Proposed DA with Setzer Properties DBQ, LLC and sale of City-owned real estate_InitiateCity of Dubuque
City Council Meeting
Copyrighted
October 18, 2021
Items to be set for Public Hearing # 2.
ITEM TITLE: Setting a Public Hearing at a Special City Council Meeting on November
22, 2021, on a Proposed Development Agreement by and between the
City of Dubuque, and Setzer Properties DBQ, LLC providing for the
Sale of City -owned Real Estate to Setzer Properties DBQ, LLC
Pursuant to the Development Agreement
SUMMARY: City Manager recommending City Council set a public hearing at a
special City Council meeting on November 22, 2021, on a proposed
Development Agreement by and among the City of Dubuque and Setzer
Properties DBQ, LLC providing for the sale of city -owned real estate to
Setzer Properties DBQ, LLC. Setzer Properties DBQ, LLC will be
leasing the facility to Fed Ex Ground.
RESOLUTION (1) Approving the minimum requirements, competitive
criteria, and offering procedures for the development and the sale of
certain real property and improvements in The Dubuque Industrial Center
West Urban Renewal District; (2) Determining that the offer to purchase
submitted by Setzer Properties DBQ, LLC satisfies the offering
requirements with respect to the real property and improvements and
declaring the intent of The City Council to approve the sale to Setzer
Properties DBQ, LLC in the event that no competing proposals are
submitted; and (3) Soliciting competing proposals
SUGGESTED Receive and file; Adopt Resolution(s), Set for Public Hearing for
DISPOSITION: November 22, 2021 Suggested Disposition:
ATTACHMENTS:
Description Type
Setzer Properties Resolution Setting Public Hearing on City Manager Memo
Development Agreement-MVM
Memo Staff Memo
Resolution Resolutions
Development Agreement Supporting Documentation
Memo to Buol requesting special CC meeting Supporting Documentation
THE CITY OF
Dubuque
DUB TEE
All -America City
Masterpiece on the Mississippi
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TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Resolution Setting a Public Hearing at a Special City Council Meeting on
November 22, 2021, on a Proposed Development Agreement by and
between the City of Dubuque, and Setzer Properties DBQ, LLC providing
for the Sale of City -owned Real Estate to Setzer Properties DBQ, LLC
Pursuant to the Development Agreement
DATE: October 14, 2021
Economic Development Director Jill Connors recommends the City Council set a public
hearing at a special City Council meeting on November 22, 2021, on a proposed
Development Agreement by and among the City of Dubuque and Setzer Properties
DBQ, LLC providing for the sale of city -owned real estate to Setzer Properties DBQ,
LLC. Setzer Properties DBQ, LLC will be leasing the facility to FedEx Ground.
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
Cori Burbach, Assistant City Manager
Jill M. Connors, Economic Development Director
Dubuque Economic Development
Department
THE CITY OF "
50 West 13th Street
All -A erill Dubuque, Iowa 52001-4864
DUB r"T1111.
Office (563) 0-667 93
1 ' TTY (563) 690-6678
http://www.cityofdubuque.org
2007*2012.2013
Masterpiece on the Mississippi 2017*2019
TO: Michael C. Van Milligen, City Manager
FROM: Jill M. Connors, Economic Development Director
SUBJECT: Resolution Setting a Public Hearing on a Proposed Development
Agreement by and between the City of Dubuque, and Setzer
Properties DBQ, LLC providing for the Sale of City -owned Real
Estate to Setzer Properties DBQ, LLC Pursuant to the Development
Agreement
DATE: October 15, 2021
INTRODUCTION
This memorandum is a request for the City Council to adopt the attached resolution
setting a public hearing at a special City Council meeting for November 22, 2021 on a
proposed Development Agreement by and among the City of Dubuque and Setzer
Properties DBQ, LLC providing for the sale of city -owned real estate to Setzer
Properties DBQ, LLC.
BACKGROUND
Beginning in March 2021, the City and Greater Dubuque Development were
approached by several real estate companies expressing interest in property in the
Dubuque Industrial Center West at the north end of Innovation Drive. They mentioned
their client was seeking a 25-acre parcel for a 250,000 sq. ft. industrial facility. They
wouldn't disclose the client but said they had an operation in Dubuque currently and that
it is a Fortune 100 company. In June 2021 Greater Dubuque Development received an
offer from one of these real estate companies on behalf of its client, which was
forwarded to City staff. In this letter of proposed terms, the City was introduced to the
client's development partner — Setzer Properties — and the client was identified as
FedEx Ground.
DISCUSSION
Setzer Properties DBQ, LLC (Setzer) proposes to acquire 34.265 acres of City -owned
land at the north end of Innovation Drive to accommodate the construction of a 215,000
square foot facility at an investment of approximately $22,500,000.
The key elements of the Development Agreement include the following:
1. The purchase price is $5,144,588: $150,000 per acre, plus $4,838 for a
sanitary sewer easement for 34.265 acres.
2. The property will be conveyed on or before November 29, 2021.
3. The Developer must construct a building of not less than 215,000 square feet
with a cost of approximately $22,500,000.
4. After the building is constructed, Setzer Properties DBQ, LLC. will lease the
property to FedEx Ground Package System, Inc.
5. Setzer agrees to pay for 100% of needed improvements to Innovation Drive
(including the intersection of Innovation Drive and Chavenelle Road) and 50%
of the cost of any improvements on Seippel Road and Chavenelle Road that
are identified in an agreed -upon traffic study and required by City.
Additional terms and conditions of the disposition of the property are included in the
attached Development Agreement.
The developer and Fed Ex are receiving no city incentives for this project. The city is not
providing a land discount or Tax Increment Financing rebates. Although not required by
the Development Agreement, FedEx Ground Package System, Inc. has stated its intent
to maintain its current 135 full-time employees and to create at least 10 jobs by January
1, 2024.
The procedure for the disposition of this urban renewal property includes additional
requirements not required for other development agreements. Iowa Code § 403.8(2)(a)
provides that a municipality may dispose of real property in an urban renewal area to
private persons only under reasonable "competitive bidding procedures." A municipality,
by public notice by publication in a newspaper having a general circulation in the
community, thirty days prior to the execution of a contract to sell, lease or otherwise
transfer real property, and prior to the delivery of an instrument of conveyance with
respect to the real property, may invite proposals from and make available all pertinent
information to any persons interested in undertaking to redevelop or rehabilitate an
urban renewal area, or a part of the area. The notice must identify the area, or portion of
the area, and must state that proposals must be made by those interested within thirty
days after the date of publication of the notice, and that further information available
may be obtained at the office designated in the notice. The municipality must consider
all redevelopment or rehabilitation proposals, and the financial and legal ability of the
persons making the proposals to carry them out, and the municipality may negotiate
with any persons for proposals concerning the purchase, lease or other transfer of real
property acquired by the municipality in the urban renewal area. The municipality may
accept the proposal it deems to be in the public interest and in furtherance of the
purposes of the urban renewal law. However, a notification of intention to accept the
proposal must be filed with the governing body not less than thirty days prior to the
acceptance. Thereafter, the municipality may execute a contract and may deliver deeds,
leases and other instruments and may take all steps necessary to effectuate the
contract.
The attached resolution is intended to comply with those requirements.
RECOMMENDATION/ ACTION STEP
I recommend the City Council adopt the attached resolution setting a November 22,
2021 public hearing at a special City Council meeting on the Development Agreement
providing for the sale of city -owned property to Setzer Properties DBQ, LLC.
Prepared by: Barry A. Lindahl 300 Main Street Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Dubuque IA 52001 563 583-4113
OFFICIAL NOTICE RESOLUTION NO. 361-21
RESOLUTION (1) APPROVING THE MINIMUM REQUIREMENTS, COMPETITIVE
CRITERIA, AND OFFERING PROCEDURES FOR THE DEVELOPMENT AND THE
SALE OF CERTAIN REAL PROPERTY AND IMPROVEMENTS IN THE DUBUQUE
INDUSTRIAL CENTER WEST URBAN RENEWAL DISTRICT; (2) DETERMINING
THAT THE OFFER TO PURCHASE SUBMITTED BY SETZER PROPERTIES DBQ,
LLC SATISFIES THE OFFERING REQUIREMENTS WITH RESPECT TO THE REAL
PROPERTY AND IMPROVEMENTS AND DECLARING THE INTENT OF THE CITY
COUNCIL TO APPROVE THE SALE TO SETZER PROPERTIES DBQ, LLC IN THE
EVENT THAT NO COMPETING PROPOSALS ARE SUBMITTED; AND (3)
SOLICITING COMPETING PROPOSALS
Whereas, the City Council of Dubuque, Iowa, did on September 20, 2021 adopt an
Amended and Restated Urban Renewal Plan for the Dubuque Industrial Center West
Urban Renewal District ("the Plan") for the Urban Renewal Area described therein; and
Whereas, the Plan provides, among other things, for the disposition of properties
for private development purposes as a proposed economic development action; and
Whereas, Setzer Properties DBQ, LLC ("Developer") has submitted to the City a
proposal in the form of an offer to purchase (the "Development Agreement') for the
purchase of certain City -owned real property hereinafter described ("the Property"), which
Development Agreement proposes the Developer will undertake the construction of a
building to be located north of Innovation Drive in the City of Dubuque, Iowa, as described
therein, which Property is the real estate consisting of approximately 34.265 acres shown
on Exhibit A, and which Development Agreement requests that this Property be made
available for sale as rapidly as possible; and
Whereas, to establish reasonably competitive bidding procedures for the
disposition of the Property in accordance with the statutory requirements of Iowa Code
Chapter 403, specifically, Section 403.8, and to assure that the City extends a full and fair
opportunity to all developers interested in submitting a proposal, a summary of
submission requirements and minimum requirements and competitive criteria for the
Property offering is included herein; and
Whereas, said Developer has signed a Development Agreement with the City,
currently on file at the Office of the City Clerk; and
Whereas, to recognize both the firm proposal for sale of the Property and
improvements already received by the City in the form of the Development Agreement,
as described above, and to give full and fair opportunity to other developers interested in
submitting a proposal for the sale and development of the Property, this Council should
by this Resolution:
1) Set the fair market value of the Property for uses in accordance with the
Plan;
2) Approve the minimum requirements and competitive criteria included
herein;
3) Approve as to form the Development Agreement;
4) Set a date for receipt of competing proposals and the opening thereof;
5) Declare that the proposal submitted by Developer satisfies the minimum
requirements of the offering, and that in the event no other qualified proposal is
timely submitted, that the City Council intends to accept such proposal and
authorize the City Manager to sign the Development Agreement;
6) Approve and direct publication of a notice to advise any other person of the
opportunity to compete for sale of the Property on the terms and conditions set
forth herein; and
7) Declare that in the event another qualified proposal is timely submitted and
accepted, another and future notice will be published on the intent of the City to
enter into the resulting contract, as required by law;
and
Whereas, the City Council believes it is in the best interest of the City and the Plan
to act as expeditiously as possible to sell the Property as set forth herein.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the Property shown on Exhibit A shall be offered for sale in
accordance with the terms and conditions contained in this Resolution.
