Hunter Equity LLC_Development Agreement, Public HearingInst. No.
201213067
i i i i i i i i i i i i i i i i i ii i i i ii i i i ii i i i i i i i iii i i i i i i i i i i i i i i i i i i o I
Type: GEN
Doc ID: 007832050023
Kind: MISCELLANEOUS
FeecAmtd $117.002 Page a 03:39:24 PM
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Dubuque
County Iowa
Kathy Flynn Thurlow Recorder
FUe2013 00017 217
Prepared By: David J. Helar 50 West 13th Street Dubuque, IA 52001 563- 589 -4393
Return to: Kevin S. Firnstahl, 50 W. 13th St., Dbq, 589 -4121
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, Iowa, a municipal corporation (the "Grantor"),
by a Special Warranty Deed recorded on August 3 , 2012 , as Document Number
00744788006 in the office of the County Recorder of Dubuque County, State of Iowa,
has conveyed to 2013Dubuque (the "Grantee "), in accordance with a Development
Agreement dated as of Marcfe -q9 , 2012, (the "Agreement "), certain real property
located within the Dubuque Industrial Center West Economic Development Urban
Renewal District of the Grantor and as more particularly described as follows:
WHEREAS, said Deed incorporated and contained certain covenants and
restrictions with respect to the development of the Development Property, and obligated
the Grantee to construct certain Minimum Improvements (as defined therein) in
accordance with the Agreement; and
WHEREAS, the Grantee has to the present date performed said covenants and
conditions insofar as they relate to the construction of the Minimum Improvements, in a
manner deemed sufficient by the Grantor to permit the execution and recording of this
certification.
NOW, THEREFORE, pursuant to Section 2.4 of the Agreement, this is to certify
that all agreements and covenants of the Deed and the Agreement with respect to the
obligations of the Grantee, and its successors and assigns, to construct the Minimum
Improvements on the Development Property have been completed and performed by
the Grantee to the satisfaction of the Grantor and such agreements and covenants are
hereby terminated.
The County Recorder of Dubuque County Is hereby authorized to accept for recording
and to record the filing of this instrument, to be a conclusive determination, except as
noted above, of the satisfactory termination of the agreements and covenants of said
Deed and the Agreement which would result In a forfeiture by the Grantee and right of
the Grantor to re -enter and take possession of the Development Property as set forth in
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said Deed and the Agreement, and that said Deed and the Agreement shall otherwise
remain in full force and effect.
CITY OF DUBUQUE, IOWA
By:
Michael C. Van Milligen,
City Manager
STATE OF IOWA
SS
COUNTY OF DUBUQUE )
On this aZ 3 day of acrd 6� ^ 2013 before me a Notary Public in and for
said County, personally appeared Michael C. Van Milligen, to me personally known,
who being duly sworn, did say that he is the City Manager of the City of Dubuque, Iowa,
a Municipal Corporation, created and existing under the laws of the laws of the State of
Iowa, and acknowledged said instrument to be the free act and deed of said Municipal
Corporation by him voluntarily executed.
JUANIT,-1 HILKIN
Commission Number 70834
My Commission Expires
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Notary Public in and for
Dubuque County,, Iowa
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
HUNTER EQUITY, LLC
THIS AGREEMENT, dated for reference purposes the 19th day of
March , 2012, between the City of Dubuque, Iowa, a municipality (City),
established pursuant to the Iowa Code and acting under authorization of Iowa Code
Chapter 403, as amended (Urban Renewal Act), and Hunter Equity, LLC
(Developer), its successors and assigns, a Texas limited liability company with its
principal place of business in Texas.
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act
attached hereto as Exhibit A and as provided to Developer, 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, has been recorded among the land records in the office of the
Recorder of Dubuque County, Iowa and is on file with the City of Dubuque City
Clerk; and
WHEREAS, Developer desires to construct an office /distribution facility in
the Project Area (the Facility); and
WHEREAS, Developer has requested that City sell to Developer 12.4 acres,
described as a part of Lot 1 of the Dubuque Industrial Center North Second
Addition in the City of Dubuque, Dubuque County, Iowa, as more particularly
described on Exhibit E attached hereto and incorporated herein, 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, use, and occupancy of the Facility which the City has
determined and represented to Developer is in accordance with the uses specified
in the Urban Renewal Plan and in accordance with this Agreement; and
022012 final
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 $1,488,000.00 ($120,000.00 per acre for 12.4 acres less the
cost of the Minimum Improvements in Section 2.1(2) which shall be agreed to prior
to the Closing) with a total acquisition of 12.4 acres, which shall be due and payable
by Developer in immediately available funds in favor of City on or before. November
30, 2012, or on such other date as the parties may mutually agree (the Closing
Date). Within three (3) business days after full execution of this Agreement (the
Effective Date), Developer shall deliver to Republic Title Company, 2626 Howell
Street, 10th Floor, Dallas, Texas 75204, Attention: Linda Williams (the "Title
Company ") the sum of Five Thousand Dollars ($5,000.00), as an earnest money
deposit (the "Earnest Money "). The Earnest Money shall be invested by the Title
Company in an interest bearing account for the benefit of Developer. If the sale
hereunder is consummated in accordance with the terms hereof, the Earnest
Money shall be applied to the Purchase Price to be paid by Developer at the
Closing. The Earnest Money will be credited to Developer at the Closing or returned
to Developer in the event the parties fail to close within thirty (30) days after the
Closing Date, less any expenses incurred by City in connection with this
Agreement. The City agrees to submit to the Title Company paid invoices
identifying the expenses incurred by the City which the sum of the invoices will not
exceed the Earnest Money.
1.2 Title to Be Delivered. City agrees to convey good and marketable fee simple
title in the Property to Developer subject only to easements, restrictions, conditions,
and covenants of record as of the date hereof to the extent not objected to by
Developer as set forth in this Agreement, and to the conditions subsequent set forth
in Section 5.3, below:
(1) City, at its sole cost and expense, within fifteen (15) days after the
Effective Date 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
manner as aforesaid.
(2) Developer shall have until time of the Closing 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 timely following Developer's receipt of Developer's land survey and
the Abstract and to timely provide City with any objections to title identified
therein. Nothing herein shall be deemed to limit Developer's rights to raise
new title objections with respect to matters revealed in any subsequent title
examinations and surveys and which were not identified in the Abstract
provided by the City. City shall promptly exercise its best efforts to have
such title objections removed or satisfied and shall advise Developer of
intended action within ten (10) days of such action. If City shall fail to have
such objections removed as of the Closing, or any extension thereof
consented to by Developer, Developer may, at its sole discretion, either (a)
terminate this Agreement without any liability on its part, and the Earnest
Money shall be returned to Developer with any interest earned and less any
expenses incurred by City in connection with this Agreement, or (b) take title
subject to such objections. City agrees to use its best reasonable efforts to
promptly satisfy any such objections.
1.3 Rights of _ Inspection, _ Testing and Review. Developer, its counsel,
accountants, agents, and other representatives, shall have full and continuing
access to the Property and all parts thereof, upon reasonable notice to City.
Developer and its agent and representatives shall also have the right to enter upon
the Property at any time after the execution and delivery hereof for any purpose
whatsoever, including inspecting, surveying, engineering, test boring, and
performing environmental tests, provided that Developer shall hold City harmless
and fully indemnify City against any damage, claim, liability or cause of action
arising from or caused by the actions of Developer, its agents, or representatives
upon the Property (except for any damage, claim, liability or cause of action arising
from conditions existing prior to any such entry upon the Property), and shall have
the further right to make such inquiries of governmental agencies and utility
companies, etc, and to make such feasibility studies and analyses as they consider
appropriate.
1.4 Representations and Warranties of City. In order to induce Developer to
enter into this Agreement and purchase the Property, City hereby represents and
warrants to Developer that to the best of City's knowledge:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or enjoyment
thereof by Developer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
(2) No ordinance or hearing is now or before any local governmental
body that either contemplates or authorizes any public improvements or
special tax levies, the cost of which may be assessed against the Property.
To the best of City's knowledge, there are no plans or efforts by any
government agency to widen, modify, or re- align any street or highway
providing access to the Property and there are no pending or intended public
improvements or special assessments affecting the Property which will result
in any charge or lien be levied or assessed against the Property.
(3) All leases, contracts, licenses, and permits between City and third
parties in connection with the maintenance, use, and operation of the
Property have been provided to Developer and City has provided true and
correct copies of all such documents to Developer;
(4) City has good and marketable fee simple title interest in the Property.
(5) The Property has a permanent right of ingress or egress to a public
roadway, known as Innovation Drive for the use and enjoyment of the
Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other
matters that have not been corrected. City has notified Developer in writing
of any past notices, orders, suits, judgments or other proceedings relating to
fire, building, zoning, air pollution or health violations as they relate to the
Property of which it has actual notice. The Property is in material
compliance with all applicable zoning, fire, building, and health statutes,
ordinances, and regulations for the Facility and Intended Use.
(7) Payment has been made for all labor or materials which have been
furnished to the Property or will be made prior to the Closing so that no lien
for labor performed or materials furnished can be asserted against the
Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not
and shall not result in any material breach of any terms or conditions of any
mortgage, bond, indenture, agreement, contract, license, or other instrument
or obligation to which City is a party or by which either the City or the
Property being conveyed are bound, nor shall the execution, delivery and
performance of this Agreement violate any statute, regulation, judgment, writ,
injunction or decree of any court threatened or entered in a proceeding or
action in which City may be bound or to which either City or the Property
being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and it has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer at time of
Closing confirming the representation contained herein, in the form attached
hereto as Exhibit C.
(11) All city utilities necessary for the development and use of the Property
an office /distribution facility adjoin the Property, and Developer shall have
the right to tie into said utilities, subject to City's connection fees.
(12) The Property is free and clear of any occupants, and no party has a
lease to or other occupancy or contract right in the Property that shall in any
way be binding upon the Property or Developer.
(13) City represents and warrants that any fees or other compensation
which may be owed to a broker engaged directly or indirectly by City in
connection with the purchase and sale contemplated in this Agreement are
the sole responsibility and obligation of City and that City will indemnify
Developer and hold Developer harmless from any and all claims asserted by
any broker engaged directly or indirectly by City for any fees or other
compensation related to the subject matter of this Agreement.
(14) City shall exercise its best efforts to assist Developer in the
development process.
as
(15) City shall exercise its best efforts to resolve any disputes arising
during the development process in a reasonable and prompt fashion,
(16) With respect to the period to and during which City has owned or
occupied the Property, 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.
(17) The Property is presently zoned to accommodate Developer's intended
improvements and use which is a pre- engineered metal building package
distribution facility, requiring loading and unloading and outside parking and
storage of tractors, trailers, double trailers, trucks, automobiles, and other
vehicles for continuous 24 -hour operations on all days of the year in the
Project Area (the Intended Use).
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(18) The representations and warranties contained in this Section shall be
correct in all respects on and as of the Closing with the same force and
effect as if such representations and warranties had been made on and as of
the Closing Date.
1.5 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. At the Closing, City shall deliver a
certificate in the form of Exhibit H.
(2) Title to the Property shall be in the condition warranted in Section 1.4.
(3) Developer, in its sole and absolute discretion, having completed and
approved of any inspections done by Developer hereunder.
(4) Developer having obtained any and all necessary governmental
approvals 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, 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
except for the plat. 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, and the construction, use and occupancy of the
project with the intent and understanding that Developer and its lenders and
attorneys will rely upon same in establishing their agreement and time
frames for construction, use and occupancy, lending on the project and
issuing legal opinions in connection therewith; and (d) to cooperate fully with
Developer to streamline and facilitate the obtaining of such permits,
approvals and consents.
