Flynn Ready-Mix - Disposition of Property on Kerper Court
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Prepared by:
Barry A. Lindahl
196 Dubuque Building
Dubuque. 1A 52001
319-583-4113
RESOLUTION NO. 508-00
RESOLUTION APPROVING A DEVELOPMENT AGREEMENT PROVIDING
FOR THE SALE AND PRIVATE DEVELOPMENT OF LOT 1-2, LOT 2A AND LOT
6 OF KERPER INDUSTRIAL PARK IN THE CITY OF DUBUQUE, IOWA, TO
FLYNN READY -MIX CONCRETE COMPANY
Whereas, this Council, by Resolution No. 496-00 dated October 2,2000, declared its intent to enter
into a Development Agreement with Flynn Ready-Mix Concrete Company for the sale and development
of Lot 1-2, Lot 2A and Lot 6 of Kerper Industrial Park in the City of Dubuque, Iowa, (the Property); and
Whereas, pursuant to published notice, a public hearing was held on the proposed disposition on
October 16, 2000, at 6:30 p.m. at the Carnegie-Stout Public Library Auditorium, 360 W. 1 ph Street,
Dubuque, Iowa.; and
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Whereas, it is the determination of this Council that approval of the Development Agreement for
the sale to and development of the property by Flynn Ready-Mix Concrete Company according to the terms
and conditions set out in the attached Development Agreement is in the public interest ofthe citizens ofthe
City.
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 and
Flynn Ready-Mix Concrete Company and the sale ofthe Property to Flynn Ready-Mix Concrete Company
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 Agreement as herein approved.
Passed, approved and adopted this 16th day of October, 2000.
Terrance M. Duggan, Mayor
Attest:
Jeanne Schneider
City Clerk
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DEVELOPMENT AGREEMENT
AGREEMENT, made on or as oftheL~ 1"- day of Oc /i;~t:/~ ,2000, by
and between the City of Dubuque, Iowa, a municipality ("City"), established pursuant to the
Code of Iowa of the State of Iowa and acting under authorization of Chapter 403 of the Code of
Iowa, as amended ("Urban Renewal Act") and Flynn Ready-Mix Concrete Company, an Iowa
corporation with its principal place of business in Dubuque, Iowa ("Developer").
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City has
undertaken an Urban Renewal project ("Project") to advance the community's ongoing economic
development efforts; and
WHEREAS, Project is located within the Kerper Boulevard Industrial Park Economic
Development District ("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 approved
by the City Council of City on the 15th of August, 1994, (attached hereto as Exhibit A)("Urban
Renewal Plan"); and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of this
Agreement, has been recorded among the land records in the office of the Recorder of Dubuque
County, Iowa; and
WHEREAS, Developer has proposed to relocate an existing business in the Project Area;
and
WHEREAS, Developer has requested that City sell to Developer Lot 1-2, Lot 2A, and
Lot 6 of Kerper Industrial Park in the City of Dubuque, Dubuque County, Iowa, together with all
easements, tenements, hereditaments, and appurtenances belonging thereto ("Property") so that
Developer may develop said Property, located in the Project Area, for and 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 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 Property ("Purchase Price") shall be the sum of
Three Hundred Sixty-Two Thousand One Hundred Forty Dollars ($362,140.00), which shall be
due and payable on January 3,2001 or on such earlier date as the parties may mutually agree
("Closing Date").
1.2 Title To Be Delivered. City agrees to convey marketable fee simple title in Property to
Developer subject only to easements, restrictions, conditions and covenants of record and as set
forth in this Agreement.
(1) City at its sole cost and expense shall deliver to Developer an abstract of title to
Property continued through the date of this Agreement reflecting merchantable title in
City in conformity with this Agreement, applicable State law and the Title Standards of
the Iowa State Bar Association. The abstract shall become the property of Developer
when Purchase Price is paid in full.
