Merge, LLC Development Agreement_Initiate Copyrighted
October 7, 2019
City of Dubuque Items to be set for Public Hearing # 1.
ITEM TITLE: Merge, LLC DevelopmentAgreement
SUMMARY: City Manager recommending that the City Council set a
public hearing for November 18, 2019, on the proposed
DevelopmentAgreement between Merge, LLC and the
City of Dubuque providing for the sale of City-owned real
estate in Greater powntown Urban Renewal District to
Merge, LLC and the issuance of Urban Renewal Tax
Increment Revenue Grant obligations.
RESOLUTION (1)Approving the Minimum Requirements,
Competitive Criteria, and Offering Procedures for the
Development and the Sale of Certain Real PropertyAnd
Improvements in the Greater powntown Urban Renewal
District; (2) Determining that the Offer to Purchase
submitted by Merge, LLC satisfies the Offering
Requirements with respect to the real property and
improvements and declaring the intent of the City Council to
approve the sale to Merge, LLC in the event that no
competing proposals are submitted; and (3) Soliciting
competing proposals
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt
Resolution(s), Set Public Hearing for November 18, 2019
ATTACHMENTS:
Description Type
Merge De�lopmentAgreement-MVM Memo City Manager Memo
Staff Memo Staff Memo
DevelopmentAgreement Partially Executed Supporting Documentation
Resolution Setting Public Hearing Resolutions
Dubuque
THE CITY OF �
uI�AaMca cih
DuB E � �
I � � I
Maste iece on the Mississi i Zoo�•zoiz•zois
YP pp zoi�*zoi9
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Resolution Setting a Public Hearing on a Proposed Development
Agreement between the City of Dubuque and Merge, LLC providing for the
Sale of City-Owned Real Estate to Merge, LLC and the Issuance of Urban
Renewal Tax Increment Revenue Grant Obligations Pursuant to the
Development Agreement
DATE: October 2, 2019
Economic Development Director Jill Connors requests the City Council set a public
hearing for November 18, 2019, on the proposed Development Agreement between
Merge, LLC and the City of Dubuque providing for the sale of City-owned real estate in
Greater powntown Urban Renewal District to Merge, LLC and the issuance of Urban
Renewal Tax Increment Revenue Grant obligations.
Merge brought a formal proposal to City staff for a mixed-use development to be located
in the Port of Dubuque. The $18 Million project will include 187 residential units and
approximately 23,000 total square feet of commercial/retail space.
The proposed Development Agreement provides for City incentives, including Urban
Renewal Tax Increment Revenue Grant Obligations, for 10 years of Tax Increment
Finance (TIF) rebates and a land discount to encourage the development of the
property.
The procedure for the disposition of this urban renewal property includes more
requirements than for other development agreements. lowa Code § 403.8(2)(a)
provides that a municipality may dispose of real property in an urban renewal area to
private persons only under reasonable "competitive bidding procedures." A municipality,
by public notice by publication in a newspaper having a general circulation in the
community, thirty days prior to the execution of a contract to sell, lease or otherwise
transfer real property, and prior to the delivery of an instrument of conveyance with
respect to the real property, may invite proposals from and make available all pertinent
information to any persons interested in undertaking to redevelop or rehabilitate an
urban renewal area, or a part of the area. The notice must identify the area, or portion of
the area, and must state that proposals must be made by those interested within thirty
days after the date of publication of the notice, and that further information available
may be obtained at the office designated in the notice. The municipality must consider
all redevelopment or rehabilitation proposals, and the financial and legal ability of the
persons making the proposals to carry them out, and the municipality may negotiate
with any persons for proposals concerning the purchase, lease or other transfer of real
property acquired by the municipality in the urban renewal area. The municipality may
accept the proposal it deems to be in the public interest and in furtherance of the
purposes of the urban renewal law. However, a notification of intention to accept the
proposal must be filed with the governing body not less than thirty days prior to the
acceptance. Thereafter, the municipality may execute a contract and may deliver deeds,
leases and other instruments and may take all steps necessary to effectuate the
contract.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
1�.1�t��'�+�1 �Gv►, /����t�ts�.
Mic ael C. Van Milligen '� �
MCVM:jh
Attachment
cc: Crenna Brumwell, City Attorney
Teri Goodmann, Assistant City Manager
Cori Burbach, Assistant City Manager
Jill M. Connors, Economic Development Director
2
Dubuque Economic Development Department
THE CITY OF � 50 West 13th Street
All•A�eriesCi�y Dubuque,lowa 52001-4864
•,�%�,��'�}�A Office(563)589-4393
U B E 1 I I I I I TTY(563)690-6678
htt p://www.c it yofd u b u q u e.o r g
2007•2012
Masterpiece on the Mississippi Zo13.201,
TO: Michael C. Van Milligen, City Manager
FROM: Jill M. Connors, Economic Development Director
SUBJECT: Resolution Setting a Public Hearing on a Proposed Development
Agreement between the City of Dubuque and Merge, LLC Providing
for the Sale of City-owned Real Estate to Merge, LLC and the
Issuance of Urban Renewal Tax Increment Revenue Grant
Obligations Pursuant to the Development Agreement
DATE: October 3, 2019
INTRODUCTION
This memorandum is a request for the City Council to adopt the attached resolution
setting a public hearing for November 18, 2019 on a proposed Development Agreement
between Merge, LLC and the City of Dubuque providing for the sale of City-owned real
estate in Greater powntown Urban Renewal District to Merge, LLC and the issuance of
Urban Renewal Tax Increment Revenue Grant Obligations.
BACKGROUND
Merge is a development team focused on real estate development in Qualified
Opportunity Zones across the Midwest. The company's passion is creating mixed-use
developments in a city's urban core which reflect both a community's history and its
aspirations. Merge team members bring experience in real estate, economic
development, construction, city planning, space making, technology startups, and small
business.
DISCUSSION
Merge brought a formal proposal to City staff for a mixed-use development (the Project)
to be located in the Port of Dubuque. The $18 Million Project will include 187 residential
units and approximately twenty-three thousand (23,000) total square feet of
commercial/retail space. The project will be located along the corner of Fifth and Bell
Streets, west of the Flexsteel corporate office building.
This mixed-use project fulfills the planned use of the Port of Dubuque area, the
objectives of which call for the creation of a thriving central business district, riverfront
district, and downtown neighborhoods with a compatible mix of viable commercial/retail,
office, financial, residential, cultural, recreational, and educational activities; including
the creation and development of additional housing units and residential opportunities in
the Port of Dubuque.
The Project also addresses a blighting condition in the area by developing a small linear
lot layout in relation to the size, adequacy and usefulness of the lot.
This Project is the first in the City of Dubuque to utilize the Opportunity Zone (OZ)
program as part of the project funding. The OZ program has drawn particular interest
from the Environmental Protection Agency (EPA) staff who are excited to see the
program's ability to pair with EPA grant funds to help redevelop previous brownfield
sites, as is the case for this Project. Because OZ funds can be invested, not just in
physical improvements, but also in the support of businesses, this Development
Agreement allows the Developer to include entrepreneurs located on site as part of the
Developer's job reporting requirements.
The proposed Development Agreement provides for City incentives, including Urban
Renewal Tax Increment Revenue Grant Obligations, for 10 years of Tax Increment
Finance (TIF) rebates to encourage the development of the property. The project will
also receive a land acquisition grant of approximately $485,036.60, with the final
amount to be determined based on the acreage of the parcel once it is platted. The
Agreement allows Merge to construct connections to the Port of Dubuque Public
Parking Facility and also Merge tenants and customers to utilize the surface parking lot
located north of the proposed building, across 5�h Street. Merge will have the option to
construct and maintain solar parking canopies in the surtace parking lot. Additional
terms and conditions of the disposition of the property are included in the attached
Development Agreement.
The procedure for the disposition of this urban renewal property includes additional
requirements not required for other development agreements. lowa Code § 403.8(2)(a)
provides that a municipality may dispose of real property in an urban renewal area to
private persons only under reasonable "competitive bidding procedures." A municipality,
by public notice by publication in a newspaper having a general circulation in the
community, thirty days prior to the execution of a contract to sell, lease or otherwise
transfer real property, and prior to the delivery of an instrument of conveyance with
respect to the real property, may invite proposals from and make available all pertinent
information to any persons interested in undertaking to redevelop or rehabilitate an
urban renewal area, or a part of the area. The notice must identify the area, or portion of
the area, and must state that proposals must be made by those interested within thirty
days after the date of publication of the notice, and that further information available
may be obtained at the office designated in the notice. The municipality must consider
all redevelopment or rehabilitation proposals, and the financial and legal ability of the
persons making the proposals to carry them out, and the municipality may negotiate
with any persons for proposals concerning the purchase, lease or other transfer of real
property acquired by the municipality in the urban renewal area. The municipality may
accept the proposal it deems to be in the public interest and in furtherance of the
purposes of the urban renewal law. However, a notification of intention to accept the
proposal must be filed with the governing body not less than thirty days prior to the
acceptance. Thereafter, the municipality may execute a contract and may deliver deeds,
leases and other instruments and may take all steps necessary to effectuate the
contract.
The attached resolution is intended to comply with those requirements.
RECOMMENDATION/ ACTION STEP
I recommend the City Council adopt the attached resolution providing for competitive
bidding procedures for this Development Agreement and setting a November 18, 2019
public hearing on the Development Agreement providing for the sale of City-owned
property and the issuance of Urban Renewal Tax Increment Revenue Grant
Obligations.
Prepared by: Barry A. Lindahl 300 Main Street Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Dubuque IA 52001 563 583-4113
OFFICIAL NOTICE
RESOLUTION NO. 355-19
RESOLUTION (1) APPROVING THE MINIMUM REQUIREMENTS, COMPETITIVE
CRITERIA, AND OFFERING PROCEDURES FOR THE DEVELOPMENT AND THE
SALE OF CERTAIN REAL PROPERTY AND IMPROVEMENTS IN THE GREATER
DOWNTOWN URBAN RENEWAL DISTRICT; (2) DETERMINING THAT THE OFFER
TO PURCHASE SUBMITTED BY MERGE, LLC SATISFIES THE OFFERING
REQUIREMENTS WITH RESPECT TO THE REAL PROPERTY AND IMPROVEMENTS
AND DECLARING THE INTENT OF THE CITY COUNCIL TO APPROVE THE SALE
TO MERGE, LLC IN THE EVENT THAT NO COMPETING PROPOSALS ARE
SUBMITTED; AND (3) SOLICITING COMPETING PROPOSALS
Whereas, the City Council of Dubuque, Iowa, did on March 18, 2019 adopt an
Amended and Restated Urban Renewal Plan for the Greater Downtown Urban Renewal
District ("the Plan") for the Urban Renewal Area described therein; and
Whereas, the Plan provides, among other things, for the disposition of properties
for private development purposes as a proposed economic development action; and
Whereas, Merge, LLC ("Developer") has submitted to the City a proposal in the
form of an offer to purchase (the "Development Agreement") for the purchase of certain
City -owned real property hereinafter described ("the Property"), which Development
Agreement proposes the Developer will undertake the construction of a building located
at the corner of Ice Harbor Drive and East 5th Street as described therein, which Property
is the real estate consisting of approximately 1.22 acres shown on Exhibit A, and which
Development Agreement requests that this Property be made available for sale as rapidly
as possible; and
Whereas, in order to establish reasonably competitive bidding procedures for the
disposition of the Property in accordance with the statutory requirements of Iowa Code
Chapter 403, specifically, Section 403.8, and to assure that the City extends a full and fair
opportunity to all developers interested in submitting a proposal, a summary of
submission requirements and minimum requirements and competitive criteria for the
Property offering is included herein; and
Whereas, said Developer has signed a Development Agreement with the City,
currently on file at the Office of the City Clerk; and
Whereas, to recognize both the firm proposal for sale of the Property and
improvements already received by the City in the form of the Development Agreement,
as described above, and to give full and fair opportunity to other developers interested in
100219baI
submitting a proposal for the sale and development of the Property, this Council should
by this Resolution:
1)
Plan;
Set the fair market value of the Property for uses in accordance with the
2) Approve the minimum requirements and competitive criteria included
herein;
3) Approve as to form the Development Agreement;
4) Set a date for receipt of competing proposals and the opening thereof;
5) Declare that the proposal submitted by Developer satisfies the minimum
requirements of the offering, and that in the event no other qualified proposal is
timely submitted, that the City Council intends to accept such proposal and
authorize the City Manager to sign the Development Agreement;
6) Approve and direct publication of a notice to advise any other person of the
opportunity to compete for sale of the Property on the terms and conditions set
forth herein; and
7) Declare that in the event another qualified proposal is timely submitted and
accepted, another and future notice will be published on the intent of the City to
enter into the resulting contract, as required by law;
and
Whereas, the City Council believes it is in the best interest of the City and the Plan
to act as expeditiously as possible to sell the Property as set forth herein.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the Property shown on Exhibit A attached hereto, shall be
offered for sale in accordance with the terms and conditions contained in this Resolution.
Section 2. That it is hereby determined that in order to qualify for consideration
for selection, any person must submit a proposal which meets these minimum
requirements:
1) Contains an agreement to purchase the Property, shown on Exhibit A, at
not less than fair market value, which for the purposes of this resolution is hereby
determined to be $ 807,842.52 and $ 162,230.67 for requires easements for a total
purchase price of $ 970,073.19;
2) States the number of residential units and square feet of commercial/retail
2
space that will be created in the proposal's project;
3) Sets out or provides to the satisfaction of the City Council the experience of
the principals and key staff who are directly engaged in the performance of contract
obligations in carrying out projects of similar scale and character; and
4) Meets, at a minimum, the terms and conditions of the Development
Agreement submitted by the Developer including an agreement to invest not less
than $18,000,000 to complete construction of the 187 residential units and 23,000
of commercial/retail space in the building.
Section 3. That the Development Agreement by and between the City and the
Developer be and is hereby approved as to form for the purposes hereinafter stated.
Section 4. That for the purpose of defining the offering of the Property for sale,
said Development Agreement shall be deemed to be illustrative of the terms acceptable
to the City with respect to:
1) Timely completion of the construction project;
2) Construction of minimum improvements;
3) Developer and City obligations; and
4) General terms and conditions.
Section 5. That the Development Agreement submitted by the Developer
satisfies the requirements of this offering and, in the event that no other qualified
proposals are timely submitted, that the City Council intends to accept and approve the
Development Agreement.
Section 6. That it is hereby determined that the Developer possesses the
qualifications, financial resources and legal ability necessary to purchase the Property
shown on Exhibit A and to construct, manage and operate the site in the manner proposed
by this offering in accordance with the Plan.
Section 7. That the City Clerk shall receive and retain for public examination the
attached Development Agreement submitted by the Developer and, in the event no other
qualified proposals are timely submitted, shall resubmit the Development Agreement to
the City Council for final approval and execution upon expiration of the notice hereinafter
prescribed.
Section 8. That the action of the City Council be considered to be and does
hereby constitute notice to all concerned of the intention of this Council, in the event that
no other qualified proposals are timely submitted, to accept the proposal of the Developer
to purchase the Property shown on Exhibit A and to approve the Development Agreement
by and between City and Developer.
3
Section 9. That the official notice of this offering and of the intent of the City, in
the event no other qualified proposals are timely submitted, to approve the Development
Agreement, shall be a true copy of this Resolution, but without the attachments referred
to herein.
Section 10. That the City Clerk is authorized and directed to secure immediate
publication of said official notice in the Telegraph Herald, a newspaper having a general
circulation in the community, by publication of the text of this Resolution on or before the
11th day of October, 2019.
Section 11. That written proposals for the sale of the Property shown on Exhibit
A will be received by the City Clerk at or before 10:00 a.m., November 12, 2019, in the
Office of the City Clerk, located on the first floor at City Hall, 50 West 13th Street, Dubuque,
Iowa 52001. Each proposal will be opened at the hour of 10:00 a.m. in City Hall,
Dubuque, Iowa on November 18, 2019. Said proposals will then be presented to the City
Council at 6:00 p.m., November 18, 2019, at a meeting to be held in the City Council
Chambers, Historic Federal Building at 350 West 6th Street, Dubuque, Iowa.
Section 12. That the method of offering the Property for sale as set forth herein
is in substantial conformance with the provisions of Iowa Code Section 403.8, requiring
reasonable competitive bidding procedures as are hereby prescribed and "fair value."
Section 13. That the required documents for the submission of a proposal shall
be in substantial conformity with the provisions of this Resolution.
Section 14. That the City Clerk is hereby nominated and appointed as the agent
of the City of Dubuque, Iowa to receive proposals for the sale of the Property on that date
and according to the procedure hereinabove specified for receipt of such proposals and
to proceed at such time to formally acknowledge receipt of each of such proposal by
noting the receipt of same in the Minutes of the Council; that the City Manager is hereby
authorized and directed to make preliminary analysis of each such proposal for
compliance with the minimum requirements established by this Council hereinabove. For
each proposal that satisfies these requirements, the City Council shall judge the strength
of the proposal by the competitive criteria established hereinabove. The City Council
shall then make the final evaluation and selection of the proposals.
Section 15. If, and only if, competing proposals are received and determined by
the Council to meet the minimum requirements described herein, the Developer shall be
allowed to amend its proposal in response thereto and to deliver same to the City
Manager, by no later than a date determined by the City Council. In such event, the
Council shall schedule a subsequent meeting to be held by the City Manager at which
there shall be a bid -off conducted by the City Manager. During such bid -off, each
competing bidder shall bid against the other, starting with the second proposal received
and continuing until such time as each bidder shall decline to improve its proposal to
acquire and redevelop the Property shown on Exhibit A in response to the last bid of the
other bidder or bidders. The period of time to be allowed for such bid -off shall be
4
determined by the City Manager. The rules of such bid -off shall be as determined by the
City Manager at or before such bid -off period and shall be absolute.
Section 16. That in the event another qualified proposal is timely submitted and
accepted by the City, another and further notice shall be published of the intent of the
City of Dubuque, Iowa, to enter into the resulting agreement, as required by law.
Passed, approved and adopted this 7th day of October, 2019.
