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Tri-State Quality Metals_Wilming Investments_DA and Disposal of Real EstateTHE CITY OF Dui Masterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager Dubuque band AI -America City r 2007 • 2012 • 2013 SUBJECT: Development Agreement Between and Among the City of Dubuque, Wilming Investments, LLC and TriState Quality Metals, LLC DATE: March 11, 2014 Economic Development Director Maurice Jones recommends City Council approval of a Development Agreement between and among the City of Dubuque, Wilming Investments, LLC, and TriState Quality Metals, LLC for the acquisition of 6.903 acres and a $3.43 million capital investment of a new 44,000 square foot facility in the Dubuque Industrial Center South. The proposed Development Agreement provides for several incentives to encourage the capital investment and expansion of workforce. The total purchase price for the property is $828,360 at $120,000 per acre for 6.903 acres. However only 5.438 acres can be used for development, so there is a Non -Usable Land Discount amounting to $175,800. An Acquisition Grant of $60,000 per usable acre, amounting to $326,280, will also be used as a credit to offset the purchase price of the useable property. Wilming Investments will owe $326,280 for the property at the date of closing. The developer has agreed to construct their new building by December 31, 2014. A 10 -year property tax rebate has also been offered to the company, aligning with the City's commitment in the contract with the Iowa Economic Development Authority. TriState Quality Metals must employ a total of 23 full-time equivalent positions by October 31, 2016 and maintain those positions throughout the agreement. In an effort to avoid this agreement impacting the amount of debt applied against the City's constitutional debt limit, the Development Agreement contains a non - appropriation clause. The clause limits the obligation of the rebate to funds budgeted each year rather than a general obligation of multi-year indebtedness. I concur with the recommendation and respectfully request Mayor and City Council approval. Mic ael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Maurice Jones, Economic Development Director 2 THE CITY OF DIItbU Masterpiece on the Mississippi Dubuque kattel All -America City 1 r TO: Michael Van Milligen, City Manager FROM: Maurice Jones, Economic Development Director DATE: March 11, 2014 SUBJECT: Development Agreement Between and Among the City of Dubuque, Wilming Investments, LLC and TriState Quality Metals, LLC INTRODUCTION This memorandum presents for City Council consideration and action the attached resolution approving a Development Agreement between and among the City of Dubuque, Wilming Investments, LLC and TriState Quality Metals, LLC. BACKGROUND TriState Quality Metals, LLC is a sheet metal fabrication manufacturer formed in 2010 in Peosta, Iowa. The company performs laser cutting of sheet metal, as well as plasma cutting, bending, drilling, tapping, sawing and or/welding to create customized parts. TriState Quality Metals also provides services including plating, maching, sheering, and painting that are outsourced to other area manufactures. The company has grown from a local customer base, to one that is regional, serving manufacturers in eastern Iowa, northwestern Illinois, and southwestern Wisconsin. The largest customer, Rite Hite, sells products to worldwide markets. In addition, TriState Quality Metals produces parts for companies that ultimately sell to international manfacturers such as John Deere, Caterpillar and Volvo. The company plans to relocate to the Dubuque Industrial Center South to allow for expansion of production capacity necessary for continued growth. The company has determined that there is not a site suitable for such growth in Peosta. On September 3, 2013, the City Council executed an agreement with the City of Peosta, where in accordance with urban renewal law, the Peosta City Council consented to the use of tax increment financing by the City of Dubuque to incentivize the company. The City Council also approved a contract on December 16, 2013 between TriState Quality Metals and the Iowa Economic Development Authority (IEDA), where the State has agreed to provide nearly $150,000 in investment tax credits and sales tax rebates. As part of that agreement, the City committed to providing tax rebates as a local match. TriState Quality Metals' developer, Wilming Investments LLC, plans to invest a minimum of $3.43 million for the creation of a 44,000 square foot facility on 6.903 acres at the southwest corner of the intersection between Seippel and Partners roads in the new industrial park. The company currently has 13 employees but has committed to expanding its workforce to 23 employees. DISCUSSION The proposed Development Agreement provides for several incentives to encourage the capital investment and expansion of workforce. The total purchase price for the property is $828,360 at $120,000 per acre for 6.903 acres. However only 5.438 acres can be used for development, so a Non -Usable Land Discount amounting to $175,800 ($120,000 per acre for 1.465 non -usable acres) will be applied as a credit on the sale. Additionally, consistent with other development agreements in the City's industrial parks, an Acquisition Grant of $60,000 per usable acre, amounting to $326,280, will also be used as a credit to offset the purchase price. Wilming Investments will only owe $326,280 for the property at the date of closing. The developer has agreed to construct their new building by December 31, 2014. A 10 -year property tax rebate has also been offered to the company, aligning with the City's commitment in the contract with the IEDA. The rebate is a form of tax increment financing without issuing a tax increment bond in order to make an up -front loan to the company. As the company pays its future tax obligations on the increased value of the expanded facility, the City will rebate up to 100% (minus debt service, the School District Physical Plant and Equipment Levy, and the Instructional Support Levy) of the new property tax value for the next 10 years, depending upon the number of employees at the company. TriState Quality Metals must employ a total of 23 full-time equivalent positions by October 31, 2016 and maintain those positions throughout the agreement. If annual job certifications reveal that the company has not met their commitment, a proportional percentage of the eligible tax rebate will be reduced. Additionally, if TriState Quality Metals does not have 23 employees as of January 1, 2026, the company will owe $14,186.09 per job not met to reimburse the City for the Acquisition Grant. In an effort to avoid this agreement impacting the amount of debt applied against the City's constitutional debt limit, the Development Agreement contains a non - appropriation clause. The clause limits the obligation of the rebate to funds budgeted each year rather than a general obligation of multi-year indebtedness. Therefore, the City Council has the ability on an annual basis to decide not to appropriate the rebate, although TriState Quality Metals and Wilming Investments representatives have been told that such a result would only occur in rare circumstances. This agreement was made possible as a result of City Council action on February 3, 2014 to amend the Dubuque Industrial Center tax increment financing ordinance to include the Dubuque Industrial South. The City Council also approved of the final platting of the Dubuque Industrial Center South, as well adopted the declaration of covenants, conditions, restrictions, reservations, easements, liens, and charges on February 3, 2014. The March 17, 2014 public hearing was set by City Council on March 3, 2014. RECOMMENDATION I recommend that the City Council approve the Development Agreement between and among the City of Dubuque, Wilming Investments LLC, and TriState Quality Metals LLC for the acquisition of 6.903 acres and a $3.43 million capital investment of a new 44,000 square foot facility in the Dubuque Industrial Center South. ACTION STEP The action step for the City Council is to adopt the attached Resolution. F:\USERS\Econ Dev\Tristate Quality Metals \20140311 TSQM Council memo adopting DA.docx Prepared by Barry A. Linda, 300 Main St., Ste. 300, Dubuque, IA 52001, 53.589.4113 Return to Kevin S. Firnstahl, 50 W. 13'" St., Dubuque, IA 52001, 589-4121 RESOLUTION NO. 91-14 APPROVING A DEVELOPMENT AGREEMENT WITH WILMING INVESTMENTS, LLC AND TRISTATE QUALITY METALS LLC PROVIDING FOR THE SALE OF LOT 3 OF DUBUQUE INDUSTRIAL CENTER SOUTH FIRST ADDITITION IN THE CITY OF DUBUQUE, IOWA Whereas, the City Council, by Resolution No. 63-14, dated March 3, 2014, declared its intent to enter into a Development Agreement with Wilming Investments, LLC and TriState Quality Metals, LLC for the sale of Lot 3 of Dubuque Industrial Center South First Addition (the Property); and Whereas, pursuant to published notice, a public hearing was held on the proposed disposition on March 17, 2014 at 6:30 p.m. in the City Council Chambers at the Historic Federal building, 350 W. 6th Street, Dubuque, Iowa.; and Whereas, it is the determination 'of the Council that approval of the Development Agreement for the sale to and development of the Property by Wilming Investments, LLC and TriState Quality Metals, 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 Development Agreement by and among the City of Dubuque, Wilming Investments, LLC and TriState Quality Metals, LLC, including the sale of Lot 3 of Dubuque Industrial Center South First Addition, 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. 031114ba1 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 17th day of March, 2014. Attest: 41.41y Ar40 7 Kevi S. irnstahl, Cit lerk Roy D. 1 ol, Mayor F:\USERS\Econ Dev\TriState Quality Metals120140317 Tristate Quality metals public hearing resolution.doc 031114ba1 DEVELOPMENT AGREEMENT BETWEEN AND AMONG THE CITY OF DUBUQUE, IOWA, WILMING INVESTMENTS, LLC AND TRISTATE QUALITY METALS, LLC AGREEMENT, dated for reference purposes the %' day ofiy�, 2014, by and among the City of Dubuque, Iowa, a municipality (City), established pursuant to the Iowa Code and acting under authorization of Iowa Code Chapter 403, as amended (Urban Renewal Act), Wilming Investments, LLC, an Iowa limited liability company with its principal place of business in Dubuque, Iowa (Developer) and TriState Quality Metals, LLC, an Iowa limited liability company with its principal place of business in Peosta, Iowa (Employer). WITNESSETH: WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City has undertaken an Urban Renewal project (the Project) to advance the community's ongoing economic development efforts; and WHEREAS, the Project is located within the Dubuque Industrial Center Economic Development District (the Project Area); and WHEREAS, as of the date of this Agreement there has been prepared and approved by City an Urban Renewal Plan for the Project Area consisting of the Urban Renewal Pian 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) attached hereto as Exhibit A; 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, Employer has determined that it requires a new manufacturing facility to maintain and expand its operations and employment in the Project Area (the Facility); and WHEREAS, the Facility will be the home office for a multistate business; and WHEREAS, Developer and Employer have entered into an agreement under which Developer will construct a new facility and sell or lease the Facility to Employer; and 1 WHEREAS, Developer has requested that City sell to Developer 6.903 acres of which 5.438 are usable, legally described as Lot 3 Dubuque Industrial Center South First Addition, in the City of Dubuque, Dubuque County, Iowa, together with all easements, tenements, hereditaments, and appurtenances belonging thereto (the Property), so that Developer may develop the Property, located in the Project Area, for the construction, use, and occupancy of a manufacturing Facility and thereafter sell or lease with Property to Employer for use and occupancy with appurtenant uses which the City has determined and represented to Developer is in accordance with the uses specified in the Urban Renewal Plan and developer agrees to comply with any amendments to the Urban Renewal Plan, in accordance with this Agreement; 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. (1) The purchase price for the Property (Purchase Price) shall be the sum of $828,360 ($120,000.00 per acre)with a total acquisition of 6.903 acres, which shall be due and payable by Developer in immediately available funds in favor of City, on or before April 1, 2014, or on such other date as the parties may mutually agree (the Closing Date). City acknowledges receipt of the sum of $5,000.00 from Developer as earnest money, to be 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 acknowledges that 1.465 acres of the Property are not developable. A discount (the Non -Usable Land Discount) of $175,800.00 ($120,000.00 per non -usable acre) shall be payable in the form of a credit favoring the Developer at time of Closing with the effect of directly offsetting the full Purchase Price obligation to Developer. 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 2 Developer as set forth in this Agreement, and to the conditions subsequent set forth in Section 6.3, below: (1) City, at its sole cost and expense, shall deliver to Developer an abstract of title to the Property continued through the date of this Agreement reflecting merchantable title in City in conformity with this Agreement and applicable state law. The abstract shall be delivered together with full copies of any and all encumbrances and matters of record applicable to the Property, and such abstract shall become the property of Developer when the Purchase Price is paid in full in the 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 promptly following Developer's receipt of Developer's land survey and the Abstract and to promptly provide City with any objections to title identified therein. Nothing herein shall be deemed to limit Developer's 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 any sums previously paid to City by Developer (or paid into escrow for City's benefit) shall be returned to Developer with interest, or (b) take title subject to such objections. 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. 3 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 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. (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. 