(2) Developer shall have twenty (20) days after receipt of the abstract of title to render
objections to title, including any easements or other encumbrances not satisfactory to
Developer, in writing to City. City shall have twenty (20) days from the date it receives
such objections to have the same removed or satisfied. If City shall fail to have such
objections removed within that time, Developer may, at its sole discretion, either (a)
terminate this Agreement without any liability on its part, (b) take title subject to such
objections, or (c) extend the Closing Date to a date mutually agreed upon by the parties.
City agrees to use its best reasonable efforts to promptly satisfy any such objections.
(3) Developer hereunder desires to exchange other property of like kind and qualifying
use within the meaning of Section 1031 of the Internal Revenue Code of 1986, as
amended, and the Regulations promulgated thereunder, fee title in the Property which is
the subject of this Agreement. Developer expressly reserves the right to assign its rights,
but not its obligations, hereunder to a Qualified Intermediary as provided in IRC Reg.
1.1031 (k)-l (g)( 4) on or before the Closing Date.
1.3 Rights of Inspection. Testing and Review. City shall deliver Property in its "as is"
condition. Developer, its counsel, accountants, agents and other representatives, shall have full
and continuing access to Property and all parts thereof, upon reasonable notice to City at any time
after the execution and delivery hereof for any purpose whatsoever, including inspecting,
surveying, engineering, test boring, performance of environmental tests and such other work as
Developer shall consider appropriate, provided that Developer shall hold City harmless and fully
indemnify City against any damage, claim, liability or cause of action arising from or caused by
the actions of Developer, its agents, or representatives upon Property, and provided Developer
shall have complied with the insurance provisions of Section 4.3, 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 it considers appropriate. In the event that the closing does not
occur on the Closing Date, or any extension agreed upon by the parties, Developer shall within
thirty (30) days from the Closing Date or latest extension thereof, at its sole expense, restore
Property to the condition it was in prior to any such work by Developer to the complete
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satisfaction of City. All inspection, testing, engineering, and such other work performed by
-Developer pursuant to this section shall be solely at Developer's expense.
1.4 Representations of City. In order to induce Developer to enter into this Agreement and
purchase Property, City hereby represents and warrants to Developer that to the best of City's
knowledge:
(1) No action in condemnation, eminent domain or public taking proceedings are now
pending or contemplated against Property.
(2) No ordinance or hearing is now before any local governmental body which either
contemplates or authorizes any public improvements or special tax levies, the cost of
which may be assessed against Property.
(3) City has good and marketable fee simple title to Property.
(4) There are no notices, orders, suits, judgment or other proceedings relating to fire,
building, zoning, air pollution or health violations that have not been corrected. City
shall notify Developer of any past notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution or health violations as they relate to
Property of which it has actual notice.
(5) Property will as of the date of closing be free and clear of all liens, security interests,
encumbrances, leases and other restrictions.
(6) All labor or material which have been furnished to Property have been fully paid for
or will be fully paid for prior to the closing so that no lien for labor or materials rendered
can be asserted against Property.
The representations and warranties set forth in this Section 1.4 shall survive closing and
shall not be affected by any investigation, verification or approval by any party hereto or by
anyone on behalf of any party hereto and shall not merge into City's deed being delivered at
closing. City agrees to indemnify and hold Developer harmless from and against and to
reimburse Developer with respect to any and all claims, demands, causes of action, loss, damage,
liabilities, and costs (including attorney's fees, expenses and court costs) asserted against or
incurred by Developer by reason of or arising out of the breach of any representation or warranty
as set forth in this Section 1.4.
1.5 Conditions to Closing. The closing of the transaction contemplated by this Agreement
and all the obligations of Developer under this Agreement are subject to fulfillment, on or
before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.4 shall be correct as of
the Closing Date with the same force and effect as if such representations were made at
such time.
(2) Title to Property shall be in the condition warranted in Section 1.4.
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(3) Developer, in its sole and absolute discretion, shall have completed and approved of
any inspections done by Developer hereunder.
