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Walter Development and TM Logistics Inc. Development AgreementMasterpiece on the Mississippi Dubuque AII- America ' r 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Expansion of Walter Development, LLC and TM Logistics, Inc., at the Dubuque Industrial Center West DATE: April 26, 2011 Economic Development Director Dave Heiar recommends that a public hearing be set for May 16, 2011, on the disposition of approximately 2.616 acres at the Dubuque Industrial Center West to Walter Development, LLC and TM Logistics, Inc., who will be constructing not less than a 10,000 square foot office building for Walter Development, LLC and TM Logistics, Inc. The Development Agreement establishes the terms of the sale of the property. The key elements of the agreement include: 1) The purchase price is $100,000 per acre for 2.616 acres. An Acquisition Grant to the developer reduces the cost to $50,000 per acre. 2) The property will be conveyed on or before June 1, 2011. 3) The company must construct a building of not Tess than 10,000 square feet costing approximately $1,000,000. MCVM:jh 4) Walter Development, LLC and TM Logistics, Inc. must retain 103 full -time positions and create 10 new jobs within two years. The 113 jobs must be retained for the term of the Agreement. 5) The company will receive a 6 -year TIF in the form of a yearly tax rebate on the value of the assessable improvements. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager David J. Heiar, Economic Development Director Masterpiece on the Mississippi TO: Michael Van Milligen, City Manager FROM: David J. Heiar, Economic Development Director DATE: April 26, 2011 Dubuque kigtd Al- AmedcaCity 11 111! 2007 SUBJECT: Expansion of Walter Development, LLC and TM Logistics, Inc. at the Dubuque Industrial Center West INTRODUCTION This memorandum presents for City Council consideration a Resolution initiating disposition of approximately 2.616 acres identified on the attached exhibit to Walter Development, LLC and TM Logistics, Inc. who will be constructing not less than 10,000 square foot office building for Walter Development, LLC and TM Logistics, Inc. The attached Resolution sets a public hearing on the disposition of this property for May 16, 2011. BACKGROUND City staff has worked Walter Development, LLC and TM Logistics, Inc. on an expansion plan for their current business. TM Logistics, Inc. is a third party warehousing and logistics company. A newer and emerging part of their business they refer to as "planning and expediting" is the reason for this expansion. TM Logistics offers the service of arranging freight, scheduling deliveries, and managing vendor performance with regard to on -time delivery for their customers. Unlike traditional warehouse -type operators and freight handlers, the positions are all phone and internet driven therefore the need is to expand office space. They have committed to retaining the current 103 full time positions currently housed in another building owned by Walter Development in the DICW, and adding at least 10 new jobs at the new facility. DISCUSSION The proposed Development Agreement provides for several incentives to encourage this local expansion. An Acquisition Grant reduces the asking price of the land from $100,000 /acre to $50,000 /acre. A 6 -year property tax rebate on the building has been offered to the company to assist in their expansion. The rebate is a form of tax increment financing without issuing a tax increment finance bond to loan monies to the company upfront. As the company pays its future tax obligation on the new facility, the City will rebate 100% (minus debt service and the School District Physical Plant and Equipment Levy) of the new TIF increment for 6 years. The attached Development Agreement establishes the terms of the sale of the property to Walter Development, LLC and TM Logistics, Inc. The key elements of the agreement include the following: 1) The purchase price is $100,000 per acre for 2.616 acres. An Acquisition Grant to the developer reduces the cost to $50,000 per acre. 2) The property will be conveyed on or before June 1, 2011. 3) The company must construct a building of not less than 10,000 square feet costing approximately $1,000,000. 4) Walter Development, LLC and TM Logistics, Inc. must retain 103 full -time positions and create 10 new jobs within two years. The 113 jobs must be retained for the term of the Agreement. 5) The company will receive a 6 year TIF in the form of a yearly tax rebate on the value of the assessable improvements. Additional terms and conditions of the disposition of the property are included within the attached Development Agreement. RECOMMENDATION I recommend that the City Council set for public hearing the disposition of the Dubuque Industrial Center West property to Walter Development, LLC and TM Logistics, Inc. for the purpose of constructing a 10,000 sq. ft. office building. This action supports the Council's objectives to assist a local business expand its operations and create new jobs. ACTION STEP The action step for the City Council is to adopt the attached Resolution. F: \USERS \Econ Dev \TM Logistics\20110426 TM Logistics Council memo Set Public Hearing.doc RESOLUTION NO. 154-10 INTENT TO DISPOSE OF AN INTEREST IN CITY OF DUBUQUE REAL ESTATE AND FIXING THE DATE FOR A PUBLIC HEARING OF THE CITY COUN- CIL OF THE CITY OF DUBUQUE, IOWA ON THE PROPOSED ISSU- ANCE OF URBAN RE- NEWAL TAX INCRE- MENT REVENUE OBLI- GATIONS AND THE EXECUTION OF A DE- VELOPMENT AGREE- MENT RELATING THERETO WITH WAL- TER DEVELOPMENT, LLC AND TM LOGIS- TICS, INC. AND. PRO- VIDING FOR THE PUB- LICATION OF NOTICE THEREOF Whereas, the City of Dubuque, Iowa (City) is the owner of the fol- lowing real property (the Property); Lot 2 -4 of Dubuque In- dustrial Center West 4th Addition in the City of Dubuque, Iowa And Whereas, City and Walter Development, LLC and TM Logistics, Inc. have entered into a Development Agree- ment, subject to the approval of the City Council, a copy of which is now on file at the Office of the City Clerk, City Hall, 13th and Central Avenue, Dubuque, Iowa, pur- suant to which City will convey the Property as shown on Exhibit A at- tached hereto to Wal- ter Development, LLC and TM Logistics, Inc.; and Whereas, the City Council has tentatively determined that it would be in the best in- terests of the City to approve the Develop- ment Agreement, in- cluding the convey- ance of the Property to Walter Development, LLC an TM Logistics, Inc.; and Whereas, it is deemed necessary and advisa- ble that City should au- thorize Urban Renewal Tax Increment Reve- nue obligations, as pro- vided by Chapter 403 of the Code of Iowa, and to enter into the Development Agree- ment relating thereto for the purpose of car- rying out an Urban Re- newal Plan as herein- after described; and Whereas, before said obligations may be ap- proved, Chapter 403 of the Code of Iowa re- quires that the City Clerk publish a notice of the proposal and of the time and place of the meeting at which the City Council pro- poses to take action thereon and at which meeting the City Coun- cil shall receive oral and /or written objec- tions from any resident or property owner of said City to such pro- posed action. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, I0- WA: Section 1. The City of Dubuque intends to dispose of its interest in the foregoing - described Property by Deed to Walter Devel- opment, LLC and TM Logistics, Inc. Section 2. The City Clerk is hereby author- ized and directed to cause this Resolution and a notice to be pub- lished as prescribed by Iowa Code Section 364.7 of a public hear- ing on the City's intent to dispose of the foregoing- described Property, to be held on the 16th day of May, 2011, at 6:3Q o'clock p.m. in the City Council Chambers at the His- toric Federal Building, 350 W. 6th Street, -Du- buque, Iowa. Section 3. The City Council will also meet at said time and place for the purpose of tak- ing action on the mat- ter of authorizing Ur- ban Renewal Tax Incre- ment Revenue obliga- tions and the execution of the Development Agreement relating thereto with Walter De- velopment, LLC and TM Logistics, Inc. the pro- ceeds of which obliga- tions will be used to carry out certain of the special financing activ- ities described in the Urban Renewal Plan for the Dubuque Industrial Center Economic De- velopment District, consisting of the fund- ing of economic devel- opments grants to Wal- ter Development, LLC and TM Logistics, Inc. pursuant to the Devel- opment Agreement un- der the terms and con- ditions of said Urban Renewal Plan. It is ex- pected'that the aggre- gate amount of the Tax Increment Revenue ob- ligations will be ap- proximately $190,000. Section 4. The Clerk is hereby directed to cause at least one pub- lication to be made of a notice of said meeting, in a newspaper, print- ed wholly in the Eng- lish language, publish- ed at least once week- ly, and having general circulation in said City, said publication to be not less than four days nor more than twenty days before the date of said meeting on the is- suance of said obliga- tions. Section 5. That