Walter Development, LLC; BAS Development, LLC; BAS Development, LLC; Unison Solutions_Initiate Copyrighted
October 7, 2019
City of Dubuque Items to be set for Public Hearing # 5.
ITEM TITLE: Walter Development, LLC; BAS Development, LLC; and
Unison Solutions DevelopmentAgreement
SUMMARY: City Manager recommending that the City Council set a
public hearing for November 4, 2019, on a proposed
Development Agreement by and among the City of
Dubuque, Walter Development, LLC, BAS Development,
LLC, and Unison Solutions, Inc. providing forthe sale of
city-owned real estate to BAS Development, LLC and the
issuance of Urban Renewal Tax Increment Revenue Grant
Obligations.
RESOLUTION Intentto dispose of an interest in Cityof
Dubuque Owned real estate by sale to BAS Development,
LLC pursuant to a proposed Development Agreement;
fixing the date for a public hearing of the City Council of the
City of Dubuque, lowa on the proposed sale of the real
estate and on the issuance of Urban Renewal Tax
Increment Revenue Grant Obligations to Unison Solutions,
I nc.; and providing for the publication of notice thereof
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt
Resolution(s), Set Public Hearing for November 4, 2019
ATTACHMENTS:
Description Type
Unison/Walter De�lopmentAgreement-MVM Memo City Manager Memo
Staff Memo Staff Memo
DevelopmentAgreement Supporting Documentation
Notice of Hearing Supporting Documentation
Resolution Setting Public Hearing Resolutions
Dubuque
THE CITY OF �
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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 by and among the City of Dubuque, Walter Development, LLC,
BAS Development, LLC, and Unison Solutions, Inc. providing for the Sale
of City-Owned Real Estate to BAS Development, LLC and the Issuance of
Urban Renewal Tax Increment Revenue Grant Obligations Pursuant to the
Development Agreement
DATE: October 3, 2019
Economic Development Director Jill Connors recommends the City Council set a public
hearing for November 4, 2019, on a proposed Development Agreement by and among
the City of Dubuque, Walter Development, LLC, BAS Development, LLC, and Unison
Solutions, Inc. providing for the sale of city-owned real estate to BAS Development, LLC
and the issuance of Urban Renewal Tax Increment Revenue Grant Obligations.
Unison Solutions, Inc., BAS Development LLC, and Walter Development, Inc. are
planning a 20,000 square foot building expansion on the north side of the existing
Hodge Companies building at 5301 Chavenelle Road in Dubuque Industrial Center
West. The proposed building expansion, estimated at $1.8 million, also includes
associated parking and circulation improvements which require the acquisition of
adjacent city-owned property by BAS Development. The building expansion and
parking/circulation areas will be utilized by Unison and Hodge in their industrial
activities. The project was initiated by Unison to accommodate its expanding biogas
tank production (biogas conditioning and upgrading systems) business.
In addition to the physical improvements, Unison has committed to the creation of ten
full time equivalent jobs.
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. Additional terms
and conditions of the development are included in the Development Agreement.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
1�f.�iG�"�'�'1 �Wa f{�F-��r�....
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•AmericaCity Dubuque,lowa 52001-4864
U� � "A°NA"�``'�`"� Office(563)589-4393
1 I I�I TTY(563)690-6678
http://www.cityofdu buq ue.org
2007*2012*2013
Masterpiece on the Mississippi 2oi�*Zoi9
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 by and among the City of Dubuque, Walter Development,
LLC, BAS Development, LLC, and Unison Solutions, Inc. providing
for the Sale of City-owned Real Estate to BAS Development, LLC and
the Issuance of Urban Renewal Tax Increment Revenue Grant
Obligations Pursuant to the Development Agreement
DATE: October 2, 2019
INTRODUCTION
This memorandum is a request for the City Council to adopt the attached resolution
setting a public hearing for November 4, 2019 on a proposed Development Agreement
by and among the City of Dubuque, Walter Development, LLC, BAS Development, LLC,
and Unison Solutions, Inc. providing for the sale of city-owned real estate to BAS
Development, LLC and the issuance of Urban Renewal Tax Increment Revenue Grant
Obligations.
BACKGROUND
Unison Solutions, Inc. began operations in 2000 as an energy consulting company.
Soon thereafter, a utility contracted with Unison to project manage a biogas-to-energy
project. The utility had purchased biogas conditioning equipment from other suppliers
which ultimately didn't meet the quality, reliability, and safety standards the utility had
expected. The utility proceeded to do a second project and Unison was given the
opportunity to build the biogas conditioning equipment. Unison has now designed and
manufactured over 300 biogas conditioning and upgrading systems. Its systems are
installed throughout North America at landfills, wastewater treatment plants, and
industrial facilities to convert raw biogas into a useable gaseous fuel. The fuel can be
used for electrical generation, as vehicle fuel (CNG), or as direct injection into the
natural gas grid.
BAS Development LLC is a real estate development company wholly owned by the
same two owners as Unison Solutions, Inc., Dave Broihahn and Jan Scott.
Walter Development, Inc. is one of the Hodge group of companies. It was established
in 2000 and serves as the real estate development arm of Hodge. Walter Development
owns approximately 1 .3 Million SF of commercial real estate, the majority of which is
located within the city of Dubuque. The company specializes in warehouse and
distribution space and provides facilities both for its' sister companies and for third-party
leases. Hodge Transit Warehouse was established in 1958 as a public warehouse
provider and later became TM Inc., a full-service third-party logistics company. Hodge
Material Handling was established in 1980 and is a material handling equipment sales
and service company. In 2018, the three companies—Walter Development, Inc., TM
Inc, and Hodge Material Handling—were re-branded as one operating entity, HODGE,
in order to deliver all of their products and services more efficiently.
DISCUSSION
Unison Solutions, Inc., BAS Development LLC, and Walter Development, Inc. are
planning a 20,000 square foot building expansion on the north side of the existing
Hodge Companies building at 5301 Chavenelle Road in Dubuque Industrial Center
West. The proposed building expansion, estimated at $1 .8 Million, also includes
associated parking and circulation improvements which require the acquisition of
adjacent city-owned property by BAS Development. The building expansion and
parking/circulation areas will be utilized by Unison and Hodge in their industrial
activities. The project was initiated by Unison to accommodate its expanding biogas
tank production (biogas conditioning and upgrading systems) business.
In addition to the physical improvements, Unison has committed to the creation of ten
(10) full time equivalent jobs.
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. Additional terms
and conditions of the development are included in the attached Development
Agreement.
RECOMMENDATION/ ACTION STEP
I recommend the City Council adopt the attached resolution setting a November 4, 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/Return to: Jill Connors, Economic Development. 50 W. 13th Street, Dubuque IA 52001, 563 589-4393
RESOLUTION NO. 359-19
INTENT TO DISPOSE OF AN INTEREST IN CITY OF DUBUQUE OWNED REAL
ESTATE BY SALE TO BAS DEVELOPMENT, LLC PURSUANT TO A PROPOSED
DEVELOPMENT AGREEMENT; FIXING THE DATE FOR A PUBLIC HEARING OF
THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA ON THE PROPOSED SALE
OF THE REAL ESTATE AND ON THE ISSUANCE OF URBAN RENEWAL TAX
INCREMENT REVENUE GRANT OBLIGATIONS TO UNISON SOLUTIONS, INC.; AND
PROVIDING FOR THE PUBLICATION OF NOTICE THEREOF
WHEREAS, Walter Development, LLC, is the owner of the following described real
estate (the Walter Development Property):
LOT 2-1 WALTER ADD; locally known as 5301 CHAVENELLE RD
; and
WHEREAS, BAS Development, LLC is the owner of the following described real
estate (the BAS Property):
LOT 1 WALTER SECOND ADD; locally known as 5451 CHAVENELLE RD
; and
WHEREAS, Unison Solutions, Inc. leases a part of the Walter Development
Property for its operations (the Facility); and
WHEREAS, Unison Solutions, Inc. has determined that it requires an expanded
Facility to maintain and expand its operations and employment; and
WHEREAS, the Facility will be the home office for a multistate business; and
WHEREAS, the City of Dubuque (City) is the owner of the following described real
property:
LOT 2-2 OF MCFADDEN FARM PLACE in the City of Dubuque, Iowa (the City
Property)
; and
WHEREAS, BAS Development, LLC has requested that City sell to it the City
Property so that Walter Development, LLC may develop the Walter Development
Property and the City Property for the expansion of the Facility; and
WHEREAS, Walter Development, LLC will undertake the expansion of a building
for the Facility and will make a capital investment in building improvements, equipment,
furniture and fixtures; and
WHEREAS, Unison Solutions, Inc. will create Ten (10) new full-time jobs at the
expanded Facility; and
WHEREAS, City, Walter Development, LLC, BAS Development, LLC, and Unison
Solutions, Inc. have caused to be prepared a Development Agreement, a copy of which is
now on file at the Office of the City Clerk, City Hall, 50 W. 13th Street, Dubuque, Iowa,
providing for the sale of the City Property to BAS Development, LLC, the development of
the Property by Walter Development, LLC, and the issuance of economic development
grants (Urban Renewal Tax Increment Revenue Grant Obligations) to Unison Solutions, Inc.
in connection with the foregoing developments; and
WHEREAS, the City Council finds that it is in the best interests of the City to
approve the Development Agreement; and
WHEREAS, before the Development Agreement providing for the sale of the City
Property and the issuance of Urban Renewal Tax Increment Revenue Grant Obligations
the may be approved, Chapter 403 of the Code of Iowa requires that the City Clerk publish
a notice of the proposal and of the time and place of the meeting at which the City Council
proposes to take action thereon and at which meeting the City Council shall receive oral
and/or written objections from any resident or property owner of the City to such proposed
action.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City Council intends to dispose of its interest in the City Property
by sale to BAS Development, LLC and approve the issuance of Urban Renewal Tax
Increment Revenue Grant Obligations pursuant to the proposed Development Agreement.