(4) Developer shall have obtained any and all necessary governmental approvals,
including without limitation approval of zoning, subdivision or platting which might be
necessary or desirable in connection with the sale and transfer of Property. Any
conditions imposed as a part of the zoning, platting or subdivision must be satisfactory to
Developer, in its sole opinion. City shall cooperate with Developer in attempting to
obtain any such approvals and shall execute any documents necessary for this purpose,
provided that City shall bear no expense in connection therewith.
(5) City shall have completed all required notice to or prior approval, consent or
permission of any federal, state or municipal or local governmental agency, body, board
or official to the sale of Property.
(6) Developer shall be in material compliance with all the terms and provisions of this
Agreement.
(7) City, at City's expense, shall remove prior to closing the existing rail spur line on the
Property and shall within two years of the date of this Agreement relocate a rail spur
along the westerly boundary of the Property. City agrees to cooperate with Developer to
locate and construct an in-ground loading pit at Developer's sole expense within the rail
spur easement.
(8) City and Developer shall have executed the attached Third Amendment to Lease
(attached hereto as Exhibit C).
(9) City shall have provided Developer with a No Further Action Letter from the Iowa
Department of Natural Resources.
1.6 Closing. The closing of the purchase and sale shall take place on Closing Date.
Possession of Property shall be delivered on the Closing Date.
1.7 City's Obligations at Closing. At or prior to Closing Date, City shall:
(1) Deliver to Developer City's duly recordable Special Warranty Deed to Property in
the form attached hereto as Exhibit B ("Deed") conveying to Developer marketable fee
simple title to Property and all rights appurtenant thereto subject only to easements,
restrictions, conditions and covenants of record and as set forth in this Agreement.
(2) Deliver to Developer the Abstract of Title to 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
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herein, Developer shall pay the Purchase Price to City required by Section 1.1 hereof.
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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 imposed on the conveyance.
(b) A pro-rata portion of all taxes as provided in Section 1.10.
(c) The cost of recording the satisfaction of any existing mortgage and any other
document necessary to make title marketable.
(d) All special assessments whether levied, pending or assessed.
(e) City's attorney's fees.
(t) City's broker and/or Property commissions and fees, if any.
(g) 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 cost necessary to record the Deed.
(b) Developer's attorneys fees.
(c) Developer's broker and/or Property commissions and fees, if any.
1.10 Property Taxes. City shall pay all Property taxes for all fiscal years which end prior to
Closing Date. Property taxes for the fiscal year in which Closing Date occurs shall be prorated
between City and Developer to Closing Date on the basis of a 365 day calendar year. Developer
shall pay all Property taxes due in subsequent fiscal years.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. Developer hereby agrees to construct on Property an
industrial building of not less than eighteen thousand (18,000) square feet of floor space along
with necessary sitework all at a cost of not less than one million two hundred fifty thousand
Dollars ($1,250,000) ("Minimum Improvements").
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
("Construction Plans") shall be in conformity with Urban Renewal Plan, this Agreement, and all
applicable State and local laws and regulations. Prior to closing, Developer shall submit to City,
for approval by City, plans, drawings, specifications, and related documents with respect to the
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improvements to be constructed by Developer on Property. All work with respect to the
. improvements shall be in substantial conformity with the Construction Plans approved by City
prior to closing.
2.3 Timing of Improvements. Developer hereby agrees that construction of Minimum
Improvements on Property shall be commenced within six (6) months after Closing Date, and
shall be substantially completed within twelve (12) months after such date. The time frames for
the performance of these obligations shall be suspended for any delays caused by acts of God
including, but not limited to, extreme weather conditions and/or other natural causes, casualty,
labor problems (including, but not limited to, strikes, walk-outs, picketings, boycotts and
shutdowns), governmental restriction upon the availability or use of labor or materials, or,
insurrection, embargoes, or extraordinary delays in providing necessary consents or approvals.
The time for performance of such obligations shall be extended only for the period of the
enforced delay.
2.4 Certificate of Completion. Promptly upon completion of Minimum Improvements in
accordance with those provisions of this Agreement relating solely to the obligations of
Developer to construct Minimum Improvements (including the dates for beginning and
completion thereof), City shall furnish Developer with an appropriate instrument so certifying.