(5) City having completed all required notice to or prior approval, consent
or permission of any federal, state, municipal or local governmental agency,
body, board or official to the sale of the Property; and consummation of the
Closing by City shall be deemed a representation and warranty that it has
obtained the same.
(6) Developer and City shall be in material compliance with all the terms
and provisions of this Agreement.
(7) Developer shall have furnished City with evidence, in a form
satisfactory to City (such as a letter of commitment from a bank or other
lending institution), that Developer has firm financial commitments in an
amount sufficient, together with equity commitments, to complete the
Minimum Improvements (as defined herein) in conformance with the
Construction Plans (as defined herein), or City shall have received such
other evidence of such party's financial ability as in the reasonable judgment
of City is required.
(8) Receipt of an opinion of counsel to Developer in the form attached
hereto as Exhibit D.
(9) An agreed Statement of Costs for the Minimum Improvements
described in Sction 2.1(2).
(9) Developer shall have the right to terminate this Agreement at any time
prior to the consummation of the closing on the Closing Date if Developer
determines in its sole discretion that conditions necessary for the successful
completion of the Project contemplated herein have not been satisfied to the
full satisfaction of such party in such party's sole and unfettered discretion.
Upon the giving of notice of termination by such terminating party to the
other parties to this Agreement, this Agreement shall be deemed null and
void and the Earnest Money will be returned to the Developer less any
expenses incurred by City in connection with this Agreement.
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 subject to the City's obligation to obtain all
right of way and easements required for the extension of Innovation Drive and in
compliance with this Agreement, including City's representations and warranties
regarding the same. Consummation of the Closing shall be deemed an agreement
of the parties to this Agreement that the conditions of closing have been satisfied or
waived.
1.7 City's Obligations at Closing. At or prior to 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 (the Deed) conveying
to Developer marketable fee simple title to the Property and all rights
appurtenant thereto, subject only to easements, restrictions, conditions and
covenants of record as of the date hereof and not objected to by Developer
as set forth in this Agreement, and to the conditions subsequent set forth in
Section 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 as provided in Section 1.10.
(c) All special assessments, if any, whether levied, pending, or
assessed.
(d) City's attorney's fees, if any.
(e) City's broker and /or real estate commissions and fees, if any.
(f) The cost of recording the satisfaction of any existing mortgage
and any other document necessary to make title marketable.
(2) Developer shall pay the following costs in connection with the closing:
(a) The recording fee necessary to record the Deed.
(b) Developer's attorneys' fees.
(c) Developer's broker and /or real estate commissions and fees, if
any.
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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
prior to the fiscal year in which the Closing occurs. Real estate taxes for the fiscal
year in which Closing Date occurs shall be prorated between City and Developer to
the Closing 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.
SECTION 2. DEVELOPMENT ACTIVITIES.
2.1 Required Minimum Improvements. Developer agrees to the following
Minimum Improvements:
(1) City acknowledges that Developer is building the Facility on the
Property as shown on Exhibit B attached hereto. Specifically, Developer is
charged with constructing the Facility and certain internal systems thereto,
and with finishing the Facility including, without limitation, all interior
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 ( "Minimum Improvements "). Developer hereby agrees to
construct on the Property the Facility with not less than eighty thousand
(80,000) square feet of floor space along with necessary site work as
contemplated in this Agreement at an estimated cost of approximately
$2,500,000.
(2) Developer also agrees at its cost to extend Innovation Drive, and to
install all light poles and all utilities, including, but not limited to, water, sewer,
electricity, gas, phone, and fiber optic, which City requires to be extended or
which Developer requires for the Facility in accordance with City's
specifications. The parties agree that a Statement of Costs of the Minimum
Improvements required by this Section 2.1(2) must be agreed upon by the
City and Developer prior to the Closing. The Purchase Price will be reduced
by one half (%z) the amount of the costs identified in the Statement of Costs .
2.2 Plans for Construction of Minimum Improvements. Plans and specifications
with respect to the development of the 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 the Amended and Restated Declaration of
Covenants, Conditions, Restrictions, Reservations, Easements, Liens and Charges,
recorded as Instrument No 2011- 00002684, records of Dubuque County, Iowa.
Developer shall submit to City, for approval by City, plans, drawings, specifications,
and related documents with respect to the improvements to be constructed by
Developer on the Property. All work with respect to the Minimum Improvements
shall be in substantial conformity with the Construction Plans approved by City.
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2.3 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced on or before
December 15, 2012, and shall be substantially completed by August 1, 2013. 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 delays, or acts of any
federal, state or local government which directly result in extraordinary delays. The
time for performance of such obligations shall be extended only for the period of
such delay.
2.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall furnish Developer with an
appropriate instrument so certifying. Such certification (the Certificate of
Completion) shall be in the form attached hereto as Exhibit I and shall be a
conclusive determination of the satisfaction and termination of the agreements and
covenants in this Agreement and in the Deed with respect to the obligations of
Developer to construct the Minimum Improvements. The Certificate of Completion
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 shall have the right, but
not the obligation, to complete such Minimum Improvements.
SECTION 3. COVENANTS OF DEVELOPER.
3.1 Preservation of Property. During the Term of this Agreement, Developer
shall maintain, preserve and keep, or cause others to maintain, preserve and keep,
Minimum Improvements in good repair and working order, ordinary wear and tear
excepted, and from time to time shall make all necessary repairs, replacements,
renewals and additions. Nothing in this Agreement, however, shall be deemed to
alter any agreements between Developer or any other party including, without
limitation, any agreements between the parties regarding the care and maintenance
of the Property.
3.2 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.
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3.3 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.
3.4 Assignment. 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 nor may the Property be transferred by Developer to another party
without the prior written consent of City, which shall not be unreasonably withheld.
Thereafter, Developer 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. Notwithstanding the foregoing
two sentences, Developer may assign this Agreement to one of the FedEx
approved developers listed below or their affiliated entity without the consent of
City:
• Ruedebusch Development & Construction, Inc.
• Baseline Development, LLC
• Setzer Properties
• Devron Property Services, Inc.
Upon delivery of a copy of an assignment to one of the foregoing developers to
City, pursuant to which the assignee assumes all obligations under this Agreement,
Developer shall no longer be responsible for any obligations under this Agreement.
3.5 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 /distribution facility 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
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(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, gender identity, 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).
3.6 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 and covenants and agrees that the
Indemnified Parties shall not be liable for, and agrees to indemnify, defend
and hold harmless the Indemnified Parties against any loss or damage to
property or any injury to or death of any person occurring at or about or
resulting from any defect in the Minimum Improvements.
(2) Except for any gross negligence, willful misrepresentation or any
willful or wanton misconduct or any unlawful act of the Indemnified Parties,
Developer agrees to protect and ``defend the Indemnified Parties, now or
forever, and further agrees to hold the Indemnified Parties harmless, from
any claim, demand, suit, action or other proceedings whatsoever by any
person or entity whatsoever arising or purportedly arising from (1) any
violation of any agreement or condition of this Agreement (except with
respect to any suit, action, demand or other proceeding brought by
Developer against City based on an alleged breach of any representation,
warranty or covenant of City under this Agreement and /or to enforce its
rights under this Agreement); or (2) the acquisition, construction, installation,
ownership, and operation of the Minimum Improvements or (3) the condition
of the Property and any hazardous substance or environmental
contamination located in or on the Property, caused and occurring after
Developer takes possession of the Property.
(3) The Indemnified Parties shall not be liable to Developer for any
damage or injury to the persons or property of Developer or its officers,
agents, servants or employees or any other person who may be on, in or
about the Minimum Improvements due to any act of negligence of any
person, other than any act of negligence on the part of any such Indemnified
Party or its officers, agents, servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of
City contained herein shall be deemed to be the covenants, stipulations,
promises, agreements and obligations of City, and not of any governing body
member, officer, agent, servant or employee of City in their individual
capacity thereof.
12
(5) The provisions of this Section shall survive the termination of this
Agreement.
3.7 Compliance with Laws. Developer 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.
3.8 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
until the Certificate of Completion is issued, and from time to time at the
request of City, furnish City with proof of insurance in the form of a certificate
of insurance all risk builder's risk insurance with occupancy clause, written
on a Completed Value Form in an amount equal to one hundred percent
(100 %) of the replacement value when construction is completed.
(2) Developer agrees to notify City immediately in the case of damage
exceeding $50,000.00 in amount to, or destruction of, the Minimum
Improvements or any portion thereof resulting from fire or other casualty.
The net proceeds of any such insurance (the Net Proceeds) shall be paid
directly to Developer as its interests may appear, and Developer shall
forthwith repair, reconstruct and restore the Minimum Improvements to
substantially the same or an improved condition or value as they existed
prior to the event causing such damage and, to the extent necessary to
accomplish such repair, reconstruction and restoration, Developer shall
apply the Net Proceeds of any insurance relating to such damage received
by Developer to the payment or reimbursement of the costs thereof, subject,
however, to the terms of any mortgage encumbering title to the Property (as
its interests may appear). Developer shall complete the repair, reconstruction
and restoration of Minimum Improvements whether or not the Net Proceeds
of insurance received by Developer for such Purposes are sufficient.
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, any one or more of the following events:
13
(1) Failure by Developer to pay or cause to be paid, before delinquency,
all real property taxes assessed with respect to the Minimum Improvements
and the Property.
(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms,
conditions and limitations of this Agreement..
(3) Transfer of any interest by Developer of Minimum Improvements in
violation of the provisions of this Agreement prior to the issuance of the final
Certificate of Completion.
(4) Failure by Developer 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.
42 Remedies on Default by Developer. Whenever any Event of Default referred
to in Section 4.1 of this Agreement occurs and is continuing, City, as specified
below, may take any one or more of the following actions after the giving of written
notice by City to Developer (and the holder of any mortgage encumbering any
interest in the Property of which City has been notified of in writing) of the Event of
Default, but only if the Event of Default has not been cured within sixty (60) days
following such notice, or if the Event of Default cannot be cured within sixty (60)
days and the defaulting party 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 may withhold the Certificate of Completion, or
(4) After the Closing 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.
4.3 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 the Property or construction of Minimum
14
Improvements (First Mortgage), 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 the Minimum Improvements thereon and to terminate (and re -vest in City
pursuant to the provisions of this Section 4.3 subject only to any superior rights in
any holder of the First Mortgage) the estate conveyed by City to Developer, it being
the intent of this provision, together with other provisions of this Agreement, that the
conveyance of Property to Developer shall be made upon the condition that (and
the Deed shall contain a condition subsequent to the effect that), in the. event of
default under Section 4.1 on the part of Developer and failure on the part of
Developer to cure such default within the period and in the manner stated herein,
City may declare a termination in favor of City of the title and of all Developer's
rights and interests in and to 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 4.3 of this Agreement), but only if
the events stated in Section 4.1 of this Agreement have not been cured within the
time period provided above, or, if the events cannot be cured within such time
periods, Developer does not provide assurance to City, reasonably satisfactory to
City, that the events will be cured as soon as reasonably possible. 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.