Section 2. That it is hereby determined that to qualify for consideration for
selection, any person must submit a proposal which meets these minimum requirements:
1) Contains an agreement to purchase the Property, shown on Exhibit A, at
not less than fair market value, which for the purposes of this resolution is hereby
determined to be $5,139,750.00 and $4838.00 for required easements for a total
purchase price of $5,144,588.00;
2) States the number of square feet of commercial/industrial space that will be
created in the proposal's project;
3) Sets out or provides to the satisfaction of the City Council the experience of
the principals and key staff who are directly engaged in the performance of contract
obligations in carrying out projects of similar scale and character; and
4) Meets, at a minimum, the terms and conditions of the Development
Agreement submitted by the Developer including an agreement to construct not
less than Two Hundred Fifteen Thousand (215,000) square feet of floor space
along with the necessary site work, machinery, and equipment at an estimated
cost of approximately Twenty -Two Million Five Hundred Thousand Dollars
($22,500,000);
(1) Developer shall construct at its sole expense the sanitary sewer as
generally shown on Development Agreement Exhibit I;
(2) Developer shall install at its sole expense a 16" water main as generally
shown on Development Agreement Exhibit K;
(3) Developer shall grant to City a right of way and public utility easement over
the cul-de-sac area as shown on Development Agreement Exhibit J;
(4) Developer shall provide for the lease of the property to a tenant with 135
full-time employees as of the date of the Agreement and with the intent to create
at least ten (10) full-time employees in the City of Dubuque, Iowa, by not later than
January 1, 2024.
Section 3. That the Development Agreement by and between the City and the
Developer be and is hereby approved as to form for the purposes hereinafter stated.
Section 4. That for the purpose of defining the offering of the Property for sale,
said Development Agreement shall be deemed to be illustrative of the terms acceptable
to the City with respect to:
1) Timely completion of the construction project;
2) Construction of minimum improvements;
3) Developer and City obligations; and
4) General terms and conditions.
Section 5. That the Development Agreement submitted by the Developer
satisfies the requirements of this offering and, if no other qualified proposals are timely
submitted, that the City Council intends to accept and approve the Development
Agreement.
Section 6. That it is hereby determined that the Developer possesses the
qualifications, financial resources and legal ability necessary to purchase the Property
shown on Exhibit A and to construct, manage and operate the site in the manner proposed
by this offering in accordance with the Plan.
Section 7. That the City Clerk shall receive and retain for public examination the
attached Development Agreement submitted by the Developer and, in the event no other
qualified proposals are timely submitted, shall resubmit the Development Agreement to
the City Council for final approval and execution upon expiration of the notice hereinafter
prescribed.
Section 8. That the action of the City Council be considered to be and does
hereby constitute notice to all concerned of the intention of this Council, in the event that
no other qualified proposals are timely submitted, to accept the proposal of the Developer
to purchase the Property shown on Exhibit A and to approve the Development Agreement
by and between City and Developer.
Section 9. That the official notice of this offering and of the intent of the City, in
the event no other qualified proposals are timely submitted, to approve the Development
Agreement, shall be a true copy of this Resolution, but without the attachments referred
to herein.
Section 10. That the City Clerk is authorized and directed to secure immediate
publication of said official notice in the Telegraph Herald, a newspaper having a general
circulation in the community, by publication of the text of this Resolution on or before the
22nd day of October, 2021.
Section 11. That written proposals for the sale of the Property shown on Exhibit
A will be received by the City Clerk at or before 10:00 a.m., November 22, 2021, in the
Office of the City Clerk, located on the first floor at City Hall, 50 West 13th Street,
Dubuque, Iowa 52001. Each proposal will be opened at the hour of 10:00 a.m. in City
Hall, Dubuque, Iowa on November 22, 2021. Said proposals will then be presented to the
City Council at 6:30 p.m., November 22, 2021, at a meeting to be held in the City Council
Chambers, Historic Federal Building at 350 West 6th Street, Dubuque, Iowa.
Section 12. That the method of offering the Property for sale as set forth herein
is in substantial conformance with the provisions of Iowa Code Section 403.8, requiring
reasonable competitive bidding procedures as are hereby prescribed and "fair value."
Section 13. That the required documents for the submission of a proposal shall
be in substantial conformity with the provisions of this Resolution.
Section 14. That the City Clerk is hereby nominated and appointed as the agent
of the City of Dubuque, Iowa, to receive proposals for the sale of the Property on that date
and according to the procedure hereinabove specified for receipt of such proposals and
to proceed at such time to formally acknowledge receipt of each of such proposal by
noting the receipt of same in the Minutes of the Council; that the City Manager is hereby
authorized and directed to make preliminary analysis of each such proposal for
compliance with the minimum requirements established by this Council hereinabove. For
each proposal that satisfies these requirements, the City Council shall judge the strength
of the proposal by the competitive criteria established hereinabove. The City Council shall
then make the final evaluation and selection of the proposals.
Section 15. If, and only if, competing proposals are received and determined by
the Council to meet the minimum requirements described herein, the Developer shall be
allowed to amend its proposal in response thereto and to deliver same to the City
Manager, by no later than a date determined by the City Council. In such event, the
Council shall schedule a subsequent meeting to be held by the City Manager at which
there shall be a bid -off conducted by the City Manager. During such bid -off, each
competing bidder shall bid against the other, starting with the second proposal received
and continuing until each bidder shall decline to improve its proposal to acquire and
redevelop the Property shown on Exhibit A in response to the last bid of the other bidder
or bidders. The period to be allowed for such bid -off shall be determined by the City
Manager. The rules of such bid -off shall be as determined by the City Manager at or
before such bid -off period and shall be absolute.
Section 16. That in the event another qualified proposal is timely submitted and
accepted by the City, another and further notice shall be published of the intent of the City
of Dubuque, Iowa, to enter into the resulting agreement, as required by law.
Passed, approved and adopted this 18th day of October, 2021
Roy D. 1311, Mayor
Attest:
Adrienne N. Breiffelder, City Clerk
EXHIBIT A
THE PROPERTY
DEVELOPMENT AGREEMENT
BY AND AMONG
THE CITY OF DUBUQUE, IOWA,
AND
SETZER PROPERTIES DBQ, LLC
This Agreement, dated for reference purposes the day of ,
2021, by and among the CITY OF DUBUQUE, IOWA, a municipality (City), established
pursuant to the Iowa Code and acting under authorization of Iowa Code Chapter 403, as
amended (Urban Renewal Act), and SETZER PROPERTIES DBQ, LLC, a Delaware
limited liability company (Developer).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City has
undertaken an Urban Renewal Project as described herein (the Project) to advance the
community's ongoing economic development efforts; and
WHEREAS, the Project is located within the Dubuque Industrial Center Economic
Development District (the Project Area); and
WHEREAS, as of the date of this Agreement there has been prepared and
approved by City an Urban Renewal Plan for the Project Area consisting of the Urban
Renewal Plan for the Dubuque Industrial Center Economic Development District,
approved by the City Council of City on May 2, 1988, and as subsequently amended
through and including the date hereof (the Urban Renewal Plan) 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 has requested that City sell to Developer 33.015 acres
legally described as follows:
LOT 2 DUBUQUE INDUSTRIAL CENTER NORTH THIRD ADDITION in
the City of Dubuque, Iowa (Parcel A)
And 1.25 acres, described herein as:
That part of LOT C DUBUQUE INDUSTRIAL CENTER NORTH THIRD
ADDITION in the City of Dubuque, Iowa shown on Exhibit B-2 and
described in Exhibit B-3 (Parcel B)
Parcel A and Parcel B being referred to collectively as the Property, with all easements,
tenements, hereditaments, and appurtenances belonging thereto so that Developer may
develop the Property, located in the Project Area, for the construction, use, and
10132021ba1
occupancy of an industrial building (the Facility) as described herein in accordance with
the uses specified in the Urban Renewal Plan and Developer agrees to comply with any
amendments to the Urban Renewal Plan, in accordance with this Agreement; and
WHEREAS, Developer will undertake the construction of the Facility on the
Property; and
WHEREAS, Developer and FedEx Ground Package System, Inc. (Tenant) have
entered into an agreement for the construction of the Facility; and
WHEREAS, Tenant will lease the Facility from Developer (the Lease) and employ
employees as provided herein; and
WHEREAS, Developer will make a capital investment in building improvements,
to construct the Facility, all of the foregoing referred to herein as the Project; and
WHEREAS, City believes that the Project and the development of the Property
pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital
and best interests of City and in accord with the public purposes and provisions of the
applicable federal, state and local laws and the requirements under which the Project has
been undertaken and is being assisted.
NOW, THEREFORE, in consideration of the promises and the mutual obligations
of the parties hereto, each of them does hereby covenant and agree with the others as
follows:
SECTION 1. CONVEYANCE OF PROPERTY TO DEVELOPER.
1.1 Purchase Price. The Property consists of two separately identified parcels,
referred to herein and in Exhibit B-2 as Parcel A and Parcel B totaling 34.265 acres.
(1) The purchase price for Parcel A (the Parcel A Purchase Price) shall be One
Hundred Fifty Thousand Dollars ($150,000) per acre for 33.015 acres for a total
Parcel A Purchase Price of Four Million Nine Hundred Fifty -Two Thousand Two
Hundred Fifty Dollars ($4,952,250).