the no- tice of the proposed action to issue said ob- ligations shall be in substantially the form attached hereto. Passed, approved and adopted this 2nd day of May, 2011. Roy D. Buol, Mayor Attest Kevin S. Firnstahl, Acting City Clerk 1t 5/6 STATE OF IOWA {SS: DUBUQUE COUNTY CERTIFICATION OF PUBLICATION I, Suzanne Pike, a Billing Clerk for Woodward Communications, Inc., an Iowa corporation, publisher of the Telegraph Herald,a newspaper of general circulation published in the City of Dubuque, County of Dubuque and State of Iowa; hereby certify that the attached notice was published in said newspaper on the following dates: May 6, 2011, and for which the charge is $54.94. Pe2 Subscribed to before me, a Not Public in and for Dubuque County, Iowa, this _ day of 20 l/ . otary Public in and for Dub ue County, Iowa. MARY K. WESTERMEY Commission Number 154 My_n FEB, 1.201''- Prepared by: Barry A. Lindahl, Esq. 300 Main Street Suite 330, Dubuque IA 52001 563 583 -4113 Return to: Barry A. Lindahl, Esq. 300 Main Street Suite 330, Dubuque IA 52001 563 583 -4113 RESOLUTION NO. 154 -11 INTENT TO DISPOSE OF AN INTEREST IN CITY OF DUBUQUE REAL ESTATE AND FIXING THE DATE FOR A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA ON THE PROPOSED ISSUANCE OF URBAN RENEWAL TAX INCREMENT REVENUE OBLIGATIONS AND THE EXECUTION OF A DEVELOPMENT AGREEMENT RELATING THERETO WITH WALTER DEVELOPMENT, LLC AND TM LOGISTICS, INC. AND PROVIDING FOR THE PUBLICATION OF NOTICE THEREOF Whereas, the City of Dubuque, Iowa (City) is the owner of the following real property (the Property); Lot 2 -4 of Dubuque Industrial Center West 4 Addition in the City of Dubuque, Iowa And Whereas, City and Walter Development, LLC and TM Logistics, Inc. have entered into a Development Agreement, subject to the approval of the City Council, a copy of which is now on file at the Office of the City Clerk, City Hall, 13 and Central Avenue, Dubuque, Iowa, pursuant to which City will convey the Property as shown on Exhibit A attached hereto to Walter Development, LLC and TM Logistics, Inc.; and Whereas, the City Council has tentatively determined that it would be in the best interests of the City to approve the Development Agreement, including the conveyance of the Property to Walter Development, LLC and TM Logistics, Inc.; and Whereas, it is deemed necessary and advisable that City should authorize Urban Renewal Tax Increment Revenue obligations, as provided by Chapter 403 of the Code of Iowa, and to enter into the Development Agreement relating thereto for the purpose of carrying out an Urban Renewal Plan as hereinafter described; and Whereas, before said obligations may be approved, Chapter 403 of the Code of Iowa requires that the City Clerk publish a notice of the proposal and of the time and place of the meeting at which the City Council proposes to take action thereon and at which meeting the City Council shall receive oral and /or written objections from any resident or property owner of said City to such proposed action. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The City of Dubuque intends to dispose of its interest in the foregoing - described Property by Deed to Walter Development, LLC and TM Logistics, Inc. Section 2. The City Clerk is hereby authorized and directed to cause this Resolution and a notice to be published as prescribed by Iowa Code Section 364.7 of a public hearing on the City's intent to dispose of the foregoing- described Property, to be held on the 16 day of May, 2011, at 6:30 o'clock p.m. in the City Council Chambers at the Historic Federal Building, 350 W. 6 Street, Dubuque, Iowa. Section 3. The City Council will also meet at said time and place for the purpose of taking action on the matter of authorizing Urban Renewal Tax Increment Revenue obligations and the execution of the Development Agreement relating thereto with Walter Development, LLC and TM Logistics, Inc. the proceeds of which obligations will be used to carry out certain of the special financing activities described in the Urban Renewal Plan for the Dubuque Industrial Center Economic Development District, consisting of the funding of economic developments grants to Walter Development, LLC and TM Logistics, Inc. pursuant to the Development Agreement under the terms and conditions of said Urban Renewal Plan. It is expected that the aggregate amount of the Tax Increment Revenue obligations will be approximately $190,000. Section 4. The Clerk is hereby directed to cause at least one publication to be made of a notice of said meeting, in a newspaper, printed wholly in the English language, published at least once weekly, and having general circulation in said City, said publication to be not less than four days nor more than twenty days before the date of said meeting on the issuance of said obligations. Section 5. That the notice of the proposed action to issue said obligations shall be in substantially the form attached hereto. Attest: Passed, approved and adopted this 2 day of May, 2011. Kevin S. Firnsta , Acting City Clerk Roy [?',/Buol, Mayor NOTICE OF A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA, ON THE MATTER OF THE PROPOSED AUTHORIZATION OF URBAN RENEWAL TAX INCREMENT REVENUE OBLIGATIONS AND THE EXECUTION OF A DEVELOPMENT AGREEMENT RELATING THERETO WITH. WALTER DEVELOPMENT, LLC AND TM LOGISTICS, INC. AND DISPOSING OF THE CITY'S INTEREST IN CERTAIN REAL ESTATE PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque, Iowa, will hold a public hearing on the 16 day of May, 2011, at 6:30 p.m. in the City Council Chambers at the Historic Federal Building, 350 W. 6 Street, Dubuque, Iowa, at which meeting the City Council proposes to take action disposing of the City's interest by Deed to Walter Development, LLC and TM Logistics, Inc. in the following described real estate: Lot 2 -4 of Dubuque Industrial Center West 4 Addition in the City of Dubuque, Iowa And for the authorization of Urban Renewal Tax Increment Revenue obligations and the execution of a Development Agreement relating thereto with Walter Development, LLC and TM Logistics, Inc. in order to carry out certain of the special financing activities in the Urban Renewal Plan for the Dubuque Industrial Park Economic Development District, consisting of the funding of economic development grants to Walter Development, LLC and TM Logistics, Inc. pursuant to a Development Agreement entered into with Walter Development, LLC and TM Logistics, Inc. under the terms and condition_ s of said Urban Renewal Plan. It is expected that the aggregate amount of the Tax Increment Revenue obligations will be approximately $190,000. At the meeting, the City Council will receive oral and written objections from any resident or property owner of said City to the above action. After all objections have been received and considered, the City Council may at this meeting or at any adjournment thereof, take additional action for the disposition of the City's interest in such real estate above, the approval of the Development Agreement, and authorization of such Tax Increment Revenue obligations or will abandon the proposal. By order of the City Council said hearing and appeals there from shall be held in accordance with and governed by the provisions of Section 403.9 of the Code of Iowa. This notice is given by order of the City Council of the City of Dubuque, Iowa, as provided by Chapter 403 of the Code of Iowa. Dated this•'' `day of 2011. Acting City Clerk of Dubuque, Iowa F: \USERS\Econ Dev \TM Logistics \20110426 TM Logistics Resolution Setting Public Hearing on DA.doc EXISTING VANGUARD BLDG 30,000 SQ.FT. FFE 846.40 600 Star Brewery Drive Suite 300 Dubuque, IA 52001 (563) 583 -2169 WITNESSETH: DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF DUBUQUE, IOWA, WALTER DEVELOPMENT, LLC, AND TM, INC. This Agreement, dated for reference purposes the day of , 2011, 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), Walter Development, LLC, an Iowa limited liability company with its principal place of business at Dubuque, Iowa (Developer), and TM, Inc., d /b /a TM Logistics, Inc. an Iowa corporation with its principal place of business in Dubuque, Iowa, (Employer). WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City has undertaken an Urban Renewal project (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); and WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of this Agreement, attached hereto as Exhibit A, has been recorded among the land records in the office of the Recorder of Dubuque County, Iowa; and WHEREAS, Employer has determined that it requires a new building to maintain and expand its operations and employment in the Project Area; and WHEREAS, Developer and Employer have entered into an agreement for the construction of a new office building; and WHEREAS, Developer has requested that City sell to Developer 2.616 acres of which 2.616 acres are usable, legally described as Lot 2-4 of Dubuque Industrial Center West 4 Addition in the City of Dubuque, Dubuque County, Iowa, together with all easements, tenements, hereditaments, and appurtenances belonging thereto (the Property) so that Developer may develop the Property, located in the Project Area for the construction of an office building and thereafter lease and sell 032311balrev2 such property to Employer for use and occupancy with appurtenant uses which City has determined and represented to Developer and Employer is in accordance with the uses specified in the Urban Renewal Plan and in accordance with this Agreement; and WHEREAS, City believes that 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 premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: SECTION 1. CONVEYANCE OF PROPERTY TO DEVELOPER 1.1 Purchase Price. The purchase price for the Property (the Purchase Price) shall be the sum of Two Hundred Sixty -One Thousand Six Hundred Dollars ($261,600.00) (One Hundred Thousand Dollars ($100,000.00) per usable acre for 2.616 net usable acres) with a total acquisition of 2.616 acres, which shall be due and payable by Developer in immediately available funds in favor of City, on or before June 1, 2011, or on such other date as the parties may mutually agree (the Closing Date). City acknowledges receipt of the sum of $5,000.00 from Developer as earnest money, to be returned to Developer at the Closing, or in the event the parties fail to close within thirty days after the Closing Date less any expenses incurred by City in connection with this Agreement. 