Such certification ("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 revestment of
title in City as provided in Section 4.3.
SECTION 3. COVENANTS OF DEVELOPER
3.1 Real Property Taxes. Developer shall pay, when due, all real property taxes and
assessments payable with respect to all and any parts of Property until Developer's obligations
have been assumed by another person pursuant to the provisions of this Agreement.
3.2 Insurance Requirements.
(1) Developer shall provide and maintain at all times during the construction of
Minimum Improvements (and, from time to time at the request of City, furnish City with
proof of payment of premiums on):
(a) Builder's risk insurance, written on the Special Perils Form in an amount
equal to one hundred percent (100%) of the replacement value of Minimum
Improvements as of the date of completion;
(b) Commercial general liability insurance (including operations, contingent
liability, operations of subcontractors, completed operations and contractual
liability insurance) together with an Owner's Contractor's Policy with limits
against bodily injury and property damage of not less than $2,000,000 for each
occurrence (to accomplish the above-required limits, an umbrella excess liability
policy may be used);and
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(c) Worker's compensation insurance, with statutory coverage.
(2) All insurance required by this Section shall be taken out and maintained in
responsible insurance companies selected by Developer which are authorized under the
laws of the State to assume the risks covered thereby. Developer shall deposit annually
with City copies of policies evidencing all such insurance, or a certificate or certificates
or binders of the respective insurers stating that such insurance is in force and effect.
Unless otherwise provided in this Section, each policy shall contain a provision that the
insurer shall not cancel or modify it without giving written notice to Developer and City
at least thirty (30) days before the cancellation or modification becomes effective.
Developer shall furnish City evidence satisfactory to City that the policy has been
renewed or replaced by another policy conforming to the provisions of this Section, or
that there is no necessity therefor under the terms hereof. In lieu of separate policies,
Developer may maintain a single policy, or blanket or umbrella policies, or a combination
thereof, which provide the total coverage required herein, in which event Developer shall
deposit with City a certificate or certificates of the respective insurers as to the amount of
coverage in force upon Minimum Improvements, provided, however, the specific limit
shall not be impaired.
3.3 Preservation of Property. Developer shall maintain, preserve and keep Minimum
Improvements in good repair and working order, ordinary wear and tear accepted, and from time
to time shall make all necessary repairs, replacements, renewals and additions.
3.4 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.
3.5 Non-transferability. Until such time as Minimum Improvements are complete (as
certified by City under Section 2.4), this Agreement may not be assigned by Developer nor may
Property be transferred by Developer to another party without the prior written consent of City.
3.6 Restrictions on Use. Developer agrees for itself and its successors and assigns, and every
successor in interest to Property or any part thereof, that Developer, and such successors and
assigns, shall:
(1) Devote Property to, and only to and in accordance with, the uses specified in the
Urban Renewal Plan;
(2) Provide that all raw material outdoor storage areas be 100% screened from view so
that such material not be visible from any location outside the premises by a person on
any public right of way including but not limited to Highway 61/151 ;
(3) Provide that all areas designed for vehicular use and vehicle storage be paved;
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(4) Prohibit any off-premise signage (billboards) on Property;
(5) Not discriminate upon the basis of race, religion, color, sex, national origin, age or
disability in the sale, lease, rental, use or occupancy of Property or any improvements
erected or to be erected thereon, or any part thereof; and
(6) The provisions of this Section 3.6 shall survive the termination of this Agreement.
3.7 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 3.7, the "Indemnified
Parties") from, covenants and agrees that the Indemnified Parties shall not be liable for,
and agrees to indemnify, defend and hold harmless the Indemnified Parties against any
loss or damage to property or any injury to or death of any person occurring at or about or
resulting from any defect in Minimum Improvements.
(2) Except for any 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 (i) 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 to enforce its rights under this
Agreement) or (ii) the acquisition, construction, installation, ownership, and operation of
Minimum Improvements.