Section 2. The City Clerk is hereby authorized and directed to cause a notice to
be published as prescribed by Iowa Code Section 403.9 of a public hearing on the City's
intent to dispose of its interest in the Expansion Property and to authorize Urban Renewal
Tax Increment Revenue Grant Obligations, to be held on the 4th day of November, 2019, at
6:00 o'clock p.m. in the City Council Chambers at the Historic Federal Building, 350 W. 6th
St., Dubuque, Iowa.
Section 3. That the notice of the proposed action shall be in substantially the
form attached hereto.
Passed, approved and adopted this 7th day of October, 2019.
Attest:
Kevin . Firnstahl, City Clerk
ake A. Rios, Mayor Pro Tem
DEVELOPMENT AGREEMENT
BY AND AMONG
THE CITY OF DUBUQUE, IOWA,
WALTER DEVELOPMENT, LLC,
BAS DEVELOPMENT, LLC, AND
UNISON SOLUTIONS, INC.
THIS DEVELOPMENT AGREEMENT (the Agreement) dated for reference
purposes the day of , 2019 is made and entered into by and among
the City of Dubuque, lowa (City), Walter Development, LLC (Developer), BAS
Development, LLC (Expansion Property Purchaser), and Unison Solutions, Inc.
(Employer).
WHEREAS, Developer is the owner of the following described real estate
(Developer's Property):
LOT 2-1 WALTER ADD; locally known as 5301 CHAVENELLE RD; and
WHEREAS, Expansion Property Purchaser is the owner of the following described
real estate:
LOT 1 WALTER SECOND ADD; locally known as 5451 CHAVENELLE RD; and
WHEREAS, Developer's Property is located in the Dubuque Industrial Center
Economic Development District (District) which has been so designated by City Council
Resolution 130-88, as subsequently amended, as an economic development area (the
Project Area) defined by lowa Code Chapter 403 (Urban Renewal Law); and
WHEREAS, Employer leases a part of Developer's Property for its operations; and
WHEREAS, Employer has determined that it may require an expanded facility to
maintain and expand its operations and employment in the Project Area (the Facility); and
WHEREAS, the Facility will be part of the home office for a multistate business;
and
WHEREAS, Expansion Property Purchaser is the owner of LOT 1 WALTER
SECOND ADD, locally known as 5451 Chavenelle Road (Expansion Property
Purchaser's Property) adjacent to Developer's Property, and has requested that City sell
to Expansion Property Purchaser 1 .90 acres of land, adjacent to Expansion Property
Purchaser's Property and Developer's Property, of which 0.67 acres are usable, legally
described as LOT 2-2 OF MCFADDEN FARM PLACE in the City of Dubuque, lowa,
together with all easements, tenements, hereditaments, and appurtenances belonging
thereto (the Expansion Property ); and
WHEREAS, Developer, Expansion Property Purchaser, Employer and City agree
091719ba1
that upon approval of the Plat (as defined in Section 1 .9 of this Agreement) this
Agreement will be amended to include the legal description of the Expansion Property;
and
WHEREAS, Developer may undertake the expansion of a building located on
Developer's Property for the Facility; and
WHEREAS, Developer may make a capital investment in building improvements,
equipment, furniture and fixtures in the Facility (the Project); and
WHEREAS, Expansion Property Purchaser may construct a road over Expansion
Property Purchaser's Property and the Expansion Property; and
WHEREAS, Developer and Employer may enter into an agreement under which
Developer will redevelop and sell or lease the Facility to the Expansion Property
Purchaser; and
WHEREAS, in furtherance of the objectives of Chapter 403 of the Code of lowa,
the City has undertaken a program for the development of an area in the City, and in this
connection is engaged in carrying out urban renewal project activities in an area known
as the Dubuque Industrial Center Economic Development District ("Urban Renewal
Area"), which is described in the Dubuque Industrial Center Urban Renewal Plan
approved for such area on May 2, 1988 and subsequently amended various times through
the date hereof ("Urban Renewal Plan"), a copy of which is on file in the records of the
Dubuque County Auditor and in the office of the City Clerk of the City; and
WHEREAS, the Dubuque City Council believes it is in the best interests of the City
to encourage Developer, Expansion Property Purchaser and Employer in the
development of the Property by providing certain incentives as set forth herein.
NOW, THEREFORE, the parties to this Agreement, in consideration of the
promises, covenants and agreements made by each other, do hereby agree as follows:
SECTION1. CONVEYANCE OF PROPERTY TO EXPANSION PROPERTY
PURCHASER
1 .1 Purchase Price. The purchase price for the Expansion Property (the Purchase
Price) shall be the sum of Eighty Thousand Four Hundred Dollars ($80,400) [One
Hundred Twenty Thousand Dollars ($120,000) per usable acre for 0.67 net usable acres]
with a total acquisition of 1 .90 acres, which shall be due and payable by Expansion
Property Purchaser in immediately available funds in favor of City, on or before
October 31 , 2019, or on such other date as the parties may mutually agree (the Closing
Date).
1 .2 Title to Be Delivered. City agrees to convey good and marketable fee simple title
in the Expansion Property to Expansion Property Purchaser subject only to easements,
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restrictions, conditions and covenants of record as ofthe Closing Date hereofto the extent
not objected to by Expansion Property Purchaser as set forth in this Agreement, and to
the conditions subsequent set forth in Section 5.3, below:
(1) City, at its sole cost and expense, shall deliver to Expansion Property
Purchaser an abstract of title to the Expansion Property continued through the date
of this Agreement reflecting merchantable title in City in conformity with this
Agreement and applicable state law. The abstract shall be delivered together with
full copies of any and all encumbrances and matters of record applicable to the
Expansion Property, and such abstract shall become the property of Expansion
Property Purchaserwhen the Purchase Price is paid in full in the aforesaid manner.
(2) Expansion Property Purchaser shall have until time of the Closing Date to
render objections to title, including any easements or other encumbrances not
satisfactory to Expansion Property Purchaser, in writing to City. Expansion
Property Purchaser agrees, however, to review the Abstract promptly following
Expansion Property Purchaser's receipt of Expansion Property Purchaser's land
survey and the Abstract and to promptly provide City with any objections to title
identified therein. Nothing herein shall be deemed to limit Expansion Property
Purchaser 's rights to raise new title objections with respect to matters revealed in
any subsequent title examinations and surveys and which were not identified in
the Abstract provided by the City. City shall promptly exercise its best efforts to
have such title objections removed or satisfied and shall advise Expansion
Property Purchaser of intended action within ten (10) days of such action. If City
shall fail to have such objections removed as of the Closing Date, or any extension
thereof consented to by Expansion Property Purchaser, Expansion Property
Purchaser may, at its sole discretion, either (a) terminate this Agreement without
any liability on its part, and any sums previously paid to City by Expansion Property
Purchaser (or paid into escrow for City's benefit) shall be returned to Expansion
Property Purchaser with interest, or (b) take title subject to such objections. City
agrees to use its best reasonable efforts to promptly satisfy any such objections.
1 .3 Riqhts of Inspection, Testinq and Review. Expansion Property Purchaser, its
counsel, accountants, agents and other representatives, shall have full and continuing
access to the Expansion Property and all parts thereof, upon reasonable notice to City.
Expansion Property Purchaser and its agents and representatives shall also have the
right to enter upon Property at any time after the execution and delivery hereof for any
purpose whatsoever, including, but not limited to, inspecting, surveying, engineering, test
boring, and performing environmental tests, provided that Expansion Property Purchaser
shall hold City harmless and fully indemnify City against any damage, claim, liability or
cause of action arising from or caused by the actions of Expansion Property Purchaser
or its agents, or representatives upon the Property (except for any damage, claim, liability
or cause of action arising from conditions existing prior to any such entry upon the
Expansion Property), and shall have the further right to make such inquiries of
governmental agencies and utility companies, etc. and to make such feasibility studies
and analyses as they consider appropriate.
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1 .4 Representations and Warranties of Citv. In order to induce Developer, Expansion
Property Purchaser, and Employer to enter into this Agreement, City hereby represents
and warrants to Developer, Expansion Property Purchaser, and Employer that to the best
of City's knowledge:
(1) As of the Closing, City will have obtained all necessary approvals and
consents for its execution, delivery and pertormance of this Agreement and that it
will have full power and authority to execute, deliver and perform its obligations
under this Agreement. City's attorney shall issue a legal opinion to Developer,
Expansion Property Purchaser, and Employer at time of closing confirming the
representation contained herein, in the form attached hereto as Exhibit A.
(2) City shall exercise its best efforts to cooperate with Developer, Expansion
Property Purchaser, and Employer in the development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of
whatever nature to which City is now a party or by which it or its property is bound,
or constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement or which might result in any adverse change in the Expansion
Property being conveyed or the possession, use or enjoyment thereof by
Expansion Property Purchaser, including, but not limited to, any action in
condemnation, eminent domain or public taking.