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 Closing 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 5.3, below: (1) City, at its sole cost and expense, shall deliver to Developer an abstract of title to the Property continued through the date of this Agreement reflecting merchantable title in City in conformity with this Agreement and applicable state law. The abstract shall be delivered together with full copies of any and all encumbrances and matters of record applicable to the Property, and such abstract shall become the property of Developer when the Purchase Price is paid in full in the aforesaid manner. (2) Developer shall have until time of the Closing Date 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 2 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 or Employer'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 Date, or any extension thereof consented to by Developer, Developer may, at its sole discretion, either (a) terminate this Agreement without any liability on its or Employer's 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 with Employer's prior written consent. City agrees to use its best reasonable efforts to promptly satisfy any such objections. 1.3 Rights of Inspection, Testing and Review. Developer and /or Employer, their 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 /or Employer and their agent and representatives shall also have the right to enter upon Property at any time after the execution and delivery hereof for any purpose whatsoever, including, but not limited to, inspecting, surveying, engineering, test boring, and performing environmental tests, provided that Developer and Employer 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 or Employer, their 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 and Employer to enter into this Agreement and purchase the Property, City hereby represents and warrants to Developer and to Employer 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 or Employer, including, but not limited to, any action in condemnation, eminent domain or public taking. (2) No ordinance or hearing is now or before any local governmental body that either contemplates or authorizes any public improvements or special tax 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 3 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 and Employer 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 Employer's intended use of the Property as a distribution 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 4 and authority to execute, deliver and perform its obligations under this Agreement. City's attorney shall issue a legal opinion to Developer and Employer 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, Developer or Employer. (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 Employer and hold Developer and Employer 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 Developer and Employer 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 office 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 which representations and warranties shall continue and survive the Closing Date. 1.5 Conditions to Closing. The closing of the transaction contemplated by this Agreement and all the obligations of Developer and Employer under this Agreement are subject to fulfillment, on or before the Closing Date, of the following conditions: 5 (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 to that effect in the form of Exhibit H. (2) Title to the Property shall be in the condition warranted in Section 1.4. (3) Employer, in its sole and absolute discretion, having approved of any improvements by Developer hereunder. (4) Subject to Employer's written approval, 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 Property. Any conditions imposed as a part of the zoning, platting or subdivision must be satisfactory to Developer and Employer respectively, in their 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, 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 or Employer, and the construction, use and occupancy of the project with the intent and understanding that Developer, Employer, and their respective 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 and Employer to streamline and facilitate the obtaining of such permits, approvals and consents. (5) City, having given all required notices to or obtaining 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 (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 Developer's financial ability as the reasonable judgment of the City requires. (8) Developer shall have furnished City with evidence in a form as required by Section 4.2 and satisfactory to City of Employer's full -time equivalent employees (FTE) in Dubuque, Iowa, as of March 1, 2011. (9) Execution of a lease agreement with option to purchase for the Property between Developer and Employer with a copy of the lease provided to City. (10) Receipt of an opinion of counsel to Developer in the form attached hereto as Exhibit D. (11) Receipt of an opinion of counsel to Employer in the form attached hereto as Exhibit E. (12) Developer and Employer shall have the right to terminate this Agreement at anytime prior to the consummation of the closing on the Closing Date if either Developer or Employer determines in its sole discretion that conditions necessary for the successful completion of the Project contemplated herein have not been satisfied in either party's sole and unfettered discretion. Upon the giving of notice of termination by such terminating party to the other parties to this Agreement, this Agreement shall be deemed null and void. 1.6 Closing. The closing of the purchase and sale shall take place on the Closing Date. 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. 1.7 City's Obligations at Closing. At or prior to the 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 F (Deed) and 7 appropriate resolutions of the City Council 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 or Employer as set forth in this Agreement, and to the conditions subsequent set forth in Section 5.3 below. (2) Deliver to Developer the Abstract of Title to the Property. (3) Deliver to Developer such other documents as may be required by this Agreement, all in a form satisfactory to Developer. 1.8 Delivery of Purchase Price; Obligations At Closing. At closing, and subject to the terms, conditions, and provisions hereof and the performance by City of its obligations as set forth herein, Developer shall pay the Purchase Price to City pursuant to Section 1.1 hereof, but subject to Developer receiving an offsetting credit pursuant to Section 3.1 below. 1.9 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, if any, 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 attorney's fees. (c) Developer's broker and /or real estate commissions and fees, if any. 8 (d) A pro -rata portion of all taxes as provided in Section 1.10. 1.10 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years that end prior to the Closing Date. Real estate taxes for the fiscal year in which the Closing Date occurs shall be prorated between City and Developer to the 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 Developer is building an office building on the Property for Employer as shown on the Site Plan attached hereto as Exhibit B. Specifically, Developer is charged with constructing the building and certain internal systems thereto, and with finishing the building including, without limitation, all interior improvements (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 that the office building shall be not Tess than ten thousand (10,000) square feet of floor space along with necessary site work as contemplated in this Agreement at an estimated cost of approximately $1,000,000.00. 