DICW_Walter Development and TM Logistics Inc.A Development Agreement by and among Walter Development, LLC
(Developer), TM, Inc., d /b /a TM Logistics, Inc. (Employer), and the City of Dubuque,
Iowa (City) was made regarding the following described premises:
Lot 2 of Lot 4 of Dubuque Industrial Center West 4th Addition in the City of
Dubuque, Iowa
The Development Agreement is dated for reference purposes the 16 day of
May, 2011, 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.
CITY OF DUBUQUE, IOWA
By:
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
Dated this 30th day of June
V. Sutton, Mayor- Pro -Tem
, 2011.
STATE OF IOWA
DUBUQUE COUNTY
ss:
On this 3ottday of June , 2011, before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Lynn V. Sutton and Kevin S. Firnstahl,
to me personally known, who being by me duly sworn did say that they are the Mayor -
Pro-Tem 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- Pro -Tem and Acting City Clerk
acknowled ed said instrument to be the free act and deed of said Municipal Corporation
by it volu xeeuted.,
Nota'ry Public. State of Iowa
SUSAN M. WINTER
COMMISSION NO.183274
MY COMMISSION EXPIRES
2/14/14
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 Two Hundred Sixty -One Thousand, Six
Hundred and no /100 Dollars ($261,600.00) 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 Epic Construction, an Iowa corporation (Grantee),
the following described parcel(s) situated in the County of Dubuque, State of Iowa, to
wit (the Property):
Lot 2 -4 of Dubuque Industrial Center West 4 th Addition in the City of
Dubuque
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. 169 -11 of the City
Council of the City of Dubuque adopted the 16 day of May, 2011, 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 16 day of May, 2011 (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 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
T.M. Incorporated, d /b /a T.M. Logistics, Inc. 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.
Attest:
By:
Dated this 30thof June
Kevi S. Firnst.. I, Acting City Clerk
, 2011 at Dubuque, Iowa.
CITY OF DUBUQUE IOWA
B
/
Lynn V. Sutton, Mayor- Pro -Tem
STATE OF IOWA
COUNTY OF DUBUQUE
Nota Public, State of Iowa
SS
On this 30th day of June , 2011, before me a Notary Public in and
for said County, personally appeared Lynn V. Sutton and Kevin S. Firnstahl to me
personally known, who being duly sworn, did say that they are the Mayor- Pro -Tem 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- Pro -Tem and Acting City Clerk
acknowledged said instrument to be the free act and deed of said Municipal Corporation
by it volun : ily ex cute
SUSAN M. WINTER
COMMISSION NO.183274
MY COMMISSION EXPIRES
2/14/14
Masterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Disposition of Property in the Dubuque Industrial Center West 4th Addition
to Walter Development, LLC and TM, Inc.
DATE: May 3, 2011
Economic Development Director Dave Heiar is recommending selling 2.616 acres in
Dubuque Industrial Center West to Walter Development, LLC and TM, Inc. to build a
10,000 square foot office for expansion plans 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 "planning and expediting" is the reason for this expansion.
Unlike traditional warehouse type operators and freight handlers, the positions are all
phone and Internet driven therefore the need is to expand office space.
The development agreement provides for 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 Tess 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.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Dubuque
kittri
All-America City
'
2007
MCVM:jk
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Dave Heiar, Economic Development Director
Michael C. Van 1Iittraen
Masterpiece on the Mississippi
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director
DATE: May 4, 2011
Dubuque
all- Ammicacity
1111 1
2007
SUBJECT: Disposition of Property in the Dubuque Industrial Center West 4 Addition
to Walter Development, LLC and TM, Inc.
INTRODUCTION
This memorandum presents for City Council consideration a Resolution selling of 2.616
acres identified on the attached exhibit to Walter Development, LLC and TM, Inc., d /b /a
TM Logistics, Inc. which will be constructing not less than 10,000 square foot office
building for Walter Development, LLC and TM Logistics, Inc. The attached Resolution
approves the sale of this property to Walter Development, LLC and TM, Inc.
BACKGROUND
City staff has worked with 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.