(3) The Indemnified Parties shall not be liable for any damage or injury to the persons or
property of Developer or its officers, agents, servants or employees or any other person
who may be about Minimum Improvements due to any act of negligence of any person,
other than any act of negligence on the part of any such Indemnified Parties.
(4) All covenants, stipulations, promises, agreements and obligations of City contained
in this Agreement 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 the individual capacity thereof.
(5) Notwithstanding anything else in this Agreement to the contrary and notwithstanding
disclaimers of representations or warranties or limitations of liability contained elsewhere
in the Agreement, for the period of time commencing upon the execution of this
Agreement and continuing indefinitely into the future until Developer can no longer be
held liable or responsible or no further remediation activities are required, whichever is
longer, City, for itself and on behalf of its officers, agents, employees, grantees,
successors, assigns and anyone claiming by, through or under City, agrees to indemnify,
hold harmless and defend Developer and its successors, assigns, parents, affiliates,
grantees, agents, employees, officers, directors and shareholders from and against all
claims, demands, damages, losses, clean up and remediation costs, judgments, penalties,
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fines, liabilities, orders to assess and remediate, suits, causes of action, costs and
expenses (including consultant and attorney fees), hereinafter "Claims," which arise
directly or indirectly from the Property or as a result of any enforcement action by federal,
state or other governmental entities (including but not limited to the Environmental
Protection Agency and the Iowa Department of Natural Resources) under any
environmental law, statute, order, regulation or ordinance (including but not limited to the
Comprehensive Environmental Response, Compensation and Liability Act), hereinafter
"Environmental Laws," resulting solely from the presence, release, discharge, spillage,
seepage or filtration of any contamination on, in, over, at or below the Property (including
but not limited to hydrocarbon, chemical, pesticide, toxic, hazardous, soil, groundwater,
regulated or other contamination or substances), hereinafter "Contamination," regardless
of whether caused in whole or in part or not caused at all by City's ownership, use,
operation, occupancy or letting ofthe Property, whether same existed prior to or during
City's ownership, use, operation, occupancy or letting of the Property, whether known,
could have been known, or was unknown at the time of the execution of this document,
whether discovered before or after the execution of this document and whether Developer
made appropriate inquiries of the condition of the Property or not, and City shall on
behalf of Developer and in Developer's name defend at City's sole expense any claim or
litigation in connection therewith. Developer shall promptly notify City and provide to
City copies of all notices received by Developer pertaining to any such enforcement
action. City shall pay all costs and expenses for assessment and remediation of the
Contamination, but only to the extent such assessment and/or remediation is required by
Environmental Laws and to the extent allowed by law. Developer hereby grants City and
its agents, employees, and contractors full, unrestricted access to the Property for such
assessment and/or remediation as may be necessary and appropriate. Notwithstanding the
foregoing, City shall not indemnify, hold harmless, or defend Developer from any Claims
or Contamination arising from or substantially exacerbated by acts or omissions of
Developer, its officers, agents, employees, contractors, grantees, successors, assigns and
anyone claiming by, through or under Developer or arising from infiltration or migration
of Contamination onto the Property from any source outside the Property, nor shall City
conduct or pay for the assessment or remediation of such Contamination. After closing,
Developer agrees on behalf of itself and its successors, lessees and assigns that prior to
the commencement of any excavation, intrusion into, and/or disturbance of the soil or
subsurface, hereinafter "Subsurface Activities," of the Property, Developer shall notify
City in writing of the location and nature of such Subsurface Activity not less than 45
days prior to the commencement of such Subsurface Activity. During the period of 45
days after such notice, City shall have access and authority to conduct, at City's expense,
such assessment and/or testing as City deems necessary and appropriate. If, based upon
such assessment and/or testing, City determines that the Subsurface Activity at such
location would result in Contamination required by Environmental Laws to be addressed,
City shall so notify Developer and Developer shall not excavate at such location unless
Developer agrees that it will share equally with the City the costs of any and all necessary
and appropriate response to the Contamination. In the event City tests and approves the
Subsurface Activity or City does not test in the 45 days, Developer may proceed with the
Subsurface Activity and if Contamination required by Environmental Laws to be
addressed is encountered, City shall fully defend and indemnify Developer and remediate
the Contamination as set forth above. Prior to closing, if City determines that the location
and nature of any Subsurface Activity, as indicated on a site plan submitted for approval
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by Developer, would result in Contamination required by Environmental Laws to be
addressed, Developer shall have the right to terminate this Agreement and City shall
reimburse Developer for the reasonable costs of such site pIano This provision shall be
placed of record at the time of closing on the Property. In the event of any inconsistency
between the terms of this paragraph and any other terms and conditions of the remainder
of this Agreement, the terms of this paragraph shall prevail and control.