(6) All leases, contracts, licenses, and permits between City and third parties
in connection with the maintenance, use, and operation of the Expansion Property
have been provided to Expansion Property Purchaser and City has provided true
and correct copies of all such documents to Expansion Property Purchaser.
(7) City has good and marketable fee simple title interest in the Expansion
Property.
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(8) The Expansion Property has a permanent right of ingress or egress to a
public roadway for the use and enjoyment of the Expansion Property.
(9) 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 Expansion Property Purchaser in writing of
any past notices, orders, suits, judgments or other proceedings relating to fire,
building, zoning, air pollution or health violations as they relate to the Expansion
Property of which it has actual notice. The Expansion Property is in material
compliance with all applicable zoning, fire, building, and health statutes,
ordinances, and regulations. The Expansion Property is currently zoned PUD; the
intended use of the Expansion Property as a corporate office and manufacturing
facility is a permitted use in such zoning classification.
(10) Payment has been made for all labor or materials that have been furnished
to the Expansion Property or will be made prior to the Closing Date so that no lien
for labor pertormed or materials furnished can be asserted against the Expansion
Property.
(11) The Expansion Property will, as of the Closing Date, be free and clear of all
liens, security interests, and encumbrances.
(12) 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 Expansion 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 Expansion Property being conveyed may be
subject.
(13) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power and
authority to execute, deliver and pertorm its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer, Expansion Property
Purchaser, and Employer at time of closing confirming the representation
contained herein, in the form attached hereto as Exhibit C.
(14) The Expansion Property is free and clear of any occupants, and no party
has a lease to or other occupancy or contract right in the Expansion Property that
shall in any way be binding upon the Expansion Property and Expansion Property
Purchaser.
s
(15) City represents and warrants that any fees or other compensation which
may be owed to a broker engaged directly or indirectly by City in connection with
the purchase and sale contemplated in this Agreement are the sole responsibility
and obligation of City and that City will indemnify Expansion Property Purchaser
and hold Expansion Property Purchaser harmless from any and all claims asserted
by any broker engaged directly or indirectly by City for any fees or other
compensation related to the subject matter of this Agreement.
(16) With respect to the period during which City has owned or occupied the
Expansion Property, and to City's knowledge after reasonable investigation with
respect to the time before City owned or occupied the Expansion Property, no
person or entity has caused or permitted materials to be stored, deposited, treated,
recycled, or disposed of on, under or at the Expansion Property, which materials,
if known to be present, would require cleanup, removal or some other remedial
action under environmental laws.
(17) All city utilities necessary for the development and use of the Expansion
Property as manufacturing space adjoin the Expansion Property and Developer,
Expansion Property Purchaser and/or Employer shall have the right to connect to
said utilities, subject to City's connection fees.
(18) No ordinance or hearing is now before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies,
the cost of which may be assessed against the Expansion 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 Expansion
Property and there are no pending or intended public improvements or special
assessments affecting the Expansion Property which will result in any charge or
lien be levied or assessed against the Expansion Property.
(19) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing
Date.
(20) As of the date of this Agreement there has been prepared and approved by
City an Urban Renewal Plan for the Project Area consisting of the Urban Renewal
Plan for the Dubuque Industrial Center Economic Development District, most
recently approved by City Council of City on December 17, 2018, and as
subsequently amended through and including the date hereof, attached as Exhibit
E (the Urban Renewal Plan). A copy of the Urban Renewal Plan, as constituted on
the date of this Agreement and in the form attached hereto, and a copy of which is
on file with the City of Dubuque City Clerk.
1 .5 Representations and Warranties of Developer, Expansion Propertv Purchaser,
and Employer. Developer, Expansion Property Purchaser, and Employer make the
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following representations and warranties:
(1) Developer, Expansion Property Purchaser, and Employer are duly
organized and validly existing or authorized under the laws of the State of lowa
and have all requisite power and authority to own and operate their properties, to
carry on their respective business as now conducted and as presently proposed
to be conducted, and to enter into and perform their obligations under the
Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer, Expansion Property Purchaser, and Employer, and assuming due
authorization, execution and delivery by City, is in full force and effect and is a valid
and legally binding instrument of Developer, Expansion Property Purchaser, and
Employer enforceable in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization or other laws relating to or
affecting creditors' rights generally. Developer's counsel, Expansion Property
Purchaser's counsel, and Employer's counsel shall issue legal opinions to the City,
at time of closing, confirming the representations contained herein, in the form
attached hereto as Exhibit B and Exhibit G.
(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, Expansion Property
Purchaser, or Employer or any contractual restriction, evidence of indebtedness,
agreement or instrument of whatever nature to which Developer, Expansion
Property Purchaser, or Employer is now a party or by which it or its property is
bound, or constitute a default under any of the foregoing.
(4) There are no actions, suits or proceedings pending or threatened against or
affecting Developer, Expansion Property Purchaser, or Employer 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,
Expansion Property Purchaser, or Employer or which affects the validity of the
Agreement or Developer's, Expansion Property Purchaser's, or Employer's ability
to perform its obligations under this Agreement.
(5) Developer, Expansion Property Purchaser, and Employer will perform its
obligations under this Agreement in accordance with the material terms of this
Agreement, the Urban Renewal Plan and all local, State and federal laws and
regulations.
(6) Developer, Expansion Property Purchaser, and Employer will use its best
efforts to obtain, or cause to be obtained, in a timely manner, all material
�
requirements of all applicable local, state, and federal laws and regulations which
must be obtained or met.
(7) Developer and Expansion Property Purchaser have firm commitments for
permanent financing for the Project and all of their respective obligations under
this Agreement 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, and Expansion Property
Purchaser shall provide a statement from an officer of the Company that the
Company has sufficient assets to complete this transaction.
1 .6 Closinq. The Closing shall take place on the Closing Date which shall be the 31 st
day of October, 2019, or such other date as the parties shall agree in writing but in no
event shall the Closing Date be later than the 31 st day of December, 2019.
Consummation of the Closing shall be deemed an agreement of the parties to this
Agreement that the conditions of Closing shall have been satisfied or waived.
1 .7 Conditions to Closina. The Closing of the transaction contemplated by this
Agreement and all the obligations of Developer, Expansion Property Purchaser, and
Employer under this Agreement are subject to the following conditions:
(1) The representations and warranties made by City in Section 1 .4 and by
Developer, Expansion Property Purchaser and Employer in Section 1 .5, shall be
correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the closing, City shall deliver a
certificate to that effect in the form of Exhibit C.
(2) Developer, Expansion Property Purchaser, and Employer shall have the
right to terminate this Agreement at any time prior to the consummation of the
closing on the Closing Date if Developer, Expansion Property Purchaser, or
Employer determine that conditions necessary for the successful completion of the
Project contemplated herein have not been satisfied in Developer's, Expansion
Property Purchaser's, or Employer's sole discretion. Upon the giving of notice of
termination by Developer, Expansion Property Purchaser, or Employer to City, this
Agreement shall be deemed null and void.
(3) Developer, Expansion Property Purchaser, Employer, and City shall be in
material compliance with all the terms and provisions of this Agreement.
(4) Developer's counsel, Expansion Property Purchaser's counsel, and
Employer's counsel, shall issue a legal opinion to City confirming the
representations contained herein in the form attached hereto as Exhibit B and
Exhibit G.
(5) Employer shall have received binding commitments for such State of lowa
incentives as Employer determines are necessary to make the Project feasible to
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Employer in its sole and exclusive discretion.
1 .8 Citv's Obliqations at Closinq. At or prior to the Closing Date, City shall deliver to
Developer, Expansion Property Purchaser, and Employer such other documents as may
be required by this Agreement, all in a form satisfactory to Developer, Expansion Property
Purchaser, and Employer.
1 .9 Consolidation of Propertv. Following the Closing, Expansion Property Purchase
shall replat Expansion Purchaser's Property and the Expansion Property as one parcel.
SECTION 2. DEVELOPMENT ACTIVITIES.
2.1 Roadway Over Expansion Property. Expansion Property Purchaser may, but is
not required to, construct a roadway over the Expansion Property. If Expansion Property
Purchaser elects to construct such a roadway, the plans and specifications with respect
to the roadway shall be in conformity with the Urban Renewal Plan, this Agreement, and
all applicable state and local laws and regulations, including, but not limited to, any
covenants, conditions, restrictions, reservations, easements, liens and charges, recorded
in the records of Dubuque County, lowa. Expansion Property Purchaser shall submit to
City, for approval by City, plans, drawings, specifications and related documents with
respect to the roadway to be constructed. All work with respect to the construction of the
roadway shall be in substantial conformity with the construction plans approved by the
City.
2.2 Minimum Improvements. If elected by the Expansion Property Purchaser (the
Expansion Election), Developer will make a capital investment of approximately One
Million Four Hundred Thousand Dollars ($1 ,400,000.00) to improve the Facility for the
creation of an additional 20,000 square feet of manufacturing space for Employer's
increased operations (the Minimum Improvements). The Minimum Improvements shall
consist of the expansion of the building at 5301 Chavenelle Road (the Building).
Expansion Property Purchaser must exercise the Expansion Election by delivering written
notice thereof to City within two (2) years of the Closing Date (the Expansion Election
Date), or the Expansion Election lapses.
