in this Agreement are the sole responsibility i;
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. �'�
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(13) City shall exercise its best efforts to assist Developer in the development 'i
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process. ,I
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(14) City shall exercise its best efforts to resolve any disputes arising during the �;
development process in a reasonable and prornpt fashion. �
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(15) With respect to the period during which City has owned or occupied the il,
Property, and fo City's knowledge after reasonable investigation with respect to �
the time before City owned or occupied #he Property, no person or entity has I
caused or permitted materials to be stored, deposited, treated, recycled, or 'i;
disposed of on, under or at the Property, which materials, if known to be present,
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would require cleanup, removal or some other remedial action under �`
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� environmentallaws. � I�
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(16) All city utilities necessary for the development and use of the Property as �{
an office facility adjoin the Property and Developer shall have the right to connect
to said utilities, subject to City's connection fees. �
(17) The representations and warranties cor�tained in this ar�icle shall be correct ;
in all re�pe�t� on and as of the Closing Date with the same force and effec# as if ;
such representations and warranties had been made on and as of the Closing Date �
which representations and warranties shall continue and survive the Closing Date. �
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1.5 Conditions to Closinq. The closing of the transaction contemplated by this N
Agreement and all the obligations of Developer under this Agreement are subject to i
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.
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(2) Title to the Property shall be in the condition warranted in Section 1.4. �
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(3) Developer having obtained any and all necessary governmental approvals, ��
including without limitations approval of zoning, subdivision or platting vvhich might �
be necessary or desirable in connection with the sale, transfer and development �i
of the Property. Any conditions imposed as a part of the zoning, platting or �
subdivision must be satisfactory to Developer, in its sole opinion. City shall !;
cooperate with Developer in attempting to obtain any such approvals and shall �'
execute any documents necessary for this purpose, provided that City shall bear I'
no expense in connection therewith. In connection therewith, the City agrees (a) f
to review all of Developer.'s plans and specifications for the project and to either 'a
reject or approve the same in a prompt and timely fashion; (b) to issue a written '
notification to Developer, following City's approval of same, indicating that the City ji
has approved such plans and specifications, and that the same are in compliance f%
with the Urban Renewal Plan, this Agreement and any other applicable City or i1
affiliated agency requirements, with the understanding that Developer and its �
lenders shall have the right to rely upon the same in proceeding with the project; ;i
(c) to identify in writing within ten (10) working days of submission of said plans �I
and specifications, any and all permits, approvals and consents that are legally l
required for the acquisition of the Property by Developer, and the construction, use �
and occupancy of the project with the intent and understanding that Developer and '
its lenders and attorneys will rely upon same in establishing their agreement and c
time frames for construction, use and occupancy, lending on the project and �
issuing legal opinions in connection therewith; and (d) to cooperate fully with !�
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Developer to streamline and facilitate the obtaining of such permits, approvals and ii
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O y g given all required notices to or obtaining prior approval, consent �
or permission of any federal, state; municipal or iocal governmental agency, body, �
board or official to the sale of the Property; and consummation of the closing by ��
City shall be deemed a representation and warranty that it has obtained the same. ��
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(5) Developer �nd City �h�ll be in material com�liance with all the terrris and
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provisions of this Agreement. '
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(6) Developer shall have furnished City with evidence, in a form satisfactory to I
City (such as a letter of commitment from a bank or other lending institution), that
Developer has firm financial commitments in an amount sufficient, together with '
equity commitments, to compiete the Minimum Improvements (as defined herein) �
in conformance with the Construction Plans (as defined herein), or City shall have a
received such other evidence of Developer's financial ability as the reasonable �
judgment of the City requires.
(7) Developer shall have furnished Cit with evidence in a form as re uired b �
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Section 4.2 and satisfactory to City of Developer's full-time equivalent employees
(FTE) in Dubuque, lowa, as of January 1, 2018.
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li(8) Receipt of an opinion of counsel to Developer in the form attached hereto �
as Exhibit D. ,
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(9) The parties agree that City will reserve unto itself a 25' wide permanent �
sanitary sewer easement along the south and east sides of the Property for a �
sanitary sewer main extension as shown on Exhibit B-1. ;
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(10) The parties agree that City will reserve unto itsel# a 50' wide permanent �
storm water drainage easement along the west side of the Property for ownership
and maintenance of existing stormwater drainage swale as shown on Exhibit B-1. '
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(11) The parties agree that City will reserve unto itself a temporary street right of ,;
way easement at the northeast corner of the Property for ownership and !i
maintenance of the existing cul-de-sac pavement as shown on Exhibit B-1. i;
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(12) Developer shall have the right to terminate this Agreement at any time prior i
to the consummation of the closing on the Closing Date if Developer determines 'II
in its sole discretion that conditions necessary for the successful completion of the 'I+
Project contemplated herein have not been satisfied in Developer's sole and ��
unfettered.discretion. llpon the giving of notice of termination by such terminating i��
party to the other parties to this Agreement, this Agreement shall be deemed null j�
� and void. ��
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1.6 Closinq. The closing of the purchase and sale shall take place on the Closing �i
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 ii
agreement of the parties to this Agreement that the conditions of closing have been G
satisfied or waived. �
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1.7 City'� Obliqations at Closinq. At or prior to the Closing Date, City shall: i�
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(1) Deliver to Developer City's duly recordable Special Warranty Deed to the bi
Property (in the form attached hereto as Exhibit E (Deed) and appropriate ij
resolutions of the City Council 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
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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. D
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(3) Deliver to Developer such other documents as may be required by this
Agreement, all in a form satisfactory to Developer.
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1.8 Delivery of Purchase Price; Obliqations At Closinq. 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.
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1.9 Glosing Costsa The following costs and expenses shall be paid in connection with �
the closing:
(1) City shall pay: i
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(a) The transfer fee, if any, imposed on the conveyance. Ij
(b) A pro-rata portion of all taxes, if any, as provided �n Section 1.10. II
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(c) All special assessments, if any, whether levied, pending or ;
assessed. i
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(d) City's attorney's fees, if any. �
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(e) City's broker and/or real estate commissions and fees, if any. �
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(f) The cost of recording the satisfaction of any existing mortgage and ;i
any other document necessary to t�nake title marketable. ;!
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(2) Developer shall pay the following costs in connection with the closing: �
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(a) The recording fee necessary to record the Deed.