Attest:
Kevi . Firnstahl, Ci y Clerk
5
Jak- A. Rios, Mayor Pro Tem
EXHIBIT A
THE PROPERTY
6
CITY OF DT'BUQUE
EXHIBIT A
DEVELOPMENTAGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
MERGE, LLC
This Development Agreement ("AgreemenY'), dated for reference purposes the
day of , 2019, is entered into by and between the City of Dubuque,
lowa, a municipaliry ("City"), acting under authorization of lowa Code Chapter 403, as
amended, and Merge, LLC, an lowa limited liability company, doing business as Merge
Urban Development ("Developer').
WHEREAS, Developer desires to construct a mixed-use residential and
commercial/retail space building (the "Building") substantially as shown on Exhibit B-1
attached hereto (the "Site Plan") and has requested that City sell to Developer the real
estate consisting of approximately 1.22 acres shown on Exhibit B-1, together with all
easements, tenements, hereditaments and appurtenances belonging thereto (the
'Property"); and
W HEREAS, Developer and City agree that upon approval of the Plat (as defined
in Section 4.8 of this Agreement), this Agreement will be amended to include the legal
description of the Property; and
WHEREAS, [he Property is located in the Greater powntown Urban Renewal
District which has been so designated by City Council Resolution 123-67, as
subsequently amended, as a slum and blighted area (the "Project Area") defined by
lowa Code Chapter 403 (the "Urban Renewal Law"); and
WHEREAS, Subject to the terms of this Agreement, Developer will undertake the
development of the Building to be located on the Property and wiil be operating the
same during the term of this Agreement; and
WHEREAS, Developer will make a capital investment in building improvements,
equipment, fumiture and fixtures in the Property including, without limitation, any public
or site related improvements specifically needed for the development (e.g. utility
extensions to the Property) (the 'ProjecY'), as shown on the Site Plan, Exhibit B-1
attached hereto; and
WHEREAS, pursuant to lowa Code Section 403.6(t), and in conformance with
the Urban Renewal Plan for the Project Area adopted on May 18, 1967 and last
amended on , 2019, City has the authority to enter into contracts and
agreements to implement the Urban Renewal Plan, as amended; and
WHEREAS, the Dubuque City Council believes it is in the best interests of the
City to encourage Developer in the development of the Property by providing certain
incentives as set forth herein.
09�719ba1
4811-6�fi8-11]8.8
�xns,o-�-i ne.;u
NOW, THEREFORE, the parties to this Development Agreement, in
consideration of the promises, covenants and agreements made by each other, do
hereby agree as follows:
SECTION 1. CONVEYANCE OF THE PROPERTY TO DEVELOPER.
1.1 Purchase Price.
(1) Subject to the terms and condi[ions herein, the purchase price for the
Property (the "Property Purchase Price") shall be Six Hundred Sixty-Two
Thousand One Hundred Sixty-Six Dollars (�662,166) per acre for approximately
1.22 acres for a total Property Purchase Price of $807,842.52. The actual
Property Purchase Price shall be adjusted based on the acreage of the Property
as shown on the Plat (as defined in Section 47 of this Agreement)
(2) Subject to the terms and conditions herein, the purchase price for the
easements shown on Exhibit B-2 (the "Easements") shall be $331,083 per acre
for approximately 0.49 acres for a total Easements Purchase Price of
$162,230.67 for fhe easement areas (the "Easements Purchase Price"). The
actual Easements Purchase Price shall be adjusted based on the acreage of the
easements shown on the Plat.
(3) The total purchase price shall be the sum of the Property Purchase Price
and the Easements Purchase Price (the "Purchase Price") which shall be due
and payable by Developer in immediately available funds in favor of City at the
Closing (as defined in Section 4 of this Agreement).
1.2 Title to Be Delivered. At the Closing, Ciry agrees to convey good and marketable
fee simple title in the Property to Developer subject only to easements, restrictions,
conditions and covenants of record as of the date hereof to the extent not objected to by
Developer as set forth in this Agreement, and subject to the conditions set forth in
Section 4 of this Agreement.
(1) City, at its sole cost and expense, shall deliver to Developer an abstract of
title to the Property continued through a date within thirty (30) days of the Ciosing
Date reflecting merchantable title in City in conformity with this Agreement,
applicable state law and the Title Standards of the lowa State Bar Association.
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 at Closing.
(2) Developer shall have until the Closing Date to render objections to title
and the Plat with respect to the Property being conveyed, including any
easements or other encumbrances not satisfactory to Developer, in writing to
City. Developer agrees, however, to review the Abstract promptly following
2
.�ni i�;nn-i nn.io
Developer's receipt of Developer's land survey, Plat 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 City. Ciry shall
promptiy 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,
or any extension thereof consented ?o by Developer, Developer may, at its sole
discretion, either (t) terminate this Agreement without any liability on its part, or
(2) take title subject to such objections. City agrees to use its best reasonable
efforts to promptly satisfy any such objections. City acknowledges that Developer
needs to acquire the Property as described in Section 10 in order to meet
construction and delivery deadlines, and City agrees to exercise its best
reasonable efforts to facilitate completion of City's duties under this Agreement in
order to accommodate a Closing before such date.
1.3 Riahts of Inspection Testinq and Review. Developer, and its consultant(s), shall
have access to the Property and all parts thereof pursuant to the terms and conditions
of the Site Access Agreement attached hereto as Exhibit H and incorporated herein by
reference, and shall have the further right to make such inquiries of governmental
agencies and utility companies, etc. as it considers appropriate.
(1) Environmental Inyestiaation/Confidential Information. Developer shall
have the right to inspect the Property prior to the Closing Date and to take
whatever tests or perform such examination, as Developer shall deem
appropriate, at its own risk and its sole cost and expense, to evaluate the
environmental condition of the Property. Prior notice of such activity by
Developer shall be provided to City (which such notice may be made by
electronic mail) and written results of such activity shall be shared with City.
Developer shall not disclose the information from the investigation or the report of
the investigation to any party prior to [he Closing, other than City without the prior
consent of City except as required by law, and except that to the extent that such
information is necessary to Developer's architects, engineers, surveyors,
contracrors, attorneys, consultants and advisors, provided, however, such
persons shall agree to keep such information confidential as provided in this
Section. City has a "Comfort Letter" from the lowa Department of Natural
Resources dated October 12, 2006 for the Property. City will provide additional
environmental reports to Developer, if requested.
(2) Hazardous Substance Remediation.
(a) Prior to the Closing, if Developer determines, upon receipt and
consideration of any report of investigation of the Property that applicable
law requires removal and/or remediation of Hazardous Substances on the
Property prior to construction of any of the Minimum Improvements, then
3
an�:n,�,k:�,K���
Developer shall retain, at its sole cost and expense, an environmental
consultant to prepare a plan (the "Environmental Remediation Plan") for
the removal and/or remediation of the identified Hazardous Substances to
a level as may be required by law and/or [o a level sufficient to allow
construc[ion of the Minimum Improvements.
(b) Based on findings of any Phase I or Phase 2, Environmental
Remediation Plan or other report or inves[igation, Developer, in its sole
discretion, may elect to terminate this Agreement prior to Closing by giving
written notice to City, without any further obligation on the part of
Developer or City.
(3) Definitions. For the purposes of this Agreement, the following definitions
shall apply:
(a) Environmental Law. Any and all federal, state and/or local laws,
regulations and legal requirements pertaining to (i) the protection of
health, safety and the indoor and outdoor environment, (ii) the
conservation, management or use of natural resources and wildlife,
(iii) the protection, access to or use of surface water and groundwater,
(iv) ihe management, manufacture, possession, presence, use,
generation, hansportation, treatment) storage, disposal, Release,
threatened Release, abatement, removal, remediation or handling of, or
exposure to, any Hazardous Substance or (v) polWtion (including, without
limitation, any Release to air, land, surface water and groundwater), and
includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund
Amendment and Reauthorization Act of 1986, 42 U.S.C. 9601 et seq.; the
Solid Waste Disposal Act, as amended by ihe Resource Conservation and
Recovery Act of 1976 and the Hazardous and Solid Waste Amendments
of 1984, 42 U.S.C. 6901 et seq.; the Federal Water Pollution Control Act,
as amended by the Clean Water Act of 1977, 33 U.S.C. 1251 et seq.; the
Clean Air Act of 1966, as amended, 41 U.S.C. 7401 et seq.; the Toxic
Substances Control Act of 1976, 15 U.S.G 2601 et se .; ihe Hazardous
Substances Transportation Act, 49 U.S.C. App. 1801 et seq.: the
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. 651
et seq.; the Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq.: the
Emergency Planning and Community Right-to-Know Act of 1986,
42 U.S.C. 11001 et seq.; the National Environmental Policy Act of 1969,
42 U.S.C. 4321 et seo.; the Safe Drinking Water Act of 1974, as amended,
42 U.S.C. 300(f) et seq.; Chapter 4558 of the lowa Code; any similar,
implementing or successor iaw to any of the foregoing and any
amendmenf, rule, regulation, order or directive issued thereunder.
(b) Hazardous Substance or Hazardous Substances. Any hazardous
or toxic substance, material or waste, which is or becomes regulated by
4
anr-nrne-i nx.io
any local government, the State of lowa or the United States Government.
It includes, without limitation, any material or substance that is (i) defined
as a "hazardous substance" or "hazardous waste" under Chapter 455B,
lowa Code, (ii) petroleum and petroleum products, (iii) asbestos containing
materials in any form or condition, (iv) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control
Act (33 U.S.C. § 1321), (v) defined as a "hazardous waste pursuant to
§ 1004 of [he Federal Resource Conservation and Recovery Act, 42
U.S.C. §6901 et seq., (vi) defined as a "hazardous substance" pursuant to
§ 101 of the Comprehensive Environmental Response, Compensation and
Liability Act, U.S.0 § 9601 et seq., or (vii) defined as a "regulated
substance" pursuant to Subchapter IX, Solid Waste Disposal Act
(Regulation of Underground Storage Tanks), 42 U.S.C. § 6991 et seq.]
The term "Hazardous Substance" shall not include any air emissions
discharged into the atmosphere as allowed by a duly issued permit from
the applicable govemmental agency.
(c) Release. Any spilling, migrating, seeping, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping or disposing of any Hazardous Substance into the indoor or
outdoor environment, includirg, without limitation, the abandonment or
discarding of barrels, drums, containers, tanks and other receptacles
containing or previously containing any Hazardous Substance and
including without limitation the migration of any Hazardous Substance
onto the Property from an adjacent property.
SECTION 2. REPRESENTATIONS OF CITY. In order to induce Developer to enter
into this Agreement and purchase the Property, City hereby represen[s and warrants to
Developer, that:
2.1 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. 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 Easements or Surface
Parking Lot (as defined in 10.10 or the, use or enjoyment thereof by Developer as
contemplated under this Agreement.
2.2 No ordinance or hearing is pending or, to the best of City's knowledge,
contemplated before any local governmental body which 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
5
,x��-�>fix-��-�.���
improvements or special assessments affecting the Property which will result in any
charge or lien be levied or assessed against the Property.
2.3 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 ali such
documents to Developer.
2.4 City has good and marketable fee simple tiile interest to the Property, Easements
and Surface Parking Lot.
2.5 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, suiis,
judgments or other proceedings relating to fire, buiiding, zoning, air poilution or health
violations as they relate to the Property of which it has actual notice.
2.6 The Property will as of the date of the Closing Date be free and clear of all liens,
security interests, and encumbrances and payment has been made for all labor or
materiais that have been furnished to the Property or will be made prior to the Ciosing
Date so that no lien for labor performed or materials furnished can be asserted against
the Property.
2.7 City has duly obtained all necessary approvals and consents for its execution,
delivery and performance of this Agreement, and that it has full power and authority to
execute, deliver and perform its obligations under this Agreement including, without
limita[ion, the execution and delivery of all documents contemplated under this
AgreemenL City's attomey shall issue a legal opinion to Developer at the time of the
Closing confirming the representation contained herein, in form and substance attached
hereto as Exhibit C.
2.8 Developer shall be responsible for the cost to modify or relocate all city utilities
deemed necessary for the development and use of the Property as a mixed-use facility
(residential and commerciaUretail), including but not limited to the water main.
Developer shall have the right to connect to said utilities, subject to City's conneciion
fees.
2.9 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 which shall in anyway be binding upon
the Property or Developer. The Easements and Surface Parking Lot are free and clear
of any occupants, and no party has a lease to or other occupancy or contract right in
any of the Easements or the Surface Parking Lot which would, in any way, prevent the
use of the Easements or the use of the Surface Parking Lot, each as intended under
this Agreement.
6
.�xi i.e-ox-i nx.:n
2.10 City shall exercise its best efforts to cooperate with Developer in the
development process.
2.11 City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
2.12 The Property is properly zoned for the various uses described in [his Agreement.
2.13 City makes no warranties or representations as to the condition of the Property
other than those which are expressly stated in this Agreement.
2.14 City has completed all required notice to or prior approval, consent or permission
of any federal, state or municipal or local governmental agency, body, board or official
to the sale of the Property, grant of the Easements and right to the use of the Surface
Parking Lot; and consummation of the Closing by City shall be deemed a representa[ion
and warranry that it has obtained the same.
2.15 City represents and agrees that, use of the Property as a mixed-use building as
described in this Agreement is in full compliance with the Urban Renewal Plan.
2.16 The Property has a permanent right cf ingress and egress to a public roadway for
the use and enjoyment of the Property from 5'" Street and Ice Harbor Drive. The
Surface Parking Lot has a permanent right of ingress and egress to a public roadway for
the use and enjoyment of the Property.
2.17 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 Ciry or the Property
being conveyed may be subject.
2.18 The representations and warranties contained in this Section shall be correct in
ali 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, and
such representations and warranties shall survive the Closing.
SECTION 3. REPRESENTATIONS OF DEVELOPER. The Developer makes the
following representations and warranties:
(1) Developer is an lowa limited liability company duly organized and validly
existing under the laws of the State of lowa and has aIl requisite power and
authority to own and operate its properties, to carry on its business as now
7
�nu-e,nr�iiix.iu
conducted and as presently proposed to be conducted, and to enter into and
perform its obligations under the Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer and, assuming due authorization, execution and delivery by the City,
is in full force and effect and is a valid and legaliy binding instrument of
Developer enforceabie in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization or other laws relating to or
affecting creditors' rights generally. Developer's counsei shall issue a legal
opinion to the City, at time of dosing, confirming the representations wntained
herein, containing the opinions set forth in the form attached hereto as Exhibit E
which such opinions shall be subject to customary exceptions, exclusions and
limitations.
(3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in
conflict with, or result in a violation or breach of, the terms, conditions or
provisions of the articles of incorporation or the bylaws of Developer or any
contractual restriction, evidence of indebtedness, agreement or instrument of
whatever nature to which Developer is now a party or by which it or its property is
bound, or constitute a default under any of the foregoing.
(4) There are no actions, suiis or proceedings pending or threatened against
or affecting Developer in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business, financial position
or result of operations of Developer or which affects the vaiidity of the Agreement
or Developer's ability to perform its obligations under this Agreement.
(5) Developer will perform its obligations under this Agreement in accordance
with the ma[erial terms of this Agreement, the Urban Renewal Plan and all local,
S[ate and federal laws and regulations.
(6) Developer will use its best efforts to obtain, or cause to be obtained, in a
timely manner, all material requirements of ali applicable local, state, and federal
laws and regulations which must be obtained or met.
(7) Developer will obtain firm commitments for permanent financing for the
Project in an amount sufficient, together with equity commitments, to successfully
complete the requirements of this Agreement and shall provide evidence thereof
to City prior to the Closing Date.
SECTION 4. CONDITIONS TO CLOSING. The Closing (as defined in Section 5 of
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:
8
:.��,-o,h���,w_���
4.1 The representations and warranties made by City in Section 2 shall be correct as
of the Closing Date with the same force and effect as if such representations were
made at such time. At the Closing, City shall deliver a certificate, in ihe form of Exhibit
D, to that effect.
4.2 Title to the Property shall be in the condition warranted in Section 2.
4.3 Developer shall obtain at its sole expense any and all necessary governmental
approvals, induding without limitations building permits, approval of zoning, subdivision
or platting which might be necessary or desirable in connection with the sale and
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 out-
of-pocket expense in connection therewith. In connection therewith, City agrees (1) to
review all of Developer's plans and specifications for [he Project and to either reject or
approve the same in a prompt and timely fashion, but in no event more than thirty (30)
days ; (2) to issue a written notification to Developer, promptly following City's approval
of same, indicating that City has approved such plans and specifications, and that the
same are in compliance with the Urban Renewal Plan and the Port of Dubuque Master
Plan including the Port of Dubuque Design Standards (as defined in Section 102 of this
Agreement) and/or that the appropriate waivers have been obtained, 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; (3) to identify in writing as soon as practicable after submission of said
plans and specifications, any and all permi[s, approvals and consents that are iegally
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 (4) to cooperate fully with Developer to facilitate
the obtaining of such permits, approvals and consents.
4.4 City has completed all required notice to or prior approval, consent or permission
of any federal, state or 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.
4.5 Developer shall be in material compliance with all the terms and provisions of this
Agreement.
4.6 Developer shall have received all necessary loan approvals and commitments
that Developer, in its sole and absolute discretion, determines necessary or appropriate
in connection with Developer's development of the Project so that Developer can
comply with its obligations hereunder and Developer has confrmed to City [hat
9
,ei irt,e,_i i;x.io
Developer has firm financial commitments in an amount sufficient, together with equity
commitments, to complete the Minimum Improvements (as defined herein), as the case
may be, in conformance with applicable Construction Plans (as defned herein), or City
shail have received such other evidence of such party's financial ability as in the
reasonable judgment of City is required.
4.7 Receipt of an opinion of counsel to Developer in the form attached hereto as
Exhibit E, which such opinions shall be subject to customary exceptions, exclusions and
limitations.
4.8 Developer shall have prepared and shall be prepared to record at Closing a plat
of survey of Property acceptable to Developer (the "PIaP'), induding location and
depiction of all appiicable easements and other substantial improvements.
4.9 Developer shall have the right to terminate this Agreement, for any reason or for
no reason, at any time prior to the Closing. Upon the giving of notice of termination by
Developer to City to this Agreement, this Agreement shall be deemed null and void.