One additional term has been added to this Agreement since it was presented to the
City Council on May 2, 2011. The developer has requested the right to transfer
ownership of the building to accommodate a 1031 tax deferred exchange. This
language was added to Section 4.10 of the Agreement.
Additional terms and conditions of the disposition of the property are included within the
attached Development Agreement.
RECOMMENDATION
I recommend that the City Council approve the Development Agreement which includes
the sale of 2.616 acres in the Dubuque Industrial Center West 4 Addition to Walter
Development, LLC and TM, Inc. for the purpose of constructing a not less than 10,000
square foot office building . This action supports the City Council's objectives to
businesses retaining and creating new jobs.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
F: \USERS \Econ Dev \TM Logistics\20110502 TM Logistics Council memo Approve DA.doc
NOTICE OF A PUBLIC
HEARING OF THE
CTTYCOUNCIL OF
'THE CO' OF'
DUBUQUE, IOWA, ON
THE MATTER"OF THE
PROP
AUTHO ,ON OF
URBAN1 •■•AL
TAXINCREIMEN.T
REVENUE
OBUGATIONS AND
THE EXECUTION OFA
DEVELOPMENT
AGRMENT
RELATINGTHERETO
WITH WALTER
DEVELOPMENT, LLC
ANATM LOGISTICS,
INC: AND DISPOSING
OF YHEczrrs
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 16th day of May,
2011, at 6:30 p.m. in the
City Council Chambers
at the Historic Federal
Building, 350 W. 6th
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 de-
scribed real estate:
Lot 2-4 of Dubuque In-
dustrial Center West
4th Addition in the City
of Dubuque, Iowa
And for the authoriza-
tion of Urban Renewal
Tax Increment Reve-
nue obligations and the
execution of a Develop-
ment Agreement relat-
ing thereto with Walter
Development, LLC and
TM Logistics, Inc. in or-
der to carry out certain
of the special financing
activities in the Urban
Renewal Plan for the
Dubuque Industrial
Park Economic Devel-
opment District, con-
sisting of the funding
of economic develop-
ment grants to Walter
Development, LLC and
TM Logistics, Inc. pur-
suant to a Develop-
ment Agreement en-
tered into with Walter
Development, LLC and
TM Logistics, Inc. un-
der the terms and con-
ditions of said Urban
Renewal Plan. It is ex-
ti
pect:ed that the aggre-
gate amount of the Tax
Increment Revenue ob-
ligations will be ap-
proximately $190,000.
At the meeting, the
City Council will re-
ceive oral and written
objections from any
resident or property
owner of said City to
the above action. After
all objections have
been received and con-
sidered, the City Coun-
cil may at this meeting
or at any adjournment
thereof, take additional
action for the disposi-
tion of the City's Inter-
est in such real estate
above, the approval of
the Development
Agreement, and au-
thorization of such Tax
Increment Revenue ob-
ligations or will aban-
don the proposal. By
order of the City Coun-
cil said hearing and ap-
peals
there from shall
be held in accordance
with and governed by -
the provisions of Sec-
tion 403.9 of the Code
of Iowa.
This notice is given by
order of the City Coun-
cil of the City of Dubu-
que,
Iowa, as provided
by Chapter 403 of the
Code of Iowa.
Dated this 6th day of
May 2011.
Kevin S. Firnstahl
Acting City Clerk of
Dubuque, Iowa
1t 5/6
STATE OF IOWA {SS:
DUBUQUE COUNTY
Subscribed to before
this /(o day o
CERTIFICATION OF PUBLICATION
I, Kathy Hefel - Goetzinger, 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 $33.23.
Notary Public in and for Dubuque County, Iowa,
,20// .
Notary Public in and for Dubuque County, Iowa.
MARY K. WESTERMEYi-:
Commlaelon Number 15488:
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. 169 -11
RESOLUTION APPROVING A DEVELOPMENT AGREEMENT PROVIDING FOR THE
SALE OF 2.616 ACRES IN THE DUBUQUE INDUSTRIAL CENTER WEST 4 ADDITION
TO WALTER DEVELOPMENT, LLC AND TM, INC.