2.2 Plans for Construction of Minimum Improvements. Plans and specifications with respect to the development of Property and the construction of 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 any covenants, conditions, restrictions, reservations, easements, liens and charges, applicable to the Property, in the records of Dubuque County, Iowa. Developer shall submit to Employer and City, for approval by Employer and 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 Employer and City. 2.3 Timing of Improvements. Developer hereby_agrees that construction of Minimum Improvements on the Property shall be commenced within three (3) months after the Closing Date, and shall be substantially completed by December 31, 2011. The time frames for the performance of these obligations shall be suspended due to unavoidable delays, meaning delays, outside the control of the party claiming its occurrence in good faith, which are the direct result of strikes, other labor troubles, unusual shortages of materials or labor, unusually severe or prolonged bad weather, acts of God, fire or other casualty to the Minimum Improvements, litigation commenced by third parties which, by injunction or other similar judicial action or by the exercise of reasonable discretion directly results in 9 delays, or acts of any federal, state or local government which directly result in 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, City 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 Minimum Improvements. The Certificate of Completion shall waive all rights of re- vestment of title in City as provided in Section 5.3, 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 re- vestment of title may occur (or such that the City would have the option of exercising its re- vestment rights), then Developer's lender or Employer shall have the right, but not the obligation, to complete such Minimum Improvements. SECTION 3. CITY PARTICIPATION 3.1 Acquisition Grant to Developer. For and in consideration of Developer's obligations hereunder to construct the Minimum Improvements, City agrees to make an Acquisition Grant to Developer on the Closing Date, or such other date as the parties shall mutually agree upon in writing, in the amount of One Hundred Thirty Thousand Eight Hundred Dollars ($130,800.00)(Fifty Thousand Dollars ($50,000.00) per acre x 2.616 usable acres). The parties agree that the Acquisition Grant shall be payable in the form of a credit favoring Developer at time of Closing with the effect of directly offsetting a portion of the purchase price obligation of Developer. 3.2 Economic Development Grant. (1) For and in consideration of Developer's and Employer's obligations hereunder, and in furtherance of the goals and objectives of the urban renewal plan for the Project Area and the Urban Renewal Law, City agrees, subject to Developer and Employer being and remaining in compliance with the terms of this Agreement, to make twelve (12) consecutive semi - annual payments (such payments being referred to collectively as the Economic Development Grants) to the Employer if Employer owns or leases the Property and /or Improvements thereon during the period such tax increment revenues accrue, otherwise to Developer (and City may rely upon a statement from Employer or Developer with respect to Employer's ownership or lease status for such purposes without any obligation to verify such status), as follows: 10 November 1, 2012 November 1, 2013 November 1, 2014 November 1, 2015 November 1, 2016 November 1, 2017 May 1,2013 May 1,2014 May 1, 2015 May 1,2016 May 1,2017 May 1,2018 pursuant to Iowa Code Section 403.9 of the Urban Renewal Law in amounts equal to the actual amount of tax increment revenues collected by City under Iowa Code Section 403.19 (without regard to any averaging that may otherwise be utilized under Iowa Code Section 403.19 and excluding any interest that may accrue thereon prior to payment to Employer or Developer) during the preceding six -month period in respect of the Property and Minimum Improvements constructed by Developer or Employer (the Developer Tax Increments). Developer recognizes and agrees that the Economic Development Grants shall be paid solely and only from the incremental taxes collected by City in respect to the Property and Minimum Improvements, which does not include property taxes collected for the payment of bonds and interest of each taxing district, and taxes for the regular and voter - approved physical plant and equipment levy, and any other portion required to be excluded by Iowa law, and thus such incremental taxes will not include all amounts paid by Developer as regular property taxes. (2) To fund the Economic Development Grants, City shall certify to the County prior to December 1 of each year, commencing December 1, 2011, its request for the available Developer Tax Increments resulting from the assessments imposed by the County as of January 1 of that year, to be collected by City as taxes are paid during the following fiscal year and which shall thereafter be disbursed to the Employer if Employer owns or leases the Property and /or Improvements thereon during the period such tax increment revenues accrue, otherwise to Developer (and City may rely upon a statement from Employer or Developer with respect to Employer's ownership or lease status for such purposes without any obligation to verify such status), on November 1 and May 1 of that fiscal year. (Example: if City so certifies by December, 2011, the Economic Development Grants in respect thereof would be paid to the Employer on November 1, 2012, and May 1, 2013.) (3) The Economic Development Grants shall be payable from and secured solely and only by the Developer Tax Increments paid to City that, upon receipt, shall be deposited and held in a special account created for such purpose and designated as the "TM Inc. TIF Account" of City. City hereby covenants and agrees to maintain its TIF ordinance in force during the term and to apply the incremental taxes collected in respect of the 11 Property and Minimum Improvements and allocated to the TM Inc. TIF Account to pay the Economic Development Grants, as and to the extent set forth in Section 3.2(1) hereof. The Economic Development Grants shall not be payable in any manner by other tax increments revenues or by general taxation or from any other City funds. City makes no representation with respect to the amounts that may be paid to Employer as the Economic Development Grants in any one year and under no circumstances shall City in any manner be liable to Employer so long as City timely applies the Developer Tax Increments actually collected and held in the TM Inc. TIF Account (regardless of the amounts thereof) to the payment of the Economic Development Grants to Employer as and to the extent described in this Section. (4) City shall be free to use any and all tax increment revenues collected in respect of other properties within the Project Area, or any available Developer Tax Increments resulting from the termination of the annual Economic Development Grants under Section 3.2 hereof, for any purpose for which such tax increment revenues may lawfully be used pursuant to the provisions of the Urban Renewal Law, and City shall have no obligations to Developer or Employer with respect to the use thereof. SECTION 4. COVENANTS OF EMPLOYER 4.1 Job Creation. (1) Employer shall create ten (10) full -time equivalent (FTE) employees in Dubuque, Iowa prior to December 31, 2013, and shall maintain those jobs during the Term of this Agreement. It is agreed by the parties that Employer has One Hundred Three (103) FTE employees in Dubuque, Iowa, as of March 1, 2011. FTE employees shall be calculated by adding full -time and part-time employees together using 2080 hours per year as one FTE employee. In the event that the certificate provided to City under Section 4.2 hereof on January 1, 2018 discloses that Employer does not as of that date have at least 113 FTE employees as provided hereinabove, Employer if Employer owns or leases the Property and /or Improvements on that date (and City may rely upon a statement from Employer or Developer with respect to Employer's ownership or lease status for such purposes without any obligation to verify such status), otherwise Developer, shall pay to City, promptly upon written demand therefor, an amount equal to $1,157.52 per job not created or maintained ($130,800.00 divided by 113 FTE employees = $1,157.52). The payments provided for herein shall be the City's sole remedy for the failure of Employer to meet the job creation requirements of this subsection 4.1(1). (2) In addition to the payment required by subsection 4.1(1), for the FTE employee positions that Employer fails to create and maintain for any year during the Term of this Agreement, the semi - annual Economic Development 12 Grants for such year under Section 3.2 shall be reduced by the percentage that the number of such FTE employee positions bears to the total number of FTE employee positions required to be created and maintained (113 FTE employees) by this Section 4.1. (For example, if Employer has 105 FTE employees, the semi - annual Economic Development Grants would be 92.92% (105/113 employees) of the Tax Increment Revenues received by City would be paid by City). The reduction of the semi - annual Economic Development Grants shall be the City's sole remedy for the failure of Employer to meet the job creation requirements of this subsection 4.1(2). 