4.10 Developer shall have otherwise satisfied itself with all other aspects of
proceeding with this transaction and the development of the Project as contemplated
herein, including, without limitation in any way, the financial viability of developing the
Project, the costs and expenses to be incurred in connection therewith, and all other
aspects of the planning, designing, development, construction and completion of the
Project, all as determined necessary or appropriate by Developer in its sole discretion.
SECTION 5. CLOSING. The ciosing of the purchase and sale of the Property (the
"Closing") shall take place on November 1, 2019, or such other date as the parties shall
agree in writing but in no event shail the Closing take place later than June 1, 2020 (the
date on which the Closing occurs shall be defined in this Agreement as the "Closing
Date"). Exclusive possession of the Property shall be delivered on the Closing Date, in
current condition and in compliance with this Agreement. All of City's representations
and warranties regarding the Property in Section 2 shall survive the Closing.
SECTION 6 CITY'S OBLIGATIONS AT CLOSING. At or prior to the Closing Date,
City shall:
6.1 Deliver to Developer City's duly recordable Warranty Deed to the Property, in the
form attached hereto as Exhibit F Qhe "Deed"), conveying to Developer marketable fee
simple title to the applicable portions of the Property necessary to construct the Project,
and all rights appurtenant thereto, including appurtenant easements, subject only to
easements, restrictions, conditions and covenants of record as of the date hereof and
not objected to by Developer as set foRh in this Agreement, and to the conditions
subsequent set forth in this Agreement;
62 Deliver to Developer the Abstract of Title to the Property;
10
,r��.«,n�-i nx.��,
6.3 Deliver to Developer such other documents as may be required by this
Agreement, all in a form satisfactory to Developer;
6.4 Deliver to Developer a statement at the Closing that all representations and
warranties in Section 2 are correct.
SECTION 7. DELIVERY OF PURCHASE PRICE. Provided that Developer has not
elected to terminate this Agreement, at the 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 applicable Purchase Price to City pursuant to
Section 1.1 hereof.
SECTION S. CLOSING COSTS. The following costs and expenses shall be paid in
connection with each Closing:
8.1. Citv shall pav:
(1) The transfer fee imposed on the conveyance, if any;
(2) All special assessments whether levied, pending or assessed, if any;
(3) City's attorneys' fees;
(4) City's broker and/or real estate commissions and fees, if any; and
The cost of recording the satisfaction of any existing mortgage and any other
document necessary to make title marketable.
8.2. Developer shall pav:
(1) The documentary fee necessary to record the Deed;
(2) Developer's attorneys' fees; and
(3) Developer's broker and/or real estate commissions and fees, if any.
SECTION 9. REAL PROPERTY TAXES. From and after Closing, Developer shall
pay or cause to be paid, when due, all real property taxes, assessments, fees and
charges, including but not limited to water, sanitary and storm water fees, connection
and tap fees, payable with respect to the Minimum Improvemen[s (defined below) and
Property. City acknowledges and agrees that Developer shall not have any obligation
to pay any real property taxes, assessments, fees and charges or other similar amoun[s
with respect to the Easements or the Surface Parking Lot.
SECTION 10. MINIMUM IMPROVEMENTS.
11
JX I LE>6P-1 li%I!1
10.1 Minimum Improvements. Subject to Sections 102 and 10.3 and provided that
Developer purchases the Property, Developer hereby agrees to construct the Building
on the Property of not less than the current height of the Port of Dubuque Public Parking
Facility, comprised of approximately 187 residential units and approximately Twenty-
Three Thousand (23,000) total square feet of commercial/retail space, along with
necessary site work as contemplated in [his Agreement at an aggrega[e cost of
approximately Eighteen Million Dollars ($18,000,000.00) (the "Minimum
Improvements"); provided, however, Developer reserves the right to reconfigure the
Minimum Improvements to substitute residential space with commercial/retail space, or
to substitute commercial/retail space with residential space, based on Developer's
determination of market conditions.
10.2 Plans for Construction of Minimum Imorovements. Within six (6) monihs after
the date of this Agreement and provided that Developer purchases the Property,
Developer shall submit to City etevation drawings, site plan, building plans and
specifications, and related documents with respect to the Minimum Improvements to be
constructed by Developer on the Property (the "Construction Plans"). City shall promptly
review all Construction Plans submitted and approve or disapprove such Construction
Plans; The Construction Plans shall be in conformity with Urban Renewal Plan,
including the Port of Dubuque Master Plan Design Standards (the "Port of Dubuque
Design Standards"), this Agreement, and all applicable state and local laws and
regulations. All work with respect to the Minimum Improvements shall be in substan[ial
conformity with the Construction Plans approved by City.
10.3 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall fumish 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 or
waiver and termination of Developer's agreements, covenants, and obligations in this
Agreement with respect to the obligations of Developer to construct the Minimum
Improvements. The Certifica[e of Completion shall terminate all rights of revestment of
title in City as provided in Section 15 and the Certificate of Completion shall so s[ate.
10.4 Develooer Lender's Cure Riahts. The parties agree that if Developer shall fail to
complete the Minimum Improvements as required by this Agreement such that
revestment of title may occur (or such that City would have the option of exercising its
revestment rights), then Developer or Developer's Lender (as defined in Section
15.1(4)), if any, shall have the right, but no; [he obligation, to complete such Minimum
Improvements according to the terms and conditions in this Agreement.
10.5 Connections Between Minimum Improvements and Parkinq Facilitv. Developer
shall own and shall be responsible for all costs associated with the design, wnstruction,
and maintenance of the connection(s) between the Minimum Improvements and the
Port of Dubuque Public Parking Facility located at 5'" and Bell Streets (the 'Parking
Structure") for access to and from the Parking Structure by Developer's tenants,
business invitees and guests of Developer's tenants (the "Connectors"). Developer
12
,xii��ee—ii;n.�.0
shall have the option to construct the Connectors and may construct Connectors at
each level between the Minimum Improvements and the Parking Structure, provided,
however, nothing in this Agreement shall impose an obligation upon Developer to
construct the Connectors. Plans for the proposed construction of the Connectors shall
be subject to the approval of City which shall not be unreasonably withheld, conditioned
or delayed. Developer shall provide City with any and all inspection documents
regarding the condition of the Connectors. City may at its option at any time and for
$1.00 and no additional compensation require Developer to convey the Connectors to
City and in such event, Developer may retain an easement in and through the
Connectors for Developer's tenants, business invitees and guests of Developer's
tenants. This section shall survive the Termination Date of this Agreement.
10.6 Access Easements.
(1) City shall deliver to Developer a recordable easement, for no additional
consideration, granting Developer, its successors and assigns, the right to
connect to the Parking Structure (at each level in which the Connectors will be
constructed) during the existence of said Parking Structure, all as needed in the
reasonable discretion of Developer and in a form acceptable to City and
Developer. Such easements shall run with the land for the benefit of the owners,
their successors and assigns and parties in possession of the Property.
(2) Developer shall grant to City easements mutually agreeable to City and
Developer for the location of and access to security cameras, with associated
electricai and cabling, on top of the Minimum Improvements at locations
identified by the City.
(3) City shall retain in the conveyance of the Property easements for lighting
and conduit located along the exterior of the Parking Structure.
(4) Developer shall grant ro City such pedestrian access easement through a
pedestrian walkway (which will be induded in [he design of the Building) for
ingress and egress ro the Parking Structure as City determines is necessary in its
reasonable judgment. This includes, but is not limited to, 24-hour pedestrian
access to the Parking Structure public restrooms, for which Developer shall
provide wayfinding signage to the reasonable satisfaction of City.
(5) City shall retain in the conveyance of the Property an easement to allow
reasonable access to the Parking Structure for maintenance, repairs and
replacements to the Parking Structure; provided, however, no portion of the
Parking Structure will be loca[ed on the Property. Developer at its cost shall
clear the easement area to facilitate any Parking Structure maintenance and City
at its cost shall restore the turf, concrete walkways, and trees/shrubs to their
previous condition if damage is caused as part of the Parking Structure
maintenance work.
13
,.��.�„���:=n_��
(6) City shall reserve in the conveyance of the Property to Developer an
access easement for emergency vehiGes for ingress, egress and access to and
from the Parking Structure.
(7) City shall reserve in the conveyance of the Property to Developer an
easement for signage, including but not limited to signage for pedestrian
wayfinding signs, restrooms, and parking ramps.
(8) City shall grant to Developer an easement to attach the Developer Panels
(as defined in Section 10.12 of this Agreement) to the exterior of the Parking
Structure along the wall of the Parking Structure facing E. 5'h Street. Developer's
easement shall include, without limitation in any way, the right to keep, main[ain
repair, redesign, replace, and remove the Developer Panels at any time;
provided that the appearance of the Developer Panels from inside of the Parking
Structure shall not be materially modified (other than in the event of a removal).
If Developer's redesign or replacement of the Developer Panels will materially
modify the appearance of the Developer Panels when viewed from the interior of
the Parking Structure, Developer shall obtain City's prior written consent before
making such redesign or repiacement. Developer's easement rights shall include
access to the Parking Structure for all purposes related to the Developer Panels
and shall include the right to make such attachments to the Parking Structure as
are necessary to attach, maintain, repair, redesign, and replace the Developer
Panels. Developer shall repair any damage to [he Parking Structure resulting
from Developer's use of the easement for the Developer Panels contained in this
Section 10.6(8).
10.7. Landscaoina. Provided that Developer purchases the Property, Developer shall
design, construct, and maintain landscaping and pedestrian ways between the Parking
Structure and the Building. The landscaping and pedestrian way plans shall be in
conformity with Urban Renewal Plan, including the Port of Dubuque Design Standards,
this Agreement, and all applicable s[ate and local laws and regulations. All work with
respect to the Minimum Improvements shall be in substantial conformity with the plans
approved by City.
10.8. Construction Staqinq Area. Developer may use the area identified as the staging
area shown on Exhibit I (the "Staging Area") during construction of the Minimum
Improvements until the earlier of (i) the date upon which Developer receives the
Completion Certificate from the City or (ii) the date of the expiration or earlier
termination of this Agreement. Upon completion of the Minimum Improvements,
Developer agrees to restore the Staging Area to its condition prior to the construction of
the Minimum Improvements. Developer shall take commercially reasonable action to
screen from view from the public streets the Staging Area at ali [imes during
construction of the Minimum Improvements. The screening material to be utilized by
Developer is subject to City's reasonable review and approval. Developer shall at all
times during the construction of the Minimum Improvements keep 5�" Street free from all
cons[ruction materials and debris of any kind.
14
.mi i�an:�n;�.m
10.9. Sidewalk Maintenance. Developer shall be responsible for the maintenance of
the sidewalk abutting the Property on 5'h Street and Ice Harbor Drive, the walkway
between the Parking Structure and Ice Harbor Drive.
10.10. Parkinq Canopies. Developer shall, at any time during the term of this
Agreement, have the option to construct, reconstruct, repair or replace those certain
parking canopies (the "Canopies") on the parking lot shown on Exhibit J (the "Surface
Parking LoY') including, without limitation in any way, the option to install solar panels
upon the Canopies. If Developer elects to construct, repair or replace the Canopies,
(i) the number, location and design of the Canopies shall be subject to the reasonable
approval of City; and (ii) Developer shall submit ro City elevation drawings, site plan,
building plans and specifications, and related documents with respect to the Canopies
and related solar panels and equipment to be constructed by Developer on the Surface
Parking Lot (the "Canopy Plans"). City shall promptly review all Canopy Plans submitted
and approve or disapprove such Canopy Plans; The Canopy Plans shall be in
conformity with Urban Renewal Plan, including the Port of Dubuque Design Standards,
this Agreement, and all applicable state and local laws and regulations. All work with
respect to the Canopies shall be in substantiai conformity with the Canopy Plans
approved by City. If Developer exercises the option set forth in this Section, City and
Developer shall enter into an agreement reasonably acceptable to each of the parties
setting forth the parking rights, terms, conditions and restrictions related to the use of
the Surface Parking Lot and construction, operation, repair, replacement, and
maintenance of the Canopies.
10.11 Port of Dubuaue Public Parkino Facilitv' Surface Parkinq Lot. City is only
providing consent for Developer's business invitees and guests of Developer's residents
to park in the Port of Dubuque Public Parking Facility. Developer shall use its best
efforts to require Developer's residents and employees of Deveioper's commercial
tenants to park in the Surface Parking Lot on 5'" Street, including, but not limited to, a
condition in their leases approved by City, and Developer agrees to enforce such lease
condition. Tenants, residents, and the invitees and guests of tenants and residents of
the Project shall have the right to park in the SuAace Parking Lot. At all times and
without charge to the Developer or any subsequent owner of any portion of the Project,
the Surface Parking Lot shall provide the Project with parking rights and parking spaces
sufficient to satisfy any zoning requirement, building code requirement or other parking
requirement of applicable law, provided further that if the Surface Parking Lot does not
provide the Project with parking rights and parking spaces sufficient to satisfy any
zoning requirement, building code requirement or other parking requirement of
applicable law, City will provide such parking rights and parking spaces within 1,200 feet
of the Project.
10.12 Parkinq Structure Decorative Panels. The Parking Structure includes non-
structural, decorative panels attached to its exterior for screening and decorative
purposes. In conjunction with the conveyance of the Property to Developer, City will
simultaneously convey to Developer those [twenty-five (25)] decorative panels attached
15
,�i i.�n,x.i vx.n�
to the exterior of the Parking Structure facing E. 5'h Street and visible from the Building
and the courtyard areas of the Building, but exduding any panels visible from public
right-of way (the "Developer Panels"). From and after the conveyance of the ownership
of the Developer Panels to Developer, Developer shall thereafter maintain the
Developer Panels in good condition and appearance. Developer shall have the righ[ to
redesign or replace the Developer Panela. subject to the terms set forth in Section
10.6(8) and shall have the right to remove the Developer Panels from the Parking
Facility, in part or in the entirety, at Developer's discretion.
SECTION 11. CITY PARTICIPATION.
11.1 Acouisition Grant to Developec For and in consideration of Developer's
obligations hereunder to construct the Minimum Improvements, Ciry agrees to make
Acquisition Grants (defined below) to Developer on the Closing Date in the following
amounts:
(1) The acquisition grant for the Property (the "Property Acquisition Grant")
shall be Three Hundred Thirty-One Thousand Eighty-Three and no1100 Dollars
($331,083) per acre for approximately 1.22 acres for a total Property Acquisition
Grant in the amount of approximately $403,92t26. The actual and final amount
of the Property Acquisition Gran[ shall be determined using the acival acreage
shown on the Plat.
(2) The acquisition grant for the Easements (the "Easements Acquisition
GranY') shall be One Hundred Sixty-Five Thousand Five Hundred Forty-One and
50/00 Dollars ($165,54L50) per acre for approximately 0.49 acres for a total
Easements Acquisition Grent in the amount of approximately $81,115.34. The
actual and final amount of the Easements Acquisition Grant shall be determined
using the actual acreage shown on the Plat.
(3) The total acquisition grant shall be the sum of the Property Acquisi[ion
Grant and the Easements Acquisition Grant ([he "Acquisition GranP').
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.
11.2 Economic Develooment Grants.
(1) Minimum Improvements. 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, so iong as no Event of Default exists under this Agreemen[, to make
twenty (20) consecutive semi-annual payments (such payments being referred to
collectively as the "Economic Development Grants") to the Developer on the
following dates:
16
,����,�o�-��,x..�,
November 1, 2022 May 1, 2023
November1, 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
November 1, 2031 May 1, 2032
(2) Each payment shall be equal to 75% of 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, the
Minimum Improvements constructed by Developer (the "Developer Tax
Increments"). The Developer Tax Increments shall not indude (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 indude all
amounts paid by Developer as regular property taxes. Nowithstanding the
foregoing, however, no tax increment revenues collected by City with respect to a
hotel constructed by Developer on the Property shall be included in [he
calculation of paymeMs in this Section 11.2(1)
(3) To fund the Economic Development Grants, City shall certify to the County
prior to December 1 of each year, commencing December 1, 202�, its request for
75% of 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 in December 2021, the Economic Development Grants in
respect thereof would be paid to the Developer on November 1, 2022, and May
1, 2023).
(4) The Economic Development Grants shall be payable from and secured
solely and only by the Developer Tax Increments (which, upon receipt, shall be
deposited and held in a special account created for such purpose and designated
as the "Merge Project TIF AccounY' of City. City hereby covenants and agrees to
maintain its TIF ordinance in force during ihe term hereof and to apply the
incremental taxes collected in respect of the Minimum Improvements and
allocated to the Merge Project TIF Account to pay the Economic Development
Grants, as and to the extent set forth in Section 112(1j hereof. The Economic
17
i811-6)M1R.II"/X.10
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 ac[ually collected and held in the Merge Project TIF
Account (regardless of the amounts thereof) to the payment of the Economic
Development Grants to Developer as and to the e�ctent described in this Section
11.2(3).
(5) City shall be free to use any and all tax increment revenues collected in
respect to other properties within the Project Area, or any of the available
Developer Tax Increments resulting from the termination of the annual Economic
Development Grants under Section 11.2(1) hereof, for any purpose for which
such tax increment revenues may lawfully be used pursuant to the provisions of
the Urban Renewal Law, and Ciry shall have no obligations to Developer with
respect to the use thereof. City shall aiso be free to use for any lawful purpose
the actual tax increment revenues collected by the City and not required to be
paid to Developer in respect of the Minimum Improvements.
11.3 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 Ci[y 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 1�.3. City may exercise its right of non-appropriation as to the amount of [he
insiallments 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 dedaring City's election to non-appropriate
funds othenvise 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 Agreement during tha[same fiscal year.
(2) Each installment of the Economic Deveiopment 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 allocatetl to the special fund pursuant to lowa
Code (2013) § 403.19(2).
18
JNII+�]N�-11)F.ill
(3) The right of non-appropriation reserved to City in ihis Section 11.3 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
applicabie 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 Agreemeni which can be
given effect without ihe suspended provision. To this end the provisions of this
Agreement are severable.
SECTION 12. COVENANTS OF DEVEIOPER.