4 (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 as a manufacturing facility adjoin the Property, and Developer shall have the right to connect to said utilities, subject to City's connection fees. There will be no sanitary sewer connection fees associated with the project. Only water connection fees will be assessed for connections off of Partners Road. All other associated fees, such as a tapping fee, will be required as determined by the size of the service line being installed. (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 5 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 manufacturing use. (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) Subject to Employer's written approval, Developer having obtained any and all necessary governmental approvals, including without limitations approval of zoning, subdivision, or platting which might be necessary or desirable in connection with the sale, transfer and development of the Property. Any conditions imposed as a part of the zoning, platting or subdivision must be satisfactory to Developer, 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. 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 and developer agrees to comply with any amendments to 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) 6 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) Developer shall have furnished City with evidence in a form as required by Section 5.2 and satisfactory to City of Employer's fulltime equivalent employees (FTE) in Dubuque County, as of January 1, 2014. (9) Execution of a lease agreement with option to purchase the Property between Developer and Employer. (10) Receipt of an opinion of counsel to Developer in the form attached hereto as Exhibit D. (11) Receipt of an opinion of counsel to Employer in the form attached hereto as Exhibit E. (12) Developer and Employer shall have the right to terminate this Agreement at any time prior to the consummation of the closing on the Closing Date if either Developer or Employer determines in its sole discretion that conditions necessary for the successful completion of the Project contemplated herein have not been satisfied to the full satisfaction of such 7 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. 1.6 Closing. The closing of the purchase and sale shall take place on the Closing Date. Exclusive possession of the Property shall be delivered on the Closing Date, in its current condition and in compliance with this Agreement, including City's representations and warranties regarding the same. Consummation of the Closing shall be deemed an agreement of the parties to this Agreement that the conditions of closing have been satisfied or waived. 1.7 City's Obligations at Closing. At or prior to 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 6.3 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. 8 (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 and Employer's attorneys' fees. (c) Developer's broker and/or real estate commissions and fees, if any. (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 Closing Date occurs. Real estate taxes for the fiscal year in which Closing Date occurs shall be prorated between City and Developer to Closing Date on the . basis of a 365 -day calendar year. Developer shall pay or cause to be paid all real estate taxes due in subsequent fiscal years. Any proration of real estate taxes on the Property shall be based upon such taxes for the year currently payable. SECTION 2. DEVELOPMENT ACTIVITIES 2.1 Required Minimum Improvements. City acknowledges that the Facility Developer is building on the Property is a manufacturing facility as shown on Exhibit B attached hereto, for lease to Employer. Specifically, Developer agrees to construct the building and certain internal systems thereto, and with finishing the building including, without limitation, all interior improvements (the Minimum Improvements); all as more particularly depicted and described on the plans and specifications to be delivered to and approved by City as contemplated in this Agreement. Developer hereby agrees the Facility will be not less than forty-four thousand (44,000) square feet of floor space along with the necessary site work, machinery and equipment at an estimated cost of approximately $3,430,000 for the Minimum Improvements. 2.2 Plans for Construction of Minimum Improvements. Plans and specifications with respect to the development of the Property and the construction of the 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. , records of Dubuque County, Iowa. Developer shall submit to City, for approval by City, plans, drawings, specifications, 9 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. 2.3 Timing of Improvements. Developer hereby agrees that construction of the Minimum Improvements on the Property shall be commenced on or before May 1, 2014, and shall be substantially completed by December 31, 2014. 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, the City Manager shall furnish Developer with an appropriate instrument so certifying. Such certification (the Certificate of Completion) shall be in recordable form and shall be a conclusive determination of the satisfaction and termination of the agreements and covenants in this Agreement and in the Deed with respect to the obligations of Developer to construct the Minimum Improvements. The Certificate of Completion shall waive all rights of re -vestment of title in City as provided in Section 6.3, 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. CITY PARTICIPATION 3.1 Acquisition Grant to Developer. For and in consideration of Developer's obligations hereunder to construct the Minimum Improvements, City agrees to make an Acquisition Grant to Developer on the Closing Date, or such other date as the parties shall mutually agree upon in writing, in the amount of $326,280 (Sixty Thousand Dollars ($60,000.000) per acre x 5.438 usable acres). The parties agree that the Acquisition Grant shall be payable in the form of a credit favoring Developer at time of Closing with the effect of directly offsetting the full Purchase Price obligation of Developer. 3.2 Economic Development Grants. 10 (1) For and in consideration of Developer's and Employer's obligations hereunder, and in furtherance of the goals and objectives of the urban renewal plan for the Project Area and the Urban Renewal Law, City agrees, subject to Developer and Employer being and remaining in compliance with the terms of this Agreement, to make twenty (20) consecutive semi-annual payments (such payments being referred to collectively as the Economic Development Grants) to Employer if Employer owns or leases the Property and/or Improvements thereon during the period such tax increment revenues accrue, otherwise to Developer (and City may rely upon a statement from Employer or Developer with respect to Employer's ownership or lease status for such purposes without any obligation to verify such status), as follows: November 1, 2016 November 1, 2017 November 1, 2018 November 1, 2019 November 1, 2020 November 1, 2021 November 1, 2022 November 1, 2023 November 1, 2024 November 1, 2025 May 1,2017 May 1,2018 May 1,2019 May 1, 2020 May 1,2021 May 1, 2022 May 1, 2023 May 1, 2024 May 1, 2025 May 1, 2026 pursuant to Iowa Code Section 403.9 of the Urban Renewal Law, in amounts equal to the actual amount of tax increment revenues collected by City under Iowa Code Section 403.19 (without regard to any averaging that may otherwise be utilized under Iowa Code Section 403.19 and excluding any interest that may accrue thereon prior to payment to Employer or Developer) during the preceding six-month period in respect of the Property and Minimum Improvements constructed by Developer (the Developer Tax Increments). Employer and Developer recognize and agree that the Economic Development Grants shall be paid solely and only from the incremental taxes collected by City in respect to the Property and Minimum Improvements, which does not include property taxes collected for the payment of bonds and interest of each taxing district, and taxes for the regular and voter -approved physical plant and equipment levy, instructional support levy, and any other portion required to be excluded by Iowa law, and thus such incremental taxes will not include all amounts paid by Developer as regular property taxes. (2) To fund the Economic Development Grants, City shall certify to the County prior to December 1 of each year, commencing December 1, 2015, its request for the available Developer Tax Increments resulting from the assessments imposed by the County as of January 1 of that year, to be collected by City as taxes are paid during the following fiscal year and which 11 shall thereafter be disbursed to the Employer if Employer owns or leases the Property and/or Improvements thereon during the period such tax increment revenues accrue, otherwise to Developer (and City may rely upon a statement from Employer or Developer with respect to verify such status), on November 1 and May 1 of that fiscal year. (Example: If City so certifies by December, 2015, the Economic Development Grants in respect thereof would be paid to Employer on November 1, 2016, and May 1, 2017.) (3) The Economic Development Grants shall be payable from and secured solely and only by the Developer Tax Increments paid to City that, upon receipt, shall be deposited and held in a special account created for such purpose and designated as the TriState Quality Metals TIF Account of City. City hereby covenants and agrees to maintain its TIF ordinance in force during the term and to apply the incremental taxes collected in respect of the Property and Minimum Improvements and allocated to the Tristate Quality Metals TIF Account to pay the Economic Development Grants, as and to the extent set forth in Section 3.2(1) hereof. The Economic Development Grants shall not be payable in any manner by other tax increments revenues or by general taxation or from any other City funds. City makes no representation with respect to the amounts that may be paid to Employer or Developer as the Economic Development Grants in any one year and under no circumstances shall City in any manner be liable to Employer or Developer so long as City timely applies the Developer Tax Increments actually collected and held in the TriState Quality Metals TIF Account (regardless of the amounts thereof) to the payment of the Economic Development Grants to Employer or Developer as and to the extent described in this Section. (4) City shall be free to use any and all tax increment revenues collected in respect of other properties within the Project Area, or any available Developer Tax Increments resulting from the termination of the annual Economic Development Grants under Section 3.2 hereof, for any purpose for which such tax increment revenues may lawfully be used pursuant to the provisions of the Urban Renewal Law, and City shall have no obligations to Developer or Employer with respect to the use thereof. (5) City's obligations to pay the Economic Development Grants to Developer shall be subject to City having completed all hearings and other procedures required to amend the Urban Renewal Plan to describe the Urban Renewal Project being undertaken in accordance with this Agreement. 3.3 Site Preparation. City reserves the right to approve the design and specifications for any site preparation work. City shall not remove any dirt from the Property prior to Closing, to the end that Developer may utilize dirt presently stored on the Property in Developer's grading of the lot. Any storm sewer piping shall be sized per City requirements. 12 SECTION 4. NON- APPROPRIATION / LIMITED SOURCE OF FUNDING. 4.1 Non -Appropriation. Notwithstanding anything in this Agreement to the contrary, the obligation of City to pay any installment of the Economic Development Grants from the pledged tax increment revenues shall be an obligation limited to currently budgeted funds, and not a general obligation or other indebtedness of City or a pledge of its full faith and credit within the meaning of any constitutional or statutory debt limitation, and shall be subject in all respects to the right of non - appropriation by the City Council of City as provided in this Section. City may exercise its right of non -appropriation as to the amount of the installments to be paid during any fiscal year during the term of this Agreement without causing a termination of this Agreement. The right of non -appropriation shall be exercised only by resolution affirmatively declaring City's election to non -appropriate funds otherwise required to be paid in the next fiscal year under this Agreement. In the event the City Council of City elects to not appropriate sufficient funds in the budget for any future fiscal year for the payment in full of the installments on the Economic Development Grants due and payable in that future fiscal year, then City shall have no further obligation to Employer or Developer for the payment of any installments due in that future fiscal year which cannot be paid with the funds then appropriated for that purpose. 4.2 The right of non -appropriation reserved to City in this Section is intended by the parties, and shall be construed at all times, so as to ensure that City's obligation to pay future installments on the Economic Development Grants shall not constitute a legal indebtedness of City within the meaning of any applicable constitutional or statutory debt limitation prior to the adoption of a budget which appropriates funds for the payment of that installment or amount. In the event that any of the provisions of this Agreement are determined by a court of competent jurisdiction to create, or result in the creation of, such a legal indebtedness of City, the enforcement of the said provision shall be suspended, and the Agreement shall at all times be construed and applied in such a manner as will preserve the foregoing intent of the parties, and no event of default shall be deemed to have occurred as a result thereof. If any provision of this Agreement or the application thereof to any circumstance is so suspended, the suspension shall not affect other provisions of this Agreement which can be given effect without the suspended provision, and to this end the provisions of this Agreement are severable. SECTION 5. COVENANTS OF EMPLOYER 5.1 Job Creation. During the term of this Agreement, Employer shall make best efforts to maintain its existing thirteen (13) employees in Dubuque County Iowa. (1) Employer shall retain thirteen (13) and create a minimum of ten (10) fulltime equivalent employees (FTE) in Dubuque, Iowa prior to October 31, 2016, and shall maintain those jobs during the Term of this Agreement. It is 13 agreed by the parties that Employer has thirteen (13) fulltime equivalent employees (FTE) in Dubuque County, Iowa, as of January 1, 2014. FTE shall be calculated by adding fulltime and part-time employees together using 2080 hours per year as a FTE employee. In the event that the certificate provided to City under Section 5.2 hereof on January 1, 2026 discloses that Employer does not as of that date have at least twenty-three (23) FTE employees as provided hereinabove, Employer if Employer owns or leases the Property and/or Improvements on that date (and City may rely upon a statement from Employer or Developer with respect to Employer's ownership or lease status for such purposes without any obligation to verify such status), otherwise Developer shall pay to City, promptly upon written demand therefor, an amount equal to $14,186.09 per job not created or maintained ($326,280 divided by 23 FTE = $14,186.09). The payments provided for herein shall be the City's sole remedy for the failure of Employer to meet the job creation requirements of this subsection 5.1(1). (2) In addition, for the positions that Employer fails to create and maintain for any year during the Term of this Agreement, the semi-annual Economic Development Grants for such year under Section 3.2 shall be reduced by the percentage that the number of such positions bears to the total number of positions required to be created and maintained (23 FTE's) by this Section 5.1. (For example, if Employer has 20 FTE employees, the semi-annual Economic Development Grants would be 87.0% (20/23 employees) of the Tax Increment Revenues received by City would be paid by City). The reduction of the semi-annual Economic Development Grants shall be the City's sole remedy for the failure of Employer to meet the job creation requirements of this subsection 5.1(2). 