4.2 Certification. To assist City in monitoring the performance of Employer hereunder, not later than January 1, 2013, and again not later than January 1 of each year thereafter during the term of this Agreement, a duly authorized officer of Employer shall certify to City in a form acceptable to City (a) the number of full time jobs employed in Dubuque, Iowa, and (b) to the effect that such officer has re- examined the terms and provisions of this Agreement and that at the date of such certificate, and during the preceding twelve (12) months, Employer is not or was not in default in the fulfillment of any of the terms and conditions of this Agreement and that no Event of Default (or event which, with the lapse of time or the giving of notice, or both, would become an Event of Default) is occurring or has occurred as of the date of such certificate or during such period, or if the signer is aware of any such default, event or Event of Default, said officer shall disclose in such statement the nature thereof, its period of existence and what action, if any, has been taken or is proposed to be taken with respect thereto. Such certificate shall be provided not later than February 28, 2013, and by February 28 of each year thereafter during the term of this Agreement 4.3 Books and Records. During the term of this Agreement, Developer and Employer shall keep at all times proper books of record and account in which full, true and correct entries will be made of all dealings and transactions of or in relation to the business and affairs of Developer and Employer in accordance with generally accepted accounting principles consistently applied throughout the period involved, and Developer and Employer shall provide reasonable protection against loss or damage to such books of record and account. 4.4 Real Property Taxes. From and after the Closing Date, Developer shall pay or cause to be paid, when due, all real property taxes and assessments payable with respect to all and any parts of the Property unless Developer's obligations have been assumed by Employer or another person pursuant to the provisions of this Agreement. 4.5 No Other Exemptions. During the term of this Agreement, Developer and Employer agree not to apply for any state or local property tax exemptions which are available with respect to the Development Property or the Minimum Improvements located thereon that may now be, or hereafter become, available 13 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. 4.6 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): (a) All risk builder's risk insurance, written on a Completed Value Form in an amount equal to one hundred percent (100 %) of the replacement value when construction is completed; (b) Insurance as set forth in the attached Insurance Schedule. (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 Minimum Improvements under an insurance policy written in an amount not less than the full insurable replacement value of Minimum Improvements. The term "replacement value" shall mean the actual replacement cost of the 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 shall notify City immediately in the case of damage exceeding $500,000.00 in amount to, or destruction of, the Minimum Improvements or any portion thereof resulting from fire or other casualty. Net proceeds of any such insurance (Net Proceeds), shall be paid directly to Developer as its interests may appear, and Developer shall forthwith repair, reconstruct and restore the Minimum Improvements to substantially the same or an improved condition or value as they existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restoration, Developer shall apply the Net Proceeds of any insurance relating to such damage received by Developer to the payment or reimbursement of the costs thereof, subject, however, to the terms of any mortgage encumbering title to the Property (as its interests may appear). Developer shall complete the repair, reconstruction and restoration of Minimum Improvements whether or not the Net Proceeds of insurance received by Developer for such Purposes are sufficient. 14 4.7 Preservation of Property. During the term of this Agreement, Developer shall maintain, preserve and keep, or cause others to maintain, preserve and keep, the Minimum Improvements in good repair and working order, ordinary wear and tear excepted, and from time to time shall make all necessary repairs, replacements, renewals and additions. 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. 4.8 Non - Discrimination. In carrying out the project, Developer shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, sexual orientation, gender identity, national origin, age or disability. 4.9 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. 4.10 Non - Transferability. Until such time as the Minimum Improvements are complete (as certified by City under Section 2.4), this Agreement may not be assigned by Developer except to Employer nor may the Property be transferred by Developer to another party except Employer without the prior written consent of City, which shall not be unreasonably withheld. Thereafter, Developer or Employer shall have the right to assign this Agreement and upon assumption of the Agreement by the assignee, Developer shall no longer be responsible for its obligations under this Agreement. 4.11 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) Devote the Property to, and only to and in accordance with, the uses specified in the Urban Renewal Plan (and City represents and agrees that use of the Property as an office building is in full compliance with the Urban Renewal Plan) (however, Developer shall not have any liability to City to the extent that a successor in interest shall breach this covenant and City shall 15 seek enforcement of this covenant directly against the party in breach of same); and (2) Not discriminate upon the basis of race, religion, color, sex, sexual orientation, national origin, age or disability in the sale, lease, rental, use or occupancy of the Property or any improvements erected or to be erected thereon, or any part thereof (however, 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). 4.12 Release and Indemnification Covenants. (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, covenants and agrees that the Indemnified Parties shall not be liable for, and agree to indemnify, defend and hold harmless the Indemnified Parties against, any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Minimum Improvements. (2) Except for any gross negligence, willful misrepresentation or any willful or wanton misconduct or any unlawful act of the Indemnified Parties, Developer 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 or Employer for any damage or injury to the persons or property of Developer or Employer or their 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, 16 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. 4.13 Compliance with Laws. Developer and Employer shall comply with all laws, rules and regulations relating to its businesses, other than laws, rules and regulations for which the failure to comply with or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, financial or otherwise, of Developer or Employer. SECTION 5. EVENTS OF DEFAULT AND REMEDIES 5.1 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 or Employer to pay or cause to be paid, before delinquency, all real property taxes assessed with respect to the Minimum Improvements and the Property. After the issuance of the Certificate of Completion, however, such event shall not entitle City to the remedy provided in Section 5.3. (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 of the Minimum Improvements except to Employer in violation of the provisions of this Agreement prior to the issuance of the final Certificate of Completion. (4) Failure by Developer or Employer or City to substantially observe or perform any other material covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. 5.2 Remedies on Default by Developer. Whenever any Event of Default referred to in Section 5.1 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 Employer (and the holder of any mortgage encumbering any interest in the Property of which City has been notified of in writing) of the Event of Default, but only if the Event of Default has not been cured within sixty (60) days following such notice, or if the Event of Default cannot be cured within sixty (60) days and Developer or Employer 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 defaulting party, deemed adequate by City, that the defaulting party will cure its default and continue its performance under this Agreement; (2) Until the Closing Date, City may cancel and rescind this Agreement; (3) City shall be entitled to recover from Developer the sum of all amounts expended by City in connection with the funding of the Acquisition Grant to Developer, and City may take any action, including any legal action it deems necessary, to recover such amounts from the defaulting party; (4) City may withhold the Certificate of Completion; or (5) 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. 