12.1 Job Creation.
(1) The development of the Property (including, without limitation in any way,
the ownership, operation, maintenance and management of the Minimum
Improvements and the operation, maintenance and management of the Surface
Parking Lot) shall result in a minimum of ten (10) full-time equivalent ("FTE")
employees in Dubuque, lowa which such FTE employees shall be contracted for,
employed or otherwise engaged on or prior to January 1, 2023 and shall be
maintained at or with respect to the Property during the term of this Agreement. It
is agreed by the parties that Developer has no FTE employees in Dubuque,
lowa, as of January 1, 2019. FTE employees shall be calculated by adding
together all hours worked by direct or indirect employees related to the Property
including, without limitation in any way, all full-time employees, part-time
employees, employees of Developer's commercial tenants (for purposes of
clarification, employees, self-employed business owners, independent
contractors and other self-employed individuals using the Property as their
primary place of service rendered, including, without limitation in any way those
individuals working in shared spaces or co-working space configurations shall be
included in the calculation of FTEs,) and shall be calculated on the basis of 2080
hours per year as one FTE employee, In the event that the certificate provided to
City under Section 122 hereof on January 1, 2032 (the "FTE Date") discloses
that the Property has not as of the FTE Date resulted in at least 10 FTE
employees as provided hereinabove, Developer, shall pay to City, promptty upon
written demand therefor, an amount calculated by dividing the Acquisition Grant
by 10 (the required number of FTE employees) and multiplying ihat product by
the number of FTE employee positions that do not exist as of the FTE Date. For
example, if only 8 FTE employee positions ezist as of the FTE Date, the amount
19
,K��.�,,n�.�:�.��
calculated above shall equal the amount calculated by (1) taking $485,036.60
(subject to adjustment under Section 11.1 above), (2) dividing $485,036.60 by
10 for a result of $48,503.66 and (3) multiplying that result (�48,503.66) by 2
(which is the number of FTE positions absent as of the FTE Date) for a total
payment obligation of$97,007.32.
The foregoing payment and reduction of the Acquisition Grants shall be the City's
sole remedies for the failure of Developer to meet the job creation requirements
of this Section 12.1.
(2) City retains the right to begin escrowing amounts in anticipation of
Developer's obligation to refund a portion of the Acquisition Grant under
subsection 12.1(1) above by withholding a portion of the semi-annual Economic
Development Grant payable under Section 12.1(1) of this Agreement beginning
February 1, 2030 if the certificate provided to City under Section 12.2 hereof on
January 1, 2030 discloses that Developer as of that date has not created and
maintained, as of the date of such certificate, the FTE employees required by
Section �2.1(1). City shall not withhold any amount in excess of the amount
calculated in Section 12.'I(2). In the event that the certificate provided to City
under Section 122 hereof on the FTE Date discloses that Developer does have,
as of the FTE Date, at least the required FTE employees as provided in
subsec[ion 12.1(1) of this Agreement, City shall release to Developer the amoun[
of the Economic Developmeni Granis withheld under this subsection 12.1(2) of
this Agreement.
(3) Ooeration of Propertv� Housinq Vouchers. For and in consideration of the
Grent offered under this Agreement, during the operation of the Property,
including the Building, as a rental resideniial property, Developer shall accept, or
cause to be accepted, applications from prospective tenants with housing
vouchers (issued under the U.S. HUD's Section 8 voucher program or a similar
program) that are otherwise qualified prospective tenants.
12.2 Certification. To assist City in monitoring the creation and maintenance of FTE
employees resulting from the ownership, operation management and maintenance of
the Property hereunder, not later than January 15, 2023, and not later than January 15
of each year thereafter during the term of ihis Agreement, a duiy authorized officer of
Developer shall certify to City in a form acceptable to City the number of FTE
employees employed on January 1, 2030 and on January 1 of each year thereafter
calculated by adding together all hours worked by direct or indirect employees related to
the Property including, without limitation in any way, all full-time employees, part-time
employees, employees of Developer's commercial tenants (for purposes of clarification,
employees, self-employed business owners, independent contractors and other self-
employed individuals using the Property as their primary place of service rendered,
inclutling, without limitation in any way those individuals working in shared spaces or co-
working space configurations FTEs) at the Property in Dubuque, lowa on the first day of
20
uxi i.n+ne.i��x.iu
each of the preceding 12 months determined based on the terms set forth in Section
12. I.
12.3 Insurance Requiremenis:
(1) Developer shall provide and maintain or cause to be maintained at all
times during the process of constructing the Minimum Improvements and at its
sole cost and expense builders risk insurance, written on a Completed Value
Form in an amount equal to one hundred percent (100%) of the Building
(including Minimum Improvements) replacement value when construction is
completed, and including flood coverage for the full replacement cost of the
Building induding Minimum Improvements, naming City as an additional insured
and loss payee. Coverage shall include the "special perils" form and developer
shall fumish City with proof of insurance in the form of a certificate of insurance.
(2) Upon completion of construction of the Minimum Improvements and
during the term of this Agreement, Developer shali maintain, or cause to be
maintained, at its cost and expense property insurance against loss and/or
damage to the Building (including the Minimum Improvements) under an
insurance policy written with the "special perils" form and in an amount not less
than the full insureble replacement value of the Building (including the Minimum
Improvements), and including flood coverage for the full replacement cost of the
Building including Minimum Improvements, naming City as foss payee.
Developer shall furnish to City proof of insurance in the form of a certifcate of
insurance.
(3) The term "replacement value" shall mean the actual replacement cost of
the Building with Minimum Improvements (excluding foundation and excavation
cos[s and costs of underground flues, pipes, drains and other uninsurable items)
and equipment, and shall be reasonably determined from time to time at the
request of City, but not more frequently than once every three (3) years.
(4) Developer shall notify City immediately in the case of damage exceeding
$50,000 in amount to, or destruction of, the Minimum Improvements or any
portion thereof resulting from fire or other casualty. Net proceeds of any such
insurance ("Net Proceeds"), shall be paid directly to Developer as its inierests
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.
21
:n��-R,R��-�nr.���
Notwithstanding the foregoing, if the Building is damaged or destroyed and the
cost of repair or restoretion of the Building would exceed 25°/o of the value of the
Property as of the date of such damage or destruction, then Developer shall not
be obligated to rebuild, reconstruct and restore Ihe Building on the Property and
may:
(a) Replace the Minimum Improvements, including the Building,
subject to the approval of the plans by City, with a projec[ of equal to or
greater value than the Minimum Improvements, including the Building,
required by this Agreement, or
(b) Terminate this Agreement by delivering written notice to City within
sixty (60) days after the event causing such damage or deshuction. If
Developer elects to terminate this Agreement as set forth in this Section,
Developer agrees to raze the remaining improvements, clear the site of
the Building materials and return the Property to substantially the grade
existing prior to construction of the Building. Upon written notice by City
delivered to Developer that the Property has been retumed to substantially
the grade existing prior to construction of the Building, City shall have a
one-time exclusive option to purchase the Property upon the terms and
conditions set out in the Option Agreemen[attached hereto as Exhibit K.
(5) This covenant shall survive the termination of this Agreement.
12.4 Non-Discrimination. In carrying out the Project, Developer shall not discriminate
against any employee or applicant for employmeM or housing because of race, religion,
color, sex, sexual orientation, gender identity, national origin, age, or disability.
12.5 Conflict of InteresL 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 participa[e 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 the 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.
12.6 Non-transferabilitv' Permitted Transfers. Until such time as the applicable
Minimum Improvements are complete (as certified by City under Section 10.4), except
as provided in this Section, this Agreement may not be assigned by Developer nor may
the Property be transferred by Developer to another party without the prior written
consent of City, which consent shall not be unreasonably withheld. Thereafter,
22
,si ie�oxi i,n.io
Developer shall have the right to assign this Agreement and upon assumption of all of
the obligations in the Agreement by the assignee, Developer shall no longer be
responsible for its obligations under this Agreement. Nothing in this Section 12.6 shall
prevent Developer from assigning its rights in this Agreement to another entity, so long
as said entity consists of the same owners as Developer, and such transferee agrees to
be bound by the provisions of this Agreement as if such iransferee were an original
signatory hereto. Without limitation upon the foregoing, Developer may assign its
rights and obligations under this Agreement, without the City's consent or approval
to: (a) an entity owned or controlled by Developer; (b) an entity owned or controlled
by any member of [QOZF]; or (c) an entity affiliated with [QOZF] or Developer by
commonality of ownership of at least fifty percent (50%). As used herein, "owned or
controlled" shall mean holding at least fifty percent (50%) of the interests in such
company or an entity or person serving as manager with it being understood that
Merge LLC has been designated the sole manager of [QOZF] pursuant to the
Delaware Limited Liability Act, Delaware Code, Title 6, Section 18-101. Nothing
herein, further, shall prevent or restrict Developer from collaterally assigning its
rights under this Agreement in connection with a financing of the Project (or any
portion thereof), it being understood that Developer may do so without the approval
or consent of the City.
12.7 Restrictions on Use. Developer agrees for itself, its successors and assigns, and
every successor in in[erest 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 a mixed-use building as described in this Agreement is in full
compliance with the Urban Renewal Plan); and
(2) Not discriminate upon the basis of race, religion, color, sex, national origin,
age, sexual orientation, gender identity or disabili[y in the sale, lease, rental, use
or occupancy of the Property or any improvements erected or to be erec[ed
thereon, or any part thereof (however, Developer shall not have any fiability 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).
12.8 Compliance with Laws. Subject to City's representations, warranties and
covenants with respect to City's obligation to comply with laws, rules and regulations
relating to the Property as set forth in this Agreement, Developer will comply with all
laws, rules and regulations relating to the Property and the Minimum Improvements,
other than laws, rules and regulations the failure to comply with which or the sanctions
and penalties resulting therefrom, would not have a material adverse effect on the
business, property, operations, financial or othenvise, of Developer.
23
,xi i+aoe�i nx.io
SECTION 13. COVENANTS OF DEVELOPER FOLLOWING CONSTRUCTION OF
THE PROJECT.
13.1 Books and Records. During the term of this Agreement and from and after
completion of the Minimum Improvements, Developer shall keep at all times and make
available to City upon reasonable request proper books of record and account in which
full, true and correct eMries will be made of all dealings and transactions of or in relation
to the business and affairs of Developer with respect to the Property and the Minimum
Improvements 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.
13.2 No Exemations. During the term of this Agreement, and except as othenvise
permitted by this Agreement, Developer agrees 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.
13.3 Comoliance with Laws. Developer will comply with all laws, rules and regulations
relating to the Property and the Minimum Improvements, other than laws, rules and
reguiations the failure to comply with which or the sanctions and penalties resulting
therefrom, would not have a material adverse effect on the business, property,
operations, financial or othenvise, of the Developer.
13.4 Repairs.
(1) Developer shall at all times at Developer's own costs and expense, keep
the Property and the Improvements thereon, and all sidewalks, curbs, and all
appurtenances to the Property, in good order, condition and repair, casualties
and ordinary wear and tear excepted and to a condition satisfactory to City.
Developer shall keep the Property in such condition as may be required by law
and by the terms of the insurance policies furnished pursuant to the Agreement,
whether or not such repair shall be interior or exterior, and whether or not such
repair shall be of a structural nature.
(2) City shall have the right to require Developer upon written notice to repair
or remove any structure on the Property which City determines does not comply
with the requirements of this Section 13.4, and Developer shall repair or remove,
as the notice may require, any such structure within one hundred twenty (120)
days after receipt of such notice.
(3) City shall have no obligation to Developer for any maintenance expense of
any kind including legal fees on the Property, including but not limited to, private
roads, parking areas, utiliry connections or buildings.
24
„�i�.mF�-��;..i��
(4) This Section 13.4 shall survive the termination of this Agreement.
SECTION 74. EVENTS OF DEFAULT. The following shall be "Events of DefaulY'
under this Agreement and the term "Event of DefaulY' shall mean, whenever it is used in
this Agreement, any one or more of the following events:
14.1 Failure by Developer to pay or cause to be paid, before thirty days after such
payments are due, all reai property taxes assessed with respect to the applicable
Minimum Improvements and Property;
14.2 Faiiure by Developer to cause the construction of the applicable Minimum
Improvements (or applicable phases of Minimum Improvements) to be commenced and
completed pursuant to the terms, conditions and limitations of this Agreement;
14.3 Subject to Section 12.5, transfer of any interest by Developer of the Property or
this Agreement in violation of this Agreement prior to the issuance of the final Certificate
of Completion for any applicable phase; or
14.4 Failure by Developer ro substantially observe or perform any other material
covenant, condition, obligation or agreement on its part to be observed or performed
under this Agreement.
SECTION 15. REMEDIES ON DEFAULT BY DEVELOPER.
15.1 Whenever any Event of Default referred to in Section 14 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 written notice, or if the Event of Default cannot be cured within sixty
(60) days and Developer or if applicabie, the Mortgagee, does not provide assurances
to City that the Event of Default will be cured as soon as reasonably possible thereafter:
(1) City may suspend its performance under this Agreement until it receives
assurances from Developer deemed adequate by City, that Developer will cure
its default and continue its performance under this Agreement;
(2) Until the Closing, City may cancel and terminate this Agreement;
(3) City may withhold the Certificate of Completion; and
(4) 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 terms of the mortgage granted by Developer to secure a loan
obtained by Developer from a commercial lender or other financial institution
("Developer's Lender") to fund the acquisition of the Property or constructlon of
25
,ei i-fiv��.�i,N.i�
the applicable Minimum Improvements (a "First Mortgage") an Event of Default
under Section 15 of this Agreement occurs and is not cured within the times
specified in Section 16, then City shall have the right to re-enter and take
possession of the Property and any portion of the applicable Minimum
Improvements thereon and to terminate (and revest in City pursuant to the
provisions of this Section 16 subject onty to any rights in any holder of the First
Mortgage) the estate conveyed by Ciry to Developec The intent of this provision,
together with other provisions of this Agreement, that the conveyance of the
Property to Developer shall be made upon the condition that (and the Deed shall
contain a condition subsequent to the effect that), in the event of default under
Section 15, prior to the receipt of the Certificate of Completion, on the part of
Developer and failure on the part of Developer to cure such default within the
period and in the manner stated herein, City may declare a termination in favor of
City of the title and of all Developer' rights and interests in and to the Property
conveyed to Developer, and that such title and all rights and interests of
Developer, and any assigns or successors in interests of Developer, and any
assigns or successors in interest to and in Property, shall revert to City (subject
to the provisions of Seciion 16 of this Agreement), but only if the events stated in
Section 15 of this Agreement, which occurs prior to the receipt of the Certificate
of Completion, have not been cured within the time period provided above, or, if
the events cannot be cured within such time periods, Developer does not provide
assurance to City, reasonably satisfactory to City, that the events will be cured as
soon as reasonabiy possible. Notwithstanding the foregoing, however, City
agrees to execute a Subordination Agreement in favor of Developer's Lender, in
a form reasonably acceptable to City and to Developer's Lender.
(5) Upon the revesting in City of title to the Property as provided in Section
15.1(4) of this Agreement, City may resell the Property, and if it elects to do so, it
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 applicable Minimum Improvements or such other
improvements in their stead as shall be satisfactory to City and in accordance
with the uses specified for such Property or part thereof in the Urban Renewal
Plan. Subject to any rights or interests in such property or proceeds granted to
Developer's Lender upon such resale of Property the proceeds thereof shall be
applied:
(a) First, to pay and discharge the First Mortgage;
(b) 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
26
,n i i.,u,�-i ur n�
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
opera[ion of law;
(c) 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 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 City) existing on the Property or
part thereof at the time of revesting of titie thereto in City or to discharge or
prevent from attaching or being made any subsequent encumbrances or
liens due to obligations, default or acts of Developer, its successors or
transferees (except with respect to such mortgage(s)), any expenditures
made or obligations incurred with respect to the making or completion of
applicable Minimum Improvements or any part by City on Property or part
thereof, and any amounts otherwise owing to City (including water and
sewer charges) by Developer and its successors or transferees; and
(d) 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 Developer in making any of the applicabie Minimum
Improvements on Property, less (2) any sums previously received by
Developer with respect to the Purchase Price or sums expended with
respect to the Minimum Improvements.
(6) Upon revesting in the City to the Property as provided in Section 16.1(4) of
this Agreement, if the City does not resell the Property within one year, the City
shall 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 Developer in
making any of the Applicable Minimum Improvements on Property, less (2) any
sums previously received by Developer with respect to the Purchase Price or
sums expended with respect to the Minimum Improvements.
SECTION 16. REMEDIES ON DEFAULT BY CITY. If City defaults in the
performance of this Agreement or any of its representations and warranties contained
herein or otherwise fails to observe or perform any material covenant, condition,
obligation or agreement on its part to be observed or performed under this Agreement,
Developer may take any action, including legal, equitable or administrative action which
may appear necessary or desirable to collect any payments due under this Agreement,
27
aei i.,mx-i i;x.i o
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 its performance under this Agreement until it receives assurances from City,
deemed adequate by Developer, that City will cure its default and continue its
pertormance under this Agreement. Additionally, City will reimburse Developer all costs
and expenses incurred by Developer, including, but not limited to salaries of personnel
and reasonable attorney fees and expenses, incurred as a result of City's defautt(s) in
the performance of this Agreement or any of City's representations and warranties
contained herein.
SECTION 17. REMEDIES GENERALLY.
17.1 A non-defaulting party 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.
17.2 No remedy herein conferred upon or reserved to a party is intended to be
exclusive of any other available remedy or remedies, but each and every such remedy
shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute.
17.3 In the event any agreement contained in this Agreement should be breached by
any party and thereafter waived by any o[her party, such waiver shall be limited to ihe
particular breach so waived and shall not be deemed to waive any other concurrent,
previous or subsequent breach hereunder.
17.4 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 [o any other relief which may be awarded.
SECTION 18. GENERAL TERMS AND CONDITIONS.
15.1 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: Merge, LLC
Attn: Brent Dahlshom, Partner & Manager
PO Box 128
28
itll I-GiR&I IMJI�
Cedar Falls, IA 50613
Phone: (319) 5053609
With a copy to: Merge, LLC
Attn: JoyHannemann
clo Spaces
811 E. Washington, Suite 500
Madison, WI53703
With a copy to: Snell S,Wilmer, L.L.P.
One Arizona Center
400 East Van Buren Street, Suite 1900
Phoenix, AZ 85004
Attn: Byron Sarhangian
Phone: (602) 382-6531
If to City: City Manager
City Hall
50 W. 13'"Street
Dubuque, lA 52001
Phone: (563) 589-41�0
Fax: (563) 589-4149
With a copy to: City Attorney
City Hall
50 W. �3'^Street
Dubuque, lA 52001
Or at such other address with respect to either party as that party may, from time to time
designate in writing and forward to the other as provided in this Section 18.1.