2.3 Plans for Construction of Minimum Improvements. Plans and specifications with
respect to the construction of the Minimum Improvements (the Construction Plans) shall
be in conformity with the Urban Renewal Plan, this Agreement, and all applicable state
and local laws and regulations, including but not limited to any covenants, conditions,
restrictions, reservations, easements, liens and charges, recorded in the records of
Dubuque County, lowa. Developer shall submit to City, for approval by City, plans,
drawings, specifications, and related documents with respect to the improvements to be
constructed by Developer. All work with respect to the Minimum Improvements shall be
in substantial conformity with the Construction Plans approved by City.
2.4 Timinq of Improvements. If the Expansion Property Purchaser exercises its
Expansion Election, Developer hereby agrees that construction of the Minimum
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Improvements shall be commenced within thirty (30) days after the Expansion Election
Date and shall be substantially completed within nine (9) months of date of
commencement of construction. The time frames for the performance of these
obligations shall be suspended due to unavoidable delays meaning delays, outside the
control of the party claiming its occurrence in good faith, which are the direct result of
strikes, other labor troubles, unusual shortages of materials or labor, unusually severe or
prolonged bad weather, acts of God, fire or other casualty to the Minimum Improvements,
litigation commenced by third parties which, by injunction or other similar judicial action
or by the exercise of reasonable discretion directly results in delays, or acts of any federal,
state or local government which directly result in extraordinary delays. The time for
performance of such obligations shall be extended only for the period of such delay.
2.5 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall furnish Developer with an
appropriate instrument so certifying in the form attached as Exhibit F. Such certification
(the Certificate of Completion) shall be in recordable form and shall be a conclusive
determination of the satisfaction and termination of the agreements and covenants in this
Agreement.
SECTION 3. CITY PARTICIPATION.
3.1 Acquisition Grant to Expansion Property Purchaser. For and in consideration of
Expansion Property Purchaser's obligations in this Agreement, City agrees to make an
Acquisition Grant to Expansion Property Purchaser on the Closing Date in the amount of
Forty Thousand Two Hundred Dollars ($40,200) [Sixty Thousand Dollars ($60,000) per
acre x 0.67 usable acres). The parties agree that the Acquisition Grant shall be payable
in the form of a credit favoring Expansion Property Purchaser at time of Closing with the
effect of directly offsetting the full Purchase Price obligation of Expansion Property
Purchaser.
3.2 Economic Development Grants.
(1) If the Expansion Property Purchaser exercises its Expansion Election, for
and in consideration of Developer's, Expansion Property Purchaser's, and
Employer's obligations hereunder, and in furtherance of the goals and objectives
of the Urban Renewal Plan for the Project Area and the Urban Renewal Law, City
agrees, subject to Developer and Employer being and remaining in compliance
with the terms of this Agreement, to make twenty (20) consecutive semi-annual
payments (such payments being referred to collectively as the Economic
Development Grants) to Employer, as follows: First semi-annual payment to be
made on the first November 1 following the first certification to the County required
by Sec. 3.2(2). For example, if the first certification is made prior to December 1 ,
2020, then the semi-annual payments shall be as follows:
November 1 , 2021 May 1 , 2022
November 1 , 2022 May 1 , 2023
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November 1 , 2023 May 1 , 2024
November 1 , 2024 May 1 , 2025
November 1 , 2025 May 1 , 2026
November 1 , 2026 May 1 , 2027
November 1 , 2027 May 1 , 2028
November 1 , 2028 May 1 , 2029
November 1 , 2029 May 1 , 2030
November 1 , 2030 May 1 , 2031
pursuant to lowa Code Section 403.9 of the Urban Renewal Law, in amounts equal
to the actual amount of tax increment revenues collected by City under lowa Code
Section 403.19 (without regard to any averaging that may otherwise be utilized
under lowa Code Section 403.19 and excluding any interest that may accrue
thereon prior to payment to Employer) during the preceding six-month period in
respect of the Property and Minimum Improvements constructed by Developer (the
Developer Tax Increments). For purposes of calculating the amount of the
Economic Development Grants provided in this Section, the Developer Tax
Increments shall be only those tax increment revenues collected by City in respect
of the increase in the assessed value of the Developer's Property above the
assessment of January 1 , 2019 ($3,906,310.00). Employer recognizes and agrees
that the Economic Development Grants shall be paid solely and only from the
incremental taxes collected by City in respect to the Developer's Property and
Minimum Improvements, which does not include property taxes collected for the
payment of bonds and interest of each taxing district, and taxes for the regular and
voter-approved physical plant and equipment levy, instructional support levy, and
any other portion required to be excluded by lowa law, and thus such incremental
taxes will not include all amounts paid by Developer as regular property taxes.
(2) To fund the Economic Development Grants, City shall certify to the County
prior to the first December 1 following the certificate of completion, and each
December 1 thereafter, its request for the available Developer Tax Increments
resulting from the assessments imposed by the County as of January 1 of that
year, to be collected by City as taxes are paid during the following fiscal year and
which shall thereafter be disbursed to Employer, on November 1 and May 1 of that
fiscal year. (Example: if City so certifies in December, 2020, the Economic
Development Grants in respect thereof would be paid to the Employer on
November 1 , 2021 , and May 1 , 2022.)
(3) The Economic Development Grants shall be payable from and secured
solely and only by the Developer Tax Increments paid to City that, upon receipt,
shall be deposited and held in a special account created for such purpose and
designated as the Unison TIF Account of City. City hereby covenants and agrees
to maintain its TIF ordinance in force during the term hereof and to apply the
incremental taxes collected in respect of the Minimum Improvements and allocated
to the Unison TIF Account to pay the Economic Development Grants, as and to
the extent set forth in Section 3.2 hereof. The Economic Development Grants shall
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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 Employer as the Economic Development
Grants in any one year and under no circumstances shall City in any manner be
liable to Employer so long as City timely applies the Developer Tax Increments
actually collected and held in the Unison TIF Account (regardless of the amounts
thereo� to the payment of the Economic Development Grants to Employer as and
to the extent described in this Section.
(4) City shall be free to use any and all tax increment revenues collected in
respect of other properties within the Project Area and the remaining actual amount
of the property taxes paid by Developer to City, or any available Developer Tax
Increments resulting from the termination of the annual Economic Development
Grants under Section 3.2 hereof, for any purpose for which such tax increment
revenues may lawfully be used pursuant to the provisions of the Urban Renewal
Law, and City shall have no obligations to Developer with respect to the use
thereof.
(5) All of City's obligations under this Agreement, including but not limited to
City's obligation to pay the Economic Development Grants to Employer, shall be
subject to City having completed all hearings and other procedures required to
amend the Urban Renewal Plan to describe the Urban Renewal Project being
undertaken in accordance with this Agreement.
SECTION 4. NON- APPROPRIATION / LIMITED SOURCE OF FUNDING.
4.1 Non-Appropriation. Notwithstanding anything in this Agreement to the contrary,
the obligation of City to pay any installment of the Economic Development Grants from
the pledged tax increment revenues shall be an obligation limited to currently budgeted
funds, and not a general obligation or other indebtedness of City or a pledge of its full
faith and credit within the meaning of any constitutional or statutory debt limitation, and
shall be subject in all respects to the right of non-appropriation by the City Council of City
as provided in this Section. City may exercise its right of non-appropriation as to the
amount of the installments to be paid during any fiscal year during the term of this
Agreement without causing a termination of this Agreement. The right of non-
appropriation shall be exercised only by resolution affirmatively declaring City's election
to non-appropriate funds otherwise required to be paid in the next fiscal year under this
Agreement.
In the event the City Council of City elects to not appropriate sufficient funds in the budget
for any future fiscal year for the payment in full of the installments on the Economic
Development Grants due and payable in that future fiscal year, then City shall have no
further obligation to Employer for the payment of any installments due in that future fiscal
year which cannot be paid with the funds then appropriated for that purpose.
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4.2 The right of non-appropriation reserved to City in this Section is intended by the
parties, and shall be construed at all times, so as to ensure that City's obligation to pay
future installments on the Economic Development Grants shall not constitute a legal
indebtedness of City within the meaning of any applicable constitutional or statutory debt
limitation prior to the adoption of a budget which appropriates funds for the payment of
that installment or amount. In the event that any of the provisions of this Agreement are
determined by a court of competent jurisdiction to create, or result in the creation of, such
a legal indebtedness of City, the enforcement of the said provision shall be suspended,
and the Agreement shall at all times be construed and applied in such a manner as will
preserve the foregoing intent of the parties, and no event of default shall be deemed to
have occurred as a result thereof. If any provision of this Agreement or the application
thereof to any circumstance is so suspended, the suspension shall not affect other
provisions of this Agreement which can be given effect without the suspended provision,
and to this end the provisions of this Agreement are severable.
SECTION 5. COVENANTS OF EMPLOYER.
5.1 Job Creation. During the term of this Agreement, Employer shall comply with the
following employment-related covenants:
(1) Employer shall retain Thirty-Five (35) fulltime equivalent (FTE) employees
and create a minimum of Ten (10) additional fulltime equivalent (FTE) employees
in Dubuque, lowa prior to October 1 , 2021 , and shall maintain those jobs during
the term of this Agreement. It is agreed by the parties that Employer has Thirty-
Five (35) fulltime equivalent employees (FTE) in Dubuque County, lowa, as of
January 1 , 2018. FTE employees shall be calculated by adding fulltime and part-
time employees together using 2080 hours per year as a FTE employee.