4.4 Resale of Reacquired Property; Disposition of Proceeds. Upon the re-
vesting in City of title to the 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, to resell the Property or part thereof as soon and in such manner as City
shall find feasible and consistent with the objectives of such law and of the Urban
Renewal Plan to a qualified and responsible party or parties (as determined by City
in its sole discretion) who will assume the obligation of making or completing
Minimum Improvements or such other improvements in their stead as shall be
satisfactory to City and in accordance with the uses specified for such the Property
or part thereof in the Urban Renewal Plan. Subject to any rights or interests in such
property or proceeds granted to any holder of a First Mortgage upon such resale of
the Property the proceeds thereof shall be applied:
(1) First, to pay and discharge the First Mortgage;
(2) Second, to pay the principal and interest on mortgage(s) created on
the 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
15
of, and interest on, each such mortgage in full, then such proceeds of the
resale as are available shall be used to, pay the principal of and interest on
each such mortgage in their order of priority, or by mutual agreement of all
contending parties, including Developer, or by operation of law;
(3) Third, to reimburse City for all allocable costs and expenses incurred
by City, including but not limited to salaries of personnel, in connection with
the recapture, management and resale of the Property or part thereof (but
less any income derived by City from the Property or part thereof in
connection with such management); any payments made or necessary to be
made to discharge any encumbrances or liens (except for mortgage(s)
previously acquiesced in by the City) existing on the Property or part thereof
at the time of re- vesting of title thereto in City or to discharge or prevent from
attaching or being made any subsequent encumbrances or liens due to
obligations, default or acts of Developer, its successors or transferees
(except with respect to such mortgage(s)), any expenditures made or
obligations incurred with respect to the making or completion of the Minimum
Improvements or any part thereof on the Property or part thereof, and any
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.,,
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 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
16
for that purpose. Such fees and costs of litigation shall be in addition to any other
relief that may be awarded.
4.8 Remedies on Default by City. If City defaults in the performance of this
Agreement, Developer may take any action, including legal, equitable or
administrative action that may appear necessary or desirable to collect any
payments due under this Agreement, to recover expenses of Developer, or to
enforce performance and observance of any obligation, agreement, or covenant of
City under this Agreement. Developer may suspend their performance under this
Agreement until they receive 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:
If to Developer:
Hunter Equity, LLC
3890 W. Northwest Hwy., Ste. 100
Dallas, TX 75220
Phone: (214) 550 -1200
Fax: (214) 688 -4466
With copy to:
Strasburger & Price
Paul Sander
2801 Network Blvd., Ste. 600
Frisco, TX 75034
Phone: (469) 287 -3948
Fax: (469) 227 -6573
If to City:
City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589 -4110
Fax: (563) 589 -4149
17
With copy to:
City Attorney
City Hall
50 W. 13th Street
Dubuque, Iowa 52001
or at such other address with respect to any party as that party may, from time to
time designate in writing and forward to the other as provided in this Section.
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.
5.3 Termination Date. This Agreement and the rights and obligations of the
parties hereunder shall terminate upon issuance of the Certificate of Completion of
the Minimum Improvements (the Termination Date).
5.4 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.
5.5 Memorandum of Development Agreement. City 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.
IN WITNESS WHEREOF, City has caused this Agreement to be duly
executed in its name and behalf by its Mayor and attested to by its City Clerk and
Developer has caused this Agreement to be duly executed.
CITY OF DUBUQUE, IOWA HUNTER EQUITY, LLC
By:
By:
By:
Roy D / =uol, Mayor Sco
in S. Firnsta
City Clerk
18
Rohrman, Manager
Prepared by: David J. Heiar, 50 West 13th Street, Dubuque IA 52001 563 589 -4393
Return to: David J. Heiar, 50 West 13th Street, Dubuque IA 52001 563 589 -4393
RESOLUTION NO. 79 -12
RESOLUTION APPROVING A DEVELOPMENT AGREEMENT PROVIDING FOR THE
SALE OF 12.4 ACRES IN THE DUBUQUE INDUSTRIAL CENTER WEST TO
HUNTER EQUITY, LLC
Whereas, the City Council, by Resolution No. 65 -12, dated March 5, 2012 declared its
intent to enter into a Development Agreement with Hunter Equity, LLC for the sale of 12.4
acres in the Dubuque Industrial Center West (the Property); and
Whereas, pursuant to published notice, a public hearing was held on the proposed
disposition on March 19, 2012 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 Hunter Equity, LLC 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 and Hunter Equity, LLC 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.
Passed, approved and adopted this 19th day of March, 2012.
0 , ,,K,,,,
Roy D. uol, Mayor
F :IUSERS1Econ Dev\FedEX120120305Hunter Equity- FedELResolution Disposition & Approve DA.docx
CERTIFICATE of the CITY CLERK
STATE OF IOWA )
SS:
COUNTY OF DUBUQUE )
I, Kevin S. Firnstahl, do hereby certify that I am the duly appointed, qualified, City Clerk
of the City of Dubuque, Iowa, in the County aforesaid, and as such City Clerk, I have in
my possession or have access to the records of the proceedings of the City Council. I
do further state that the hereto attached Resolution No. 79 -12 is a true and correct
copy of the original.
In Testimony Whereof, I hereunto set my hand and official seal of the City of Dubuque,
Iowa.
Dated at Dubuque, Iowa, on this 31st day of October, 2013.
Kevi S. Firnstahl,
Clerk
Masterpiece on the Mississippi
Dubuque
bierd
All-America City
1
2007
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 to Hunter
Equity, LLC
DATE: March 9, 2012
Economic Development Director David Heiar is recommending approval of a
Development Agreement with Hunter Equity, LLC for the sale of 12.4 acres in Dubuque
Industrial Center West and construction of an 80,000 square foot distribution center for
Fed -Ex.
Fed -Ex anticipates that this location and modern facility will ultimately grow their local
employment base but the company is not willing to make a formal commitment to
creating jobs in Dubuque. Therefore, the proposed Development Agreement would
authorize the sale of land but provides no incentives.
The key elements of the Development Agreement include the following:
1) The purchase price is $120,000 per acre for 12.4 acres.
2) The property will be conveyed on or before November 30, 2012.
3) The company must construct a building of approximately 80,000 sq. ft. costing
approximately $2,500,000 prior to August 1, 2013.
4) The City and Developer will equally share the cost of the extension of Innovation
Drive and utilities estimated at $488,000. The Developer shall make the actual
improvements to the City's specifications. Final plans and costs will need to be
agreed upon prior to the closing.
5) Developer has the right to assign this agreement to one of four other developers
who also do work for Fed -Ex. They are:
• Ruedebusch Development & Construction, Inc.
• Baseline Development, LLC
• Setzer Properties
• Devron Property Services, Inc.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
1c
Michael C. Van Milligen
MCVM:sv
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David Heiar, Economic Development Director
Masterpiece on the Mississippi
Dubuque
katil
All- America City
11111!
2007
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director
DATE: March 7, 2012
SUBJECT: Disposition of Property in the Dubuque Industrial Center West to Hunter
Equity, LLC
INTRODUCTION
This memorandum presents for City Council consideration a Resolution selling of
approximately 12.4 acres identified on the attached exhibit to Hunter Equity, LLC for
construction of an 80,000 sq. ft. distribution Center for Fed -Ex. The attached Resolution
approves the sale of this property to Hunter Equity, LLC.
BACKGROUND
City staff has worked with the Greater Dubuque Development Corporation, Hunter
Equity, LLC and Fischer & Company on the construction of a new distribution center at
the Dubuque Industrial Center West.
Hunter Equity, LLC of Dallas, Texas works with Fed -Ex to develop and construct
distribution centers throughout the country. Their site plan requires a 12 -15 acre parcel
of property. In an effort to make this site plan fit into the Dubuque Industrial Center
West, it will be necessary to eliminate the temporary cul -de -sac at the North end of
Innovation Drive, and to shift the extension of Innovation Drive slightly to the West (see
attached map). The shift in the street location requires the City to vacate a portion of
the previously platted street, and to acquire .02 acres back from Green Industrial
Supply. Patrick Green has consented to sell this land back to the City for the same
price he paid the City in 2011.
The cost to reacquire this .02 acres is $1,356.54. Innovation Drive and utilities will need
to be extended approximately 750 feet at an estimated cost of $488,000. These costs
will be equally shared by the City and Hunter Equity. The Developer will be responsible
for extending the street and utilities to the City's specifications. Developer and City
agree that a Statement of Costs of the Minimum Improvements must be agreed upon by
the City and Developer prior to the closing. The purchase price will be reduced by one
half (1/2) the amount of the costs identified in the Statement of Costs.
DISCUSSION
Fed -Ex anticipates that this location and modern facility will ultimately grow their local
employment base but the company is not willing to make a formal commitment to
creating jobs in Dubuque. Therefore, the proposed Development Agreement would
authorize the sale of land but provides no incentives.
The attached Development Agreement establishes the terms of the sale of the property
to Hunter Equity, LLC. The key elements of the agreement include the following:
1) The purchase price is $120,000 per acre for 12.4 acres.
2) The property will be conveyed on or before November 30, 2012.
3) The company must construct a building of approximately 80,000 sq. ft. costing
approximately $2,500,000 prior to August 1, 2013.
4) The City and Developer will equally share the cost of the extension of Innovation
Drive and utilities estimated at $488,000. The Developer shall make the actual
improvements to the City's specifications. Final plans and costs will need to be
agreed upon prior to the closing.
5) Developer has the right to assign this agreement to one of four other developers
who also do work for Fed -Ex. They are:
• Ruedebusch Development & Construction, Inc.
• Baseline Development, LLC
• Setzer Properties
• Devron Property Services, Inc.
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 approximately 12.4 acres in the Dubuque Industrial Center West to
Hunter Equity, LLC for the purpose of constructing an 80,000 sq. ft. distribution center.
This action supports the Council's objectives to assist a local business expand its
operations and create an environment conducive to job creation.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
Attachments
F \USERS \Econ Dev \FedEX\20120305_Approve DA Hunter Equity - FedEx_Council memo docx
Prepared By: David J. Helar 50 West 13th Street Dubuque, IA 52001 563- 589 -4393
Return to:
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, Iowa, a municipal corporation (the "Grantor"),
by a Special Warranty Deed recorded on August 3 , 2012 , as Document Number
00744788006 in the office of the County Recorder of Dubuque County, State of Iowa,
has conveyed to 2013Dubuque (the "Grantee "), in accordance with a Development
Agreement dated as of MarchL'T9 , 2012, (the "Agreement "), certain real property
located within the Dubuque Industrial Center West Economic Development Urban
Renewal District of the Grantor and as more particularly described as follows:
WHEREAS, said Deed incorporated and contained certain covenants and
restrictions with respect to the development of the Development Property, and obligated
the Grantee to construct certain Minimum Improvements (as defined therein) in
accordance with the Agreement; and
WHEREAS, the Grantee has to the present date performed said covenants and
conditions insofar as they relate to the construction of the Minimum Improvements, in a
manner deemed sufficient by the Grantor to permit the execution and recording of this
certification.
NOW, THEREFORE, pursuant to Section 2.4 of the Agreement, this is to certify
that all agreements and covenants of the Deed and the Agreement with respect to the
obligations of the Grantee, and its successors and assigns, to construct the Minimum
Improvements on the Development Property have been completed and performed by
the Grantee to the satisfaction of the Grantor and such agreements and covenants are
hereby terminated.
The County Recorder of Dubuque County is hereby authorized to accept for recording
and to record the filing of this instrument, to be a conclusive determination, except as
noted above, of the satisfactory termination of the agreements and covenants of said
Deed and the Agreement which would result in a forfeiture by the Grantee and right of
the Grantor to re -enter and take possession of the Development Property as set forth in
40
said Deed and the Agreement, and that said Deed and the Agreement shall otherwise
remain in full force and effect.
CITY OF DUBUQUE, IOWA
By: ��--
Michael C. Van Milligen,
City Manager
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this d 3 day of Ocjd be^, 2013 before me a Notary Public in and for
said County, personally appeared Michael C. Van Milligen, to me personally known,
who being duly sworn, did say that he is the City Manager of the City of Dubuque, Iowa,
a Municipal Corporation, created and existing under the laws of the laws of the State of
Iowa, and acknowledged said instrument to be the free act and deed of said Municipal
Corporation by him voluntarily executed.