(b) Developer's attorney's fees. '
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(c) Developer s broker and/or real estafe commissions and fees, if any. �
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(d) A pro-rata portion of all taxes as provided in Section 1.10. ;
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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 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 Minimum Improvements. City acknowledges that Developer is building �
the Facility, an office building, on Parcel A as shown on the Site Plan attached hereto as
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Exhibit B-2. 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 Minimum Improvements), all as more particularly depicted and �
described on the plans and speafications to be delivered to and approved by City as �
contemplated in this Agreement. Developer hereby agrees that the .Facility shall be not �
less than one hundred twenty thousand (120,000) square feet of floor space along with ,�
necessary site work as contemplated in this Agreement at an estimated cost of ,,�
approximately $18,400,000. i;
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2.2 Plans for Construction of Minimum Improvements. Plans and specifications with ;
respect to the development of Parcel A and the construction of Minimum Improvements 3
thereon (the Construction Plans) shall be in conformity with the Urban Renewal Plan, this
Agreement, and all applicable state and local laws and regulations, including but not �
limited to any Covenants, Conditions, Restrictions, Reservations, Easements, Liens and '
Charges, recorded as Instrument No. 2014-00001147, in the records of Dubuque County, �
lowa. Developer shall submit to City, for app:roval by City, plans, drawings, specifications, �
and related documents with respect to the improvements to be constructed by Developer I�
on Parcel A. All work with respect to the Minimum Improvements shall be in substantial ;
conformity with the Construction Plans approved by City. {
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2.3 Timinq of Improvements: i
(1) Developer hereby agrees that construction of Minimum Improvements on
Parcel A shall be commenced on or before July 1, 2018, and shall be substantia9ly ;
completed by December 31, 2019. 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 i
the Minimum Improvements, litigation commenced by third parties which, by ';i
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 delays, The time for p�rforrriancP of s�ch obligations shall be �
extended only for the period of such delay. �
(2) Developer acknowledges that the proposed amenity space on Area A-2 as
shown on Exhibit B-2 is not required by City Code, but the construction of the
proposed amenity space shall be substantially completed by December 31, 2019. �
Construetion of the proposed amenity space shall be in conformity with the Urban
Renewal Plan, this Agreement, and� all applicable state and local laws and
regulations. Developer shall submit to City, for approval by City, plans, drawings,
specifications, and related documents with respect to the proposed amenity space. �
All work with respect to the proposed amenity space shall be in substantial
conformity with the plans, drawings, specifications, and related documents with
respect to the proposed amenity space approved by City.
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Developer acknowledges that Parcel B is being conveyed by City to Developer i1
solely for the purpose of facilitating the future expansion of the Facility being ��
constructed by Developer on Parcel A, and not for purposes of land speculation or ;;
future re-sale by the Developer to other parties, and Developer agrees to hold and ��
use such Parcel B exclusively for such purpose. If Parcel B is not utilized by ;;
Developer for such purposes and is not substantially developed with improvements �
similar to the Minimum Improvements, which improvements shall consist of not ;�
less than Thirty Thousand (30,000) square feet of floor space along with the ;�
necessary site work, machinery and equipment at an estimated cost of at least ;�
$4,500,000 within ten years from the Closing Date, Developer shall, within thirty ��
days of such date and without further notice from or demand by the City, re-pay to i
City the Acquisition Grant paid by City to Developer under Section 3.1 for Parcel i;
B ($96,000). `�
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2.4 Certificate of Completion. Promptly following the request of Developer upon I�
completion of the Minimum Irnprovements to Parcel A, the City Manager shall furnish i�
Developer with an appropriate instrument so certifying. Such certification (the Certificate I�
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of Completion) shall be in recordable form and shall be a conclusive determination of the �i
satisfaction and termination of the agreerr�ents and covenants in this Agreement and in I„
the Deed with respect to the obligations of Developer to construct the Minimum
Improvements to Parcel A and pay the portion of the Purchase Price applicable to Parcel ;
A. The Certificate of Completion, in the form attached hereto as Exhibit H, shall waive all �;
rights of re-vestment of title to Parcel A as provided in Section 5.3, and the Certificate of I;
Completion shall so state. �
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2.5 Developer's Lender's Cure Riqhts. The parties agree that if Developer shall fail to
complete the Minimum Improvements on Parcel A as required by this Agreement such ��
that re-vestment of title may occur (or such that the City would have the option of
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exercising its re-vestment rights), then Developer's lender shall have the right, but not the ;�
obligation, to complete such Minimum Irr�provements on Parcel A. �;
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�ECTIOfV 3. CIY1F PARTiCiPAI'iOfV �
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3.1 Acquisition Grant to Developer. For and in consideration of Developer's
obligations hereunder to construct the Minimum Improvements, City agrees to make an ;
Acquisition Grant to Developer on the Closing Date in the following amount: �
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Area A-1: $882,600 ($60,000 per acre x 14.71 usable acres) �
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Area A-2: $ 0 �
Area A-3: $66,600 ($60,000 per acre x 1.11 usable acres) �
Parcel B: $96,000 ($60,000 per acre x 1.60 usable acres) �
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The parties agree that the Acquisition Grant shall be payable in the form of a credit �
favoring Developer at time of Closing with the effect of directly offsetting a portion of the �
purchase price obligation of Developer. �
3.2 Economic Development Grants. '�
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(1) For and in consideration ,of Developer's obligations hereunder, and in �
furtherance of the goals and objectives of the Urban Renewal Plan for the Project �;
Area and the Urban Renewal Law, City agrees, subject to Developer being and �
remaining in compliance with the terms of this Agreement, to make twenty (20) h
consecutive semi-annual payments (such payments being referred to collectively i
as the Economic Development Grants) to Developer as follows:
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November 1, 2021 May 1, 2022 !
