coralville von maur work letter

8/4/2019 Coralville Von Maur Work Letter

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VonMaurWL.2.docx

VON-MAUR/IOWA RIVER LANDING

WORK LETTER

THIS WORK LETTER AGREEMENT (Work Letter) is entered into as of this ____day of ___________, 2011, by and between THE CITY OF CORALVILLE, IOWA, an Iowamunicipal corporation (Developer) and VON MAUR, INC., an Illinois corporation (VonMaur).

R e c i t a l s :

A. OLIVERMcMILLAN _____________, Inc. a [California] corporation (OM)and Von Maur have entered into a Purchase and Sale Agreement (the Purchase Agreement)dated as of _______, 2011, covering certain premises (the Premises) more particularly

described therein. Capitalized terms not defined in this Work Letter shall have the meaningsgiven to such terms in the Purchase Agreement.

B. OM and Developer have also entered into that certain Anchor Retail AreaDevelopment Agreement dated as of ____________, 2011 (the Development Agreement) pursuant to which Developer, with the assistance of OM, will develop and install upon thePremises the Land Development Project described therein. The Developer Work under thisAgreement is the same as the Land Development Project described in the DevelopmentAgreement.

C. In consideration of the mutual covenants contained in the Purchase Agreement

and this Work Letter, OM and Von Maur hereby agree as follows:

Terms

1. Work Schedules. As soon as reasonably possible, Developer and Von Maur shall agreeupon and attach hereto a schedule (the Work Schedule) which will set forth a time table for the planning, construction and opening of the Developer Work and the Von Maur Work, asdefined below. The schedule for the Developer Work shall be created and refined from time totime in accordance with the Development Agreement. OM shall deliver written notice to VonMaur of the date on which delivery of the Von Maur pad is anticipated to occur as provided inthe Development Agreement. The written notice from OM of the Pad delivery date shall also

provide Von Maur with documentation that the Developer Work to construct the Von Maur padis substantially complete in accordance with Von Maurs specifications. Von Mauracknowledges that the Development Agreement and this Work Letter constitute satisfactorydocumentation establishing conclusively that Developer is obligated to pay for construction ofthe Developer Work in its entirety.

2. Von Maur Work. Von Maur shall, at its cost and expense, design, plan, equip and opena building (the Von Maur Store) which shall be a single-story building of not less than 78,500nor more than 90,000 square feet of Floor Area and all related improvements, including, without


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limitation, all signage for the Von Maur Store, a trash enclosure for the Von Maur Store, aloading dock and a trash enclosure/loading dock screen wall, and the restoration of any portionsof the Common Area installed by Developer which are damaged by the construction of theVon Maur Store (collectively the "Von Maur Work"). For purposes of this Agreement, the termCommon Area shall have the meaning given such term in the Declaration. Von Maur shall

pay any hook-up or connection charges or fees related to utilities serving the Von Maur Store.The Von Maur Pad location is generally depicted on Exhibit A attached hereto. Von Maurshall cooperate with OM and Developer to approve the Developer Work and to design the VonMaur Work (which is referred to in the Development Agreement as the Anchor Retail Project)in accordance with the process and procedures stated in the Development Agreement.

3. Developer Work. Pursuant to the Development Agreement, OM is providingcoordination and administration services to Developer in connection with the performance of theDeveloper Work and the design and construction of the Von Maur Work. An affiliate of OM isalso providing assistance regarding the design of the mixed-use portion of the Project. Except asmay be expressly set forth in this Work Letter, neither OM nor Developer is under any obligation

to construct or cause the construction of any of the stores and Common Area shown on ExhibitA.

Developer shall be responsible for all aspects of the following (the Developer Work),all of which shall be at the sole cost and expense of Developer:

(a) Conveyance Fees and Brokerage Commissions.

