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Cooper Development Amendment to Agreement_Parking LotTHE CITY OF Dubuque T. "-'" D V ~ ~, AlWlmericacitY 1 r Masterpiece on the Mississippi 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Amendment to Agreement with Cooper Development DATE: October 15, 2008 Economic Development Director Dave Heiar recommends the City Council set a public hearing for November 3, 2008, on the loan assumption and the First Amendment to Agreement with Cooper Development Company, LLC for the "Bricktown" parking lot located at the southeast corner of 3`d Street and Locust Street. This amendment incorporates information on the responsibilities of operating the electronic sign. The amendment also includes a modification to the agreement that the City assumes the balance of a $55,415.06 loan that Cooper Acquisitions has with Dubuque Initiatives, which loan was initially used to pave the parking lot and make improvements to the lot and signage. This portion of the amendment was actually part of the original negotiations for the purchase of the parking lot, but through oversight was not included in the original agreement. I concur with the recommendation and respectfully request Mayor and City Council approval. 2z ~~ __. Michaer C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager David J. Heiar, Economic Development Director ©ubuque THE CITY OF DUB ~ ~ r Masterpiece on the Mississippi zoa~ DATE: October 14, 2008 TO: Michael C. Van Milligen, City Manger FROM: David J. Heiar, Economic Development Director RE: Amendment to Agreement with Cooper Develop nt INTRODUCTION This memorandum presents for City Council consideration a resolution setting a date for a public hearing on the loan assumption and the first amendment to agreement with Cooper Development Company, LLC to maintain the future City owned parking lot at the corner of 3~d Street and Locust Street. The original agreement was approved by the City Council on July 7, 2008. BACKGROUND As a condition to the City purchasing the parking lot from Paul Fahey, a separate agreement was reached between the City and Cooper Development Company, LLC. The agreement provided for the following conditions; 1) to retain the Real Estate as a parking lot for ten years from the date of closing in consideration for payment by Cooper Development LLC to City of $1,000.00 per month for such ten year period. 2) The City and Cooper are the owners of the existing sign for the Bricktown Restaurant located on the Property. The City agrees to allow the sign to remain on the property during the agreement period. Cooper is responsible for maintenance of the sign. The City will have full ownership of the sign at the completion of the agreement. 3) The City will provide two unmetered stalls for Bricktown staff at no additional cost. The City will determine the location of the stalls. 4) The City will install parking meters on all remaining stalls on the Property. The meters will be at least one hour meters. The meter rates must be equal to the meters in the immediate vicinity of the Property. DISCUSSION Subsequent to approving the original agreement, City staff discovered a previous sign agreement between Cooper Acquisitions (the previous owner) and the City. This agreement had more specific language related to the ownership and control of the sign. It also more clearly delineated the responsibilities of operating the electronic sign. In particular, this agreement provided for the following: 1. Electricity is provided at Cooper's expense. 2. The City is responsible for insurance coverage. 3. Other operational costs will be shared equally. 4. The electronic sign shall operate 24/7 and messages shall be 50% for the business and 50% for the City. Cooper staff will program and update messages. The proposed amendment would incorporate this new information into the agreement with Cooper Development. The other proposed modification to this agreement is that the City assumes the balance of a $55,415.06 loan that Cooper Acquisitions has with Dubuque Initiatives. This loan was initially used by Cooper to pave the parking lot and make improvements to the lot including the brick walls and signage. This portion of the amendment was actually part of the original negotiations for the purchase of the parking lot. It was my oversight that it was not included in the original agreement. Prior to assuming this loan, the City is required to hold a public hearing. RECOMMENDATION I recommend that the City Council approve the attached resolution to set a public hearing on the loan assumption and the first amendment to the agreement with Cooper Development Company, LLC for the "Bricktown" parking lot located at the southeast corner of Locust and 3~ Streets. ACTION STEP The action step is for the City Council to approve the attached resolution. Cc: Tim Horsfield Jenny Larson F:\USERS\DHeiar\Bricktown Parking Lot\Cooper Development Agreement memo.doc (This