November 1, 2022 May 1, 2023 ;
November 1, 2023 May 1, 2024 1
November 1, 2024 May 1, 2025 1
November 1, 2025 May 1, 2026 ''
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November 1, 2026 May 1, 2027 �;
November 1, 2027 May 1, 2028 � I',
November 1, 2028 May 1, 2029 ;��
November 1, 2029 May 1, 2030 �
November 1, 2030 May 1, 2031 j
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pursuant to lowa Code Section 403.9 of the Urban Renewal Law in amounts equal �i.
to the actual amount of tax increment revenues collected by City under lowa Code '
Section 403.19 (without regard to any averaging that may otherwise be utilized ;
under lowa Code Section 403.19 and excluding any interest that may accrue ;
thereon prior fo payment to Developer) during the preceding six-month period in �
respect of the Property and Minimum Improverr�ents constructed by Developer(the k
Developer Tax Increments). The Developer Tax Increments shall not include (i) k
any property taxes collected for the payment of bonds and interest ofi each taxing ;
district, (ii) any taxes for the regular and voter-approvPd physica! plant an� G
equipment levy and instructional support levy, and (iii) any other portion required �
to be excluded by lowa law, and thus such incremental taxes will not include all
amounts paid by Developer as regular property taxes. �
(2) To fund the Economic Development Grants, City shall certify to the County
priorto December 1 of each year, commencing December 1, 2020, its request for
the available Developer Tax Increments resulting from the assessments imposed
by the County as of January 1 of that year, to be collected by City as taxes are
paid during the following fiscal year and which shall thereafter be disbursed to
Developer on November 1 and May 1 of that fiscal year. (Example: if City so �
certifies by December 1, 2020, the Economic Development Grants in respect
thereof would be paid to Developer on November 1, 2021 and May 1, 2022.)
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(3) The Economic Development Grants shall be payable from and secured �
solely and only by the Developer Tax Increments paid to City that, upon receipt, I
shall be deposited and held in a special account created for such purpose and �
designated as the "Medline TIF Account" of City. City hereby covenants and u
agrees to maintain its TIF ordinance in force during the term and to apply the �
incremental taxes collected in respect of the Property and Minimum Improvements �
and allocated to the Medline TIF Account to pay the Economic Development �
Grants, as and to the extent set forth in Section 3.2(1) hereof. The Economic
Development Grants shall not be payable in any manner by other tax increments ��
revenues ar by general taxation or from any other City funds. City makes no Ij
representation with respect to the amounts that may be paid to Developer as the ��
Econorr�ic Development Grants in any one year and under no circumstances shall �
City in any manner.be liable to Developer so long as City timely applies the �
Developer Tax Increments actually collected and held in the Medline TIF Account !�
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(regardless of the amounts thereof) to the payment of the Economic Development ;
Grants to Developer as and to the extent described in this Section. �
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(4) City shall be free to use any and all tax increment revenues collected in Ij
respect of other properties within the Project Area, or any available Developer Tax j
Increments resulting from the termination of fhe annual Economic Development �;
Grants under Section 3.2 hereof, for any purpose for which such tax increment ��;
revenues may lawfully be used pursuant to the provisions of the Urban Renewal �;
Law, and City shall have no obligations to Developer with respect to the use ��
� � thereofe � � � �
3.3 Non-appropriation/Limited Source of Fundinq. Notwithstanding anything in this i
Agreement to the contrary, the obligation of City to pay any installment of the Economic ;
Development Grant shall be an obligation limited to currently budgeted funds, and not a ji
general obligation or other indebtedness of City or a pledge of its full faith and credit under ;�
the meaning of any constitutional or statutory debt limitation, and shall be subject �n all �
respects to the right of non-appropriation by the City Council as provided in this Section �
3.3. City may exercise its right of non-appropriation as to the amounfi of the installmenfs �
to be p�id d�aring a�ny fiscal year during th� term of this Agreement without ca�sing a
termination of this Agreement. The right of non-appropriation shall be exercised only by
resolution affirmatively declaring City's election to non-appropriate funds otherwise
required to be paid to Developer in the next fiscal year under this Agreement. i
(1) In the event the City Council elects to not appropriate sufficient funds in the
budget for any future fiscal year for the payment in full of the installments on the
Economic Development Grant due and payable in that fiscal year, then: i) City shall
have no further obligation to Developer for the payment of all installments due in
the next fiscal year which cannot be paid with the funds then appropriated for that
purpose; and, ii) Developer shall be released from all further obligations under this
Agreement during that same fiscal year.
(2) Each installment of the Economic Development Grant shall be paid by City �
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solely from funds appropriated for that purpose by the City Council from taxes '
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levied on the Property that are allocated to the special fund pursuant to lowa Code � j
(2013) § 403.19(2). �
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(3) The right of non-appropriation reserved to City in this Section 3.3 is intended �
by the parties, and shall be construed at all times, so as to ensure that City's I;
obligation to pay future installments on the Economic Development Grants shall i;
not constitute a legal indebtedness of City within the meaning of any applicable '��
constitutional or statutory debt limitation prior to the adoption of a budget which i!
appropriates funds for the payment of that installment or amount. In the event that ;
any of the provisions of this Agreement are determined by a court of competent !
jurisdiction to create, or result in the creation of, such a legal indebtedness of City, I�j
the enforcement of the said provision shall be suspended, and the Agreement shall �,i
at all times be construed and applied in such a manner as will preserve the ,i
foregoing intent of the parties, and no event of default shall be deemed to have I'
occurred as a result thereof. If any provision of this Agreement or the application '��
thereof to any circurnstance is so suspended, the suspension shall not affect other `;
provisions of this Agreement which can be given effect without the suspended ��
provision. To this end the provisions of this Agreement are severable. �;
SECTION 4. COVENANTS OF DEVELOPER
4.1 Job Creation.
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(1) Developer shall create One Hundred Five (105) fuli-time equivalent (FTE) �
employees in Dubuque, lowa prior to January 1, 2023 and shall maintain those �;
jobs and the exesting 481 FTE employees at the Facility during the Term of this h
Agreement. It is agreed by the parties that Developer has 481 FTE employees in f�
Dubuque, lowa, as of January 1, 2018. FTE employees shall be calculated by ;
adding full-time and part-time employees together using 2080 hours per year as �
one FTE employee. In the event that the certificate provided to City under Section
4.2 hereof o� January 1, 2031 disclosesthat Deveioper does not as of that da�e �
have at least 586 FTE employe�s as provided hereinabo��e, Developer, shall pay �
to City, promptly upon written demand therefor, an amount equal to $1,783.62 per !