(i) The payment of any conveyance tax applicable to the transfer of the Premises and anyand all improvements thereto to Von Maur and the cost of all recording fees, title insurance and escrowfees associated with the transfer of the Premises by OM to Von Maur; and,

(ii) The payment of all brokerage commissions or other commissions due with respect to theownership or occupancy of the Premises (or portion thereof) by Von Maur, to be paid upon signing ofdefinitive binding agreements regarding Von Maurs ownership or occupancy of the Premises (orportion thereof).

(b) Parking Area: Design and construction of all on-site parking on the Premises tosatisfy the following minimum parking requirements:

(i) Five (5) spaces for each 1,000 square feet of floor area in the Von Maur Store.

(ii) Parking for the balance of the Project and future Project phases shall be

calculated in accordance with the Revised Shared Use Parking Assessmentdated February 9, 2011 prepared by Rich and Associates Consulting, Inc. and inconjunction with the latest edition of the ULI (Urban Land Institute) SharedParking publication.

(c) Grading: All plans, grading and preparatory work to design, grade, compact andconstruct the Von Maur building pad in accordance with Von Maurs technicalspecifications, a copy of which are attached hereto as Exhibit B. Such gradingand/or compaction shall be performed in such a manner as to allow Von Maur to


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utilize spread footings and slab on grade construction for the Von Maur Store. Inaddition, soil borings for the Von Maur Store shall be done by Developer andprovided to Von Maur in accordance with its work schedule.

(d) On/Off Site Improvements and Utilities: Developer shall install or cause to beinstalled all on/off-site improvements for the construction and operation of theProject and the Von Maur Store, including but not limited to:

(i) The extension of all public utility lines and payment of tap-in fees (electric, gas,water, storm and sanitary sewer, telephone/data and cable TV) to the servicepoint(s) designated by Von Maur. (Von Maur shall pay (a) up to $30,000.00 of thecost of extending such lines from the Premises property line along 11th Street(a/k/a Iowa River Landing Place) to the locations designated by Von Maur (withthe remainder of such Cost to be paid by Developer), and (b) the cost of installingall lateral service connections from those lines to the Von Maur Store);

(ii) The installation, paving and applicable striping of all parking areas related to the

buildings, roadways, traffic signals, curbs, sidewalks, loading docks, loadingramps and all Common Area facilities within or outside of the Project, includingthe Premises (but excluding the loading docks and loading ramps on the Premises)and the perimeter curbs andsidewalks (and in connection with the installation ofroadways and related improvements, Developer will use commerciallyreasonable efforts to work with the State of Iowa and the Federal government toobtain approval and funding for the interchange modifications necessary toextend 11th Street (Iowa River Landing Place) to 1st Avenue and if Developer issuccessful in doing so, Developer will install the extension of 11

thStreet (Iowa

River Landing Place) to 1st Avenue);

(iii) The installation of all parking lot lighting and electrical connections therefor to theappropriate Common Area meter;

(iv) The installation of all storm drainage systems, water detention areas, sanitarysewer systems and water main loop;

(v) The installation of all landscaping, except between the Von Maur Store and itsperimeter sidewalks;

(vi) The payment of all reasonable costs and expenses for public improvements,related site work design and engineering, including but not limited to thoseincurred in connection withthe design of the Anchor Retail Project and/or theLand Development Project as defined in the Development Agreement; and

(vii)The payment of all reasonable costs of obtaining City approvals for thedevelopment and construction of the Land Development Project and the AnchorRetail Project (provided, however, that Von Maur shall obtain its own buildingpermit and shall pay any fees associated with its building permit for the Von MaurStore).