5.3 Re- vesting Title in City Upon Happening of Event Subsequent to Conveyance to Developer. 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 Property or construction of the Minimum Improvements (First Mortgage), an Event of Default under Section 5.1 of this Agreement occurs and is not cured within the times specified in Section 5.2, 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 re -vest in City pursuant to the provisions of this Section 5.3 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 5.1 on the part of Developer and failure on the part of Developer or Employer 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 Property conveyed to Developer, and that such title and all rights and interests of Developer, and any assigns or successors in interests of Developer, and any assigns or successors in interest to and in Property, shall revert to City (subject to the provisions of Section 5.3 of this Agreement), but only if the events stated in Section 5.1 of this Agreement have not been cured within the time period provided above, or, if the events cannot be cured 18 within such time periods, Developer or Employer do not provide assurance to City, reasonably satisfactory to City, that the events will be cured as soon as reasonably possible. Notwithstanding the foregoing, however, City agrees to execute a Subordination Agreement in favor of Developer's first mortgage lender, in a form reasonably acceptable to City and to Developer's first mortgage lender. 5.4 Resale of Reacquired Property; Disposition of Proceeds. Upon the re- vesting in City of title to the Property as provided in Section 5.3 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 the 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 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 re- vesting 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 19 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 the cash actually invested by such party in making any of the Minimum Improvements on the Property, less (2) any gains or income withdrawn or made by Developer from this Agreement or the Property. 5.5 No Remedy Exclusive. Except as otherwise provided in this Agreement, 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. 5.6 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. 5.7 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. 5.8 Remedies on Default by City. If City defaults in the performance of this Agreement, Developer or Employer may take any action, including legal, equitable or administrative action that may appear necessary or desirable to collect any payments due under this Agreement, to recover expenses of Developer or Employer, or to enforce performance and observance of any obligation, agreement, or covenant of City under this Agreement. Developer may suspend their performance under this Agreement until they receive assurances from City, deemed adequate by Developer or Employer, that City will cure its default and continue its performance under this Agreement. SECTION 6. GENERAL TERMS AND PROVISIONS 20 6.1 Notices and Demands. Whenever this Agreement requires or permits any notice or written request by one party to another, it shall be deemed to have been properly given if and when delivered in person or three (3) business days after having been deposited in any U.S. Postal Service and sent by registered or certified mail, postage prepaid, addressed as follows: If to Developer: Timothy W. Hodge Walter Development, LLC 7465 Chavenelle Rd Dubuque, IA 52002 Phone: (563) 583 -9781 With copy to: William Maiers Reynolds and Kenline, LLP P.O. Box 239 Dubuque, Iowa 52004 -0239 Phone: (563) 556 -8000 If to Employer: Tim Hodge TM, Inc., d /b /a TM Logistics, Inc. 7465 Chavenelle Road Dubuque IA 52002 Phone: (563) 583 -9781 With copy to: William Maiers Reynolds and Kenline, LLP P.O. Box 239 Dubuque, Iowa 52004 -0239 Phone: (563) 556 -8000 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. 13 Street Dubuque, IA 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. 21 6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of City, Developer and Employer and their respective successors and assigns. 6.3 Termination Date. This Agreement and the rights and obligations of the parties hereunder shall terminate on May 1, 2018 (the Termination Date). 6.4. Execution By Facsimile. The parties agree that this Agreement may be transmitted among them by facsimile machine. The parties intend that the faxed signatures constitute original signatures and that a faxed Agreement containing the signatures (original or faxed) of all the parties is binding on the parties. 6.5 Memorandum of Development Agreement. Developer shall promptly record a Memorandum of Development Agreement in the form attached hereto as Exhibit G in the office of the Recorder of Dubuque County, Iowa. Developer shall pay the costs for so recording. CITY OF DUBUQUE, IOWA WALTER DEVELOPMENT, LLC By: By: Roy D. Buol, Mayor Timothy W. Hodge, Manager By: TM, INC Kevin S. Firnstahl, Acting City Clerk 22 By: Timothy W. Hodge, President LIST OF EXHIBITS Insurance Schedule A Exhibit A Urban Renewal Plan Exhibit B Site Plan Exhibit C City Attorney Certificate Exhibit D Opinion of Counsel to Developer Exhibit E Opinion of Counsel to Employer Exhibit F Deed Exhibit G Memorandum of Development Agreement Exhibit H City Certificate INSURANCE SCHEDULE A INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE 1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A or better in the current A.M. Best Rating Guide. 2. All policies of insurance shall be endorsed to provide a thirty (30) day advance notice of cancellation to the City of Dubuque, except for 10 day notice for non- payment, if cancellation is prior to the expiration date. This endorsement supersedes the standard cancellation statement on the Certificate of Insurance. 3. Developer shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 6 below. Such certificates shall include copies of the following policy endorsements: a) Commercial General Liability policy is primary and non - contributing. b) Commercial General Liability additional insured endorsement. c) Governmental Immunity Endorsements. 4. Each certificate shall be submitted to the contracting department of the City of Dubuque. 5. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement. 6. Developer shall be required to carry the following minimum coverage /limits or greater if required by law or other legal agreement: a) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products - Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence Limit $1,000,000 Fire Damage Limit (any one occurrence) $ 50,000 Medical Payments $ 5,000 This coverage shall be written on an occurrence, not a claims made form. Form CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be included. All deviations or exclusions from the standard ISO commercial general liability form CG 0001, or Business Owners form BP 0002, shall be clearly identified. 24 INSURANCE SCHEDULE A (Continued) INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE Governmental Immunity Endorsement identical or equivalent to form attached. Additional Insured Requirement: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and /or authorities and their board members, employees and volunteers shall be named as an additional insured on General Liability Policies using ISO endorsement CG 20 26 0704 "Additional Insured — Designated Person or Organization," or it's equivalent. — See Specimen b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY Statutory for Coverage A Employers Liability: Each Accident $100,000 Each Employee — Disease $100,000 Policy Limit — Disease $500,000 c) UMBRELLA EXCESS LIABILITY LIQUOR OR DRAM SHOP LIABILITY Coverage to be determined on a case by case basis by Finance Director. Completion Checklist ❑ Certificate of Liability Insurance (2 pages) ❑ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages) ❑ Additional Insured 20 26 07 04 ❑ Governmental Immunities Endorsement 25 CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT 1 Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coverage. The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. 