job not created or maintained [$1,045,200 (amount of Section 3.1 Acquisition Grant �
for Parcel A and Parcel B) divided by 586 FTE employees = $1,783.62]. p
(2) In addition to the payment required by subsection 4.1(1), for the FTE
employee positions that Developer fails to create and maintain for any year during
the Term of this Agreement, the semi-annual Economic Development Grants for
such year under Section 3.2 shall be reduced by the percentage that the number
of such FTE employee positions bears to the total number of FTE employee
positions required to be created and maintained (586 FTE employees) by this �
Section 4.1. (For example, if Developer has 400 FTE employees on January 1, �
2023, the semi-annual Economic Development Grants would be 68.26% (400/586
employees) of the Tax Increment Revenues received by City would be paid by �
City). �
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(3) The foregoing payment and reduction of the semi-annual Economic
Development Grants shall be the City's sole remedies for the failure of Developer �
to meet the job creation requirements of this Section 4.1. �
4.2 Certification. To assist City in monitoring the perFormance of Developer hereunder, ;
not later than January 1, 2023, and again not later than January 1 of each year thereafter �
during the term of this Agreement, a duly authorized officer of Developer shall certify to �
City in a form acceptable to City (a) the number of FTE employees employed by j
Developer at the Facility in Dubuque, lowa on the first day of each of the preceding 12
months, and (b) to the effecf that such officer has re-examined the terms and provisions �I
of this Agreement and that at the date of such certificate, and during the preceding twelve ��
(12) rr�onths, Developer is not or was not in default in the fulfillment of any of the terms �
and conditions of this Agreement and that no Event of Default (or event which, with the ��
lapse of time or the giving of notice, or both, would become an Event of Default) is 1
occurring or has occurred as of the date of such certificate or during such period, or if the �I
signer is aware of any such default, event or Event of Default, said officer shall disclose �
in such statement the nature thereof, its period of existence and what action, if any, has �
been taken or is proposed to be taken with respect thereto. �
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4.3 Books and Records. During the term of this Agreement, Developer shall keep at �,
all times proper books of record and account in which full, true and correct entries will be �u;
made of all dealings and transactions of or in relation to the business and affairs of �;
Developer in .accordance with generally accepted accounting principfes consistently „
applied throughout the period involved, and Developer shall provide reasonable '�
protection against loss or damage to such books of record and account. ,'j
, 4.4 Real Property Taxes. From and after the Closing Da#e, 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. ;
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4.5 No Other Exemption�. During the term of this Agreement, Developer agrees not '�
to apply for any state or local property tax exemptions whi�h are availabl� with resp�ct t� �
the Development Property or the Minimum Improvements located thereon that may reow �
be, or hereafter become, available under state law or city ordinance during the term of
this Agreement, including those that arise under lowa Code Chapters 404 and 427, as j
arnended. I
4.6 Insurance Requirements.
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(1) Developer shall provide and maintain or cause to be maintained at all times
during the process of constructing the Minimum Improvements (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):
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Ail risk builder's risk insurance, written on a Completed Value ;
Form in an amount equal to one hundred percent (100°/o) of the 1.
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replacement value when construction is completed; �;
(2) Upon completion of construction of the Minimum Improvements and up to 1
the Termination Date, Developer shall maintain, or cause to be maintained, at its �'
cost and expense (and from time to time at the request of City shall furnish proof i
of insurance in the form of a certificate of insurance) all-risk property insurance �
against loss and/or damage to Minimum Improvements under an insurance policy I
written in an amount not less than the full insurable replacement value of Minirnum
Improvements. The term "replacement value" shall mean the actual replacement �
cost of the Minimum Improvements (excluding foundation and excavation costs ;�
and costs of underground flues, pipes, drains and other uninsurable items) and ji
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. !
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(3) Developer shafl notify City immediately in the case of damage exceeding ;;
$500,000.00 in amount to, or destruction of, the IVlinimum Improvements or any 'i;
portion thereof resulting from fire or other casualty. Net proceeds of ar�y such `'
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insurance (Net Proceeds), shall be paid directly to Developer as its interests may ��
appear, and Developer shall forthwsth repair, reconstruct and restore the Minimum
Improvements to substantially the same or an improved condition or value as they
existed prior to the event causing such damage and, to the extent necessary to �',
accomplish such repair, reconstruction and restoration, Developer shall apply the !,'
Net Proceeds of any insurance relating to such damage received by Developer to �
the payment or reimbursement of the costs thereof, subject, however, to the terms !;
of any mortgage encumbering title to the Property (as its interests may appear). �r�;
Developer shall complete the repair, reconstruction and restoration of Minimum
Improvements whether or not the Net Proceeds of insurance received by �
Developer for such Purposes are sufficient. ��
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4.7 Pre�ervation of Property. During the term of this Agreer�ent, Developer shall �'
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maintain, preserve and keep, or cause others to maintain, pr�serve and ke�p, the h
Minimum Improvements in good repair and working order, ordinary wear and tear i
excepted, and from time to time shall make all necessary repairs, replacements, renewals �
and additions. Nothing in this Agreement, however, shall be deemed to �Iter any ;
agreements between Developer or any other party including, without limitation, any �
agreements between the parties regarding the care and maintenance of the Property. �
4.8 Non-Discrimination. In carrying out the pro�ect, Developer shall not dsscriminate
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against any employee or applicant for employment because of race, religion, color, sex, �
sexual orientation, gender identity, national origin, age or disability. �
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4.9 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 �
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responsibilities with respect to the project during his or her tenure, or who is in a position ifi
to participate in a decision-making process or gain insider information with regard to the ;''
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project, shall have any interest, direct or indirect, in any contract or subcontract, or the li
proceeds thereof, for work to be perFormed in connection with the project, or in any 1,1
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 �i
upon the representations of any party with whom it does business and shall not be 'i
obligated to perForm any further examination into such party's background. li
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4.10 Non-Transferabilitv. Until such time as the Minimum Improvements are complete ��
(as certified by City under Section 2.4) and Developer has complied with Section 2.3(3) , �'
this Agreement may not be assigned by Developer nar may the Property be transferred �i'
by Developer to another party without the prior written consent of City, which shall not be !�
unreasonably withheld. Thereafter, Developer shall have the right to assign this i
Agreement and upon assumption of the Agreement by the assignee, Developer shall no �'
longer be responsible for its obligations under this Agreerr�ent. I,
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4.11 Restrictions on Use. Developer agrees for itself, and its successors and assigns, ;'';
and every successor in interest to the Property or any part thereof that they, and their '�il
respective successors and assigns, shalL
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(1) Devote the Property to, and only to and in accordance with, the uses !"
specified in the Urban Renewal Plan (and City represents and agrees that use of ��:;
the Property as an office building is in full compliance with the Urban Renewal i;
Plan) (however, Developer shall not have any liability to City to the extent that a i'�
successor in interest shali breach this covenant and City shall seek enforcernent '�:
of this covenant directly against the party in breach of same); and G
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(2) Not discriminate upon the basis of race, religion, color, sex, sexual ��
orientation, gender identity, national origin, age or disability in the sale, lease, I
rental, use or occupancy of the Property or any improvements erected or to be I
erected thereon, ar any part thereof (however, Developer shall not have any �
liability to City to the extent that a �u�ce��or i� int�rest shall breach this covenant �
and City shall seek enforcement of this covenant directly against the party in �
� breach of same).