41
Notary Public in and for
Dubuque County,. Iowa
Prepared by: David J. Heiar, 50 West 13th Street, Dubuque IA 52001 563 589 -4393
Return to: David J. Heiar, 50 West 13th Street, Dubuque IA 52001 563 589 -4393
RESOLUTION NO. 79 -12
RESOLUTION APPROVING A DEVELOPMENT AGREEMENT PROVIDING FOR THE
SALE OF 12.4 ACRES IN THE DUBUQUE INDUSTRIAL CENTER WEST TO
HUNTER EQUITY, LLC
Whereas, the City Council, by Resolution .No. 65 -12, dated March 5, 2012 declared its
intent to enter into a Development Agreement with Hunter Equity, LLC for the sale of 12.4
acres in the Dubuque Industrial Center West (the Property); and
Whereas, pursuant to published notice, a public hearing was held on the proposed
disposition on March 19, 2012 at 6:30 p.m. in the Historic Federal Building, 350 W. 61" 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 Hunter Equity, LLC 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 and Hunter Equity, LLC 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.
Passed, approved and adopted this 19th day of March, 2012.
Attest:
Key' S. Firnstahl, ity Cler
Roy D. itol, Mayor
F: \USERS \Econ Dev \FedEX\20120305_Hunter Equity -FedEx Resolution Disposition & Approve DA.docx
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
HUNTER EQUITY, LLC
THIS AGREEMENT, dated for reference purposes the 19th day of
March , 2012, between the City of Dubuque, Iowa, a municipality (City),
established pursuant to the Iowa Code and acting under authorization of Iowa Code
Chapter 403, as amended (Urban Renewal Act), and Hunter Equity, LLC
(Developer), its successors and assigns, a Texas limited liability company with its
principal place of business in Texas.
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act
attached hereto as Exhibit A and as provided to Developer, 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, has been recorded among the land records in the office of the
Recorder of Dubuque County, Iowa and is on file with the City of Dubuque City
Clerk; and
WHEREAS, Developer desires to construct an office /distribution facility in
the Project Area (the Facility); and
WHEREAS, Developer has requested that City sell to Developer 12.4 acres,
described as a part of Lot 1 of the Dubuque Industrial Center North Second
Addition in the City of Dubuque, Dubuque County, Iowa, as more particularly
described on Exhibit E attached hereto and incorporated herein, 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, use, and occupancy of the Facility which the City has
determined and represented to Developer is in accordance with the uses specified
in the Urban Renewal Plan and in accordance with this Agreement; and
022012 final
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 $1,488,000.00 ($120,000.00 per acre for 12.4 acres Tess the
cost of the Minimum Improvements in Section 2.1(2) which shall be agreed to prior
to the Closing) with a total acquisition of 12.4 acres, which shall be due and payable
by Developer in immediately available funds in favor of City on or before November
30, 2012, or on such other date as the parties may mutually agree (the Closing
Date). Within three (3) business days after full execution of this Agreement (the
Effective Date), Developer shall deliver to Republic Title Company, 2626 Howell
Street, 10th Floor, Dallas, Texas 75204, Attention: Linda Williams (the "Title
Company ") the sum of Five Thousand Dollars ($5,000.00), as an earnest money
deposit (the "Earnest Money "). The Earnest Money shall be invested by the Title
Company in an interest bearing account for the benefit of Developer. If the sale
hereunder is consummated in accordance with the terms hereof, the Earnest
Money shall be applied to the Purchase Price to be paid by Developer at the
Closing. The Earnest Money will be credited to Developer at the Closing or returned
to Developer in the event the parties fail to close within thirty (30) days after the
Closing Date, less any expenses incurred by City in connection with this
Agreement. The City agrees to submit to the Title Company paid invoices
identifying the expenses incurred by the City which the sum of the invoices will not
exceed the Earnest Money.
1.2 Title to Be Delivered. City agrees to convey good and marketable fee simple
title in the Property to Developer subject only to easements, restrictions, conditions,
and covenants of record as of the date hereof to the extent not objected to by
Developer as set forth in this Agreement, and to the conditions subsequent set forth
in Section 5.3, below:
(1) City, at its sole cost and expense, within fifteen (15) days after the
Effective Date 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
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the property of Developer when the Purchase Price is paid in full in the
manner as aforesaid.
(2) Developer shall have until time of the Closing 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 timely following Developer's receipt of Developer's land survey and
the Abstract and to timely provide City with any objections to title identified
therein. Nothing herein shall be deemed to limit Developer's rights to raise
new title objections with respect to matters revealed in any subsequent title
examinations and surveys and which were not identified in the Abstract
provided by the City. City shall promptly exercise its best efforts to have
such title objections removed or satisfied and shall advise Developer of
intended action within ten (10) days of such action. If City shall fail to have
such objections removed as of the Closing, or any extension thereof
consented to by Developer, Developer may, at its sole discretion, either (a)
terminate this Agreement without any liability on its part, and the Earnest
Money shall be returned to Developer with any interest earned and less any
expenses incurred by City in connection with this Agreement, or (b) take title
subject to such objections. City agrees to use its best reasonable efforts to
promptly satisfy any such objections.
1.3 Rights of Inspection, Testing and Review. Developer, its counsel,
accountants, agents, and other representatives, shall have full and continuing
access to the Property and all parts thereof, upon reasonable notice to City.
Developer and its agent and representatives shall also have the right to enter upon
the Property at any time after the execution and delivery hereof for any purpose
whatsoever, including inspecting, surveying, engineering, test boring, and
performing environmental tests, provided that Developer shall hold City harmless
and fully indemnify City against any damage, claim, liability or cause of action
arising from or caused by the actions of Developer, its agents, or representatives
upon the Property (except for any damage, claim, liability or cause of action arising
from conditions existing prior to any such entry upon the Property), and shall have
the further right to make such inquiries of governmental agencies and utility
companies, etc. and to make such feasibility studies and analyses as they consider
appropriate.
1.4 Representations and Warranties of City. In order to induce Developer to
enter into this Agreement and purchase the Property, City hereby represents and
warrants to Developer that to the best of City's knowledge:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or enjoyment
thereof by Developer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
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(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, known as Innovation Drive for the use and enjoyment of the
Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other
matters that have not been corrected. City has notified Developer in writing
of any past notices, orders, suits, judgments or other proceedings relating to
fire, building, zoning, air pollution or health violations as they relate to the
Property of which it has actual notice. The Property is in material
compliance with all applicable zoning, fire, building, and health statutes,
ordinances, and regulations for the Facility and Intended Use.
(7) Payment has been made for all labor or materials which have been
furnished to the Property or will be made prior to the Closing so that no lien
for labor performed or materials furnished can be asserted against the
Property.
(8) The Property will, as of the Closing Date, 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
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action in which City may be bound or to which either City or the Property
being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and it has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer at time of
Closing confirming the representation contained herein, in the form attached
hereto as Exhibit C.
(11) All city utilities necessary for the development and use of the Property
as an office /distribution facility adjoin the Property, and Developer shall have
the right to tie into said utilities, subject to City's connection fees.
(12) The Property is free and clear of any occupants, and no party has a
lease to or other occupancy or contract right in the Property that shall in any
way be binding upon the Property or Developer.
(13) City represents and warrants that any fees or other compensation
which may be owed to a broker engaged directly or indirectly by City in
connection with the purchase and sale contemplated in this Agreement are
the sole responsibility and obligation of City and that City will indemnify
Developer and hold Developer harmless from any and all claims asserted by
any broker engaged directly or indirectly by City for any fees or other
compensation related to the subject matter of this Agreement.
(14) City shall exercise its best efforts to assist Developer in the
development process.
(15) City shall exercise its best efforts to resolve any disputes arising
during the development process in a reasonable and prompt fashion.
(16) With respect to the period to and during which City has owned or
occupied the Property, 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.
(17) The Property is presently zoned to accommodate Developer's intended
improvements and use which is a pre- engineered metal building package
distribution facility, requiring loading and unloading and outside parking and
storage of tractors, trailers, double trailers, trucks, automobiles, and other
vehicles for continuous 24 -hour operations on all days of the year in the
Project Area (the Intended Use).
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(18) The representations and warranties contained in this Section shall be
correct in all respects on and as of the Closing with the same force and
effect as if such representations and warranties had been made on and as of
the Closing Date.
1.5 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. At the Closing, City shall deliver a
certificate in the form of Exhibit H.
(2) Title to the Property shall be in the condition warranted in Section 1.4.
(3) Developer, in its sole and absolute discretion, having completed and
approved of any inspections done by Developer hereunder.
(4) Developer having obtained any and all necessary governmental
approvals 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, 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
except for the plat. 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, and the construction, use and occupancy of the
project with the intent and understanding that Developer and its lenders and
attorneys will rely upon same in establishing their agreement and time
frames for construction, use and occupancy, lending on the project and
issuing legal opinions in connection therewith; and (d) to cooperate fully with
Developer to streamline and facilitate the obtaining of such permits,
approvals and consents.
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(5) City having completed all required notice to or prior approval, consent
or permission of any federal, state, municipal or local governmental agency,
body, board or official to the sale of the Property; and consummation of the
Closing by City shall be deemed a representation and warranty that it has
obtained the same.
(6) Developer and City shall be in material compliance with all the terms
and provisions of this Agreement.
(7) Developer shall have furnished City with evidence, in a form
satisfactory to City (such as a letter of commitment from a bank or other
lending institution), that Developer has firm financial commitments in an
amount sufficient, together with equity commitments, to complete the
Minimum Improvements (as defined herein) in conformance with the
Construction Plans (as defined herein), or City shall have received such
other evidence of such party's financial ability as in the reasonable judgment
of City is required.
(8) Receipt of an opinion of counsel to Developer in the form attached
hereto as Exhibit D.
(9) An agreed Statement of Costs for the Minimum Improvements
described in Sction 2.1(2).
(9) Developer shall have the right to terminate this Agreement at any time
prior to the consummation of the closing on the Closing Date if Developer
determines in its sole discretion that conditions necessary for the successful
completion of the Project contemplated herein have not been satisfied to the
full satisfaction of such party in such party's sole and unfettered discretion.
Upon the giving of notice of termination by such terminating party to the
other parties to this Agreement, this Agreement shall be deemed null and
void and the Earnest Money will be returned to the Developer less any
expenses incurred by City in connection with this Agreement.
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 subject to the City's obligation to obtain all
right of way and easements required for the extension of Innovation Drive and in
compliance with this Agreement, including City's representations and warranties
regarding the same. Consummation of the Closing shall be deemed an agreement
of the parties to this Agreement that the conditions of closing have been satisfied or
waived.
1.7 City's Obligations at Closing. At or prior to 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 (the Deed) conveying
to Developer marketable fee simple title to the Property and all rights
appurtenant thereto, subject only to easements, restrictions, conditions and
covenants of record as of the date hereof and not objected to by Developer
as set forth in this Agreement, and to the conditions subsequent set forth in
Section 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 as provided in Section 1.10.
(c) All special assessments, if any, whether levied, pending, or
assessed.
(d) City's attorney's fees, if any.
(e) City's broker and /or real estate commissions and fees, if any.
(f) The cost of recording the satisfaction of any existing mortgage
and any other document necessary to make title marketable.
(2) Developer shall pay the following costs in connection with the closing:
(a) The recording fee necessary to record the Deed.
(b) Developer's attorneys' fees.
(c) Developer's broker and /or real estate commissions and fees, if
any.