4. Non - Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN 26 ACORD CERTIFICATE OF LIABILITY INSURANCE DATE (MWDD Y) 12/7/2007 CONTRACT OR OTHER DOCUMENT DESCRIBED HEREIN REDUCED BY PAID CLAIMS. PRODUCER (563) 123-4567 Insurance Agency Street Address City FAx (563) 987 -6543 ST Zip Code THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION HO FICATE DOES NOT AMEND, CERTIFICATE OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC 0 INSURED Company Street City St Zip Code INSURER A Insurance Company INSURER B. INSURER C INSURER 0 3 1,000,000 INSURER THE POLICIES OF INSURANCE LISTED BELOW REQUIREMENT, TERM OR CONDITION OF ANY THE INSURANCE AFFORDED BY THE POLICIES AGGREGATE LIMITS SHOWN MAY HAVE BEEN HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. CONTRACT OR OTHER DOCUMENT DESCRIBED HEREIN REDUCED BY PAID CLAIMS. I R INSRD WSRD TYPE OF INSURANCE POUCY NUMBER POLICY (N EFFECTIVE ) 0�ATE O/ Y) urns GENERAL LIABIUTY EACH OCCURRENCE 3 1,000,000 X COMMERCIAL GENERAL LIIIBIL TY DAMAGE TO RENTED PREMISES (Es aeansna) 3 50,000 A x 1 CLAMS MADE X OCCUR MED EXP (My ono prison) 3 5,000 PERSONAL 8ADV INJURY i 1,000,000 GENERAL AGGREGATE 3 2,000,000 AGGREGATE LIMIT APPLES PER PRODUCTS- COMP/OP AGO 3 1,000,000 � 7 GENL I POLICY 171 1 ;E n LOC AUTOMOINLE LIABILITY COMBINED SINGLE LIMIT E. scadeti) 8 1,000,000 X ANY AUTO A _ ALL OVMED AUTOS BOOST INJURY SCHEDULED AUTOS (Pe person) $ _ HIRED AUTOS BODILY INJURY 3 NON -OWNED AUTOS (Pot accident) PROPERTY DAMAGE (Pm +) 3 GARAGE LUIBILRY AUTO ONLY - EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC 3 AUTO ONLY AGG 3 EXCESSNMBRELLA UABLITY EACH OCCURRENCE 3 OCCUR CRAMS MADE R DE000TeLE Srf AGGREGATE 1 3 f RETENTION S 0 3 A WORKERS COMPENSATION AND 1A 1I X I TOfiY LIAI I I EYPLOYERB' LIABILITY ANY PROPRIETORNARTNER,EXECUTNE Se E L EACH ACC DENT 100, 000 OFFICER/MEMBER EXCLUDED? E.L DISEASE-EA EMPLOYEES $ 100,000 V yes, OeeaXe under EL DISEASE - POLICY LIMIT 3 500,000 SPECIAL PROVISIONS DHoo OTHER DESCRIPTION OF OPPERATION SIIOCATIONSNEHICLE&EXCLUSIONS ADDEO BY ENDORSEMENT/SPECIAL PROVISIONS City of Dubuque is listed as an additional insured on general liability policies using ISO endorsement fora CG 2026 0704 "Additional Insured - Designated Person or Organisation" or its equivalent. General Liability policy is primary 4 non - contributing. For CO 2504 0397 "Designated Locations" general liability aggregate limit is included. Governmental immunities endorsement is included. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE City of Dubuque EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAL 50 West 13th Street 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NANO TO THE LEFT, BUT Dubuque, IA 5200I FAILURE TO 00 SO SHALL IMPOSE NO OBLIGATION OR LIABILTTY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE COVERAGES ACORD 26 (2001108) INS026(oacE).os AMS VMP Malpopo SdWns. Inc (1100)327-0515 27 O ACORD CORPORATION 1988 Pops 1 of 2 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001100) INS025 (oiceps AMS Papa 2 d2 28 POLICY NUMBER: DESIGNATED LOCATION(S) GENERAL AGGREGATE LIMIT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE COMMERCIAL GENERAL LIABILITY CG 25 04 03 97 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. Designated Location(s): (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) A. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under COVERAGE A (SECTION I), and for all medical expenses caused by accidents under COVERAGE C (SECTION 1), which can be attributed only to operations at a single desig- nated "location" shown in the Schedule above: 1. A separate Designated Location General Aggregate Limit applies to each designated "location ", and that limit is equal to the amount of the General Aggregate Limit shown in the Declarations. 2. The Designated Location General Aggregate Limit is the most we will pay for the sum of all damages under COVERAGE A, except dam- ages because of 'bodily injury" or "property damage" included in the "products - completed operations hazard', and for medical expenses under COVERAGE C regardless of the num- ber of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits'. 3. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the Designated Loca- tion General Aggregate Limit for that desig- nated "location ". Such payments shall not re- duce the General Aggregate Limit shown in CG 25 04 03 97 Page 1 of 2 29 the Declarations nor shall they reduce any other Designated Location General Aggre- gate Limit for any other designated "location" shown in the Schedule above. 4, The limits shown in the Declarations for Each Occurrence, Fire Damage and Medical Ex- pense continue to apply. However, instead of being subject to the General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Designated Location General Aggregate Limit. B. For all sums which the insured becomes legally obligated to pay as damages caused by 'occur- rences" under COVERAGE A (SECTION I), and for all medical expenses caused by accidents under COVERAGE C (SECTION 1), which can- not be attributed only to operations at a single designated "location' shown In the Schedule above: 1. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products- Completed Operations Aggregate Limit, whichever is applicable; and 2. Such payments shall not reduce any Desig- nated Location General Aggregate Limit. CG25040397 C. When coverage for liability arising out of the "products - completed operations hazard" is pro- vided, any payments for damages because of "bodily injury" or "property damage" included in the "products - completed operations hazard" will reduce the Products - Completed Operations Ag- gregate Limit, and not reduce the General Ag- gregate Limit nor the Designated Location Gen- eral Aggregate Limit. D. For the purposes of this endorsement, the Defi- nitions Section is amended by the addition of the following definition: Copyright, Insurance Services Office, Inc., 1996 "Location' means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway, waterway or right -of -way of a railroad. E. The provisions of Limits Of Insurance (SECTION III) not otherwise modified by this endorsement shall continue to apply as stipulated. Page 2 of 2 CG 25 04 03 97 30 COMMERCIAL GENERAL LIABILITY CG 20 26 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) POLICY NUMBER: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and /or authorities and their board members, employees and volunteers. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section 11 — Who Is An Insured is amended to in- clude as an additional insured the person(s) or or- ganization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property dam- age" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: A. In the performance of your ongoing operations; or B. In connection with your premises owned by or rented to you. CG 20 26 07 04 All terms and conditions of this policy apply unless modified by this endorsement. Includes copyrighted material of Insurance Services Office, Inc. with permission. Page 1 of 1 © ISO Properties, Inc., 2004 31 EXHIBIT A URBAN RENEWAL PLAN Available Upon Request 32 co Q H J ma M = W en WF_ - - - -- --V — — — EXISTING T �•\ DDI BUILDING �•� LOT 2 -4 2.616 ACRES • FUNRE go.”' • `\�'\ LOT 1 -4 3.555 ACRES S \ i PROPOSED , " ••\ ./ 10.000 SF '`L�. '•� BUILDING FFE 853'3 •` GU ARD ' – _ rRj ; 4,g VANGUARD BLDG B 30.000 SOFT. '. 1 �- [94 II S FFE 846.40 • . �` 1 Z ' IT 73 \ A < ' - "P \ i 92, , ,2, S ITE PLAN o ,red o ii %< R ° Scale: NTS (1. . \' r1 V 0• i) RN 279'@ O �� , R a � Epic „ BOO Star Brav,«y WAND Dueu IA 52007 (583) 583 -2789 Q y W W J W G O Q m _ xx 7 7L� xe. bAbVr. or. Nom. r , , C 1 I' FCb ruorY. 2011 \"rs ci l EXHIBIT C CITY ATTORNEY'S CERTIFICATE 35 BARRY A. LINDAHL, ESQ. CITY ATTORNEY RE: Dear BAL:tls 36 (DATE) have acted as counsel for the City of Dubuque, Iowa, in connection with the execution and delivery of a certain Development Agreement between (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. Very sincerely, Barry A. Lindahl, Esq. City Attorney EXHIBIT D OPINION OF DEVELOPER'S COUNSEL 37 WILLIAM J. MATERS CHADWYN D. COX MARK L SULLIVAN JOHN T. HEMMERS T000 N. KLAPATAUSKAS* KIM C. RODDICK* NATALIA H. BLASKOVICH COLISTA K. SCHMITT ** GINA L. KRAMER•* •ALS* LICENSE* IN It t INQIS •'ALSO UICENSEOIN Y ISCONIII. Ri Mayor and City Councilmembers City Hall 13th and Central Avenue Dubuque, IA 52001 Dear Mayor and City Councilmembers: REYNOLDS & KENLINE L,L.P, LAW FIRM SINCE 1890 RE: Development Agreement Between the City of Dubuque, Iowa, and Walter Development, L.L.C. and T.M. Incorporated 110 EAST 9TH STREET P.O. BOX 239 OUBUQUE.IA 52004 -0239 nhoNE (563) 556.8000 FAX (563)556 -8009 OFFICE @RKENLINE.COM V413 WWW.RKENLINE.COM We have acted as counsel for Walter Development, L.L.C., an Iowa limited liability company (Developer) in connection with the execution and delivery of a certain Development Agreement (Development Agreement) between Developer and the City of Dubuque, Iowa ( "City") dated for reference purposes the day of 2011. 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 Iowa and has full power and authority to execute, deliver and perform in full the 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. 