5.2 Certification. To assist City in monitoring the performance of Employer hereunder, not later than January 1, 2017, and again not later than January 1 of each year thereafter during the term of this Agreement, a duly authorized officer of Employer shall certify to City in a form acceptable to City (a) the number of fulltime jobs employed in Dubuque, Iowa, and (b) to the effect that such officer has re-examined the terms and provisions of this Agreement and that at the date of such certificate, and during the preceding twelve (12) months, Employer is not or was not in default in the fulfillment of any of the terms and conditions of this Agreement and that no Event of Default (or event which, with the lapse of time or the giving of notice, or both, would become an Event of Default) is occurring or has occurred as of the date of such certificate or during such period, or if the signer is aware of any such default, event or Event of Default, said officer shall disclose in such statement the nature thereof, its period of existence and what action, if any, has been taken or is proposed to be taken with respect thereto. Such certificate shall be provided not later than February 28, 2017, and by February 28 of each year thereafter during the term of this Agreement 5.3 Books and Records. During the term of this Agreement, Developer and Employer shall keep at all times proper books of record and account in which full, 14 true and correct entries will be made of all dealings and transactions of or in relation to the business and affairs of Developer and Employer in accordance with generally accepted accounting principles consistently applied throughout the period involved, and Developer and Employer shall provide reasonable protection against loss or damage to such books of record and account. 5.4 Real Property Taxes. From and after the Closing Date, Developer shall pay or cause to be paid, when due, all real property taxes and assessments payable with respect to all and any parts of the Property unless Developer's obligations have been assumed by another person pursuant to the provisions of this Agreement. 5.5 No Other Exemptions. During the term of this Agreement, Developer agrees not to apply for any state or local property tax exemptions which are available with respect to the Development Property or the Minimum Improvements located thereon that may now be, or hereafter become, available under state law or city ordinance during the term of this Agreement, including those that arise under Iowa Code Chapters 404 and 427, as amended. 5.6 Insurance Requirements. (1) Developer shall provide and maintain or cause to be maintained at all times during the process of constructing the Minimum Improvements (and, from time to time at the request of City, furnish City with proof of insurance in the form of a certificate of insurance for each insurance policy): All risk builder's risk insurance, written on a Completed Value Form in an amount equal to one hundred percent (100%) of the replacement value when construction is completed. (2) Upon completion of construction of the Minimum Improvements and up to the Termination Date, Developer shall maintain, or cause to be maintained, at its cost and expense (and from time to time at the request of City shall furnish proof of insurance in the form of a certificate of insurance) all risk property insurance against loss and/or damage to the Minimum Improvements under an insurance policy written in an amount not less than the full insurable replacement value of Minimum Improvements. The term "replacement value" shall mean the actual replacement cost of Minimum Improvements (excluding foundation and excavation costs and costs of underground flues, pipes, drains and other uninsurable items) and equipment, and shall be reasonably determined from time to time at the request of City, but not more frequently than once every three (3) years. (3) Developer 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 15 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. 5.7 Preservation of Property. During the term of this Agreement, Developer and Employer 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. 5.8 Non -Discrimination. In carrying out the project, Developer and Employer 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. 5.9 Conflict of Interest. Developer and Employer agree 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 and Employer 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. 5.10 Non -Transferability. (1) 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 16 this Agreement and upon assumption of the Agreement by the assignee, Developer shall no longer be responsible for its obligations under this Agreement. (2) City acknowledges that Developer intends to transfer or lease the Property and the Minimum Improvements thereon upon completion to Employer, and City hereby consents to such transfer. 5.11 Restrictions on Use. Developer agrees for itself, and its successors and assigns, and every successor in interest to the Property or any part thereof that they, and their respective successors and assigns, shall: (1) Devote the Property to, and only to and in accordance with, the uses specified in the Urban Renewal Plan (and City represents and agrees that use of the Property as a manufacturing facility is in full compliance with the Urban Renewal Plan and developer agrees to comply with any amendments to the Urban Renewal Plan,) (however, Developer shall not have any liability to City to the extent that a successor in interest shall breach this covenant and City shall seek enforcement of this covenant directly against the party in breach of same); and (2) Not discriminate upon the basis of race, religion, color, sex, sexual orientation, 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). 5.12 Release and Indemnification Covenants. (1) Developer releases City and the governing body members, officers, agents, servants and employees thereof (hereinafter, for purposes of this Section, the Indemnified Parties) from 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 and Employer agree 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 17 (except with respect to any suit, action, demand or other proceeding brought by Developer and Employer against City based on an alleged breach of any representation, warranty or covenant of City under this Agreement and/or to enforce its rights under this Agreement); or (2) the acquisition, construction, installation, ownership, and operation of the Minimum Improvements or (3) the condition of the Property and any hazardous substance or environmental contamination located in or on the Property, caused and occurring after Developer takes possession of the Property. (3) The Indemnified Parties shall not be liable to Developer or Employer for any damage or injury to the persons or property of Developer or 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. (5) The provisions of this Section shall survive the termination of this Agreement. 5.13 Compliance with Laws. Developer and Employer shall comply with all laws, rules and regulations relating to its businesses, other than laws, rules and regulations for which the failure to comply with or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, financial or otherwise, of Developer and Employer. SECTION 6. EVENTS OF DEFAULT AND REMEDIES 6.1 Events of Default Defined. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement, any one or more of the following events: (1) Failure by Developer or Employer to pay or cause to be paid, before delinquency, all real property taxes assessed with respect to the Minimum Improvements and the Property. (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. 18 (3) Transfer of any interest by Developer of Minimum Improvements except to Employer in violation of the provisions of this Agreement prior to the issuance of the final Certificate of Completion. (4) Failure by Developer or Employer to substantially observe or perform any other material covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. 6.2 Remedies on Default by Developer or Employer. Whenever any Event of Default referred to in Section 6.1 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) and Employer 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 shall be entitled to recover from Developer the sum of all amounts expended by City in connection with the funding of the Acquisition Grant to Developer, and City may take any action, including any legal action it deems necessary, to recover such amounts from the defaulting party; (4) City may withhold the Certificate of Completion; or (5) City may take any action, including legal, equitable or administrative action, which may appear necessary or desirable to collect any payments due under this Agreement or to enforce performance and observance of any obligation, agreement, or covenant under this Agreement. 6.3 Re-vestinq 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 Improvements (First Mortgage), an Event of Default under Section 6.1 of this Agreement occurs and is not cured within the times specified in Section 6.2, then 19 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 6.3 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 6.1 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 6.3 of this Agreement), but only if the events stated in Section 6.1 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. 6.4 Resale of Reacquired Property; Disposition of Proceeds. Upon the re- vesting in City of title to the Property as provided in Section 6.3 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 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 20 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. 6.5 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. 6.6 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. 6.7 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in equity, including an action for declaratory relief or arbitration, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of litigation from the other party. Such fees and costs of litigation may be set by the court in the trial of such action or by the arbitrator, as the case may be, or may be enforced in a separate action brought for that purpose. Such fees and costs of litigation shall be in addition to any other relief that may be awarded. 21 6.8 Remedies on Default by City. If City defaults in the performance of this Agreement, Developer or Employer may take any action, including legal, equitable or administrative action that may appear necessary or desirable to collect any payments due under this Agreement, to recover expenses of Developer or Employer, or to enforce performance and observance of any obligation, agreement, or covenant of City under this Agreement. Developer or Employer may suspend performance under this Agreement until they receive assurances from City, deemed adequate by Developer and Employer, that City will cure its default and continue its performance under this Agreement. SECTION 7. GENERAL TERMS AND PROVISIONS 7.1 Notices and Demands. Whenever this Agreement requires or permits any notice or written request by one party to another, it shall be deemed to have been properly given if and when delivered in person or three (3) business days after having been deposited in any U.S. Postal Service and sent by registered or certified mail, postage prepaid, addressed as follows: (1) If to Developer: Wilming Investments, LLC Attn: Gary Wilming 6183 Glen Eagle Ct. Asbury, IA 52002 Phone: 563-582.7400 With copy to: Attorney Darin Harmon 100 West 12th Street Dubuque, IA 52004-0703 Phone: 563-588-0547 2 If to Employer: TriState Quality Metals, LLC Att: Gary Wilming 8673 Kapp Dr. Peosta, IA 52068 Phone: 563-582.7400 With copy to: Attorney 22 Darin Harmon 100 West 12th Street Dubuque, IA 52004-0703 Phone: 563-588-0547 (3) If to City: City Manager 50 W. 13th Street Dubuque, lowa 52001 Phone: (563) 589-4110 Fax: (563) 589-4149 With copy to: City Attorney City Hall 50 W. 13th Street Dubuque, lowa 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. 7.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of City, Developer, and Employer and their respective successors and assigns. 7.3 Termination Date. This Agreement and the rights and obligations of the parties hereunder shall terminate on May 1, 2026 (the Termination Date). 7.4 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. 7.5 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. 23 CITY OF DUBUQUE, IOWA By: By: D.� Roy D. Bupi TRISTATE QUALITY METALS, LLC Employer By: \'S Gary Wil;� •, Member W!ILM!NG'NVESTMENTS,, LLC= Kevi ' S. Firnstahl, Developer City Clerk 24 By: 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 Opinion of Counsel to Tristate Quality Metals, LLC Exhibit F Deed Exhibit G Memorandum of Development Agreement Exhibit H City Certificate 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, Resolution 87-11on March 7, 2011, and Resolution 171-13 on June 3, 2013. Prepared by the Economic Development Department. Version 2013.1 Note: Complete Urban Renewal Plan is on file in the City Clerk's office, City Hall, 50 West 13th Street, Dubuque, Iowa 26 EXHIBIT B SITE PLAN 0 27 EXHIBIT C CITY ATTORNEY'S CERTIFICATE 28 BARRY A. LINDAHL, ESQ. CITY ATTORNEY RE: Dear (DATE) THE CITY OF DUB �E 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 29 Very sincerely, Barry A. Lindahl, Esq. City Attorney EXHIBIT D OPINION OF DEVELOPER'S COUNSEL 30 Mayor and City Councilmembers City Hall 13t 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 31 manner raises any questions affecting the validity of the Agreement or the Developer's ability to perform Developer's obligations thereunder. Very truly yours, 32 EXHIBIT E OPINION OF COUNSEL TO TRISTATE QUALITY METALS, LLC. 33 Mayor and City Councilmembers City Hall 13t 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 (Employer) in connection with the execution and delivery of a certain Development Agreement (Development Agreement) between Developer and the City of Dubuque, Iowa (City) dated for reference purposes the day of , 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. Employer is a corporation organized and existing under the laws of the State of Iowa and has full power and authority to execute, deliver and perform in full Development Agreement. The Development Agreement has been duly and validly authorized, executed and delivered by Employer and, assuming due authorization, execution and delivery by City, is in full force and effect and is valid and legally binding instrument of Employer enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. 