4.12 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 i
Indemnified Parties)from, covenants and agrees that the Indemnified Parties shall
not be liable for, and agree to indemnify, defend and hold harmless the Indemnified
Parties against, any loss or damage to property or any injury to or death of any �
person occurring at or about or resulting from any defect in the Minimum �
Improvements.
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(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 u
Agreement (except with respect to any suit, action, demand or other proceeding ii
brought by Developer against City based on an alleged breach of any ��
representation, warranty or covenant of City under this Agreement and/or to I;
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 i�
contamination located in or on the Property, caused and occurring after Developer ;j
takes possession of the �roperty. �ii
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(3) The Indemnified Parties shall not be liable to Developer for any damage or II��
injury to the persons or property of Developer or its officers, agents, servants or �i
employees or any other person who may be on, in or about the Minimum i
Improvements due to any act of negligence of any person, other than any act of li
negligence on the part of any such Indemnified Party or its officers, agents, (i
servants or employees. "
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(4) All covenants, stipulations, promises, agreements and obligations of City i:.
contained herein shall be deemed to be the covenants, stipulations, prorr�ises, ��
a reements and obli ations of Cit , and not of an g "
9 g y y governin body member,
officer, agent, servant or employee of City in their individual capacity thereof. �
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(5) The provisions of this Section shall survive the termination of this "I
Agreement. �
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4.13 Compliance with Laws. Developer shall comply with all laws, rules and regulations �
relating to it� businesses, other than laws, rules and regulations for which the failure to �
comply with or the sanctions and penalti�� res�ltirvg th�refrort�9 wo�ald not h�v� a material
adverse effect on the business, property, operations, financial or otherwise, of Developer. �
4.14. During the Term of this Agreement, Developer shall not in any manner encumber ''
the Property without the prior written consent of City.
SECTION 5. EVENTS OF DEFAULT AND REMEDlES
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: �
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1 Failure b �
� ) y Developer to pay or cause to be paid, before delinquency, ail real �
property taxes assessed with respect to the Minimum Improvements and the
Property. � �
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(2) Failure by Developer to cause the construction of the Minimum �a
Improvements to be commenced and completed pursuant to the terms, conditions q'
and limitations of this Agreement. �
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(3) Transfer of any interest by Developer of the Minimum fmprovements in
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violation of the provisions of this Agreement prior to the issuance of the final ��
Certificate of Completion.
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(4) Failure by Developer or City to substantially observe or perForm any other il
material covenant, condition, obligation or agreemen�on its part to be observed or
perFormed under this Agreement. �
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(5) Bankruptcy, insolvency or appointment of a receiver for Developer. ��
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5.2 Remedies on Default bv Developer. Whenever any Event of Default referred to in I�i
Section 5.1 of this Agreement occurs and is continuing, C►ty, as specified below, may take I'
any one or rroore of the following actions after the giving of written notice by City to il'
Developer (and the holder of any mortgage encumbering any interest in the Property of `
which City has been notified of in writing) of the Event of Default, but only if the Event of '"
Default has not been cured within sixty (60) days following such notice, or if the Event of �"
Default cannot be cured within sixty (60) days and Developer does not provide '�II
assurances to City that the Event of Default will be cured as soon as reasonably possible �
thereafter: ,,,
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(1) City may suspend its perFormance under this Agreement until it receives �
assurances from the defaulting party, deemed adequate by City, that Developer
will cure its default and continue its perFormance under this Agreement;
(2) 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 Acquisition Grant to �
Developer, and City may take any action, including any legal action it deems �
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necessary, to recover such amounts from Developer; �
(4) City may withhold the Certificate of Completion; or
(5) 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.
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5.3 Re-vestinq Title in Citv Upon Happeninq of Event Subsequent to Convevance 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, but subject to the ';i
terms of the mortgage granted by Developer to secure a loan obtained by Developer from �;
a commercial lender or other financial institution to fund the acquisition of Property or ��
construction of the Minimum Improvements (First Mortgage), 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 �ij
portion of the Minirreum Improvements thereon and to terminate (and re-vest in City h
pursuant to the provisions of this Section 5.3 subject only to any superior rights in any ,
holder of the First Mortgage)the estate conveyed by City to Developer, it being the intent I'
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 i '
C t of the title and of all Develo er s ri hts and interests in and to Pr e onv
y p g op rty c eyed
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), 'I
but only if the events stated in Section 5.1 of this Agreement have not been cured within I'�
the time period provided above, or, if the events cannot be cured within such time periods, �I�'.
Developer does not provide assurance to City, reasonably satisfactory to City, that the I�
events will be cured as soon as reasonably possible. Notwithstanding the foregoing,
however, City agrees to execute a Subordination Agreement in favor of Developer's first �;
mortgage lender, in a form reasonably acceptable to City and to Developer's first !'
mortgage lender.
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5.4 Resale of Reacquired Propertv; Disposition of Proceeds. Upon the re-vesting in
City of title to the Property as provided in Section 5.3 of this Agreement, City shall, `i
pursuant to its responsibility under law, use its best efforts, subject to any rights or �
interests in such property or resale granted to any holder of a First Mortgage, to resell the ';
Property or pa�rt ther��f as soon and in s�ach manner as Gity shall find feasible and �
consistent with the objectives of such law and of the Urban Renewal Plan to a qualified '
and responsible party or parties (as determined by City in its sole discretion) who will 'I�I
assume the obligation of making or completing the Minimum Irroprovements or such other �
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improvements in their stead as shall be satisfactory to City and in accordance with the �
uses specified for such the Property or part thereof in the Urban Renewal Plan. Subject
to any rights or interests in such property or proceeds granted to any holder of a First
Mortgage upon such resale of the Property the proceeds thereof shall be applied:
(1) First, to pay and discharge the First Mortgage; ;
(2) Second, to pay the principal and interest on mortgage(s) created on the �
Property, or any portion thereof, or any improvements thereon, previously �
acquiesced in by�City pursuant to this Agreement. If more than one mortgage on
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the Property, or any portion thereof, or any improvements thereon, has been �j
previously acquiesced in by City pursuant to this Agreement and insufficient '�
proceeds of the resale exist to pay the principal of, and interest on, each such �
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mortgage in full, then such proceeds of the resale as are available shall be used '��
to pay the principal of and interest on each such mortgage in their order of priority, ��;
or by mutual agreement of all contending parties, including Developer, or by �
operation of law;
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(3) Third, to reimburse City for all allocable costs and expenses incurred by �
City, induding but not limited to salaries of personnel, in connection with the �I
recapture, management and resale of the Property or part thereof (but less any '�
income derived by City from the Property or part thereof in connection with such ';�'i
management); any payments made or necessary to be made to discharge any
encumbrances or liens (except for mortgage(s) previously acquiesced in by the ��
City) existing on the Property or part thereof at the time of re-vesting of title thereto '
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in City or to discharge or prevent from attaching or being made any subsequent i
encumbrances or liens due to obligations, default or acts of Developer, its il
successors or transferees (except with respect to such mortgage(s)), any . !