38 2) 2. To our actual knowledge with no duty to inquire, 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. To our actual knowledge with no duty to inquire, 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. This opinion is rendered for the sole benefit of the City of Dubuque and no other party may rely on this opinion. This opinion is rendered and valid as of the date of this letter, and we have no duty to update this opinion for any manners which come to our knowledge after the date of this letter. WJM /dms Ri REYNOLDS & KENLINE L.L.P. LAW FIRM SINCE 1890 Sincerely, William J. Maiers S:IWPIDONNA1CorporettonslWeller Development, L.L.C1Corr\LETTER -MAYOR AND CRY COUNCILMEMBERS- DEVELOPER.wpd 39 EXHIBIT E OPINION OF COUNSEL TO EMPLOYER 40 WILLIAM J. MATERS CHADWYN D. COX MARK J. SULLIVAN JOHN T.NEMMERS TODD N. KLAPATAUSKAS' KIM C. RODDICK` NATALIA H. BLASKOVICH COLISTA K. SCHMITT*. GINA L.KRAMER• 'A;, SO L IC EN at 1,1:t L1:0;5 n ' - 50 :la NSED >C On 3 Mayor and City Councilmembers City Hall 13th and Central Avenue Dubuque, IA 52001 RE: Development Agreement Between the City of Dubuque, Iowa, and Walter Development, L.L.C. and T.M. Incorporated Dear Mayor and City Council members: REYNOLDS & KENLINE L.L.P. LAW FIRM SINCE 1890 41 110 EAST 9TH STREET P.O. 80X 239 DUBUQUE. IA 52004-0239 PONE (563) 556.8000 FAx (563)556 -8009 crnnr. OFFICE@RKENLINE.COM WEB WWW.RKENLINE.COM We have acted as counsel forT.M. Incorporated, d /b /a TM Logistics, an Iowa corporation (Employer) in connection with the execution and delivery of a certain Development Agreement (Development Agreement) between Developer and the City of Dubuque, Iowa ( "City ") dated for reference purposes the day of 2011. We have examined the original certified copy, or copies otherwise identified to our satisfaction as being true copies, of the Development Agreement and such other documents and records as we have deemed relevant and necessary as a basis for the opinions set forth herein. Based on the pertinent law, the foregoing examination and such other inquiries as we have deemed appropriate, we are of the opinion that: 1. Employer is a corporation organized and existing under the laws of the State of Iowa and has full power and authority to execute, deliver and perform in full the Development Agreement. The Development Agreement has been duly and validly authorized, executed and delivered by Employer and, assuming due authorization, execution and delivery by City, is in full force and effect and is valid and legally binding instrument of Employer enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. 2) R1 REYNOLDS & KENLINE L.L.P. LAW FIRM SINCE 1890 2. To our actual knowledge with no duty to inquire, the execution, delivery and performance by Employer of the Development Agreement and the carrying out of the terms thereof, will not result in violation of any provision of, or in default under, the articles of incorporation and bylaws of Employer, any indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree, order, statute, rule, regulation or restriction to which Employer is a party or by which Employer's property is bound or subject. 3. To our actual knowledge with no duty to inquire, there are no actions, suits or proceedings pending or threatened against or affecting Employer in any court or before any arbitrator or before or by any govemmental 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 Employer or which in any manner raises any questions affecting the validity of the Agreement or the Employer's ability to perform Employer's obligations thereunder. This opinion is rendered for the sole benefit of the City of Dubuque and no other party may rely on this opinion. This opinion is rendered and valid as of the date of this letter, and we have no duty to update this opinion for any manners which come to our knowledge after the date of this letter. WJM /dms Sincerely, William J. Maiers SAWPIDONNAtCorporaoone,Walter Development, L.L.CCCorALETTER -MAYOR AND CITY COUNCILMEMBERS- EMPLOYER.wptl 42 Prepared by: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583 -4113 Return to: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583 -4113 Tax Statement to: SPECIAL WARRANTY DEED KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, 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 and no /100 Dollars ($ ) 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 , an Iowa limited liability company (Grantee), the following described parcel(s) situated in the County of Dubuque, State of Iowa, to wit (the Property): 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 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 44 and of this Deed with respect to the obligation of Grantee, and its successors and assigns, to construct improvements and the dates for the beginning and completion thereof, it being the intention of the parties that upon the granting and filing of the Certificate of Completion that all restrictions, re- vesting of title, and reservations of title contained in this Deed be forever released and terminated and that any remaining obligations of Grantee pursuant to the Agreement shall be personal only. All certifications provided for herein shall be in such form as will enable them to be recorded with the County Recorder of Dubuque, 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 or Kendall /Hunt Publishing Company herein shall fail to cure such default within the period and in the manner stated in the Agreement, then Grantor shall have the right to re -enter and take possession of the Property and to terminate and re -vest in Grantor the estate conveyed by this Deed to Grantee, its assigns and successors in interest, in accordance with the terms of the Agreement. None of the provisions of the Agreement shall be deemed merged in, affected or impaired by this Deed. Grantor hereby covenants to warrant and defend the said premises against the lawful claims of all persons whomsoever claiming by, through and under it. Dated this of , 20_ at Dubuque, Iowa. Attest: By: By: Kevin S. Firnstahl, Acting City Clerk CITY OF DUBUQUE IOWA 45 Roy D. Buol, Mayor STATE OF IOWA COUNTY OF DUBUQUE ) ) ) SS On this day of , 20 before me a Notary Public in and for said County, personally appeared Roy D. Buol and Kevin S. Firnstahl to me personally known, who being duly sworn, did say that they are the Mayor and Acting 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 Acting 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 46 EXHIBIT G MEMORANDUM OF DEVELOPMENT AGREEMENT 47 By: Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583 -4113 Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583 -4113 MEMORANDUM OF DEVELOPMENT AGREEMENT A Development Agreement by and among the City of Dubuque, Iowa, an Iowa municipal corporation, of Dubuque, Iowa, and was made regarding the following described premises: 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 , 20_. CITY OF DUBUQUE, IOWA By: Roy D. Buol, Mayor Kevin S. Firnstahl, Acting City Clerk 48 STATE OF IOWA 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 Roy D. Buol and Kevin S. Firnstahl, to me personally known, who being by me duly sworn did say that they are the Mayor and Acting City Clerk, respectively of the City of Dubuque, a Municipal Corporation, created and existing under the laws of the State of Iowa, and that the seal affixed to said instrument is the seal of said Municipal Corporation and that said instrument was signed and sealed on behalf of said Municipal corporation by authority and resolution of its City Council and said Mayor and Acting City Clerk acknowledged said instrument to be the free act and deed of said Municipal Corporation by it voluntarily executed. Notary Public, State of Iowa STATE OF IOWA DUBUQUE COUNTY ss: ss: On this day of , 20_, before me, a Notary Public in and for the State of Iowa, in and for said county, personally appeared to me personally known, who being by me duly sworn did say that they are the and that said instrument was signed on behalf of said company by authority of its members and that they acknowledged the execution of this instrument to be the voluntary act and deed of said company by it voluntarily executed. Notary Public, State of Iowa 49 City Manager's Office 50 West 13th Street Dubuque, Iowa 520014864 (563) 589 -4110 phone (563) 589 -4149 fax ctymgr@cityoklubuque.org Dear (DATE) THE CITY OF DUB L1 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 between (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 or Employer, including, but not limited to, any action in condemnation, eminent domain or public taking. (2) No ordinance or hearing is now or before any local governmental body that either contemplates or authorizes any public improvements or special tax 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. 51 (6) There are no notices, orders, suits, judgments or other proceedings relating to fire, building, zoning, air pollution, health violations or other matters that have not been corrected. City has notified Developer and Employer in writing of any past notices, orders, suits, judgments or other proceedings relating to 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 Employer's intended use of the Property as a corporate office 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 and Employer 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, Developer or Employer. (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 Employer and hold Developer and Employer harmless from any and all claims asserted by any broker engaged directly or indirectly by 52 MCVM:jh 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 and Employer 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 office building 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. 53 Sincerely, Michael C. Van Milligen City Manager F: \USERS \Econ Dev \TM Logistics\ 20110323 _WalterDevelopmentAgreement _032311 balrev2.doc