(a) In the event that the certificate provided to City under Section 5.2
hereof on October 1 , 2030 discloses that Employer does not as of that date
have at least Forty-Five (45) FTE employees (2080 hours per year) as
provided hereinabove, Expansion Property Purchaser shall pay to City,
promptly upon written demand therefor, an amount equal to $893.33 perjob
not created ($40,200.00 divided by 45 FTE employees = $893.33).
However, if Expansion Property Purchaser does not exercise the Expansion
Election set out in Sec. 2.2, the Expansion Property Purchaser shall only
be required to repay to City promptly upon written demand therefor the
entire acquisition grant in the sum of$40,200.00.
(2) For the FTE positions that Employer fails to create and maintain for any
year during the term of this Agreement, the semi-annual Economic Development
Grants for such year under Section 3.2 shall be reduced by the percentage that
the number of such positions bears to the total number of positions required to be
created and maintained (45 FTE's) by this Section 5.1 . (For example, if Employer
has 42 FTE employees, the semi-annual Economic Development Grantsto be paid
for that year would be reduced to 93°k (42/45 employees) of the Tax Increment
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Revenues received by City). The reduction of the semi-annual Economic
Development Grants shall be the City's sole remedy for the failure of Employer to
meet the job creation requirements of this subsection 5.1 (2).
(3) Section 5.1 (1) and (2) shall survive the termination of this Agreement.
5.2 Certification. To assist City in monitoring the performance of Employer hereunder,
as of October 1 , 2021 , and again as of October 1 of each year thereafter during the term
of this Agreement, a duly authorized officer of Employer shall certify to City in a form
acceptable to City (a) the number of FTE positions employed by Employer in Dubuque,
lowa, and (b) to the effect that such officer has re-examined the terms and provisions of
this Agreement and that at the date of such certificate, and during the preceding twelve
(12) months, Employer is not or was not in default in the fulfillment of any of the terms
and conditions of this Agreement and that no Event of Default (or event which, with the
lapse of time or the giving of notice, or both, would become an Event of Default) is
occurring or has occurred as of the date of such certificate or during such period, or if the
signer is aware of any such default, event or Event of Default, said officer shall disclose
in such statement the nature thereof, its period of existence and what action, if any, has
been taken or is proposed to be taken with respect thereto. Such certificate shall be
provided not later than October 15, 2021 , and by October 15 of each year thereafter
during the term of this Agreement.
5.3 Books and Records. During the term of this Agreement, Expansion Property
Purchaser and Employer shall keep at all times and make available to City upon
reasonable request proper books of record and account in which full, true and correct
entries will be made of all dealings and transactions of or in relation to the business and
affairs of Expansion Property Purchaser and Employer in accordance with generally
accepted accounting principles consistently applied throughout the period involved, and
Expansion Property Purchaser and Employer shall provide reasonable protection against
loss or damage to such books of record and account.
5.4 Real Propertv Taxes. From and after the Closing Date, Developer and Expansion
Property Purchaser shall pay or cause to be paid, when due, all real property taxes and
assessments payable with respect to all and any parts of the Property unless Developer's
or Expansion Property Purchaser's obligations have been assumed by another person
pursuant to the provisions of this Agreement.
5.5 No Other Exemptions. During the term of this Agreement, Developer and
Expansion Property Purchaser agree not to apply for any state or local property tax
exemptions which are available with respect to the 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.
5.6 Insurance Requirements.
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(1) Developer shall provide and maintain or cause to be maintained at all times
during the process of constructing the Minimum Improvements and at its sole cost
and expense builder's risk insurance, written on a Completed Value Form in an
amount equal to one hundred percent (100°k) of the building (including Minimum
Improvements) replacement value when construction is completed, naming City
as an additional insured and loss payee. Coverage shall include the "special
perils" form and developer shall furnish City with proof of insurance in the form of
a certificate of insurance.
(2) If Expansion Property Purchaser exercises its Expansion Election, upon
completion of construction of the Minimum Improvements and up to the
Termination Date, Developer shall maintain, or cause to be maintained, at its cost
and expense all risk property insurance against loss and/or damage to the building
(including the Minimum Improvements) under an insurance policy written with the
"special perils" form and in an amount not less than the full insurable replacement
value of the building (including the Minimum Improvements), naming City as loss
payee. Developer shall furnish to City proof of insurance in the form of a certificate
ofinsurance.
(3) The term "replacement value" shall mean the actual replacement cost of the
building with Minimum Improvements (excluding foundation and excavation costs
and costs of underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be reasonably determined from time to time at the request of
City, but not more frequently than once every three (3) years.
(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 interests may appear,
and Developer shall forthwith repair, reconstruct and restore the Minimum
Improvements to substantially the same or an improved condition or value as they
existed prior to the event causing such damage and, to the extent necessary to
accomplish such repair, reconstruction and restoration, Developer shall apply the
Net Proceeds of any insurance relating to such damage received by Developer to
the payment or reimbursement of the costs thereof, subject, however, to the terms
of any mortgage encumbering title to the Property (as its interests may appear).
Developer shall complete the repair, reconstruction and restoration of Minimum
Improvements whether or not the Net Proceeds of insurance received by
Developer for such purposes are sufficient.
5.7 Preservation of Propertv. During the term of this Agreement, Developer and
Employer shall maintain, preserve and keep, or cause others to maintain, preserve and
keep, the Minimum Improvements in good repair and working order, ordinary wear and
tear excepted, and from time to time shall make all necessary repairs, replacements,
renewals and additions.
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5.8 Non-Discrimination. In carrying out the project, Employer shall not discriminate
against any employee or applicant for employment because of race, religion, color, sex,
sexual orientation, gender identity, national origin, age or disability.
5.9 Conflict of Interest. Developer, Expansion Property Purchaser, and Employer
agree that no member, officer or employee of City, or its designees or agents, nor any
consultant or member of the governing body of City, and no other public official of City
who exercises or has exercised any functions or responsibilities with respect to the project
during his or her tenure, or who is in a position to participate in a decision-making process
or gain insider information with regard to the project, shall have any interest, direct or
indirect, in any contract or subcontract, or the proceeds thereof, for work to be pertormed
in connection with the project, or in any activity, or benefit therefrom, which is part of this
project at any time during or after such person's tenure. In connection with this obligation,
Developer, Expansion Property Purchaser, and Employer 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.
5.10 Non-Transferability. If Expansion Property Purchaser exercises its Expansion
Election, until such time as the Minimum Improvements are complete (as certified by City
under Section 2.4), this Agreement may not be assigned by Developer nor may the
Developer's Property be transferred by Developer to another party without the prior
written consent of City, which shall not be unreasonably withheld. Thereafter, Developer,
Expansion Property Purchaser, or Employer shall have the right to assign this Agreement
and upon assumption of the Agreement by the assignee, Developer, Expansion Property
Purchaser, shall no longer be responsible for its obligations under this Agreement.
Notwithstanding the foregoing, City acknowledges that Developer may transfer
Developer's Property to Expansion Property Purchaser or Employer, and City hereby
consents to such transfer to the Expansion Property Purchaser or Employer. As it relates
to City only, effective upon such transfer of the Developer's Property from Developer to
Expansion Property Purchaser or Employer, Developer shall be released from its
obligations to City hereunder and Expansion Property Purchaser or Employer hereby
agrees that it shall thereafter be deemed to be Developer for all purposes of this
Agreement and Expansion Property Purchaser or Employer hereby agrees to assume all
obligations of Developer under this Agreement unless otherwise stated herein, and the
assignment agreement shall so provide.
5.11 No chanqe in Tax Classification. Developer and Expansion Property Purchaser
agree that they will not take any action to change, or otherwise allow, the classification of
the Property for property tax purposes to become other than commercial property and to
be taxed as such under lowa law.
5.12 Restrictions on Use. Developer and Expansion Property Purchaser agree for
themselves, and their successors and assigns, and every successor in interest to the
Expansion Property and Facility or any part thereof that they, and their respective
successors and assigns, shall:
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(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that use of
the Property as a manufacturing facility is in full compliance with the Urban
Renewal Plan) (however, Developer and Expansion Property Purchaser shall not
have any liability to City to the extent that a successor in interest shall breach this
covenant and City shall seek enforcement of this covenant directly against the
party in breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, gender identity, national origin, age or disability in the sale, lease,
rental, use or occupancy of the Property or any improvements erected or to be
erected thereon, or any part thereof (however, neither Developer nor Expansion
Property Purchaser shall not have any liability to City to the extent that a successor
in interest shall breach this covenant and City shall seek enforcement of this
covenant directly against the party in breach of same).
5.13 Release and Indemnification Covenants.
(1) Developer, Expansion Property Purchaser, and Employer release City and
the governing body members, officers, agents, servants and employees thereof
(hereinafter, for purposes of this Section, the Indemnified Parties) from and
covenants and agrees that the Indemnified Parties shall not be liable for, and
agrees to indemnify, defend and hold harmless the Indemnified Parties against
any loss or damage to property or any injury to or death of any person occurring
at or about or resulting from any defect in the Minimum Improvements.
