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Steeple Square (SS) Event Center - Collateral Assignment of DA for 101 E. 15th Street Copyrighted April 15, 2019 City of Dubuque Consent Items # 19. ITEM TITLE: Steeple Square (SS) Event Center- Collateral Assignment of DevelopmentAgreement SUMMARY: City Manager recommending approval of a Collateral Assignment of the Development Agreement with SS Event Center, LLC for the 101 E. 15th Street Project to Dubuque Bank& Trust. RESOLUTION Approving Collateral Assignment of Development Agreement between the City of Dubuque, lowa and SS Event Center, LLC related to the rehabilitation of 101 E. 15th Street SUGGESTED DISPOSITION: Suggested Disposition: Receiveand File;Adopt Resolution(s) ATTACHMENTS: Description Type SS E�nt Center LLC Collateral Assignment of City Manager Memo DevelopmentAgreement-MVM Memo Staff Memo Staff Memo Letter to Council from Outside Counsel Supporting Documentation CollateralAssignment Supporting Documentation Original DevelopmentAgreement Supporting Documentation Resolution of Approval Resolutions THE CITY OF Dubuque � AIFA�erlwGh UB E '�� III► Masterpiece on the Mississippi Z°°'�w'2 7A13 2017 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Collateral Assignment of Development Agreement between the City of Dubuque and SS Event Center, LLC to Redevelop Property at 101 E. 15�n Street DATE: April 9, 2019 Economic Development Director Jill Connors recommends City Council approval of a Collateral Assignment of the Development Agreement with SS Event Center, LLC for the 101 E. 15�h Street Project to Dubuque Bank & Trust. I concur with the recommendation and respectfully request Mayor and City Council approval. �� Mic ael C. Van Milligen �� MCVM:jh Attachment cc: Crenna Brumwell, City Attorney Teri Goodmann, Assistant City Manager Cori Burbach, Assistant City Manager Jill M. Connors, Economic Development Director Dubuque Economic Development Department THE CITY OF .� 5o West 13�^Street AIFMersality Dubuque,lowa 52001-4864 D� L E � � �� Office(563)589-4393 TTY(563)690-6678 http://www.cityofd u buq ue.org 2007•2012 Masterpiece on the Mississippi �,3.Zo„ TO: Michael C. Van Milligen, City Manager FROM: Jill M. Connors, Economic Development Director SUBJECT: Collateral Assignment of Development Agreement between the City of Dubuque and SS Event Center, LLC to Redevelop Property at 101 E. 15�'' Street DATE: April 5, 2019 INTRODUCTION The purpose of this memorandum is to request City Council approval of a collateral Assignment of the Development Agreement for the 101 E 15�h Street project to Dubuque Bank & Trust. BACKGROUND Following execution of a Development Agreement with the City for the redevelopment of the buildings at 101 East 15th Street (the former St. Mary's church and rectory), SS Event Center, LLC began work to create an event center and childcare center at the property. DISCUSSION SS Event Center, LLC is working with Dubuque Bank & Trust Co. (DB&T) to obtain loan funds to assist in the rehabilitation. As a part of the required loan document package, DB&T has requested that SS Event Center, LLC sign a collateral Assignment of the Development Agreement to the bank. This Assignment requires that the City join in the Assignment. The purpose of the collateral Assignment is to allow the bank to step into the shoes of the SS Event Center, LLC entity in the event of a default under the loan documents. In short, if such a default occurred, DB&T could then acquire the property through enforcement of its rights under the loan documents and then would have the same rights as SS Event Center, LLC under the Development Agreement. RECOMMENDATION/ ACTION STEP I recommend the City Council adopt the attached resolution approving the Assignment of the Development Agreement to Dubuque Bank & Trust. Drake Law Firm, P.c. ATTORNEYS D. Flint Drake* 300 Main Street,Suite323 Samue]M. DeG•ee fdrake�udr�kelawpacom Dubuque,IA 52001 sdeareenn,dr�kelnwoc.com Both admitted in Iowa Telephone: (563)582-2000 � *Also admitted in Wisconsin Facsimile:(563)583-5225 March 26, 2019 City Council City of Dubuque, lowa 50 W. 13`h St. Dubuque, low2 52001 Re: Request for Council Approval of Collateral Assignment of Development � Agreement a � Dear Members of the City Council: � We represent Friends of St. Mary's and SS Event Center, LLC in connection with, among other things, the closing of financing related to rehabilitation of the former St. Mary's Church and the adjoining rectory. The City and SS Event Center, LLC entered into a Development Agreement on October ]2, 2017 related to this project. As part of the financing arrangement with Dubuque 6ank 8i Trust, SS Event Center, LLC has assigned, as collateral, its rights and obligations under that Development Agreement to the bank. ln this manner, should SS Event Center, LLC ever default upon its loan obligations, the bank woidd have the ability to proceed with the project and receive the benefits under the Development Agreement. This is the same format of collateral assignment the city has executed in connection with similar transactions in the past. This assignment requires the consent of the city. With this letter we request that the City Council consider and approve the collateral 2ssignment, in the form provided and attached hereto. If you have any questions, please do not hesitate to contact us. Thank you. Best Regards, DRAK A FJRM, �C/ 6 �u�' "' ` Y Flint Drake CC Michael C. Van Milligen, City Manager Crenna 6rumwell, City Attorney Barry Lindahl, Senior Counsel Jill Connors, Economic Development Director 'i Ij I 1 � , � � 1 RESOLUTION NO. 137-19 APPROVING COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND SS EVENT CENTER, LLC RELATED TO THE REHABILITATION OF 101 E 15TH STREET Whereas, the property at 101 E 15th Street in Dubuque, Iowa (the Building) is owned by SS Event Center, LLC (Owner); and Whereas, Owner and the City of Dubuque (City) have entered into a Development Agreement for the rehabilitation of the Building; and Whereas, Owner will enter into a loan agreement with Dubuque Bank & Trust Co. (DB&T) for additional funding for the rehabilitation of the Building and DB&T has requested that Owner agree to the Collateral Assignment of the Development Agreement a copy of which is attached hereto (the Collateral Assignment), which Collateral Assignment requires City consent; and Whereas, the City Council finds that the City should consent to the Collateral Assignment. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF DUBUQUE, IOWA AS FOLLOWS: Section 1. The City of Dubuque consents to the Collateral Assignment of the Development Agreement. Section 2. The Mayor is authorized and directed to sign the Collateral Assignment of the Development Agreement on behalf of the City of Dubuque. Passed, approved and adopted this 15th day of April 2019. Attest: Kevi i S. Firnst- hI, City Clerk oy D. Buol, Mayor COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT THIS COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT (this "AssignmenY')is made and entered into as ofthe 3rd day of April, 2019,by and among SS EVENT CENTER, LLC, an Iowa limited liability company (`Borrower"), THE CITY OF DUBUQUE, IOWA, a municipal corporation existing under the laws of the State of Iowa (the "City"), and DUBUQUE BANK AND TRUST COMPANY, an Iowa state banking corporation ("Lender"). Recitals WHEREAS, Borrower and Lender have entered into that certain Construction Loan Agreement of even date herewith (the "Loan AgreemenY'), pursuant to which Lender has agreed to make certain loans to Borrower in the aggregate amount of $3,229,000 (the "Loans") for the purpose of providing financing for the rehabilitation of a building known as St. Mary's Church and Rectory on property legally described on Exhibit A attached hereto and hereby made a part hereof(the "ProjecY�; and WHEREAS, obligations of Borrower under the Loan is evidenced by (i) that certain Promissory Note in the original principal amount of$2,779,437 of even date herewith ("Note A") executed by Mortgagor and payable to Lender and (ii)that certain Promissory Note in the original principal amount of $449,563 of even date herewith ("Note B") executed by Mortgagor and payable to Lender (Note A and Note B being collective,the "Notes"); and W HEREAS,the City and Borrower have entered into that certain Development Agreement dated as of October 12, 2017, as may be amended (the "Development AgreemenY'), pursuant to which the City has agreed to provide certain financing incentives in connection with the development and rehabilitation of the Project, including without limitation (i) Economic Development Grants in the amount of tax increment revenues collected by the City; (ii) a Planning and Design Grant in the amount of $10,000; (iii) a Fagade Grant in the amount of$10,000; and (iv) a Financial Consulting Grant in the amount of$15,000 (collectively,the "Grants"); and WHEREAS, Lender has required, as an express condition to making the Loans, that Borrower assign its rights under the Development Agreement to Lender to secure the obligations of Borrower under the Notes and the Loan Agreement. NOW, THEREFORE, in consideration of the recitals set forth above and incorporated herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower hereby agrees as follows: 1. Canitalized Terms. Capitalized terms used herein but not otherwise defined herein shall have the meaning set forth in the Loan Agreement. 2. Assianment. Assignors hereby assign to Lender all of their right, title and interest in and to the Development Agreement, together with all documents and agreements attached as exhibits thereto, and all amendments, addenda and modifications thereof, whether made now or hereafter, to secure the obligations of Borrower under the Notes and the Loan Agreement. 3. Borrower Renresentations and Warranties. Assignor hereby represents and warrants that there have been no prior assignments of its rights under the Development Agreement, that the Development Agreement is a valid and enforceable agreement, that neither the City nor Assignor is in default thereunder and that all covenants, conditions and agreements have been performed as required therein, except those not to be performed until after the date hereof. Assignor agrees not to sell, assign, pledge, mortgage or otherwise transfer or encumber its interest in the Development Agreement as long as this Assignment is in effect. Assignor hereby irrevocably constitutes and appoints Lender as its attorney-in-fact to demand, receive and enforce Assignor's rights under the Development Agreement for and on behalf of and in the name of Assignor or, atthe option of Lender, in the name of Lender, with the same force effect as Assignor could do if this Assignment had not been made. 4. Attornev-in-Fact. Upon the occurrence of a default or event of default under the Notes or the Loan Agreement(a"DefaulY'), without affecting any of Lender's rights or remedies against Borrower under any other instrument, Assignor shall be deemed to have irrevocably appointed Lender as Assignor's attorney-in-fact to exercise any or all of Assignor's rights in, to and under the Development Agreement and to give appropriate receipts, releases and satisfactions on behalf of Assignor in connection with the performance by any party to the Development Agreement and to do any or all other acts in Assignor's names or in Lender's own name that Assignor could do under the Development Agreement with the same force and effect as if this Assignment had not been made. In addition, Lender shall have the right to exercise and enforce any and all rights and remedies available after a default to a secured party under the Uniform Commercial Code as adopted in the State of Iowa. If notice to Assignor of any intended disposition of collateral or of any intended action as required by law in any particular instance, such notice shall be deemed commercially reasonable if given in writing at least ten (10) days prior to the intended disposition or other action. Assignor hereby authorizes Lender to deliver a copy of this Assignment to any other party to the Development Agreement to verify the rights granted to Lender hereunder. All other parties underthe Development Agreement are authorized and directed by Assignor to tender performance of its obligations under the Development Agreementto Lender upon presentation of a copy of this Assignment. 5. City Consent. The City hereby consents and agrees to the terms and conditions of this Assignment. The City further represents and warrants to Lender that the Development Agreement is a valid agreement enforceable in accordance with its terms,that neither the City nor Assignor is in default hereunder and that all covenants, conditions and agreements have been performed as required therein, except those not to be performed until after the date thereof. 