Whereas, the City Council, by Resolution No. 154 -11, dated May 2, 2011 declared its
intent to enter into a Development Agreement with Walter Development, LLC and TM, Inc. for
the sale of 2.616 acres in the Dubuque Industrial Center West 4 Addition (the Property); and
Whereas, pursuant to published notice, a public hearing was held on the proposed
disposition on May 16, 2011 at 6:30 p.m. in the Historic Federal Building, 350 W. 6th Street,
Dubuque, Iowa; and
Whereas, it is the determination of the City Council that approval of the Development
Agreement for the sale to and development of the Property by Walter Development, LLC and
TM, Inc. according to the terms and conditions set out in the Development Agreement is in the
public interest of the City of Dubuque.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the attached Development Agreement by and between the City of
Dubuque, Walter Development, LLC and TM, Inc. for the sale of the Property is hereby
approved.
Section 2. That the Mayor is hereby authorized and directed to execute the
Development Agreement on behalf of the City and City Clerk is authorized and directed to
attest to his signature.
Section 3. That the Mayor and City Clerk are hereby authorized and directed to
execute and deliver a Special Warranty Deed for the Property as provided in the
Development Agreement.
Section 4. That the City Manager is authorized to take such actions as are
necessary to comply with the terms of the Development Agreement as herein approved.
Attest:
Passed, approved and adopted this 16 day of May, 2011.
Lf
LiMZI
Kevin . Firnstahl, Ac ing City Clerk
Roy D. B ol, Mayor
F: \USERS \Econ Dev \TM Logistics\20110502 TM Logistics Resolution Disposition & Approve DA.doc
This Agreement, dated for reference purposes thel6tnday of May
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).
WITNESSETH:
051311 032311balrev2
DEVELOPMENT AGREEMENT
BY AND AMONG
THE CITY OF DUBUQUE, IOWA,
WALTER DEVELOPMENT, LLC,
AND
TM, INC.
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
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:
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(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.
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(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 Citv'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
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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.
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(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 less 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
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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:
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November 1, 2012
November 1, 2013
November 1, 2014
November 1, 2015
November 1, 2016
November 1, 2017
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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
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
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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
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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.
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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 /Tax- Deferred Exchange. 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 the 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. The Developer may elect to
acquire the property as part of a tax - deferred exchange as defined in Internal
Revenue Code §1031, in which case, with the consent of the City, which consent
shall not be unreasonably withheld, all right, title, and interest in this Agreement
may be assigned by the Developer to a qualified intermediary and /or
Accommodator as defined by Internal Revenue Service Code and Regulations for
the purpose of facilitating said tax - deferred exchange in accordance with Internal
Revenue Service Code and Regulations. All documentation necessary to effect any
such assignment shall be acceptable to the City, in its sole discretion. In doing so,
City shall bear no additional cost nor liability of any kind to Developer. Developer's
performance under this Agreement is not conditioned on the Developer's ability to
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effect said exchange and any such assignment and exchange shall in no way
relieve the Developer or Employer of any commitments 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
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
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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,
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.
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(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
18
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
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;
19
(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
Tess 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
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.
20
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
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
21
By:
By:
With copy to:
Roy D. uol, Mayor
K- in S. Fir tahl,
Acting City Clerk
Phone: (563) 589 -4110
Fax: (563) 589 -4149
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.
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
22
By: jl ra A4,?
Ti6nojiy WHodge Manager
TM, INC
By. � Z
othy W. Hod, 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 I NM DIM""""
1217 4QQ Lmom=
mom= (563)143 -1167
Insurance Agency
Street Address
City
ST
Pm (563) 3117-6543
Lip Coda
THIS CERTIFICATE E IBE41E0 AS A NAM* Of g
CONFERS QTR R(OE(TS UPON AMINO, OR
ALTI R THE fOYERA At ET THE MOW
INISIRIIRS AFFORDING CCIVERAat
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CONTRACT OR OTHER DOCUMENT NTH RESPECT TO WHICH THIS ClITIFICATE MAY SE NUN OR MAY PERTAN.