(2) The purchase price for Parcel B (the Parcel B Purchase Price) shall be One
Hundred Fifty Thousand Dollars ($150,000) per acre for 1.25 acres for a total
Parcel B Purchase Price of One Hundred Eighty -Seven Thousand Five Hundred
Dollars ($187,500). Developer shall have prepared and shall be prepared to
record at Closing a plat of survey of Parcel B acceptable to City (the "Plat"),
including the location and depiction of all applicable easements and other
substantial improvements. Developer and City agree that upon approval of the
Plat, this Agreement will be amended to include the legal description of Parcel B
and the Parcel B Purchase Price. The actual Parcel B Purchase Price shall be
adjusted based on the acreage of Parcel B as shown on the Plat and paid to City
within thirty (30) days of receipt of a statement therefore from City. City will deliver
to Developer a correction Special Warranty Deed showing the legal description for
Parcel B.
(3) The purchase price for the easement described in Section 2.1(3) shall be
$4,838.00 (the Easement Purchase Price)
(4) The total purchase price shall be the sum of the Parcel A Purchase Price
and the Parcel B Purchase Price and the Easement Purchase Price (the Total
Purchase Price) of Five Million One Hundred Forty -Four Thousand Five Hundred
Eighty -Eight Dollars ($5,144,588) which shall be due and payable by Developer in
immediately available funds in favor of City, on or before October 29, 2021, or on
such other date as the parties may mutually agree (the Closing Date).
1.2 Title to Be Delivered. City agrees to convey good and marketable fee simple title
in the Property to Developer subject only to easements, restrictions, conditions, and
covenants of record as of the date hereof to the extent not objected to by Developer as
set forth in this Agreement, and to the conditions subsequent set forth in Section 3.3,
below:
(1) Developer, at its sole cost and expense, has or will order an abstract of title
to the Property continued through the date of this Agreement which shall show
merchantable title in City in conformity with this Agreement and applicable state
law.
(2) Developer shall have until time of the Closing (as defined herein) to render
objections to title, including any easements or other encumbrances not satisfactory
to Developer, in writing to City. Developer agrees, however, to review the Abstract
promptly following Developer's receipt of Developer's land survey and the Abstract
and to promptly provide City with any objections to title identified therein. Nothing
herein shall be deemed to limit Developer's rights to raise new title objections with
respect to matters revealed in any subsequent title examinations and surveys and
which were not identified in the Abstract provided by the City. City shall promptly
exercise its best efforts to have such title objections removed or satisfied and shall
advise Developer of intended action within ten (10) days of such action. If City
shall fail to have such objections removed as of the Closing, or any extension
thereof consented to by Developer, Developer may, at its sole discretion, either (a)
terminate this Agreement without any liability on its part, and any sums previously
paid to City by Developer (or paid into escrow for City's benefit) shall be returned
to Developer with interest, or (b) take title subject to such objections. City agrees
to use its best reasonable efforts to promptly satisfy any such objections.
1.3 Rights of Inspection, Testing and Review. Developer, its counsel, accountants,
agents, and other representatives, shall have full and continuing access to the Property
and all parts thereof, upon reasonable notice to City. Developer and its agent and
representatives shall also have the right to enter upon 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 make such inquiries of governmental agencies and utility
companies, etc. and to make such feasibility studies and analyses as they consider
appropriate.
1.4 Representations and Warranties of City. In order to induce Developer to enter into
this Agreement and purchase the Property, City hereby represents and warrants to
Developer that to the best of City's knowledge:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse change in
the Property being conveyed or the possession, use or enjoyment thereof by
Developer, including, but not limited to, any action in condemnation, eminent
domain or public taking.
(2) No ordinance or hearing is now 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.
(6) There are no notices, orders, suits, judgments or other proceedings relating
to fire, building, zoning, air pollution, health violations or other matters that have
not been corrected. City has notified Developer in writing of any past notices,
orders, suits, judgments or other proceedings relating to fire, building, zoning, air
pollution or health violations as they relate to the Property of which it has actual
notice. The Property is in material compliance with all applicable zoning, fire,
building, and health statutes, ordinances, and regulations.
(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
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 and
clear of all liens, security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not and
shall not result in any material breach of any terms or conditions of any mortgage,
bond, indenture, agreement, contract, license, or other instrument or obligation to
which City is a party or by which either the City or the Property being conveyed are
bound, nor shall the execution, delivery and performance of this Agreement violate
any statute, regulation, judgment, writ, injunction or decree of any court threatened
or entered in a proceeding or action in which City may be bound or to which either
City or the Property being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and it has full power and
authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of Closing confirming
the representation contained herein, in the form attached hereto as Exhibit C.
(11) All city utilities necessary for the development and use of the Property as
an industrial facility adjoin the Property, and Developer and Tenant shall have the
right to connect to said utilities, subject to payment of City's connection fees. There
will be no sanitary sewer connection fees associated with the Project. Water
connection fees will be assessed for connections to Chavenelle Road or Innovation
Drive, except as provided in Section 2.1. All other associated fees, such as a
tapping fee, will be required as determined by the size of the service line being
installed.
(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 way be
binding upon the Property or Developer.
(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 Agreement are the sole responsibility
and obligation of City and that City will indemnify Developer and hold Developer
harmless from any and all claims asserted by any broker engaged directly or
indirectly by City for any fees or other compensation related to the subject matter
of this Agreement.
(14) City shall exercise its best efforts to assist Developer in the development
process.
(15) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(16) With respect to the period to and during which City has owned or occupied
the Property, no person or entity has caused or permitted materials to be stored,
deposited, treated, recycled, or disposed of on, under or at the Property, which
materials, if known to be present, would require cleanup, removal or some other
remedial action under environmental laws.
(17) The Property is presently zoned to accommodate Developer'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. Developer makes the following
representations and warranties:
(1) Developer is duly organized and validly existing or authorized under the
laws of the State of Delaware and has all requisite power and authority to own and
operate its properties, to carry on its respective business as now conducted and
as presently proposed to be conducted, and to enter into and perform its
obligations under the Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Developer, and assuming due authorization, execution and delivery by City, is in
full force and effect and is a valid and legally binding instrument of Developer
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting
creditors' rights generally. Developer's counsel shall issue legal opinions to the
City, at time of closing, confirming the representations contained herein, in the form
attached hereto as Exhibit D.
(3) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of or compliance with the
terms and conditions of this Agreement are not prevented by, limited by, in conflict
with, or result in a violation or breach of, the terms, conditions or provisions of the
articles of incorporation or the bylaws of Developer or any contractual restriction,
evidence of indebtedness, agreement or instrument of whatever nature to which
Developer is now a party or by which it or its property is bound, or constitute a
default under any of the foregoing.
(4) There are no actions, 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, financial position or
result of operations of Developer or which affects the validity of the Agreement or
Developer's ability to perform its obligations under this Agreement.
(5) Developer will perform its obligations under this Agreement in accordance
with the 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 federal
laws and regulations which must be obtained or met.
(7) Developer has commitments for permanent financing for the Development
Project and all of its obligations under this Agreement in an amount sufficient,
together with equity commitments, to successfully complete the requirements of
this Agreement and shall provide evidence thereof to City prior to the Closing Date.
1.6 Conditions to Closing. The closing of the transaction (the Closing) contemplated
by this Agreement and all the obligations of Developer under this Agreement are subject
to fulfillment, on or before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.4 shall be
correct as of the Closing Date with the same force and effect as if such
representations were made at such time. At the Closing, City shall deliver a
certificate in the form of Exhibit G.
(2) Title to the Property shall be in the condition warranted in Section 1.4.
(3) Developer, in its sole and absolute discretion, having completed and
approved of any inspections done by Developer hereunder.
(4) Developer 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 attempting to obtain any such approvals and
shall execute any documents necessary for this purpose, provided that City shall
bear no expense in connection therewith. In connection therewith, the City agrees
(a) to review all of Developer's plans and specifications for the Project and to either
reject or approve the same in a prompt and timely fashion; (b) to issue a written
notification to Developer, following City's approval of same, indicating that the City
has approved such plans and specifications, and that the same are in compliance
with the Urban Renewal Plan 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, use and occupancy, lending on the project and
issuing legal opinions in connection therewith; and (d) to cooperate fully with
Developer to streamline and facilitate the obtaining of such permits, approvals and
consents. Notwithstanding anything herein to the contrary, Developer may use a
phased approach to obtaining building and related permits for the Project and the
parties agree that certain of such permits will be obtained after Closing.
(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 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 commitment from a bank or other lending institution), that
Developer has firm financial commitments in an amount sufficient, together with
equity commitments, to complete the Minimum Improvements (as defined herein)
in conformance with the Construction Plans (as defined herein), or City shall have
received such other evidence of such party's financial ability as in the reasonable
judgment of City is required.
(8) Attached hereto as Exhibit L is a letter of Intent/Terms pursuant to which Tenant
confirms its intent to maintain its current level of employment of 135 full-time
employees as of the date of this Agreement and create at least 10 FTE in the City
of Dubuque, Iowa by not later than January 1, 2024.
(9) Receipt of an opinion of counsel to Developer in the form attached hereto
as Exhibit D.
(10) Developer shall have prepared and be prepared to record at Closing a plat
of survey of the Property acceptable to City (the "Plat"), including location and
depiction of all applicable easements and other substantial improvements.
(11) Developer shall have the right to terminate this Agreement at any time prior
to the consummation of the closing on the Closing Date if Developer determines
in its sole discretion that conditions necessary for the successful completion of the
Project contemplated herein have not been satisfied 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.
(12) Developer shall have provided City with a copy of the executed Lease with
Tenant.
(13) Developer shall have provided City with a copy of the Traffic Study required
by Sec. 2.6. City and Developer shall have entered into the agreement required by
Section 2.6.
(14) Developer shall have provided to City a survey exhibit showing the location
of the easement described in Section 2.1(3).
1.7 Closing. The Closing of the purchase and sale shall take place on the Closing
Date which shall within fifteen (15) days of the date of final approval of this agreement by
the City Council of the city of Dubuque and not later than the 29t" day of November, 2021.