(2) Except for any gross negligence, willful misrepresentation or any willful or
wanton misconduct or any unlawful act of the Indemnified Parties, Developer,
Expansion Property Purchaser, and Employer agree to protect and defend the
Indemnified Parties, now or forever, and further agrees to hold the Indemnified
Parties harmless, from any claim, demand, suit, action or other proceedings
whatsoever by any person or entity whatsoever arising or purportedly arising from
(1) any violation of any agreement or condition of this Agreement (except with
respect to any suit, action, demand or other proceeding brought by Developer,
Expansion Property Purchaser, and Employer against City based on an alleged
breach of any representation, warranty or covenant of City under this Agreement
and/or to enforce its rights under this Agreement); or (2) the acquisition,
construction, installation, ownership, and operation of the Minimum Improvements
or (3) the condition of the Property and any hazardous substance or environmental
contamination located in or on the Property, caused and occurring after Developer
or Expansion Property Purchaser take possession of the Property.
(3) The Indemnified Parties shall not be liable to Developer, Expansion
Property Purchaser, or Employer for any damage or injury to the persons or
property of Developer or Expansion Property Purchaser or their officers, agents,
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servants or employees or any other person who may be on, in or about the
Minimum Improvements due to any act of negligence of any person, other than
any act of negligence on the part of any such Indemnified Party or its officers,
agents, servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of City
contained herein shall be deemed to be the covenants, stipulations, promises,
agreements and obligations of City, and not of any governing body member,
officer, agent, servant or employee of City in their individual capacity thereof.
(5) The provisions of this Section shall survive the termination of this
Agreement
5.14 Compliance with Laws. Developer, Expansion Property Purchaser, and Employer
shall comply with all laws, rules and regulations relating to their businesses, other than
laws, rules and regulations the failure to comply with or the sanctions and penalties
resulting therefrom, would not have a material adverse effect on the business, property,
operations, financial or otherwise, of Developer, Expansion Property Purchaser, or
Employer.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES.
6.1 Events of Default Defined. The following shall be Events of Default under this
Agreement and the term Event of Default shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(1) Failure by Developer, Expansion Property Purchaser or Employer to pay or
cause to be paid, before delinquency, all real property taxes assessed with respect
to the Minimum Improvements and the Expansion Property.
(2) If Expansion Property Purchaser exercises the Expansion Election, failure
by Expansion Property Purchaser to cause the construction of the Minimum
Improvements or other requirements of this Agreement to be commenced and
completed pursuant to the terms, conditions and limitations of this Agreement.
(2) Transferofany interest by Developerofthe Minimum Improvements, except
to Expansion Property Purchaser or Employer, in violation of the provisions of this
Agreement prior to the issuance of the final Certificate of Completion.
(3) Failure by Developer, Expansion Property Purchaser, or Employer, or City
to substantially observe or pertorm any other material covenant, condition,
obligation or agreement on its part to be observed or performed under this
Agreement.
6.2. Remedies on Default bv Developer. Whenever any Event of Default referred to in
Section 6.1 of this Agreement occurs and is continuing, City, as specified below, may take
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any one or more of the following actions after the giving of written notice by City to
Developer and Expansion Property Purchaser (and the holder of any mortgage
encumbering any interest in the Property of which City has been notified of in writing) of
the Event of Default, but only if the Event of Default has not been cured within sixty (60)
days following such notice, or if the Event of Default cannot be cured within sixty (60)
days and Developer or Expansion Property Purchaser does not provide assurances to
City that the Event of Default will be cured as soon as reasonably possible thereafter:
(1) City may suspend its pertormance under this Agreement until it receives
assurances from the defaulting party, deemed adequate by City, that the defaulting
party will cure its default and continue its performance under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) City may withhold the Certificate of Completion; or
(4) City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable to collect any payments due under this
Agreement or to enforce pertormance and observance of any obligation,
agreement, or covenant under this Agreement.
6.3 No Remedy Exclusive. No remedy herein conferred upon or reserved to City is
intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon any default shall impair
any such right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed expedient.
6.4 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such waiver
shall be limited to the particular breach so waived and shall not be deemed to waive any
other concurrent, previous or subsequent breach hereunder.
6.5 Aqreement to Pav Attornevs' Fees and Expenses. If any action at law or in equity,
including an action for declaratory relief or arbitration, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs of litigation from the other party. Such fees and
costs of litigation may be set by the court in the trial of such action or by the arbitrator, as
the case may be, or may be enforced in a separate action brought for that purpose. Such
fees and costs of litigation shall be in addition to any other relief that may be awarded.
6.6 Remedies on Default by City. If City defaults in the pertormance of this Agreement,
Developer, Expansion Property Purchaser, or Employer may take any action, including
legal, equitable or administrative action that may appear necessary or desirable to collect
any payments due under this Agreement, to recover expenses of Developer, Expansion
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Property Purchaser, or Employer, or to enforce performance and observance of any
obligation, agreement, or covenant of City under this Agreement. Developer, Expansion
Property Purchaser, or Employer may suspend its performance under this Agreement
until it receives assurances from City, deemed adequate by Developer, Expansion
Property Purchaser, and Employer, that City will cure its default and continue its
performance under this Agreement.
SECTION 7. GENERAL TERMS AND PROVISIONS.
7.1 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 Employer: UNISON SOLUTIONS, INC.
Jan M Scott, President
5451 Chavenelle Rd
Dubuque, lA 52002
Phone: 563-585-0967
With copy to: Bill Maiers
Reynolds and Kenline, LLP
110E9thSt
Dubuque, lA 52001
Phone: 563-556-8000
If to Developer: WALTER DEVELOPMENT, LLC
Tim Hodge, Managing Member
7465 Chavenelle Rd
Dubuque, lA 52002
Phone: (563) 583-9781
With copy to:
Bill Maiers
Reynolds and Kenline, LLP
110E9thSt
Dubuque, lA 52001
Phone: 563-556-8000
If to Expansion Property Purchaser:
BAS DEVELOPMENT, LLC
Dave Broihahn, President
5451 Chavenelle Rd
Dubuque, lA 52002
zo
Phone: 563-585-0967
With copy to: Bill Maiers
Reynolds and Kenline, LLP
110E9thSt
Dubuque, lA 52001
Phone: 563-556-8000
If to City: City Manager
50 W. 13th Street
Dubuque, lowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to: City Attorney
City Hall
50 W. 13�h Street
Dubuque IA 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.
7.2 Bindinq Effect. This Agreement shall be binding upon and shall inure to the benefit
of City, Developer, Expansion Property Purchaser, and Employer and their respective
successors and assigns.
7.3 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate (a) two (2) years after the Closing Date, if the Expansion
Property Purchaser does not exercise the Expansion Election; or (b) June 1 S� after the
last required TIF payment, if the Expansion Property Purchaser exercises the Expansion
Election.
7.4 Execution Bv Facsimile. The parties agree that thisAgreement may be transmitted
between them by facsimile machine or electronic transmission. The parties intend that
the faxed or electronic transmission 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.
7.5 Memorandum of Development Aqreement. City shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit D in the
office of the Recorder of Dubuque County, lowa. Developer shall pay the costs for so
recording.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in
its name and behalf by its Mayor and attested to by its City Clerk and Developer,
zi
Expansion Property Purchaser, and Employer have caused this Agreement to be duly
executed on or as of the first above written.
zz
CITY OF DUBUQUE, IOWA UNISON SOLUTIONS, INC.
EMPLOYER
By By
Roy D. Buol, Mayor Jan M Scott, President
Attest:
WALTER DEVELOPMENT, LLC
DEVELOPER
Kevin S. Firnstahl
City Clerk
By
Tim Hodge
Managing Member
BAS DEVELOPMENT, LLC
EXPANSION PROPERTY PURCHASER
By
Dave Broihahn, President
23
(City Seal)
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
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 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 affixed hereto
is the seal of said municipal corporation; that said instrument was signed and sealed on
behalf of the City 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.
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 Jan M Scott, to me personally
known, who, being by me duly sworn, did say that he is the President of Unison Solutions,
Inc., the lowa corporation executing the instrument to which this is attached and that as
said President of Unison Solutions, Inc. acknowledges the execution of said instrument
to be the voluntary act and deed of said company, by it and by him, an individual,
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 Tim Hodge, to me personally
known, who, being by me duly sworn, did say that he is the Managing Member of Walter
24
Development, LLC, the lowa organization executing the instrument to which this is
attached and that as said Managing Member of Walter Development, LLC acknowledges
the execution of said instrument to be the voluntary act and deed of said company, by it
and by him, an individual, 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 Dave Broihahn, to me personally
known, who, being by me duly sworn, did say that he is the President of BAS
Development, LLC, the lowa corporation executing the instrument to which this is
attached and that as said President of BAS Development, LLC acknowledges the
execution of said instrument to be the voluntary act and deed of said company, by it and
by him, an individual, voluntarily executed.
Notary Public
zs
LIST OF EXHIBITS
EXHIBIT A — City Attorney Certificate
EXHIBIT B — Opinion of Developer Counsel
EXHIBIT C — City Certificate
EXHIBIT D — Memorandum of Development Agreement
EXHIBIT E — Urban Renewal Plan
EXHIBIT F — Certificate of Completion
EXHIBIT G — Opinion of Employer Counsel
EXHIBIT H — Site Plan
EXHIBIT I — Plat
EXHIBIT J — Deed
EXHIBIT K— Opinion of Expansion Property Purchaser Counsel
z6
EXHIBIT A
CITY ATTORNEY'S CERTIFICATE
z�
Dubuque
Barry A. Lindahl,Esq. THE CITY OF ,,
Senior Counsel AII�Aneri�aCiq
Suite 330,Harbor View Place � ��t,.,� ��.v,�
300 Main Street �� � �����
Dubuque,Iowa 52001-6944
(563)583-4113 office �" 2007•2012
(563)583-1040 fax Iv1aSt21"�'7leCe Orl trlE MISSISS��7�J1 2013•2017
bales�r ci ,ofdubuque.or�
Office Hours: 8:00 AM—5:00 PM,T-W-Th
8:00 AM—12:00 PM,F
(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 among Walter Development, LLC
(Developer), BAS Development, LLC (Expansion Property Purchaser), Unison
Solutions, Inc. (Employer), and the City of Dubuque, lowa (City) dated for reference
purposes the day of , 20_
The City has duly obtained all necessary approvals and consents for its execution,
delivery and performance of this Agreement and has full power and authority to
execute, deliver and perform its obligations under this Agreement, and to the best of my
knowledge, the representations of the City Manager in his letter dated the day of
, 20_, are correct.
Very sincerely,
Barry A. Lindahl, Esq.
Senior Counsel
BAL:tIs
28
EXHIBIT B
OPINION OF DEVELOPER'S COUNSEL
z9
Mayor and City Councilmembers
City Hall
13�h and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, lowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for Walter Development, LLC, (Developer) in
connection with the execution and delivery of a certain Development Agreement
(Development Agreement) between Developer and the City of Dubuque, lowa ("City")
dated for reference purposes the _ day of , 20_
We have examined the original certified copy, or copies otherwise identified to our
satisfaction as being true copies, of the Development Agreement and such other
documents and records as we have deemed relevant and necessary as a basis for the
opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries as
we have deemed appropriate, we are of the opinion that:
1 . Developer is a corporation 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 Agreement has been duly and validly
authorized, executed and delivered by Developer and, assuming due authorization,
execution and delivery by City, is in full force and effect and is valid and legally binding
instrument of Developer enforceable in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization or other laws relating to or
affecting creditors' rights generally.
2. The execution, delivery and pertormance by Developer of the Development
Agreement and the carrying out of the terms thereof, will not result in violation of any
provision of, or in default under, the articles of incorporation and bylaws of Developer,
any indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree,
order, statute, rule, regulation or restriction to which Developer is a party or by which
Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the business (present or prospective), financial position or
results of operations of Developer or which in any manner raises any questions affecting
the validity of the Agreement or the Developer's ability to pertorm Developer's obligations
thereunder.
30
Very truly yours,
31
EXHIBIT C
CITY CERTIFICATE
32
n i u ciry or
City Manager's 011ice �
50 Westl3thStrect `��
Dubuque,Iowa o2001-?864
(563)589-4110 phonc
(563)589-4149fax
ctymgrQcityofdubuque.org
(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
Walter Development, LLC (Developer), BAS Development, LLC (Expansion Property
Purchaser), Unison Solutions, Inc. (Employer), 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) 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 pertorm its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein.
(2) City shall exercise its best efforts to cooperate with Developer and
Expansion Property Purchaser in the development process.
(3) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(4) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
charter of City, any evidence of indebtedness, agreement or instrument of
whatever nature to which City is now a party or by which it or its property is bound,
or constitute a default under any of the foregoing.
(5) There are no actions, suits or proceedings pending or threatened against or
affecting City in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
33
materially adversely affect the financial position or operations of City or which
affects the validity of the Agreement or City's ability to perform its obligations under
this Agreement.
(6) No ordinance or hearing is now or before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies,
the cost of which may be assessed against the Expansion Property. To the best
of City's knowledge, there are no plans or efforts by any government agency to
widen, modify, or re-align any street or highway providing access to the Property
and there are no pending or intended public improvements or special assessments
affecting the Expansion Property which will result in any charge or lien be levied or
assessed against the Expansion Property, except as follows:
(7) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing
Date.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
34
EXHIBIT D
MEMORANDUM OF DEVELOPMENT AGREEMENT
35
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, lowa, an lowa
municipal corporation and Walter Development, LLC (Developer), BAS Development,
LLC (Expansion Property Purchaser), and Unison Solutions, Inc. (Employer), was made
regarding the following described premises:
LOT 2-1 WALTER ADD; locally known as 5301 CHAVENELLE RD;
and
LOT 1 WALTER SECOND ADD; locally known as 5451 CHAVENELLE RD;
and
LOT 2-2 OF MCFADDEN FARM PLACE
All in the City of Dubuque
The Development Agreement is dated for reference purposes the day of
, 2019, and contains covenants, conditions, and restrictions concerning the
sale and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the terms
and provisions of the Development Agreement shall prevail. A complete counterpart of
the Development Agreement, togetherwith 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 , 2019.
36
CITY OF DUBUQUE, IOWA
By
Roy D. Buol, Mayor
Attest:
Kevin S. Firnstahl, City Clerk
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
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
37
UNISON SOLUTIONS, INC.
By
Jan M Scott, President
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 Jan M. Scott, to me personally
known, who, being by me duly sworn, did say that he is the President of Unison Solutions,
Inc., the lowa organization executing the instrument to which this is attached and that as
said President of Unison Solutions, Inc. acknowledges the execution of said instrument
to be the voluntary act and deed of said company, by it and by him, an individual,
voluntarily executed.
Notary Public, State of lowa
38
BAS DEVELOPMENT, LLC
EXPANSION PROPERTY PURCHASER
By
Dave Broihan, President
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 Dave Broihan, to me personally
known, who, being by me duly sworn, did say that he is the President of BAS
Development, LLC, the lowa corporation executing the instrument to which this is
attached and that as said President of BAS Development, LLC acknowledges the
execution of said instrument to be the voluntary act and deed of said company, by it and
by him, an individual, voluntarily executed.
Notary Public
39
WALTER DEVELOPMENT, LLC
By
Tim Hodge, President
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 Tim Hodge, to me personally
known, who, being by me duly sworn, did say that he is the President of Walter
Development, LLC, the lowa organization executing the instrument to which this is
attached and that as said President of Walter Development, LLC acknowledges the
execution of said instrument to be the voluntary act and deed of said company, by it and
by him, an individual, voluntarily executed.
Notary Public, State of lowa
40
EXHIBIT E
URBAN RENEWAL PLAN
(on file in City Clerk's office, 50 W. 13�h Street, Dubuque, IA 52001)
41
EXHIBIT F
CERTIFICATE OF COMPLETION
42
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, lowa, a municipal corporation (City)), has
granted incentives to Walter Development, LLC (Developer), BAS Development, LLC
(Expansion Property Purchaser), and Unison Solutions, Inc. (Employer), in accordance
with a Development Agreement dated as of [Date] (Agreement), certain real property
located within the Greater powntown Urban Renewal District of the Grantor and as more
particularly described as follows:
LOT 2-1 WALTER ADD; locally known as 5301 CHAVENELLE RD;
and
LOT 1 WALTER SECOND ADD; locally known as 5451 CHAVENELLE RD;
and
LOT 2-2 OF MCFADDEN FARM PLACE
All in the City of Dubuque
(Development Property); and
WHEREAS, said Agreement incorporated and contained certain covenants and
conditions with respect to the rehabilitation of the Development Property, and obligated
Developerto construct certain Minimum Improvements(as defined therein) in accordance
with the Agreement; and
WHEREAS, said Agreement incorporated and contained certain covenants and
conditions with respect to the purchase of 1 .90 acres of land, of which 0.67 acres are
usable, by Expansion Property Purchaser; and
WHEREAS, said Agreement incorporated and contained certain covenants and
conditions obligating Employer to create and maintain fulltime equivalent employee
positions; and
WHEREAS, Expansion Property Purchaser and Developer have to the present
date performed said covenants and conditions insofar as they relate to the construction
of the Minimum Improvements in a manner deemed sufficient by City to permit the
execution and recording of this certification; and
NOW, THEREFORE, pursuant to Section 2.5 of the Agreement, this is to certify
that all covenants and conditions of the Agreement with respect to the obligations of
Developer, and its successors and assigns, to construct the Minimum Improvements on
the Development Property have been completed and performed by Developer to the
satisfaction of City and such covenants and conditions are hereby satisfied.
43
The County Recorder of Dubuque County is hereby authorized to accept for recording
and to record the filing of this instrument, to be a conclusive determination of the
satisfaction of the covenants and conditions as set forth in said Agreement, and that the
Agreement shall otherwise remain in full force and effect.
(SEAL) CITY OF DUBUQUE, IOWA
By:
Mike Van Milligen, City Manager
STATE OF IOWA )
) SS
COUNTY OFDUBUQUE )
On this _day of , 20 , before me, the undersigned, a Notary
Public in and for the State of lowa, personally appeared and
acknowledged said execution of the instrument to be his/her voluntary act and deed.
Notary Public in and for
Dubuque County, lowa
44
EXHIBIT G
OPINION OF EMPLOYER'S COUNSEL
45
Mayor and City Councilmembers
City Hall
13�h and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, lowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for Unison Solutions, Inc. (Employer) in connection with
the execution and delivery of a certain Development Agreement (Development
Agreement) by and among Walter Development, LLC (Developer), BAS Development,
LLC (Expansion Property Purchaser), Unison Solutions, Inc. (Employer)and the City of
Dubuque, lowa ("City") dated for reference purposes the _ day of ,
20
We have examined the original certified copy, or copies otherwise identified to our
satisfaction as being true copies, of the Development Agreement and such other
documents and records as we have deemed relevant and necessary as a basis for the
opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries as
we have deemed appropriate, we are of the opinion that:
1 . Employer is a corporation organized and existing underthe laws ofthe State
of lowa and has full power and authority to execute, deliver and pertorm in full
Development Agreement. The Development Agreement has been duly and validly
authorized, executed and delivered by Employer and, assuming due authorization,
execution and delivery by City, is in full force and effect and is valid and legally binding
instrument of Employer enforceable in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization or other laws relating to or
affecting creditors' rights generally.
2. To our actual knowledge with no duty to inquire, the execution, delivery and
performance by Employer of the Development Agreement and the carrying out of the
terms thereof, will not result in violation of any provision of, or in default under, the articles
of incorporation and bylaws of Employer, any indenture, mortgage, deed of trust,
indebtedness, agreement, judgment, decree, order, statute, rule, regulation or restriction
to which Employer is a party or by which Employer's property is bound or subject.
3. To our actual knowledge with no duty to inquire, there are no actions, suits
or proceedings pending or threatened against or affecting Employer in any court or before
any arbitrator or before or by any governmental body in which there is a reasonable
46
possibility of an adverse decision which could materially adversely affect the business
(present or prospective), financial position or results of operations of Employer or which
in any manner raises any questions affecting the validity of the Agreement or the
Employer's ability to perform Employer's obligations thereunder.
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,
47
EXHIBIT H
SITE PLAN
48
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49
EXHIBIT I
PROPOSED PLAT
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51
EXHIBIT J
DEED
sz
Prepared by: Barry A. Lindahl 300 Main Street, Suite 330, Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583-4113
Tax Statement to:
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, lowa, a
municipal corporation of the State of lowa (Grantor), in consideration of the Grantee
named below undertaking the obligations of the Expansion Property Purchaser under the
Development Agreement described below and the sum of Eighty Thousand Four Hundred
and no/100 Dollars ($80,400) in hand paid, and other good and valuable consideration,
and pursuant to the authority of Chapter 403, Code of lowa, does hereby GRANT, SELL
AND CONVEY unto BAS Development, 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):
LOT 2-2 OF MCFADDEN FARM PLACE in the City of Dubuque, lowa
This Deed is exempt from transfer tax pursuant to lowa Code section 428A.2(6).
This Deed is given pursuant to the authority of Resolution No. of the City
Council of the City of Dubuque adopted the _ day of , 20_, the terms
and conditions thereof, if any, having been fulfilled.
This Deed is being delivered in fulfillment of Grantor's obligations under and is
subject to all the terms, provisions, covenants, conditions and restrictions contained in
that certain Development Agreement executed by Grantor and Grantee herein, dated the
day of , 20_ (the Agreement), a memorandum of which was recorded
on the day of , 20_, in the records ofthe Recorder of Dubuque County,
lowa, Instrument Number -_
53
Promptly after completion of the improvements in accordance with the provisions
of the Agreement, Grantor will furnish Grantee with a Certificate of Completion in the form
set forth in the Agreement. Such certification by Grantor shall be, and the certification
itself shall so state, a conclusive determination of satisfaction and termination of the
agreements and covenants of the Agreement and of this Deed with respect to the
obligation of Grantee, and its successors and assigns, to construct improvements and the
dates for the beginning and completion thereof, it being the intention of the parties that
upon the granting and filing of the Certificate of Completion that all restrictions, re-vesting
of title, and reservations of title contained in this Deed be forever released and terminated
and that any remaining obligations of Grantee pursuant to the Agreement shall be
personal only.
All certifications provided for herein shall be in such form as will enable them to be
recorded with the County Recorder of Dubuque, lowa. If Grantor shall refuse or fail to
provide any such certification in accordance with the provisions of the Agreement and this
Deed, Grantor shall, within twenty days after written request by Grantee, provide Grantee
with a written statement indicating in adequate detail in what respects Grantee has failed
to complete the improvements in accordance with the provisions of the Agreement or is
otherwise in default, and what measures or acts will be necessary, in the opinion of
Grantor, for Grantee to take or perform in order to obtain such certification.
In the event that an Event of Default occurs under the Agreement and Grantee or
herein shall fail to cure such default within the period and in the
manner stated in the Agreement, then Grantor shall have the right to re-enter and take
possession of the Property and to terminate and re-vest in Grantor the estate conveyed
by this Deed to Grantee, its assigns and successors in interest, in accordance with the
terms of the Agreement.
None of the provisions of the Agreement shall be deemed merged in, affected or
impaired by this Deed.
Grantor hereby covenants to warrant and defend the said premises against the
lawful claims of all persons whomsoever claiming by, through and under it.
Dated this_ of , 20_ at Dubuque, lowa.
CITY OF DUBUQUE IOWA
By:
Roy D. Buol, Mayor
Attest:
By:
Kevin S. Firnstahl, City Clerk
54
EXHIBIT K
OPINION OF EXPANSION PROPERTY PURCHASER COUNSEL
ss
Mayor and City Councilmembers
City Hall
13�h and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, lowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for BAS Development, LLC, (Expansion Property
Purchaser) in connection with the execution and delivery of a certain Development
Agreement (Development Agreement) by and among Walter Development, LLC
(Developer), BAS Development, LLC (Expansion Property Purchaser), Unison Solutions,
Inc. (Employer)and the City of Dubuque, lowa ("City") dated for reference purposes the
_ day of , 20_.
We have examined the original certified copy, or copies otherwise identified to our
satisfaction as being true copies, of the Development Agreement and such other
documents and records as we have deemed relevant and necessary as a basis for the
opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries as
we have deemed appropriate, we are of the opinion that:
1 . Expansion Property Purchaser is a corporation 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 Agreement has been duly
and validly authorized, executed and delivered by Developer and, assuming due
authorization, execution and delivery by City, is in full force and effect and is valid and
legally binding instrument of Expansion Property Purchaser enforceable in accordance
with its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors' rights generally.
2. The execution, delivery and performance by Expansion Property Purchaser
of the Development Agreement and the carrying out of the terms thereof, will not result in
violation of any provision of, or in default under, the articles of incorporation and bylaws
of Expansion Property Purchaser, any indenture, mortgage, deed of trust, indebtedness,
agreement, judgment, decree, order, statute, rule, regulation or restriction to which
Developer is a party or by which Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened against or
affecting Expansion Property Purchaser in any court or before any arbitrator or before or
by any governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business (present or prospective),
financial position or results of operations of Expansion Property Purchaser or which in
any manner raises any questions affecting the validity of the Agreement or the Expansion
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Property Purchaser's ability to perform Expansion Property Purchaser's obligations
thereunder.
Very truly yours,
s�
NOTICE OF A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA ON THE APPROVAL OF A DEVELOPMENT AGREEMENT BY AND
AMONG THE CITY OF DUBUQUE, WALTER DEVELOPMENT, LLC, BAS
DEVELOPMENT, LLC, AND UNISON SOLUTIONS, INC. PROVIDING FOR THE SALE
OF CITY-OWNED REAL ESTATE TO BAS DEVELOPMENT, LLC AND FOR THE
ISSUANCE OF URBAN RENEWAL TAX INCREMENT REVENUE GRANT
OBLIGATIONS PURSUANT TO THE DEVELOPMENT AGREEMENT
PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque,
lowa, will hold a public hearing on the 4�h day of November, 2019, at 6:00 p.m.
in the City Council Chambers at the Historic Federal Building, 350 W. 6th St.,
Dubuque, lowa, at which meeting the City Council proposes to take action to
approve a Development Agreement by and among Walter Development, LLC,
BAS Development, LLC, and Unison Solutions, Inc., a copy of which is now on
file at the Office of the City Clerk, City Hall, 50 W. 13�h Street, Dubuque, lowa,
providing for the sale of City-owned real estate and the issuance of economic
development grants (Urban Renewal Tax Increment Revenue Grant
Obligations) described therein in order to carry out the purposes and
objectives of the Urban Renewal Plan for the Dubuque Industrial Center
Economic Development District, consisting of the funding of economic
development grants for Unison Solutions, Inc., under the terms and conditions
of the Urban Renewal Plan for the Dubuque Industrial Center Economic
Development District. The aggregate amount of the Urban Renewal Tax
Increment Revenue Grant Obligations cannot be determined at the present
time, but is not expected to exceed $235,000.
At the meeting, the City Council will receive oral and written objections from any resident
or property owner of said City to the above action. After all objections have been received
and considered, the City Council may at this meeting or at any adjournment thereof,
authorize such land disposition and the issuance of the Urban Renewal Tax Increment
Revenue Grant Obligations or abandon the proposal. By order of the City Council said
hearing and appeals therefrom shall be held in accordance with and governed by the
provisions of Section 403.9 of the Code of lowa.
This notice is given by order of the City Council of the City of Dubuque, lowa, as provided
by Chapter 403 of the Code of lowa.
Dated this 7�h day of October 2019.
Kevin S. Firnstahl
City Clerk of Dubuque, lowa