18.2 Bindino Effect; Assiqnment. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of the parties. Except as provided in
Section 12J neither party shall assign any of its rights or obligations hereunder without
the prior written consent of the other party.
18.3 Termination Date. Unless terminated sooner under the terms of this Agreement,
this Agreement and the rights and obligations of the parties hereunder shall terminate
on June 1, 2032 (the "Termination Date"). unless otherwise extended as provided
herein.
18.4 Force Maieure. A party shall be excused from its obligations under this
Agreement if and to the extent and during such time as the party is unable to perform its
obligations or is delayed in doing so due to events or conditions outside of the party's
reasonabie control (each a "Force Majeure EvenY') including, without limitation in any
way, as the result of any acts of God, war, fire, or other casualry, riot, civil unrest,
29
iNl F696F11�tl.11l
extreme weather conditions, terrorism, strikes, and/or labor disputes or other matter
beyond the control of such party. Upon the occurrence of a Force Majeure Event, the
party incurring such Force Majeure Event will promptly give no[ice to the other party,
and thereafter the parties shall meet and confer in good faith in order to identify a cure
of the condition affecting its performance as expeditiously as possible.
18.5 Applicable Law: Severabilitv. This Agreement shall be subject to, construed and
enforced in accordance with the laws of the state of lowa. If any provision of this
Agreement is held invalid under applicable Law, such invalidity shall not affect any other
provision of this Agreement that can be given effect without the invalid provision, and to
this end, the provisions hereof are severeble.
18.6 Interpretation� Headinqs. Words and phrases herein shall be interpreted and
understood according to ihe context in which they are used. The headings of the
articles, sections, paragraphs and subdivisions of this Agreement are for convenience of
reference only, are not to be considered a part hereof and shall not limit or expand or
otherwise affect any of the terms hereof.
18.7 Entire AqreemenC Counteroarts: Remedies Cumulative. This Agreement,
including any Exhibits, all of which are incorporated by this reference, and the
documents executed and delivered pursuant hereto, constitute the entire agreement
behveen the parties, and may be amended only by a writing signed by each party. All
agreements, instruments and documents referred to in this Agreement are by this
reference made a part of this Agreemen[ for all purposes. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute but one and the same instrument. The
parties shall have, in addition to the rights and remedies provided by this Agreement, all
those allowed by all applicable laws, all of which shall be in extension of and not in
limitation of those provided hereunder.
18.8 Waivers. Prior to issuance of the Certificate of Completion, no waiver by either
party of any breach of this Agreement, or of any warranty or representation hereunder,
shall be deemed to be a waiver by the same party of any other breach of any kind or
nature (whether preceding or succeeding the breach in question, and whether or not of
the same or similar nature).
(1) No acceptance by a party of payment or performance after any such
breach shall be deemed to be a waiver of any breach of this Agreement or of any
representation or warranty hereunder, whether or not the party knows of the
breach when it accepts such payment or performance.
(2) No failure by a party to exercise any right it may have under this
Agreement or under law upon another party's default, and no delay in the
exercise of that right, shall prevent it from exercising the right whenever the other
party continues to be in default. No such failure or delay shall operate as a
waiver of any default or as a modification of the provisions of this Agreement.
30
�„�:�„�.�.:�,..���
18.9 Construction Aqainst Drafter. It is acknowledged that each of the parties have
had substantial input individually, and by their attorneys, into the drafting of this
agreement. It is therefore agreed that the Agreemen[ shall not be construed for or
against either of the parties based upon the identity of the drafter of the final Agreement.
18.10 Execution bv Facsimile. The parties agree that this Agreement may be
transmitted between them by facsimile machine or electronic Iransmission. The parties
intend that the faxed or electronic trensmission signatures constitute original signatures
and that a faxed or electronically transmitted Agreement containing the signatures
(original, faxed or electronically transmitted)of all the parties is binding on the parties.
18.11 Memorandum of Develooment Aqreement. Developer shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit G in
the office of the Recorder of Dubuque County, lowa. Developer shall pay the costs for
so recording.
18.12 No Personal Liability. Notwithstanding anything herein, no member, shareholder,
director, partner, manager, officer or employee of Developer shall have any personal
liability under this Agreement, whether to City or othenvise, inciuding, without limitation,
as a result of a default or breach by Developer, or for any amount which becomes owing
hereunder by Developer, or any obligation not performed by Developer.
18.3 Est000el Certificates� Financinq. City, at any time and from time to time, upon
not less than ten (10) days' notice from Developer, shall execute, acknowledge and
deliver to Developer (or any party upon Developer's request, including any lender or
prospective lender of Developer), a statement in wri[ing: (a) certifying that this
Agreemeni is unmodified and in full force and effect (or if modified, stating the nature of
such modification and certifying that this Agreement, as so modified, is in full force and
effect); and (b) acknowledging that there are not, to Ci[y's knowledge (as applicable),
any uncured defaults on the part of Developer hereunder, or specifying such defaults if
they are claimed. Any such statement may be relied upon by any existing or prospective
lender, title insurer, purchaser, assignee, or other third party. City further agrees to
provide such other reasonable assurances as may be necessary or required by a lender
to facilitate the financing of any aspect of the Project, including the individual financing
of only a portion of the Project or Property.
IN W ITNESS W HEREOF, City has caused this Agreement to be duly executed in
its name and behalf by its Mayor and attested to by its City Clerk and Developer has
caused this Agreement to be duly executed on or as of the first above written.
CITY OF DUBUQUE, IOWA By:
Roy D. Buol, Mayor
31
.,w�:�,fi>;n..��
MERGE, LLC
By:
Kevin S. Fimstahl, City Clerk
gY: `.. _-�i! "���
Brent Dahlstrom, Partnei
Manager
(Ciry Seal)
32
4NI Idt6%�I I ItlJU
STATE OF IOWA )
) SS
COUNTY OFDUBUQUE )
On this day of 20_, before me the undersigned, a Notary
Public in and for the said County and State, personally appeared Roy D. Buol and Kevin
S. Firnstahl, to me personally known, who, being by me duly swom, did say that they
are the Mayor and City Clerk, respectively, of the City of Dubuque, lowa, a municipal
corporation executing the instrument to which this is attached; that the seal affixed
hereto is the seal of said municipal corporation; that said instrument was signed and
sealed on behalf of the Ciry of Dubuque, lowa, by authority of its City Council; and that
said Mayor and City Clerk acknowledged the execution of said instrument to be the
voluntary act and deed of said City, by it and by them voluntarily executed.
No[ary Public
STATE OF IOWA )
F;�ACYHA�� k ) SS
COUNTY OF-BkJ$�1@l�€ )
On this 1� day of Si�+CY•�41c-r 20 I_�I, before me the undersigned, a Notary
Public in and for the State of lowa, personally appeared Brent Dahlstrom, to me
personally known, who, being by me duly sworn, did say that they are Partner
8, Manager of Merge, LLC the corporation executing the instrument to which this is
attached and that as said Partner & Manager of Merge, LLC acknowledged the
execution of said instrument to be the voluntary act and deed of said company, by it and
by them voluntarily executed.
� Aa�µµµ y JILLLNR�AVENBRINN
u J , � /� o�Z Commission Number 19767]
� / L v � My Commission Expires
No(a ��Pu li � .e,,. ��i 2e.2o22
F9USERSVs�eckle\Lintlahl\Merge.LLC DA\Merqe 090519bal.docx
33
.��.�,,,,�.��,...��
LIST OF EXHIBITS
EXHIBIT A Urban Renewal Plan
EXHIBIT B-1 Site Plan
EXHIBIT B-2 Proposed Piat
EXHIBIT C City Attorney Certificate
EXHIBIT D City Certificate
EXHIBIT E Opinion of Counsel to Developer
EXHIBIT F Warranty Deed
EXHIBIT G Memorandum of Development Agreement
EXHIBIT H Site Access Agreement
EXHIBIT I Construction Staging Area
EXHIBIT J Surface Parking Lot
EXHIBIT K Option Agreement
WSURANCESCHEDULE
34
=w�:.fi;F�.��,A.���
EXHIBIT A
URBAN RENEWAL PLAN
On file at the Office of the City Clerk, City Hall, 50 West 13'" Street, Dubuque, lowa
35
.,.��.E,nE i�,x.���
EXHIBIT B-1
SITE PLAN
36
,���.ti,�,���,K.��
DUBUQUE MIXED-USE
SITE PLAN
❑ REsoarer IAL
■
RETAIL
Micro Retail + Fast Casual Foal
0 COMMON ROOF DECK
Pasioantiai
.4 i Pedestrian C urutation
r 1 VIEWSHED
L J V1ex Toward City
JN11SHOT
TEC -JR:
4811-6768.1178.10
0o
0
CITY
VIEWSHED
0
1
fiTh0
RIVER
VIEWSHED
oo
i
SCALE: 1/84'
37
5,�0 t8
EXHIBIT B-2
PROPOSED PLAT
38
�,u-o,or�i na.,o
CITY OF DUBUQUE.
EXHIBIT B-2 PROPOSED LOT AND EASEMENTS
PROPOSED LOT TOTAL AREA APPROX. = 1.71 ACRES
EASEMENT TOTAL AREA APPROX. = 0.49 ACRES
4811-6768-1178.10
39
EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
40
ANIIL�GY-II]X I11
� i
Bem A.Lindvhl,Esq. � D11bti(1LLF THECITV OF
SeniarCounsel
Suiie330. Hz�borb'icwPlace ��� �
300 Main Sveet V'���'
Dubnquc lowa 52001-6944 �
(55s>Ss7-all3 o1�ce . Masterpiece on the Mi.,sissippi
(56i)StL3-1040 Eax
balesyQciryofdubuque.ory� xar�wu�:m3
(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 dWy obtainetl all necessary approvals antl 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
41
,r��b�fi.�-��,H.���
EXHIBIT D
CITY'S CERTIFICATE
42
Ad I FM1�6N-I U5.111
. .
. Dubuque a�y�n�Ferscxr�e �
THE CITY OF W ��t��Hall
T f�ii�iii SO l4'estt3���Street
D l,.J L � W�I�bCNI nuFuque lowa 520U1A864
II � (569)B94ll0otfire
(563)569-A149 fnx
ch�mgr�oiryofdubuque-org
Mnsterpiece on the Mississi�pi Zoiz
(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 pending or, [o the best of City's knowledge,
contemplated before any local govemmental body which 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 gpvemment 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 resWt 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 operetion of the Property have
been provided to Developer and City has provided true and correct copies of all
such documents to Developer;
(4). City has good and marketable fee simple title interest to the Property;
(5) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollutioq health violations or other matters
that have not been corrected. City has notifed Developer in writing of any past
notices, orders, suits, judgments or other proceedings relating to fire, building,
43
,����„h�-,�-..���
zoning, air pollution or health violations as they relate to the Property of which it
has actual notice;
(6) The Property will as of the date of the Closing Date be free and clear of all
liens, security interests, and encumbrances and 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;
(7) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and that it has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shail issue a legal opinion to Developer at the time of
each Closing confirming [he representation contained herein, in form and
substance attached hereto as Exhibit C;
(8) All City utilities necessary for the development and use of the Property
adjoin the Property, and Developer shall have the right to tie into and use said
utilities upon payment to City of the required connection and tap fees and all
other applicable fees; provided, however, that the cost of any utility relocation
shall be at the sole cost of Developer;
(9) The Property is free and clear of any occupants, and no party has a lease
to or other occupancy or con[ract right in the Property which shail in anyway be
binding upon the Property or Developer;
(10) City shall exercise its best efforts to cooperate with Developer in the
development process;
(11) City shall exercise its best efforts to resolve any disputes arising during
the development process in a reasonable and prompt fashion;
(12) With respect to the period during which City has owned or occupied the
Property, and to the best of 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, trea[ed,
recycled, or disposed of on, under or at the Property other than as described in
the environmental reports that City has provided to Developer, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under Environmental Laws;
(13) There are no fees or other charges payable by Developer for the
construction of any City utilities serving the Property other than the fees for
connecting to and installing meters and tap fees with regard to such utilities and
all city utilities necessary for the development and use of the Property as a
44
:K�:e;�,�.��,._���
mixed-use facility adjoin the Property and Developer shall have the right to
connect to said utilities, subject to City's connection fees;
(14) The Property is properly zoned for the various uses described in this
Agreement.
(15) City makes no warranties or representations as to the condition of the
Property other than those which are expressly s[ated in this Agreement;
(16) City has completed all required notice to or prior approval, consent or
permission of any federal, state or 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;
(17) City represents and agrees that, use of [he Property as a mixed-use
building as described in this Agreement is in full compliance with the Urban
Renewal Plan;
(18) The Property has a permanent right of ingress and egress to a public
roadway for the use and enjoyment of the Property from Bell Street;
(19) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not and
shall not resuit 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 6y 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;
and
(20) The representations and warranties contained in this Section 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, and such representations and warranties shall survive the Closing.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
45
,xi i-n,n..i ne.io
EXHI6IT E
OPINION OF COUNSEL TO DEVELOPER
46
,���.�-h�.i�-� �„
Mayor and City Councilmembers
City Hall
13'" 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 [he 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 examina[ion and such other inquiries
as we have deemed appropriate, we are of the opinion that:
1. Developer is a corporetion organized and existing under the laws of the
State of lowa and has full power and authority to execute, deliver and perform in full
Development Agreement. The Development Agreemeni 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 generelty.
2. The execution, delivery and performance by Developer of the
Development Agreement and the consummation of the transactions thereunder, will not
result in violation of (i) any provision of, or in default under, the articles of incorporation
and bylaws of Developer, or (ii) 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 and which is
set forth on Schedule _ hereto.
3. We are not representing Developer in connection with any action, suit or
proceeding pending or overtly threatened against Developer before any court, arbitrator
or governmental agency that questions the validity of the Development Agreement.
With regard to this opinion, we have checked the records of this firm to ascertain that
we are not representing Developer with respect to the foregoing. We have made no
further investigation.
47
,.i� F,�..-��-..���
This opinion is rendered for the sole benefit of the City of Dubuque and no other party
may rely on this opinion.
This opinion is rendered and valid as of the date of this letter and we have no duty to
update this opinion for any matters which come to our knowledge after the date of this
letter.
Very truly yours,
48
,���.ti,b�-�nr.��
EXHIBIT F
WARRANTY DEED
49
,���.�;�x,�-�.n�
Prepared by: Barry A Llntlah1300 Main Stree[,SUHe 330,Oubuque IA 5]001 563 5831113
ReW m ro: Barry A.LintlaM1l 3�0 Main Sheet,Suite 330,Dubuque IA 5Y001 56I 583<113
Tax Statement to:
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, lowa, a
municipal wrporetion of the State of lowa ("Grantor'), in consideration of the Grantee
named below undertaking the obligations of the Developer under the Development
Agreement described below and the sum of and no/100
Dollars ($ ) in hand paid, and other good and valuable consideretion, and
pursuant to the authority of Chapter 403, Code of lowa, does hereby GRANT, SELL
AND CONVEY unto (Merge, LLC an lowa limited liability company] ("Grantee"), the
following described parcel(s) situated in the County of Dubuque, State of lowa, to wit
(the "Property"):
LEGAL DESCRIPTION HERE
Grantor reserves and retains for itself the following as shown on the Plat:
(1) Easements for lighting and conduit located along the exterior of the Port of
Dubuque Public Parking Facility (the"Parking Facility").
(2) An easement to allow reasonable access to the Parking Facility for
maintenance, repairs and replacements to the Parking Faciiity; provided,
however, no portion of the construction of future improvements to the Parking
Facility will be located on the Property. Grantee, at its cost, shall clear the
easement area to facilitate any Parking Facility maintenance and City, at its cost,
shall restore the turf, concrete walkways, and irees/shrubs to their previous
condition if damage is caused as part of the Parking Facility maintenance work.
(3) An access easement for emergency vehicles for ingress, egress and
access to and from the Parking Facility.
50
,K��-E,��-���..��
(4) An easement for signage, including but not limited to signage for
pedestrian wayfinding signs, restrooms, and parking ramps.
This Deed is exempt from transfer tax pursuant to lowa Code section 428A2(6).
This Deed is given pursuant to the authority of Resolution No. of the
City Council of the City of Dubuque adopted the day of , 20_, the
terms and conditions thereof, if any, having been fulfilled.
This Deed is being delivered in fulfillment of Grantor's obligations under and is
subject to all the terms, provisions, covenants, conditions and restrictions contained in
that certain Development Agreement executed by Grantor and Grantee herein, dated
the day of , 20_ (the "Agreement"), a memorandum of which was
recorded on the day of , 20_, in the records of the Recorder of
Dubuque County, lowa, Instrument Number -_
In the event that an Event of Default occurs under the Agreement and Grantee
herein shall fail to cure such default within the period and in the manner stated in the
Agreement, then Grantor shall, subject to the terms, limitations and restrictions set forth
in the Agreement, 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.
Promptly after completion of the Minimum 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 of this Deed
with respect to the obligation of Grantee, and its successors and assigns, to construct
the Minimum Improvements and the dates for the beginning and completion thereof, ii
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 and in the Agreement with respect to the Property be forever released and
terminated and that any remaining obligations of Grantee pursuant to the Agreement
shall be personal only.
All certifications provided for herein shall be in such form as will enable them to
be recorded with the County Recorder of Dubuque, 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 lwenty days after written request by Grantee, provide
Grantee with a written statement indicating in adequate detail in what respects Grantee
has failed to complete the improvements in accordance with the provisions of the
Agreement or is otherwise in default, and what measures or acts will be necessary, in
the opinion of Grantor, for Grantee to take or perform in order to obtain such
certification.
51
,�i� fi.�r.i ud.m
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. Fimstahl, City Clerk
52
<X11�6�LM-IIISJII
STATE OF IOWA )
) SS
COUNTY OFDUBUQUE )
On this day of , 20 , before me a Notary Public in and
for said County, personally appeared Roy D. Buol and Kevin S. Firnstahl to me
personally known, who being duly sworn, did say that they are the Mayor and City
Clerk, respectively of the Ciry of Dubuque, lowa, a Municipal Corporation, created and
existing under the laws of the State of lowa, and that [he seal affixed to the foregoing
instrument is the seal of said Municipal Corporation, and that said instrument was
signed and sealed on behalf of said Municipal Corporation by authority and resolution of
its City Council and said Mayor and City Clerk acknowledged said instrument to be the
free act and deed of said Municipal Corporation by i[ voluntarily executed.