(6) The provisions ofthis Section 3.7 shall survive the closing.
3.8 Compliance with Laws. Developer shall comply with all laws, rules and regulations
relating to its businesses, other than laws, rules and regulations the failure to comply with which
or the sanctions and penalties resulting therefrom, would not have a material adverse effect on
the business, property, operations, financial or otherwise, of Developer.
SECTION 4. EVENTS OF DEFAULT AND REMEDIES
4.1 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,
anyone or more of the following events:
(1) Failure by Developer to pay, before delinquency, all real property taxes assessed with
respect to Minimum Improvements and Property except if Developer in good faith is
contesting the amount of taxes.
(2) Failure by Developer to cause the construction of Minimum Improvements to be
commenced and completed pursuant to the terms, conditions and limitations of this
Agreement.
(3) Failure by Developer to cause Minimum Improvements to be reconstructed when
required pursuant to this Agreement.
(4) Transfer of any interest by Developer of Minimum Improvements in violation of the
provisions of this Agreement.
(5) Failure by Developer or City to substantially observe or perform any other covenant,
condition, obligation or agreement on its part to be observed or performed under this
Agreement.
(6) Commencement of foreclosure proceedings by the holder of any Mortgage on
Property, or any improvements thereon, or any portion thereof, as a result of any default
under the applicable Mortgage documents.
(7) Developer shall:
(a) file any petition in bankruptcy or for any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under the
United States Bankruptcy Act of 1978, as amended, or under any similar federal
or state law; or
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(b) make an assignment for the benefit of its creditors; or
( c) admit in writing its inability to pay its debts generally as they become due; or
(d) be adjudicated a bankrupt or insolvent; or if a petition or answer proposing
the adjudication of Developer as a bankrupt or its reorganization under any
present or future federal bankruptcy act or any similar federal or state law shall be
filed in any court and such petition or answer shall not be discharged or denied
within ninety (90) days after the filing thereof; or a receiver, trustee or liquidator
of Developer or of Minimum Improvements, or part thereof, shall be appointed in
any proceedings brought against Developer, and shall not be discharged within
ninety (90) days after such appointment, or if Developer shall consent to or
acquiesce in such appointment.
4.2. Remedies on Default by Developer. Whenever any Event of Default referred to in
Section 4.1 ofthis Agreement occurs and is continuing, City, as specified below, may take any
one or more of the following actions after (except in the case of an Event of Default under
subsection (7) of said Section 4.1) the giving of one hundred eighty (180) days' written notice by
City to Developer (and the holder of any mortgage encumbering any interest in the Property of
which City has been notified of in writing) of the Event of Default, but only ifthe Event of
Default has not been cured within said one hundred eighty (180) days, or if the Event of Default
cannot be cured within one hundred eighty (180) days and the Developer does not provide
assurances to City reasonably satisfactory to City that the Event of Default will be cured as soon
as reasonably possible:
(1) City may suspend its performance under this Agreement until it receives assurances
from Developer, deemed adequate by City, that Developer will cure its default and
continue its performance under this Agreement;
(2) City may withhold the Certificate of Completion; or
(3) 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 of
Developer under this Agreement.