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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
prior to the fiscal year in which the Closing occurs. Real estate taxes for the fiscal
year in which Closing Date occurs shall be prorated between City and Developer to
the Closing 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.
SECTION 2. DEVELOPMENT ACTIVITIES.
2.1 Required Minimum Improvements. Developer agrees to the following
Minimum Improvements:
(1) City acknowledges that Developer is building the Facility on the
Property as shown on Exhibit B attached hereto. Specifically, Developer is
charged with constructing the Facility and certain internal systems thereto,
and with finishing the Facility including, without limitation, all interior
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 ( "Minimum Improvements "). Developer hereby agrees to
construct on the Property the Facility with not less than eighty thousand
(80,000) square feet of floor space along with necessary site work as
contemplated in this Agreement at an estimated cost of approximately
$2,500,000.
(2) Developer also agrees at its cost to extend Innovation Drive, and to
install all light poles and all utilities, including, but not limited to, water, sewer,
electricity, gas, phone, and fiber optic, which City requires to be extended or
which Developer requires for the Facility in accordance with City's
specifications. The parties agree that a Statement of Costs of the Minimum
Improvements required by this Section 2.1(2) must be agreed upon by the
City and Developer prior to the Closing. The Purchase Price will be reduced
by one half (1/2) the amount of the costs identified in the Statement of Costs .
2.2 Plans for Construction of Minimum Improvements. Plans and specifications
with respect to the development of the 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 the Amended and Restated Declaration of
Covenants, Conditions, Restrictions, Reservations, Easements, Liens and Charges,
recorded as Instrument No. 2011 - 00002684, records of Dubuque County, Iowa.
Developer shall submit to City, for approval by City, plans, drawings, specifications,
and related documents with respect to the improvements to be constructed by
Developer on the Property. All work with respect to the Minimum Improvements
shall be in substantial conformity with the Construction Plans approved by City.
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2.3 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced on or before
December 15, 2012, and shall be substantially completed by August 1, 2013. 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 delays, or acts of any
federal, state or local government which directly result in extraordinary delays. The
time for performance of such obligations shall be extended only for the period of
such delay.
2.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall furnish Developer with an
appropriate instrument so certifying. Such certification (the Certificate of
Completion) shall be in the form attached hereto as Exhibit I and shall be a
conclusive determination of the satisfaction and termination of the agreements and
covenants in this Agreement and in the Deed with respect to the obligations of
Developer to construct the Minimum Improvements. The Certificate of Completion
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 shall have the right, but
not the obligation, to complete such Minimum Improvements.
SECTION 3. COVENANTS OF DEVELOPER.
3.1 Preservation of Property. During the Term of this Agreement, Developer
shall maintain, preserve and keep, or cause others to maintain, preserve and keep,
Minimum Improvements in good repair and working order, ordinary wear and tear
excepted, and from time to time shall make all necessary repairs, replacements,
renewals and additions. Nothing in this Agreement, however, shall be deemed to
alter any agreements between Developer or any other party including, without
limitation, any agreements between the parties regarding the care and maintenance
of the Property.
3.2 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.
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3.3 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.
3.4 Assignment. 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 nor may the Property be transferred by Developer to another party
without the prior written consent of City, which shall not be unreasonably withheld.
Thereafter, Developer 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. Notwithstanding the foregoing
two sentences, Developer may assign this Agreement to one of the FedEx
approved developers listed below or their affiliated entity without the consent of
City:
• Ruedebusch Development & Construction, Inc.
• Baseline Development, LLC
• Setzer Properties
• Devron Property Services, Inc.
Upon delivery of a copy of an assignment to one of the foregoing developers to
City, pursuant to which the assignee assumes all obligations under this Agreement,
Developer shall no longer be responsible for any obligations under this Agreement.
3.5 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 /distribution facility 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
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(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, gender identity, 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).
3.6 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 and covenants and agrees that the
Indemnified Parties shall not be liable for, and agrees to indemnify, defend
and hold harmless the Indemnified Parties against any loss or damage to
property or any injury to or death of any person occurring at or about or
resulting from any defect in the Minimum Improvements.
(2) Except for any gross negligence, willful misrepresentation or any
willful or wanton misconduct or any unlawful act of the Indemnified Parties,
Developer agrees to protect and defend the Indemnified Parties, now or
forever, and further agrees to hold the Indemnified Parties harmless, from
any claim, demand, suit, action or other proceedings whatsoever by any
person or entity whatsoever arising or purportedly arising from (1) any
violation of any agreement or condition of this Agreement (except with
respect to any suit, action, demand or other proceeding brought by
Developer against City based on an alleged breach of any representation,
warranty or covenant of City under this Agreement and /or to enforce its
rights under this Agreement); or (2) the acquisition, construction, installation,
ownership, and operation of the Minimum Improvements or (3) the condition
of the Property and any hazardous substance or environmental
contamination located in or on the Property, caused and occurring after
Developer takes possession of the Property.
(3) The Indemnified Parties shall not be liable to Developer for any
damage or injury to the persons or property of Developer or its officers,
agents, servants or employees or any other person who may be on, in or
about the Minimum Improvements due to any act of negligence of any
person, other than any act of negligence on the part of any such Indemnified
Party or its officers, agents, servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of
City contained herein shall be deemed to be the covenants, stipulations,
promises, agreements and obligations of City, and not of any governing body
member, officer, agent, servant or employee of City in their individual
capacity thereof.
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(5) The provisions of this Section shall survive the termination of this
Agreement.
3.7 Compliance with Laws. Developer 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.
3.8 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
until the Certificate of Completion is issued, and from time to time at the
request of City, furnish City with proof of insurance in the form of a certificate
of insurance all risk builder's risk insurance with occupancy clause, written
on a Completed Value Form in an amount equal to one hundred percent
(100 %) of the replacement value when construction is completed.
(2) Developer agrees to notify City immediately in the case of damage
exceeding $50,000.00 in amount to, or destruction of, the Minimum
Improvements or any portion thereof resulting from fire or other casualty.
The net proceeds of any such insurance (the Net Proceeds) shall be paid
directly to Developer as its interests may appear, and Developer shall
forthwith repair, reconstruct and restore the Minimum Improvements to
substantially the same or an improved condition or value as they existed
prior to the event causing such damage and, to the extent necessary to
accomplish such repair, reconstruction and restoration, Developer shall
apply the Net Proceeds of any insurance relating to such damage received
by Developer to the payment or reimbursement of the costs thereof, subject,
however, to the terms of any mortgage encumbering title to the Property (as
its interests may appear). Developer shall complete the repair, reconstruction
and restoration of Minimum Improvements whether or not the Net Proceeds
of insurance received by Developer for such Purposes are sufficient.
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, any one or more of the following events:
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(1) Failure by Developer to pay or cause to be paid, before delinquency,
all real property taxes assessed with respect to the Minimum Improvements
and the Property.
(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms,
conditions and limitations of this Agreement.
(3) Transfer of any interest by Developer of Minimum Improvements in
violation of the provisions of this Agreement prior to the issuance of the final
Certificate of Completion.
(4) Failure by Developer 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.
4.2 Remedies on Default by Developer. Whenever any Event of Default referred
to in Section 4.1 of this Agreement occurs and is continuing, City, as specified
below, may take any one or more of the following actions after the giving of written
notice by City to Developer (and the holder of any mortgage encumbering any
interest in the Property of which City has been notified of in writing) of the Event of
Default, but only if the Event of Default has not been cured within sixty (60) days
following such notice, or if the Event of Default cannot be cured within sixty (60)
days and the defaulting party 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 may withhold the Certificate of Completion; or
(4) After the Closing 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.
4.3 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 the Property or construction of Minimum
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Improvements (First Mortgage), 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 the Minimum Improvements thereon and to terminate (and re -vest in City
pursuant to the provisions of this Section 4.3 subject only to any superior rights in
any holder of the First Mortgage) the estate conveyed by City to Developer, it being
the intent of this provision, together with other provisions of this Agreement, that the
conveyance of Property to Developer shall be made upon the condition that (and
the Deed shall contain a condition subsequent to the effect that), in the event of
default under Section 4.1 on the part of Developer and failure on the part of
Developer to cure such default within the period and in the manner stated herein,
City may declare a termination in favor of City of the title and of all Developer's
rights and interests in and to 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 4.3 of this Agreement), but only if
the events stated in Section 4.1 of this Agreement have not been cured within the
time period provided above, or, if the events cannot be cured within such time
periods, Developer does not provide assurance to City, reasonably satisfactory to
City, that the events will be cured as soon as reasonably possible. 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.
4.4 Resale of Reacquired Property; Disposition of Proceeds. Upon the re-
vesting in City of title to the 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, to resell the Property or part thereof as soon and in such manner as City
shall find feasible and consistent with the objectives of such law and of the Urban
Renewal Plan to a qualified and responsible party or parties (as determined by City
in its sole discretion) who will assume the obligation of making or completing
Minimum Improvements or such other improvements in their stead as shall be
satisfactory to City and in accordance with the uses specified for such the Property
or part thereof in the Urban Renewal Plan. Subject to any rights or interests in such
property or proceeds granted to any holder of a First Mortgage upon such resale of
the Property the proceeds thereof shall be applied:
(1) First, to pay and discharge the First Mortgage;
(2) Second, to pay the principal and interest on mortgage(s) created on
the 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
15
of, and interest on, each such mortgage in full, then such proceeds of the
resale as are available shall be used to pay the principal of and interest on
each such mortgage in their order of priority, or by mutual agreement of all
contending parties, including Developer, or by operation of law;
(3) Third, to reimburse City for all allocable costs and expenses incurred
by City, including but not limited to salaries of personnel, in connection with
the recapture, management and resale of the Property or part thereof (but
less any income derived by City from the Property or part thereof in
connection with such management); any payments made or necessary to be
made to discharge any encumbrances or liens (except for mortgage(s)
previously acquiesced in by the City) existing on the Property or part thereof
at the time of re- vesting of title thereto in City or to discharge or prevent from
attaching or being made any subsequent encumbrances or liens due to
obligations, default or acts of Developer, its successors or transferees
(except with respect to such mortgage(s)), any expenditures made or
obligations incurred with respect to the making or completion of the Minimum
Improvements or any part thereof on the Property or part thereof, and any
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.
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 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
16
for that purpose. Such fees and costs of litigation shall be in addition to any other
relief that may be awarded.
4.8 Remedies on Default by City. If City defaults in the performance of this
Agreement, Developer may take any action, including legal, equitable or
administrative action that may appear necessary or desirable to collect any
payments due under this Agreement, to recover expenses of Developer, or to
enforce performance and observance of any obligation, agreement, or covenant of
City under this Agreement. Developer may suspend their performance under this
Agreement until they receive 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:
If to Developer:
Hunter Equity, LLC
3890 W. Northwest Hwy., Ste. 100
Dallas, TX 75220
Phone: (214) 550 -1200
Fax: (214) 688 -4466
With copy to:
Strasburger & Price
Paul Sander
2801 Network Blvd., Ste. 600
Frisco, TX 75034
Phone: (469) 287 -3948
Fax: (469) 227 -6573
If to City:
City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589 -4110
Fax: (563) 589 -4149
17
With copy to:
City Attorney
City Hall
50 W. 13th Street
Dubuque, Iowa 52001
or at such other address with respect to any party as that party may, from time to
time designate in writing and forward to the other as provided in this Section.
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.
5.3 Termination Date. This Agreement and the rights and obligations of the
parties hereunder shall terminate upon issuance of the Certificate of Completion of
the Minimum Improvements (the Termination Date).
5.4 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.