6. City Notice. The City agrees to provide Lender with copies of any notice of default given under the Development Agreement, and that Lender shall have the right, but not the obligation, to cure such default within the time period set forth in the Development Agreement. 7. No Amendment. The parties hereto agree that no material change or amendment shall be made to terms of the Development Agreement without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed. 8. No Waiver. This Assignment can be waived, modified, amended, terminated or discharged only explicitly in a writing signed by Lender. A waiver by Lender shall be effective 2 only in the specific instance and for the specific purpose given. Mere delay or failure to act shall not preclude the exercise or enforcement of any of Lender's rights or remedies hereunder. All rights and remedies of Lender shall be cumulative and shall be exercised singularly or concurrently, at Lender's option, and any exercise or enforcement of any one such right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other. 9. Continuine Oblieations. No provision of this Assignment shall be deemed or construed to alter, amend or modify, in any way, the rights and obligations of the City contained in the Development Agreement. 10. Notice. Any notice, request, demand or other communication hereunder shall be deemed duly given if delivered or postage prepaid, certified or registered, addressed to the party as setforth below: If to the City: The City of Davenport Attention: City Manager 50 W. 13�' Street Dubuque, Iowa 52001 W ith copy to: City Attorney City Hall 50 W 13�' Street Dubuque, Iowa 52001 If to Borrower: SS Event Center, LLC Attention: John Schmidt, President 900 Jackson Street, Suite LL2 Dubuque, Iowa 52001 If to Lender: Dubuque Bank and Trust Company Attention: Mark D. Wagner 1398 Central Avenue Dubuque, IA 52001 11. This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa 17712.13 16881577v2 3 [THE REMAINDER OF THIS PAGE HAS BEEN LEFT INTENTIONALLY BLANK] 4 [SIGNATURE PAGE TO COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT] IN WITNESS WHEREOF, the undersigned have caused this Assignment to be duly executed as ofthe date setforth above. SS EVENT CENTER, LLC, an Iowa limited liability company By: Name: John Schmidt Its: President [SIGNATURE PAGE TO COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT] THE CITY OF UBUQUE, IOWA By:4 .z,c,/ Name: Roy D. Buol Its: Mayor [SIGNATURE PAGE TO COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT] DUBUQUE BANK AND TRUST COMPANY By: Mark D. Wagner Vice President, Commercial Banking EXHIBIT A LEGAL DESCRIPTION Lot 3 of City Lot 493, and City Lot 484, all in the original Town of Dubuque, City of Dubuque, Dubuque County Iowa DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF DUBUQUE, IOWA, AND SS EVENT CENTER, LLC THIS DEVEL P ENT AGREEMENT(Agreement)dated for reference purposes the ��day of � 2017 is made and entered into by and between the City of Dubuque, lowa (City) and SS Event Center, LLC (Developer). WHEREAS, Developer is the owner of the following described real estate (the Property), CITY LOT 484; locally known as 101 East 15th Street � � ; and WHEREAS,the Property is located in the Greater powntown Urban Renewal District (the District) which has been so designated by City Council Resolution 206-17 as a slum and blighted area (the Project Area) defined by lowa Code Chapter 403 (the Urban Renewal Law); and � G WHEREAS, Developer will undertake the redevelopment of two vacant buildings � located on the Property and will be operating the same during the term of this Agreement; � and WHEREAS, Developer will make a capital investment in building improvements, equipment, furniture and fixtures in the Property (Project); and WHEREAS, the Property is historically significant and it is in the City's best interest to preserve the Property; and WHEREAS, pursuant to lowa Code Section 403.6(1), and in conformance with the Urban Renewal Plan for the Project Area adopted on May 18, 1967 and last amended on June 5,2017, City has the authority to enter into contracts and agreements to implement � the Urban Renewal Plan, as amended; and WHEREAS, the Dubuque City Council believes it is in the best interests of the City to encoura�e Developer in the development of the Property by providing certain incentives as set forth herein. NOW, THEREFORE, the parties to this Development Agreement, in consideration of the promises, covenants and agreements made by each other, do hereby agree as follows: SECTION 1. REPRESENTATIONS AND WARRANTIES 101017cmb � a 6gy 6 1.1 Representations and Warranties of City. In order to induce Developer to enter into this Agreement, City hereby represents and warrants to Developer that to the best of City's q knowledge: � (1) As of the Closing, City will have obtained all necessary approvals and consents for its execution, delivery and performance of this Agreement and that it will have 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 Ao �{ (2) City shall exercise its best efforts to cooperate with Developer in the development process. � (3) City shall exercise its best efforts to resolve any disputes arising during the development process in a reasonable and prompt fashion. (4) The execution and delivery of this Agreement, the consummation of the � transactions contemplated hereby, and the fulfillment of or compliance with the � terms and conditions of this Agreement are not prevented by, limited by, in conflict � with, or result in a violation or breach of, the terms, conditions or provisions of the � charter of City, any evidence of indebtedness, agreement or instrument of whatever '� nature to which Gity is now a party or by which it or its property is bound, or � constitute a default under any of the foregoing. (5) There are no actions, suits or proceedings pending or threatened against or affecting City 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 financial position or operations of City or which affects the validity of the Agreement or City's ability to perForm its obligations under this Agreement. (6) No ordinance or hearing is now 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. (7) 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. 