4.3 Revesting Title in the City Upon Happening of Event Subsequent to Conveyance to
Developer. In the event that subsequent to conveyance of Property to Developer by City and
prior to receipt by Developer of the Certificate of Completion, and subject to the terms of any
mortgage granted by Developer to secure any loan obtained by Developer from a commercial
lender or other financial institution to fund the acquisition of Property or construction of
Minimum Improvements ("First Mortgage"), if an Event of Default under Section 4.1 of this
Agreement occurs and is not cured within the times specified in Section 4.2, then City shall have
the right to re-enter and take possession of Property and any portion of Minimum Improvements
thereon and to terminate (and revest in City pursuant to the provisions ofthis Section 4.3 subject
only to any superior rights in any holder of a First Mortgage consented to by City) the Property
conveyed by the Deed to Developer, it being the intent ofthis provision, together with other
provisions of this Agreement, that the conveyance of Property to Developer shall be made upon
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the condition that (and the Deed shall contain a condition subsequent to the effect that), in the
event of any default under Section 4.1 on the part of Developer and failure on the part of
Developer to cure such default within the period and in the manner stated herein, City may
declare a termination in favor of City ofthe 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 4.4 of this
Agreement), but only if the events stated in Section 4.1 ofthis Agreement have not been cured
within the time period provided above, or, if the events cannot be cured within such time periods,
Developer does not provide assurance to City, satisfactory to City, that the events will be cured
as soon as reasonably possible.
4.4. Resale of Reacquired Property: Disposition of Proceeds. Upon the revesting in City of
title to Property as provided in Section 4.3 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 pursuant to Agreement and previously consented
to by City, to resell Property or part thereof as soon and in such manner as City shall find feasible
and consistent with the objectives of such law and ofthe Urban Renewal Plan to a qualified and
responsible party or parties (as determined by City in its sole discretion) who will assume the
obligation of making or completing Minimum Improvements or such other improvements in their
stead as shall be satisfactory to City and in accordance with the uses specified for such 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 pursuant to this Agreement and previously
acquiesced in by City upon such resale of Property the proceeds thereof shall be applied:
(1) First, to pay and discharge any liens and encumbrances which are prior to the
mortgagees) previously acquiesced in by City pursuant to this Agreement;
(2) Second, to pay the principal and interest on mortgagees) created on Property, or any
portion thereof, or any improvements thereon, previously acquiesced in by City pursuant
to this Agreement. If more than one mortgage on the Property, or any portion thereof, or
any improvements thereon, has been previously acquiesced in by City pursuant to this
Agreement, and insufficient proceeds of the resale exist to pay the principal of, and
interest on, each such mortgage in full, then such proceeds of the resale as are available
shall be used to pay the principal of and interest on each such mortgage in their order of
priority, or by mutual agreement of all contending parties including Developer, or by
operation of law;
(3) Third, to reimburse City for all allocable costs and expenses incurred by City,
including but not limited to salaries of personnel, in connection with the recapture,
management and resale of property or part thereof (but less any income derived by City
from the property or part thereof in connection with such management); any payments
made or necessary to be made to discharge any encumbrances or liens (except for
mortgagees) previously acquiesced in by the City) existing on Property or part thereof at
the time ofrevesting of title thereto in City or to discharge or prevent from attaching or
bring made any subsequent encumbrances or liens due to obligations, defaults or acts of
Developer, its successors or transferees (except with respect to such mortgagees)); any
expenditures made or obligations incurred with respect to the making or completion of
12
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Minimum Improvements or any part thereof on 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 (i) the sum of the Purchase
Price paid to City for Property and the cash actually invested by Developer in making any
of the Minimum Improvements on Property, less (ii) any gains or income withdrawn or
made by Developer from this Agreement or Property.
4.5. No Remedy Exclusive. No remedy herein conferred upon or reserved to City is intended
to be exclusive of any other available remedy or remedies, but each and every such remedy shall
be cumulative and shall be in addition to every other remedy given under this Agreement or now
or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right
or power accruing upon any default shall impair any such right or power or shall be construed to
be a waiver thereof, but any such right and power may be exercised from time to time and as
often as may be deemed expedient.