Exclusive possession of the Property shall be delivered on the Closing Date, in its current
condition and in compliance with this Agreement, including City's representations and
warranties regarding the same. Consummation of the Closing shall be deemed an
agreement of the parties to this Agreement that the conditions of closing have been
satisfied or waived.
1.8 City's Obligations at Closing. 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
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 3.3 below.
(2) Deliver to Developer such other documents as may be required by this
Agreement, all in a form satisfactory to Developer.
1.9 Delivery of Total Purchase Price; Obligations At Closing. At Closing, and subject
to the terms, conditions, and provisions hereof and the performance by City of its
obligations as set forth herein, Developer shall pay the Total Purchase Price to City
pursuant to Section 1.1 hereof and the easement purchase price pursuant to
Section 1.1(3).
1.10 Closing Costs. The following costs and expenses shall be paid in connection with
the Closing:
(1) City shall pay:
(a) The transfer fee, if any, imposed on the conveyance.
(b) A pro-rata portion of all taxes as provided in Section 1.10.
(c) All special assessments, if any, whether levied, pending, or
assessed.
(d) City's attorney's fees, if any.
(e) City's broker and/or real estate commissions and fees, if any.
(f) The cost of recording the satisfaction of any existing mortgage and
any other document necessary to make title marketable.
(2) Developer shall pay the following costs in connection with the
closing:
(a) The recording fee necessary to record the Deed.
(b) Developer's 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 Closing Date on
the basis of a 365-day calendar year. Developer shall pay or cause to be paid all real
estate taxes due in subsequent fiscal years. Any proration of real estate taxes on the
Property shall be based upon such taxes for the year currently payable.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. City acknowledges that the Facility Developer
is building on the Property is an industrial facility. Developer agrees to construct the
building and to add certain internal systems thereto, including all interior improvements
to the building; (the Minimum Improvements); all as more particularly depicted and
described on the plans and specifications to be delivered to and approved by City as
contemplated in this Agreement. Developer hereby agrees the Facility will be not less
than Two Hundred Fifteen Thousand (215,000) square feet of floor space along with the
necessary site work, machinery, and equipment at an estimated cost of approximately
Twenty -Two Million Five Hundred Thousand Dollars ($22,500,000).
(1) Developer shall construct at its sole expense the sanitary sewer as
generally shown on Exhibit I. City shall grant an easement to Developer for the
sanitary sewer.
(2) Developer shall install at its sole expense a 16" water main as generally
shown on Exhibit K and subject to final approval by City. Developer shall grant to
City an easement for the water main.
(3) Developer shall grant to City a right of way and public utility easement over
the cul-de-sac area as shown on Exhibit J.
2.2 Plans for Construction of Minimum Improvements. Developer shall provide City
with an approved Site Plan. The parties agree that this Development Agreement shall be
amended to include such Site Plan. Plans and specifications with respect to the
development of the 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 and regulations, including but not
limited to the Amended and Restated Declaration of Covenants, Conditions, Restrictions,
Reservations, Easements, Liens and Charges, recorded as Instrument No. 2014-
00001147, records of Dubuque County, Iowa. Developer shall submit to City, for approval
by City, plans, drawings, specifications, and related documents with respect to the
improvements to be constructed by Developer on the Property. All work with respect to
the Minimum Improvements shall be in substantial conformity with the Construction Plans
approved by City.
2.3 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced on or before the later of
November 30, 2021 or fifteen (15) days after the date of Closing, and shall be substantially
completed by February 1, 2023. The time frames for the performance of these obligations
shall be suspended due to unavoidable delays, meaning delays outside the control of the
party claiming its occurrence in good faith, which are the direct result of strikes, other
labor troubles, shutdown due to COVID-19, unusually severe or prolonged bad weather,
acts of God, fire or other casualty to the Minimum Improvements, litigation commenced
by third parties which, by injunction or other similar judicial action or by the exercise of
reasonable discretion directly results in delays, or acts of any federal, state or local
government which directly result in extraordinary delays. The time for performance of
such obligations shall be extended only for the period of such delay.
2.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, the City Manager shall furnish Developer with
an appropriate instrument so certifying. Such certification (the Certificate of Completion)
shall be in recordable form and shall be a conclusive determination of the satisfaction and
termination of the agreements and covenants in this Agreement and in the Deed with
respect to the obligations of Developer to construct the Minimum Improvements. The
Certificate of Completion, in the form attached hereto as Exhibit H, shall waive all rights
of revestment of title to the Property as provided in Section 3.3, and the Certificate of
Completion shall so state.
2.5 Developer's Lender's Cure Rights. The parties agree that, if Developer shall fail
to complete the Minimum Improvements as required by this Agreement such that
revestment of title may occur (or such that the City would have the option of exercising
its revestment rights), then Developer's lender shall have the right, but not the obligation,
to complete such Minimum Improvements.
2.6 Traffic Study. Developer shall at its sole cost and expense provide to City prior to
Closing a traffic study in a form acceptable to City and shall pay 100% of needed
improvements to Innovation Drive (including the intersection of Innovation Drive and
Chavenelle Road) and 50% of the cost of any improvements on Seippel Road and
Chavenelle Road that are identified in the study and then required by City. City and
Developer shall have entered into an agreement for such improvements prior to Closing.
2.7 No Change in Use. Developer agrees to utilize the Property only as a
logistics/warehouse/distribution center during the term of this Agreement. Developer
agrees that no change in use shall be permitted during the term of this Agreement without
the prior written consent of City in its sole discretion. Any change in use without the prior
written consent of City shall constitute an event of default and result in a penalty of
$3,426,500 ($100,000 per acre x 34.265 acres = $3,426,500).
2.8 Books and Records. During the term of this Agreement, Developer shall keep at
all times proper books of record and account in which full, true and correct entries will be
made of all dealings and transactions of or in relation to the business and affairs of
Developer in accordance with generally accepted accounting principles consistently
applied throughout the period involved, and Developer shall provide reasonable
protection against loss or damage to such books of record and account.
2.9 Real Property Taxes. From and after the Closing Date, Developer shall pay or
cause to be paid, when due and before delinquency, all real property taxes and
assessments payable with respect to all and any parts of the Property unless Developer's
obligations have been assumed by another person pursuant to the provisions of this
Agreement.
2.10 No Other Exemptions. During the term of this Agreement, Developer agrees not
to apply for any state or local property tax exemptions which are available with respect to
the Property or the Minimum Improvements located thereon that may now be, or hereafter
become, available under state law or city ordinance during the term of this Agreement,
including those that arise under Iowa Code Chapters 404 and 427, as amended.
2.11 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all times
during the process of constructing the Minimum Improvements (and, from time to
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 naming City as loss payee, 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 furnish proof
of insurance in the form of a certificate of insurance) all risk 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 naming City as loss payee. The term "replacement value"
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 amount 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 mortgage encumbering title to
the Property (as its interests may appear). Developer shall complete the repair,
reconstruction and restoration of Minimum Improvements whether or not the Net
Proceeds of insurance received by Developer for such Purposes are sufficient.
2.12 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, without limitation, any agreements between the
parties regarding the care and maintenance of the Property.
2.13 Non -Discrimination. In carrying out the project, Developer shall not discriminate
against any employee or applicant for employment because of age, color, familial status,
gender identity, marital status, mental/physical disability, national origin, race,
religion/creed, sex, or sexual orientation.
2.14 Conflict of Interest. Developer agrees that no member, officer or employee of City,
or its designees or agents, nor any consultant or member of the governing body of City,
and no other public official of City who exercises or has exercised any functions or
responsibilities with respect to the project during his or her tenure, or who is in a position
to participate in a decision -making process or gain insider information with regard to the
project, shall have any interest, direct or indirect, in any contract or subcontract, or the
proceeds thereof, for work to be performed in connection with the project, or in any
activity, or benefit therefrom, which is part of this project at any time during or after such
person's tenure. In connection with this obligation, Developer shall have the right to rely
upon the representations of any party with whom it does business and shall not be
obligated to perform any further examination into such party's background.
2.15 Non -Transferability. During the Term of this Agreement, this Agreement may not
be assigned by Developer, nor may any portion of the Property be sold or otherwise
transferred by Developer without the prior written consent of City, which consent shall not
be unreasonably withheld.
2.16 Restrictions on Use. Developer agrees for itself, and its successors and assigns,
and every successor in interest to the Property or any part thereof that they, and their
respective successors and assigns, shall:
(1) City represents and agrees that use of the Property consistent with its
current zoning is in full compliance with the Urban Renewal Plan and Developer
agrees to comply with any amendments to the Urban Renewal Plan.
(2) Not discriminate upon the basis of age, color, familial status, gender identity,
marital status, mental/physical disability, national origin, race, religion/creed, sex,
or sexual orientation in the sale, lease, rental, use or occupancy of the Property or
any improvements erected or to be erected thereon, or any part thereof (however,
Developer shall not have any liability to City to the extent that a successor in
interest shall breach this covenant and City shall seek enforcement of this
covenant directly against the party in breach of same).
2.17 Release and Indemnification Covenants. Developer agrees to 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.
(1) Developer releases City and the governing body members, officers, agents,
servants and employees thereof (hereinafter, for purposes of this Section, the
Indemnified Parties) from and covenants and agrees that the Indemnified Parties
shall not be liable for, and agrees to indemnify, defend and hold harmless the
Indemnified Parties against any loss or damage to property or any injury to or death
of any person occurring at or about or resulting from any defect in the Minimum
Improvements.
(2) Developer agrees to protect and defend the Indemnified Parties, now or
forever, and further agrees to hold the Indemnified Parties harmless, from any
claim, demand, suit, action or other proceedings whatsoever by any person or
entity whatsoever arising or purportedly arising from (1) any violation of any
agreement or condition of this Agreement (except with respect to any suit, action,
demand or other proceeding brought by Developer against City based on an
alleged breach of any representation, warranty or covenant of City under this
Agreement and/or to enforce its rights under this Agreement); or (2) the acquisition,
construction, installation, ownership, and operation of the Minimum Improvements
or (3) the condition of the Property and any hazardous substance or environmental
contamination located in or on the Property, caused and occurring after Developer
takes possession of the Property.