2 � f (8) As of the date of this Agreement there has been prepared and approved by City an Urban Renewal Plan for the Project Area consisting of the Urban Renewal Plan for the Greater powntown Urban Renewal Plan, most recently approved by � City Council of City on June 5, 2017, and as subsequently amended through and , including the date hereof, attached as Exhibit E (the Urban Renewal Plan). A copy of the Urban Renewal Plan, as constituted on the date of this Agreement and in the form attached hereto, has been recorded among the land records in the office of the Recorder of Dubuque County, fowa. 1.2 Representations and Warranties of Developer. The Developer makes the following j representations and warranties: (1) Developer is an lowa non-profit corporation duly organized and validly ; existing under the laws of the State of lowa, and has all requisite power and � authority to own and operate its properties, to carry on its business as now � conducted and as presently proposed to be conducted, and to enter into and perForm its obligations under the Agreement. i (2) This Agreement has been duly authorized, executed and delivered by ; Developer and, assuming due authorization, execution and delivery by the City, is in �' full force and effect and is a valid and legally binding instrument of Developer `! enforceable in accordance with its terms, except as the same may be limited by '' bankruptcy, insolvency, reorganization orother laws relating to oraffecting creditors' yi rights generally. Developer's counsel shall issue a legal opinion to the City, at time of closing, confirming the representations contained herein, in the form attached � hereto as Exhibit B. � � (3) The execution and delivery of this Agreement, the consummation of the � transactions contemplated hereby, and the fulfillment of or compliance with the � terms and conditions of this Agreement are not prevented by, limited by, in conflict � with, or result in a violation or breach of, the terms, conditions or provisions of the articles of incorporation or the bylaws of Developer or any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which � Developer is now a party or by which it or its property is bound, or constitute a default under any of the foregoing. (4) l"here 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, financial position or result of operations of Developer or which affects the validity of the Agreement or Developer's ability to perForm its obligations under this Agreement. (5) Developer will perForm its obligations under this Agreement in accordance with the material terms of this Agreement, the Urban Renewal Plan and all local, State and federal laws and regulations. 3 � � � � � � (6) Developer will use its best efforts to obtain, or cause to be obtained, in a timely manner, all material requirements of all applicable local, state, and federal laws and regulations which must be obtained or met. � (7) Developer has firm commitments for permanent financing for the Project in � an amount sufficient, together with equity commitments, to successfully complete ° the requirements of this Agreement and shall provide evidence thereof to City prior to the Closing Date. 1.3 Closinq. The Closing shall take place on the Closing Date which shall be the 30tn day of November, 2017, or such other date as the parties shall agree in writing but in no event shall the Closing Date be later than the 31 St day of January, 2018. Consummation of � the Closing shall be deemed an agreement of the parties to this Agreement that the � conditions of Closing shall have been satisfied or waived. �� li 1.4 Conditions to Closinq. 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: I; �: (1) The representations and warranties made by City in Section 1.1 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 to that effect in the form of Exhibit C. �! � (2) Developer shall have the right to terminate this Agreement at anytime priorto the consummation of the closing on the Closing Date if Developer determines in its sole discretion that conditions necessary for the successful completion of the � Project contemplated herein have not been satisfied in Developer's sole discretion. � Upon the giving of notice of termination by Developer to City, this Agreement shall be deemed null and void. (3) Developer and City shall be in material compliance with all the terms and provisions of this Agreement. (4) 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 Developer's financial ability as the reasonable judgment of the City requires. (5) Developer's counsel shall issue a legal opinion to the City confirming the representations contained herein in the form attached hereto as Exhibit B. 4 � � s d 1.5 Citv's Obliqations at Closing. At or prior to the Closing Date, City shall deliver to Developer such other documents as may be required by this Agreement, all in a form satisfactory to Developer. SECTION 2. DEVELOPMENT ACTIVITIES 2.1 Required Minimum Improvements. Developer will make a capital investment of approximately Ten Million Dollars($10,000,000.00)to improve the Property(the Minimum Improvements). The Minimum Improvements shall consist of the rehabilitation of the Church and Rectory buildings (the Buildings). I 2.2 [This section intentionally left blank] 2.3 Plans for Construction of Minimum Improvements. Plans and specifications with � respect to the development of the Property and the construction of the Minimum F Improvements thereon (the Construction Plans)shall be in conformitywith Urban Renewal Plan, this Agreement, and all applicable state and local laws and regulations, including but not limited to any covenants, conditions, restrictions, reservations, easements, liens and charges, recorded in the records of Dubuque County, lowa. Developer shall submit to City, for approval by City, plans, drawings, specifications, and related documents with respect to the improvements to be constructed by Developer on the Property. All work with respect to the Minimum Improvements shall be in substantial conformitywith the Construction Plans ` approved by City. � i 2.4 Timinq of Improvements. Developer hereby agrees that construction of the � Minimum Improvements on the Property shall be commenced within thirty(30) days after � the Closing Date, and shall be substantially completed by October 1, 2019. 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 resuft in extraordinary delays. The time for performance of such obligations shall be extended only for the period of such delay. 2.5 Certificate of Completion. Promptly following the request of Developer upon completion of the Minimum Improvements, City shall furnish Developerwith an appropriate instrument so certifying in the form attached as Exhibit F. 