5.5 Memorandum of Development Agreement. City 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.
IN WITNESS WHEREOF, City has caused this Agreement to be duly
executed in its name and behalf by its Mayor and attested to by its City Clerk and
Developer has caused this Agreement to be duly executed.
CITY OF DUBUQUE, IOWA HUNTER EQUITY, LLC
By:
By:
By:
Roy D/ =uol, Mayor Sco Rohrman, Manager
18
litninttlt#11103111111111111111
Doc ID: 007447900005 Type
Kind: AGREEMENT
Recorded: 6/00 /2012 ato02:52:16 PM
Fee Amt:
Dubuque County Iowa
Kathy 012 00013068
Filet
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 Hunter Equity, LLC, a Texas limited
liability company with its principal place of business in Texas, was made regarding the
following described premises:
Lot 1 of the Dubuque Industrial Center North Second Addition in the City
of Dubuque, Dubuque County, Iowa
The Development Agreement is dated for reference purposes the 19th day of
March, 2012, and contains covenants, conditions, and restrictions concerning the sale
and use of said premises.
The Development Agreement was assigned by Hunter Equity, LLC to 2013
Dubuque, LLC by Assignment Relating to Development Agreement dated April 2, 2012.
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 July, 2012.
CITY OF DU = UQUE, IOWA 2013 DUBUQU , LLC
zd) //fle„le,
Roy D uol, Mayor
By:
By:
Carl Ruedebusch, Manager
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Attest:
Bv:
Kevi
S. Firnstahl, City C erk
STATE OF IOWA
: ss:
DUBUQUE COUNTY
On this day of K 2O2, before me, a Notary Public in and for the State of
Iowa, in and for sai. count; , 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
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 City Clerk acknowledged said instrument to be the free act
and deed of said Municipal Corporation by it voluntarily executed.
r
Notary Public, State of Iowa
STATE OF WISCONSIN
: ss:
DANE COUNTY
TRISH L. GLEASON
Commission Number 719986
My Commission Expires
ia-/ /L/
On this I Uth day of U , 20 , before me, a Notary Public in and for
the State of Iowa, in and f• said county, personally appeared Carl Ruedebusch,
to me personally known, who being by me duly sworn did say that he is the
Manager of 2013 Dubuque, LLC 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.
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Prepared by: David J. Heiar, Economic Development Dir., 50 West 13th St., Dubuque IA 52001 563 583 -4393
Return to: David J. Heiar, Economic Development Dir., 50 West le St., Dubuque IA 52001 563 583 -4393
RESOLUTION NO. 65 -12
INTENT TO DISPOSE OF AN INTEREST IN CITY OF DUBUQUE REAL ESTATE
AND
FIXING THE DATE FOR A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA ON THE PROPOSED AND THE EXECUTION OF A DEVELOPMENT
AGREEMENT RELATING THERETO WITH HUNTER EQUITY, LLC AND PROVIDING
FOR THE PUBLICATION OF NOTICE THEREOF
Whereas, the City of Dubuque, Iowa (City) is the owner of the following real property (the
Property);
Lot 1 of Dubuque Industrial Center North Second Addition in the City of Dubuque, Iowa
And
Whereas, City and Hunter Equity, LLC have entered into a Development Agreement,
subject to the approval of the City Council, a copy of which is now on file at the Office of the
City Clerk, City Hall, 13th and Central Avenue, Dubuque, Iowa, pursuant to which City will
convey the Property to Hunter Equity, LLC as shown on Exhibit A attached hereto; and
Whereas, the City Council has tentatively determined that it would be in the best
interests of the City to approve the Development Agreement, including the conveyance of the
Property to Hunter Equity, LLC; and
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. The City of Dubuque intends to dispose of its interest in the foregoing -
described Property by Deed to Hunter Equity, LLC.
Section 2. The City Clerk is hereby authorized and directed to cause this Resolution and
a notice to be published as prescribed by Iowa Code Section 364.7 of a public hearing on the
City's intent to dispose of the foregoing- described real property, to be held on the l9t day of
March, 2012, at 6:30 o'clock p.m. at the Historic Federal Building, Council Chambers, 350 W.
6th Street, Dubuque, Iowa.
Passed, approved and adopted this 5th day of March, 2012.
Attest:
Kevin irnstahl, Ci
Y
CIe
t.
Roy Buol, Mayor
CERTIFICATE OF CITY CLERK
STATE OF IOWA )
COUNTY OF DUBUQUE )
I, Kevin S. Firnstahl , do hereby certify that I am the duly appointed, qualified, and Clerk
of the City of Dubuque, Iowa in the County aforesaid, and as such Clerk I have in my
possession or have access to the records of the proceedings of said City. I hereby
certify that the hereto - attached Certificate of Publication for Resolution No. 65 -12
and Notice of Public Hearing is a true and correct copy of the original Certificate of
Publication for Resolution No. 65 -12 and Notice of Public Hearing approved by the
Dubuque City Council on the 5th day of March, 2012 and published the 9th day of March
2012.
In Testimony Whereof, I hereunto set my hand and official seal of the City of Dubuque,
Iowa.
Dated at Dubuque, Iowa on this 27th day of June, 2012.
Kevi . Firnstah
City Clerk
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Doc ID: 007447880006 Type:
Kind: DEED WITH RESOLUTION
Recorded: 08/03/2012 at 02:51:32 PM
Fee Amt: $37.00 Revenue Tax: $0.00
1 of 6
Dubuque County Iowa
Kathy Flynn 12 0 0013067
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:
2013 Dubuque, LLC
Attn: Carl Ruedebusch, Manager
4605 Dovetail Drive
Madison, WI 53704
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 One Million Four Hundred Eighty -Eight
Thousand no /100 Dollars ($1,488,000.00) 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 2013 Dubuque, LLC, an Iowa limited liability
company (Grantee), the following described parcel(s) situated in the County of
Dubuque, State of Iowa, to wit (the Property):
Lot 1 of the Dubuque Industrial Center North Second Addition in the City
of Dubuque, Dubuque County, Iowa
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. 79 -12 of the City
Council of the City of Dubuque adopted the 19th day of March, 2012, 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's assignor, Hunter
Equity, LLC, dated the 19th day of March, 2012 (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 - . The
Development Agreement was assigned by Hunter Equity, LLC to 2012 Dubuque, LLC
by Assignment Relating to Development Agreement dated April 2, 2012.
5bo
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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
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,
Ke in S. Firnstahl, City Clerk
STATE OF IOWA
COUNTY OF DUBUQUE
On this 0/-)day of , 2012, before me a Notary Public in and
for said County, personal ' appea ed Roy D. Buol and Kevin S. Firnstahl to me
personally known, who being duly sworn, did say that they are the Mayor and City
Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said Municipal Corporation, and that said instrument was
signed and sealed on behalf of said Municipal Corporation by authority and resolution of
its City Council and said Mayor and City Clerk acknowledged said instrument to be the
free act and deed of said Municipal Corporation by it voluntarily executed.
2012 at Dubuque, Iowa.
CITY OF DUBUQUE IOWA
By:
SS
Notary Public in and for Dubuque County, Iowa
4).
-T-F -T GLEASON
I Commission Number 719986
of Commission Expires
•
Prepared by: David J. Heiar, 50 West 13th Street, Dubuque IA 52001 563 589 -4393
Return to: David J. Heiar, 50 West 13th Street, Dubuque IA 52001 563 589 -4393
RESOLUTION NO. 79 -12
RESOLUTION APPROVING A DEVELOPMENT AGREEMENT PROVIDING FOR THE
SALE OF 12.4 ACRES IN THE DUBUQUE INDUSTRIAL CENTER WEST TO
HUNTER EQUITY, LLC
Whereas, the City Council, by Resolution No. 65 -12, dated March 5, 2012 declared its
intent to enter into a Development Agreement with Hunter Equity, LLC for the sale of 12.4
acres in the Dubuque Industrial Center West (the Property); and
Whereas, pursuant to published notice, a public hearing was held on the proposed
disposition on March 19, 2012 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 Hunter Equity, LLC 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 and Hunter Equity, LLC 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.
Passed, approved and adopted this 19th day of March, 2012.
Key' S. Firnstahl, ity Cler
az„,/
Roy D.uol, Mayor
F: \USERS \Econ Dev \FedEX\20120305_Hunter Equity - FedEx_Resolution Disposition & Approve DA.docx
CERTIFICATE of the CITY CLERK
STATE OF IOWA )
SS:
COUNTY OF DUBUQUE )
I, Kevin S. Firnstahl, do hereby certify that I am the duly appointed, qualified, City Clerk
of the City of Dubuque, Iowa, in the County aforesaid, and as such City Clerk, I have in
my possession or have access to the records of the proceedings of the City Council. I
do further state that the hereto attached Resolution No. 79 -12 is a correct copy of the
original Resolution No. 79 -12 approved and adopted by the City Council of the City of
Dubuque, Iowa, at a session held by said Council on the 5th day of March, 2012.
In Testimony Whereof, I hereunto set my hand and official seal of the City of Dubuque,
Iowa.
Dated at Dubuque, Iowa, on this 13th day of July, 2012.
Are
Kevin S. Firnstahl, City erk
(SEAL)
LIST OF 'EXHIBITS,
Exhibit A Urban Renewal Plan
Exhibit B Site Plan
Exhibit C City Attorney Certificate
Exhibit D Opinion of Counsel to Developer
Exhibit E Legal Description
Exhibit F Deed
Exhibit G Memorandum of Development Agreement
Exhibit H City Certificate
Exhibit I Certificate of Completion
EXHIBIT A
URBAN RENEWAL PLAN
AMENDED and RESTATED
URBAN RENEWAL PLAN
Dubuque Industrial Center Economic Development District
City of Dubuque, Iowa
This Amended and Restated Urban Renewal Plan provides for the
continued development of the Dubuque Industrial Center Economic
Development District, originally established by Resolution 130 -88 of
the City Council of the City of Dubuque, Iowa on May 2, 1988 and
thereafter amended and restated by Resolution 484 -90 on
December 17, 1990, Resolution 142 -97 on April 7, 1997, Resolution
478 -97 on November 17, 1997, Resolution 15 -08 on January 7,
2008, Resolution 101 -08 on March 17, 2008, Resolution 109 -08 on
April 7, 2008, and Resolution on March 7, 2011.
Prepared by the Economic Development Department.
Version 2011.1
Note: Complete Urban Renewal Plan is on file in the City Clerk's office, City Hall, 50 West 13th Street,
Dubuque, Iowa
20
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EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
22
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
RE:
Dear
(DATE)
THE CITY OF
DUBU
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
23
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
EXHIBIT D
OPINION OF DEVELOPER'S COUNSEL
24
Mayor and City Councilmembers
City Hall
13tn and Central Avenue
Dubuque IA 52001
Re: Development Agreement Between the City of Dubuque, Iowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for , (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 , 20.
We have examined the original certified copy, or copies otherwise identified to
our satisfaction as being true copies, of the Development Agreement and such other
documents and records as we have deemed relevant and necessary as a basis for the
opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other inquiries
as we have deemed appropriate, we are of the opinion that:
1. Developer is a limited liability company organized and existing under the
laws of the State of and has full power and authority to execute, deliver
and perform in full Development Agreement. The Development Agreement has been
duly and validly authorized, executed and delivered by Developer and, assuming due
authorization, execution and delivery by City, is in full force and effect and is valid and
legally binding instrument of Developer enforceable in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting creditors' rights generally.