Notice to be posted) NOTICE AND CALL OF PUBLIC MEETING Governmental Body: The City Council of Dubuque, Iowa. Date of Meeting: , 2008. Time of Meeting: o'clock .M. Place of Meeting: Historic Federal Building, 350 West 6th Street, Dubuque, Iowa. PUBLIC NOTICE IS HEREBY GIVEN that the above mentioned governmental body will meet at the date, time and place above set out. The tentative agenda for said meeting is as follows: Resolution fixing date for a meeting on the authorization of a Loan Agreement between the City of Dubuque and Dubuque Initiatives, and providing for publication of notice thereof Such additional matters as are set forth on the additional page(s) attached hereto. (number) This notice is given at the direction of the Mayor pursuant to Chapter 21, Code of Iowa, and the local rules of said governmental body. City Clerk, Dubuque, Iowa 2008 The City Council of Dubuque, Iowa, met in Federal Building, 350 West 6th Street, Dubuque, Iowa, at above date. There were present Mayor and the following named Council Members: session, in the Historic _ o'clock .M., on the in the chair, Absent: -2- Council Member Kevin Lynch introduced the following Resolution entitled "RESOLUTION FIXING DATE FOR A MEETING ON THE AUTHORIZATION OF A LOAN AGREEMENT BETWEEN THE CITY OF DUBUQUE AND DUBUQUE INITIATIVES, AND PROVIDING FOR PUBLICATION OF NOTICE THEREOF", and moved that the same be adopted. Council Member Jones seconded the motion to adopt. The roll was called and the vote was, AYES: Braig, Buol, Connors, Jones, Lynch, Resnick, Voetberg NAYS: None Whereupon, the Mayor declared the resolution duly adopted as follows: RESOLUNTION #383-08 RESOLUTION FIXING DATE FOR A MEETING ON THE AUTHORIZATION OF A LOAN AGREEMENT BETWEEN THE CITY OF DUBUQUE AND DUBUQUE INITIATIVES, AND PROVIDING FOR PUBLICATION OF NOTICE THEREOF WHEREAS, it is deemed necessary and advisable that the City of Dubuque, Iowa (the "City"), should provide for the authorization of a Loan Agreement between the City of Dubuque and Dubuque Initiatives (the "Lender") in the principal amount of $55,415.06 (the "Agreement"), as authorized by Sections 384.24A and 384.83, Code of Iowa, as amended, a copy of which is now before this Council and incorporated herein by this reference, for the purpose of acquiring the real property described as Lots 87, 88, and the North 20 feet 3 inches of Lot 86 in the City of Dubuque, Iowa, according to the United States Commissioners' Map of the Town of Dubuque, Iowa; and WHEREAS, the loan provided for in the Agreement shall be payable solely and only out of the net earnings of the parking enterprise system of the City and shall be a lien on the future net revenues thereof; and WHEREAS, before such an agreement may be authorized, it is necessary to comply with the provisions of the City Code of Iowa, as amended, and to publish a notice of the proposal and of the time .and place of the meeting at which the Council proposes to take action for the authorization of the agreement and to receive oral and/or written objections from any resident or property owner of the City to such action; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: -3- Section 1. That this City Council meet in the Historic Federal Building, 350 West 6th Street, Dubuque, Iowa, at 6:30 o'clock P.M., on the 3rd day of November, 2008, for the purpose of taking action on the matter of the authorization of the Agreement and the approval of the provisions thereof, in the principal amount of $55,415.06, for the purpose of acquiring the real property described therein. Section 2. That the City Clerk is hereby directed to cause at least one publication to be made of a notice of said meeting, in legal newspaper, printed wholly in the English language, published at least once weekly, and have general circulation in said City, said publication to be not less than four clear days nor more than twenty days before the date of said public meeting on the authorization of said Agreement. Section 3. The notice of the proposed action shall be in substantially the following form: NOTICE OF MEETING OF THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA, ON THE MATTER OF THE PROPOSED AUTHORIZATION OF A LOAN AGREEMENT BETWEEN THE CITY OF DUBUQUE AND DUBUQUE INITIATIVES IN THE PRINCIPAL AMOUNT OF $55,415.06, AND PROVIDING FOR PUBLICATION OF NOTICE THEREOF PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque, Iowa (the "City") will hold a public hearing on the 3`d day of November, 2008, at 6:30 o'clock P.M:, in the Historic Federal Building, 350 West 6th Street, Dubuque, Iowa, at which meeting the Council proposes to take additional action for the authorization of a Loan Agreement , in the principal amount of $55,415.06 (the "Agreement"), between the City and Dubuque Initiatives, as Lender, for the purpose of acquiring the real property described therein. Principal and interest due on the Agreement will be payable solely and only out of the net revenues of the