2. To our actual knowledge with no duty to inquire, the execution, delivery and performance by Employer of the Development Agreement and the carrying out of the terms thereof, will not result in violation of any provision of, or in default under, the articles of incorporation and bylaws of Employer, any indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree, order, statute, rule, regulation or restriction to which Employer is a party or by which Employer's property is bound or subject. 3. To our actual knowledge with no duty to inquire, there are no actions, suits or proceedings pending or threatened against or affecting Employer in any court or before any arbitrator or before or by any 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 34 operations of Employer or which in any manner raises any questions affecting the validity of the Agreement or the Employer's ability to perform Employer's obligations thereunder. This opinion is rendered for the sole benefit of the City of Dubuque and no other party may rely on this opinion. This opinion is rendered and valid as of the date of this letter and we have no duty to update this opinion for any matters which come to our knowledge after the date of this letter. Very truly yours, 35 EXHIBIT F DEED 36 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 37 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. Dated this of , 20_ at Dubuque, Iowa. CITY OF DUBUQUE IOWA Attest: By: By: - Kevin S. Firnstahl, City Clerk 38 Roy D. Buol, Mayor STATE OF IOWA SS COUNTY OF DUBUQUE On this day of , 20_, before me a Notary Public in and for said County, personally appeared Roy D. Buol and Kevin S. Firnstahl to me personally known, who being duly sworn, did say that they are the Mayor and Acting City Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation, created and existing under the laws of the State of Iowa, and that the seal affixed to the foregoing instrument is the seal of said Municipal Corporation, and that said instrument was signed and sealed on behalf of said Municipal Corporation by authority and resolution of its City Council and said Mayor and Acting City Clerk acknowledged said instrument to be the free act and deed of said Municipal Corporation by it voluntarily executed. Notary Public in and for Dubuque County, Iowa 39 EXHIBIT G MEMORANDUM OF DEVELOPMENT AGREEMENT 40 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 41 By: Kevin S. Firnstahl, City Clerk 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 42 EXHIBIT H CITY CERTIFICATE 43 City Manager's Office 50 %Vest 13th Street Dubuque, Iowa 52001-4864 (563) 589-4110 phone (563) 589-4149 fax ctymgr@cityofdubtique.org Dear (DATE) 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. 44 (5) The Property has a permanent right of ingress or egress to a public roadway for the use and enjoyment of the Property. (6) There are no notices, orders, suits, judgments or other proceedings relating to fire, building, zoning, air pollution, health violations or other matters that have not been corrected. City has notified Developer in writing of any past notices, orders, suits, judgments or other proceedings relating to fire, building, zoning, air pollution or health violations as they relate to the Property of which it has actual notice. The Property is in material compliance with all applicable zoning, fire, building, and health statutes, ordinances, and regulations. The Property is currently zoned PUD and Developer's intended use of the Property as a corporate office/industrial facility is a permitted use in such zoning classification. (7) Payment has been made for all labor or materials that have been furnished to the Property or will be made prior to the Closing Date so that no lien for labor performed or materials furnished can be asserted against the Property. (8) The Property will, as of the Closing Date, be free and clear of all liens, security interests, and encumbrances. (9) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement do not and shall not result in any material breach of any terms or conditions of any mortgage, bond, indenture, agreement, contract, license, or other instrument or obligation to which City is a party or by which either the City or the Property being conveyed are bound, nor shall the execution, delivery and performance of this Agreement violate any statute, regulation, judgment, writ, injunction or decree of any court threatened or entered in a proceeding or action in which City may be bound or to which either City or the Property being conveyed may be subject. (10) City has duly obtained all necessary approvals and consents for its execution, delivery and performance of this Agreement, and has full power and authority to execute, deliver and perform its obligations under this Agreement. City's attorney shall issue a legal opinion to Developer 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 or 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 45 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. (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\TriState Quality Metals\20140206 Development Agreement.doc 46 RESOLUTION NO.63-14 INTENT TO DISPOSE' OF AN INTEREST IN CITY OF DUBUQUE REAL ESTATE PUR- SUANT TO A DEVEL- OPMENT AGREE- MENT BETVVEEN AND AMONG THE CITY OF DUBUQUE, WILMING INVESTMENTS, LLC AND TRISTATE QUAL- ITY METALS, LLC, AND FIXING THE DATE FOR A PUBLIC HEAR- INGOF THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA ON THE PRO- POSED ISSUANCE OF URBAN RENEWAL TAX INCREMENT REVENUE GRANT OB- LIGATIONS AND PRO- VIDING FOR THE PUB- LICATION OF NOTICE THEREOF meeting the City;Coun- cii shall receive oral and/ori written objec- tions from any resident or property owner of said City to such pro- posed action. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IO- WA: Section 1. The City of Dubuque intends to dispose of its interest in the foregoing - described Property by Deed to Wilming In- vestments, LLC. Section 2. The City Clerk is hereby author- ized and directed to cause this Resolution and a notice to be pub- lished as prescribed by Iowa `Code Section 364.7 of a public hear-, ing on the City's intent to dispose of the Whereas, the City of foregoing -described Dubuque, Iowa (City) is Property', to be held on the owner of the fol -the 17th day of March, lowing real =property ' 2014 at 6:30 p.m. in the (the Property); City Council Chambers Lot 3 of Dubuque in at the Historic Federal dustrial CenterSouth Building, 350 W. 6th First Addition in the Street, Dubuque, Iowa. City' of Dubuque, Iowa; + Section 3. The City and: Council will also meet Whereas, City and at said time and, place Wilming Investments,' for the purpose of tak- LLC and Tristate Quali- i ing action on the mat- ty Metals, LLC have en- ter of authorizing Ur- tered into a Develop- ban Renewal Tax Incre- ment Agreement, sub- ment Revenue obliga jest=to the approval of tions and the execution the City Council, pur- of the Development suant to which City wil I Agreement relating convey the Property to thereto with Wilming tioop on the intent to Wilming Investments, Investments, LLC and dispose of an interest LLC, and Wilming in- Tristate Quality) Met- in City of f an interest vestments, LLC will als, LLC, the proceeds estate, Lot 3 of Due construct on the Prop- of which obligations que Industrial Center erty certain Improve will be used to carry South First Addition in meets described in the out certain of the spe- the City of Dubuque Development Agree -tial financing activities ment and will lease the described in the; Urban Property to TriState Renewal Plan for the Quality Metals, LLC;' Dubuque Industrial and Center Economic De - Whereas, the'City velopment District, Council has tentatively consisting of the fund - determined that it'i ing of economic devel- would be in the best in -'s' opment grants to terests of City to ap Wilming Investments, prove the Development LLC or Tristate Quality Agreement, including; Metals,i LLC pursuant the `conveyance of the:' to the Development Property to Wilming In-' Agreement under the vestments, LLC; and terms and conditions Whereas, the Devel of said' Urban Renewal opment Agreement' Plan. It is expected provides for the issu- that the aggregate ante by City of eco amount of the Tax In- nomic development crement Revenue obli- grants to Wilming In- gations'will be approxi - vestments, LLC or CITY OF DUBUQUE OFFICIAL NOTICE NOTICE OF A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF 'DUBU- QUE, IOWA, ON THE INTENT TO'DISPOSE OF AN 'INTEREST IN CITY OF DUBUQUE REAL ESTATE PUR- SUANT the Greater Downtown Urban Renewal District. The aggregate amount of the Urban Renewal Tax Increment Reve- nue Grant Obligations' cannot be determinedi at the present time, but is not expected Ito exceed $580,000. TO A AGREE- At the meeting, the OPMENTi AGREE- City Council will re- MENT BETWEEN AND ceive oral and written objections fromlany resident or property`; owner of said City to the above action. After all objections have been received and con- sidered, the:; City Coun- cil may oun-cil;may at this meeting' or at any adjournment thereof, approve the Development Agree- ment, and authorize such Tax lIncrement Revenue Grant Obliga- MENT RELATING tions or abandon the THERETO WITH proposal. By order of WILMING INVEST- the City Council said' MENTS, LLC'AND , hearing antl appeals TRISTATE QUALITY therefrom shall be held METALS,' LLC in accordance with and PUBLIC NOTICE is governed by'the provi hereby given that the sloes of Section 403.9 City Council of the City of the Code of Iowa. of Dubuque, Iowa, will Any visual or hearing hold a public hearing impairetl persons AMONG THE CITY OF DUBUQUE, WILMING INVESTMENTS, LLC AND TRISTATE QUAL- ITY METALS, LLC, AND IN THE MATTER OF THE PROPOSED AUTHORIZATION ` OF URBAN RENEWAL TAX INCREMENT REVENUE OBLIGA TIONS AND THE EXE- CUTION OFiTHE DE - on the r17th day of needing special assis- March, 2014, at 6:30 tante or persons with p.m. in the City Council special accessibility Chambers at the His needs should contact toric Federal Building, the City Clerk's officei 350 W. 6th St., Dubu at -(563) 589-4100 or',` que, Iowa, at which TDD at (563) 690-6678'` meeting the City Coun- tote 4e8 hours prior til proposes to takeiac- to the meeting. Published by order of the'City Council given on the 3rd March, 2014. This notice is mately$580,000. TriState Quality Met- Section 4. The City als, LLC, referred to: Clerk is hereby direct herein as Urban Re-' ed to cause'at least newal Tax increment one publication to be Revenue Grant Obliga-;i made of'a notice of tions, payable from the' said meeting, in a fax increment reve newspaper printed wholly inL'the English Hues collected in re- r language, published at Agreement and the Ur- spect of the Improve-' least once weekly, and ban Renewal Plan for ments to be construct-> having generalicircula- ed by Wilming Invest-' tion in said City, said ments, LLC in accord' publication to be not ance with the' Develop- less than four days nor ment Agreement, for' more than twenty days the purpose of; carrying before the date of said out the objectives of an' meeting on the, dispos-: Urban Renewal Plan as '- al of the Citys nterest hereinafter described; in the Property and the and issuance of said obliga- Whereas, before said tions. obligations may be ap- Section 5. That the no - proved, Chapter 403 of tice of the proposed the Code of Iowa re- action shall be in sub - quires that the City stantially the form at - Clerk publish "a notice 'a tached hereto. of the proposal and of Passed, approved and the time and place day of given by order of the City Coun- cil of the City' of Dubu- que,lowa, pursuant to a De Iowa, as provided velopmurs Agreement by Chapter 403 of the between andramong Code of Iowa. he City of Dubuque, Wilming -Investments, LLC and Tristate Quali- ty Metals `'LLC ant. the authorization and execution' of the Devel- opment Agreement, and on the issuance of, economic development grants (Urban Renewal Tax Increment Reve- nue Grant` Obligations) described therein in or- der to carry out the purposes andlobjec- tives of the Urban Re- newal Plan for the Greater Downtown Ur- ban Renewal District, consisting of the fund- ing of economic devel- opment grants to Wilming iInvestments,; LLC or Tristate Quality'. Metals, LLC, under the terms and conditions of said Development Dated this 7th day of March, 2014. Kevin S. Firnstahl, City Clerk of Dubuque, Iowa It 3/7 of adopted this 3rd day wich in S March, 2014. the City Council pro- Roy D. Buol, Mayor Poses to take action Attest' K t the meeting at h evof here on and at which Firnstahl, City Clerk IN THE DISTRICT COURT OF IOWA IN AND FOR DUBUQUE COUNTY Certification of Publication See attached Document 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 date(s): Mora) 01 ipiq and for which the charge is $ J . Subscribed to before m , a NotaryPublic in and for Dubuque County, Iowa, this f day of 4,d , 20 / , ESTER EYER Commission Number 154885 M, Comm, Exa, FEB. 1, 2017 Notary P 4' is in and for Dubuque County, I 11 11111 11 11 11 11 Doc ID 007961820003 Type GEN Kind: AGREEMENT Recorded: 04/01/2014 at 02:37:27 PM Fee Amt: $17.00 Page 1 of 3 Dubuque County Iowa Kathy Flynn Thurlow Recorder F11e2014-00003089 RECORDER'S COVER SHEET MEMORANDUM OF DEVELOPMENT AGREEMENT Preparer Information: Barry A. Lindahl, City Attorney, Suite 330, 300 Main Street, Dubuque, IA 52001, Phone: (563) 583-4113 Taxpayer Information: City of Dubuque, Iowa, 50 West 13th Street, Dubuque, IA 52001 Return Document To: Barry A. Lindahl, City Attorney, Suite 330, 300 Main Street, Dubuque, IA 52001 Legal Description: Lot 3 Dubuque Industrial Center South First Addition, in the City of Dubuque, Dubuque County, Iowa Grantors: The City of Dubuque, Iowa Grantees: TriState Quality Metals, LLC and Wilming Investments, LLC 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 between and among the City of Dubuque, Iowa, Wilming Investments, LLC, and Tristate Quality Metals, LLC was made regarding the following described premises: Lot 3 Dubuque Industrial Center South First Addition, in the City of Dubuque, Dubuque County, Iowa The Development Agreement is dated for reference purposes the 17th day of March, 2014, 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 t day of , 204 . CITY OF DUBUQUE, IOWA By: l4,--'- VI David T. Resnick, Mayor Pro -Tem