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Brewery Auction Agree Crompton ~ BARRY A. LINDAHL SQ. COReORA",ON COU SEC, Cm 0' Du,uau, MEMO To: Michael Van Milligen City Manager DATE: February 16, 2004 RE: Contract For Auction of Personal Property at the Brewery Mike: Attached is an agreement that Tim O'Brien has worked out with representatives of Crompton Corporation which will allow the City to sell the personal property at the Brewery. This agreement resolves a longstanding issue with Crompton with respect to disposing of the personal property to allow redevelopment of the property. The effect of the contract is that Crompton is selling to the City all of the personal property at the Brewery and in consideration for the sale, the City will conduct an auction of the personal property and divide the proceeds at 75% to Crompton and 25% to the City, after deducting the City's fees and expenses for the auction. I would recommend that the contract be submitted to the City Council for approval. Attachment cc: Cindy Steinhauser, Assistant City Manager Tim O'Brien, Assistant City Attorney Pam Myhre, Associate Planner - ..,., ""1 CD -", ., SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 583-4113/ FAX (563) 583-1040/ EMAIL BALESQ@CITYOFDUBUQUE.ORG 'Jah'.29-04 04:16P THOMAS G. MCCUSKEY, P.C. , 319-3648501 P.03 CONTRACT FOR AliCTION OF PERSONAL PROPIi:RTY AND BILL OF SALE FOR PERSONAL I'ROPERTY L PARTIES, The parties to this agreement arc the City of Dubuque ("City" or "Buyer"), a municipal corporation organized under the laws of the State of Iowa., and Crompton Corporation ("Crompton" or "Seller"), a Delaware Corporation. 2. PURPOSE. The purpose of this document is to memorialize an agreement between Ù,e City and Crompton relating to the sale of certain personal property on the premises of what is eonunonly known as the Dubuque Star Brewery. a (hciliLy formerìy leased by Crompton, now owned by the City, pursuant to prior condemnation. There is personal property on the premises of the brewery property which is ..,Wl1ed by Crompton. Both parties to this agreement desire to makc sure that the personal property is sold. In order to effectuate that sale, the City and Crompton agree as set forth herein. 3. SALE OF PERSONAL PROPERTY. L~y virtue of the execution of this document, the parties hereto agree that Crompton Corporation does hereby sell, transfer and assign to the City of Dubuque, personal property set forth on a Schedule attached hereto, marked Exhibit A, and by this reference made a part hereof, aH ofwhìch is localed in Dubuque County, State of Iowa. The ScHer, Crompton, covenants with the I ~uyer, the City. that the Seller is the owner of such personal property and Crompton has good andbwful authority to sell, transfer and assign the property described in Exhibit A. and that the personal property is free and clear of all I iens. security interests, and encumbrances, except as ù,ey may he stated herein. Crompton covenants to warrant and dc/end said personal property against the lawful claims of all persons except as may be stated in this document. 4 WARRANTIES. Crompton, as the Seller of the personal property in this agreement, hereby sells, tmnsters, and assigns the persona] property subject to this ¡¡greement in "as is" condition. All impJied warranties of merehantahiHty and fitness IÖr any particular purpose in regard to the personal property subject to this agreement are hereby excluded. There are no warranties of fitness which extend beyond the de$cription on the face of this document. 5. CONSIDERATION. As consideration for the sale of the personal property by Crompton to the City, and to further memoriali:æ this agreement between the City and Crompton, execution of this bill of sale and contract for auction, the City and Crompton agree that the City shall conduct an auction of the personal property which is the subject of this agreement. The auction will be carried out hy Dick Hackes Commercial Auctioneers. Another auctioneer may be used hy the City only with the spÅ“il1e permi"siol1 of Crompton, which permission shalJ not be unreasonably withheld. Once the auction is concluded, and the expenses arc paid as set forth below, the City and Crompton agree that proceeds of the auction shall be divided a" set forth herein. Jah\29-04 04:17P THOMAS G. MCCUSKEY, P.C. 319-3648501 P.04 6. HOLD HARMLJ'~SS. The City agrees to be responsihle for any and all damage or liahility claims which may arise from, Or as a result oí~ this sale of the personal property by Crompton to the City, and for any damage or liahility claims arising from the auction of the personal property. The City speci1ïeally agrees to indemnify and hold Crompton harmless from any damage or liability of any kind, including costs or attorney fees, relating to the personal property sale and auction. 