(3) The Indemnified Parties shall not be liable to Developer for any damage or
injury to the persons or property of Developer or its officers, agents, servants or
employees or any other person who may be on, in or about the Minimum
Improvements due to any act of negligence of any person, other than any act of
negligence on the part of any such Indemnified Party or its officers, agents,
servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of City
contained herein shall be deemed to be the covenants, stipulations, promises,
agreements and obligations of City, and not of any governing body member,
officer, agent, servant or employee of City in their individual capacity thereof.
(5) The provisions of this Section shall survive the termination of this
Agreement.
2.18 Compliance with Laws. Developer shall comply with all federal, state, and local
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.
SECTION 3. EVENTS OF DEFAULT AND REMEDIES.
3.1 Events of Default Defined. The following shall be "Events of Default" under this
Agreement and the term "Event of Default" shall mean, whenever it is used in this
Agreement, any one or more of the following events-
(1) Failure by Developer to pay or cause to be paid, before delinquency, all real
property taxes assessed with respect to the Minimum Improvements and the
Property.
(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms, conditions
and limitations of this Agreement.
(3) Transfer of any interest by Developer in any portion of the Property or the
Minimum Improvements in violation of the provisions of this Agreement.
(4) Failure by Developer 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) Any change in the use of the Property without the prior written consent of
City in its sole discretion.
3.2 Remedies on Default by Developer. Whenever any Event of Default referred to in
Section 4.1 of this Agreement occurs and is continuing, City, as specified below, may take
any one or more of the following actions after the giving of written notice by City to
Developer (and the holder of any mortgage encumbering any interest in the Property of
which City has been notified of in writing) of the Event of Default, but only if the Event of
Default has not been cured within sixty (60) days following such notice, or if the Event of
Default cannot be cured within sixty (60) days and the Developer does not provide
assurances to City that the Event of Default will be cured as soon as reasonably possible
thereafter:
(1) City may suspend its performance under this Agreement until it receives
assurances from the Developer, deemed adequate by City, that the Developer will
cure its default and continue its performance under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) City may withhold the Certificate of Completion; or
(4) City may take any action, including legal, equitable or administrative action,
which may appear necessary or desirable to collect any payments due under this
Agreement or to enforce performance and observance of any obligation,
agreement, or covenant under this Agreement.
3.3 Revesting of Title. The parties understand that Title may be revested in the City as
specified below; except that no such right shall interfere or upset Tenant's occupancy of
the Property during the term of its Lease as a result of an event of default on the part of
Developer. City shall honor the remaining term of the Lease (including any extension
terms exercised by Tenant under the Lease) and City agrees that it will execute a non -
disturbance agreement to this effect upon written request from Tenant.
(1) Revesting Title in City Upon Happening of Event Subsequent to
Conveyance to Developer and Prior to Issuance of Certificate of Completion. In
the event that, subsequent to conveyance of the Property to Developer by City and
prior to receipt by Developer of the Certificate of Completion, but subject to the
terms of the mortgage granted by Developer to secure a loan obtained by
Developer from a commercial lender or other financial institution to fund the
acquisition of the Property or construction of Minimum Improvements (First
Mortgage), an Event of Default under Section 4.1(1) through (4) of this Agreement
occurs and is not cured within the times specified in Section 4.2, then City shall
have the right to re-enter and take possession of the Property and any portion of
the Minimum Improvements thereon and to terminate (and revest in City pursuant
to the provisions of this Section 3.3 subject only to any superior rights in any holder
of the First Mortgage) the estate conveyed by City to Developer, it being the intent
of this provision, together with other provisions of this Agreement, that the
conveyance of the Property to Developer shall be made upon the condition that
(and the Deed shall contain a condition subsequent to the effect that), in the event
of default under Section 4.1(1) through (4) on the part of Developer and failure on
the part of Developer to cure such default within the period and in the manner
stated herein, City may declare a termination in favor of City of the title and of all
Developer's rights and interests in and to the Property conveyed to Developer, and
that such title and all rights and interests of Developer, and any assigns or
successors in interests of Developer, and any assigns or successors in interest to
and in the Property, shall revert to City (subject to the provisions of Section 3.3 of
this Agreement), but only if the events stated in Section 4.1 of this Agreement have
not been cured within the time period provided above, or, if the events cannot be
cured within such time periods, Developer does not provide assurance to City,
reasonably satisfactory to City, that the events will be cured as soon as reasonably
possible
3.4 Resale of Reacquired Property; Disposition of Proceeds. Upon the revesting in
City of title to the Property as provided in Section 3.3 of this Agreement, City shall,
pursuant to its responsibility under law, use its best efforts, subject to any rights or
interests in such property or resale granted to any holder of a First Mortgage, to resell the
Property or part thereof as soon and in such manner as City shall find feasible and
consistent with the objectives of such law and of the Urban Renewal Plan to a qualified
and responsible party or parties (as determined by City in its sole discretion) who will
assume the obligation of making or completing 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 Property, or any portion thereof, or any improvements thereon,
previously acquiesced in by City pursuant to this Agreement. If more than one
mortgage on the Property, or any portion thereof, or any improvements thereon,
has been previously acquiesced in by City pursuant to this Agreement and
insufficient proceeds of the resale exist to pay the principal of, and interest on,
each such mortgage in full, then such proceeds of the resale as are available shall
be used to pay the principal of and interest on each such mortgage in their order
of priority, or by mutual agreement of all contending parties, including Developer,
or by operation of law;
(3) Third, to reimburse City for all allocable costs and expenses incurred by
City, including but not limited to salaries of personnel, in connection with the
recapture, management and resale of the Property or part thereof (but less any
income derived by City from the Property or part thereof in connection with such
management); any payments made or necessary to be made to discharge any
encumbrances or liens (except for mortgage(s) previously acquiesced in by the
City) existing on the Property or part thereof at the time of revesting of title thereto
in City or to discharge or prevent from attaching or being made any subsequent
encumbrances or liens due to obligations, default or acts of Developer, its
successors or transferees (except with respect to such mortgage(s)), any
expenditures made or obligations incurred with respect to the making or
completion of the Minimum Improvements or any part thereof on the Property or
part thereof, and any amounts otherwise owing to City (including water and sewer
charges) by Developer and its successors or transferees; and
(4) Fourth, to reimburse Developer up to the amount equal to (1) the sum of the
Purchase Price paid to City for the Property and (2) the cash actually invested by
such party in making any of the Minimum Improvements on the Property.
3.5 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 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.
3.6 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such waiver
shall be limited to the particular breach so waived and shall not be deemed to waive any
other concurrent, previous or subsequent breach hereunder.
3.7 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in equity,
including an action for declaratory relief or arbitration, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs of litigation from the other party. Such fees and
costs of litigation may be set by the court in the trial of such action or by the arbitrator, as
the case may be, or may be enforced in a separate action brought for that purpose. Such
fees and costs of litigation shall be in addition to any other relief that may be awarded.
3.8 Remedies on Default by City. If City defaults in the performance of this Agreement,
Developer may take any action, including legal, equitable or administrative action that
may appear necessary or desirable to collect any payments due under this Agreement,
to recover expenses of Developer, or to enforce performance and observance of any
obligation, agreement, or covenant of City under this Agreement. Developer may
suspend performance under this Agreement until it receives assurances from City,
deemed adequate by Developer, that City will cure its default and continue its
performance under this Agreement.
SECTION 4. GENERAL TERMS AND PROVISIONS.
4.1 Notices and Demands. Whenever this Agreement requires or permits any notice
or written request by one party to another, it shall be deemed to have been properly given
if and when delivered in person or three (3) business days after having been deposited in
any U.S. Postal Service and sent by registered or certified mail, postage prepaid,
addressed as follows:
(1) If to Developer:
SETZER PROPERTIES DBQ, LLC
Attn: Robbie McAtee
354 Waller Avenue, Suite 200
Lexington, KY 40504
Phone: (859) 514-7864
Fax: (859) 281-6335
With copy to:
SETZER PROPERTIES DBQ, LLC
Attn: Joshua J. Markham
354 Waller Avenue, Suite 200
Lexington, KY 40504
Phone: (859) 514-7767
Fax: (859) 281-6335
(2) If to City:
City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to:
City Attorney
City Hall
50 W. 13th Street
Dubuque, Iowa 52001
or at such other address with respect to any party as that party may, from time to time
designate in writing and forward to the other as provided in this Section.
4.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of City and Developer and its successors and assigns.
4.3 Force Majeure. A party shall be excused from its obligations under this Agreement
if and to the extent and during such time as the party is prevented, impeded, or hindered,
unable to perform its obligations or is delayed in doing so due to events or conditions
outside of the party's reasonable control and after the party has taken reasonable steps
to avoid or mitigate such event or its consequences (each a "Force Majeure Event")
including, without limitation in any way, as the result of any acts of God, war, fire, or other
casualty, riot, civil unrest, extreme weather conditions, terrorism, strikes and/or labor
disputes, pandemic, epidemic, quarantines, government stay-at-home orders, municipal
and other government orders, or other matter beyond the control of such party. Upon the
occurrence of a Force Majeure Event, the party incurring such Force Majeure Event will
promptly give notice to the other party identifying the Force Majeure Event, explaining
how it impacts performance and the estimated duration, identifying the relief requested,
agreeing to limit damages to the other party and to immediately resume performance
upon termination of the Force Majeure Event, and agreeing to supplement the notice as
more information becomes available, and thereafter the parties shall meet and confer in
good faith in order to identify a cure of the condition affecting its performance as
expeditiously as possible. No obligation to make a payment required by this Agreement
is excused by a Force Majeure Event. The nonperforming party shall not be entitled to
any damages or additional payments of any kind for any such delay.
4.4 Termination Date. This Agreement and the rights and obligations of the parties
hereunder shall terminate on January 1, 2032 (the Termination Date).
4.5 Execution By Facsimile. The parties agree that this Agreement may be transmitted
among them by email or facsimile machine. The parties intend that the emailed or faxed
signatures constitute original signatures and that an emailed or faxed Agreement
containing the signatures (original, emailed or faxed) of all the parties is binding on the
parties.