DESCRIBED HEREIN IS $***CT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICES.
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ONBCRIP11011 OF OPIRATIONOLOCATIONNYMOCUSIERCLUSIONS MED BY NDOpINIRRDftlAL PROVISIONS
City of Dubuque Ls listed as an additional insorod on general liability Policies Acing ISO andezement fen 07 2024
0704 "Additisasl Insured- Designated Person or Organisation" es its ayaivalont. Nwsa1
Liability
is Prismay 6
Policy
lie licit L included.
ace- emtributiag. fors CO 2404 0317 "Designated Location" general liability ming&
Oooasneental
imunities en0er.eemt i. included.
CERTIFICATE HOLDER CANCEU,ATION
WALD ANY OP TIN AWN/4 OMNI'SO
POLICES NI CARMAN
OIPOIM Le
City of Dubuque
QNM7ION RATS TNprIOP. se
01eGVOR TO Ma
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SO West 13th Street
30 am awns
NOT= TO TIN CERTNICATI souses NAwo 70 THE UNIT. 00T
Dubuque, IA 52001
FALL 5 TO 00
SO MALL WOGS NO OIUOATION OR UAMUTY Of ANY POND UPON THE
NEM ITS ARAMs OR TrPRBIMTATNa.
AMFNONO01lINSlMATNE
ACORD 2S (2001I011)
HMS Onecs ARAB
VII weigh enders. .a 0101337444S
27
• ACORD CORPORATION 1000
P./.1 M2
IMPORTANT
If the certificate holder Is an ADDInONAt. INSURED, the policy(es) must be endorsed. A ahtarnard on this
centillc ste does not confer rights to the csrtkicals holder in feu of such endorsement(s).
If SUBROGATION IS WAIVED, subject to the terms and conditions of Yee policy, certain policies may require an
endorsement. A abdomen on this certificate does not confer rights to the certificate holder in Ieu of such
mss).
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 Mrs certificate holder, nor does k affirmatively or negatively
amend, extend or after the coverage afforded by the policies listed thereon.
ACC D 201200110)
Wean mows MIS
28
POLICY NUMBER:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
DESIGNATED LOCATION(S)
GENERAL AGGREGATE LIMIT
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
A. For al sums which the insured becomes legally
obligated lo pry as damages cawed by 'occur-
rences' under COVERAGE A (SECTION I), and
for sr medical expenses caused by accidents
under COVERAGE C (SECTION 1), which an 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
"ocean", 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 wtii pay for the sum of all
damages under COVERAGE A, except dam-
ages because of "bodily injuy 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
e. Persons or organizations making daims or
bringing 'sults'.
3. My payments made under COVERAGE A for
damages or under COVERAGE C for medial
expenses shall reduce the Designated Loca-
tion General Aggregate Limit for that desig-
nated "location'. Such payments shall not re-
duce the General Aggregate Unlit shown in
SCHEDULE
COMMERCIAL GENERAL UABIUTY
CO 25 04 0317
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)
29
the Declarations nor shall they reduce any
other Designated Location General Aggro-
Oats Limit for any other designated 'location"
shown in the Schedule above.
4. The limits shown M 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 Emits wit be
subject to the applicable Designated Location
General Aggregate Limit
B. For al sums which the Insured becomes legally
obligated to pay as damages awed by 'occur-
rences' under COVERAGE A (SECTION 1), and
for all medal expenses caused by accidents
under COVERAGE C (SECTION 1), which can-
not be attributed only to operations at a single
designated 'cation' shown in the Schedule
above:
1. Any payments made under COVERAGE A for
damages or under COVERAGE C for medial
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
CG 23 04 03 07 Pape 1 of 2
CG 25040707
C. When coverage for Nobility 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 wNI
reduce t Products- Completed Operations Ag-
gregate Limit, and not reduce the General Ag-
gregate Lknit nor the Designated Location Gen -
eral Aggregate Limit.
D. For the purposes of this endorsement, Mrs 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 C0 25 04 03 07
30
COMMERCIAL GENERAL LIABILITY
CG20260T04
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - DESIGNATED
PERSON OR ORGANIZATION
This endorsement morMes insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Persons) Or Organization(s)
POLICY NUMBER:
The City of Dubuque, induding 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 10 liability for "bodily triury". "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.