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. SECTION 3. CITY PARTICIPATION � { 3.1 This section intentionally left blank. � ! � ; 5 f � f I 3.2 Economic Development Grants. (1) For and in consideration of Developer'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 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 Developer, as follows: November 1, 2021 May 1, 2022 ' November 1, 2022 May 1, 2023 1 November 1, 2023 May 1, 2024 November 1, 2024 May 1, 2025 � November 1, 2025 May 1, 2026 � November 1, 2026 May 1, 2027 , November 1, 2027 May 1, 2028 '� November 1, 2028 May 1, 2029 i November 1, 2029 May 1, 2030 � November 1, 2030 May 1, 2031 � � � pursuant to lowa Code Section 403.9 of the Urban Renewal Law, in amounts equal �� to the actual amount of tax increment revenues collected by City under lowa Code Section 403.19 (without regard to any averaging that may otherwise be utilized under lowa Code Section 403.19 and excluding any interest that may accrue thereon prior to payment to Developer) during the preceding six-month period in respect of the Property and Minimum Improvements constructed by Developer(the Developer Tax Increments). For purposes of calculating the amount of the Economic Development Grants provided in this Section, the Developer Tax Increments shall be only those tax increment revenues collected by City in respect of the increase in the assessed value of the Property above the assessment of January 1, 2017 ($228,650.00). Developer recognizes and agrees 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 forthe regular and voter-approved physical plant and equipment levy, instructional support levy, and any other portion required to be excluded by lowa 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, 2020, and each year thereafter, 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 shall thereafter be disbursed to the Developer on 6 � November 1 and May 1 of that fiscal year. (Example: if City so certifies in December, 2020, the Economic Development Grants in respect thereof would be paid to the Developer on November 1, 2021, and May 1, 2022). (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 SS Event Center TIF Account of City. City hereby covenants and agrees to maintain its TIF ordinance in force during the term hereof and to apply the incremental taxes collected in respect of the Minimum Improvements and allocated ; to the SS Event Center TIF Account to pay the Economic Development Grants, as and to the extent set forth in Section 3.2 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 Developer as the Economic Development Grants in any one year and under no circumstances shall City in any�manner be liable to � Developer so long as City timely applies the Developer Tax Increments actually � collected and held in the SS Event Center's TIF Account(regardless of the amounts � thereof)to the payment of the Economic Development Grants to 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 and the remaining actual amount of the property taxes paid by Developer to City, 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 with respect to the use thereof. � (5) All of City's obligations under this Agreement, including but not limited to City's obligation 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 Downtown Rehabilitation Incentives. (1) Planning and Design Grant. City agrees to provide a matching(1:1)grant not to exceed Ten�housand Dollars(�1 c�,0�0)to reimburse Developer for documented predevelopment costs, architectural and engineering fees and otherauthorized soft costs associated with the rehabilitation of the Property on the terms and conditions set forth in Exhibit G. Prior to the release of any grant funds, City must determine to its satisfaction that the Project is substantially complete and meets the conditions of this Agreement. (2) Fa�ade Grant. City agrees to provide a matching (1:1) grant not to exceed Ten Thousand Dollars ($10,000)to reimburse Developer for documented costs for � f li� front or rear fa�ade renovations to the Property to eliminate inappropriate additions , or alterations and to restore the fa�ade to its historic appearance, or to rehabilitate the fa�ade to include new windows, paint, signage, awnings, etc., to improve the � overall appearance of the Property, and the costs of landscaping or screening with fencing or retaining walls if such landscaping or screening improves the Property � adjacent to the public right-of-way, on the terms and conditions set forth in Exhibit � G. � � �� (3) Financial Consultant Grant. City agrees to provide a matching(1:1)grant not r to exceed Fifteen Thousand Dollars ($15,000) to reimburse Developer for �, documented costs related to hiring a financial consultant to evaluate the Project's N feasibility on the terms and conditions set forth in Exhibit G. Such funds will be � disbursed only on completion of the Minimum Improvements, documentation of costs and an inspection of the completed Project. (4) Written requests for payment of grant funds must be submitted to the ;� Economic Development Department together with all required documentation. !� i 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 ��I pledged tax increment revenues shall be an obligation limited to currently budgeted funds, r, 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 il 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 aid durin an fiscal ear durin the term of this A reement � P J Y Y 9 9 i 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 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 r s � B 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 DEVELOPER 5.1 The Minimum Improvements shall conform to the U.S. Secretary of the Interior's Standards for Rehabilitationa If the Project is not awarded Historic Tax Credits, the U.S. Secretary of the Interior's Standards for Rehabilitation will be interpreted by City Planning staff, at its sole discretion, for the Exterior Improvements. ; 5.2 This section intentionally left blank. � 5.3 Books and Records. During the term of this Agreement, Developer shall keep at all times and make available to City upon reasonable request proper books of record and I� account in which full, true and correct entries will be made of all dealings and transactions � of or in relation to the business and affairs of Developer in accordance with generally ' � �; accepted accounting principles consistently applied throughout the period involved, and Developer shall provide reasonable protection against loss or damage to such books of record and account. 