4.6 Memorandum of Development Agreement. City shall promptly record a
Memorandum of Development Agreement in the form attached hereto as Exhibit F in the
office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for so
recording.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in
its name and behalf by its Mayor and attested to by its City Clerk and Developer has
caused this Agreement to be duly executed.
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol
Mayor
Attest:
Adrienne N. Breitfelder, City Clerk
SETZER PROPERTIES DBQ, LLC
By:
Brett T. Setzer, Co -Presiders
LIST OF EXHIBITS
Exhibit A
Urban Renewal Plan
Exhibit B-1
Plat
Exhibit B-2
Site Exhibit
Exhibit B-3
Parcel B Legal Description
Exhibit C
City Attorney Certificate
Exhibit D
Opinion of Counsel to Developer
Exhibit E
Deed
Exhibit F
Memorandum of Development Agreement
Exhibit G
City Certificate
Exhibit H
Certificate of Completion
Exhibit I
Sanitary Easement Area
Exhibit J
Cul-de-sac Easement Area
Exhibit K
Water Main Easement Area
Exhibit L
Letter of Intent re Employees
EXHIBIT A
URBAN RENEWAL PLAN
(on file in City Clerk's office, 50 W. 13t" Street, Dubuque, IA 52001)
EXHIBIT B-1
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EXHIBIT B-2
SITE EXHIBIT
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BUILDABLE AREA
mob, t U3
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EXHIBIT B-3
PARCEL B LEGAL DESCRIPTION
Part of Lot C in Dubuque Industrial Center North First Addition in the City of Dubuque, Iowa, being
more particularly described as follows:
Commencing at the northwest corner of Lot 1 in Dubuque Industrial Center North Second Addition
in the City of Dubuque, Iowa;
Thence North 87 degrees 35 minutes 13 seconds East along the north line of said Lot 1, 65.47
feet to the Point of Beginning;
Thence North 87 degrees 35 minutes 13 seconds East continuing along said north line of Lot 1,
467.29 feet;
Thence South 82 degrees 04 minutes 06 seconds East continuing along said north line of Lot 1,
212.63 feet;
Thence North 19 degrees 12 minutes 36 seconds East, 433.37 feet, to a point on the easterly line
of Lot 2 in Dubuque Industrial Center North Third Addition in the City of Dubuque, Iowa;
Thence North 90 degrees 00 minutes 00 seconds West, 231.12 feet;
Thence North 60 degrees 11 minutes 47 seconds West, 280.07 feet;
Thence North 51 degrees 38 minutes 25 seconds West, 318.12 feet;
Thence South 57 degrees 28 minutes 14 seconds West, 86.87 feet;
Thence South 18 degrees 59 minutes 51 seconds East, 140.84 feet;
Thence South 51 degrees 57 minutes 52 seconds East, 101.08 feet;
Thence South 01 degree 57 minutes 06 seconds East, 108.09 feet;
Thence South 33 degrees 59 minutes 54 seconds East, 90.10 feet;
Thence South 44 degrees 57 minutes 34 seconds East, 130.53 feet;
Thence South 12 degrees 19 minutes 12 seconds West, 171.97 feet;
Thence South 87 degrees 35 minutes 13 seconds West, 260.33 feet;
Thence South 02 degrees 35 minutes 19 seconds East, 40.00 feet, to the Point of Beginning;
Said parcel contains 6.59 acres, more or less.
EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
Barry A. Lindahl, Esq.
Dubuque
Senior Counsel
THE CF
Suite 330, Harbor View Place
DtU�B
300 Main Street
AII•Ammicaft
Dubuque, Iowa 52001-6944
(563) 583-4113 office
Masterpiece on the Mississippi
(563)583-1040 fax
balesq(a,cityofdubuque.org
2007.2012.2013
(DATE)
Dear
I have acted as counsel for the City of Dubuque, Iowa, in connection with the execution
and delivery of a certain Development Agreement by and between SETZER
PROPERTIES DBQ, LLC, (Developer), and the City of Dubuque, Iowa (City) dated for
reference purposes the day of , 20_.
The City has duly obtained all necessary approvals and consents for its execution,
delivery and performance of this Agreement and has full power and authority to execute,
deliver and perform its obligations under this Agreement, and to the best of my
knowledge, the representations of the City Manager in his letter dated the day of
, 20 , are correct.
BAL:tIs
Very sincerely,
Barry A. Lindahl, Esq.
Senior Counsel
EXHIBIT D
OPINION OF DEVELOPER'S COUNSEL
Mayor and City Councilmembers
City Hall
1 Sh and Central Avenue
Dubuque IA 52001
Re: Development Agreement By and Between the City of Dubuque, Iowa, and SETZER
PROPERTIES DBQ, LLC,
Dear Mayor and City Councilmembers:
We have acted as counsel for SETZER PROPERTIES, LLC, (Developer) in
connection with the execution and delivery of a certain Development Agreement
(Development Agreement) by and between the City of Dubuque, Iowa, (City) and
SETZER PROPERTIES DBQ, LLC dated for reference purposes the day of
,20 .
We have examined the original certified copy, or copies otherwise identified to our
satisfaction as being true copies, of the Development Agreement and such other
documents and records as we have deemed relevant and necessary as a basis for the
opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries as
we have deemed appropriate, we are of the opinion that:
1. Developer is a limited liability company organized and existing under the
laws of the State of Delaware and has full power and authority to execute, deliver and
perform in full Development Agreement. The Development Agreement has been duly
and validly authorized, executed and delivered by Developer and, assuming due
authorization, execution and delivery by City, is in full force and effect and is valid and
legally binding instrument of Developer enforceable in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting creditors' rights generally.
2. The execution, delivery and performance by Developer of the Development
Agreement and the carrying out of the terms thereof, will not result in violation of any
provision of, or in default under, the articles of incorporation and bylaws of Developer,
any indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree,
order, statute, rule, regulation or restriction to which Developer is a party or by which
Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened against or
affecting Developer in any court or before any arbitrator or before or by any governmental
body in which there is a reasonable possibility of an adverse decision which could
materially adversely affect the business (present or prospective), financial position or
results of operations of Developer or which in any manner raises any questions affecting
the validity of the Agreement or the Developer's ability to perform Developer's obligations
thereunder.
Very truly yours,
EXHIBIT E
DEED
Prepared by: Barry A. Lindahl 300 Main Street, Suite 330, Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street, Suite 330, Dubuque IA 52001 563 583-4113
Tax Statement to:
SETZER PROPERTIES DBQ, LLC
354 Waller Ave Ste 200,
Lexington, KY 40504
Phone: 859-514-7767
SPECIAL WARRANTY DEED
The City of Dubuque, Iowa, a municipal corporation of the State of Iowa (Grantor),
in consideration of the Grantee named below undertaking the obligations of the Developer
under the Development Agreement described below and the sum of Five Million One
Hundred Forty -Four Thousand Five Hundred Eighty -Eight Dollars ($5,144,588) in hand
paid, and other good and valuable consideration, and pursuant to the authority of Chapter
403, Code of Iowa, does hereby GRANT, SELL AND CONVEY unto SETZER
PROPERTIES DBQ, LLC, a Delaware limited liability company (Grantee), the following
described parcel(s) situated in the County of Dubuque, State of Iowa, to wit (the Property):
LOT 2 DUBUQUE INDUSTRIAL CENTER NORTH THIRD ADDITION, in the City
of Dubuque, Iowa; and
That part of Plat LOT C DUBUQUE INDUSTRIAL CENTER NORTH THIRD
ADDITION shown on Exhibit B-2 and described in Exhibit B-3.
This Deed is exempt from transfer tax pursuant to Iowa Code section 428A.2(6).
This Deed is given pursuant to the authority of Resolution No. of the City
Council of the City of Dubuque adopted the day of 20_, the terms
and conditions thereof, if any, having been fulfilled.
This Deed is being delivered in fulfillment of Grantor's obligations under and is
subject to all the terms, provisions, covenants, conditions and restrictions contained in
that certain Development Agreement executed by Grantor and Grantee herein, dated the
day of 20_ (the Agreement), a memorandum of which was recorded
on the day of 20_, in the records of the Recorder of Dubuque County,
Iowa, Instrument Number -
Promptly after completion of the improvements 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.
Such certification by Grantor shall be, and the certification itself shall so state, a
conclusive determination of satisfaction and termination of the agreements and covenants
of the Agreement and of this Deed with respect to the obligation of Grantee, and its
successors and assigns, to construct improvements and the dates for the beginning and
completion thereof 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, revesting of title, and reservations of title contained in this Deed be forever
released and terminated and that any remaining obligations of Grantee pursuant to the
Agreement shall be personal only.
All certifications provided for herein shall be in such form as will enable them to be
recorded with the County Recorder of Dubuque, Iowa. If Grantor shall refuse or fail to
provide any such certification in accordance with the provisions of the Agreement and this
Deed, Grantor shall, within twenty days after written request by Grantee, provide Grantee
with a written statement indicating in adequate detail in what respects Grantee has failed
to complete the improvements in accordance with the provisions of the Agreement or is
otherwise in default, and what measures or acts will be necessary, in the opinion of
Grantor, for Grantee to take or perform in order to obtain such certification.
In the event that an Event of Default occurs under the Agreement and Grantee
herein shall fail to cure such default within the period and in the manner stated in the
Agreement, then Grantor shall have the right to re-enter and take possession of the
Property and to terminate and revest in Grantor the estate conveyed by this Deed to
Grantee, its assigns and successors in interest, in accordance with the terms of the
Agreement.
None of the provisions of the Agreement shall be deemed merged in, affected or
impaired by this Deed.
Grantor hereby covenants to warrant and defend the said premises against the
lawful claims of all persons whomsoever claiming by, through and under it.
Dated this of , 20_ at Dubuque, Iowa.