expenditures made or obligations incurred with respect to the making or ;
completion of the Minimum Improvements or any part thereof on the Property or I;
part thereof, and any amounts otherwise owing to City (including water and sewer ;�
charges) by Developer and its successors or transferees; and 'i'
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(4) Fourth, to reimburse Developer up to the amounfi equal to (1)the sum of the ,�
Purchase Price paid to City for the Property and the cash actually invested by such `'
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party in making any of the Minimum Improvements on the Property, less (2) any ;i
gains or income withdrawn or made by Developer from this Agreement or the �
Property. "
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5.5 No Remedy Exclusive. Except as otherwise provided in this Agreement, no '
remedy herein conferred upon or reserved to City is intended ta be exdusive of any other G
available remedy or remedies, but each and every such rernedy shall be cumulative and fl
shall be in addition to every other remedy given �and�r this Agreerr�ent 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
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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.
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5.6 No Implied V1/aiver. 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. �
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5.7 Aqreement to Pav Attorneys' Fees and Expenses. If any action af 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
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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. ��
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5.8 Remedies on Default bv Citv. 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, j
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 ij
performance under this Agreement. �
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SECTION 6. GENERAL TERIVIS AND PROVISIOlVS i
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6.1 Notices and Demands. Whenever this Agreement requires or permits any notice if
or written request by one party to another, it shall be deemed to have been properly given i,
if and when delivered in person or three (3) business days after having been deposited in ;!
any U.S. Postal Service and sent by registered or certified mail, postage prepaid, '
addressed as follows: � � � ii
If to Developer: Eric Gerstein, Vice President Tax �'��
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Medline lndustries, Inc.
Three Lakes Drive i
Northfield, IL 60093 `'
' Phone: (847) 643-4603 f
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With copy to: Alexander M. Lieberman
Medline Industries, Inc. �
Three Lakes Drive !i
Northfield, IL 60093 �
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Phon�: (�47) 949-3015 C�
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Ifi to City: City Manager �
50 W. 13th Street
Dubuque, lowa 52001 �
Phone: (563) 589-4110 �
Fax: (563) 589-4149 ��
With copy to: City Attorney
City Hall �
50 W. 13t" Street �
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Dubuque, IA 52001
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Or at such other address with respect to any party as that party may, from time to time
designate in writing and fprward to the other as provided in this Section.
6.2 Bindin Eq ffect. This Agreement shall be binding upan and shall inur� fio the benefit
of City ar�d D�veloper and their respective successor� and �ssigns. q
6.3 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on June 1, 2Q31 (the Termination Date).
6.4. Executipn By Facsimile or Email. Th� parties agree that this Agreement may be
transmitted among them by facsimil� machine or email, The parties intend that the faxed
or sGanned signatures constitute original signatures and that a faxed or scanned
Agreement containing the signatures (ariginal, faxed, qr scanned) of all the parties is
bindin� pn th�e parties, I
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6.5 Memorandum of pevelopment A�reement. �ity shall promptly record a �;,
Memorandum of Development Agreement in the form attached hereto as Exhibit F in the ��
office of the Recorder of Dubuque County, lowa. Developer shall pay the costs for sa �
recording. ;
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�ITY OF DUBUQUE, IOWA MEDLINE INDUSTRIES ING �
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Roy D. B I, Mayor Eric Gerstein, Vice President Tax �
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B �_ A�_ M .,r.,�..� ,,,
,� W,.,
Kev�i S. Firnstah ,
City Clerk
F:\Users\tsteckle\Lindahl\Medline\Medline Development Agreement_031318ba1_FINAL.docx
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LIST OF EXHIBITS N
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Exhibit A Urban Renewal Plan
Exhibit B-1 Plat '
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Exhibit B-2 Site Plan �
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Exhibit C City Attorney Certificate I�
Exhibit D Opinion of Counsel to Developer �
Exhibit E Deed �
Exhibit F Memorandum of Development Agreement �;
Exhibit G City Certificate �
Exhibit H Certificate of Completion 'i�
EASEMENT EXHIBITS ;!
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EXHIBIT A � �
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URBAN RENEIMAL PLAN � �
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On file at the Office of the City Clerk, City Hall, 50 West 13t" Street, Dubuque, lowa '��
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CITY ATTORNEY'S CERTIFICATE
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Barry A.Lindahl,Esq. �.�b��,�� ,������ �I
City Attorney
Suite 330,Harbor View Place � -�s ;'
300 Main Street �����citl►
Dubuque,Iowa 52001-6944 1
(563)583-4113 orfoe � � tl�asterpieee n�� t��e Misszssi��i �?
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balesq@cityofdubuque.org zoa��2otz-znis �i,
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(DATE) ��
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RE: ;
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Dear •
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I have acted as counsel for the City of Dubuque, lowa, in connection with the execution and delivery of '�
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a certain Development Agreement between (Developer) and the City of Dubuque;
lowa (City) dated for reference purposes the day of , 20 .
— ;',
The Cit has dul obtained ali necessa a f'
y y ry pprovals and consents for its execution, delivery and ,;
perFormance of this Agreement and has full power and authority to execute, deliver and perform its I
obligations under this Agreement, and to the best of my knowledge, the representa�ions of the City i;
Manager in his letter dated the day of , 20_, are correct. ;;
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Very sincerely, ji
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Barry A. Lindahl, Esq. '
Senior Counsel ��
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OPINION OF DEVEL PE ' �
O R S COUNSEL �
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Mayor and City Councilmembers ;�
City Hall "
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13t" and Central Avenue
Dubuque IA 52001 '
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Re: Development Agreement Between the City of Dubuque, lowa and ''
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Dear Mayor and City Councilmembers: cl;
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We have acted as counsel for , (Developer) in connection with the ;
execution and delivery of a certain Development Agreement (Development Agreerreent) between '
Developer and the City of Dubuque, lowa (City) dated for reference purposes the day of �
, 20_.