Kelvin S. Firnstahl, City Clerk TRISTATE QUALITY METALS, LLC Employer By: oAAA,, Gary Wining, Member WILMING INVESTMENTS, LLC Developer By: `A Gary Wilmir4 Member STATE OF IOWA : ss: DUBUQUE COUNTY On this k5 day of I' C` , 20\4, before me, a Notary Public in and for the State of Iowa, in and for said county, personally appeared David T. Resnick and Kevin S. Firnstahl, to me personally known, who being ,by me duly sworn did say that they are the Mayor Pro -Tem 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 Pro -Tem and City Clerk acknowledged said instrument to be the free act and deed of said Municipal Corporation by it voluntarily executed. Notary Public tate of Iowa STATE OF IOWA : ss: DUBUQUE COUNTY TRACEY L. STECKLEIN Commission Number 716018 My Comm, Exp. On this day of rr';{2, , 20, before me, a Notary Public in and for the State of Iowa, in and for said county, personally appeared Gary Wilming, to me personally known, whobeing by me duly sworn did say that he is the member of both TriState Metals, LLC and of Wilming Investments, LLC, and that said instrument was signed on behalf of said companies by authority of its members and that he acknowledged the execution of this instrument to be the voluntary act and deed of aid companies by it voluntarily executed. Notary/Public, State of Iowa i RRY A. L9 DAHL 10 111111E1111111111111111111HIMMIEll hili 11111 hili ilii ilii Doc ID: 007961830008 Type: GEN Kind: DEED WITH RESOLUTION Recorded: 04/01/2014 at 02:38:14 PM Fee Amt: $47.00 Page 1 of 8 Revenue Tax: $0.00 Dubuque County Iowa Kathy Flynn Thurlow Recorder Fi1e2014-00003090 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: Wilming Investments, LLC Attn: Gary Wilming 6183 Glen Eagle Ct. Asbury, IA 52002 Phone: 563-582.7400 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 Eight Hundred Twenty -Eight Thousand, Three Hundred Sixty and no/100 Dollars ($828,360.00) 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 Wilming Investments, LLC, an Iowa limited liability company with its principal place of business in Dubuque, Iowa (Grantee), the following described parcel(s) situated in the County of Dubuque, State of Iowa, to wit (the Property): Lot 3 Dubuque Industrial Center South First 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. 91-14 of the City Council of the City of Dubuque adopted the 17th day of March, 2014, 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 17th day of March, 2014 (the Agreement), a memorandum of which was recorded on the day of r''u�', 20 `I, in the records of the Recorder of Dubuque County, Iowa, Instrument Number - , /` . Promptly after completion of the improvements in accordance with the provisions of the Agreement, Grantor will furnish Grantee with a Certificate of Completion in the form set forth in the Agreement. Such certification by Grantor shall be, and the certification itself shall so state, a conclusive determination of satisfaction and termination of the agreements and covenants of the Agreement and of this Deed with respect to the obligation of Grantee, and its successors and assigns, to construct improvements and the dates for the beginning and completion thereof, it being the intention of the parties that upon the granting and filing of the Certificate of Completion that all restrictions, re -vesting of title, and reservations of title contained in this Deed be forever released and terminated and that any remaining obligations of Grantee pursuant to the Agreement shall be personal only. All certifications provided for herein shall be in such form as will enable them to be recorded with the County Recorder of Dubuque, Iowa. If Grantor shall refuse or fail to provide any such certification in accordance with the provisions of the Agreement and this Deed, Grantor shall, within twenty days after written request by Grantee, provide Grantee with a written statement indicating in adequate detail in what respects Grantee has failed to complete the improvements in accordance with the provisions of the Agreement or is otherwise in default, and what measures or acts will be necessary, in the opinion of Grantor, for Grantee to take or perform in order to obtain such certification. In the event that an Event of Default occurs under the Agreement and Grantee 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 ? e' , 20 u, at Dubuque, Iowa. CITY OF DUBUQUE IOWA By: Roy D.6Buol, Mayor Attest: By: Kevin S. Firnstahl, City Clerk STATE OF IOWA COUNTY OF DUBUQUE On this ,)1 day of , 20 14, 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. SS Notary Publi�' in and for Dubuque County, Iowa 114:401.: x ®iP TRACEY L. STECKLEFN Commission Number 716016 My Comm. Exp. 9 A ki' Y` Prepared by Barry A. Linda, 300 Main St., Ste. 300, Dubuque, IA 52001, 53.589.4113 Return to Kevin S. Firnstahl, 50 W. 131" St., Dubuque, IA 52001, 589-4121 RESOLUTION NO. 91-14 APPROVING A DEVELOPMENT AGREEMENT WITH WILMING INVESTMENTS, LLC AND TRISTATE QUALITY METALS LLC PROVIDING FOR THE SALE OF LOT 3 OF DUBUQUE INDUSTRIAL CENTER SOUTH FIRST ADDITITION IN THE CITY OF DUBUQUE, IOWA Whereas, the City Council, by Resolution No. 63-14, dated March 3, 2014, declared its intent to enter into a Development Agreement with Wilming Investments, LLC and TriState Quality Metals, LLC for the sale of Lot 3 of Dubuque Industrial Center South First Addition (the Property); and Whereas, pursuant to published notice, a public hearing was held on the proposed disposition on March 17, 2014 at 6:30 p.m. in the City Council Chambers at the Historic Federal building, 350 W. 6th Street, Dubuque, Iowa.; and Whereas, it is the determination 'of the Council that approval of the Development Agreement for the sale to and development of the Property by Wilming Investments, LLC and TriState Quality Metals, 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 Development Agreement by and among the City of Dubuque, Wilming Investments, LLC and TriState Quality Metals, LLC, including the sale of Lot 3 of Dubuque Industrial Center South First Addition, 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. 031114ba1 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. 91-14 and corresponding Certificate of Publication 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 25th day of March, 2014. Kevin/S.Firnstahl, CMC, City Clerk 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 17th day of March, 2014. Attest: 441 Kevi S. irnstahl, Cit Jerk a Roy D. 1 ol, Mayor F:\USERS1Econ Dev\TriState Quality Metals120140317 Tristate Quality metals public hearing resolution.doc 031114ba1 IN THE DISTRICT COURT OF IOWA IN AND FOR DUBUQUE COUNTY Certification of Publication See attached Document 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 date(s): Marain 0 1 2_0114 and for which the charge is $ io . ! " Pap Subscribed to before m a Notary Public in and for Dubuque County, Iowa, this ,% day of)4 . ,20,/ MAN', A.-, WESTER 1EYER Commisslor, Number 154E385 My Cdnirn, Exp, FEB. 1, 2017 Notary Pc%lic in and for Dubuque County, I RESOLJTION NO. 63-14 INTENT TO DISPOSE OF AN INTEREST 1N CITY OF DUBUQUE REAL ESTATE PUR- SUANT TO A DEVEL- OPMENT . AGREE- MENT BETWEEN AND AMONG THE CITY OF DUBUQUE, W[LNiING INVESTMENTS, LLC AND TRISTATE QIAL-, ITY METALS, LLC, AND FIXING THE DATE FOR A PUBLIC HEAR- ING OF THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA ON THE PR0 POSED ISSUANCE OF URBANRENEWAL TAX INCREMENT REVENUE GRANT 06 - LIGATIONS AND PRO- VIDING FOR THE PUB- LICATION OF NOTICE THEREOF Whereas, the City of Dubuque;Iowa (City) is the owner of the ifol- lowing real property (the Property); Lot 3 of Dubuque in- dustrial Center South First Addition in the City of Dubuque, Iowa; and Whereas, City and Wilming Investments, LLC and TriState Quali- ty Metals, LLC have'en- tered into a Develop- ment Agreement, sub- ject to the approval of the City Council, pur- suant to which City will convey the Property to Wilming Investments, LLC, and Wilming In- vestments, LLC will construct on the Prop erty certain Improve- ments described in the Development Agree- ment and will lease the Property to TriState Quality Metals, LLC; Whereas, the City Council has tentatively meeting the City coun- cil shall receive oral and/or written objec- tions from any resident or property owner of said City to such pro- posed action. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, 10- WA Section 1. The City of Dubuque intends to dispose of its interest in the foregoing described Property by Deed to Wilming in- vestments, LLC. Section 2. The, City Clerk is hereby author- ized and directed to cause this Resolution and a notice to be pub- lished as prescribed by Iowa Code Section 3647 of a public hear- ing',on the City's intent to dispose of the foregoing -described Property; to be held on the 17th day of March, • 2014 at 6:30 p,m. in the ,City Council Chambers at theBuildingHistoric,350 W. Federal i 6th Street, Dubuque, Iowa. Section 3. The City Council will also meet at said time and place for the purpose of tak- ing;action on the mat- ter of authorizing Ur- ban Renewal Tax Incre- ment ig tions and Revenue the execuobltiona- '( of the Development Agreement relating thereto with Wilming Investments LLC and TriState Quality Met- als LLC, the proceeds of .which obligations will be used to carry out certain of the spe- cial financing activities described In the Urban Renewal Plan for the Dubuque Industrial Center Economic De- velopment District, consisting of the fund - determined that it in g of economic devel- would be'inthe best in- opment grants to terests of City to ap- Wilming Investments, prove the Development LLC or TriState Quality Agreement, including Metals, LLC pursuant the conveyance of the Property to Wilming In- vestments, LLC; and Whereas, the Devel- opment Agreement provides ;for the issu- ance by City of eco- nomic development grants to Wilming In- vestments, LLC or TriState Quality Met- ais, LLC, referred to herein as Urban Re- newal Tax increment Revenue ,Grant Obliga- tions, payable from the tax ncrement reve- nues collected in re - spec Improve- ments t of the1 ments to be construct- ed by Whining Invest- ments LLC in accord- ance with the Develop- ment Agreement, for the purpose of carrying out the objectives of an Urban Renewal Plan( as hereinafter described; and Whereas, before said obligations may be ap proved, Chapter 403 of the Code t of Iowa re- quires that the City Clerk publish a notice. of the proposal and of the time and placeof the meeting at which the City Council pro-, poses to take action thereon and at which to the Development Agreement under the terms and conditions of said Urban Renewal Plan. It is expected that the ;aggregate amount of the Tax In- crement Revenue obli- gations will be approxi- • mately $580,000. Section 4. The City Clerk is•hereby direct- ed • to>cause at least one publication to be made of •a notice of said meeting, in a newspaper, printed • wholly in the. English language, published least once at weekly, and It -laving general circula- tion' in said Cit said ublication to' be not lessthan four days twenty date of City's i the dispos- f th C't 's'interest in the Property and the i. issuance of said obliga- tions. Section 5. That the no- tice of the proposed action shall be in sub- stantially the -form at- tached hereto.'. Passed, approved and adopted this 3rd day of March, 2014. Roy D. Buol, Mayor Attest: Kevin S,' Firnstahl,City Clerk Y, P y nor more thandays before thesaid meetingan ato e iy OFFICIAL. NOTICE NOTICE OF A PUBLIC HEARING OF THE CITY COUNCIL > OF TWE CITY OF DUBU- QUE, IOWA, ON TWE INTENT: TO DISPOSE OF AN INTEREST IN CITY OF:DUBUQUE REAL ESTATE 'PUR- SUANT TO A DEVEL- OPMENT AGREE- MENT 6ETWEEN AND AMONG THE CITY OF DUBUQUE, WILMING INVESTMENTS, ' -LLC AND TRISTATEQUAL- ITY METALS, LLC, AND IN THE MATTER OF THE PROPOSED AUTHORIZATION . OF URBAN( RENEWAL TAX INCREMENT REVENUE OBLIGA- TIONS AND THE EXE- CUTION OF THE DE- VELOPMENT AGREE-. ' MENT' RELATING THERETO WITH WILMING INVEST- MENTS,' LLC AND , TRISTATE QUALITY METALS, LLC PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque, Iowa, will hold a public hearing on the 17th day( of March, 2014, at 6:30 p.m. in the City Council Chambers at the His- toric Federal Building, 350 W. 6th St., Dubu- que, owa, at which meeting the City Coun- cil proposes to take ac- tion on the intent to dispose of an interest in City of Dubuque real estate, Lot 3 of Dubu- que Industrial Center South First Addition in the City of Dubuque, Iowa, pursuant to a De- velopment Agreement between and among the City of Dubuque, Wilming Investments, LLC and Tristate Quali- ;' ty Meas; LLC, antl far the .authorization and execution of the Devel- opment Agreement, and on the issuance of economic' development grants (Urban Renewal Tax Increment Reve- ,nue Grant Obligations) described therein in or- der to carry out purposes ` and objec- tives of the Urban `Re-'. newal Plan for the: Greater Downtown Ur- ban Renewal District, consisting of the fund- ing of economic devel- opment grants to Wilming TYOFDUBUQUE the Greater Downtown LLC or Tristate Quality Metals, LLC, under the terms and conditions of said Development Agreement and the iUr- ban Renewal Plan for Renewal District; The aggregate amount of the Urban Renewal Tax Increment Reve- nue Grant Obligations cannot be determined at the present time, but is not expecte`d_to exceed $580,000. At the meeting, the City Council will re roceive oral and written objectionsfrom esident or' fpropertyany the above action. After al may at this meeting: all objections have been recelved and con- sidered, the City Coon thereof, approve the Devsuch Tax elo, pment Agree- mentand 'incremenauthorize t Revenue Grant Obliga- tions or abandon the proposal. By order:of` the' City Council said hearing and appeals therefrom shall be held In accordance with and'. governed by the provi- sions of Section 403.9 of the Code of Iowa. Any visual or hearing- impaired persons needing special assis- tance or persons with special accessibility needs should contact the `City Clerk's office at (563) 589-4100 or TDD at (563) 690-6678 at least 48 hours prior to the meeting. Published by; order of the° City Council given on the'3rd day of March, 2014. This notice is given by order of the City Coun- cil of the City of Dubu- que, -Iowa, as provided by Chapter 403 of the Code of Iowa. Dated this 7th day of March, 2014. Kevin S. Firnstahl, City Clerk of Dubuque, Iowa lt'3/7 owner of said City to or at any adjournment 1I 11111 iiiii lllIl Illll iiiiiiiiiiiliiiiii iiiiiiiiiiiii1 Doc ID 007961840002 Type GWH Kind GROUNDWATER HAZARD Recorded: 01P4a02:38:30 PM FeeAmt: $0.00 Page 1of Dubuque County Iowa Kathy Flynn Thurlow Recorder File2014-00000375 REAL ESTATE TRANSFER - GROUNDWATER HAZARD STATEMENT TO BE COMPLETED BY TRANSFEROR TRANSFEROR: Name City of Dubuque, Iowa Address 50 West 13th Street Dubuque Iowa 52001 Number and Street or RR City, Town or P.O. State Zip TRANSFEREE: Name Wilming Investments, LLC Address 6183 Glen Eagle Court Asbury Iowa 52002 Number and Street or RR City, Town or P.O. State Zip Address of Property Transferred: 651 Seippel Road Dubuque Iowa 52002 Number and Street or RR City, Town or P.O. State Zip Legal Description of Property: (Attach if necessary) Lot 3 Dubuque Industrial Center South First Addition, in the City of Dubuque, Dubuque County, Iowa 1. Wells (check one) X There are no known wells situated on this property. There is a well or wells situated on this property. The type(s), location(s) and legal status are stated below or set forth on an attached separate sheet, as necessary. 