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(e) Existing Environmental Conditions. Developer shall remediate all ExistingEnvironmental Conditions (as defined in the MDA) at, under or about the Premisesat Developers sole cost and expense. Developer will indemnify and hold harmlessVon Maur against all claims, costs, and liabilities, including any and all RemediationCosts (as defined in the MDA), arising out of any Existing Environmental

Conditions, to the extent Von Maur is required under any applicable EnvironmentalLaw by a state or federal agency to incur Remediation Costs with respect to suchHazardous Materials. Von Maur will indemnify and hold harmless Developer againstany and all claims, liabilities, damages, losses, fines, penalties, judgments, awards,costs and expenses, (including, without limitation, Developers reasonable attorneys'fees and costs and all other reasonable costs and expenses of investigation) whicharise out of or relate in any way to any Release of Hazardous Materials (other thanHazardous Materials relating to an Existing Environmental Condition) on thePremises to the extent caused by Von Maur or its employees or agents during VonMaurs ownership of the Premises.

4. Improvement Plans.

4.1 Preliminary Plans. As provided in the Development Agreement, Developer shallcause its architects to prepare preliminary plans and specifications and a site layout for theDeveloper Work, (collectively Preliminary Plans). Developer shall cause its architects tosubmit to Von Maur two (2) copies of the completed Preliminary Plans. Within the applicabletime period set forth in the Work Schedule following Von Maurs receipt of the PreliminaryPlans, Von Maur shall review and approve or disapprove the Preliminary Plans, which approvalshall not be unreasonably withheld or delayed (except as otherwise provided). Developer shallhave no approval rights over the Von Maur Store, but shall have design input with respectthereto. In the event Von Maur does not provide the Developer with written notice of approval ordisapproval of the Preliminary Plans within the time period specified in the Work Schedule, thePreliminary Plans shall be deemed automatically and conclusively to be approved.

4.2 Submittal of Preliminary Plans. Promptly following approval of the PreliminaryPlans, Developer shall, at its sole cost and expense, submit the Preliminary Plans, which shallinclude any studies, drawings and other documents or items which may be required to obtainapproval of said Preliminary Plans to the Planning Department of the City (PlanningDepartment) for review and approval. If required by the Planning Department, Von Maur shallalso submit its preliminary building plans to the City for approval. However, if simultaneousapproval is not required, Von Maur shall be responsible for submitting its own building plans tothe Planning Department for approval in accordance with its work schedule.

4.3 Final Plans. Following approval of the Preliminary Plans by the PlanningDepartment, pursuant to the process and procedure set forth in the Development Agreement,Developer shall cause its architect to prepare final working drawings and specifications for theDeveloper Work based upon and conforming in all respects to the approved Preliminary Plans(the Final Plans). Developer shall cause its architect to deliver to Von Maur two (2) copies ofthe Final Plans. Within the applicable time period set forth in the Work Schedule followingreceipt of the Final Plans, Von Maur shall approve or disapprove the Final Plans, which approvalshall not be unreasonably withheld or delayed.


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4.4 Submittal of Final Plans. Promptly following Von Maurs written approval ofthe Final Plans, Developer (at no expense to Von Maur), shall (i) submit the Final Plans to thePlanning Department and all other appropriate governmental agencies and prepare, submit, anddiligently pursue any applications, documents, studies, reports or other items necessary to obtainall approvals and permits required by law for the construction of the Developer Work; and

(ii) pay all necessary fees in connection with the Developer Work. However, Von Maur shallobtain its own building permit and shall pay any fees associated with its building permit.

5. Construction of the Work. Developer and Von Maur shall enter into constructioncontracts (the Construction Contracts) with their respective contractors, for the construction oftheir Work in accordance with the Final Plans. Each party shall supervise the completion of suchWork and shall use diligent efforts to secure completion of the Work in a good and workmanlikemanner in accordance with the Final Plans and, the Construction Contracts and the WorkSchedule. Von Maur shall not be required to commence construction until the followingcontingencies (collectively, the Construction Contingencies) have been satisfied or waived:

5.1 The Premises have been conveyed to Von Maur pursuant to the PurchaseAgreement;

5.2 All entitlements (including, but not limited to, zoning and site plan approval)necessary to operate the Von Maur Store have been obtained;

5.3 Developer has entered into contracts for construction of the Public Improvements,Common Areas, Parking Areas and Parking Facilities; and

5.4 All other requirements of this Work Letter, the REA, the Separate Agreement andthe Purchase Agreement are satisfied, including but not limited to, approval of Final Plans.