5.4 Real Property Taxes. 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, avaifable under state law or city ordinance during the �erm ot this Agreement, including those that arise under lowa Code Chapters 404 and 427, as amended. 5a6 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 at its sole cost and expense builder's risk insurance, written on a Completed Value Form in an amount equal to one hundred percent (100%) of the building (including Minimum Improvements) replacement value when construction is completed, naming City as an additional insured and loss payee. Coverage shall include the "special perils" form and developer shall furnish City with proof of insurance in the form of a certificate of insurance. 9 � (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 property insurance against loss and/or damage to the building (including the Minimum Improvements) under an insurance policy written with the "special perils99 form and in an amount not less than the full insurable replacement value of the building (including the Minimum Improvements), naming City as loss payee. Developer shall furnish to City proof of insurance in the form of a certificate of insurance. (3) The term "replacement value" shall mean the actual replacement cost of the building with 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. � (4) Developer shall notify City immediately in the case of damage exceeding $50,000 in amount to, or destruction of, the Minimum Improvements or any portion i thereof resulting from fire or other casualty. Net proceeds of any such insurance (Net Proceeds), shall be paid directly to Developer as its interests may appear, and Developer shall forthwith repair, reconstruct and restore the Minimum Improvements � to substantially the same or an improved condition or value as they existed prior to the event causing such damage and, to the extent necessary to accomplish such � repair, reconstruction and restoration, Developer shall apply the Net Proceeds of any insurance relating to such damage received by Developer to the payment or �' reimbursement of the costs thereof, subject, however, to the terms of any mortgage encumbering title to the Property (as its interests may appear). Developer shall complete the repair, reconstruction and restoration of Minimum Improvements � whether or not the Net Proceeds of insurance received by Developer for such � purposes are sufficient. � 5.7 Preservation of Propertv. During the term of this Agreement, Developer shall maintain, preserve and keep, or cause others to maintain, preserve and keep, the Minimum Improvements in good repair and working order, ordinary wear and tear accepted, and from time to time shall make all necessary repairs, replacements, renewals and additions. 5.8 Non-Discrimination. In carrying out the project, Developer shall not discriminate � against any employee or applicant for employment because of race, religion, color, sex, sexual orientation, gender identity, national origin, age or disability. 5.9 Conflict of Interest. Developer agrees that no member, officer or employee of City, or its designees or agents, nor any consultant or member of the governing body of City, and no other public official of City who exercises or has exercised any functions or responsibilities with respect to the project during his or her tenure, or who is in a position to participate in a decision-making process or gain insider information with regard to the lo � � project, shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the project, or in any activity, or benefit therefrom, which is part of this project at any time during or after such person's tenure. In connection with this obligation, Developer shall have the right to rely upon the representations of any party with whom it does business and shall not be obligated to perForm any further examination into such party's background. 5.10 Non-Transferabilitv. During the Term of this Agreement, this Agreement may not be assigned by Developer nor may any portion of the Property be sold or otherwise transferred by Developer without the prior written consent of City in City°s sole discretion. City has no obligation to consent to any assignment or sale. r 5.11 No change in Tax Classification. Developer agrees that it will not take any action to � change, or otherwise allow, the classification of the Property for property tax purposes to � become other than residential property and to be taxed as such under lowa law. 5.12 Restrictions on Use. Developer agrees for itself, and its successors and assigns, I and every successor in interest to the Property or any part thereof that they, and their respective successors and assigns, shall: � (1) Devote the Property to, and only to and in accordance with, the uses specified in the Urban Renewal Plan (and City represents and agrees that use of the Property as an event center association, is in full compliance with the Urban � Renewal Plan) (however, Developer shall not have any liability to City to the extent that a successor in interest shall breach this covenant and City shall seek enforcement of this covenant directly against the party in breach of same); and (2) Not discriminate upon the basis of race, religion, color, sex, sexual � orientation, 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). 5.13 Compliance with Laws, Developer shall comply with all laws, rules and regulations relating to its businesses, other than laws, rules and regulations the failure to comply with or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, financial or otherwise, of Developer. SECTION 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: � �� s & (1) Failure by Developer to pay or cause to be paid, before delinquency, all real property taxes assessed with respect to the Minimum Improvements and the Property. (2) Failure by Developer to cause the construction of the Minimum Improvements to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement. (3) Transfer of any interest by Developer of the Minimum Improvements in violation of the provisions of this Agreement prior to the issuance of the final � Certificate of Completion. (4) Failure by Developer or City to substantially observe or perForm any other material covenant, condition, obligation or agreement on its part to be observed or perFormed under this Agreement. 