2. Solid Waste Disposal (check one) X There is no known solid waste disposal site on this property. There is a solid waste disposal site on this property and information related thereto is provided in Attachment #1, attached to this document. 3. Hazardous Wastes (check one) X There is no known hazardous waste on this property. There is hazardous waste on this property and information related thereto is provided in Attachment #1, attached to this document. 4. Underground Storage Tanks (check one) X There are no known underground storage tanks on this property. (Note exclusions such as small farm and residential motor fuel tanks, most heating oil tanks, cisterns and septic tanks, in instructions.) There is an underground storage tank on this property. The type(s), size(s) and any known substance(s) contained are listed below or on an attached separate sheet, as necessary. FILE WITH RECORDER DNR form 542-0960 (July 18, 2012) 5. Private Burial Site (check one) X There are no known private burial sites on this property. There is a private burial site on this property. The location(s) of the site(s) and known identifying information of the decedent(s) is stated below or on an attached separate sheet, as necessary. 6. Private Sewage Disposal System (check one) All buildings on this property are served by a public or semi-public sewage disposal system. X This transaction does not involve the transfer of any building which has or is required by law to have a sewage disposal system. ® There is a building served by private sewage disposal system on this property or a building without any lawful sewage disposal system. A certified inspector's report is attached which documents the condition of the private sewage disposal system and whether any modifications are required to conform to standards adopted by the Department of Natural Resources. A certified inspection report must be accompanied by this form when recording. _ There is a building served by private sewage disposal system on this property. Weather or other temporary physical conditions prevent the certified inspection of the private sewage disposal system from being conducted. The buyer has executed a binding acknowledgment with the county board of health to conduct a certified inspection of the private sewage disposal system at the earliest practicable time and to be responsible for any required modifications to the private sewage disposal system as identified by the certified inspection. A copy of the binding acknowledgment is attached to this form. ® There is a building served by private sewage disposal system on this property. The buyer has executed a binding acknowledgment with the county board of health to install a new private sewage disposal system on this property within an agreed upon time period. A copy of the binding acknowledgment is provided with this form. ® There is a building served by private sewage disposal system on this property. The building to which the sewage disposal system is connected will be demolished without being occupied. The buyer has executed a binding acknowledgment with the county board of health to demolish the building within an agreed upon time period. A copy of the binding acknowledgment is provided with this form. [Exemption #9] _ This property is exempt from the private sewage disposal inspection requirements pursuant to the following exemption [Note: for exemption #9 use prior check box]: The private sewage disposal system has been installed within the past two years pursuant to permit number Information required by statements checked above should be provided here or on separate sheets attached hereto: I HEREBY DECLARE THAT I HAVE REVIEWED THE INSTRUCTIONS FOR THIS FORM AND THAT=THE INFORMATION STATED ABOVE IS TRUE AND CORRECT. F. Signature: (Transferor or Agent) Telephone No.: FILE WITH RECORDER DNR form 542-0960 (July 18, 2012) 11111111111111 iii 1111111111111111111111111111111111111111111111111111111 ilii 1111 Doc ID: 007961850010 Type: GEN Kind: MORTGAGE FeeoAmt: $52.00 Pape 1tof2108'49 PM Dubuque County Iowa Kathy Flynn Thurlow Recorder File2014-00003091 State of Iowa Space Above This Line For Recording Data Prepared By: JULIE JACKSON PREMIER BANK 2625 NORTHWEST ARTERIAL, DUBUQUE, IA 52002 (563) 588-1000 Return To: PREMIER BANK 1975 JOHN F. KENNEDY ROAD DUBUQUE, IA 52002 OPEN-END REAL ESTATE MORTGAGE (With Future Advance Clause) 1. DATE AND PARTIES. The date of this Mortgage is04-01-2014 and the parties and their addresses are as follows: MORTGAGOR: WILMING INVESTMENTS, LLC. 6186 GLEN EAGLE CT ASBURY, IA 52002-9345 ❑ Refer to the Addendum which is attached and incorporated herein for additional Mortgagors. The Addendum is located on LENDER: PREMIER BANK 2625 NORTHWEST ARTERIAL DUBUQUE, IA 52002 2. MORTGAGE. For good and valuable consideration, the receipt and sufficiency of which is acknowledged, and to secure the Secured Debt (hereafter defined), Mortgagor grants, bargains, warrants, conveys and mortgages to Lender the following described property: (If the legal description of the property is not on page one of this Mortgage, it is located on LOT THREE (3) OF FINAL PLAT OF DUBUQUE INDUSTRIAL CENTER SOUTH FIRST ADDITION IN THE CITY OF DUBUQUE, IOWA, ACCORDING TO THE RECORDED PLAT THEREOF, SUBJECT TO EASEMENTS OF RECORD. IOWA - AGRICULTURAL/COMMERCIALREAL ESTATE SECURITY INSTRUMENT (page 1 of 9) (NOT FOR FNMA, FHLMC, FHA OR VA USE, AND NOT FOR CONSUMER PURPOSES) Pef ® ©1993, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-RESI-IA 10/24/2005 The property is located in DUBUQUE at 651 SEIPPEL RD (County) , DUBUQUE , Iowa 52003 (Address) (City) (Zip Code) Together with all rights, easements, appurtenances, royalties, mineral rights, oil and gas rights, crops, timber, all diversion payments or third party payments made to crop producers, and all existing and future improvements, structures, fixtures, and replacements that may now, or at any time in the future, be part of the real estate described above (all referred to as "Property"). The term Property also includes, but is not limited to, any and all water wells, water, ditches, reservoirs, reservoir sites and dams located on the real estate and all riparian and water rights associated with the Property, however established. NOTICE: THIS MORTGAGE SECURES CREDIT IN THE AMOUNT OF $ 1,877,155.00 LOANS AND ADVANCES UP TO THIS AMOUNT, TOGETHER WITH INTEREST, ARE SENIOR TO INDEBTEDNESS TO OTHER CREDITORS UNDER SUBSEQUENTLY RECORDED OR FILED MORTGAGES AND LIENS. 3. MAXIMUM OBLIGATION LIMIT. The total principal amount of the Secured Debt (hereafter defined) secured by this Mortgage at any one time shall not exceed the amount stated above. This limitation of amount does not include interest, loan charges, commitment fees, brokerage commissions, attorneys' fees and other charges validly made pursuant to this Mortgage and does not apply to advances (or interest accrued on such advances) made under the terms of this Mortgage to protect Lender's security and to perform any of the covenants contained in this Mortgage. Future advances are contemplated and, along with other future obligations, are secured by this Mortgage even though all or part may not yet be advanced. Nothing in this Mortgage, however, shall constitute a commitment to make additional or future loans or advances in any amount. Any such commitment would need to be agreed to in a separate writing. 4. SECURED DEBT DEFINED. The term "Secured Debt" includes, but is not limited to, the following: A. The promissory note(s), contract(s), guaranty(ies) or other evidence of debt described below and all extensions, renewals, modifications or substitutions (Evidence of Debt) (e,g., borrower's name, note amount, interest rate, maturity date): MORTGAGE ON PROPERTY LOCATED AT 651 SEIPPEL RD DUBUQUE, IA 52003 USED AS COLLATERAL ON A NOTE WITH AN ORIGINAL DATE OF 4-1-2014. B. All future advances from Lender to Mortgagor or other future obligations of Mortgagor to Lender under any promissory note, contract, guaranty, or other evidence of debt existing now or executed after this Mortgage whether or not this Mortgage is specifically referred to in the evidence of debt and whether or not such future advances or obligations are incurred for any purpose that was related or unrelated to the purpose of the Evidence of Debt, C. All obligations Mortgagor owes to Lender, which now exist or may later arise, to the extent not prohibited by law, including, but not limited to, liabilities for overdrafts relating to any deposit account agreement between Mortgagor and Lender. D. All additional sums advanced and expenses incurred by Lender for insuring, preserving or otherwise protecting the Property and its value and any other sums advanced and expenses incurred by Lender under the terms of this Mortgage, plus interest at the highest rate in effect, from time to time, as provided in the Evidence of Debt. E. Mortgagor's performance under the terms of any instrument evidencing a debt by Mortgagor to Lender and any Mortgage securing, guarantying, or otherwise relating to the debt. If more than one person signs this Mortgage as Mortgagor, each Mortgagor agrees that this Mortgage will secure all future advances and future obligations described above that are given to or incurred by any one or more Mortgagor, or any one or more Mortgagor and others. This Mortgage will not secure any other debt if Lender fails, with respect to such other debt, to make any required disclosure about this Mortgage or if Lender fails to give any required notice of the right of rescission. 5. PAYMENTS. Mortgagor agrees to make all payments on the Secured Debt when due and in accordance with the terms of the Evidence of Debt or this Mortgage. 6. WARRANTY OF TITLE. Mortgagor covenants that Mortgagor is lawfully seized of the estate conveyed by this Mortgage and has the right to grant, bargain, warrant, convey, sell, and mortgage the Property and warrants that the Property is unencumbered, except for encumbrances of record. 7. CLAIMS AGAINST TITLE. Mortgagor will pay all taxes, assessments, liens, encumbrances, lease payments, ground rents, utilities, and other charges relating to the Property when due. Lender may require Mortgagor to provide to Lender copies of all notices that such amounts are due and the (page 2 of 9) ® ©1993, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-RESI-IA 10/24/2005 receipts evidencing Mortgagor's payment. Mortgagor will defend title to the Property against any claims that would impair the lien of this Mortgage. Mortgagor agrees to assign to Lender, as requested by Lender, any rights, claims or defenses which Mortgagor may have against parties who supply labor or materials to improve or maintain the Property. 8. PRIOR SECURITY INTERESTS. With regard to any other mortgage, deed of trust, security agreement or other lien document that created a prior security interest or encumbrance on the Property and that may have priority over this Mortgage, Mortgagor agrees: A. To make all payments when due and to perform or comply with all covenants. B. To promptly deliver to Lender any notices that Mortgagor receives from the holder. C. Not to make or permit any modification or extension of, and not to request or accept any future advances under any note or agreement secured by, the other mortgage, deed of trust or security agreement unless Lender consents in writing. 9. DUE ON SALE OR ENCUMBRANCE. Lender may, at its option, declare the entire balance of the Secured Debt to be immediately due and payable upon the creation of any lien, encumbrance, transfer, or sale, or contract for any of these on the Property. However, if the Property includes Mortgagor's residence, this section shall be subject to the restrictions imposed by federal law (12 C.F.R. 591), as applicable. For the purposes of this section, the term "Property" also includes any interest to all or any part of the Property. This covenant shall run with the Property and shall remain in effect until the Secured Debt is paid in full and this Mortgage is released. 10. TRANSFER OF AN INTEREST IN THE MORTGAGOR. If Mortgagor is an entity other than a natural person (such as a corporation or other organization), Lender may demand immediate payment if (1) a beneficial interest in Mortgagor is sold or transferred; (2) there is a change in either the identity or number of members of a partnership or similar entity; or (3) there is a change in ownership of more than 25 percent of the voting stock of a corporation or similar entity. However, Lender may not demand payment in the above situations if it is prohibited by law as of the date of this Mortgage. 11. ENTITY WARRANTIES AND REPRESENTATIONS. If Mortgagor is an entity other than a natural person (such as a corporation or other organization), Mortgagor makes to Lender the following warranties and representations which shall be continuing as long as the Secured Debt remains outstanding: A. Mortgagor is an entity which is duly organized and validly existing in the Mortgagor's state of incorporation (or organization). Mortgagor is in good standing in all states in which Mortgagor transacts business. Mortgagor has the power and authority to own the Property and to carry on its business as now being conducted and, as applicable, is qualified to do so in each state in which Mortgagor operates. B. The execution, delivery and performance of this Mortgage by Mortgagor and the obligation evidenced by the Evidence of Debt are within the power of Mortgagor, have been duly authorized, have received all necessary governmental approval, and will not violate any provision of law, or order of court or governmental agency. C. Other than disclosed in writing Mortgagor has not changed its name within the last ten years and has not used any other trade or fictitious name. Without Lender's prior written consent, Mortgagor does not and will not use any other name and will preserve its existing name, trade names and franchises until the Secured Debt is satisfied. 