CITY OF DUBUQUE IOWA
Attest:
Roy D. Buol, Mayor
Adrienne N. Breitfelder, City Clerk
STATE OF IOWA
SS
COUNTY OF DUBUQUE
On this day of , 20_, before me a Notary Public in and
for said County, personally appeared Roy D. Buol and Adrienne N. Breitfelder to me
personally known, who being duly sworn, did say that they are the Mayor and City Clerk,
respectively of the City of Dubuque, Iowa, a Municipal Corporation, created and existing
under the laws of the State of Iowa, and that the seal affixed to the foregoing instrument
is the seal of said Municipal Corporation, and that said instrument was signed and sealed
on behalf of said Municipal Corporation by authority and resolution of its City Council and
said Mayor and City Clerk acknowledged said instrument to be the free act and deed of
said Municipal Corporation by it voluntarily executed.
Notary Public in and for Dubuque County, Iowa
EXHIBIT F
MEMORANDUM OF DEVELOPMENT AGREEMENT
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and between the City of Dubuque, Iowa, an Iowa
municipal corporation, of Dubuque, Iowa, and SETZER PROPERTIES DBQ, LLC was
made regarding the following described premises:
LOT 2 DUBUQUE INDUSTRIAL CENTER NORTH THIRD ADDITION, in the City
of Dubuque, Iowa; and
That part of Plat LOT C DUBUQUE INDUSTRIAL CENTER NORTH THIRD
ADDITION shown on Exhibit B-2 and described in Exhibit B-3.
The Development Agreement is dated for reference purposes the day of
20_, and contains covenants, conditions, and restrictions concerning the
sale and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the terms
and provisions of the Development Agreement shall prevail. A complete counterpart of
the Development Agreement, together with any amendments thereto, is in the possession
of the City of Dubuque and may be examined at its offices as above provided.
Dated this day of 120
CITY OF DUBUQUE, IOWA
Barry A. Lindahl, Esq., Senior Counsel
STATE OF IOWA
SS:
DUBUQUE COUNTY
On this day of 20_, before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Barry A. Lindahl, to me personally
known, who being by me duly sworn did say that he is Senior Counsel of the City of
Dubuque, a Municipal Corporation, created and existing under the laws of the State of
Iowa and that said instrument was signed on behalf of said Municipal corporation by
authority and resolution of its City Council and said Senior Counsel acknowledged said
instrument to be the free act and deed of said Municipal Corporation by it voluntarily
executed.
Notary Public, State of Iowa
EXHIBIT G
CITY CERTIFICATE
Dubuque
City Manager's Office
THE CITF
City Hall
NIAI11e1kaCi1Y
50 West 1311, Street
Dubuque, Iowa 4864
DUjB-
(563) 589-4110 office
(563) 589-4149 fax
Masterpiece on the Mississippi
ctymgr@cityofdubuque.org
2012
(DATE)
Re: Development Agreement By and Between the City of Dubuque, Iowa, and SETZER
PROPERTIES DBQ, LLC
Dear
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity in
connection with the execution and delivery of a certain Development Agreement by and
between SETZER PROPERTIES DBQ, LLC (Developer) and the City of Dubuque, Iowa
(City) dated for reference purposes the day of , 20_
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse change in
the Property being conveyed or the possession, use or enjoyment thereof by
Developer, including, but not limited to, any action in condemnation, eminent
domain or public taking.
(2) No ordinance or hearing is now or before any local governmental body that
either contemplates or authorizes any public improvements or special tax levies,
the cost of which may be assessed against the Property. To the best of City's
knowledge, there are no plans or efforts by any government agency to widen,
modify, or re -align any street or highway providing access to the Property and there
are no pending or intended public improvements or special assessments affecting
the Property which will result in any charge or lien be levied or assessed against
the Property.
(3) All leases, contracts, licenses, and permits between City and third parties
in connection with the maintenance, use, and operation of the Property have been
provided to Developer and City has provided true and correct copies of all such
documents to Developer.
(4) City has good and marketable fee simple title interest in the Property.
(5) The Property has a permanent right of ingress or egress to a public roadway
for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings relating
to fire, building, zoning, air pollution, health violations or other matters that have
not been corrected. City has notified Developer in writing of any past notices,
orders, suits, judgments or other proceedings relating to fire, building, zoning, air
pollution or health violations as they relate to the Property of which it has actual
notice. The Property is in material compliance with all applicable zoning, fire,
building, and health statutes, ordinances, and regulations. The Property is
currently zoned PUD and Developer's intended use of the Property as a corporate
office/industrial facility is a permitted use in such zoning classification.
(7) Payment has been made for all labor or materials that have been furnished
to the Property or will be made prior to the Closing Date so that no lien for labor
performed or materials furnished can be asserted against the Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not and
shall not result in any material breach of any terms or conditions of any mortgage,
bond, indenture, agreement, contract, license, or other instrument or obligation to
which City is a party or by which either the City or the Property being conveyed are
bound, nor shall the execution, delivery and performance of this Agreement violate
any statute, regulation, judgment, writ, injunction or decree of any court threatened
or entered in a proceeding or action in which City may be bound or to which either
City or the Property being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power and
authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing confirming
the representation contained herein, in the form attached hereto as Exhibit C.
(11) The Property is free and clear of any occupants, and no party has a lease
to or other occupancy or contract right in the Property that shall in any way be
binding upon the Property or Developer.
(12) City represents and warrants that any fees or other compensation which
may be owed to a broker engaged directly or indirectly by City in connection with
the purchase and sale contemplated in this Agreement are the sole responsibility
and obligation of City and that City will indemnify Developer and hold Developer
harmless from any and all claims asserted by any broker engaged directly or
indirectly by City for any fees or other compensation related to the subject matter
of this Agreement.
(13) City shall exercise its best efforts to assist with Developer in the
development process.
(14) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied the
Property, and to City's knowledge after reasonable investigation with respect to
the time before City owned or occupied the Property, no person or entity has
caused or permitted materials to be stored, deposited, treated, recycled, or
disposed of on, under or at the Property, which materials, if known to be present,
would require cleanup, removal or some other remedial action under
environmental laws.
(16) All city utilities necessary for the development and use of the Property as an
industrial facility adjoin the Property and Developer shall have the right to connect
to said utilities, subject to City's connection fees.
(17) The representations and warranties contained in this article shall be correct
in all respects on and as of the Closing Date with the same force and effect as if
such representations and warranties had been made on and as of the Closing
Date.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
EXHIBIT H
CERTIFICATE OF COMPLETION
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
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, Iowa, a municipal corporation (the "Grantor"), by
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 Iowa, has
conveyed to SETZER PROPERTIES DBQ, LLC (the "Grantee"), in accordance with a
Development Agreement dated as of [Date], by and between 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 as follows:
LOT 2 DUBUQUE INDUSTRIAL CENTER NORTH THIRD ADDITION, in the City
of Dubuque, Iowa; and
That part of Plat LOT C DUBUQUE INDUSTRIAL CENTER NORTH THIRD
ADDITION shown on Exhibit B-2 and as described in Exhibit B-3.
(the "Property"); and
WHEREAS, said Deed incorporated and contained certain covenants and
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
WHEREAS, the Grantee has to the present date performed said covenants and
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
execution and recording of this certification; and
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
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 forfeiture 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 had not been satisfied, and that said Deed and the Agreement shall
otherwise remain in full force and effect.
CITY OF DUBUQUE, IOWA
STATE OF IOWA
SS
COUNTY OF DUBUQUE
Michael C. Van Milligen, City Manager
On this day of 20 , before me, the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Michael C. Van Milligen, to me
personally known, who, being by me duly sworn, did say that he is the City Manager of
the City of Dubuque, Iowa, a municipal corporation, and that the instrument was signed
on behalf of the corporation, and Michael C. Van Milligen acknowledged the execution of
the instrument to be his voluntary act and deed.
Notary Public in and for said State
EXHIBIT I
SANITARY EASEMENT AREA
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EXHIBIT J
CUL-DE-SAC EASEMENT AREA
EXHIBIT K
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EXHIBIT L
LETTER OF INTENT RE EMPLOYEES
Pa,,e I
1
FIS HER
Septem ber 21 , 202 1
Bred T. Setter
Setter Properties DLJB, LLC
354 Waller Ave, Suite 200
Lexington, KY 40504
RE, Dubuque, A Relocation #520
Letter of Terms for Purpose# Fed& Ground Build-fn-Suft lase
Dear Mr. Setter
FedFx Ground Package Systern. Inc. {"Tenant") has authorized Fischee & Company to present this
outline of the terms and conditions under which Tenant would enter into lease negotiations with
Setzer Properties DUB, LLC ('Landlord") for the above -referenced facility,
Except for the parties' agreement to negotiate In good faith, to use Tenant's standard lease form and
to keep confidential aJl communications relating to this tratrtmdion, this Letter of Terms shall not be
binding upon the parties, may be terminated or Withdrawn by either party for any reason or for no
reason, and does not contain all the essential terms and conditions of a lease. No contractual
obligations of any kind are crud by the parties' execution and delivery of this Letter of Terms or
by any incidental negotiations or conversations. A binding agreement aMl not exist between the
patties until the senior Fnenagement of Tenwift and Landlord have approved this transaction and a
definitive lease agreerrward has been fully approved and executed by ail partles.
The key business terms are as follows and any final lease between the parties would incorporate
the standard leme template customarily used by the parties, unless otherwise noted.
Landlard: Erett T. Setzer
Setzer Properties DUB, LLC
354 Waller Ave. Suite 200
Lexington, KY 40504
Temrrt FedEx Ground Package System, Inc., a Delzware Corporation
1000 FedEx Drive
Moon Township, Pennsylvania 15105
F&C ITS WT 7.14.1 d; FWv 13 — 81 �-20
Leeme Form
Ske LocadionlAomw;
Prer4aes,
Drawings and
Specifications;
Expansion Option;
Page 2
Lease template to be used will be based on the BTS — Bundled RFP
Projects Revision III
Parcel #1030126010 consisting of 3 3. 11 acres and & 1.57 acres of
Parcel #1030201004, Dubuque, IA 52002
Total sq. ft_ 217,323 on approximately 34.68 acres, see break out
below-
BulldlnComponerA
uare Feet '
Warehouse (Distribution Area)
205,904
General Office
11,419
TOTAL BUILDING
217,321
ACREAGE Land Are,►
34,68
Fed Ex Ground will provide plans and specifications to the
Land IofdIdeveloper. All future pricing will be based on the plans and
specific2oons provided.