2. The execution, delivery and performance by Developer of the
Development Agreement and the carrying out of the terms thereof, will not result in
violation of any provision of, or in default under, the articles of incorporation and bylaws
of Developer, any indenture, mortgage, deed of trust, indebtedness, agreement,
judgment, decree, order, statute, rule, regulation or restriction to which Developer is a
party or by which Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened against
or affecting Developer in any court or before any arbitrator or before or by any
governmental body in which there is a reasonable possibility of an adverse decision
which could materially adversely affect the business (present or prospective), financial
position or results of operations of Developer or which in any manner raises any
questions affecting the validity of the Agreement or the Developer's ability to perform
25
Developer's obligations thereunder.
Very truly yours,
26
EXHIBIT E
LEGAL DESCRIPTION
(PROVIDED UPON COMPLETION BY SURVEYOR)
THAT PART OF DUBUQUE INDUSTRIAL CENTER NORTH FIRST ADDITION IN THE CITY OF DUBUQUE, IOWA,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE CORNER OF LOT 4 OF DUBUQUE INDUSTRIAL CENTER NORTH FIRST ADDITION IN THE CITY
OF DUBUQUE, IOWA THAT IS COINCIDENT WITH THE NORTHWEST CORNER OF LOT 2 OF SAID DUBUQUE
INDUSTRIAL CENTER NORTH FIRST ADDITION;
THENCE NORTH 86 DEGREES 17 MINUTES 26 SECONDS EAST (BEARINGS BASED ON RECORDED PLAT OF SAID
ADDITION) ALONG THE NORTHERLY LINE OF LOT 2 OF SAID ADDITION A DISTANCE OF 337.15 FEET;
THENCE NORTH 51 DEGREES 13 MINUTES 10 SECONDS EAST ALONG THE SOUTHERLY LINE OF LOT 4 OF SAID
ADDITION 120.31 FEET;
THENCE NORTH 72 DEGREES 10 MINUTES 19 SECONDS EAST ALONG SAID SOUTHERLY LINE 117.04 FEET;
THENCE NORTH 88 DEGREES 19 MINUTES 51 SECONDS EAST ALONG SAID SOUTHERLY LINE 269.58 FEET;
THENCE NORTH 03 DEGREES 49 MINUTES 13 SECONDS WEST ALONG THE EASTERLY LINE OF SAID LOT 4 A
DISTANCE OF 342.15 FEET;
THENCE NORTH 19 DEGREES 27 MINUTES 39 SECONDS WEST ALONG SAID EASTERLY LINE 130.85 FEET;
THENCE NORTH 48 DEGREES 56 MINUTES 13 SECONDS WEST ALONG SAID EASTERLY LINE 131.03 FEET;
THENCE NORTH 82 DEGREES 04 MINUTES 06 SECONDS WEST ALONG A NORTHERLY LINE OF SAID LOT 4 A
DISTANCE OF 212.63 FEET;
THENCE SOUTH 87 DEGREES 35 MINUTES 13 SECONDS WEST ALONG SAID NORTHERLY LINE 467.29 FEET;
THENCE SOUTH 87 DEGREES 35 MINUTES 13 SECONDS WEST 65.47 FEET TO THE INTERSECTION WITH THE
PROPOSED EASTERLY RIGHT -OF -WAY LINE OF INNOVATION DRIVE IN THE CITY OF DUBUQUE, IOWA;
THENCE SOUTH 02 DEGREES 35 MINUTES 19 SECONDS EAST ALONG SAID PROPOSED EASTERLY
RIGHT -OF -WAY LINE 337.43 FEET;
THENCE SOUTHERLY 193.91 FEET ALONG SAID PROPOSED EASTERLY RIGHT -OF -WAY LINE ALONG A CURVE
CONCAVE TO THE EAST, HAVING A RADIUS OF 562.50 FEET, A CENTRAL ANGLE OF 19 DEGREES 45 MINUTES
05 SECONDS, A CHORD BEARING OF SOUTH 12 DEGREES 27 MINUTES 52 SECONDS EAST, AND A CHORD
DISTANCE OF 192.95 FEET;
THENCE SOUTHERLY 178.46 FEET ALONG SAID PROPOSED EASTERLY RIGHT -OF -WAY LINE ALONG A CURVE
CONCAVE TO THE WEST, HAVING A RADIUS OF 551.09 FEET, A CENTRAL ANGLE OF 18 DEGREES 33 MINUTES
16 SECONDS, A CHORD BEARING OF SOUTH 13 DEGREES 01 MINUTES 57 SECONDS EAST, AND A CHORD
DISTANCE OF 177.68 FEET TO THE POINT OF BEGINNING, CONTAINING 12.400 ACRES MORE OR LESS, AND
SUBJECT TO ALL EASEMENTS, RESERVATIONS, RESTRICTIONS AND RIGHTS OF WAY OF RECORD AND NOT OF
RECORD. .
Lot 1 Dubuque Industrial Center North Second Addition
27
EXHIBIT F
DEED
28
Prepared by: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583 -4113
Return to: Barry A. Lindahl 300 Main Street ,Suite 330, Dubuque IA 52001 563 583 -4113
Tax Statement to:
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, Iowa, a
municipal corporation of the State of Iowa (Grantor), in consideration of the Grantee
named below undertaking the obligations of the Developer under the Development
Agreement described below and the sum of and no /100
Dollars ($ ) in hand paid, and other good and valuable consideration, and
pursuant to the authority of Chapter 403, Code of Iowa, does hereby GRANT, SELL
AND CONVEY unto , an Iowa limited liability
company (Grantee), the following described parcel(s) situated in the County of
Dubuque, State of Iowa, to wit (the Property):
This Deed is exempt from transfer tax pursuant to Iowa Code section 428A.2(6).
This Deed is given pursuant to the authority of Resolution No, of the
City Council of the City of Dubuque adopted the day of , 20_, the
terms and conditions thereof, if any, having been fulfilled.
This Deed is being delivered in fulfillment of Grantor's obligations under and is
subject to all the terms, provisions, covenants, conditions and restrictions contained in
that certain Development Agreement executed by Grantor and Grantee herein, dated
the day of 20 (the Agreement), a memorandum of which was
recorded on the day of , 20, in the records of the Recorder of
Dubuque County, Iowa, Instrument Number -
Promptly after completion of the improvements in accordance with the provisions
of the Agreement, Grantor will furnish Grantee with a Certificate of Completion in the
form set forth in the Agreement. Such certification by Grantor shall be, and the
certification itself shall so state, a conclusive determination of satisfaction and
termination of the agreements and covenants of the Agreement and of this Deed with
respect to the obligation of Grantee, and its successors and assigns, to construct
29
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 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.
CITY OF DUBUQUE IOWA
Attest: By:
Roy D. Buol, Mayor
By:
Kevin S. Firnstahl, City Clerk
30
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 City
Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said Municipal Corporation, and that said instrument was
signed and sealed on behalf of said Municipal Corporation by authority and resolution
of its City Council and said Mayor and City Clerk acknowledged said instrument to be
the free act and deed of said Municipal Corporation by it voluntarily executed.
Notary
Public in and for Dubuque County, Iowa
31
EXHIBIT G
MEMORANDUM OF DEVELOPMENT AGREEMENT
32
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
By:
Kevin S. Firnstahl, City Clerk
33
STATE OF IOWA
: ss:
DUBUQUE COUNTY
On this day of 20_, before me, a Notary Public in and for the State
of Iowa, in and for said county, personally appeared 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 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 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
: ss:
DUBUQUE COUNTY
On this day of , 20 , before me, a Notary Public in and for
the State of Iowa, in and for said county, personally appeared
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
34
EXHIBIT H
CITY CERTIFICATE
35
City Manager's Olticc
50 West 13th Street
Dubuque, Iowa 52001 -4864
(563) 589 -4110 phone
(563) 589 -4149 fax
ctymgrs?cityotdubuquc.org
Dear
(DATE)
DU Bric U E
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, 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.
36
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property, known as Innovation Drive.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other matters
that have not been corrected. City has notified Developer in writing of any past
notices, orders, suits, judgments or other proceedings relating to fire, building,
zoning, air pollution or health violations as they relate to the Property of which it
has actual notice. The Property is in material compliance with all applicable
zoning, fire, building, and health statutes, ordinances, and regulations for the
Facility. The Property is currently zoned PUD and the intended use of the
Property is a pre- engineered metal building package distribution facility, requiring
loading and unloading and outside parking and storage of tractors, trailers,
double trailers, trucks, automobiles, and other vehicles for continuous 24 -hour
operations on all days of the year in the Project Area.
(7) Payment has been made for all labor or materials that have been
furnished to the Property or will be made prior to the Closing Date so that no lien
for labor performed or materials furnished can be asserted against the Property.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not and
shall not result in any material breach of any terms or conditions of any
mortgage, bond, indenture, agreement, contract, license, or other instrument or
obligation to which City is a party or by which either the City or the Property being
conveyed are bound, nor shall the execution, delivery and performance of this
Agreement violate any statute, regulation, judgment, writ, injunction or decree of
any court threatened or entered in a proceeding or action in which City may be
bound or to which either City or the Property being conveyed may be subject.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power and
authority to execute, deliver and perform its obligations under this Agreement.
City's attorney shall issue a legal opinion to Developer at time of closing
confirming the representation contained herein, in the form attached hereto as
Exhibit C.
(11) The Property is free and clear of any occupants, and no party has a lease
to or other occupancy or contract right in the Property that shall in any way be
binding upon the Property and Developer.
(12) City represents and warrants that any fees or other compensation which
may be owed to a broker engaged directly or indirectly by City in connection with
37
the purchase and sale contemplated in this Agreement are the sole responsibility
and obligation of City and that City will indemnify Developer and hold Developer
harmless from any and all claims asserted by any broker engaged directly or
indirectly by City for any fees or other compensation related to the subject matter
of this Agreement.
(13) City shall exercise its best efforts to assist with Developer in the
development process.
(14) City shall exercise its best efforts to resolve any disputes arising during
the development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied the
Property, and to City's knowledge after reasonable investigation with respect to
the time before City owned or occupied the Property, no person or entity has
caused or permitted materials to be stored, deposited, treated, recycled, or
disposed of on, under or at the Property, which materials, if known to be present,
would require cleanup, removal or some other remedial action under
environmental laws.
(16) All city utilities necessary for the development and use of the Property as an
industrial manufacturing facility adjoin the Property and Developer shall have the
right to connect to said utilities, subject to City's connection fees.
(17) The representations and warranties contained in this article shall be
correct in all respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on and as of the
Closing Date.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
F: \USERS \Econ Dev \FedEX\20110920_FedEx Development Agreement doc
38
EXHIBIT I
CERTIFICATE OF COMPLETION
39
Prepared By: David J. Heiar 50 West 13th Street Dubuque, IA 52001 563 - 589 -4393
Return to:
CERTIFICATE OF COMPLETION
WHEREAS, the City of Dubuque, Iowa, a municipal corporation (the "Grantor "),
by a Special Warranty Deed recorded on , 20, as Document Number
in the office of the County Recorder of Dubuque County, State of Iowa,
has conveyed to (the "Grantee "), in accordance with a Development
Agreement dated as of , 20, (the "Agreement "), certain real property
located within the Dubuque Industrial Center West Economic Development Urban
Renewal District of the Grantor and as more particularly described as follows:
WHEREAS, said Deed incorporated and contained certain covenants and
restrictions with respect to the development of the Development Property, and obligated
the Grantee to construct certain Minimum Improvements (as defined therein) in
accordance with the Agreement; and
WHEREAS, the Grantee has to the present date performed said covenants and
conditions insofar as they relate to the construction of the Minimum Improvements, in a
manner deemed sufficient by the Grantor to permit the execution and recording of this
certification.