12. PROPERTY CONDITION, ALTERATIONS AND INSPECTION. Mortgagor will keep the Property in good condition and make all repairs that are reasonably necessary. Mortgagor will give Lender prompt notice of any loss or damage to the Property. Mortgagor will keep the Property free of noxious weeds and grasses. Mortgagor will not initiate, join in or consent to any change in any private restrictive covenant, zoning ordinance or other public or private restriction limiting or defining the uses which may be made of the Property or any part of the Property, without Lender's prior written consent. Mortgagor will notify Lender of all demands, proceedings, claims, and actions against Mortgagor or any other owner made under law or regulation regarding use, ownership and occupancy of the Property. Mortgagor will comply with all legal requirements and restrictions, whether public or private, with respect to the use of the Property. Mortgagor also agrees that the nature of the occupancy and use will not change without Lender's prior written consent. No portion of the Property will be removed, demolished or materially altered without Lender's prior written consent except that Mortgagor has the right to remove items of personal property comprising a part of the Property that become worn or obsolete, provided that such personal property is replaced with other personal property at least equal in value to the replaced personal property, free from any title retention device, security agreement or other encumbrance. Such replacement of personal property will be deemed subject to the security interest created by this Mortgage. Mortgagor shall not partition or subdivide the Property without Lender's prior written consent. Lender or Lender's agents may, at Lender's option, enter the Property at any reasonable time for the purpose of inspecting the Property. Any inspection of the Property shall be entirely for Lender's benefit and Mortgagor will in no way rely on Lender's inspection. 13. AUTHORITY TO PERFORM. If Mortgagor fails to perform any of Mortgagor's duties under this Mortgage, or any other mortgage, deed of trust, security agreement or other lien document that has priority over this Mortgage, Lender may, without notice, perform the duties or cause them to be performed. Mortgagor appoints Lender as attorney in fact to sign Mortgagor's name or pay any (page 3 of 9) ® ©1993, 2001 Bankeis Systems, Inc., St. Cloud, MN Form AGCO-RESI-IA 10/24/2005 amount necessary for performance. If any construction on the Property is discontinued or not carried on in a reasonable manner, Lender may do whatever is necessary to protect Lender's security interest in the Property. This may include completing the construction. Lender's right to perform for Mortgagor shall not create an obligation to perform, and Lender's failure to perform will not preclude Lender from exercising any of Lender's other rights under the law or this Mortgage. Any amounts paid by Lender for insuring, preserving or otherwise protecting the Property and Lender's security interest will be due on demand and will bear interest from the date of the payment until paid in full at the interest rate in effect from time to time according to the terms of the Evidence of Debt. 14. ASSIGNMENT OF LEASES AND RENTS. Mortgagor assigns, grants, bargains, warrants, conveys and mortgages to Lender as additional security all the right, title and interest in the following (Property). A. Existing or future leases, subleases, licenses, guaranties and any other written or verbal agreements for the use and occupancy of the Property, including but not limited to, any extensions, renewals, modifications or replacements (Leases). B. Rents, issues and profits, including but not limited to, security deposits, minimum rents, percentage rents, additional rents, common area maintenance charges, parking charges, real estate taxes, other applicable taxes, insurance premium contributions, liquidated damages following default, cancellation premiums, "loss of rents" insurance, guest receipts, revenues, royalties, proceeds, bonuses, accounts, contract rights, general intangibles, and all rights and claims which Mortgagor may have that in any way pertain to or are on account of the use or occupancy of the whole or any part of the Property (Rents). In the event any item listed as Leases or Rents is determined to be personal property, this Assignment will also be regarded as a security agreement. Mortgagor will promptly provide Lender with copies of the Leases and will certify these Leases are true and correct copies. The existing Leases will be provided on execution of the Assignment, and all future Leases and any other information with respect to these Leases will be provided immediately after they are executed, Mortgagor may collect, receive, enjoy and use the Rents so long as Mortgagor is not in default, Mortgagor will not collect in advance any Rents due in future lease periods, unless Mortgagor first obtains Lender's written consent. Upon default, Mortgagor will receive any Rents in trust for Lender and Mortgagor will not commingle the Rents with any other funds. When Lender so directs, Mortgagor will endorse and deliver any payments of Rents from the Property to Lender. Amounts collected will be applied at Lender's discretion to the Secured Debts, the costs of managing, protecting and preserving the Property, and other necessary expenses. Mortgagor agrees that this Security Instrument is immediately effective between Mortgagor and Lender and effective as to third parties on the recording of this Assignment. This Security Instrument will remain effective during any statutory redemption period until the Secured Debts are satisfied. As long as this Assignment is in effect, Mortgagor warrants and represents that no default exists under the Leases, and the parties subject to the Leases have not violated any applicable law on leases, licenses and landlords and tenants. Mortgagor, at its sole cost and expense, will keep, observe and perform, and require all other parties to the Leases to comply with the Leases and any applicable law. If Mortgagor or any party to the Lease defaults or fails to observe any applicable law, Mortgagor will promptly notify Lender. If Mortgagor neglects or refuses to enforce compliance with the terms of the Leases, then Lender may, at Lender's option, enforce compliance. Mortgagor will not sublet, modify, extend, cancel, or otherwise alter the Leases, or accept the surrender of the Property covered by the Leases (unless the Leases so require) without Lender's consent, Mortgagor will not assign, compromise, subordinate or encumber the Leases and Rents without Lender's prior written consent, Lender does not assume or become liable for the Property's maintenance, depreciation, or other losses or damages when Lender acts to manage, protect or preserve the Property, except for losses and damages due to Lender's gross negligence or intentional torts. Otherwise, Mortgagor will indemnify Lender and hold Lender harmless for all liability, loss or damage that Lender may incur when Lender opts to exercise any of its remedies against any party obligated under the Leases, 15. CONDOMINIUMS; PLANNED UNIT DEVELOPMENTS. If the Property includes a unit in a condominium or a planned unit development, Mortgagor will perform all of Mortgagor's duties under the covenants, by-laws, or regulations of the condominium or planned unit development. 16. DEFAULT. Mortgagor will be in default if any of the following occur: A. Any party obligated on the Secured Debt fails to make payment when due; B. A breach of any term or covenant in this Mortgage, any prior mortgage or any construction loan agreement, security agreement or any other document evidencing, guarantying, securing or otherwise relating to the Secured Debt; C. The making or furnishing of any verbal or written representation, statement or warranty to Lender that is false or incorrect in any material respect by Mortgagor or any person or entity obligated on the Secured Debt; D. The death, dissolution, or insolvency of, appointment of a receiver for, or application of any debtor relief law to, Mortgagor or any person or entity obligated on the Secured Debt; (page 4 of 9) E, -g- ® ©1993, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-RESI-IA 10/24/2005 E. A good faith belief by Lender at any time that Lender is insecure with respect to any person or entity obligated on the Secured Debt or that the prospect of any payment is impaired or the value of the Property is impaired; F. A material adverse change in Mortgagor's business including ownership, management, and financial conditions, which Lender in its opinion believes impairs the value of the Property or repayment of the Secured Debt; or G. Any loan proceeds are used for a purpose that will contribute to excessive erosion of highly erodible land or to the conversion of wetlands to produce an agricultural commodity, as further explained in 7 C.F.R. Part 1940, Subpart G, Exhibit M. 17. REMEDIES ON DEFAULT. In some instances, federal and state law will require Lender to provide Mortgagor with notice of the right to cure, mediation notices or other notices and may establish time schedules for foreclosure actions. Subject to these limitations, if any, Lender may accelerate the Secured Debt and foreclose this Mortgage in a manner provided by law if this Mortgagor is in default. Upon a default by the Mortgagor, the Lender may take possession of the Property itself or through a court appointed receiver, without regard to the solvency or insolvency of the Mortgagor, the value of the Property, the adequacy of the Lender's security, or the existence of any deficiency judgment, and may operate the Property and collect the rents and apply them to the costs of operating the Property and/or to the unpaid debt. At the option of Lender, all or any part of the agreed fees and charges, accrued interest and principal shall become immediately due and payable, after giving notice if required by law, upon the occurrence of a default or anytime thereafter. In addition, Lender shall be entitled to all the remedies provided by law, the Evidence of Debt, other evidences of debt, this Mortgage and any related documents. All remedies are distinct, cumulative and not exclusive, and the Lender is entitled to all remedies provided at law or equity, whether expressly set forth or not. The acceptance by Lender of any sum in payment or partial payment on the Secured Debt after the balance is due or is accelerated or after foreclosure proceedings are filed shall not constitute a waiver of Lender's right to require full and complete cure of any existing default, By not exercising any remedy on Mortgagor's default, Lender does not waive Lender's right to later consider the event a default if it continues or happens again. 18. REDEMPTION. Mortgagor agrees that in the event of foreclosure of this Mortgage, at the sole discretion of Lender, Lender may elect to reduce or extend the period of redemption for the sale of the Property to a period of time as may then be authorized under the circumstances and under any section of Iowa Code Chapter 628, or any other Iowa Code section, now in effect or as may be in effect at the time of foreclosure. 19. EXPENSES; ADVANCES ON COVENANTS; ATTORNEYS' FEES; COLLECTION COSTS. Except when prohibited by law, Mortgagor agrees to pay all of Lender's expenses if Mortgagor breaches any covenant in this Mortgage. Mortgagor will also pay on demand all of Lender's expenses incurred in collecting, insuring, preserving or protecting the Property or in any inventories, audits, inspections or other examination by Lender in respect to the Property. Mortgagor agrees to pay all costs and expenses incurred by Lender in enforcing or protecting Lender's rights and remedies under this Mortgage, including, but not limited to, attorneys' fees, court costs, and other legal expenses. Once the Secured Debt is fully and finally paid, Lender agrees to release this Mortgage and Mortgagor agrees to pay for any recordation costs. All such amounts are due on demand and will bear interest from the time of the advance at the highest rate in effect, from time to time, as provided in the Evidence of Debt and as permitted by law. 20. ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES. As used in this section, (1) "Environmental Law" means, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, 42 U.S.C. 9601 et seq.), all other federal, state and local laws, regulations, ordinances, court orders, attorney general opinions or interpretive letters concerning the public health, safety, welfare, environment or a hazardous substance; and (2) "Hazardous Substance" means any toxic, radioactive or hazardous material, waste, pollutant or contaminant which has characteristics which render the substance dangerous or potentially dangerous to the public health, safety, welfare or environment. The term includes, without limitation, any substances defined as "hazardous material," "toxic substances," "hazardous waste" or "hazardous substance" under any Environmental Law. Mortgagor represents, warrants and agrees that, except as previously disclosed and acknowledged in writing: A. No Hazardous Substance has been, is, or will be located, transported, manufactured, treated, refined, or handled by any person on, under or about the Property, except in the ordinary course of business and in strict compliance with all applicable Environmental Law. B. Mortgagor has not and will not cause, contribute to, or permit the release of any Hazardous Substance on the Property. C. Mortgagor will immediately notify Lender if (1) a release or threatened release of Hazardous Substance occurs on, under or about the Property or migrates or threatens to migrate from nearby property; or (2) there is a violation of any Environmental Law concerning the Property. In such an event, Mortgagor will take all necessary remedial action in accordance with Environmental Law. (page 5 of 9) ® ©1993, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-RESI-IA 10/24/2005 D. Mortgagor has no knowledge of or reason to believe there is any pending or threatened investigation, claim, or proceeding of any kind relating to (1) any Hazardous Substance located on, under or about the Property; or (2) any violation by Mortgagor or any tenant of any Environmental Law. Mortgagor will immediately notify Lender in writing as soon as Mortgagor has reason to believe there is any such pending or threatened investigation, claim, or proceeding. In such an event, Lender has the right, but not the obligation, to participate in any such proceeding including the right to receive copies of any documents relating to such proceedings. E. Mortgagor and every tenant have been, are and shall remain in full compliance with any applicable Environmental Law. F. There are no underground storage tanks, private dumps or open wells located on or under the Property and no such tank, dump or well will be added unless Lender first consents in writing. G. Mortgagor will regularly inspect the Property, monitor the activities and operations on the Property, and confirm that all permits, licenses or approvals required by any applicable Environmental Law are obtained and complied with. H. Mortgagor will permit, or cause any tenant to permit, Lender or Lender's agent to enter and inspect the Property and review all records at any reasonable time to determine (1) the existence, location and nature of any Hazardous Substance on, under or about the Property; (2) the existence, location, nature, and magnitude of any Hazardous Substance that has been released on, under or about the Property; or (3) whether or not Mortgagor and any tenant are in compliance with applicable Environmental Law. I. Upon Lender's request and at any time, Mortgagor agrees, at Mortgagor's expense, to engage a qualified environmental engineer to prepare an environmental audit of the Property and to submit the results of such audit to Lender. The choice of the environmental engineer who will perform such audit is subject to Lender's approval. J, Lender has the right, but not the obligation, to perform any of Mortgagor's obligations under this section at Mortgagor's expense, K. As a consequence of any breach of any representation, warranty or promise made in this section, (1) Mortgagor will indemnify and hold Lender and Lender's successors or assigns harmless from and against all losses, claims, demands, liabilities, damages, cleanup, response and remediation costs, penalties and expenses, including without limitation all costs of litigation and attorneys' fees, which Lender and Lender's successors or assigns may sustain; and (2) at Lender's discretion, Lender may release this Mortgage and in return Mortgagor will provide Lender with collateral of at least equal value to the Property secured by this Mortgage without prejudice to any of Lender's rights under this Mortgage, L. Notwithstanding any of the language contained in this Mortgage to the contrary, the terms of this section shall survive any foreclosure or satisfaction of this Mortgage regardless of any passage of title to Lender or any disposition by Lender of any or all of the Property. Any claims and defenses to the contrary are hereby waived. 