parking enterprise system of the City and shall be a lien on the future net revenues thereof A copy of the Agreement has been placed on file in the office of the City Clerk and may be inspected during regular office hours. At the above meeting the Council shall receive oral or written objections from any resident or property owner of the City, to the above action. After all objections have been received and considered, the Council will at this meeting or at any adjournment thereof, take additional action for the authorization of the Agreement or will abandon the proposal This Notice is given by order of the City Council of Dubuque, Iowa, as provided by Sections 384.24A and 384.83 of the City Code of Iowa, as amended. Dated this 24t" day of October, 2008. Jeanne F. Schneider, CMC City Clerk of Dubuque, Iowa (End of Notice) -5- PASSED AND APPROVED this 20th day of October, 2008. Mayor ATTEST: City Clerk CIG-3 9/91 CERTIFICATE STATE OF IOWA ) SS COUNTY OF DUBUQUE ) I, the undersigned City Clerk of Dubuque, Iowa, do hereby certify that attached is a true and complete copy of the portion of the corporate records of said Municipality showing proceedings of the Council, and the same is a true and complete copy of the action taken by said Council with respect to said matter at the meeting held on the date indicated in the attachment, which proceedings remain in full force and effect, and have not been amended or rescinded in any way; that meeting and all action thereat was duly and publicly held in accordance with a notice of meeting and tentative agenda, a copy of which was timely served on each member of the Council and posted on a bulletin board or other prominent place easily accessible to the public and clearly designated for that purpose at the principal office of the Council (a copy of the face sheet of said agenda being attached hereto) pursuant to the local rules of the Council and the provisions of Chapter 21, Code of Iowa, upon reasonable advance notice to the public and media at least twenty-four hours prior to the commencement of the meeting as required by said law and with members of the public present in attendance; I further certify that the individuals named therein were on the date thereof duly and lawfully possessed of their respective city offices as indicated therein, that no Council vacancy existed except as may be stated in said proceedings, and that no controversy or litigation is pending, prayed or threatened involving the incorporation, organization, existence or boundaries of the City or the right of the individuals named therein as officers to their respective positions. WITNESS my hand and the seal of said Municipality hereto affixed this day of , 2008. City Clerk, Dubuque, Iowa SEAL F:\USERS\DHeiar\Bricktown Parking Lot\Dubuque Initiatives resolution setting hearing 2.doc -7- FIRST AMENDMENT TO AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA, AND THE COOPER DEVELOPMENT COMPANY, L.L.C. This First Amendment to Agreement Between the City of Dubuque, Iowa, and The Cooper Development Company, L.L.C, is dated for reference purposes the day of , 2008. Whereas, The City of Dubuque, Iowa (City) and The Cooper Development Company, LLC (Cooper) entered into an Agreement dated for reference purposes the 7th day of July, 2008; and Whereas, City and Cooper now desire to amend the Agreement as set forth herein. NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES THAT THE AGREEMENT IS AMENDED AS FOLLOWS: Section 1. SECTION 2 RESTAURANT SIGN is amended to read as follows: SECTION 2. RESTAURANT SIGN. 2.1. City and Cooper are the owners of the existing sign (the Sign) for the Bricktown Restaurant located on the Property. City agrees to allow the Sign to remain on the Property during the period identified in Section 1. 2.2. Cooper shall have sole responsibility for the maintenance, repair, and security of the Sign and shall keep the same in good repair and condition during the term of this Agreement. However, City and Cooper shall share equally the costs of such maintenance, repair, and security, provided, however, that City shall not be liable for any such costs unless City has agreed in advance and in writing to such costs. City shall reimburse Cooper for such costs within sixty (60) after receipt of a statement from Cooper for such costs. 2.3 City shall obtain 'and maintain insurance coverage for the Sign during the term of this Agreement. 