M terms and conditions of this policy apply unless modified by this endorsement.
CG 20 26 07 04 Includes copyrighted material of Insurance Services Office, Inc. with permission. Page 1 of 1
O ISO Properties, Inc., 2004
31
EXHIBIT A
URBAN RENEWAL PLAN
Available Upon Request
32
mQ
~' J
ma
= W
H
W 0
M
EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
35
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
RE:
Dear
I 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.
BAL:tls
36
(DATE)
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
THE CITY OF ;
DUBUQ E
5
EXHIBIT D
OPINION OF DEVELOPER'S COUNSEL
37
WILLIAM 1. MATERS
CHADWYN D. COX
MARK. SULLIVAN
JOHN T. HEMMERS
TODD N.KLAPATAUSKAS•
KIM C. RODOICK•
NATALIA H. ELASKOVICH
COLISTA K. SCHMITT'•
61NA 1. KRAMER'•
SO LICENSED DI IL IMO'S
"ALSO LICENSED IN Y IS[O»StA
r{{
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 $1NCE 1890
RE: Development Agreement Between the City of Dubuque, Iowa, and
Walter Development, L.L.C. and T.M. Incorporated
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 {lability company organized and existing underthe 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.
110 EAST 9TH STREET
P.O. SOX 239
OUBUQUE. IA 52004 -0239
' (363) 556 -5000
FAX (S13) 556 -1009
FMAIL OFFICE.RKENLINE.COM
wES 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.
38
2)
WJM /dms
R{
REYNOLDS & RENLINE L.L.P.
LAW FIRM SINCE 1890
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.
Sincerely,
William J. Masers
SAWMOONNA CaiponNa,uMUYIr Development, LLIACoM ETTER.YAYOR AND CITY COUNCLNB.SERS- DEVELOPS& pd
39
EXHIBIT E
OPINION OF COUNSEL TO EMPLOYER
40
WILLIAM!. MAIERS
CHADW YN D. COX
MARK J. SULLIVAN
JOHN T. HEMMERS
TODD N. KLAPATAUSKAS'
KIM C.RODDICK*
NATALIA H.9LASKOVICH
COLISTA K. SCHMITT**
GINA 1. KRAMER'•
•A_50 LtCEWSEP IM it L)N015.
- ALSO LICENSED N W∎ZEONStk
Mayor and City Councilmembers
City Hall
13th and Central Avenue
Dubuque, IA 52001
BB REYNOLDS & RENLINE L.L.P.
LAW FIRM SINCE 1890
RE: Development Agreement Between the City of Dubuque, Iowa, and
Wafter Development, L.L.C. and T.M. Incorporated
Dear Mayor and City Councilmembers:
110 EAST 9TH STREET
P.O. BOX 239
DUBUQUE. IA S2004-0239
P4tONE (S63) 556.6000
nor (563) 356.0009
LHA: OFFICE ®R KEN LINE.COM
WEB WWW.RKENLINE.COM
We have acted as counsel forT.M. Incorporated, d/bla 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 forgoing 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 h 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.
41
2)
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. Masers
SA W1DONNMCaponticos Wpr DovileCalent. LLOConVITTER- MAYOR AND CITY YFR.•ptl
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.
the City Council of the City of Dubuque adopted the day of
20 the terms and conditions thereof, if any, having been fulfilled.
44
of
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
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
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 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:
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
EXHIBIT H
CITY CERTIFICATE
50
City Manager's Office
50 West 13th Street
Dubuque, Iowa 52001 -4864
(563) 589 -4110 phone
(563) 589 -4149 fax
ctymgr@cityofdubuque.org
Dear
(DATE)
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
City for any fees or other compensation related to the subject matter of this
Agreement.
MCVM:jh
(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.
F: \USERS \Econ Dev \TM Logistics\ 20110513 _WalterDevelopmentAgreement _032311 balrev2.doc
Sincerely,
Michael C. Van Milligen
City Manager