21. CONDEMNATION. Mortgagor will give Lender prompt notice of any action, real or threatened, by private or public entities to purchase or take any or all of the Property, including any easements, through condemnation, eminent domain, or any other means, Mortgagor further agrees to notify Lender of any proceedings instituted for the establishment of any sewer, water, conservation, ditch, drainage, or other district relating to or binding upon the Property or any part of it, Mortgagor authorizes Lender to intervene in Mortgagor's name in any of the above described actions or claims and to collect and receive all sums resulting from the action or claim, Mortgagor assigns to Lender the proceeds of any award or claim for damages connected with a condemnation or other taking of all or any part of the Property. Such proceeds shall be considered payments and will be applied as provided in this Mortgage. This assignment of proceeds is subject to the terms of any prior mortgage, deed of trust, security agreement or other lien document. 22. INSURANCE. Mortgagor agrees to maintain insurance as follows: A. Mortgagor shall keep the improvements now existing or hereafter built on the Property insured against loss by fire, hazards included within the term "extended coverage" and any other hazards, including floods or flooding, for which Lender requires insurance. This insurance shall be maintained in the amounts and for the periods that Lender requires. What Lender requires pursuant to the preceding two sentences can change during the term of the Secured Debt. The insurance carrier providing the insurance shall be chosen by Mortgagor subject to Lender's approval, which shall not be unreasonably withheld. If Mortgagor fails to maintain the coverage described above, Lender may, at Lender's option, obtain coverage to protect Lender's rights in the Property according to the terms of this Mortgage. All insurance policies and renewals shall be acceptable to Lender and shall include a standard "mortgage clause" and, where applicable, "lender loss payee clause." Mortgagor shall immediately notify Lender of cancellation or termination of the insurance. Lender shall have the right to hold the policies and renewals. If Lender requires, Mortgagor shall immediately give to Lender all receipts of paid premiums and renewal notices. Upon loss, Mortgagor shall give immediate notice to the insurance carrier and Lender. Lender may make proof of loss if not made immediately by Mortgagor. (page 6 of 9) E,0-„,® ©1993, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-RESI-IA 10/24/2005 Unless Lender and Mortgagor otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the Property damaged if the restoration or repair is economically feasible and Lender's security is not lessened. If the restoration or repair is not economically feasible or Lender's security would be lessened, the insurance proceeds shall be applied to the Secured Debt, whether or not then due, with any excess paid to Mortgagor. If Mortgagor abandons the Property, or does not answer within 30 days a notice from Lender that the insurance carrier has offered to settle a claim, then Lender may collect the insurance proceeds. Lender may use the proceeds to repair or restore the Property or to pay the Secured Debt whether or not then due. The 30 -day period will begin when the notice is given. Unless Lender and Mortgagor otherwise agree in writing, any application of proceeds to principal shall not extend or postpone the due date of scheduled payments or change the amount of the payments. If the Property is acquired by Lender, Mortgagor's right to any insurance policies and proceeds resulting from damage to the Property before the acquisition shall pass to Lender to the extent of the Secured Debt immediately before the acquisition, B. Mortgagor agrees to maintain comprehensive general liability insurance naming Lender as an additional insured in an amount acceptable to Lender, insuring against claims arising from any accident or occurrence in or on the Property. C. Mortgagor agrees to maintain rental loss or business interruption insurance, as required by Lender, in an amount equal to at least coverage of one year's debt service, and required escrow account deposits (if agreed to separately in writing), under a form of policy acceptable to Lender. 23. NO ESCROW FOR TAXES AND INSURANCE. Unless otherwise provided in a separate agreement, Mortgagor will not be required to pay to Lender funds for taxes and insurance in escrow. 24. FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Mortgagor will provide to Lender upon request, any financial statement or information Lender may deem necessary. Mortgagor warrants that all financial statements and information Mortgagor provides to Lender are, or will be, accurate, correct, and complete. Mortgagor agrees to sign, deliver, and file as Lender may reasonably request any additional documents or certifications that Lender may consider necessary to perfect, continue, and preserve Mortgagor's obligations under this Mortgage and Lender's lien status on the Property. If Mortgagor fails to do so, Lender may sign, deliver, and file such documents or certificates in Mortgagor's name and Mortgagor hereby irrevocably appoints Lender or Lender's agent as attorney in fact to do the things necessary to comply with this section. 25. JOINT AND INDIVIDUAL LIABILITY; CO-SIGNERS; SUCCESSORS AND ASSIGNS BOUND. All duties under this Mortgage are joint and individual. If Mortgagor signs this Mortgage but does not sign the Evidence of Debt, Mortgagor does so only to mortgage Mortgagor's interest in the Property to secure payment of the Secured Debt and Mortgagor does not agree to be personally liable on the Secured Debt. Mortgagor agrees that Lender and any party to this Mortgage may extend, modify or make any change in the terms of this Mortgage or the Evidence of Debt without Mortgagor's consent, Such a change will not release Mortgagor from the terms of this Mortgage. The duties and benefits of this Mortgage shall bind and benefit the successors and assigns of Mortgagor and Lender. If this Mortgage secures a guaranty between Lender and Mortgagor and does not directly secure the obligation which is guarantied, Mortgagor agrees to waive any rights that may prevent Lender from bringing any action or claim against Mortgagor or any party indebted under the obligation including, but not limited to, anti -deficiency or one -action laws. 26. APPLICABLE LAW; SEVERABILITY; INTERPRETATION. This Mortgage is governed by the laws of the jurisdiction in which Lender is located, except to the extent otherwise required by the laws of the jurisdiction where the Property is located. This Mortgage is complete and fully integrated. This Mortgage may not be amended or modified by oral agreement. Any section or clause in this Mortgage, attachments, or any agreement related to the Secured Debt that conflicts with applicable law will not be effective, unless that law expressly or impliedly permits the variations by written agreement. If any section or clause of this Mortgage cannot be enforced according to its terms, that section or clause will be severed and will not affect the enforceability of the remainder of this Mortgage. Whenever used, the singular shall include the plural and the plural the singular. The captions and headings of the sections of this Mortgage are for convenience only and are not to be used to interpret or define the terms of this Mortgage. Time is of the essence in this Mortgage. 27. NOTICE. Unless otherwise required by law, any notice shall be given by delivering it or by mailing it by first class mail to the appropriate party's address on page 1 of this Mortgage, or to any other address designated in writing. Notice to one mortgagor will be deemed to be notice to all mortgagors. 28. WAIVERS. Except to the extent prohibited by law, Mortgagor waives any rights relating to reinstatement, the marshalling of liens and assets, all rights of dower and distributive share and all homestead exemption rights relating to the Property. 29. U.C.C. PROVISIONS. If checked, the following are applicable to, but do not limit, this Mortgage: 11 Construction Loan. This Mortgage secures an obligation incurred for the construction of an improvement on the Property. ❑ Fixture Filing. Mortgagor grants to Lender a security interest in all goods that Mortgagor owns now or in the future and that are or will become fixtures related to the Property. (page 7 of 9) E,(0-.0 ©1993, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-RESI-IA 10/24/2005 ❑ Crops; Timber; Minerals; Rents, Issues and Profits. Mortgagor grants to Lender a security interest in all crops, timber and minerals located on the Property as well as all rents, issues and profits of them including, but not limited to, all Conservation Reserve Program (CRP) and Payment in Kind (PIK) payments and similar governmental programs (all of which shall also be included in the term "Property"). ❑ Personal Property. Mortgagor grants to Lender a security interest in all personal property located on or connected with the Property. This security interest includes all farm products, inventory, equipment, accounts, documents, instruments, chattel paper, general intangibles, and all other items of personal property Mortgagor owns now or in the future and that are used or useful in the construction, ownership, operation, management, or maintenance of the Property. The term "personal property" specifically excludes that property described as "household goods" secured in connection with a "consumer" loan as those terms are defined in applicable federal regulations governing unfair and deceptive credit practices. O Filing As Financing Statement. Mortgagor agrees and acknowledges that this Mortgage also suffices as a financing statement and as such, may be filed of record as a financing statement for purposes of Article 9 of the Uniform Commercial Code. A carbon, photographic, image or other reproduction of this Mortgage is sufficient as a financing statement. 30. OTHER TERMS. If checked, the following are applicable to this Mortgage: /:1 Purchase Money Mortgage. This is a purchase money mortgage as defined by Iowa law. O Line of Credit. The Secured Debt includes a revolving line of credit provision. Although the Secured Debt may be reduced to a zero balance, this Mortgage will remain in effect until released. O Agricultural Property. Mortgagor covenants and warrants that the Property will be used principally for agricultural or farming purposes and that Mortgagor is an individual or entity allowed to own agricultural land as specified by law. O Separate Assignment. The Mortgagor has executed or will execute a separate assignment of leases and rents. If the separate assignment of leases and rents is properly executed and recorded, then the separate assignment will supersede this Security Instrument's "Assignment of Leases and Rents" section. Additional Terms. 111 SEE ADDENDUM SIGNATURES: By signing below, Mortgagor agrees to the terms and covenants contained in this Mortgage and in any attachments. Mortgagor also acknowledges receipt of a copy of this Mortgage on the date stated above on Page 1. 0 Actual authority was granted to the parties signing below by resolution signed and dated Entity Name:WILMING INVESTMENTS, LLC. (SignatureIGAW ILP 'I G, M /1BER (Date) (Signature) (Date) (Signature) (Date) (Signature) (Date) (page 8 of 9) ® ©1993, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-RESI-IA 10/24/2005 ACKNOWLEDGMENT: STATE OF , COUNTY OF ) ss. (Individual) On this day of before me, a Notary Public in the state of Iowa, personally appeared (Business or Entity Acknowl- edgment) to me known to be the person(s) named in and who executed the foregoing instrument, and acknowledged that executed the same as voluntary act and deed. My commission expires: (Notary Public) STATE OF IOWA , COUNTY OF DUBUQUE On this 1ST day of APRIL, 2014 state of Iowa, personally appeared GARY WILMING } ss. before me, a Notary Public in the to me personally known, who being by me duly sworn or affirmed did say that that person is MEMBER of said entity, that (the seal affixed to said instrument is the seal of said entity or no seal has been procured by said entity) and that said instrument was signed and sealed, if applicable, on behalf of the said entity by authority of its board of directors/partners/members and the said MEMBER acknowledged the execution of said instrument to be the voluntary act and deed of said entity by it voluntarily executed. My commission expires: (Notary Public) COTT A DALSING INalT (In the following statement "I" means the Mortgagor.) I understand that homestead property is in many cases protected from the claims of creditors and exempt from judicial sale; and that by signing this contract, 1 voluntarily give up my rights to this protection for this property with respect to claims based upon this contract. (Signature) (Date) (Signature) (Date) (page 9 of 9) ©1993, 2001 Bankers Systems, Inc., St. Cloud, MN Form AGCO-RESI-IA 10/24/2005 ADDENDUM A IF ADVANCES ARE MADE TO BORROWER UNDER PARAGRAPH 4 HEREIN OR IF THE OBLIGATIONS ARE RENEWED, EX'T'ENDED, MODIFIED OR REFINANCED, THE FINAL MATURITY DATE OF THIS MORTGAGE SHALL BE 12/31/2034. THIS PROVISION SHALL NOT OBLIGATE THE LENDER TO MAKE ANY ADDITIONAL LOANS OR FUTURE ADVANCES IN ANY AMOUNT, NOR TO RENEW, EXTEND, MODIFY OR REFINANCE ANY OF THE OBLIGATIONS,