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We have examined the original certified copy, or copies otherwise identified to our satisfaction I;
as being true copies, of the Development Agreement and such other documents and records as we �'
have deemed relevant and necessary as a basis for the opinions set forth herein.
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Based on the pertinent law, the forego�ng examination and such other inquiries as we have II;
deemed appropriate, we are of the opinion that: '
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1. Developer is a limited liability company organized and existing under the laws of the State
of and has full power and authority to execute, deliver and perForm in full Development ,';
Agreement. The Development Agreement has been duly and validly authorized, executed and
delivered by Developer and, assuming due authorization, execution and delivery by City, is in full force ;
and effect and is valid and legally binding instrument of Developer enforceable in accordance with its �
terms, excepf as the same may be iimited by bankruptcy, insolvency, reorganization or other lavvs '
relating to or affecting creditors' rights generally. �
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2. The execution, delivery and perFormance by Developer of the Development Agreement �
and the carrying out of the terms thereof, will not result in violation of any provision of, or in default �
under, the articles of incorporation and bylaws of Developer, any indenture, mortgage, deed of trust, �
indebtedness, agreement, judgment, decree, order, statute, rule, regulation or restriction to which
Developer is a party or by which Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened against or affecting �
Developer in any court or before any arbitrator or before or by any governmental body in which there �
is a reasonable possibility of an adverse decision which could materially adversely affect the business �
(present or prospective), financial position or results of operations of Developer or which in any manner i
raises any questions affecting the validity of the Agreement or the Developer's ability to perform
Developer's obligations thereunder. �
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Very truly yours, '�
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EXHIBIT E
DEED
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Prepared by: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583-4113 ��
Return to: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583-4113 t'
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Tax Statement to:
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� SPECIAL WARRANTY DEED � � �
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KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, lowa, a municipal
corporation of the State of fowa (Grantor), in consideration of the Grantee named below undertaking
the obligations of the Developer under the Development Agreement described beiow and the surn of
and no/100 Dollars ($ ) in hand paid, and other good and 'i;
valuable consideration, and pursuant to the authority of Chapter 403, Code of lowa, does hereby ;�
GRANT, SELL AND CONVEY unto , an lowa limited liability �'
company(Grantee), the following described parcel(s) situated in the County of Dubuque, State of lowa, �i;
to wit (the Proper�y): � � �
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This Deed is exempt from transfer tax pursuant to lowa Code section 428A.2(6). �
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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, lowa, Instrument Number -
Promptly after completion of the improvements in accordance with the 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
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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 �,�1
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. :�
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All certifications provided for herein shall be in such form as will enable them to be recorded with i,
the County Recorder of Dubuque, lowa. If Grantor shall refuse or fail to provide any such certification ;i
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 'I;,
in what respects Grantee has failed to complete the improvements in accordance with the provisions I
of the Agreement or is otherwise in default, and what measures or acts will be necessary, in the opinion '�,'
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of Grantor, for Grantee to take or perform in order to obtain such certification. ''I
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In the event that an Event of Default occurs under the Agreement and Grantee or i,,
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 re-vest in Grantor the estate conveyed by this Deed to Grantee, its assigns and !''
successors in interest, in accordance with the terms of the Agreement.
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None of the provisions of the Agreement shall be deemed merged in, affected or impaired by ''.
this Deeda
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Grantor hereby covenants to warrant and defend the said premises against the lawful claims of �;
all persons whomsoever claiming by, through and under it. �
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Dated this of , 20_ at Dubuque, lowa. �',
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CITY OF DUBUQUE IOV1lA ;
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BY: �
Roy D. Buol, Mayor �
Attest: � �
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By:
Kevin S. Firnstahl, City Clerk ;
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MEMORANDUM OF DEVELOPMENT AGREEMENT ;
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Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113 �
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113 i�
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MEMORANDUM OF DEVELOPMENT AGREEMENT
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A Development Agreement by and among the City of Dubuque, lowa, an lowa municipal !;
corporation, of Dubuque, lowa, and ;j
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was made regarding #he following described premises �i
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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. `�
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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 'I
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shall prevail. A complete counterpart of the Development Agreement, together with any amendments ''�
thereto, is in the possession of the C�ty of Dubuque and may be examined at its offices as above ��;
provided. �'
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Dated this day of , 20_. �
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CITY OF DUBIJQUE, IOWA �
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By:
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Roy D. Buol, Mayor
By� �
Kevin S. Firnstahl, City Clerk
STATE OF IOWA �
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DUBUQUE COUNTY i�
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On this day of , 20_, before me, a Notary Public in and for the State of lowa, in and i
for said county, personally appeared Roy D. Buol and Kevin S. Firnstahl, 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 lowa, and that �
the seal affixed to said instrument is the seal of said Municipal Corporation and that said instrument I
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 I�
said Municipal Corporation by it voluntarily executed. i,
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Notary Public, State of lowa �i
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DUBUQUE COUNTY �a
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On this day of , 20 , before me, a Notary Public in and for the State of lowa, �
in and for said county, personally appeared i
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to me personally known, who being by me duly sworn did say that they are the �:
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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 lowa
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EXHIBIT G `
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CITY CERTIFICATE ;
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D��.� .�� City Manager's Office �
THE CIT�'C3� � � � City Hall y
50 West 13�Street I;
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��. ��� All-AlnedC�CitY Dubuque,Iowa 52001-4864 �
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(563)589-4149 fax �
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.M�ste �ece on t�ie 11�ississz i ;�
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Dear • '�
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I am the City Manager of fhe City of Dubuque, lowa and have acted in that capacity in connectior� with ;;
the execution and delivery of a certain Development Agreement between j;
(Developer) and the City of Dubuque, lowa (City) dated for reference purposes the day of i�
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On behalf of the City of Dubuque, I hereby represent and warrant to Developer that: ���'
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1 There is no action, suit or roceedin ''