Notary Public in and for Dubuque County, lowa
53
�w�:o;Ew�o.���
EXHIBIT G
MEMORANDUM OF DEVELOPMENT AGREEMENT
54
,nii.�;on-inx.io
Preparetl by: earty A.Lintlahl 300 Main Sireet Suite 330 Dubuque IA 52001 563 583-0113
Retum ro: Barry A. Lindahl 300 Main Sireet Suite 330 Dubuque IA 52001 563 563-4113
MEMORANDUM OFDEVELOPMENTAGREEMENT
A Development Agreement by and among the City of Dubuque, lowa, an lowa
municipal corporation, of Dubuque, lowa, and Merge, LLC, an lowa limited liability
company
was made regarding the following described premises:
LEGAL DESCRIPTION HERE
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
Memorendum 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. Fimstahl, City Clerk
55
:..�,.�„����,r_���
MERGE, LLC
By:
Brent Dahlstrom, Partner & Manager
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
56
,ni i+,mii i;e.io
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 Brent Dahls[rom to me personally
known, who being by me duly sworn did say [hat they are the Partner & Manager of
Merge, LLC, the corporetion executing the instrumeM to which Ihis is attached and that
as said Partner & Manager of Merge, LLC acknowledged the execution of said
instrument to be the voluntary act and deed of said company, by it and by him
voluntarily executed.
Notary Public, State of lowa
57
,r��.«,�x.�i;�.:��
EXHIBIT H
SITE ACCESS AGREEMENT
58
nni ia,e.�i:�x io
SITE ACCESS AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
MERGE, LLC
This Agreement (the "AgreemenY') is made and entered into this day of
, 2019, by and between the City of Dubuque, lowa, an lowa municipal
corporetion ("City"), and Merge, LLC, an lowa limited liability company ("Developer").
WHEREAS, City is the owner of the real estate shown on Exhibit B-1 (the "Site"),
attached hereto, which is being considered as a Development Project by City and
Developer; and
WHEREAS, Developer desires access to the Site prior or as part of a
Development Agreemen[ for purposes of surveying, environmental studies, soils
reports, engineering studies and other site analysis; and
WHEREAS, the City desires to allow Developer access to the Site for such
purposes prior to the closing, subject to the conditions set forth herein.
NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS
FOLLOW S:
SECTION 1. ACCESS TO SITE. Subject to the conditions herein, the City hereby
grants to Developer and its consultant(s) full and continuing access to the Site and all
parts thereof, upon reasonable notice to City, and at Developer's sole expense, for
surveying, environmental studies, soils reports, engineering studies and other site
analysis. Prior to access to the Site, Developer shall obtain approval from the City of the
following (which such approval shall not be unreasonably withheld, conditioned or
delayed): consultant(s), scope of work to be conducted on the Site, and schedule for
the work to be done on the Site.
SECTION 2. RESTORATION OF SITE. Developer agrees to timely pay and
discharge all claims of any kind by its consultants, contractors, subcontractors and
suppliers with respect to any work performed at the Site, including but not limited to
claims for labor or material furnished in connection therewith, and to defend, indemnify
and hold harmless City from and against any and all such claims. In the event that the
Development Agreement is not approved by City and Developer by , 20
or, if the Development Agreement is approved but the Site acquisition set forth in the
Development Agreement does not close for any reason by , 20 ,
Developer shall, at Developer's sole expense by not later than , 20
restore the Site to substantially the same condition as existed on the date of this
Agreement, and upon such restoration to City's reasonable satisfaction, this Agreement
shall then terminate.
59
iNllb]6M�11]N.I11
SECTION 3. CONDITION OF THE SITE. City makes no warranty or representation
as to the condition of the Site unless expressly stated in the Development Agreement.
Developer acknowledges that any work performed by Developer and/or its consultant(s)
at the Site is at their sole risk. Developer shall insure that all work at the Site is done in
accordance with all applicable laws and permits (if required) and in a good worker-like
manner. Developer and its consultants shall daily leave the Site in a condition no less
safe than before the work was conducted. Developer and its consultant(s) are solely
responsible for obtaining any and all permits required for the work to be conducted at
the Site. No hazardous chemicals and wastes may be stored or disposed of on the Site
and all such materials must be used only as allowed by law. Developer shall be
responsible for identifying any and all utilities serving the Site prior to conducting
invasive work on the Site.
SECTION 4. SHARING OF INFORMATION. Developer shall provide City with copies
of any and all reports and documents resuiting from the work conducted at the Site
upon the request of the Ciry, which information shall be managed as per the parties'
separate Confidentiality Agreement. Developer and/or its consultant(s) shall notify [he
City immediately upon discovery of any hazardous or unsafe condition at the Site.
SECTION 5. INDEMNIFICATION. Developer shall defend, indemnify and hold
harmless City, its officers, agents and employees from and against any claim and cost
of any kind, including without limitation, attorneys' fees and consulting fees, arising out
any work at the Site by or on behalf of Developer and its consultants. This obligation
shall survive the termination of this Agreement.
SECTION 6. INSURANCE. Developer shall provide insurance as set forth in the
attached Insurance Schedule.
CITY OF DUBUQUE, IOWA MERGE, LLC
By ey
Michael Van Milligen Brent Dahlstrom
City Manager Partner & Manager
60
,w��.�„����,K.��
EXHIBIT I
CONSTRUCTION STAGING AREA
61
,.�..n:��-:��«.��
Special Achievement in GIS ' " �' ..
A2018 Award Winner Construction Staging Area Dus�It
+laxghr.., dr u:.ry,..
FAhibit 1
•
fif
.1 I..
It
felt '`
/
�`
MERGE OONSTRIICTtoN►
. ..
t STAGING AREA
; f'
7 4 o C/om, See i:~
DRIVf_� v'AY f:I;RB I, I
s.
, ,c:
:'S :.
SIDEWALK TO REMAIN OPEN
•
10
=1
DRIVEWAY CURB-CUT
'
k
QR OR :T Y
'511313111:11't
.1 -w _-, &)
dfir,
47/1
.. mit.,II....d.........,.•..
. .wW1Wi A1VM.
N
�rtNMtI.rpm lYtMGIVr CIA Map mad ey'
.. • t. .r fifirwroir 4.000101Krfarrier wird ma
•: ,:;. ", .. 1 inch = 150 feet ti ^� Dien
W Enpnsa�
no[i/wn ._ cQ Vaist 13h S.
...mem dr(grrrrl.r.M M**O
•,..t.gar Y Wilde lW.fir wdCrerzy YY;; rYWt r,-.. ,
• +•p.rM tlp{ =.,.MM/PwMYr .,7141 (5�QKii. 3) U1
.. tl pb.r fir* Cor w... tl.I. AMnM +•
Fax (663) 58942
4811-6768-1178.10
EXHIBIT J
SURFACE PARKING LOT
� - - _._-_ _��
. � �w � �
�- -__ ,J�� �� � , ,�� `;�
�-;�
, � � � � ��'�' �I `•. �
,. � � T � .
! a� � � � � �,� � 1, <r:;�,
��_ i:l � �� �c' --'
I � � � y ,�3rI1 � • ' �
.�. � =� �;� - ,;I
.=,� � �
� � �_{�� � � � f
� -� �_ � �
� ' � T � "�
_ - � ,
� �_
; • ,� � � � �
� I, Wk
� � � � � � �� � �
: ; � _ � � � � _ �
r
; , � �`� � � , �
a i�il���
• - - '_- �
, i � " ____ __ _ .., � ..
�- -_"_'
_"__ ""-',: ' , .-. _ _ _ _ _ - .
.. ._-- . -�. i .
----- -, y - - - • ' �
� e.s*oirrH si*m
� ._. ._. _. . . . �
.. . . _. .. . . �.�
,. �
63
�k��-�,�,���,.��
EXHIBIT K
OPTION AGREEMENT
64
,x i i.,,en--i nn.w
OPTION AGREEMENT
For valuable consideretion, the receipt, sufficiency and adequacy of which is hereby
acknowledged and subject to the terms and conditions set forth herein, Merge, LLC
(hereafter "Grantor"), hereby grants to the City of Dubuque, lowa (hereafter "Grantee"),
an exclusive option to purchase ihe real estate legally described as follows:
See legal description attached hereto as Exhibit A and made a part hereof
(hereafter the Option Property).
Grantor hereby grants to Grantee an exclusive option to purchase the Option Property
as provided in subsection 12.3(4) of the Development Agreement wherein the Grantor is
the City and the Grantee is the Developer, dated , 2019, incorporated herein
by this reference (the "Development AgreemenP').
The total option purchase price ("Option Purchase Price") shall be the greater of (i) the
sum of the Property Purchase Price and Easement Purchase Price (the "Total Property
Purchase Price") in the Development Agreement or (ii) the Fair Market Value of the
Option Property, or (iii) an amount determined by increasing the Total Property
Purchase Price by an amount equal to the percentage increase in the CPI (determined
as of the date Grantee exercises this option). "Fair Market Value" of the Property shall
be determined by an independent appraisal of the Property made by an appraiser jointly
selected by Grantor and Grantee and. if Grantor and Grantee are unable to agree on an
independent appraiser, then each party shail select an appraiser and those two
appraisers shall select a third appraiser which such third appraiser shall determine the
fair market value of the Property. "CPI" shall mean the Consumer Price Index for All
Urban Consumers, U.S. City Average, for all items, 1982-84=100, published by the
United States Department of Labor on its website at htto://www.bls.qovlcpi.
Upon Grantee's payment to Grantor of the Option Purchase Price, Grantor shall convey
the Option Property to Grantee by Warranty Deed in the same form as delivered to
Developer upon purchase of the Option Property from Grentee, subject to only the
Permitted Exceptions. As used in this Option Agreement, the term "Permitted
Exceptions" collectively shall mean (i) all of the matters of record as of the date Grantee
conveyed title to Grantor under the Development Agreement; (ii) any other matters
approved in writing by Grantee at any time during Grantor's ownership of the Property;
(iii) any and all easements, covenants, co�ditions, restrictions and o[her agreements
entered into by Grantor from time to time in connection with Grantor's ownership and
development of the Minimum Improvements (as defined in the Development
Agreement), but excluding Monetary Liens. "Monetary Liens" shall mean deeds of trust,
mortgages, judgment liens, mechanics' liens, materialmen's liens, and delinquent tax
liens and/or assessments encumbering the Option Property. Grantor shall pay, release
or cause to be paid and released, any Monetary Liens encumbering the Option Property
at or prior to the conveyance of the Option Property to Grantee.
65
,.��.�,an-������
Grantee shall exercise this option, if at all, by giving written notice of such intent to
exercise this option, as provided in the Development Agreement, which such notice
shall be given within thirty (30) days after the date upon which Developer delivers
written notice to City of Developer's election to terminate the Development Agreement
under Section 12.3(4) of the Development Agreement. If Grantee fails to give written
notice of its intent to exercise this option within the time period provided in the prior
sentence, Grantee's option shall automatically terminate and be of no further force and
effect. Upon termination of the option under this paragraph, either party may record a
written termination of the option in the appropriate land records of the county in which
the Option Property is located.
If Grantor timely delivers written notice of its intent to exercise this option, Grantor, at its
expense, shall promptly continue and pay for the abstract of title to [he Option Property
continued through a date not more than thirty (30) days prior to the closing date stated
in the written notice of the exercise of the option made by Grantee (which such closing
date shall not be more than sixty (60) days after the date of Grantee's written notice of
the exercise of the option). Such abstract shall show marketable title in the Grantor in
conformity with this Option Agreement, subject to the Permitted Exceptions and
otherwise in conformity with lowa law and title standards of the lowa State Bar
Association. The abstract shall become the property of the Grantee when the Option
Purchase Price is paid in full. Grantor shall pay costs of additional abstracting or title
work due to acts or omissions of the Grantor.
This Option Agreement shall appiy to and bind personal representatives, successors in
interest and permitted assigns of the parties. This Option Agreement shall be governed
by and construed in accordance with the laws of the State of lowa.
Dated this_ day of , 2019.
CITY OF DUBUQUE, IOWA MERGE, LLC
By: By:
Roy D. Buol, Mayor Brent Dahlstrom, Partner R Manager
By:
Kevin S. Fimstahl, City Clerk
(City Seal)
66
iltl}L'4F:I�bJU
STATE OF IOWA )
) SS
COUNTY OFDUBUQUE )
On this day of 20 , before me the undersigned, a Notary
Public in and for the said County and State, personally appeared Roy D. Buol and Kevin
S. Firnstahl, to me personaily known, who, being by me duly sworn, did say that they
are the Mayor and City Clerk, respectively, of the City of Dubuque, lowa, a municipal
corporation executing the instrument to which this is attached; that the seal affxed
hereto is the seal of said municipal corporation; that said instrument was signed and
sealed on behalf of the City of Dubuque, lowa, by authoriry of its City Council; and that
said Mayor and City Clerk acknowledged the execution of said instrument to be the
voluntary act and deed of said City, by it and by them voluntarily executed.
Notary Public
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this day of 20 , before me the undersigned, a Notary
Public in and for the State of lowa, personally appeared Brent Dahlstrom, to me
personally known, who, being by me duly sworn, did say that he is Partner & Manager
of Merge, LLC the corporation executing the instrument to which this is attached and
that as said Partner & Manager of Merge, LLC acknowledged the execution of said
instrument to be the voluntary act and deed of said company, by it and by them
voluntarily executed.
Notary Public
67
,.��.<„�.�-��,._i�
EXHIBIT A
LEGAL DESCRIPTION
68
�.��-fi;�,r.����.���
INSURANCE SCHEDULE A
69
Ci[y ot Dubuque Insuronce Requirements fo�Lessees of CRy PropertyanA Right oT Way
Licensees or Permittees
INSURANCE SCHEDULE A
t Merge, LlC s�all furmsh a signetl certificate of insurance m the Qty of�u�uque. Irnva for the
cova2ge reqwretl in Exnipf I pnor ta the Ie25e, liaense, or parmi[commencement All lessees of
City(NO(:2rty antl nghf of way bc¢�ueeS Of pPlmM1t2C5 Sh311 submit 3n uptlatetl certihcate
annuaily. Each cert�hcate shall be preparetl on�he most current ACORO lorm approvetl by t�e
iava Insurarroe Divlsion or en aqurvalenL Eacn certi0cate s�all inclutle a stalement untler
�escription cf Opera6ons as to why ihe certifcafe was issued Eg Merge LLC Oevelopmerit
Agreemerrt aatetl
2. All poliwes of ineurer.ce requuetl hereun0er snall be with an ireurer authonzetl to tlo buslrress in
lowa and all insurers shal I have a rating of A or better in the curreM A.M. Besfs Rating Guide
3. Eac�certi(cate shall be fumishetl to the Fnance Departmerit of tne Giry of Dubuque
4. The lessee, licensee,or permittee shall be require�to carry the mmimum coveragellMiGs, or
greater if requiretl by law or other legal agreement in F�chiFr,t I Feilure to pmvitle the repuired
minimumcoverdge shall not be tleemetl a warver of such requiremerrts Cy ine Ciry of Dubuque.
5. Failure to oDtain or mamfain the reqWretl mwrance shail tie coreiDeretl a ma[erial peach of[he
lease, license.. orpermit.
6. All requiretl endo�semerRs shall te a0achedto certRicate.
7 Wnenever a speci0c I50 form is re(erencetl the current etliLon of ine form must be used unless
an epurvalent form is approvetl W Ihe Director of Firence arM BWgeL Ttre lessee, lice�ee,or
pertnittee must itlentify aritl list in writlng all tleviatiorrs anc exclusions fmm the ISO form.
8. If lessee's, licetrsee's,or permittee's limits ol liadlity are higher than tne required mirnmum limi�s
then the lessee's, licensee's.or permitt2e's limits ahall be ihis agreemenCs required IimRs.
9. LeSSee, IlcerSee. or permittee shall requlre all SubCOnpaciore and suD-subconttactors to obtaln
antl mairitain tlunng the pertormance of work msurance for Ne covemges tlescribetl m t�is
Insu�ence Schetlule and shall obfain certificates of insurance from all such subcontrac[ors antl
sub-subcontraorors. Lassee, Ilcensee, or permittee agrees that rt shall be Lable for the falWre of a
subconhactorantlsubsubcoritractortoobtainantlmain�ainsuchcoverage TheCitymay
reques�a cop/ot such certificates fmm the lessee liwnsee,or permittee
W Lessee, license 8 pe�mittees shall be respons0le fnr detluIXibles antl self-insuretl�et¢MiOn.
Page 1 0(9 SCM1etlu�e F Lessaes Of Crty PropeRy;Ri9h�OF WaY��ansees or Pormdcees May 201 B
Cityot Dubuque Insurance Requirements for Lessees of GRy Ptopeky and Right of Way
Licensees or PermMees
INSURANCE SCHEDULE A (Continued)
E%NIBIT I
A) COM1A7Q2GIAL GENERAI LIABILITY
Gener2l Aggreqate Limrt 52000,000
Pmducts-Completetl Operatrons t�qgregate Limrt St000,000
Perwnai antl AWertisirg In�ury�imit 51.000,000
Each Occurrerice S'I.000,000
Flre Damage Limd(any one occurrence) 550,000
Metlical Paymertts 55,000
t) CoveragE shall be wrRten on an occurrence. not claims matle,form.The genelal
liability coverage shall be writ�en in accortl wilh I50 form CG 00 01 or busiress
owners fo�m BP 00 02. All tleviations(mm the standartl ISO commercial gene�al
IiaUiliry form CG 0001.. or Business owners form BP 00 02,shall be clearly
identified
2) IncWtleiSOenCorsemerttfcrmGG2504"OesigrmtetlLocation(s)Gereral
Aggfegate Limit�
3) Inclutle entloreement maica�irg Nat coverage ia primary antl norncontnwtory.
4) InclutlePreservationotGovernmentallmmundiesErAorsement(Sample
attache0)
5) Iriclutleatldrtionalinsuredentlorsementfor.