6. Payment of the Costs of the Von Maur Work and the Developer Work. Von Maurshall be solely responsible for all costs associated with the Von Maur Work. Except as provided

in Section 3(d)(i) above, Von Maur shall have no responsibility with respect to any costsassociated with the Developer Work.

7. Miscellaneous Construction Covenants.

7.1 Cooperation. Developer and Von Maur shall cooperate with one another duringthe performance of their respective work to effectuate such work in a timely and compatiblemanner. Von Maur also agrees to work cooperatively with Developer and OM as required underthe Development Agreement by attending meetings, providing timely input and, whereapplicable, approvals regarding those items contemplated by the Development Agreement as towhich Von Maurs approval is required under the Development Agreement or this Agreement.

7.2 Compliance with Laws. Von Maur and Developer shall construct their respectivework in a safe and lawful manner, and shall comply with all applicable laws, regulations andrequirements of, and all licenses and permits issued by, all municipal or other governmentalbodies having jurisdiction over the same.

7.3 Media Management Plan. Von Maur acknowledges receipt of the MediaManagement Plan for Iowa River Landing dated May 4, 2011 and prepared by TerraconConsultants, Inc. for the City, including brownfield assessments and work plans referenced


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therein (the Media Management Plan). Von Maur will provide the Media Management Planto all contractors performing the Von Maur Work.

7.4 Indemnification. Developer and Von Maur agree that their respectiveindemnities set forth in the REA and Separate Agreement shall also apply with respect to anyacts or omissions of such parties or their respective contractors, subcontractors, laborers,

materialmen and suppliers.

7.5 Insurance. Construction of the Von Maur Work shall not proceed without VonMaur and Developer first acquiring workers compensation and comprehensive general publicliability insurance and property damage insurance as well as All Risks builders risk insurance,with minimum coverage of $5,000,000, issued by an insurance company meeting therequirements of the REA and Separate Agreement. All such policies shall provide that thirty (30)days prior notice must be given before modification, termination or cancellation. All insurancepolicies maintained by Von Maur and Developer pursuant to this Work Letter shall name theother party and any lender of such other party as additional insureds and comply with all of theapplicable terms and provisions of the REA and Separate Agreement relating to insurance.Developers and Von Maurs respective contractors shall be required to maintain the sameinsurance policies as such parties, and such policies shall name such other party and its lender asadditional insureds.

7.6 Qualification of Contractors. All contractors engaged by Von Maur andDeveloper shall be bondable, licensed contractors, possessing good labor relations, and capableof performing quality workmanship. All work shall be reasonably coordinated with the generalProject work.

7.7 Temporary Facilities During Construction. Von Maur shall provide alltemporary utility facilities as necessary and required in connection with the performance of theVon Maur Work. Storage of Von Maurs contractors construction materials, tools, equipmentand debris shall be confined to the Premises and in staging areas which shall be reasonably

agreed to by Developer and Von Maur. The respective staging areas for Von Maur andDeveloper shall be established in a manner which will not interfere with the construction work ofthe other party; provided, however, the parties acknowledge that the staging area for Von Maurmay need to be shifted during the course of construction in the event it is located on anyCommon Area to be initially constructed by Developer.

[Signature Page Follows]


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IN WITNESS WHEREOF, this Work Letter is executed as of the date first written.

VON MAUR, INC., an Illinois corporation

By:Name: Robert L. LarsenTitle: Chief Financial Officer

DEVELOPER

CITY OF CORALVILLE, IOWA,an Iowa municipal corporation

By: _____________________Its: Mayor

By: _____________________Its: City Clerk

coralville von maur work letter

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