O p g pending, or to the best of City's knowledge, j;
threatened against City which might result in any adverse change in the Property being conveyed i;
or the possession, use or enjoyment thereof by Developer, including, but not limited to, any �
action in condemnation, eminent domain or public taking. "
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(2) No ordinarece or hearing is now or before any local governmental body that either "
contemplates or authorizes any public improvements or special tax levies, the cost of which may �
be assessed against the Propertye To the best of City's knowledge, there are no plans or efforts u
by any government agency to widen, modify, or re-align any street or highway providing access a
to the Property and there are no pending or intended public improvements or special 'I
assessments affecting the Property which will result in any charge or lien be levied or assessed ;;
against the Property. 'I'�
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(3) All leases, contracts, licenses, and permits between City and third parties in connection ��
with the maintenance, use, and operation of the Property have been provided to Developer and �'
City has provided true and correct copies of all such documents to Developer. �
(4) City has good,and marketable fee simple title interest in the Property. �
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(5) The Property has a permanent right of ingress or egress to a public roadway for the use �
and enjoyment of the Property. a
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(6) There are no notices, orders, suits, judgments or other proceedings relating to fire, 1
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 �I
proceedings relating to fire, building, zoning, air pollution or health violations as they relate to ;I
the Property of which it has actual notice. The Property is in material compliance with all ��,
applicable zoning, fire, building, and health statutes, ordinances, and regulations. The Property r�
is currently zoned PUD and Developer's intended use of the Property as a corporate f;
office/industrial facility is a permitted use in such zoning classification. �]
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(7) Payment has been made for all labor or materials that have been furnished to the Property 'f�
or will be made prior to the Closing Date so that no lien for labor perFormed or materials furnished �i
can be asserted against the Property. ��
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(8) The Property will, as of the Closing Date, be firee and clear of all liens, security interests, !,;
and encumbrances. �;
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(9) The execution, delivery and perFormance of this Agreement and the consummation of the I"
transactions contemplated by this Agreement do not and shall not result in any material breach ;I
of any terms or conditions of any mortgage, bond, indenture, agreement, contract, license, or I,'
other instrumenfi or obligation to which City is a party or by which either the Cify or the Property ';i
being conveyed are bound, nor shall the execution, delivery and perFormance of this Agreement j
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 i�
Property being conveyed may be subject. ' ;i
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(10) City has duly obtained all necessary approvals and consents for its execution, delivery ��
and performance of this Agreement, and has full power and authority to execute, deliver and ;
perForm its obligations under this Agreement. City's attorney shall issue a legal opinion to ;
Developer at time of closing confirming the representation contained herein, in the form attached ��
hereto as Exhibit C.
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(11) The Property is free and clear of any occupants, and no party has a lease to or other �
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occupancy or contract right in the Property that shall in any way be binding upon the Property. ��
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(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 li
broker engaged directly or indirectly by City for any fees or other compensation related to the �
subject matter of this Agreement.
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(13) City shall exercise its best efforts to assist with Developer in the development process. '
(14) City shall exercise its best efforts to resolve any disputes arising during the development �
process in a reasonable and prompt fashion. �
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(15) With respect to the period during which City has owned or occupied the Property, and to �I
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 materiais, if ,I
known to be present, would require cleanup, removal or sorr�e other remedial action under �
environmental laws. '1
(16) All city utilities necessary for the development and use of the Property as an industrial �
manufacturing facility adjoin the Property and Developer shall have the right to connect to said '�
u'tilities, subject to City's connection fees. �
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(17) The representations and warranties contained in this article shall be correct in all respects ;
on and as of the Closing Date with the same force and effect as if such representations and �;
warranties had been made on and as of the Closing Date. I'
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Sincerely,
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Michael C. Van Milligen ;;
� City Manager � � � i�
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EXHIBIT H �
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CERTIFICATE OF COMPLETION
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Prepared by: Maurice Jones, Economic Development Director, 50 West 13th Street, Dubuque, lowa 52001 (563)589-4393 '
Return to: Kevin S. Firnstahl, City Clerk, 50 West 13th Street, Dubuque, lowa 52001 (563) 589.4121 �
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CERTIFICATE OF COMPLETION
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WHEREAS, the City of Dubuque, lowa, a municipal corporation (the "Grantor"), by a Special i�.
Warranty Deed recorded on , 20_, as Document Number in the office of �
the County Recorder of Dubuque County, State of lowa, has conveyed to Medline Industries, Inc. (the I{'
"Grantee"), in accordance with a Development Agreement dated as of , 20_, (the ';
"Agreement"), certain real property located within the Dubuque Industrial Center Economic ,�
Development District of the Grantor and as more particularly described as follows: jj
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WHEREAS, said Deed incorporated and contained certain covenants and restrictions with !�
respect to the development of the Development Property, and obligated the Grantee to construct certain �
Minimum Improvements (as defined therein) in accordance with the Agreement; and �I
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lNHEREAS, th� Grantee ha� to the present date perForrned said covenants and conditions �
insofar as they relate to the construction of the Minimum Improvements, in a manner deemed sufficient p
by the Grantor to permit the execution and recording of this certification. �p
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NOW, THEREFORE, pursuant to Section of the Agreement, this is to certify that all �
agreements and covenants of the Deed and the Agreement with respect to the obligations af the
Grantee, and its successors and assigns, to construct the Minimum Improvements on the Development
Property have been completed and perFormed by the Grantee to the satisfaction of the Grantor and
such agreements and covenants are hereby terminated.
The County Recorder of Dubuque County is hereby authorized to accept for recording and to record �
the filing of this instrument, to be a conclusive determination, except as noted above, of the satisfactory �
termination of the agreements and covenants of said Deed and the Agreement which would result in a �
forfeiture by the Grantee and right of the Grantor to re-enter and take possession of the Development
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Property as set forth in said Deed and the Agreement, and that said Deed and the Agreement shall '�
otherwise remain in full force and effect. �
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CITY OF DUBUQUE, IOWA ��
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By� =i
Michael C. Van Milligen
City Manager �
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STATE OF IOWA ) � � � �
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COUNTY OF DUBUQUE ) �
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On this day of , 20�, before me a Notary Public in and for said County, �I
personally appeared Michael C. Van Milligen, to me personally known, who being duly sworn, did say {;
that he is the City Manager of the City of Dubuque, lowa, a Municipal Corporation, created and existing f
under the laws of the laws of the State of lowa, and acknowledged said instrument to be the free act
and deed of said IVlunicipal Corporation by him voluntarily executed. �'
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Notary Public in and for ;
Dubuque County, lowa �
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