6.2. Remedies on Default by Developer. 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) 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 'i; Default cannot be cured within sixty(60)days and Developer 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 Developer deemed adequate by City, that the Developer 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 Downtown Rehab Loan/Grant, Downtown Housing Incentive and Economic Development Grant to Developer and City may take any action, including any legal action it deems necessary, to recover such amounts from the Developer; (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 No Remedv 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 12 w 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. � 6.4 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. 6.5 Aqreement 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. � 6.6 Remedies on Default by Citv. If City defaults in the performance of this Agreement, Developer may take any action, including legal, equitable or administrative action that may li appear necessary or desirable to collect any payments due under this Agreement, to � recover expenses of Developer, or to enforce performance and observance of any obligation, agreement, or covenant of City under this Agreement. Developer may suspend its performance under this Agreement until it receives assurances from City, deemed adequate by Developer, that City will cure its default and continue its perFormance under this Agreement. SECTION 7. GENERAL TERMS AND PROVISIONS. ' 7.1 Notices and Demands. Wheneverthis Agreement requires or permits any notice or written request by one party to another, it shall be deemed to have been properly given if and when delivered in person or three (3) business days after having been deposited in any U.S. Postal Service and sent by registered or certified mail, postage prepaid, � addressed as follows: If to Developer: SS Event Center LLC Jack McCullough, President PO Box 3188 Dubuque, IA 52004-3188 With copy to: Flint Drake Drake Law, P.C. � 300 Main Street, Suite 323 Dubuque, IA 52001 13 I 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. 13t" Street Dubuque IA 52001 Or at such other address with respect to either party as that party may, from time to time � designate in writing and forward to the other as provided in this Section. �7.2 Bindinq Effect. This Agreement shall be bindmg upon and shall inure to the benefit � of City and Developer and their respective successors and assigns. � i� 7.3 Termination Date. This Agreement and the rights and obligations of the parties '�,� hereunder shall terminate on June 1, 2031 (the Termination Date). G � �, 7.4 Execution By Facsimile. The parties agree that this Agreement may be transmitted � between them by facsimile machine or electronic transmission. The parties intend that the 'h faxed or electronic transmission signatures constitute original signatures and that a faxed �� or electronically transmitted Agreement containing the signatures (original, faxed or � electronically transmitted) of all the parties is binding on the parties. �, � 7.5 Memorandum of Development Aqreement. Developer shall promptly record a � Memorandum of Development Agreement in the form attached hereto as Exhibit D in the � office of the Recorder of Dubuque County, lowa. Developer shall pay the costs for so � recording. � IN WITNESS WHEREOF, City has caused this Agreementto 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 on or as of the first above written. CITY OF DUB QUE, IOWA SS EVENT CENTER, LLC B � B Y Y Roy D. B ol, Mayor McCu , President Attest: � ��_�-� � , r�. ��,. ../ � 14 ° � � � Kevin S. Firnstahl City Clerk � � i � � � � 15 � (City Seal) � STATE OF IOWA ) ) SS COUNTY OF DUBUQUE ) On this � day of �� 201 � before me the undersigned, a Notary Public in and for the said County and State, 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, lowa, a municipal corporation executing the instrument to which this is attached;that the seal affixed hereto is the seal of said municipal corporation; that said instrument was signed and sealed on behalf of the City of Dubuque, lowa, by authority of its City Council; and that said Mayor and City Clerk acknowledged the execution of said instrument to be the voluntary act and deed of said , City, by it a by them voluntarily executed. � � �^w�,^�,� ,I�d4M4�Ld1 J,BB�cGR1RR(9N l � Commission Nomber 772419 Notary P blic ��.,a�� comm.�x�. -.��.�r� i � - � STATE OF IOWA ) � ) SS COUNTY OF DUBUQUE ) 1 � On this � day of b � 20��efore me the undersigned, a Notary � Public in and for the State of lowa, personally appeared Jack McCullough,to me personally known, who, being by me duly sworn, did say that he is the President of SS Event Center LLC, the lowa non-profit corporation executing the instrument to which this is attached and that as said President of SS Event Center LLC acknowledges the execution of said instrument tQ be the voluntary act and deed of said company, by it and by him, an individua�=;volu'�tarily executed. ' � r � � . � Notary Public plllt , o� . F Pe��EL�J.N6cCARFB(DN : � �;c�rnmission Numbsr 772419 IaMh � �'�1/t,iYif}ill. E_X�. °��,�� . � 16 � � 6 LIST OF EXHIBITS EXHIBIT A — City Attorney Certificate EXHIBIT B — Opinion of Developer Counsel EXHIBIT C — City Certificate EXHIBIT D — Memorandum of Development Agreement EXHIBIT E — Urban Renewal Plan EXHIBIT F — Certificate of Completion EXHIBIT G — Downtown Rehabilitation Grant Program Guidelines I I� � ; � i � i� P � EXHIBIT A CITY ATTORNEY'S CERTIFICATE I � � � ; � � H li � i � I � ;r � h � � �; I; � N � � ;i � a M, ;{ � YJ ry � �W £ � � � � 3 p � 10 � �k 9$ I BARRY A. LINDAHL � ESQe �rEcrrYor- �� CITY ATTORNEY � ��,��' �� t/ (DATE) � f RE: !