NOW, THEREFORE, pursuant to Section of the Agreement, this is to certify
that all agreements and covenants of the Deed and the Agreement with respect to the
obligations of the Grantee, and its successors and assigns, to construct the Minimum
Improvements on the Development Property have been completed and performed by
the Grantee to the satisfaction of the Grantor and such agreements and covenants are
hereby terminated.
The County Recorder of Dubuque County is hereby authorized to accept for recording
and to record the filing of this instrument, to be a conclusive determination, except as
noted above, of the satisfactory termination of the agreements and covenants of said
Deed and the Agreement which would result in a forfeiture by the Grantee and right of
the Grantor to re -enter and take possession of the Development Property as set forth in
40
said Deed and the Agreement, and that said Deed and the Agreement shall otherwise
remain in full force and effect.
CITY OF DUBUQUE, IOWA
By:
Michael C. Van Milligen,
City Manager
STATE OF IOWA )
) SS
COUNTY OF DUBUQUE )
On this day of , 20_, before me a Notary Public in and for
said County, personally appeared Michael C. Van Milligen, to me personally known,
who being duly sworn, did say that he is the City Manager of the City of Dubuque, Iowa,
a Municipal Corporation, created and existing under the laws of the laws of the State of
Iowa, and acknowledged said instrument to be the free act and deed of said Municipal
Corporation by him voluntarily executed.
Notary Public in and for
Dubuque County,. Iowa
41
Masterpiece on the Mississippi
Dubuque
All- America City
r III./
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Sale of Land in the Dubuque Industrial Center West to Hunter Equity, LLC
DATE: February 28, 2012
Economic Development Director Dave Heiar recommends that a public hearing be set
for March 19, 2012, on the disposition of approximately 12.4 acres in the Dubuque
Industrial Center West to Hunter Equity, LLC for construction of an 80,000 sq. ft.
distribution Center for Fed -Ex.
The key elements of the Development Agreement are:
1) The purchase price is $120.000 per acre for 12.4 acres
2) The property will be conveyed on or before November 30, 2012.
3) The company must construct a building of approximately 80 000 sq. ft. costing
approximately $2,500,000 prior to August 1, 2013.
4) The City and Developer will equally share the cost of the extension of Innovation
Drive and utilities estimated at $488,000. The Developer shall make the actual
improvements to the City's specifications. Final plans and costs will need to be
agreed upon prior to the closing.
5) Developer has the right to assign this agreement to one of four other developers
who also do work for Fed -Ex.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
Masterpiece on the Mississippi
Dubuque
htbd
All- America City
2007
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director
DATE: February 22, 2012
SUBJECT: Sale of Land in the Dubuque Industrial Center West to Hunter Equity, LLC
INTRODUCTION
This memorandum presents for City Council consideration a Resolution initiating
disposition of approximately 12.4 acres identified on the attached exhibit to Hunter
Equity, LLC for construction of an 80,000 sq. ft. distribution Center for Fed -Ex. The
attached Resolution sets a public hearing on the disposition of this property for March
19, 2012.
BACKGROUND
City staff has worked with the Greater Dubuque Development Corporation, Hunter
Equity, LLC and Fischer & Company on the construction of a new distribution center at
the Dubuque Industrial Center West.
Hunter Equity, LLC of Dallas, Texas works with Fed -Ex to develop and construct
distribution centers throughout the country. Their site plan requires a 12 -15 acre parcel
of property. In an effort to make this site plan fit into the Dubuque Industrial Center
West, it will be necessary to eliminate the temporary cul -de -sac at the North end of
Innovation Drive, and to shift the extension of Innovation Drive slightly to the West (see
attached map). The shift in the street location requires the City to vacate a portion of
the previously platted street, and to acquire .02 acres back from Green Industrial
Supply. Patrick Green has consented to sell this land back to the City for the same
price he paid the City in 2011.
The cost to reacquire this .02 acres is $1,356.54. Innovation Drive and utilities will need
to be extended approximately 750 feet at an estimated cost of $488,000. These costs
will be equally shared by the City and Hunter Equity. The Developer will be responsible
for extending the street and utilities to the City's specifications. The cost of these
improvements are estimated to be $488,000 00 (the Estimated Costs), but shall not
exceed $500,000.00. The Purchase Price will be reduced by the amount of the
Estimated Costs. Developer shall promptly upon completion of such Minimum
Improvements provide City with a Statement of Costs. If the costs of such Minimum
Improvements exceed the Estimated Costs, City agrees to reimburse Developer for
one -half of the amount in excess of the Estimated Costs, up to $6,000.00, within thirty
days of the date of the statement of costs. If the cost of such Minimum Improvements is
less than the Estimated Costs, Developer agrees to reimburse City for one -half of the
amount of the difference between the Estimated Costs and the Statement of Costs,
within thirty days of the date of the statement of costs.
DISCUSSION
Fed -Ex anticipates that this location and modern facility will ultimately grow their local
employment base but the company is not willing to make a formal commitment to
creating jobs in Dubuque. Therefore, the proposed Development Agreement would
authorize the sale of land but provides no incentives.
The attached Development Agreement establishes the terms of the sale of the property
to Hunter Equity, LLC. The key elements of the agreement include the following:
1) The purchase price is $120,000 per acre for 12.4 acres.
2) The property will be conveyed on or before November 30, 2012.
3) The company must construct a building of approximately 80,000 sq. ft. costing
approximately $2,500,000 prior to August 1, 2013.
4) The City and Developer will equally share the cost of the extension of Innovation
Drive and utilities estimated at $488,000. The Developer shall make the actual
improvements to the City's specifications. Final plans and costs will need to be
agreed upon prior to the closing.
5) Developer has the right to assign this agreement to one of four other developers
who also do work for Fed -Ex. They are:
• Ruedebusch Development & Construction, Inc.
• Baseline Development, LLC
• Setzer Properties
• Devron Property Services, Inc.
Additional terms and conditions of the disposition of the property are included within the
attached Development Agreement.
RECOMMENDATION
I recommend that the City Council set for public hearing the disposition of the Dubuque
Industrial Center West property to Hunter Equity, LLC for the purpose of constructing an
80,000 sq. ft. distribution center. This action supports the Council's objectives to assist
a local business expand its operations and create an environment conducive to job
creation.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
Attachments
F \USERS \Econ Dev \FedEX\20120220_Hunter Equity - FedEx_Council memo doc
Available Land
Developed Property
Open Space
Recreational Trail
53.58 ac
Lot I of
DICN 2nd
Addition
IWI
Green Motor
Industrial Parts
ij
3
The Adams
Company
A lliant
Energy
3.9 ac
2.92 ac
DDI, Inc Et
Automated
Presort, Inc
Giese
6.18 ac
Vessel
6.47 ac
A lliant
Energy
ITC
Arts -way Midwest
Vessel Inc
Kendall -Hunt
Publishing
Company
Dubuque
Screw
Products I
Spiegel
Family
Realty
Hormel
3.88 ac
7.57 ac
Dueuoul-
DAGIS
V
v .0
RESOLUTION
NO. 6642
INTENT TO DISPOSE 2034 tat DSO
OF AN INTEREST IN p,rrU,
desc ped real , pro- __-
-perty,te be held+an the c. y of uque,TOwa
19th, day 'of •roh; And forth'e execration
a7R AND N l Fe
mita • -
OP THE
ECrT
'COUNCIL 'OF THE
CITY OF DUBUQUE,
IOWA ON TOE
PROPOSED AM) THE
,EIO:CUTIONIC F A
rA1GVELOI? PENT •
RELTIIQA
oEk of a Development
nc Agreement relating
Co in- .thereto with Hunter
!Equitjj, LCC,
�.. iAt the .'nikeeeting;;,the
Codncil " uwjll
recelgie gralf and
Writtenobje,'c ionsfrom
amyl resident or
property.bvJner of said
City: to the above
action. After all
objections have been
received and con-
, sidered, the C-fty
Council May.„
m'ee �t•Iyig or a 'at any
adjaVenme t'" thereof,
take 'additional action
for the disposition of
the' Cit1! s' interett4 in
stkcb'reai estate above
and the approval of the
Development Agree-
ment or will abandon
.the proposal By order
of; the, City Co grl ciii said
hearing and +aippehls
there from shall be
held in accordance
with and governed by
the - provisions, of
Section 364.7 of the
Code' of Iowa.
Dated this 9th day of
March, 2012.
Kevin's. Firnstahl,
City Clerkpf Dubuque,
'Iowa
It 3/9
WITH HUNTER
EQURY,LL'C AND
PROVIDING FOR'THE
PUBLICATIO i Of
NOTICETRE .
Whereas, the of
Dubuque, Ida (City)' is
the owner of the
following real property
(the Property);
Lot 1 of Dubuque
Ihdustrial Center North
Second Addition in the
City of Dubuque, Iowa;
and
Whereas, City
Hunter Equity,
have entered 'into" a
Development • Agree-
ment, subject to the
approval of the City
Council, a copy of
which is now on file at
the Office of the City
Cjerk, City Hall, 13th
and Central Avenue,
Dubuque, Iowa, plirr
suant to which City p I
convey the Property to
Hunter Equity, LLC as
shown on Exhibit A
attached hereto; and
Whereas, the City
Council has tentatively
determined that it
would be in the best
interests of the City to
approve the Devel-
opment Agreement,
including the con-
veyance of the
Property to Hunter
Equity, LLC; and
NOW THEREFORE, BY
BE THE�TO
CSYCCO RESOLVED
OF THE CITY OF,
DUBUQUE, IOWA:
Section L The City of
Dubuque intends to
dispose of its interest
in the ,foregoing -
described Property by
Deed to Hunter Equity,
LLC.
Section 2. The City
Clerk is hereby
authorized and direct-
ed to cause this
Resolution and a notice .
to be published as
presdrlbed by Iowa
Code Section 364.7 of a
public hearing on the
City's intent to dispose
of the foreaoing-
Mar
D: Buol, Mayor
iL ,Kevin S.
Frnstahl, City, Clerk
NOTICE OT A PNELIC
HEARING OF.ThE
CITY :cOUNCIL OF
HE, O
OQ' IO "✓ ON
,PROROSEDAND THE
=CM
+AORE RIE.NT'
RELATING TNERfr0
WITH HUNTED
EQ.UITY,LLC AND
DISPOS NOO[THE
CITY!S OFTEREST;IN
CERYAIN °RE&L'
ESTATE
CITY OF DUBUQUE,
IOWA
NOTi ICEOF PUBLIC
'HEARINGt -,
PUBLIC' NOTICE` ' is
hereby given that the
City Council of the City
of Dubuque, Iowa, will
hold a public hearing
on the 19th day of,
March, 2012, at 6:30
p.m. in the City Council
Chambers at • the
Historic Federal Build- '
ing, 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 Hunter Equity,
LLC in the following
described real estate:
Lot 1 of Dubuque
Industrial Center North
Second Addition in the
STATE OF IOWA {SS:
DUBUQUE COUNTY
CERTIFICATION OF PUBLICATION
I, Suzanne Pike, a Billing Clerk for Woodward Communications, Inc., an Iowa
corporation, publisher of the Telegraph Herald,a newspaper of general circulation
published in the City of Dubuque, County of Dubuque and State of Iowa; hereby
certify that the attached notice was published in said newspaper on the following
dates: March 02 & 09, 2012, and for which the charge is $50.78.
Subscribed to before me a Notary Public in and for Dubuque County, Iowa,
this gel day of 7 .L, , 20 /2-' .
Notary Public in and for Dubuque County, Iowa.
oar F MARY K. WESTER Y ,R ,a
C rT- 7 Comm!sion Hwnher 154:` = F