2.4. Cooper shall be solely responsible for the cost of electricity for the Sign. 101408ba1 2.5. Cooper agrees to defend, indemnify and hold City, its officers and employees, harmless from and against all liability, damages, losses, costs, causes of action, charges and expenses, including reasonable attorney fees, which they may sustain, incur or be liable for arising out of or related to the Sign. 2.6. Upon any termination of this Agreement, by reason of any cause whatsoever, if the Sign shall then be on the Property, all of Cooper's right, title, and interest therein shall cease and terminate, and title to the Sign shall vest solely in City, and the Sign shall be surrendered by Cooper to City. No further deed or other instrument shall be necessary to confirm the vesting in City of sole title to the Sign. However, upon any termination of this Agreement, Cooper, upon request of City, shall execute, acknowledge, and deliver to City a deed confirming that all of Cooper's right, title, and interest in or to the Sign has expired, and that title to the Sign has solely vested in City. 2.7. The control panel and message board programming equipment for the Sign shall be operated and programmed as provided in this Agreement by Cooper authorized personnel free of charge to City. The cost of installation of the control panel and programming equipment shall be shared equally. 2.8. The Sign shall be in operation 24 hours daily during its useful life, except for necessary repairs and maintenance. The Sign message board shall be utilized by City to (a) publicize events and activities conducted, sponsored, or endorsed by City or other City affiliated organizations and (b) for such information as Cooper shall determine appropriate to operate Bricktown Brewery. During each one-hour period of operation, usage of the Sign message board shall be allocated 50% to Cooper and 50% to City. Each party shall defend, indemnify, and hold the other party, its employees, officers, directors, managers, agents, and members from and against any and all third-party claims arising from or in connection with the text or substance of any message displayed by such party on the message board. 2.9. The parties anticipate that other governmental bodies and non- profit civic, social, and charitable entities may from time to time request a message be displayed on the sign message board and agree that all such requests shall be directed to City. The message display time for any such request granted by City will be deducted from the time allocated to the City. Section 3. The following section is added thereto: SECTION 11. ASSUMPTION OF PROMISSORY NOTE. City agrees to 101408ba1 assume responsibility for payment of the balance due on the Promissory Note dated the day of 20 in which Company is the Promisor and Dubuque Initiatives is the Promisee, the principle balance of which is $ as of the day of , 20 Section 3. All other terms and conditions of the Agreement shall remain in full force and effect. CITY OF DUBUQUE, IOWA THE COOPER DEVELOPMENT COMPANY, L.L.C. By: Michael C. Van Milligen City Manager By: James A. Miller, Manager By: Thomas Giesler By: Rick Ackley F:\USERS\DHeiar\Bricktown Parking Lot\Amendment to Parking Agreement100808bal.doc 101408ba1 AGREEMENT BETWEEN AND AMONG THE CITY OF DUBUQUE, IOWA, DUBUQUE INITIATIVES AND THE COOPER DEVELOPMENT COMPANY, L.L.C. This Agreement between and among the City of Dubuque (City), Iowa, Dubuque Initiatives, and The Cooper Development Company, L.L.C (Cooper), is dated for reference purposes the day of , 2008. Whereas Dubuque Initiatives and Cooper entered into a Loan Agreement dated the 16t" day of February, 2004 (the Loan Agreement), pursuant to which Cooper executed its Promissory Note (the Cooper Note) in favor of Dubuque Initiatives; and Whereas, City and Cooper entered into an Agreement dated for reference purposes the 7th day of July, 2008, as amended, for the purchase by City of a parking lot owned by Cooper; and Whereas, as part of the consideration for the purchase of the parking lot, City agreed to assume responsibility for the payment of the principal balance of the Cooper Note; and Whereas, in consideration of City's assumption of the principal balance of the Cooper Note by delivery of a note to Dubuque Initiatives (the City Note), Dubuque Initiatives has agreed to terminate the Loan Agreement. NOW, THEREFORE, IT IS AGREED BY AND AMONG THE PARTIES AS FOLLOWS: 1. City agrees to execute and deliver to Dubuque Initiatives a promissory note in the form attached hereto. 2. Upon delivery of the City Note to Dubuque Initiatives, Dubuque Initiatives shall deliver to Cooper evidence of the termination of the Loan Agreement. CITY OF DUBUQUE, IOWA By: Michael C. Van Milligen City Manager 101508ba1 THE COOPER DEVELOPMENT COMPANY, L.L.C. By: By: By: James A. Miller, Manager Thomas Giesler Rick Ackley DUBUQUE INITIATIVES By: (Signature) (Name) (Title) F:\USERS\DHeiar\Bricktown Parking Lot\DubuquelnitiativesCityCooperAgreement_1.doc 2 PROMISSORY NOTE $55,415.06 Date: FOR VALUE RECEIVED, the City of Dubuque, Iowa promises to pay to the order of Dubuque Initiatives at Dubuque, Iowa, the sum of $55,415.06 with interest thereon from September 11, 2008, payable monthly at the rate of 3% per cent per annum until payment hereof as follows: $516.74 per month commencing on the 11th day of September, 2008, and on the 11th day of each month thereafter until paid in full. CITY OF DUBUQUE, IOWA By: Michael C. Van Milligen City Manager 3