4.6. 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.
4.7 Remedies on Default by City. If City defaults in the performance of this Agreement,
Developer may take any action, including legal, equitable or administrative action, which may
appear necessary or desirable to collect any payments due under this Agreement, to recover
expenses of Developer, or to enforce performance and observance of any obligation, agreement,
or covenant of City under this Agreement. Developer may suspend performance under this
Agreement until Developer receives assurances from City, deemed adequate by Developer, that
City will cure its default and continue its performance under this Agreement.
SECTION 5. GENERAL TERMS AND PROVISIONS
5.1 Notices and Demands. Whenever this Agreement requires or permits any notice or
written request by one party to another, it shall be deemed to have been properly given if and
when delivered in person or three (3) business days after having been deposited in any U.S.
Postal Service and sent by registered or certified mail, postage prepaid, addressed as follows:
(1) If to Developer:
Thomas L. Flynn, President
Flynn Ready-Mix Concrete Company
1400 E. 12th Street Ext.
Dubuque, Iowa 52001
Phone: 319/583-6494
FAX: 319/583-7435
13
(2) If to City:
Michael C. Van Milligen, City Manager
City Hall
50 W. 13th Street
Dubuque, IA 52001
Phone: 319/589-4110
FAX: 319/589-4149
or at such other address with respect to either party as that party may, from time to time designate
in writing and forward to the other as provided in this Section.
5.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of
City and Developer and their respective successors and assigns.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its
name and behalf by its Mayor and attested by its City Clerk and Developer has caused this
Agreement to be duly executed in its name and behalf on or as of the day first above written.
CITY OF DUBUQUE, IOWA
FL YNN READY MIX CONCRETE COMPANY
By:
By:
errance M. Dug
Mayor
eanne F. Schneider
City Clerk
om as M. Flynn
Secretary
F:\US ERS\Pmyhre\ WPDOCS\LOANDOC\Flynn\devagree3. wpd
October 9, 2000
14
JOHN C. O'CONNOR
BRENDAN T. QUANN
A. JOHN ARENZ t.
CHAD C. LEITCH *
RICHARD K. WHITIY
STEPHEN C. KRUMPE t*
]AMES E. GOODMAN, JR.
DAVIN C. CURTISS t*
PAUL]. SIGWARTHt
THOMAS S. COLLINS
AMY COLLINS WHITE
GEORGE A. DAVIS t
RODNEY T. CARROLL t
O'CONNOR & THOMAS, P. C.
ATTORNEYS AT LAW
FOUNDED 1840
OF COUNSEL
ROBERT M. BERTSCH
DUBUQUE BUILDING
700 LOCUST ST., SUITE 200
DUBUQUE, IOWA 52001-6874
E. MARSHALL THOMAS
1907-1989
FRANCIS J. O'CONNOR
1916-1990
TELEPHONE
(319) 557-8400
TELECOPIER
(319) 556-1867
E-MAIL
othomaspc@mwci.net
ALL ATIORNEYS LICENSED IN IOWA
. ALSO LICENSED IN ILLINOIS
t ALSO LICENSED IN WISCONSIN
. CERTIFIED CIVIL TRIAL SPECIALISf
By NATIONAL BOARD OF TRIAL ADVOCACY
October 12,2000
Mr. Barry Lindahl
City Attorney
Dubuque Building
196 Mezzanine Level
Dubuque IA 52001
Dear Barry:
Enclosed please find the two Development Agreements signed by Flynn Ready-Mix Concrete
Co. Please forward back one of these signed by the City.
Flynn Ready-Mix is now proceeding with its site design for submission to the City.
Best regards,
O'CONNOR & THOMAS, P.C.
~
Chad C. Leitch
By:
CCL/drm
Enclosures
cc Mr. Thomas L. Flynn
President, Flynn Ready-Mix Concrete Co.
East 12th Street Extension
Dubuque IA 52001