The Ciry o!DuWque, ir.lutlinq all its electetl antl appointed oRicials, a0 ds
empioyevs antl voWnteers, all its boartls,commissions andlor authorttlas antl
[�ert boara members. employees antl volunteers. Use ISO form CG 20 t0
(Orgoing operanons)or its equivalem.
fi) If lessee, licensee.or perm�ttee utnizes Trikkes or Segways in the contluct ol
Wsmess. include an entlorsertrenl reBxting that tliese vehicles are not excludetl
fmm Commercial Generai Liadllty coverage
7) Policy shall inclutle Waiver of Right to Recovertrom Olhers Entlorsemmt.
B) WORKERS'COMPENSATION&EHffLOYER3 LIABILI7Y
SlaNtory Benelits covering all employees in�uretl on the Jpb by accitlent or dise95e as
prescribed by lowa COtle Chapter 85
CoverageA 5[aWtory—Stateotiowa
Coverage B Employers Liability
Each 0.cNdent St00,000
Eacn Employse��isease 5100.000
Poiicy Limrt�Disease SWO,000
Policy shall incWde Waiver of Right lo Recover from Ot�ers entlorsemerrt.
Goverage B limds shall be greater if requiretl b/!he umbrellalezcess iwurer.
�
Nor�eiecbon of Workers'Compensa6on or Employers'LiaaliN Coverage wider lowe
Gotle sec.8722. Gompletetl Porm rtust be attachetl.
Page2of9 SCM1etluleALesseesOfCrtyPropeny;RlghtOlWay�cariseesorPermitteasMaYn118
City of Dubuque Insurance Requirements for Lessees of CRy Property and Right of Way
Licensees or Permittees
INSURANCE SCHEDULE A (Continued)
L) POLLUTION LIABILIN
Cove2ge requirec _yes �ro
POIWtion liadliry coverage shall be requiretl i/[he lessee. contracting party, or permittee
has arcy pollution e%posurelor abatemeni of ha2ar(bu5 or COlttaminateG materiEls
mdWing, but not limited W, pe[roleum protlucts. Ihe removal of leatl,asbestos,or PCBs.
Poilutlon Drotluct antl compleretl operations covera9e shan aiw be covere0.
Eachomurrence 52,000.000
Poncy Aggregate 54,000,000
1) Policytoinclude�o�srtearM�rereportffiioncoverage.
2J Iriclude addM1ional vnuretl ior.
The Cily of Dubuque, irn:lutlinQ all its elected antl app�irM1etl o%icials, all Rs
employees antl volunteers, all its boartls commissions ard/or auMorities and
their boartl mzmbers employees antl volunteers Use ISOform CG 2010.
(Ongoing operanons)or rts equivalent antl CG203�(completetl ope2tiorrs)or
rts eqwvaien�
3) InclucePreserva[ionofGwemmentallmmuniliesE�Worsement.
4) Provitle evitlence of coverage�or 5 years atter completion ot prqect.
D) PROPERTY INSURANCE REOUIRED BV LEASE,LICENSE,OR PERMIT
_yes X no
Evitlence of popeM ccverage providec _yes
Inoiutla the Ciry uf Dubuque as Lar�tler�oss Payable.
E) RIOHT•OF-WAV WORK ONLY:
UMBRELLAIE%GE55 51,00�000
x yes _no
Vmbrella/excess liability coverage musl be a�least fa�lawing torm with the underlyir�g
p0liciesincluaetl herein
F) FLOODINSURNACE
X yes _no
Full replacement cost of building includlrg Minimum Impovements.
Pag23o14 ScbetluleALa55eesOfCrtyProp9M.RigptOtVJeyUCln6Be60rPBrmiReacMay2018
IIIIII IIIIII III Illli IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIII IIII
Doc ID: 011170140013 Type: GEN
Kind: DEED WITH RESOLUTION
Recorded: 12/01/2023 at 04:28:32 PM
Fee Amt: $72.00 Page 1 of 13
Revenue Tax: $0.00
Dubuque County Iowa
Karol Kennedy Recorder
File2023-00011382
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
Taxpayer:
Merge, LLC
Attn: Brent Dahlstrom, Partner & Manager
PO Box 128
Cedar Falls, IA 50613
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, Iowa, a
municipal corporation of the State of Iowa ("Grantor"), in consideration of the Grantee
named below undertaking the obligations of the Developer under the Development
Agreement described below and the sum of One Dollar and no/100 Dollars ($1.00) in
hand paid, and other good and valuable consideration, and pursuant to the authority of
Chapter 403, Code of Iowa, does hereby GRANT, SELL AND CONVEY unto [Merge, LLC
an Iowa limited liability company] ("Grantee"), the following described parcel(s) situated
in the County of Dubuque, State of Iowa, to wit (the "Property"):
Lot 2 Adams Company's 5th Addition in the City of Dubuque, Iowa
This Deed is exempt from transfer tax pursuant to Iowa Code Section
428A.2(6)
This Deed is exempt from transfer tax pursuant to Iowa Code section 428A.2(6).
This Deed is given pursuant to the authority of Resolution No. 355-19 of the City
Council of the City of Dubuque adopted the 7th day of October, 2019, 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
18"' day of November, 2019 (the "Agreement"), a memorandum of which was recorded
on the 24th day of May, 2022, in the records of the Recorder of Dubuque County, Iowa,
Instrument Number 2022 - 00006645.
In the event that an Event of Default occurs under the Agreement and Grantee
herein shall fail to cure such default within the period and in the manner stated in the
Agreement, then Grantor shall, subject to the terms, limitations and restrictions set forth
in the Agreement, 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.
Promptly after completion of the Minimum 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 of this Deed with respect to the
obligation of Grantee, and its successors and assigns, to construct the Minimum
Improvements and the dates for the beginning and completion thereof, it being the
intention of the parties that upon the granting and filing of the Certificate of Completion
that all restrictions, re -vesting of title, and reservations of title contained in this Deed and
in the Agreement with respect to the Property be forever released and terminated and
that any remaining obligations of Grantee pursuant to the Agreement shall be personal
only.
All certifications provided for herein shall be in such form as will enable them to be
recorded with the County Recorder of Dubuque, Iowa. If Grantor shall refuse or fail to
provide any such certification in accordance with the provisions of the Agreement and this
Deed, Grantor shall, within twenty days after written request by Grantee, provide Grantee
with a written statement indicating in adequate detail in what respects Grantee has failed
to complete the improvements in accordance with the provisions of the Agreement or is
otherwise in default, and what measures or acts will be necessary, in the opinion of
Grantor, for Grantee to take or perform in order to obtain such certification.
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 61W of , 2023 at Dubuque, Iowa.
2
CITY OF DUBUQUE IOWA
By:
Brad M. Calla-- Mayor
Attest:
By: ,I"� 4'4'/�
Adrienne N. Breitfelder, City Clerk
STATE OF IOWA
SS
COUNTY OF DUBpUQUE ) J-
On this �( day of J �J �l�e ��V e ' 2023, before me a Notary Public in and
for said County, personally appeared Brad M. Cavanagh and Adrienne N. Breitfelder to
me personally known, who being duly sworn, did say that they are the Mayor and City
Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said Municipal Corporation, and that said instrument was signed
and sealed on behalf of said Municipal Corporation by authority and resolution of its City
Council and said Mayor and City Clerk acknowledged said instrument to be the free act
and eed of said Municipal Corporation by it voluntarily executed.
F ? n n
Notary Public in and for Dubuque County, Iowa
I
CRENNA BRUMWELLCommission Number 743873
C- is on xpires
1
3
Prepared by: Barry A. Lindahl 300 Main Street Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Dubuque IA 52001 563 583-4113
OFFICIAL NOTICE
RESOLUTION NO. 355-19
RESOLUTION (1) APPROVING THE MINIMUM REQUIREMENTS, COMPETITIVE
CRITERIA, AND OFFERING PROCEDURES FOR THE DEVELOPMENT AND THE
SALE OF CERTAIN REAL PROPERTY AND IMPROVEMENTS IN THE GREATER
DOWNTOWN URBAN RENEWAL DISTRICT; (2) DETERMINING THAT THE OFFER
TO PURCHASE SUBMITTED BY MERGE, LLC SATISFIES THE OFFERING
REQUIREMENTS WITH RESPECT TO THE REAL PROPERTY AND IMPROVEMENTS
AND DECLARING THE INTENT OF THE CITY COUNCIL TO APPROVE THE SALE
TO MERGE, LLC IN THE EVENT THAT NO COMPETING PROPOSALS ARE
SUBMITTED; AND (3) SOLICITING COMPETING PROPOSALS
Whereas, the City Council of Dubuque, Iowa, did on March 18, 2019 adopt an
Amended and Restated Urban Renewal Plan for the Greater Downtown Urban Renewal
District ("the Plan") for the Urban Renewal Area described therein; and
Whereas, the Plan provides, among other things, for the disposition of properties
for private development purposes as a proposed economic development action; and
Whereas, Merge, LLC ("Developer") has submitted to the City a proposal in the
form of an offer to purchase (the "Development Agreement") for the purchase of certain
City -owned real property hereinafter described ("the Property'), which Development
Agreement proposes the Developer will undertake the construction of a building located
at the corner of Ice Harbor Drive and East 5th Street as described therein, which Property
is the real estate consisting of approximately 1.22 acres shown on Exhibit A, and which
Development Agreement requests that this Property be made available for sale as rapidly
as possible; and
Whereas, in order to establish reasonably competitive bidding procedures for the
disposition of the Property in accordance with the statutory requirements of Iowa Code
Chapter 403, specifically, Section 403.8, and to assure that the City extends a full and fair
opportunity to all developers interested in submitting a proposal, a summary of
submission requirements and minimum requirements and competitive criteria for the
Property offering is included herein; and
Whereas, said Developer has signed a Development Agreement with the City,
currently on file at the Office of the City Cleric; and
Whereas, to recognize both the firm proposal for sale of the Property and
improvements already received by the City in the form of the Development Agreement,
as described above, and to give full and fair opportunity to other developers interested in
100219bal
submitting a proposal for the sale and development of the Property, this Council should
by this Resolution:
1) Set the fair market value of the Property for uses in accordance with the
Plan;
2) Approve the minimum requirements and competitive criteria included
herein;
3) Approve as to form the Development Agreement;
4) Set a date for receipt of competing proposals and the opening thereof;
5) Declare that the proposal submitted by Developer satisfies the minimum
requirements of the offering, and that in the event no other qualified proposal is
timely submitted, that the City Council intends to accept such proposal and
authorize the City Manager to sign the Development Agreement;
6) Approve and direct publication of a notice to advise any other person of the
opportunity to compete for sale of the Property on the terms and conditions set
forth herein; and
7) Declare that in the event another qualified proposal is timely submitted and
accepted, another and future notice will be published on the intent of the City to
enter into the resulting contract, as required by law;
and
Whereas, the City Council believes it is in the best interest of the City and the Plan
to act as expeditiously as possible to sell the Property as set forth herein.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the Property shown on Exhibit A attached hereto, shall be
offered for sale in accordance with the terms and conditions contained in this Resolution.
Section 2. That it is hereby determined that in order to qualify for consideration
for selection, any person must submit a proposal which meets these minimum
requirements:
1) Contains an agreement to purchase the Property, shown on Exhibit A, at
not less than fair market value, which for the purposes of this resolution is hereby
determined to be $ 807,842.52 and $162,230.67 for requires easements for a total
purchase price of $ 970,073.19;
2) States the number of residential units and square feet of commercial/retail
0)
space that will be created in the proposal's project;
3) Sets out or provides to the satisfaction of the City Council the experience of
the principals and key staff who are directly engaged in the performance of contract
obligations in carrying out projects of similar scale and character; and
4) Meets, at a minimum, the terms and conditions of the Development
Agreement submitted by the Developer including an agreement to invest not less
than $18,000,000 to complete construction of the 187 residential units and 23,000
of commercial/retail space in the building.
Section 3. That the Development Agreement by and between the City and the
Developer be and is hereby approved as to form for the purposes hereinafter stated.
Section 4. That for the purpose of defining the offering of the Property for sale,
said Development Agreement shall be deemed to be illustrative of the terms acceptable
to the City with respect to:
1) Timely completion of the construction project;
2) Construction of minimum improvements;
3) Developer and City obligations; and
4) General terms and conditions.
Section 5. That the Development Agreement submitted by the Developer
satisfies the requirements of this offering and, in the event that no other qualified
proposals are timely submitted, that the City Council intends to accept and approve the
Development Agreement.
Section 6. That it is hereby determined that the Developer possesses the
qualifications, financial resources and legal ability necessary to purchase the Property
shown on Exhibit A and to construct, manage and operate the site in the manner proposed
by this offering in accordance with the Plan.
Section 7. That the City Clerk shall receive and retain for public examination the
attached Development Agreement submitted by the Developer and, in the event no other
qualified proposals are timely submitted, shall resubmit the Development Agreement to
the City Council for final approval and execution upon expiration of the notice hereinafter
prescribed.
Section 8. That the action of the City Council be considered to be and does
hereby constitute notice to all concerned of the intention of this Council, in the event that
no other qualified proposals are timely submitted, to accept the proposal of the Developer
to purchase the Property shown on Exhibit A and to approve the Development Agreement
by and between City and Developer.
3
Section 9. That the official notice of this offering and of the intent of the City, in
the event no other qualified proposals are timely submitted, to approve the Development
Agreement, shall be a true copy of this Resolution, but without the attachments referred
to herein.
Section 10. That the City Clerk is authorized and directed to secure immediate
publication of said official notice in the Telegraph Herald, a newspaper having a general
circulation in the community, by publication of the text of this Resolution on or before the
11 th day of October, 2019.
Section 11. That written proposals for the sale of the Property shown on Exhibit
A will be received by the City Clerk at or before 10:00 a.m., November 12, 2019, in the
Office of the City Clerk, located on the first floor at City Hall, 50 West 13th Street, Dubuque,
Iowa 52001. Each proposal will be opened at the hour of 10:00 a.m. in City Hall,
Dubuque, Iowa on November 18, 2019. Said proposals will then be presented to the City
Council at 6:00 p.m., November 18, 2019, at a meeting to be held in the City Council
Chambers, Historic Federal Building at 350 West 6th Street, Dubuque, Iowa.
Section 12. That the method of offering the Property for sale as set forth herein
is in substantial conformance with the provisions of Iowa Code Section 403.8, requiring
reasonable competitive bidding procedures as are hereby prescribed and "fair value."
Section 13. That the required documents for the submission of a proposal shall
be in substantial conformity with the provisions of this Resolution.
Section 14. That the City Clerk is hereby nominated and appointed as the agent
of the City of Dubuque, Iowa to receive proposals for the sale of the Property on that date
and according to the procedure hereinabove specified for receipt of such proposals and
to proceed at such time to formally acknowledge receipt of each of such proposal by
noting the receipt of same in the Minutes of the Council; that the City Manager is hereby
authorized and directed to make preliminary analysis of each such proposal for
compliance with the minimum requirements established by this Council hereinabove. For
each proposal that satisfies these requirements, the City Council shall judge the strength
of the proposal by the competitive criteria established hereinabove. The City Council
shall then make the final evaluation and selection of the proposals.
Section 15. If, and only if, competing proposals are received and determined by
the Council to meet the minimum requirements described herein, the Developer shall be
allowed to amend its proposal in response thereto and to deliver same to the City
Manager, by no later than a date determined by the City Council. In such event, the
Council shall schedule a subsequent meeting to be held by the City Manager at which
there shall be a bid -off conducted by the City Manager. During such bid -off, each
competing bidder shall bid against the other, starting with the second proposal received
and continuing until such time as each bidder shall decline to improve its proposal to
acquire and redevelop the Property shown on Exhibit A in response to the last bid of the
other bidder or bidders. The period of time to be allowed for such bid -off shall be
1H
determined by the City Manager. The rules of such bid -off shall be as determined by the
City Manager at or before such bid -off period and shall be absolute.
Section 16. That in the event another qualified proposal is timely submitted and
accepted by the City, another and further notice shall be published of the intent of the
City of Dubuque, Iowa, to enter into the resulting agreement, as required by law.
Passed, approved and adopted this 7th day of October, 2019.
Attest:
KeviK9. Firnstahl,~Ci y Clerk
Ja A. Rios, Mayor Pro Tem
5
L:1291NId F-11
";L�a.%ll: IC
STATE OF IOWA {SS:
DUBUQUE COUNTY
CERTIFICATION OF PUBLICATION
I, Suzanne Pike, a Billing Clerk for Woodward
Communications, Inc., an Iowa corporation, publisher
of the Telegraph Herald, a newspaper of general
circulation published in the City of Dubuque, County
of Dubuque and State of Iowa; hereby certify that the
attached notice was published in said newspaper on the
following dates:
October 11, 2019,
and for which the charge is $290.07
Subscribed to before me, a Notary Public in and for
Dubuque County, Iowarr�� V
this J—( day of GAV J , 20(q.
Notary Publi4 and for Dubuque C unty, Iowa.
, JANE�NumberI99659
CommisslonMy Comm. E
CITY OF DUBUQUE, IOWA
and to give Ed[ a4ifalr opportuhit Tt§ other de-, '-:DevelopmentAgreementto the Ply
,
OFFICIAL NOTICE
velopers�intwestidin;submittinb icp 6opdsal for';'�
'finalapproual dex on upo�Y?T'�� �o
PUBLIC NOTICE, Is. hereby.given that,the
theiiale and.deVel6priie,nt:jotf?Le;Pio�erty;..ttfis�.' ,�
;the 46tic.eh=acfters�c
presobbedl,'.