NYA Built to full phase,
Property Insurance- Landlord shall insure the Premises under a customary arl-risk insurance
policy in an aminunt not less than the full replacement cast of the
Premises including coverage for natural disasters, but excluding
coverage for terrorism and earthquake andlor flood, unless the Premises
is in a designated earthquake zone or flood zone.
Tenant shall reimburse Landlord for annual property insurance premiums
currently estimated to be $,051SF ($ T 5.850) based on a $104,000
deductible_ In the event of a claim, Tenant will be responsible for
payment of the deductible. At any time during the Lease Term, Tenant
shall have the right to elect to take over responsibility and cost for such
property insurance_
Primary Lease Term, Target Commencement Date-. 11/1I2022
Lease Expiration pate; 1019112032
( 120 months following Rent Commencement Dater.
Conveyor Installation
Date-. 811122
Feet HTS LOT 7-14,1 1; Ft" 13 - 8-21-20
Page 3
Extension Lease Terms; Two options of five years each; 1430 days' written notice. The rent shall
increase by 5% for the first renewal option, and 5% for the second
renewal option,
Bent Comrnencernent The later of the Target Commencement pate or the date Certificate of
Occupancy is issued
Total Project Costs; All final pricing will be based on the site -specific plans and
specifications provided by FedEx Ground.
Developer/Landlord shaJI propose the Total Project Costs using the
"Developer BTS Response Forms" provided in the RFP Package.
Devel operl Land lord shall provide backup for the total project costs by
obtaining three (3) competitive bids for the Construction Project Costs
and itemize these costs using the "3— Contractor Base Bid Breakdown"
provided in the RFP Package_
Monthly Base Rent The initial monthly rent shall be based on the final agreed upon Total
Project Cost (as defined above) multiplied by the initial CAP Rate of
6.40%
Years 1-10- TPC x initial CAP mate of 6-4iD%
Security Deposit None
Liquidated Damages; Rent offset if no access by the Conveyor Installation Date: $2,500;
And by the Target Rent Commencement Date: $2,500.
Change Order
ALowance: $500,000 NOT factored into the Monthly Rent detailed above)
Change Orders shall be requested and approved by Tenant only. The
aggregate change order costs shall not exceed $504,000 unless
approved by Landlord. The aggregate change order costs shall be
multiplied by the capitalization rate of 6.4 °i6 Specdically, Monthly
Base Rent 9WI increase $5.33 per nwth r 1 000 of the allowance,
The additional rent shall be added to the Monthly Base Rent detailed
above and memorialized in a lease amendment
Environmer7tall: Phase I Environmental Site Assessment by Terraton Consultants dated
2021- Landlord proposal includes all environmental
remediation
Milestone Schedulm See Exhibit R
F&C BTS LOT 7-14-11 ! Ikcv 13 - 5-11,N1
Page 4
Undsca,pirsg; Landlord shall provide full raven maintenance including but not limited to
lawn mowing, fertilizing, weed control, trimming, and pruning to
maintain in a professional appearance the facility's landscape for the
period from completion of the landscape through one (1) year after the
Certificate of Occupancy -
Off -site Improvements- The following off -site improvements are included in the rental rate
above'
{Pending further discussion with City of Dubuque, Iowa}
Miscellaneous' Landlord shall not use Tenant's name or logotype or issue any press
release Without Tenant's prior written consent in each instance.
Job Creation_ Tenant interrds to 1. maintain its current jobs and 2. plan to €reate at
least 10 new jobs that are sustained into the future -
Confidentiality., Tenant and t an0ord acikrrowledge that the terms and Conditions
contained herein, and defarls of the ensuring rregoVaWns will rm mfn
confidential betw%n the paartms. No prop=ts, docur►wt dfd#s,
amendments or summsrres of any k►lyd rvr!/ be dy'stnbuWr copied or
othewse trarrsmitte4 arm* or irr writing to any entity cot person, except
employees and Vents of Tenant and Landlord with a tread to know, and
applicable lenders for the pr*wt,, who %av�- t(4f treed for MJGh copMs
and/or inforrm6m in ondef to cnmpfele tide transartlorr,�
rclnmi&O to the cvv26derrtr2rllty of tfu's trarasacY pn_ T7te terms and
prorismw of this letter shall remain eonfidendjJ bein eery trae parties, and
Lwx#ord shall not ese 71ena+7ft nano or kyaoW and will not rssLL- any
pt'ess release nr other k1lF7frbab an PVFW1;M9 to Ihis fetter or the Tenant
w&wvt Tenants pnor w► M9n consent,
Disclaimer. This letter is a ❑orAmution of interest only ar,d is not intended to
constitute a binding agreement, unless a written lease, in a form mutually
acceptable tD the pantie,, in their sale discretion, is prepared and signed
by both parties. The parties hereby recognize that no special relationship
has been created between the parties by virtue of this letter. The terms of
tfiis lettior a,re subject to senior management review and approval and do
not in aroy way constitute an agreement of the parties. In the event there
is an inability by boar parties to reath complete and mutual agreement
on either business or le9W Issues, this letter agreement will be null and
vcM and not binding un either party.
The above terms are generally acceptable to Tenant If t!te terms outlined in this Letter of Terms
are generally acceptable to Landlord, please indicate by signing below and returning a copy to the
undersigned, no later than September 25, 2021,
F&
LLCRnuild Pheta S ! the riea_ arty arrd �rll flroposais, modffy the
pry ga or cancer hf a aro%rt er* %k- without aqy OW19atio whaisoe cr 7 the proposing a mpanres
ther'r �errts. nsaresertl►re�, J�erlders afrd�oi' Ntiployees. 8y ram, �drhy tv t�s +west for• a revised
F&C BTS LOT 7-1+-1 1. R,-% I I a.zr -zn
Page 5
ppr�l neit w Frscher & CorpgU nor ae ffi Ground Faclr e 5 fears 1 fre l for
Costs rncumed 6y an comarrr'e
Respectfully,
Andy Merry
Senior Vice President, Fischer and Company
ACKNOWLEDGED AND ACCEPTED this _ day of .2021
LandlordSuer Fropertre5 D 6,, LLC
By;
Its.
F&C B15 LOT 7- A-11 ; Rer 13 - 9.21.20
Page 6
Exhibit A
MILESTONE SCHEDULE
V=BEGIN COMPLETE
PREDEVELOP�IENT'
SITE AND BUILDING DESIGN
ALL PERMITS NEEDED
1 Mass Grading Permit
2 Full Civil Permit
3 Buill ing Permit
4
5
SFE PLAN APPROVAL AND MASS GRADING PERMIT
Estimated tease Execution date
LAND CLOSING
DEVELOPMENT
SITE CLEARING AND GRADING
ORDER BUILDING
EXCAVATE FOUNDATION'S
J
POUR FOOTINGS AND FOUNDATIONS
DELIVER BUILDING
ERECT BUILDING
ROOF CONSTRUCTION
POUR, CURE & SEAL SLAB ON GRADE
MEP IN WAREHOLtSE
FIRE PROTECTION IN WAREHOUSE
INSTALL OVERHEAD DOORS & MAN DOORS
STONE & GRADE YARD/PARKING AREAS
INSTALL EXTERIOR CO—NCRETE
INSTALL ASPHALT PAVING - BASE COURSE
INSTALL ASPHALT PAVING - SURFACE COURSE
PERMANENT POWER TO BUILDING (required prior to MH Install)
16 LINE ITEMS NECESSARY FOR CONVEYOR INTALLATIIDN COMMENCEMENT
TELECOMM REWIRPMENTS
(i) Main Phone Cable Pulled to Board (6 months before RdiLPatc for Automated
facilities; 2 months before ate for Manual facilities
l Tele bane Board Installed with Dedicated Outlet
1ii C!Mes Installed
i Voice/Data conduits installed at all s ecihad cages
(v) Permanent power to be fully installed as part of the Material Handling
Installation
Commencement listed above. Power from a generator or ternporary service is
not an acceptable substitution for permanent poaver
DRYWALL/FINISHES MM/MEP'S IN OFFICE
CERTIFICATE OF OCCUPANCY
FINE GRADINWLANDSCAPING
LAN DLOREYS IMPROVEMENT WORK COMPLETE
RENT COMMENCENIWWENANT POSSESSION DATE
F&C ST$ LOT74-1-I I; Rcv 13-8-21-1I
THE CITY OF
DUJB E
Masterpiece on the Mississippi
TO: Roy D. Buol, Mayor
Dubuque
City Manager's Office
City Hall
50 West 13th Street
U-Amm iq Cft
Dubuque, IA 52001-4845
Office (563) 589-4110
Fax (563) 589-4149
•
TTY (563) 690-6678
2007-2012.2013
ctymgr@cityofdubuque.org
2 017 * 2019
www.cityofdubuque.org
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Request for Special City Council Meeting November 22, 2021
DATE: October 15, 2021
This memorandum requests the Mayor call a special City Council meeting to be held on
November 22, 2021, to consider a proposed Development Agreement by and between
the City of Dubuque and Setzer Properties DBQ, LLC.
When disposing of property in an urban renewal area, Iowa Code Section 403.8 requires
the City extend a full and fair opportunity to all interested developers to submit a
competing proposal that meets submission requirements and competitive criteria for the
property offering.
A resolution providing official notice has been submitted to City Council for approval and
requires publication of the notice no later than October 22, 2021. If no competing
proposals are received by the City Clerk by November 22, 2021, the City Council may
proceed with the consideration of the proposed Development Agreement from Setzer
Properties DBQ, LLC.
In order to meet the proposed construction timeline of Setzer Properties DBQ, LLC, I
respectfully request a special City Council meeting be called to be held at 6:30 p.m.,
November 22, 2021, in the City Council Chambers, Historic Federal Building at 350 West
6th Street, Dubuque, Iowa, in order to consider the proposed Development Agreement.
The Mayor's call for the special meeting should be made prior to setting the public hearing
on the Development Agreement.
Cc: Crenna Brumwell, City Attorney
Barry Lindahl, Senior Counsel
Jill Connors, Economic Development Director