7. DIVISION OF PROCEEDS FROM AVCTION. A. Crompton and the City agree that once the auction is concluded, Diek Backes Commercial Auctioneers is entitled to its previously agreed upon percentage fee and expenses. That ICe shall be the standard tee charged by I )ick Backes Commercial Auctioneers in its normal auction operations and shall not he subject to any rebate by nick Backes Commercial Auctioneers to the City once the sale is concluded. B. At an hourly rate of $20.00 per hour, the cost of one city employee to be on-hand at the alletion premises on the day of the auction in question may be charged to the auction proceeds as an expense. That sum shall not exceed 10 hours at straight time. A represcntative of Crompton, Dan Costello, shall also be on the premises at the time of the auction and his expense shall be the sole cost of Crompton and shall not be chargeable to the auction proceeds or to the City. C. Once.the auction fees and expenses referred to in this paragraph are paid, the Cj¡y shall be entitled to the first $5,000,00 of the remaining proceeds. If any proceeds remain after the first $5,000.00 payable to the City, the City and Crompton shall split the remaining proceeds of the auction with 75% ofthose proeceds going to Crompton and 25% of the proceeds going to the City g. RISK Ol<' LOSS, Once this contract has been executed by authorized representatives of Crompton and the Cj¡y, the risk ofloss for the personal property shaH rest with the City. Crompton shall ónly have a claim fol' damage for the loss ofthe value of any personal property. Once this agreement is executed, Crompton shall have no cause to seek return of any of the personal property itself. Crompton shall not he responsible for, nor will it pay any costs and cxpenses related to the auction or the execution of the auction except as set forth in this doeumcnt. Once this agreement is executed, responsibility for cond\lct of the auction shall lie with the City. 9. ACCOlJNTING AND DISPERSEMENT. The City and Crompton agree that all ofthc proceeds of the auction shall be dispersed to both parties within 15 days of receipt of a final calculation from the auctioneer and notification from the auctioneer that all payment for the personal property s\1bject to the auction has been paid by the Buyer and is hcld by the auctioneer in good funds. All funds shall be held by thc auctioneer until dishursement. Funds due the City and Crompton shall be disbursed simuJtaneously. 'J~n~29-04 04:17P THOMAS G. MCCUSKEY, P.C. 319-3648501 P.05' 10. AUTHORITY TO EXECUTE DOCUMENTS. Crompton Corporation and City of Dubuque hereby agree that the persons executing the doeuments have complete, actual authority to execute this documenL t11JJ ~ fl~ ^utho~i;r.ed Representative of the City of Dubuque )/ )v/ (it.. Date en alive of Crompton Corporation z -4-°Lj: Date STATE OF IOWA ) ) ss: ) COUNTY OF DURUQT.JE ¿ ¡Tbis il}stru,- mc!l1¡was acknowledged befhre me by the person known to me to be I$-.lh.t:ifl ( U~ JIB¿¿1'kan authorized representative of the City of Dubuque on the tP/~day of ~!amy, 2004. , ,íW~VtLf :tÎ&-¡UM 1ú ~f~ Notary Public, State of lowa_- ~~,^l. I KAREN M. CHESTERMAN r¿."," ~;: COMMISSION NO. 108258 '~" MYCOI.j A/SS! NEXPIRES 'ow, 4/,;{, ~5 STATE OF CONNECTICUT ) ) ss: ) COUNTY OF NEW HA VEN This instrument was acknowledged befhre me by the person known to me to he ;5 v" ^ 1 F, -~ u r ~ , an authorized representative of the Crompton Corporation on the '-I ~ day 01 J~, 2004. - ~ Çe¿~~r ¡ ~ ) \ ccticut < . , ", Exhibit A to Contract for Auction of Personal Property and Bill of Sale for Personal Property This document, delineated as Exhibit A to the Contract for Auction of Personal Property and Bill of Sale for Personal Property, consists of and shall be effective as a Bill of Sale for the sale of all personal property on the premises ofthe Dubuque Star Brewery, located on the west bank of the Mississippi River at Dubuque, Iowa. Crompton Corporation, successor in interest to Crompton and Knowles Corp., C.K Wjtco, Inc., and Ingredient Technologies Corporation, affirmatively states that as the owner of personal property on the premises at the Dubuque Star Brewery, the execution of the Contract for Auction of Personal Property and Bill of Sale for Personal Property to which this exhibit is attached constitutes a bill of sale of that personal property by Crompton Corporation to the City of Dubuque for the purpose of an auction sale ofthe personal propeliy on the premises. Crompton Corporation affirmatively states that it owns no other personal property in Dubuque County, Iowa except for the propeliy on the premises of the Dubuque Star Brewery. The contract for auction of personal propeliy and bill of sale for personal property constitute an alienation of Crompton Corporation's interest in the personal propeliy on the premises pursuant to the contract. The City of Dubuque is fully authorized to undertake the sale of the personal property on the premises pursuant to the terms and conditions in the contract for auction as the owner of that property and have the auctioneer distribute the proceeds from the auction as set forth in the agreement to which tins exhibit is attached.