City.Cituncil of the- City of'Dubu
. 4ug" Idwa,
will hold a fulblic. hearing on the'�T,8.-. day of
NtiVerriber 0 9,1 . 6:00 p.m. in the HIstorI6
Council should by this Resolution:
T),Set.the fair market value of the,Property
for in accordance the Plan;:
Section 8.That the action of the -Ci%,Couhicill
be considered 9n
be and does -
Federal -Building, 3.50 West Sth Street, second
with
2) Approve the.minimum, requirements and
tuteWotiCs-tball conctimed'dirt . A. of
this. Couricil�,in, the t I flo 0 quali- -
floor,' Dubuque, 'Iowa, at, which' meeting the
City CouncII-proposeil dispties of an Inter-
herelfi;
competitive 6riteMii includede0;
3) ApproVe, as •to form the l5evelbipmant,
f .- . I
fled 'proposals are timely submitted,
the proposal of theDeveloper to purchase6:1
est'in'the following described.real,property to
Agreement; '
Property shown on I a P a the
MERGE, LLC, and Iowa Limited Liability Com-
4) Set a date for moelpt,of oorripeting pro-,
Dcivelopmint_A g a and between,
pan , Sala ursyint to Development Agree-
by
posals and the opening thereof,
and Developer.
merit:
Approidmately. 112 acres located at the
S). Declare that the pr6posal, submitted 'by
Developer satisfies. the,minimum requirements,,
Section 9.7.1rat th&crfficiaJ-n6tice of this'al-
fering and of the intent of the City,.in.the event
comer'of Ica +496br DWe a" rid East 5" Street,
Dubuque, Iowa aishovim on Exhibi:A. . ,;
of the offering, and th�at in the event nd,664:
qualified proposal, ls, timely: sulornlied, Ihat the•
no other qualified proposals are timily.sulohnit-
the',Development
ted, to-iipprove the'Develo§M6nt Agreement,At
the meeting, the City Council will receive
City Council intends to accept such: proposal
shrallbe, a true -copy o this, Resolution, but with-
6631'.iand written oommerfts.frpm.0y msldint;oc
and authorize the City Manager to sign the, De-
I
out theittachiments referred to herein.
property owner of said Cityvelo
to the above action.
pment Agreement;
Section;`1 0; That the City Clerk Is'.bih.rized
Written comments .regarding
ing the above public
hearing, may be. submitted to the CityClerk's
6) Approve and direct Publication of, a notice
to the
and directed to secure "Immidiate, publication
Office, City Hall; ISO W. 13- Street, won; 'oi before
advise any other,person of opportunity to
compete for sale of the Pro perty,on'the'termik
of said official notice in the Telpgraph Herald,
a riewspapirhayinqla genera circulation in the
said -.time ofpCiblic hearng..
Copies of supporting documents for the
and -cond Mons set forth herein;
7) DeclareAhat in the eventanother.qualTied
community, by publication of the,text of this
q lution on or before the 1111 day of October,
p6blic, hearings are on file in the City Cldrk's Cif-
proposal is timely subirrittid ghd accepted iliri-
20%q .0
fibbri and may beViIewed;during normill,working
other and future notice will be p I ublighed . on "t . he.
Sbicti6in Al. Tbif written proposals for the
hours.
Individuals with"I ,
(mited Eriglisli proficiency,
intent nf,theClty to, enter iito the resulting cony
tract, as m4bred by law;
sale. of the. Property shown on'Exhlbit-AwlVioe
received 15y the Clty'Clerk at* before 10:00
vision,. hearing or s
. I speech impairments rmenti retilr.
and
am.,NoveWnb4i'12 -2019,:Ih the OfRce:of the,
ing special assistance should cbnts6t the ity
Whereas;the City Council believes it is iRthil
City'Cler1c, located �n.the,first-floorat,CIty.-Halli
Clerk'i Office at (563) 589-4100i TDD (563)
best Interest of the.City and the Plan to, act as 1
60 ViW 13ih Street,. Dubuque, lowa.52001..,,
690-6678, c2"�c��ler"c6ofqubtiquei.org is soon
expedirtiouislyas possible to sell the Pro .
0 pertyas�.'_Each.proj.)q* will�Jpe't,piened-af�the4iour bf
L
We"ble. or-hardaf-J�ean vduslie..--set�fe
ng
- '711
_her;lirr-_ T7F7M",J �i
.
'
Hai Dubuque,
r 1; 0 b Oue, Iowa on No=
can use Relay Iowa by dialing or (800) 735-
2942. '
NOW, THEREFORE, BE IT RESOLVED
OLVED
veirnber 18, 2019. Said. proposals will then be
-
Dated this 11 - day of October 2019.
BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE IOWA.
presented to the City Council at 6:00 p.m., No -
verriber 18,'201'9, at a meeting to be held in the
Kevin S. Firnstahl, CMC
Section I. That the Property shown *on Ex,' -'City Council Chambers, Historic Federal BUII&
C Clerk
hibit A attached hereto, shall be offered for sale
Ing at 350 West 6th Street,.Dubuque, Iowa.
RESOLUTION NO. W5-19
in accordance with the terms and conditions.
.
. Sektion 12. Thatt'he method of offering the
RESOLUTION (1) APPROVING THE MINI-
contained in this Resolution. . I
Property for sale asset forth herein-isin sub-,
MUM REQUIREMENTS, COMPETITIVE CRI-.
TERIA, AND OFFERfl4dPROCEDUREZ FOR
'S.ection.2. That It ls.herebthat
iy determined at,
in order to qualify foe c6risidiftifori'for select-
stantial conformance with the provisions of
Iowa Code Section 403.8, requiriiig rebionable
THE DEVELOPMENT AND THE SALE OF
tion, any person must submit a proposal which
competitive bidding procedures as are hereby
.CERTAIN REAL PROPERTY AND IMPROVE.
NEN�TSA*,THE GREATEROOWNTTOWN UR-
meets theseminimumrequirements: prescribed arid-Ifer value.'
.'1)."Contiihs:an thii!�'�'.;;S&61:1
Seddon at the required documents -for
DIST
BM'RE.14EWAL RICY�;Mr DETERMINING
TRAT.'-THE
Properly shown sitiown' on' ExhibivAiIia't not lees.philim
-which
of a.propossil shaftd In sub-
OFFER TO PURCHASE,$UBMIV
fair rnarker'vakie; foP the purposes of -itahtla( cdftformlty wfth the;prtilhi6na of this
JED BY -'MERGE LL0 SATISFIMTRE:OF-
FEIRIJ14G�REQJUREMENTS WITH RESPECT
tgla resolutloii ia!h(amby,dletw�ijned, to be $
8.07,842.52.;iind $,162,230.r,7--for.req'uirii&-is&-
'Resolution '"`
Section 1C 71iat. the CV: - Clerk is hereby
TWTHE -REALr PROPE§TY`AND IMPROVE-
_NlEfiii AND DECLARING THE INTENT OF
mintsfforat'dIp'urch�i'�pii'cii6f$970,073.19;'":
'2) EUtesi . b , •n6mber bf "8eftbal units and
'ri8ftniited,'wd app&nted 6-ft agibrifl6fthe
City of Dilbuque, Iowa to receive prop6isili for
THE CITY COUNCIL TO APPROVE THE
square feet of commercialfretail space that will
the sale of the Property on that date and ac-
SALE TO, MERGE, LLC IN, THE EVENT THAT
THE. . I
losiLdrigatid in-thi;p(opi—Np-no
_F
'
cordih' t�dlhe prodwi I rr�ibcvqvp&ffi4d'
t ure neral
NdAcompEnw-PROPOSALS, ARE`,SUEII,.�
c
tisfsictiorrbf,.
fof�re-coo�6f.su6h'ol"'Dposa'f,,si'And ' rciciod-
top
MlTTED;,AND-q:SOLICFT1NG COMPETING'
PROPOSALS-
Jh e_,CrryqCo'up_ciIke_"_' penerice,of;he,principals
in the
time ally ackhowledg6jeceipt .
of each of such proposal by noting the receipt
"W' e -;'a Council"up "a'
pe, rmancb:of, con b: , idobli 9WIp ns in carrying
of same in the Minutes of the Council; -that the
rL'
did -h., , 211 A. gad Amended -d
t
Restated":_ Renewal "__, the Greater
�rolectslo. pl0scae;atld. aracter; and
-ur�.tbe terms and con-
Aminirn
I
City Manager is hereby authorized and directed
to make preliminary analysis of each such pro-
Urban R_. c, a
'h . 'I- I
-
ciftf6ps,ol'the Vsement submit-
' _,D6velpprr:"%AQ
posal for compliance with the minimum require-
for . Urban described t Ih
Ito .In,,
'tedby (6ISp6r.J6cIudi6g il�igreement to
ments, established by this Council hereinabove
and
_.A'eb.e
For each proposal that satisfies these require -
an
sale asrapiciryaspossiom;ranci jq:.�,o oeciton ?.,Av , oar tn8AJeVeK)PMf
Vffiereaq, in order �f6.-esi6ilsh--ria�n-ab)y" submited,by theNVekIwi, "
mpertitive bidding procedures for the disposi- quirements of this offering and, in
i,of-thoProperty in accordsiacewith the stet-". . no, other quallfled,Rroposals.are,:
iry.mqUimments of lovvaCddi Chaipir`403,! teb-,.tHat th;dIq Courcil intends;
eclilbalty,'Section 40.3.8, andto "Agreer
ityextends a u11 and fair all 6.tQt �t �hi"EyZI velopers interested in submitting apropos- the Developer possesses the.cip
a summary .of submissibn xisquirAments and nancial resources and legal a6ifitl
iimum requirements and cohtputitive criteria purchase the Properly s-hOWAL„oa
the Property offering is Included herein; and to construct; manage and d open
Whereas, said Developer has slimed a De- manner Proposed by this offe, , HnEf, ,
on fire at the Office of the - Qltyi SdC _.Wn.,47 T-hat"K6_-,Cd gperi,
Whereas, to recognize,h, -ffelrr�m
tiA UbliZ
ad forsale of the gbii 4.Usubmit
• hi ev t-ii alreiidy.received by the .Cityin..the trm.otthe "Velo .01 0' Development Agreemej 'ib6 ey.
ftdi6.A ad' brnO
PQ
-Alp
u
Ll unrtsain -merits, the,Cfty Council shall judge the strength
n the Ijbf41h6:pr6?)bsaI by,thwrompetttivd criteria as-
.. -tablished heminabove.. -The City Council shall
Agreement then make the final evaluatioh and selection of
eveloper be the proposals.
for the pur-, _ Secticin�5. If, and only, if, comps�ting,propos-
� . :.--'.'�l§are r6c,61vidarfd-dLtwrnine8'6i,theC6unciI
of deferrer? .? to rtfeetthp,minimum,requirements described
e, said D. here4rr, theD��veT6Oershall beglowed toamend
-d- er
.m -t rbpcsal-inrsspons�therleto�d fo 567e
to the City same to the City Manager, %Z later than a
;-date determined by-the.�Cfty unqiL In such
.on cii-n ,,event, the Council shall ;schedule a subi
*ent,rrieeting .6 be held. 6y1h; City Manager
overnents, at which th4rishall bergbid-b conducted by
and the -City Nanager. During such bid -off, each..
11 � .. Cftbdtog,biddishall bid against the other. .
Agreement:, m�Tsp� dpoppeareceived, and
f-
k.�pfjbsoed�of the intent;of the City of 06buque,
_1
LW�Ci4 y -to'enter into the resulting agreement, as
aw.
i. Ehibft A
CERTIFICATE of the CITY CLERK
STATE OF IOWA )
SS:
COUNTY OF DUBUQUE )
I, Adrienne N. Breitfelder, City Clerk, do hereby certify that I am the duly appointed,
qualified, City Clerk of the City of Dubuque, Iowa, in the County aforesaid, and as such
City Clerk, I have in my possession or have access to the records of the proceedings of
the City Council. I do further state that the hereto attached Resolution No. 355-19 and
associated Certificate of Publication is a true and correct copy of the original.
In Testimony Whereof, I hereunto set my hand and official seal of the City of Dubuque,
Iowa.
Dated at Dubuque, Iowa, on this 6tn day of November, 2023.
Adrienne N. Breitfelder, City Clerk
A
a
�01
STATE OF IOWA {SS:
DUBUQUE COUNTY
CERTIFICATION OF PUBLICATION
I, Suzanne Pike, a Billing Clerk for Woodward
Communications, Inc., an Iowa corporation, publisher
of the Telegraph Herald, a newspaper of general
circulation published in the City of Dubuque, County
of Dubuque and State of Iowa; hereby certify that the
attached notice was published in said newspaper on the
following dates:
October 11, 2019,
and for which the charge is $290.07
cfA,
Subscribed to before me, a Notary Public in and for
Dubuque County, Iowa,rr��
this a( day of V &tale _ , 20 (C
\<•
Notary Publi and for Dubuque County, Iowa.
JANET K. PAPE
Commission Number 199659
My Comm. Exp. DEC 11, 2019
P 9 PP
OFFICIAL NOTICE veto ars h er"est DeveloprnentAgreementto the City Council for
CITY OF DUBUQUE, IOWA- and'togive full and fair opportunity to other de,
etl in submittin a ro o"sal for final.approval;and execution upornezpu�tion.of'
PUBLIC NOTICE is• hereby ,given that, the the sale' and developrpent;of the Property:this ,•;the notice hereinafter, prescribed
City Council of the City of Dubuque; Iowa, Council should by this Resolution: Section 8 .That the action of the Council
will hold•;a public, hearing 'on the 18°h_: day of 1) Set the fair market .value of the Property , be considered.:tobe. and does hereby consti
November 2019 at 6:00 p.m in the Historic for uses in accordance with the Plan; tute7notice to' all concerned of the""intention=:of'
q second 2) Approve the minimum requirements and this :Council,. in_ the„event .that •no ;other quell,-_
Federal; Bwlding; 350' West 6th Street,
floor` Dubu ue Iowa, at •which meeting the competitive criteria included herein;.; ie proposals are timely submitted, toaccept:
City Council proposes'to dispose of:an inter-: 3) Approve .as to- form the Development' the proposal of the Developer to -purchase the'
est in•the'foliowing, described,real- property to Agreement Propertyshown:on ExhibitAand.td, ad:prove-the
MERGE, LLC, and Iowa Limited Liability Com 4) Seta date;.for receipt, of competing pro .. Development; Agreement by and .betweenity„
an bysale ursuant to` Develo ment A ree- 'osals and'the enin thereof;` "• a; and Developer.::' " '" '
p Y. P P 9. .p p 9
merit: g "5).Declare that the proposal submitted by Section 9.'Thatthe_official notice of this: of,=i'
Approximately122 acres located, at the Developer satisfies the minimum. requirements: fering;and of the intent of the City,",in the event,
corner of Ice Harbor Drive and East 5" Street, of the :offering, and that `in the event no other " no other qualified proposals are timely submit
Dubuque,,lowaasshown on'ExhibitA.•' qualified proposal is timely: submitted,' that the • ted, to,approve'thes, DevelopmentAgreement,r
At the'meeting ,'.the City Council wilt%receive City Council intends to accept such; proposal shall,be a truecopy ofthis Resolution, but with,;,
Oral'and written comments from any residentor, and authorize the City Manager to sign the De- out the attachments referred. to, herein
property owner" of said City tothe above action. velopmenm
tAgreeent ' ` Section' 10. That the City Clerk is authorized •
Written comments; regarding the above public' 6) Approveand_direct-publication of a notice: and directed to secure `immediate: publication;
hearing; may, be. submitted .to, the, City Clerk's to advise any other.,person`.of the opportunity to of said official notice in the Telegraph Herald,
Office; City Hall; "50'W 13 Street on or before compete for sale, of the Property on'the terms,'. a newspaperhaving"-ageneral !circulation in the
said time of. public hearing ! , and "conditions set forth herein and community, byipublication ,,of the. text:.ofthis;
Copies of supporting documents.:for the 7y Declare that in the another, qualified' Resolution on .or before the 1 l ' day of October,.
public hearingsare on file in the City Clerk's Of= proposal• is timely submitted and accepted, an-_ 2019:" "
hours. of e r a d future notice will; ie published onthe` Section 11.?=That written proposals for the '
Tice and may be viewed during normal�working other:and
f,the City to enter into the resulting :coor sale of the Property shown on Exhibit A will':be;
IndiViduale with limited "English proficiency, tract, as required by law; . received by the City Clerk at :or. before 10:00=
vision;" hearing or speech impairments reguir- and a.m.;'November12, 2019, in the O ice'of tile.
ing special assistance should. contact -the City Whereas, theCityCouncil believes'it is in the- City,Clerk, located on the first floor; at City Hall;;'i
Clerks Office at (563), 589-4100 TDD; (563) best interest. of the City and, the Plan: to, act as:. 50 West 13" Street,. Dubuque, Iowa ,52001.;4
690-6678,; ctyclerk@cityofdubuque org as soon expeditiously as possible to sell the Property as. Each proposal `will be, opened-.at.the-hour 'of'
^ass -feasible.; Deaf or -;hard of hearing indjviduals = setforth herein r?.. ,r ,+ i,; 10.0-0a m in..City Hall;''Dubuque, Iowa on:Nor.
can use Relay Iowa by dialing'711 or (800) 735- NOW, THEREFORE, BE IT RESOLVED` vember 18, 2019. Said: proposals will then be
2942• BY THE 'CITY,`COUNCIL OF THE ;CITY' OFpresented to the City Council at 6:00 p.m., -No -
Dated this 11'" day of October 2019. DUBUQUE, IOWA:' vember 18 201'9,•at a meeting to be held in the
-Kevin S. Firnstahl, CMC Section 1. That the Property shown`on Ex--"' 'City Council Chambers,'Historic Federal Build
` City Clerk hibit A attached hereto, shall be offered for, sale ing at 350 West 6th Street, „Dubuque
RESOLUTION N0.355-19 accordance with the terms and conditio
O ins , Section 12. That the d•
methoof offering„the'
' in
RESOLUTION (1).APPROVING THE MINI- contained in this Resolution. Property'for sale as forth herein -is sub
4.' 2.
eahereby:it is, that,
'stantial conformance • with theprovisions of
ERA ANDOFFERING'PROCEDUESFOR ` ` in odertoquliffons de atiomfor tele`Iowa Code
Section 403:8'requiring'reasonable
THE DEVELOPMENT AND `THESALE OF tion, any person must submit a proposal which competitive bidding procedures as arehereby
, CERTAIN REAL PROPERTY AND IMPROVE- ` meets •these minimum requirements prescribed and .fair. value.'
MENTS•IN�THE GREATER DOWNTOWN'UR 1) Contains anagreement,to purchase the Section 13 Thattherequired documents:for
BAN RENEWAL DISTRICT;'(2)`DETERMINING Property';; shown; on Exhibif A at notlessthan the'submissionof :`. r a: