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Duluth Holdings & Walter Development First Amendment to Amended and Restated DA Copyrighted August 3, 2020 City of Dubuque Consent Items # 11. City Council Meeting ITEM TITLE: Duluth Holdings & Walter Development FirstAmendmenttoAmended & Restated DevelopmentAgreement SUM MARY: City Manager recommending approval of the FirstAmendment to Amended and Restated Development Agreement by and among the City of Dubuque, lowa, Duluth Holdings, Inc. and Walter Development, LLC to include the legal description and recorded plat to Parcel C, and to include language agreed upon by the City and the Developer to require the construction of a second driveway into the development property. RESOLUTION Approving the FirstAmendmenttoAmended and Restated Development Agreement by and among the City of Dubuque, lowa, Duluth Holdings, Inc., and Walter Development, LLC SUGGESTED Suggested Disposition: Receive and File;Adopt Resolution(s) DISPOSITION: ATTACHMENTS: Description Type Duluth Holdings&Walter Development First City Manager Memo Amendment to Development Agreement-MVM Memo Staff Memo Staff Memo Resolution Approving First Amendment Resolutions First Amendment Supporting Documentation Amended & Restated DA Supporting Documentation Dubuque THE CITY OF � ui-Aseria cih DuB E , . � . , � II � Maste iece on tj2e Mississi i zoo�•zoiz•zois YP pp zoi�*zoi9 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: First Amendment to Amended and Restated Development Agreement By and Among the City of Dubuque, lowa, Duluth Holdings, Inc., and Walter Development, LLC DATE: July 24, 2020 Senior Counsel Barry Lindahl recommends City Council approval of the First Amendment.to Amended and Restated Development Agreement by and among the City of Dubuque, lowa, Duluth Holdings, Inc. and Walter Development, LLC to include the legal description and recorded plat to Parcel C, and to include language agreed upon by the City and the Developer to require the construction of a second driveway into the development property. I concur with the recommendation and respectfully request Mayor and City Council approval. v � Mic ael C. Van Milligen MCVM:jh Attachment cc: Crenna Brumwell, City Attorney Teri Goodmann, Assistant City Manager Cori Burbach, Assistant City Manager Barry Lindahl, Senior Counsel Dubuque THE CITY OF � Ail•A�e�iea City DuB E , ra� ;�� m, I I MRste iece on the Mis ' si i Zoo��ZalZ�Zo13 YP Pp zol�*zoi9 � BARRY A. LINDAHL, S SENIOR COUNSEL MEMO To: Michael C. Van Milligen City Manager DATE: July 21, 2020 RE: First Amendment To Amended And Restated Development Agreement By And Among The City Of Dubuque, lowa, Duluth Holdings, Inc., And Walter Development, LLC The City of Dubuque, lowa, Duluth Holdings, Inc., and Walter Development, LLC entered into an Amended and Restated Development Agreement dated for reference purposes the 6th day of April, 2020 (the Agreement) for the development of property in Dubuque Industrial Center West. At the time the Agreement was approved, one of the parcels being sold to the Developer, Lot C, had not been platted. Now that the plat has been recorded, the parties desire to amend the Agreement to include the recorded plat and to add the legal description for Parcel C. The First Amendment also includes language agreed upon by the City and the Developer to require the construction of a second driveway into the development property. I recommend that the resolution be submitted to the city council for consideration and approval. BAL:tIs cc: Crenna M. Brumwell, City Attorney Jill Connors, Economic Development Director F:\Users\tsteckle\Lindahl\Walter-Hodge-Duluth\MVM_FirstAmendmentToAmended&RestatedDA 072120.docx OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 (V1AIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563)583-4113/Fax (563)583-1040/EMai� balesq@cityofdubuque.org I Prepared by Barry A. Linda!, Esq. 300 Main St., Ste. 330, Dubuque IA 52001-6944, 563-583-4113 Return to Kevin Firnstahl, City Clerk, 50 W. 13th St., Dubuque, IA 52001, (563) 589-4100 RESOLUTION 233-20 APPROVING THE FIRST AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF DUBUQUE, IOWA, DULUTH HOLDINGS, INC., AND WALTER DEVELOPMENT, LLC Whereas, the City of Dubuque, Iowa, Duluth Holdings, Inc., and Walter Development, LLC entered into an Amended and Restated Development Agreement dated for reference purposes the 6th day of April, 2020 (the Agreement); and Whereas, the parties desire to amend the Agreement as set forth in the attached First Amendment. NOW THEREFORE, IT IS AGREED BY AND BETWEEN CITY AND DEVELOPER AS FOLLOWS: Section 1. The First Amendment is hereby approved. Section 2. The Mayor is authorized and directed to sign the First Amendment on behalf of the City of Dubuque. PASSED, APPROVED AND ADOPTED this 3rd day of August 2020. 0 Roy D. Attest: ,a1,1/7",-// Kivin Firnstahl, CMC, City Clerk ide , Mayor 072120ba1 FIRST AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF DUBUQUE, IOWA, DULUTH HOLDINGS, INC., AND WALTER DEVELOPMENT, LLC This First Amendment to Amended and Restated Development Agreement, dated for reference purposes theday of August, 2020, is made and entered into by and among the City of Dubuque, Iowa, Duluth Holdings, Inc., and Walter Development, LLC. Whereas, the City of Dubuque, Iowa, Duluth Holdings, Inc., and Walter Development, LLC entered into an Amended and Restated Development Agreement dated for reference purposes the 6th day of April, 2020 (the Agreement); and Whereas, the parties desire to amend the Agreement as set forth herein. NOW THEREFORE, IT IS AGREED BY AND BETWEEN CITY AND DEVELOPER AS FOLLOWS: Section 1. Section 1.1(3) is amended by adding at the end thereof: Parcel C is legally described as Lot 2, McFadden Farm Place No. 5. See plat attached hereto as Exhibit B-3. Parcel C contains 0.19 usable acres. Section 2. Section 2.3 is amended by adding the following new subsection: (4) If and when City extends the S. Heacock Road to the north lot line of Lot 1 of McFadden Farm Place No. 5, Developer shall at Developer's cost install a second (north) driveway to specifications approved by City and as shown on the approved site plan filed with Planning Services, Section 3. All other terms and conditions of the Agreement shall remain in full force and effect. CITY OF DUBUQUE, IOWA By: By: A Ke. in S. Firnstahl City Clerk WALTER DEVELOPMENT, LLC By: /an. Gt gi4+, Tim Hodge, Managing Member DULUTH HOLDINGS, iNC. By: 114f Chris Teufel CIO & SVP Supply Chain, Logistics 072120ba1 � I� EX�f I�IT �-3 #�LAT 2 —daf tO PLAT OF SURVEY LOT 1 AND LOT 2 OF MCFAD EN FARM PLACE NO. 5 tt IN E, CITY OF DUBUQUE, IOWA 0 titne DETAILS ARE NOT TO SCALENTS) UNLESS NOTED MOPE' Y 8 HOARY LOT/RIORTOF.WAY LINE EASEMENT LINE SECTION EXIS1140 PUSUD UTIUTYE EXISTIND PUOUC ACCESS EASEMENT CAS MUTUAL DOEWAY EASEfEN PERMANENT EASEMENT REED A FCC "Mr CAPIRON AR RED PLASTID� 4 21 FOUND .1111 ', . RED PLASH CAP New 11S Mum 5SIRON A RED MASTIC CAP NO, 126,3i S 1'"� RC8AR RED �A I CAP NO. 2631; APNIC SCALE 200 04), toploo ORA `IHAVE OEM, R 1 R. .00" CN R " * * 4*1 48 a r 24.1 * 1 N3817461.: 1"78'3' . 2 S SURVEy 15 SUBJECT TO. ASEMENTs. REsERvADON0, RESTRiC1IONS .AND IRIG1TS-0f WAY OF REWRO AND.NOT or wow 14ENE. SEC. 29. 18 FOUND CONCRETE MONUMENT LOT 16.27 TOTAL A 0,21 ACRES mow0 IT 16 ACRES NET LOT 2 `0.77 ACRES. LOT 1.MCFADOEN FARM PLACE NO. 4 1v L 666 R.1 ,00* 1 '1 N5315'32*E 60 S51*40121**Yi EX Pe firENT EASEMENT LitkiE INST. 190 02 NE CORNER ,4.svn4 SECTION 20 SE114.NWV4 SEC- 29. `, R2E , s LOUOUE r ISTRIAL OENIER 7T DDI1c LOT 2 or WIER ADDinoN ti.0 WAVER ER I ZrOND .. DLICAJ STRIA, CENTER ADDITION 217. 2* 1.0' e� 1MOO* ORD. S61 *2 ', ' 6. * .tOrtfiv. CW eir% IMiAl 1. LAND suRve.4 9 FC0*441 W S .V00 SuRKVO., *001Jt LA*0 01' 1*4 00800 OF '►C*o . 1N T *0 . 11-*0-09 p/�q��M rwM lY, f.O Yam! f 1` 0 fo5 Otorit. SIAM '1 7 2 Alt" ' {#w0^-T0 5i'*0C1 1 et 2 • d,t4l*0' ' .t$ �! 6 1i b *11 wwa x�. «w 5� t,14%1144111 *01 *L'R43'\1 *01 0.City En I F � � � ��. ��!1'��L��'i�'��'.� 1 �,,��It��.�l"�t'Ill'i�C,�E�LiI��.i�tl��Clt��t,l!"ti��l'[t[��[��#��t��I��f�,.:'��(�!'�?�?�t�t�i��7��'�h��i(�1�fEt��t'�� i� �.��:�-��c�`�i�=��i'1�f��i��:.�-��t��,��:. 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' `„� � � � �. ..� .� � � ��'�� z�r ��.�* �� ^ �� '� �€#�.�:��a�� y: ' �� '�r�"� �� j � ; , €� ' �.� �� .�r �: }��. ,�st�` �,, ,� xr�� x W .� 3 t. �' - Y rt � I N � AMENDED AND RESTATED DEVELOPMENT � AGREEMENT ,� BY AND AMONG ';I THE CITY OF DUBUQUE, IOWA, � DULUTH HOLDINGS, INC. 1 AND � VUALTER DEVELOPMEfVT, LLC � THIS AMENDED AND RESTATED DEVELOPMEN A�REEMENT (the Agreement), dated for reference purposes the��day of , 2020, by and i among the City of Dubuque, lowa, a municipality (City), est lished pursuant to the �� lowa Code and acting under authorization of lowa Code Chapter 403, As Amended ; (Urban Renewal Act), Duluth Holdings, Inc, a Wisconsin Corporation with its principal ! � place of business in Wisconsin (Employer), and Walter Development, LLC, an lowa � limited liability company with its principal place of business in Dubuque, lowa 1 (Developer). !� ; WITNESSETH: ' ��! WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City ��, has undertaken an Urban Renewal Project (the Project) as described herein to !,i, advance the community's ongoing economic development efforts; and �� WHEREAS, the Project is located within the Dubuque Industrial Center � Economic Development District (the Project Area); and � �� WHEREAS, as of the date of this Agreement there has been prepared and ' approved by City an Urban Renewal Plan for the Project Area consisting of the Urban �j Renewal Plan for the Dubuque Industrial Cent�r E�9n9rrvic 9evelopru��r�t Qi�tri�t, �'� approved by the City Council of City on May 2, 1988, and as subsequently amended through and including the date hereof(the Urban Renewal Plan) attached hereto as Exhibit A; and WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of this Agreement, is on file with the County Auditor and the City of Dubuque City Clerk; and WHEREAS, Developer determined that it requires a new industrial building/facility to maintain and expand its operations and employment in the Project Area (the Facility); and � WHEREAS, City and Developer entered into a Development Agreement dated � the 4t" day of November, 2019 (the Original Development Agreeo-nent); and � � 032520ba1 � � WHEREAS, Pursuant to the Original Development Agreement, City sold to Developer certain real estate described herein (the Original Development Agreement Property); and i,� WHEREAS, Developer has requested that City sell to Developer additional � real estate described herein (the Property), together with all easements, tenernents, � hereditaments, and appurtenances belonging thereto,so that Developer may develop the Property, located in the Project Area, for the construction, use, and occupancy of the Facility in accordance with the uses specified in the lJrban Renewal Plan and Developer agrees to comply with any amendments to the Urban Renewal Plan, in ! accordance with this Agreement; and ' WHEREAS, Developer and City agree that upon approval of the Plat (as defined in Section 1.6(11) of this Agreement), this Agreement will be amended to i include the legal description of the Property; and WHEREAS, Employer desires to join in this Agreement and assume the rights ; and responsibilities provided herein; and �� WHEREAS, Developer will undertake the construction of a building located on the original Development Agreement property; and ; � WHEREAS, Employer will lease the building from Developer and employ � Employees as provided herein; and � I WHEREAS, Developer or Employer will make a capital investment in building improvements, equipment, furniture and fixtures in the Facility (the Project); and I all of the foregoing referred to herein as the Project; and � WHEREAS, City believes that the dev�lo�rtl�nt gf the Pr��er�y p��r�uant t� � this Agreement, and the fulfillment generally of this Agreement, are in the vital and best interests of City and in accord with the public purposes and provisions of the applicable federal, state and local laws and the requirements under which the Project has been undertaken and is being assisted. NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: SECTION 1. CONVEYANCE OF PROPERTY TO DEVELOPER 1.1 P�rcha�e Pri��. The (�ri�l�al nP��P��rment :4�resn-!ent Pr�pp�+y �n� ±he Property consist of three separately identified parcels, referred to herein and in Exhibit � B-2 as Parcel A, Parcel B, and Parcel C. The aggregate purchase price for the Original Development Agreement Property and the Property (Purchase Price) shall 2 � � L� � be the sum of One Million Eighty-Nin� Thousand Dollars ($1,089,000), with a total i acquisition of 14.71 usable acres. I� I� (1) The purchase price for Parcel A (the "Parcel A Purchase Price") was j One Hundred Twenty Thousand Dollars ($120,000) per acre for 3.89 usable ii acres for a total Parcel A Purchase Price of Four Hundred Sixty-Six Thousand '� Eight Hundred Dollars ($466,800). � (2) The purchase price for Parcel B (Parcel B-1 and Parcel B-2) (the"Parcel � B Purchase Price") was Sixty Thousand Dollars ($60,000) per acre for 10.05 usable acres for a total Parcel B-1 Purchase Price of Six Hundred Three ; Thousand Dollars ($603,000). . j I (3) Subject to the terms and conditions herein, the purchase price for { Parcel C (Parcel C-1 and Parcel G2) (the "Parcel C Purchase Price") shall be ;I One Hundred Twenty Thousand Dollars ($120,000) per acre for approximately �; 0.13 acres (Parcel C-1) and Sixty Thousand Dollars ($60,000) per acre for ;; approximately 0.86 acres (F'arc�l C-2) for a total Parcel G Purcha�e Price of i $19,200 which shall be due and payable by Developer in immediately available !'; funds in favor of City at the Closing Date (as defined in Section 1.7 of this �� Agreement). The actual Parcel C Purchase Price shall be adjusted based on the acreage of the Property as shown on the Plat(as defined in Section 1.6(11) of this Agreement). �� i� (4) The total purchase price shall be the sum of the Parcel A Purchase 'i Price, the Parcel B Purchase Price, and the Parcel C Purchase Price (the 'I "Purchase Price") of One Million Eighty-Nine Thousand Dollars ($1,089,000). � i; 1.2 Title to Be Delivered. City agrees to convey good and marketable fee simple ' title in the Property to Developer subject only to easements, restrictions, conditions, � and covenants of record �s of th� d�t� h�r��f tc� the �xtPnt not �bj�cted to by ;i Developer as set forth in this Agreement, and to the conditions subsequent set forth � in Section 6.3, below: r (1) City, at its sole cost and expense, shall deliver to Developer an abstract of title to the Property continued through the date of this Agreement reflecting merchantable title in City in conformity with this Agreement and applicable state law. The abstract shall be delivered together with full copies of any and all encumbrances and matters of record applicable to the Property, and such abstract shall become the property of Developer when the Purchase Price is paid in full in the manner as aforesaid. (�1 nPVPlc�p�r �h�!! ha��g ��n#i! #��A �f �hA ri�s;n� �� d�fir�ed h�;-�;n; #� � render objections to title, including any easements or other encumbrances not � �ati�factory to Developer, in writing to City. Developer agrees, howev�r, te g review the Abstract promptly following Developer's receipt of Developer's land � 3 � � survey and the Abstract and to promptly provide City with any objections to � title identified therein. Nothing herein shall be deemed to limit Developer's , rights to raise new title objections with respect to matters revealed in any �; subsequent title examinations and surveys and which were not identified in the j Abstract provided by the City. City shall promptly exercise its best efforts to �j have such title objections removed or satisfied and shall advise Developer of i intended action within ten (10) days of such action. If City shall fail to have 'i such objections removed as of the Closing, or any extension thereof ! consented to by Developer, Developer may, at its sole discretion, either (a) � terminate this Agreement without any liability on its part, and any sums � previously paid to City by Developer (or paid into escrow for City's benefit) shall be returned to Developer with interest, or (b) take title subject to such � objections. City agrees to use its best reasonable efforts to promptly satisfy � any such objections. � � 1.3 Riqhts of Inspection, Testing and Review. Developer, its counsel, � accountants, agents, and other representatives, shall have full and continuing access � to the Pro�perty and ail parts thereof, upon reasonable notice to City. Deueloper�nd � its agent and representatives shall also have the right to enter upon the Property at ;! any time after the execution and delivery hereof for any purpose whatsoever, � including inspecting, surveying, engineering, test boring, and performing environmental tests, provided that Developer shall hold City harmless and fully � indemnify City against any damage, claim, liability or cause of action arising from or � caused by the actions of Developer, its agents, or representatives upon the Property � (except for any damage, claim, liability or cause of action arising from conditions � existing prior to any such entry upon the Property), and shall have the further right to t make such inquiries of governmental agencies and utility companies, etc. and to ' make such feasibility studies and analyses as they consider appropriat�. � N 1.4 Representations and Warranties of City. In order to induce Developer and � Employer to enter into this Agreement �n� �ur�h�� th� Pro��r�y9 �ity her?hy s represents and warrants to Developer and Employer that to the best of City's � knowledge: i (1) There is no action, suit or proceeding pending, or to the best of City's knowledge, threatened against City which might result in any adverse change in the Property being conveyed or the possession, use or enjoyment thereof by Developer or Employer, including, but not limited to, any action in condemnation, eminent domain or public taking. (2) No ordinance or hearing is now or before any local governmental body that either contemplates or authorizes any public improvements or special tax I�yiPs, �IIP rQSt �f lIVI?IG�'? Yj1?� '�,1P ?SCPS�P� ��in�# the Pr��A��. T� #he �ps# of City's knowledge, there are no plans or efforts by any government agency � #o wid�n, modify, or re-align any street or highway providing access to the Property and there are no pending or intended public improvements or special 4 � Ij assessments affecting the Property which will result in any charge or lien be � levied or assessed against the Property. � � (3) All leases, contracts, licenses, and permits between City and third � parties in connection with the maintenance, use, and operation of the Property have been provided to Developer and Employer, and City has provided true and correct copies of all such documents to Developer and Employer. ' I (4) City has good and marketable fee simple title interest in the Property. � (5) The Property has a permanent right of ingress or egress to a public roadway for the use and enjoyment of the Property. � (6) There are no notices, orders, suits, judgments or other proceedings ' relating to fire, building, zoning, air pollution, health violations or other matters � that have not been corrected. City has notified Developer and Employer in � writing of any past notices, orders, suits, judgments or other proceedings ' � relating to fiire, building, zoning, air pollution or health vi�lation� a� they relate � h to the Property of which it has actual notice. The Property is in material � compliance with all applicable zoning, fire, building, and health statutes, !; ordinances, and regulations. I' �. ; i (7) Payment has been made for all labor or materials which have been ° furnished to the Property or will be made prior to the Closing so that no lien for �1 �' labor performed or materials furnished can be asserted against the Property. � � (8) The Property will, as of the Closing Date (as defined herein), be free y and clear of all liens, security int�r��ts9 �nd enc�arnbranc�s. � (9) The execution, delivery and performance of this Agreement and the � consummati9n 9f th�transa�ti9n� c4ntPrn�late�l by this Agr�Pm�nt d� not and shall not result in any material breach of any terms or conditions of any mortgage, bond, indenture, agreement, contract, license, or other instrument or obligation to which City is a party or by which either the City or the Property being conveyed are bound, nor shall the execution, delivery and performance of this Agreement violate any statute, regulation, judgment, writ, injunction or decree of any court threatened or entered in a proceeding or action in which City may be bound or to which either City or the Property being conveyed may be subject. (10) City has duly obtained all necessary approvals and consents for its execution, delivery and performance of this Agreement, and it has full power ?!?� ?�lt�ln!'lf;� �� X@��i�g rl@�iyg:" af?d NSC�;;r!Z? !f� v�'Il��$!^..nS �E'G��r �hl� Agreement. City's attorney shall issue a legal opinion to Developer and � Employer at time of Closing confirming the representation contair�ed he�ein, ir� the form attached hereto as Exhibit C. 5 (11) All city utilities necessary for the development and use of the original � Development Property and the Property (hereinafter the Development �i Property) as a distribution facility adjoin the Development Property, and � Developer and Employer shall have the right to connect to said utilities, subject � to payment of City's connection fees. There will be no sanitary sewer i connection fees associated with the project. Only water connection fees will � be assessed for connections to Chavenelle Road. All other associated fees, a such as a tapping fee,will be required as determined by the size of the service ;� iine being installed. �� I (12) The Property is free and clear of any occupants, and no party has a �� lease to or other occupancy or contract right in the Property that shall in any I! way be binding upon the Property, Developer, or Employer. �; I� (13) 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 Agr�errient ar� the �ole !' responsibility and obligation of City and that City will indemnify Developer and � Employer and hold Developer and Employer harmless from any and all claims i; asserted by any broker engaged directly or indirectly by City for any fees or !; other compensation related to the subject matter of this Agreement. � (14) City shall exercise its best efforts to assist Developer and Employer in �; the development process. i� li !; (15) City shall exercise its best efforts to resolve any disputes arising during ;; the development process in a reasonable and pr�m�t f�shion. '� �i (16) With respect to the period to and during which City has owned or � occupied the Property; no person c�r �ntity h�� usPd �r �ermitted m�terials � to be stored, deposited, treated, recycled, or disposed of on, under or at the Property, which materials, if known to be present, would require cleanup, removal or some other remedial action under environmental laws. (17) The Development Property is presently zoned to accommodate Developer's and Employer's intended improvements. (18) The representations and warranties contained in this Section shall be correct in all respects on and as of the Closing with the same force and effect as if such representations and warranties had been made on and as of the Closing Date. 1.5 Representations and Warranties of Developer and Emplover Developer and � Employer each make the following individual representations and warra�ties vuith respect to their own company (without making any warranties with respect to the 6 � a other): � � (1) Developer 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 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 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 and Employer's counsel shall issue legal opinions to the � City, at time of closing, confirming the representations contained herein, in the i form attached hereto as Exhibit D and Exhibit I. j !ti (3) The execution and delivery of this Agreement, the consummation of the � transactions contemplated hereby, and the fulfillment of or compliance with the `i 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 � lil provisions of the articles of incorporation or the bylaws of Developer or j Employer or any contractual restriction, evidence of indebtedness, agreement ,I or instrument of whatever nature to which Developer 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 or Employer in any court or before any arbitrator or before or bv any government�[ �ody in vvh�ch thPre i� � re�scnab!P possibility of an adverse decision which could materially adversely affect the business, financial position or result of operations of Developer or Employer or which affects the validity of the Agreement or Developer's or Employer's ability to perform its obligations under this Agreement. (5) Developer and Employer will perForm their 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 will use good faith efforts to obtain, or cause to be obtained, in a timely manner, all material requirements of all applicable local, state, and fe�1��-�I law� ��d �-eg�lati�!?� �hi�h !?�!.�st he ��t�in?� �r mQt. (7) D�v�loper has comrnitments for ermanent finar�cin for ihe � p 9 Development Project and all of their respective obligations under this � � I 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. 1.6 Conditions to Closinq. The closing of the transaction contemplated by this �I Agreement and all the obligations of Developer and Employer under this Agreement � are subject to fulfillment, on or before the Closing Date, of the following conditions: (1) The representations and warranties made by City in Section 1.4 shall be correct as of the Closing Date with the same force and effect as if such ` representations were made at such time. At the Closing, City shall deliver a ;� certificate in the form of Exhibit G. ;I ,� h (2) Title to the Property shall be in the condition warranted in Section 1.4. �i I' (3) Developer and Employer, in their sole and absolute discretion, having ! completed and approved of any inspections done by Developer or Employer � hereunder. � � � (4) Developer having obtained any and all necessary governmental '; approvals, including without limitations approval of zoning, subdivision, or platting which might be necessary or desirable in connection with the sale, � transfer and development of the Development Property. Any conditions '� imposed as a part of the zoning, platting or subdivision must be satisfactory to � Developer, in its sole opinion. City shall cooperate with Developer in i� attempting to obtain any such approvals and shall execute any documents �',j necessary for this purpose, provided that City shall bear no expense in li connection therewith. In connection therewith, the City agrees (a) t� r�vi�w a�ll � of Developer's plans and specifications for the Project and to either reject or f approve the same in a prompt and timely fashion; (b) to issue a written �' notification to Developer, followina City's approual c�f��m�, i�di��tin� that the �� City has approved such plans and specifications, and that the same are in compliance with the Urban Renewal Plan and Developer agrees to comply � with any amendments to the Urban Renewal Plan, this Agreement and any other applicable City or affiliated agency requirements, with the understanding that Developer and its lenders shall have the right to rely upon the same in proceeding with the project; (c) to identify in writing within ten (10) working days of submission of said plans and specifications, any and all permits, approvals and consents that are legally required for the acquisition of the Property by Developer, and the construction, use and occupancy of the project with the intent and understanding that Developer and its lenders and attorneys will rely upon same in establishing their agreement and time frames for construction; us� and o��u�n�r��, IP�d�nn �,n t�P r��P�t a�� eSg�ing iAg�� opinions in connection therewith; and (d) to cooperate fully with Developer to � streamline and facilitate the obtaining of such permits, approvals and consents. s � � � � (5) City having completed all required notice to or prior approval, consent or permission of any federal, state, municipal or local governmental agency, � body, board or official to the sale of the Property; and consummation of the Closing by City shall be deemed a representation and warranty that it has � obtained the same. � (6) Developer, Employer, and City shall be in material compliance with all � the terms and provisions of this Agreement. (7) Developer shall have furnished City with evidence, in a form satisfactory to City (such as a letter of commitrr�ent from a bank or other lending institution), � that Developer has firm financial commitments in an amount sufficient, together with equity commitments, to complete the Minimum Improvements � (as defined herein) in conformance with the Construction Plans (as defined � herein), or City shall have received such other evidence of such party's � financial ability as in the reasonable judgment of City is required. I � (8) Employer shall have furnished City with evidence in a form as required by Section 5.2 and satisfactory to City of Employer's fulltime equivalent % employees (FTE) at 7500 Chavenelle Road, Dubuque County, as of January i! 1, 2020. '1 �� ;; (9) Receipt of an opinion of counsel to Developer in the form attached ;? hereto as Exhibit D. � i: (10) Receipt of an opinion of counsel to Employer in the form attached � � hereto as Exhibit I. y � (11) City shall have prepared and shall be prepared to record at Closing a V pl�t Qf ��rv�y 9f Property �e��pt��le t� QP�/PI��P� (thP "Pl�t"), incla�in� � location and depiction of all applicable easements and other substantial improvements. (12) Developer 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 or Employer determines in its sole discretion that conditions necessary for the successful completion of the Project contemplated herein have not been satisfied to the full satisfaction of such party in such party's sole and unfettered discretion. Upon the giving of notice of termination by such terminating party to the other parties to this Agreement, this Agreement shall be deemed null and void. 1.7 Closinq. The closing of the purchase and sale (the Closing) shall take place on the Closing Date. The Closing Date is April 7, 2020, at 10:00 a.r�., at City's Legal Counsel's office, or such other date or location as the parties agree in writing. � 9 � � � � � � Exclusive possession of the Property shall be delivered on the Closing Date, in its '� currenfi condition and in compliance with this Agreement, including City's representations and warranties regarding the same. Consummation of the Closing � shall be deemed an agreement of the parties to this Agreement that the conditions of � closing have been satisfiied or waived. � �� i; 1.8 City's Obliqations at Closinq. At or prior to Closing Date, City shall: ��; (1) Deliver to Developer City's duly recordable Special Warranty Deed to � the Property (in the form attached hereto as Exhibit E (the Deed) conveying to � Developer marketable fee simple title to the Property and all rights appurtenant j; thereto, subject only to easements, restrictions, conditions and covenants of � record as of the date hereof and not objected to by Developer as set forth in � this Agreement, and to the conditions subsequent set forth in Section 6.3 i below. j �� I! (2) Deliver to Developer the Abstract of Title to the Property. � � (3) Deliver to Developer such other documents as may be required by this �� Agreement, all in a form satisfactory to Developer. ! �� I. 1.9 Delivery of Purchase Price; Obligations At Closing. At Closing, and subject to � the terms, conditions, and provisions hereof and the performance by City of its i{ obligations as set forth herein, Developer shall pay the Purchase Price to City 1 pursuant to Section 1.1 hereof, but subject to Developer receiving an offsetting credit � pursuant to Section 3.1 below. ; 1.10 Closing Costs. The fallowing costs and �xpen�� h�ll �e paid in connection '� with the Closing: �; (1) Gity shall aay: s (a) The transfer fee, if any, imposed on the conveyance. � �(b) A pro-rata portion of all taxes as provided in Section 1.10. � fd 4 (c) All special assessments, if any, whether levied, pending, or � assessed. � � (d) City's attorney's fees, if any. (e) City's broker and/or real estate commissions and fees, if any. (fl The cost of recording the satisfaction of any existing mortgage � and any other document necessary to make title marketable. � io � 9 � e (2) Developer shall pay the following costs in connection with the closing: ; (a) The recording fee necessary to record the Deed. � ; �i (b) Developer's attorneys' fees. � � (c) Developer's broker and/or real estate commissions and fees, if � any. � � (d) A pro-rata portion of all taxes as provided in Section 1.10. � '� 1.11 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years prior � to the fiscal year in which Closing Date occurs. Real estate taxes for the fiscal year � in which Closing Date occurs shall be prorated between City and Developer to i Closing Date on the basis of a 365-day calendar year. Developer shall pay or cause 'i to be paid all real estate taxes due in subsequent fiscal years. Any proration of real �� estate taxes on the Property shall be based upon such taxes for the year currently I� payable. 'f, � SECTION 2. DEVELOPMENT ACTIVITIES II� ii 2.1 Required Minimum Improvements. Coty acknowledges that the Facility I�'� Developer is building on the Development Property is a distribution building/facility as ;I shown on Exhibit B-2 attached hereto. �i � (1) Developer agrees to construct the building and certain internal systems � thereto, including all interior improvements to the building and a detention � facility as further described in Se�tion 2.3(�)9 (th� IVlinim�m Improvement�); all � as more particularly depicted and described on the plans and specifications to � be delivered to and approved by City as contemplated in this Agreement. � Dev�lo��r her��v agr�� the F��ilitv �ill �� n�t I�ss th�n Tvvn Han�rPd � Sixteen Thousand (216,000) square feet of floor space along with the � necessary site work, machinery and equipment at an estimated cost of approximately Nine Million Dollars ($9,000,000). (2) Developer agrees to add approximately Six Million Dollars ($6,000,000) of equipment to the building by September 30, 2020. 2.2 Plans for Construction of Minimum Improvements. Plans and specifications with respect to the development of the Development Property and the construction of the Minimum Improvements thereon (the Construction Plans) shall be in conformity with the Urban Renewal Plan, this Agreement, and all applicable state and local laws �n� rP��!I�tic�n�, �ncla�+ing ��t ��t lir�v!te� t� thp Amende� �n� F�ps±�±Qd �Q�l�ra#i�r� of Covenants, Conditions, Restrictions, Reservations, Easements, Liens and � Charges, recorded as Instrument No. 2014-00001147, records of Dubuque County, lowa. Developer shall submit to City, for approval by City, plans, drawings, �� i � specifications, and related documents with respect to the improvements to be ' constructed by Developer on the Development Property. All work with respect to the � Minimum Improvements shall be in substantial conformitywith the Construction Plans � approved by City. ' i li 2.3 Timinq of Improvements. �� (1) Developer hereby agrees that construction of the Minimum ! Improvements on the Development Property shall be commenced on or before � December 1, 2019 and shall be substantially completed by August 1, 2020. !i 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 I� labor troubles, shut down due to COVID-19, unusual shortages of materials or �I 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 d�lays, or�cts �f an� f�deral, �tat� or p local government which directly result in extraordinary delays. The time for ' perFormance of such obligations shall be extended only for the period of such I; delay. �� (2) Developer has constructed a detention facility to serve the �i Development Property, and Lot 2-2 of McFadden Farm Place, and the area I; naturally tributary to the existing 42" culvert at the Southeast corner of Lot 2-2 �� of McFadden Farm Place (the Public Detention Facility). �� i; (a) The area to be served by the Publi� 9etention Facili#y is 48.2 ii acres and the area of the Development Property served is 7.37 acres, �! which is 15.3% of the total area served by the Public Detention Facility. � Commencing on the first day 9f J�n��r,v �f thP f�rst vP�r ��#P� rety �� accepts the work of Developer required by Section 2.4, and on the f anniversary date of each year thereafter, 13.7% of the annual i maintenance expenses incurred by City for the Public Detention Facility ; for the previous 12-month period shall be assessed against the Developer. The City Manager shall certify such costs to the City Clerk, which shall then be certified and collected with and in the same manner � as general property taxes in accordance with the provisions of law. (3) Developer agrees to construct a street to standard City specifications and requirements as shown on the Plat by August 1, 2020. Developer shall submit to City,for approval by City, plans, drawings, specifications, and related docum�t�t� uvith t'��ec� tc� thP �trP�t tn hp ��,str!�cte� �� Je�,rel�N r. � � (a) Upon completion of the street, Developer shall notify the Ciiy and � City officials shall inspect the street. If City officials determine that the 12 � k p � m � street has been completed in accordance with all standard City � specifications and requirements, as well as the plans, drawings, � specifications, and related documents previously submitted to the City, then the Developer shall dedicate the street and related right-of-way"as � is" to the City, at no cost to the City, and the City shall accept dedication j thereof. ' (b) Developer acknowledges and agrees that, upon dedication to i the City, the City shall own and maintain the street and that nothing in this Agreement grants Developer, its agents, or its employees any � special legal entitlements or other rights not held by members of the `, general public with respect to ownership, maintenance, or use of the ' street. f (c) The parties agree that the City and its agents and employees are ' not responsible for and have no liability to Developer associated with � the specifications, design, plans, quality of construction, or sufficient of � the street for any particular purpose. �i i 2.4 Certificate of Completion. Promptly following the request of Developer upon � completion of the Minimum Improvements, the City Manager shall furnish Developer I with an appropriate instrument so certifying. Such certification (the Certificate of q Completion) shall be in recordable form and shall be a conclusive determination of ; the satisfaction and termination of the agreements and covenants in this Agreement � and in the Deed with respect to the obligations of Developer to construct the Minimum = Improvements. The Certificate of Completion, in the form attached hereto as Exhibit E H, shall waive all rights of re-vestment of title to the Property as provided in Section i 6.3(1), and the Certificate of Completion shall so state. f � 2.5 Developer's Lender's Cure Rights. The parties agree that, if Developer shall fail to complete the Minimum Imbrpv�m�nt� �� req�ired bv th��Agr�erner�t su�h th�t re-vestment of title may occur (or such that the City would have the option of � exercising its re-vestment rights), then Developer's lender shall have the right, but not � the obligation, to complete such Minimum Improvements. SECTION 3. CITY PARTICIPATION. 3.1 Acquisition Grant to Developer. (1) For and in consideration of Developer's obligations hereunder to construct the Minimum Improvements, City has made the following Acquisition Grant to Developer: Parcel A: $278,135 ($71,500 per acre x 3.89 usable acres) � 13 � i Parcel B (B-1 and B-2): $231,150 ($23,000 per acre x 10.05 usable ; acres) (2) The City agrees to make an Acquisition Grant to Developer on the ,� Closing Date in the following amount: � Parcel C (C-1 and C-2): $10,675 ($71,500 per acre x 0.13 usable acres _ $9,295) + ($23,000 per acre x 0.06 usable acres = $1,380). The total ; Acquisition Grants for Parcel A, Parcel B, and Parcel C is $519,960.00 �� (the Total Acquisition Grant). � 9 I� The parties agree that the Acquisition Grant shall be payable in the form of a credit favoring Developer with the effect of directly offsetting the Purchase Price obligation of Developer. The Acquisition Grant for Parcel C reduces the Purchase Price to reflect the City's initial investment in Parcel C. ! 'i 3.2 Economic Development Grants. ,� J (1) Employer Economic Development Grants 'ij V � (a) For and in consideration of Developer's and Employer's ' obligations hereunder, and in furtherance of the goals and objectives of �i the Urban Renewal Plan for the Project Area and the Urban Renewal I; 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 G, referred to collectively as the Employer Economic Development Grants) � to Employer, as follows: � � November 1, 2021 May 1, 2022 � November 1, 2022 Mav 1, �Q�3 � 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 coll��t�d k�y �ity ��t?�P�' Is�� (1n�g �pc�i�� 40�.�9 �.R�:#heat re�wr� #c 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 14 a � I! of the Property and Minimum Improvements constructed by Developer � (the Developer Tax Increments). Employer recognizes and agrees that � the Employer Economic Development Grants shall be paid solely and � only from the incremental taxes collected by City in respect to the j Property and Minimum Improvements, which does not include property � taxes collected for the payment of bonds and interest of each taxing Ij 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. ' � (b) To fund the Employer Economic Development Grants, City shall h certify to the County prior to December 1 of each year, commencing � December 1, 2020, its request for the available Developer Tax Increments resulting from the assessments imposed by the County as � of January 1 of that year, to be collected by City as taxes are paid during �i the following fiscal year and which shall thereafter be disbursed to � Employer on November 1 �n� May 1 of th�,t fi��al y�ar, (�xarripl�; If ; City so certifies by December 1, 2020, the Employer Economic r Development Grants in respect thereof would be paid to Employer on j'', November 1, 2021, and May 1, 2022.) �; r, �� (c) The Employer Economic Development Grants shall be payable �, from and secured solely and only by the Developer Tax Increments paid i� to City that, upon receipt, shall be deposited and held in a special V' account created for such purpose and designated as the Duluth TIF �'' Account of City. City hereby covenants and agrees to maintain its TIF � ordinance in force during the term and to apply the incremental t�xes � collected in respect of the Property and Minimum Improvements and � allocated to the Duluth TIF Account to pay the Employer Economic Developm�nt �rant�, as a�ad to the exte�t set f�rth in S?ct�on �.��1) 9 hereof. The Employer Economic Development Grants shall not be � payable in any manner by other tax incrernents revenues or by general k taxation or from any other City funds. City makes no representation with � respect to the amounts that may be paid to Employer as the Employer 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 Duluth TIF Account (regardless of the amounts thereofi� to the payment of the Employer Economic Development Grants to Employer or Developer as and to the extent described in this Section. (�) pPv�lop�r Ec�norr�� nP��Plo�mP�t Gra�t�. a For and in consideration of Develo er's and Em lo er's � ( ) P p Y obligations hereunder, and in furtherance of the goals and objectives of � is � a � � the Urban Renewal Pian for the Project Area and the Urban Renewal � Law, City agrees, subject to Developer and Employer being and li remaining in compliance with the terms of this Agreement,to make eight � (8) consecutive semi-annual payments (such payments being referred � to collectively as the Developer Economic Development Grants) to � Developer, as follows: � � November 1, 2031 May 1, 2032 � November 1 , 2032 May 1, 2033 � November 1, 2033 May 1, 2034 ' November 1, 2034 May 1, 2035 ' � pursuant to lowa Code Section 403.9 of the Urban Renewal Law, in � amounts equal to the actual amount of tax increment revenues ;I 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 accru� th�r�Qn �ri�r to ; payment to Developer) during the preceding six-month period in respect ; of the Property and Minimum Improvements constructed by Developer " (the DeveloperTax Increments). Developer recognizes and agrees that i the Developer Economic Development Grants shall be paid solely and �ij only from the incremental taxes collected by City in respect to the 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 u equipment levy, instructional support levy, and any other portion required to be excluded by lowa law, and thus su�h in�remental tax�s h will not include all amounts paid by Developer as regular property taxes. � (b) To fund the Develoner ��on9mic Development�rants, �ity s.h.�l! h certify to the County prior to December 1 of each year, commencing December 1, 2020, its request for the available Developer Tax Increments resulting from the assessments imposed by the County as of January 1 of that year, to be collected by City as taxes are paid during the following fiscal year and which shall thereafter be disbursed to � Developer on November 1 and May 1 of that fiscal year. (Example: If City so certifies by December 1, 2030, the Developer Economic Development Grants in respect thereof would be paid to Developer on November 1, 2031, and May 1, 2032.) (c) The Developer Economic Development Grants shall be payable frcam �r�d ��r�� s�!el�and or�ly��thp nA��el�per T�x ln�rerner�#s�w�� to City that, upon receipt, shall be deposited and held in a special account created for�uch purpose and designated as the Walter I�odge TIF Account of City. City hereby covenants and agrees to maintain its 16 � � G � � � TIF ordinance in force during the term and to apply the incremental taxes collected in respect of the Property and Minimum Improvements � and allocated to the Walter Hodge TIF Account to pay the Developer ' Economic Development Grants, as and to the extent set forth in Section �� 3.2(1) hereof. The Developer Economic Development Grants shall not ;� be payable in any manner by other tax increments revenues or by �j general taxation or from any other City funds. City makes no H representation with respect to the amounts that may be paid to 'I Developer as the Developer Economic Development Grants in any one '� year and under no circumstances shall City in any manner be liable to ; Developer so long as City timely applies the Developer Tax Increments ' actually collected and held in the Walter Hodge TIF Account(regardless 'i of the amounts thereofl to the payment of the Developer Economic j Development Grants to Developer as and to the extent described in this ; Section. (3) City shall be free to use any and all tax increment revenues collected in I respect of other�rop�rties within th� Proj��t Ar�a, �r any a��sl�bl� 9�v�l��r � 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. 'I (4) All of City's obligations under this Agreement, including but not limited ;' to City's obligation to pay the Economic Development Grants to Employer or �� Developer, shall be subject to City having completed all hearings and other � procedures required t9 amend th� �rban Renewal Pla�n to describe the lJrban ; Renewal Project being undertaken in accordance with this Agreement. � 3.3 �ite Pr�p�rati9n, �ity re��rv�s the ri�ht tn ��r�yP the �esi�n an� � specifications for any site preparation work. City shall not remove any dirt from the � Property prior to Closing, to the end that Developer may utilize dirt presently stored 4 on the Property in Developer's grading of the Property. � � SECTION 4. NON-APPROPRIATION / LIMITED SOURCE OF FUNDING. 4.1 Non-Appropriation. (1) 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 �arr�ntl;� bu��e#ed fands, �nd r�ot a gener�! �hfga#i�r� er �tl�pr ir�de�tQ��ss � 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 � �� s � I� 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 ui 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. � �i �. (2) 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 !i future fiscal year, then City shall have no further obligation to Ernployer or j Developer for the payment of any installments due in that future fiscal year j which cannot be paid with the funds then appropriated for that purpose. !,I „ � 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 ii to pay future installments on the Economic Development Grants shall not constitute a legal indebtedness of City within the meaning �f a��y �;�pli��bl� �nn�tifi�ati�nal or I�� 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 Agreerr�ent are determined by a court of competent jurisdiction to create, or result �i 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 I�� 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 t� this �nd th� pr�visions of this '�� Agreement are severable. �, � SECTION 5. COVENANT� OF �IVI��OY�R= � 5.1 Job Creation. During the term of this Agreement, Employer shall comply with � the following employment-related covenants for the Development Property: (1) Employer shall retain twelve (12) fulltime equivalent (FTE) employees at the Facility in Dubuque, lowa, and shall maintain those jobs during the term of this Agreement. It is agreed by the parties that Employer has twelve (12) fulltime equivalent employees (FTE) at 7500 Chavenelle Road in Dubuque, lowa, as of January 1, 2020,which employees will be transferred to the Facility upon completion of the Minimum Improvements. FTE employees shall be calculated by adding fulltime and part-time employees together using 2080 h��rs ��r��ar as a FTE �rn�l�y�e. (a) In the event that the certificate rovided to Cit under Section 5.2 � p Y hereof on October 1, 2030 discloses that Employer does not as of that is ; � k � � N, a i I date have at least twelve (12) FTE employees as provided hereinabove, Employer shall pay to City, promptly upon written demand therefor, an '� amount equal to $43,330.00 per job not created or maintained �� ($519,960 divided by 12 FTE _ $43,330.00). �' �; �� (b) Notwithstanding (a), City retains the right to begin withholding i� semi-annual Employer Economic Development Grant amounts ,� beginning November 1, 2029 if the certificate provided to City under Section 5.2 hereof on October 1, 2029 discloses that Employer as of �� that date has failed to maintain 12 FTE employees at the Facility. City �' shall not withhold in excess of$519,960 (the amount of the Acquisition �� Grant). In the event that #he certificate provided to City under Section 5.2 hereof on October 1, 2030 discloses that Employer does as of that � date have at least Twelve (12) FTE employees (2080 hours per year) �� as provided hereinabove, City shall pay to Developer the amount of the �;i Employer Economic Development Grants withheld under this Section. �� (2) In addition, for the F�� pasiti�n� that �rngl��r f�il� to �reat� ��d !' maintain for any year during the term of this Agreement, the semi-annual �; Employer Economic Development Grants for such year under Section 3.2(1) shall be reduced by the percentage that the number of such positions bears to the total number of positions required to be maintained (12 FTE's) by this � Section 5.1 . (For example, if Developer has 9 FTE employees, the semi- r' annual Economic Development Grants to be paid for that year would be ; reduced to 75% (9/12 employees) of the Tax Increment Revenues received by 7 City). The reduction of the semi-annual Economic Development Grants shall � be the City's sole remedy for the failure of Developer to meet the job creation �'; requirements of this subsection 5.1(2). �i � ,� (3) Employer's job retention obligations under this section terminate on ;; October 1, 2030. Employ�r's pblipati4n �,nc1P� SP�. 5,1('�� ,-�inates if � Employer is in compliance on October 1 , 2030. If Employer is not in � compliance on October 1, 2030, Employer is released once it has paid the j required penalty. � 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 at the Facility 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 def��lt in thP f�alfillmen�t of�ny �f thp term� a�d ��n�+�#��ns of#hes Agreer�ere# and � that no Event of Default (or event which, with the lapse of time or the giving of notice, � or both, would b�come 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 � 19 � 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. Employer's i certification obligations under this Section 5.2 terminate following the final certification on October 1, 2030 (due by October 15, 2030). � 5.3 Books and Records. During the term of this Agreement, Developer and � Employer shall keep at all times proper books of record and account in which full, true � and correct entries will be made of all dealings and transactions of or in relation to the business and affairs of Developer and Employer in accordance with generally � accepted accounting principles consistently applied throughout the period involved, and Developer and Employer shall provide reasonable protection against loss or ; damage to such books of record and account. ; 1 5.4 Real Property Taxes. From and after the Closing Date, Developer shall pay i or cause to be paid, when due and before delinquency, all real property taxes and � assessments �ayable with respect �o all and �ny ��rts of th� Pr��rty �anl��s � Developer's obligations have been assumed by another person pursuant to the � provisions of this Agreement. f� 9 5.5 No Other Exemptions. During the term of this Agreement, Developer agrees ;i 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 i of this Agreement, including those that arise under lowa Code Chapters 404 and 427, � as amended. � � 5.6 Insurance Requirements. �, � (11 D�velop�r �h�ll prpvid� �nd maintain or c��se to he nn�ir�t��nec� �t �II � times during the process of constructing the Minimum Improvements (and, � from time to time at the request of City, furnish City with proof of insurance in the form of a certificate of insurance for each insurance policy): All risk builder's risk insurance, written on a Completed Value Form in an amount equal to one hundred percent (100%) of the replacement value when construction is completed. (2) Upon completion of construction of the Minimum Improvements and up to the Termination Date, Developer shall maintain, or cause to be maintained, at its cost and expense (and from time to time at the request of City shall f��rnish proQf �f ir�s�ara�c� �r? #he fs�rrn �f a certific�te of i�s�ra��e� a!! r�sk property insurance against loss and/or damage to the Minimum Improvements � under an insurance policy written in an amount not less than the full insurable replacement value of Minimum Improvements. The term "replacement value" 20 � shall mean the actual replacement cost of Minimum Improvements (excluding foundation and excavation costs and costs of underground flues, pipes, drains � and other uninsurable items) and equipment, and shall be reasonably determined from time to time at the request of City, but not more frequently � than once every three (3) years. ,; � (3) Developer agrees to notify City immediately in the case of damage � exceeding $200,000.00 in arnount to, or destruction of, the Minimum Improvements or any portion thereof resulting from fire or other casualty. The net proceeds of any such insurance (the 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 � mort a e encumberin ti#le ta th� Pr� ert as its inter��t� rt1� �� e�r a '' 9 9 � p Y �- y , � ) � 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. t 5.7 Preservation of Property. During the term of this Agreement, Developer shall �' maintain, preserve and keep, or cause others to maintain, preserve and keep, � Minimum Improvements in good repair and working order, ordinary wear and tear excepted, and from time to time shall make all necessary repairs, replacements, � renewals and additions. Nothing in this Agreement, however, shall be deemed to � � alter any agreements between Developer or any other party including, witho�at � limitation, any agreements between the parties regarding the care and maintenance of the Development Property. � � 5.8 Non-Discrimination. In carrying out the project, Developer and 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 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 cc�ntract or ��!bcontract, �r thp pr�ceeds th�re�f, for ��ork to b� �sr#�rrv�ed in connection with the project, or in any activity, or benefit therefrom, which is part of y this project at any time during or after such person's tenure. In connection with this obligation, Developer and Employer shall have the right to rely upon the 2� I � representations of any party with whom it does business and shall not be obligated � to perform any further examination into such party's background. il 5.10 Non-Transferabilitv. During the Term of this Agreement, this Agreement may � not be assigned by Developer or Employer nor may any portion of the Development � Property be sold or otherwise transferred by Developer without the prior written consent of City, which consent shall not be unreasonably withheld. City has no obligation to consent to any assignment or sale. I, 5.11 Restrictions on Use. Developer agrees for itself, and its successors and �, assigns, and every successor in interest to the Development Property or any part � thereof that they, and their respective successors and assigns, shall: � (1) Devote the Development 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 Development Property consistent with its current zoning � is in full compliance with the Urban Renewal Plan and Developer agrees to V comply with any amendments to the lJrban F�en�w�l Pl�n,) (,h�wev�r, h Developer shall not have any liability to City to the extent that a successor in � interest shall breach this covenant and City shall seek enforcement of this i� covenant directly against the party in breach of same); and �1 ,� �I (2) Not discriminate upon the basis of race, religion, color, sex, sexual ; orientation, gender identity, national origin, age or disability in the sale, lease, i rental, use or occupancy of the Development Property or any improvements � erected or to be erected thereon, or any part thereof(however, Developer shall � not have any liability to City to the extent that a successor in interest shall ' breach this covenant and City shall seek enforcement of this covenant dir�ctly �i against the party in breach of same). � i; 5,12 Release and Indemnifi�ati9n Coven�r��s, �e�eloper �nd �imnlover �a�-Pe �� the following conditions of release and indemnification, except that each company � only agrees to indemnify the Indemnified Parties (defined below), with respect to the negligence, misrepresentation, or misconduct of their own respective acts. Developer and Employer do not individually agree to any indemnification from conduct of another party. (1) Developer 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 d�rr�age t� �roperty or a�y inj�� t� �r death �f�n;� pers�n occ�rring �# or about or resulting from any defect in the Minimum Improvements. � n 22 � � X (2) Except for any gross negligence, willful misrepresentation or any willful � or wanton misconduct or any unlawful act of the Indemnified Parties, � Developer and Employer agree to protect and defend the Indemnified Parties, now or forever, and further agrees to hold the Indemnified Parties harmless, i 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 or 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 b Agreement); or (2) the acquisition, construction, installation, ownership, and � operation of the Minimum Improvements or (3) the condition of the � Development Property and any hazardous substance or environmental � contamination located in or on the Development Property, caused and , occurring after Developer takes possession of the Development Property. � ; �(3) The Indemnified Parties shall not be liable to Developer or Employer for � any damage or inJury to the per�ons pr �ro�er#y �f ��v�l��r Qr i�� ffic�rs, � agents, 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 'I than any act of negligence on the part of any such Indemnified Party or its �i officers, agents, servants or employees. � !I (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 � (5) The provisions of this Section shall survive the termination of this H Agre�me�t, � 5.13 Compliance with Laws. Developer and Employer shall comply with all laws, rules and regulations relating to its businesses, other than laws, rules and regulations for which the failure to comply with or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, financial or otherwise, of Developer 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 AgrP��nt, any o�� or rncare of the followi�g e�een#s: � 23 � � q � i (1) Failure by Developer to pay or cause to be paid, before delinquency, all � real property taxes assessed with respect to the Minimum Improvements and n the Development Property. q i� r (2) Failure by Developer to cause the construction of the Minimum � Improvements to be commenced and completed pursuant to the terms, � conditions and limitations of this Agreement. i� 'I (3) Transfer of any interest by Developer in any portion of the Development a Property or the Minimum Improvements in violation of the provisions of this ' Agreement. � (4) Failure by Developer or Employer to substantially observe or perform �, any other material covenant, condition, obligation or agreement on its part to � be observed or performed under this Agreement. ,� (5) Failure by Developer to dedicate Parcel B-2 to the City. �j 'i 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, ;j may take any one or more of the following actions after the giving of written notice by �i City to Developer (and the holder of any mortgage encumbering any interest in the �� Property of which City has been notified of in writing) of the Event of Default, but only �� if the Event of Default has not been cured within sixty (60) days following such notice, � or if the Event of Default cannot be cured within sixty (60) days and the Developer N does not provide assurances to City that the Event of Default will be cured as soon �j as reasonably possible thereafter: �� ;I (1) City may suspend its performance underthis Agreement until it receives �� assurances from the Developer, deemed adequate by City, that the Developer I� will cure its def�ult an� c9ntin�� its nerf�r.rnanr.P �,nc�Pr th�� ,��PP�P�t; i' Il (2) Until the Closing Date, City may cancel and rescind this Agreement; � P; (3) City shall be entitled to recover from Developer the sum of all amounts � expended by City in connection with the funding of the Acquisition Grant to � Developer, and City may take any action, including any legal action it deems necessary, to recover such amounts from the Developer; (4) City may withhold the Certificate of Completion; or (5) City may take any action, including legal, equitable or administrative ��tinn, �hich r�a�appear necessary �r desir�ble t� c�!lect ar� payrner#� due under this Agreement or to enforce performance and observance of any � obligation, agreement, or covenant under this Agreement. � � n 24 � � k � tl � � � � � 6.3 Re-vestinq of Title. The parties understand that Title may be re-vested in the � City as specified below; except that no such right shall interfere or upset Employer's �I occupancy of the Development Property during the term of its lease over the � Development Property as a result of an event of default on the part of Developer. h, Developer will deliver a copy of the lease to City at the Closing. ',j ii (1) Re-vestinq Title in Citv Upon Happeninq of Event Subsequent to � Convevance to Developer and Prior to Issuance of Certificate of Completion. �� In the event that, subsequent to conveyance of the Development Property to ;�,' Developer by City and prior to receipt by Developer of the Certificate of Completion, but subject to the terms of the mortgage granted by Developer to i secure a loan obtained by Developer from a commercial lender or other �i financial institution to fund the acquisition of the Property or construction of �� f Minimum Improvements (First Mortgage), an Event of Default under Section �� 6.1 (1) through (4) of this Agreement occurs and is not cured within the times ,! specified in Section 6.2, then Ci#y shall have the right to re-enter and take I, possession of the Development Property and any portion of the Minimum '' improvements thereon and to terminate (and re-vest �n Gity p�r��nt t� th� '' provisions of this Section 6.3 subject only to any superior rights in any holder I��, of the First Mortgage) the estate conveyed by City to Developer, it being the '�i intent of this provision, together with other provisions of this Agreement, that the conveyance of the Development Property to Developer shall be made � upon the condition that (and the Deed shall contam a condition subsequent to the effect that), in the event of default under Section 6.1 {1) through (4) on the � part of Developer and failure on the part of Developer to cure such defaurt '' within the period and in the manner stated herein, City may declare a f termination in favor of City of the title and of all Developer's rights and interests I�, in and to the Development Property conveyed to Developer, and that�uch title h and all rights and interests of Developer, and any assigns or successors in � interests of Developer, and any�assigns or successors in interest to and in the � Development Property, shall revert to City (subject to the provisi�ns of SP�tin�, 6.3 of this Agreement), but only if the events stated in Section 6.1 of this � Agreement have not been cured within the time period provided above, or, if � the events cannot be cured within such time periods, Developer does not 5 provide assurance to City, reasonably satisfactory to City, that the events will be cured as soon as reasonably possible. Notwithstanding the foregoing, � however, City agrees to execute a Subordination Agreement in favor of Developer's first mortgage lender, in a form reasonably acceptable to City and to Developer's first mortgage lender. (2) Re-vestinq Title under Other Circumstances. In the event that, subsequent to the issuance of the Certificate of Completion to Developer but subje�t tc� th� t�rms of th� rrior�ga,ge granted �y ��vel�per t� sec�re a loan obtained by Developer from a commercial lender or other financial institution � to fund the acquisition of the Development F'roperty or construction of Minimum Improvements (First Mortgage), an Event of Default under Section � a q 2s � � � � � , 6.1(5) of this Agreement occurs and is not cured within the times specified in �, Section 6.2, then City shall have the right to re-enter and take possession of ! Parcel B-2 and any portion of the Minimum Improvements thereon and to I terminate (and re-vest in City pursuant to the provisions of this Section 6.3 subject only to any superior rights in any holder of the First Mortgage) the h estate conveyed by City to Developer in Parcel B-2, it being the intent of this ; provision, together with other provisions of this Agreement, that the � conveyance of Parcel B-2 to Developer shall be made upon the condition that (and the Deed shall contain a condition subsequent to the effect that), in the event of default under Section 6.1(5) on the part of Developer and failure on � the part of Developer to cure such default within the period and in the manner li stated herein, City may declare a termination in favor of City of the title and of ;{ all Developer's rights and interests in and to Parcel B-2 conveyed to % Developer, and that such title and all rights and interests of Developer, and j any assigns or successors in interests of Developer, and any assigns or ;', successors in interest to and in Parcel B-2, shall revert to City (subject to the ',; provisions of Section 6.3 of this Agreement), but only if the events stated in i Section 6.1(5) of this ,�greement have not been cured within the t�m� p�ri9� '; provided above, or, if the events cannot be cured within such time periods, Developer does not provide assurance to City, reasonably satisfactory to City, that the events will be cured as soon as reasonably possible. Notwithstanding I,;i� the foregoing, however, City agrees to execute a Subordination Agreement in f, favor of Developer's first mortgage lender, in a form reasonably acceptable to �� City and to Developer's first mortgage lender. li i 6.4 Resale of Reacquired Property; Disposition of Proceeds. Upon the re-vesting � in City of title to the Development Property as provided in Section 6.3 of this �� Agreement, City shall, pursuant to its responsibility under law, use its best effort�, 'i subject to any rights or interests in such property or resale granted to any holder of a First Mortgage, to resell the Property or part thereof as soon and in such manner as '� Cit_v shall find feasible and consistent with the objectives of such I�w and of the Urb�r� � Renewal Plan to a qualified and responsible party or parties (as determined by City in its sole discretion)who will assume the obligation of making or completing Minimum � Improvements or such other improvements in their stead as shall be satisfactory to City and in accordance with the uses specified for such the Property or part thereof in the Urban Renewal Plan. Subject to any rights or interests in such property or proceeds granted to any holder of a First Mortgage upon such resale of the Property the proceeds thereof shall be applied: (1) First, to pay and discharge the First Mortgage; (2) Second, to pay the principal and interest on mortgage(s) created on the Development the Prop�rty, 9r �ny �ortion thereof, �r any itr�pt-oe�en?e�#S thereon, previously acquiesced in by City pursuant to this Agreement. If more � than one mortgage on the Development Property, or any portion thereof, or any improvements thereon, has been previously acquiesced in by City 26 � � � � � � pursuant to this Agreement and insufficient proceeds of the resale exist to pay the principal of, and interest on, each such mortgage in full, then such � proceeds of the resale as are available shall be used to pay the principal of h and interest on each such mortgage in their order of priority, or by mutual ! agreement of all contending parties, including Developer, or by operation of ii law; 4 M II (3) Third, to reimburse City for all allocable costs and expenses incurred ':i by City, including but not limited to salaries of personnel, in connection with � the recapture, management and resale of the Development Property or part � thereof (but less any income derived by City from the Development Property � or part thereof in connection with such management); any payments made or ;� necessary to be made to discharge any encumbrances or liens (except for �� mortgage(s) previously acquiesced in by the City) existing on the Development "I ;7 Property or part thereof at the time of re-vesting of title thereto in City or to ;I discharge or prevent from attaching or being made any subsequent ' encumbrances or liens due to obligations, default or acts of Developer, its ,I, successors or transferees (except with respect to such mortg�aae(s}), any �� expenditures made or obligations incurred with respect to the making or ; completion of the Minimum Improvements or any part thereof on the ;� Development Property or part thereof, and any amounts otherwise owing to ; City (including water and sewer charges) by Developer and its successors or !j transferees; and - I (4) Fourth, to reimburse Developer up to the amount equal to (1) the sum � of the Purchase Price paid to City for the Development Property and (2) the ;. cash actually invested by such party in making any of the Minimum 'y' Improvements on the Development Property. f � (5) To honor the remainder of the lease by Employer of the Property for the � remainder of the lease term. � fl 6.5 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 r 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. 6.6 No Implied Waiver. In the event any agreement contained in this Agreement should be breached by �ny p�r�y �nd th�r��ft�r vvaive� �y any �ther �artv, sach p 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. 27 � � 8 � � II 6.7 Agreement to Pav Attornevs' Fees and Expenses. If any action at law or in li 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 �i recover reasonable attorneys' fees and costs of litigation from the other party. Such !I fees and costs of litigation may be set by the court in the trial of such action or by the li� 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. i! ti �i 6.8 Remedies on Default bv City. If City defaults in the performance of this ; Agreement, Developer 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 or Employer, or to enforce performance and observance of any obligation, agreement, or covenant of � City under this Agreement. Developer or Employer may suspend perFormance under !i this Agreement until it receives assurances from City, deemed adequate by �i Developer or Employer, that City will cure its default and continue its performance I� under�his Aqreement. � � - l; SECTION 7. GENERAL TERMS AND PROVISIONS. � V i� 7.1 Notices and Demands. Whenever this Agreement requires or permits any j' 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: � (1) If to Developer: � �Walter Development, LLC � Attn: Tim Hodae, Managing Member � 7465 Chavenelle Rd � Dubuque, lA 52002 � Phone: (563) 583-9781 With copy to: � Zeke McCartney Reynolds and Kenline, LLP 110 E 9th St Dubuque, IA 52001 Phone: (563) 556-8000 (2) If to Employer: � Duluth Holdings, Inc. 2s � � � � �� ,� � Attn: Chris Teufel, CIO & SVP Supply Chain, Logistics � 201 E. Front Street ; Mt. Horeb, WI 53572 ' Phone: (608) 424-1544 � With copy to: � ;� Mark O'Neill i Godfrey Kahn S.C. ( 833 East Michigan Street, Suite 1800 !I Milwaukee, WI 53202-5615 (414) 287-9233 'i I�,. � (3) If to City: � ( � City Manager 4 50 W. 13th Street j� Dubu�ue, iowa 52001 � Phone: (563) 589-4110 ;% Fax: (563) 589-4149 �� With copy to: �'I City Attorney � Cit Hall " Y { 50 W. 13th Street j Dubuque, lowa 52001 li u or at such other address with respect to any party as that party may, from time to time I� designate in writing and forward to the other as provided in #his Section. II 'il � 7.2 Bindinq Effect. This Agreement shall be binding upon and shall inure to the � benefit of City and Developer 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 on June 1, 2035 (the Termination Date). L � 7.4 Execution By Facsimile. The parties agree that this Agreement may be transmitted among them by facsimile machine. The parties intend that the faxed signatures constitute original signatures and that a faxed Agreement containing the signatures (original or faxed) of all the parties is binding on the parties. 7.5 Memorandum of Development Aqreement. City shall promptly record a � Memorandum of DevelopmentAgreement in the form attached hereto as Exhibit F in the office of the Recorder of Dubuque County, lowa. Developer shall pay the costs �i � 29 � � � for so recording. �� IN WITNESS WHEREOF, City has caused this Agreement to be duly executed � in its name and behalf by i#s Mayor and attested to by its City Cterk �nd Developer � and Emplayer has caused this Agreement to be d�ily executed. a � � CITY OF DUBUQUE, IOWA WALTER DEVELOPMENT, LLC � i � % g u��.e.� ' By: y: � ' Roy D. uol, Mayor Ti odge, Ma�(aging Member ! i � By; �� DULUTH Ht?LDINGS, INC. '� Ke n S. Firnstahl Cify Clerk �lii �� ;�j�(,�� i . . �V. ��=�f(�/�-" �� u Chris Teufel � CIO & SVP 5upply Chain, Logi�tics ;; ; � � ; �� i� � � � 30 � d B � q 1 LIST OF EXHIBITS � i Exhibit A Urban Renewal Plan ; Exhibit B-1 Proposed Plat � Exhibit B-2 Site Exhibit � Exhibit C City Attorney Certificate J Exhibit D Opinion of Counsel to Developer d Exhibit E Deed �I Exhibit F Memorandum of Development Agreement �� Exhibit G City Certificate ' Exhibit H Certificate of Completion 'j Exhibit I Opinion of Counsel to Employer I � �� ,� , 'I ,; �i R h a , ; � � � � I i i I � 31 3E 8 � � EXHIBIT A p URBAN RENEWAL PLAN I, (on file in City Clerk's office, 50 W. 13t"Street, Dubuque, IA 52001) � � ;� � i I� � i � i ; , a a � � ,u II �� 1 � 1 1 I I i I � I i � � 32 � � � � EXHIBIT B-1 � � PROPOSED PLAT � , i i� I' � N li ,� � , � ,� p i� �'� � ji li �i I i i� �� i; I 4 �, �i, I � � � � 33 � � � � d � Index Legend � Lnca[ton: L07 2 OF MCFAppEN FAR�A PLACE No.4 'i' CITY OF�UBUQUE,IOWA � � �1 R Proprietor. CITY OF QIIBUQUE � Re�uestor. CITY OF DLIBUQUE � Surveyor: Surveyor IIW,P.C., 4155 PENN5YLVANIA AVE � Company. bUBUOUE,IOWp 52602-2fi28 � PHONE: (563)556-24&4 Fors FEConoER USE � � _ � y� i � ZV7 Yp i S o mbm� m � z ..,A A � uNimza O ■ � • o� I y, � zz�� "�u�' I o z -�c ... � z o.�+�.o� �- � . I � n ofi a u� ory � � I � � �� 0 4 � � r (Tl i� � p y � o D = ��o� �y�c�cOcm�Az � �mao� x. S VI O O[]Vl-i O �r. I � b � Z m tP�N �\��4�I Z Z O O Z m Gl� � � u' M ��C y�-m��8�� o oc-Ziy� � ��o�n n a�"m�� v �m�om I; 'o, c p �zo �a()�Cy7ACJAN�D� m m m"c '� Oy�� a�'�DZ LZ'AOz �� n t�} a b � h o>omomom 'mz� � � �� '� . ��S hA -�- NPI�,,$�;'SO� 'w�w��'a ~� m � m � � � . ��` o,��jJ 1 116' ��Oq'�$� < � m � �✓� a�� t ��g�ol-w� <"I— � � xti°'� a ,��n � Ij N m =rj y�' r��rA' :z.�W W Q � � ,. ` m� �3 m � � } �� (n f 3 Q rV� �j O b Ubip�W � y -zl ��/�l . 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'�, � �� ;� �� - s� � � _ � ��- ,�� .; � � . � �" �� Yx��€ � ��'`� ��P�� e � s il ��/ ; � '�� '��'�� r �- �� 'g t' 's.( 4: ; �, ` �'�� x�� ,h . ... _� � €>i: tl !t� �'t � , � �� is�¥ �-� i��` � � £ �'h i�i � 4 4 ' � � � P � - � P � � � r ��. � � '�.� '� ��..� � ��. �A�� ,. ��t �� ,, � �i '� . 2`��? �` ��° � �, . - _. I z--*.:h"""� __.�� J - 1" F�' #; I� � —`� � j '3"�yE �� ` � -�".�' '`'s�,�: � "'t r l. �I �.... .� � ,� � `�y:.�, �,.,��. �t��F <1 �-� ��'3 � `r`. �� `13 a-�''�� s'�'�%`�` '� '"� �� w..r>., f: � s`�� t ��.`� .c,��'�.�_,�z3',.�� 45.,...�-'��, �� +. a .� Il � �"� 2=a..�„ �" �� I t ,� I � � "'�:�,x„s�y� '-� �`�,'�'�:ry � �� . I � �� .'a� � �� 3 € � f ... ``�v �� \�,.� � s � �. � � , ro,.��Y� �... � �f ,`t �� s! .. •,,.s�'; � {�I 4 ��. .� � ,�� ,p :�R�—�r-- , 'G � .; . . �� K: '�t �� rn—i �� } I y R1 I ��4 � �� 1 .e:. � ��g�� .�� .� � � .��" 6 �. F y�� >,�" �,� � `�� _�.�. .._.._�_ ' ��y'� t��a .� �� ,� � ` �� '�. ��`��'� ��='� � -�-�-- • � �'t° � ;� �� yk�� _, � ��, 3 � �� ' �� 4 Y � k � �� - �e � . '`� p P pPp � t � �� 1 '1 `Y :j, £5 �, �y '� �� 1 ; .��'� 3 .3 ' }�� _�. � � �� " � � �� ,. '` ay ,:�� ;3 i _ k� s{ 3 � �� !r� +� �k� -� �'^s.: £ 3 Ir .y �� _� �'T , � �� t � � � £��...,,. a +� �. � .�- ,.r�s-�:sn� . s - �tt�;»f �W�ct r �� s � � B .y_ ..... .... � :`��.. �� ,��a� ��"��9��.: �� .�' �P.E!€?EhI�F;�Es'��` ��i' ��$��s n f�� `��x�'; ��*�� sa��n:� g � �"s $ � tri��SiY��s�_�,�sc��-s9� ��e��%a�� i ��c�� 36 � � u e � � EXHIBIT C �', p i; CITY ATTORNEY'S CERTIFICATE '� ii �i ', f� �; � i� Ij fi ,; i u u i! ii �ii �Ij �i � � I�� II il; II I il � N 7 , � , Ii N � i � � � � � 37 � � tl � Barry A.Lindahl,Esq. �.�� ,�� " Senior Counsel Suite 330,Harbar View Place � 300 Main Street �w��► �� '"� Dubuque,Iowa 52001-6944 �� (563)583-4113 office ��'��'��'�� (563)583-1040 far balesc�ncitvoi�luUuque.orQ zoo�•xo�z•zoas I� � 1 � (DATE) � � �� i] RE: �i Dear � i; I have acted as counsel for the City of Dubuque, lowa, in connection with the execution I� and delivery of a certain Development Agreement between �i (Developer) and the City of Dubuque, lowa (City) dated for reference purposes the � day of , 20_. The City has duly obtained all necessary approvals and consents for its execution, delivery and performance of this Agreement and has full power and authority to execute, �i 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 ja , z�i_, are correct. � Very sincerely, � Barry A. Lindahl, Esq. Senior Counsel BAL:tIs � 38 � � � i EXHIBIT D � i OPINION OF DEVELOPER'S COUNSEL � �, i �� i I � � � i !i „ h I� �II I � [ I� j;, i ,i ; j � i �� i{ � � � � � � P � � � � 39 � � � Mayor and City Councilmembers � City Hall 13t" and Central Avenue Dubuque IA 52001 i Re: Development Agreement Between the City of Dubuque, lowa and � � Dear Mayor and City Councilmembers: � �� We have acted as counsel for , (Developer) in connection � with the execution and delivery of a certain Development Agreement (Development � Agreement) between Developer and the City of Dubuque, lowa (City) dated for reference � purposes the day of , 20_. � ,, We have exarnined the original certified copy, or copies otherwise identified to our P; satisfaction as being true copies, of the Development Agreement and such other '�I; docurnent� and record� a� �nre haeee d��rt��d r�l��eant and nec��aey a� a ba�i� for th� �� 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: � ;, I' 1. Developer is a limited liability company organized and existing under the ; laws of the State of and has full power and authority to execute, deliver and perForm in full DevelopmentAgreement. The DevelopmentAgreement 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 6f Developer enforeeable in accordance with its terms, except i as the same may be limited by bankruptcy, insolvency, reorganization or other laws � relating to or affecting creditors' rights generally. ; 2. The execution, delivery and performance by Developer of the Development � Agreement and the carrying out of the terms thereof, will not result in violation of any � provision of, or in default under, the articles of incorporation and bylaws of Developer, any indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree, order, statute, rule, regulation or restriction to which Developer is a party or by which Developer's property is bound or subject. 3. There are no actions, suits or proceedings pending or threatened against or affecting Developer in any court or before any arbitrator or before or by any governmental body in which there is a reasonable possibility of an adverse decision which could materially adversely affect the business (present or prospective), financial position or res�l#s o#'epera#iens of Developer or vvhich in any r�anner raise� any que�#ion� affecting the validity of the Agreement or the Developer's ability to perform Developer's obligations � thereunder. � 40 � � e i � Very truly yours, ' s �� ; u � � � I � � ,�� II i 1 �� u � �: � � ,� lil i; i i� � � � I, i � 9 � � d 41 � � � � � � i EXHIBIT E �� DEED � �; � ii E � ,� �li ;; ,,'� i li �� ;� ;; � ,: ;; �: I�: �� 1 I � � i� � � J � � � � � u � � � � � n � 42 � � � � h � �� i �i �� i Prepared by: Barry A. Lindahi 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: � i �; SPECIAL WARRANTY DEED � 1 KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, lowa, a i municipal corporation of the State of lowa (Grantor), in consideration of the Grantee �h! named below undertaking the obligations of the Developer under the Development !; A�rPem�nt d�scribed b�low and the sarr� of and no/�00 �i uoiiars (� j in hand paid, and o�her goad and vaiva�le considera"tion, and i�, pursuant to the authority of Chapter 403, Code of lowa, does hereby GRANT, SELL AND �' CONVEY unto , an lowa limited liability company (Grantee), the following described parcel(s) situated in the County of Dubuque, State of I; lowa, to wit (the Property): �; �i P � This Deed is exempt from transfer tax pursuant to lowa Code section 428A.2(6). ' 'I ii E� 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 �I and condiiions 'tnereoT, ir any, having been fuitiiied. ,� I� This Deed is being delivered in fulfillment of Grantor's obligations under and is ; subject to all the terms, provisions, covenants, conditions and restrictions contained in � that certain Development Agreement executed by Grantor and Grantee herein, dated the � day of , 20_ (the Agreement), a memorandum of which was recorded � on the day of , 20_, in the records of the Recorder of Dubuque County, � lowa, Instrument Number - � Promptly after completion of the improvements and payment in full of the Purchase Price for the Property 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. �uch certi�ication by �rantor 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 � � 43 � � N completion thereof and pay the Purchase Price for the Property, 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 i 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. i� !I In the event that an Event of Default occurs under the Agreement and Grantee � herein shall fail to cure such default within the period and in the manner stated in the j� f�greement, then Grantor shall have the right to re-en#er and #ake nosse�sion of the i 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 I� Agreement. � �� None of the provisions of the Agreement shall be deemed merged in, affected or li impaired by this Deed. �'' i Grantor hereby covenants to warrant and defend the said premises against the ; lawful claims of all persons whomsoever claiming by, through and under it. ' i Dated this of , 20_ at Dubuque, lowa. CITY OF DUBUQUE IOWA Attest: By: Roy D. Buol, Mayor By: Kevin S. Firnstahl, City Clerk STATE OF IOWA � ) ) SS 44 COUNTY OF DUBUQUE ) On this day ofi , 20_, before me a Notary Public in and for said Count ersonall a eared Ro D. Buol and Kevin S. Firnstahl m � y, p y pp y to e personally � known, who being duly sworn, did say that they are the Mayor and Acting City Clerk, � respectively of the City of Dubuque, lowa, a Municipal Corporation, created and existing under the laws of the State of lowa, and that the seal affixed to the foregoing instrument � is the seal of said Municipal Corporation, and that said instrument was signed and sealed � �� on behalf of said Municipal Corporation by authority and resolution of its City Council and �, said Mayor and Acting City Clerk acknowledged said instrument to be the free act and ; deed of said Municipal Corporation by it voluntarily executed. i i ; Notary �I Public in and for Dubuque County, lowa � h ; �� I,i �, '; � � ; I i � � � i � 45 z B � EXHIBIT F H MEMORANDUM OF DEVELOPMENT AGREEMENT � � ;� !I i I� � � ! i i � I� u ��; �j 9 r � ,; ;; i; !i j I �� Y � n � � � � w � 46 � � I � ; � �i I 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 N A Development Agreement by and among the City of Dubuque, lowa, an lowa � municipal corporation, of Dubuque, lowa, and � � �N.:4L�ER C�El��L�PNl�NT, LLC � ;l G' was made regarding the following described premises: � , ;I � � r The Development Agreement is dated for reference purposes the day of � , 20_, and contains covenants, conditions, and restrictions concerning the � sale and use of said premises. � This Memorandum of Development Agreement is recorded for the purpose of � G: constructive notice. In the event of any conflict between the provisions of this �I Memorandum and the Development Agreement itself, executed by the parties, the terms � an� rrrJ�:!�:L�n� ^f tha f1a��L�^rn,!??ent ��rrAemon� chull Nro��u��. � �.^.�''3h,lo±o .^.^u�'3.o""�Gi': ^�,f the Development Agreement, together with any amendments thereto, is in the possession , of the City of Dubuque and may be examined at its offices as above provided. Dated this day of , 20_. CITY OF DUBUQUE, IOWA By: Roy D. �uol, Nl�y�r � By: 47 � i � � � Kevin S, Firnstahl, City Clerk � ,1 ; STATE OF IOWA �, : ss: ,� DUBUQUE COUNTY ';; �i i On this day of , 20_, before me, a Notary Public in and for the State of f; 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 il existing under the laws of the State of lowa, and that the seal affixed to said instrument a is the seal of said Municipal Corporation and that said instrument was signed and sealed I� on behalf of said Municipal corporation by authority and resolution of its City Council and ;i said Mayor and Gity Clerk acknowledged said instrument to be the free act and deed of 'I said Municipal Corporation by it voluntarily executed. I �; ,, � `i Notary Public, State of lowa 'ij �� , � ''i I ii STATE OF IOWA �' : ss: DUBUQUE COUNTY Ii� I' �� On this dav of . 20 . before me. a Notary Public in and for the �� State of lowa, in and for said county, personally appeared � � to me personally known, who being by me duly sworn did say that they are the � � V and that said instrument was signed on behalf of said company by authority of its � members and that they acknowledged the execution of this instrument to be the voluntary act and deed of said company by it voluntarily executed. No#ary Public, State af lowa � � � � N 48 �' � � 6 ,ryl EXHIBIT G � CITY CERTIFICATE i _ � ,, �� I� �j i f �i �� i � � � ; 'h I� �; ; i � � � d �� E i i � � � � 49 � � � i � ��.� ,�� City Manager's Office �K��Y�� Ciry Hall �.,,�...,M..,.... 50 West 13'h Street � �Y Dubuque,Iowa 52001-4864 � � (563)589-4110 office (563)589-4149 fax � � ctymgr@cityofdubuque.org � N1�sterpiece orc t]�e.Mississippi �� (DATE) 1 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 �i (Developer) and the City of Dubuque, lowa (City) dated for reference purpo�e� the day of , 20_. l :; On behalf of the City of Dubuque, I hereby represent and warrant to Developer that: j �� !� (1) There is no action, suit or proceeding pending, or to the best of City's � �; knowledge, threatened against City which might result in any adverse change in the Property being conveyed or the possession, use or enjoyment thereof by i Developer, including, but not limited to, any action in condemnation, eminent I domain or public taking. : (2) No ordinance or hearing is now or before any local governmental body that � either contemplates or authorizes any public improvements or special tax levies, � the cost of which may be assessed against the Property. To the best of City's knowledge, there are no plans or efforts by any government agency to widen, modify, or re-align any street or highway providing access to the Property and there ' are no pending or intended public improvements or special assessments affecting the Property which will result in any charge or lien be levied or assessed against the Property. (3) All leases, contracts, licenses, and permits between City and third parties in connection with the maintenance, use, and operation of the Property have been provided to Developer and City has provided true and correct copies of all such � documents to Developer. (4) City has good and marketable fee simple title interest in the Property. . (5) The Property has a permanent right of ingress or egress to a public roadway � for the use and enjoyment of the Property. so N (6) There are no notices, orders, suits,judgments or other proceedings relating to fire, building, zoning, air pollution, health violations or other matters that have not been corrected. City has notified Developer in writing of any past notices, '', orders, suits, judgments or other proceedings relating to fire, building, zoning, air u pollution or health violations as they relate to the Property of which it has actual notice. The Property is in material compliance with all applicable zoning, fire, �hJ building, and health statutes, ordinances, and regulations. The Property is II currently zoned PUD and Developer's intended use of the Property as a corporate P office/industrial facility is a permitted use in such zoning classification. � , (7) Payment has been made for all labor or materials that have been furnished i' to the Property or will be made prior to the Closing Date so that no lien for labor ; performed or materials furnished can be asserted against the Property. � (8) The Property will, as of the Closing Date, be free and clear of all liens, '� security interests, and encumbrances. � ;; (9) `fh� exeeu�i�r�, d�iiv�ry �nd per�ormance oT this Aqreement and the � consummation of the transactions contemplated by this Agreement do not and ;I shall not result in any material breach of any terms or conditions of any mortgage, il bond, indenture, agreement, contract, license, or other instrument or obligation to � which City is a party or by which either the City or the Property being conveyed are li 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 i City or the Property being conveyed may be subject. � (10) City has duly obtained all necessary approvals and consents for its �� execution, delivery and performance of this Agreement, and has full power and � authority to execute, deliver and perform its obligations under this Agreement. � City's attorne_y shall issue a legal opinion to Developer at time of closinq confirming � the representation contained herein, in the form attached hereto as Exhibit C. � � (11) The Property is free and clear of any occupants, and no party has a lease � to or other occupancy or contract right in the Property that shall in any way be binding upon the Property or Developer. (12) City represents and warrants that any fees or other compensation which may be owed to a broker engaged directly or indirectly by City in connection with the purchase and sale contemplated in this Agreement are the sole responsibility and obligation of City and that City will indemnify Developer and hold Developer harmless from any and all claims asserted by any broker engaged directly or indirectly b_y City for any fees or other compensation related to the subject matter of this Agreement. si � � a (13) City shall exercise its best efforts to assist with Developer in the `� development process. 4 � (14) City shall exercise its best efforts to resolve any disputes arising during the � development process in a reasonable and prompt fashion. � (15) With respect to the period during which City has owned or occupied the 1 Property, and to City's knowledge after reasonable investigation with respect to � the time before City owned or occupied the Property, no person or entity has 'I caused or permitted materials to be stored, deposited, treated, recycled, or , disposed of on, under or at the Property, which materials, if known to be present, � would require cleanup, removal or some other remedial action under i environmental laws. �' �� (16) All city utilities necessary for the development and use of the Property as an � industrial manufacturing facility adjoin the Property and Developer shall have the ' I�' right to connect to said utilities, subject to City's connection fees. � � i (17) The representations and warranties contained in this article shall be correct ,� in all respects on and as of the Closing Date with the same force and effect as if ;, such representations and warranties had been made on and as of the Closing jj Date. � j ;� i Sincerely, � � �� Michael C. Van Milligen � City Manager � � MCVM:jh � ! � � � s2 � w EXHIBIT H CERTIFICATE OF COMPLETION � ! � � i II h � � N E � h 1 i !� � � � � � I � a � 53 � I i,� i Prepared By: Barry A. Lindahl, 300 Main Street, Suite 330, Dubuque, IA 52001 (563) 583-4113 ;� Return to: Barry A. Lindahl, 300 Main Street, Suite 330, Dubuque, IA 52001 (563)583-4113 ' '�I CERTIFICATE OF COMPLETION �� ' �l WHEREAS, the City of Dubuque, lowa, a municipal corporation (the "Grantor"), by i� a Special Warranty Deed (the "Deed") recorded on [Date] as Instrument Number [Insert �� Number] in the office of the County Recorder of Dubuque County, State of lowa, has � conveyed to Walter Development, LLC (the "Grantee"), in accordance with a ; Development Agreement dated as of[Date], by and among the Grantor, and the Grantee ; (collectively, the "Agreement"), certain real property located within the Dubuque Industrial �''' Center Economic Development District of the Grantor and as more particularly described '� �� f�ll��: '� « �, 'I (the Property ); and WHEREAS said Deed incor orated an i;' , p d contained certain covenants and i; conditions with respect to the development of the Property, and obligated the Grantee to construct certain Minimum Improvements and pay for the Property in accordance with the Agreement; and � i, WHEREAS, the Grantee has to the present date performed said covenants and �i conditions insofar as they relate to the construction of the Minimum Improvements and ;� payment for the Property in a manner deemed sufficient by the Grantor to permit the � execufion ana recording of this certification; and � I� NOW, THEREFORE, pursuant to Section 2.4 of the Agreement, this is to certify ,� that all covenants and conditions of the Deed and the Agreement with respect to the �I) obligations of the Grantee, and its successors and assigns, to construct the Minimum � Improvements on the Property and pay for the same have been completed and performed by the Grantee to the satisfaction of the Grantor and such covenants and conditions are hereby terminated. The 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 of said Deed and the Agreement which would have resulted in a for�eiture by the Grantee and right of the Grantor to re-enter and take possession of � the Property as set forth in said Deed and the Agreement if such covenants and conditions s had not been satisfied, and that said Deed and the Agreement shall otherwise remain in � full force and effect. � � 54 � � R H G � � CITY OF DUBUQUE, IOWA � � ; , By: � Michael C. Van Milligen, City Manager � STATE OF IOWA ) � ) SS i COUNTY OF DUBUQUE ) ; ; On this day of , 20 , before me, the undersigned, a Notary Public in and for the State of lowa, personally appeared Michael C. Van Milligen, to me f personally known, who, being by me duly sworn, did say that he is the City Manager of �; �he Ci�yo u� Dubuque, 1owa, a municipai corporation, and that the instrument was signed �� on behalf of the corporation, and Michael C. Van Milligen acknowledged the execution of j the instrument to be his voluntary act and deed. ;� ; il Notary Public in and for said State � � ! f � � � � 55 � � ,� EXHIBIT I � OPINION OF EMPLOYER'S COUNSEL i ;�� , � I ,� '�� '; �I� I i �� i i ;i � �I j �i G' I' �� ; � a � � � 56 � � � � Mayor and City Councilmembers � City Hall 13t" and Central Avenue � Dubuque IA 52001 � I! Re: Development Agreement Between the City of Dubuque, lowa and I'G � � Dear Mayor and City Councilmembers: � � We have acted as counsel for Duluth Holdings, Inc, (Employer) in connection with �'� the execution and delivery of a certain Development Agreement (Development �� Agreement) among Walter Development, LLC Developer, Duluth Holdings, Inc. and the , City of Dubuque, lowa (City) dated for reference purposes the day of , ,; 20_ �� li We have examined the original certified copy, or copies otherwise identified to our I;I �� iti�fa�c�ion �i� k��ing tra� c��i�s, of th� D�v�loprnent Agree�rue�# and s�ch o#her � doc�ri�e�n�5 and �ecords �s we i�ave deemed reievant an� necessary as a �asis for the ',� opinions set forth herein. �; �; b, Based on the pertinent law, the foregoing examination and such other inquiries as � we have deemed appropriate, we are of the opinion that: ,i 1. Employer is a corporation organized and existing undertheJaws ofthe State �' of and has full power and authority to execute, deliver and perform in full � Development Agreement. The Development Agreement has been duly and validly ' authorized, executed and delivered by Employer and, assuming due authorization, '� execution and delivery by City, is in full force and effect and is valid and legally binding �I 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 � u�vv�ii�iy vr�uiivi�� ri�4ii� �Qi�i��aiiy. � N 2. 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, i statute, rule, regulation or restriction to which Employer is a party or by which Employer's � property is bound or subject. 3. 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 possibility of an adverse decision which could materially adv�rsely aff��t th� b�asine�� present or �rosp�ctive), fir�ancia! position or ° results of operations of Employer or which in any manner raises any questions affecting � the validity of the Agreement or the Employer'� ability to perform Employer'� obligations thereunder. s� � p � � Very truly yours, � i � i il� I �, Il �, �� I! , �; i� ,� I r I�� , � � , � � { I li j I u � ir q � 50