� � Dear � I have acted as counsel for the City of Dubuque, lowa, in connection with the execution and delivery of a certain Development Agreement between (Developer) and the City of Dubuque, lowa (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. Very sincerely, � Barry A. Lindahl, Esq. City Attorney BAL:tIs � I � 19 � EXHIBIT B OPINION OF DEVELOPER'S COUNSEL , � II 1 : � � � � � 20 � � � � Mayor and City Councilmembers City Hall - 13t" and Central Avenue Dubuque IA 52001 Re: Development Agreement Between the City of Dubuque, lowa and Dear Mayor and City Councilmembers: � We have acted as counsel for , (Developer)in connection with Pi the execution and delivery of a certain Development Agreement(Development Agreement) i between Developer and the City of Dubuque, lowa ("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 ,II documents and records as we have deemed relevant and necessary as a basis for the opinions set forth herein. I, �' Based on the pertinent law, the foregoing examination and such other inquiries as '� we have deemed appropriate, we are of the opinion that: i�; 1. Developer is a corporation organized and existing underthe laws of the State I� of Illinois 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 A�rPPmar�t anr� �f-�P ra�-niir�� n�t nf thP tPrm� thPrPnf, wjll nnt rP�i�lt in vi��ati�n nf anv provision of, or in default under, the articles of incorporation and bylaws of Developer, any indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree, order, statute, rule, regulation or restriction to which Developer is a party or by which Developer's property is bound or subject. 3. There are no actions, suits or proceedings pending or threatened against or affecting Developer in any court or before any arbitrator or before or by any governmental body in which there is a reasonable possibility of an adverse decision which could materially adversely affect the business (present or prospective), financial position or results of operations of Developer or which in any manner raises any questions affecting the validity of the Agreement or the Developer's ability to perForm Developer's obligations thereunder. Very truly yours, ' 2� � EXHIBIT C CITY CERTIFICATE � � �I � 22 � `I�iE CI'T'Y C7F � � � Gittt l4�itnager's C7fti�� L��G�� 5!�4V�st 23t1�StreeE L7ubuque,Ioiva 5�OQ1-�86� {563)��i9-�130 g�toile {563)58�-41=�R£� cEymgr�cityofdubu�ue.c�rg ' (DATE) i ; Dear � � I am the City Manager of the City of Dubuque, lowa 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, lowa (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) City has duly obtained all necessary approvals and consents for its � execution, delivery and performance of this Agreement and that 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 B. � (2) City shall exercise its best efforts to cooperate with Developer in the development process. (3) City shall exercise its best efforts to resolve any disputes arising during the development process in a reasonable and prompt fashion. (4) The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, and the fulfillment of or compliance with the terms and conditions of this Agreement are not prevented by, limited by, in conflict � with, or result in a violation or breach of, the terms, conditions or provisions of the charter of City, any evidence of indebtedness, agreement or instrument of whatever nature to which City is now a party or by which it or its property is bound, or constitute a default under any of the foregoing. (5) There are no actions, suits or proceedings pending or threatened against or affecting City in any court or before any arbitrator or before or by any governmental � � 23 � d � � � � a body in which there is a reasonable possibility of an adverse decision which could � materially adversely affect the financial position or operations of City or which � affects the validity of the Agreement or City's ability to perForm its obligations under �; this Agreement. � � (6) 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 ii' Property. � �� (7) The representations and warranties contained in this article shall be correct j 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, � �i !l � Michael C. Van Milligen jj City Manager MCVM:jh + � � � � � � � 9 24 � � � � � EXHIBIT D MEMORANDUM OF DEVELOPMENT AGREEMENT � � :� � � � I, � � y '� � � � 25 � � � � � � � 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 !i A Development Agreement by and among the City of Dubuque, lowa, an lowa non-profit � corporation, of Dubuque, lowa, and SS Event Center LLC was made regarding the following described premises ,, i [LOT 1 OF CITY LOT 484] in the City of Dubuque. � � The Development Agreement is dated for reference purposes the day of , 2017, 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 iiic viiji v� vuvu�uPc c'.�iiu iiiuy �.4iig �cnuiii�iiv�u ui ii� v��iiv�� u.�i u.�i^vv�� Nrv��v�. � � Dated this day of , 2017. C1�YY OF DU�lDt�4JE, IO�iR �� E\OENT CENTER LLC By By Roy D. Buol Jack McCullough Mayor President 26 � Attest: � y Kevin S. Firnstahl � City Clerk i STATE OF IOWA ) � SS � COUNTY OF DUBUQUE ) � �; On this day of , 20_, before me, a�Notary Public in and forthe State of � lowa, 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 lowa, and that the seal affixed to said instrument is � the seal of said Municipal Corporation and that said instrument was signed and sealed on �I� 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 'I� Municipal Corporation by it voluntarily executed. � ,� '� � , Notary Public, State of lowa � � STATE OF IOWA ) � � SS ° COUNTY OF DUBUQUE ) On this day of 20_, before me the undersigned, a Notary Public in and for the State of lowa, personally appeared Jack McCullough,to me personally known, wno, aeing by me duiy sworn, aia say tnat ne is ine rresideni oT 55 tvent Lenter � LLC, the lowa non-profit organization executing the instrument to which this is attached and that as said President of SS Event Center LLC acknowledges the execution of said instrument to be the voluntary act and deed of said company, by it and by him, an individual, voluntarily executed. Notary Public, State of lowa 27 r EXHIBIT E URBAN RENEWAL PLAN � (' �I h r i � 'I I! � 28 � � R ��: Jilf .�€�yr caf . .uqu�,�'�.13��, �e.F�,:��L�}��t� F�e1s�r��a; ��ai�€��€m�h��ii-�€sf . e,�4'�. ��th��t,��i ,G�S��,�.'.��'�i I �� l�E��iT�� , � �� .� ' � �� `� ��,�� n��I��f�r��r[��.��a��u�, I�� H,��r� ��r��«��r�� r�t��r� H��:�d ��a��►�� ir�� E�.��I [��i�� k�� .��€�d�� d �.�°�� r�� 1��a� �I� f�€'#I� �r�:�� a��r� �e�i�� F�� ; �i�t�� t��a�� €��r �� C�� f�� i��f �� j�� ! �u��r I��'��, �€��l�a��[��-i��i��f#�� i.�� i G��, ��.�a� ��i�� `��'��-�t��,�� i� �� . �� , ��z � � ��-i��-�� -�f� �`�� `��-� � ��ilr,��. ��-��r� �� , �; ��, ��€�[��aa� ��-��-��cs€�� , k� �i� �t�-�� et��, `��r 6� � ��l�t� ��-�� , `��, E��-i��t�� - �� '��',��c�€� � �-7�� r� ��- ��, �� r-� 6� ��(:�ca€� '��-�� e��f �, ��, ��t� �� il �� r��f �i�i.�x ��i�I�F ��i�� r�� f�� i�g ��C� �f�-i� '� �� E �� r� �� , `�� d �a�,�r�t� �� r� e��d' �r� i ��f��r� ��-�� r� �, �� rr� b� ��1�� -�� c �� -� � �� e�� t-��r�� . t�C�r� �.�r��-�C��#�e��e�i€�� i� �7� � �i� �'�g 2.�a �� l�t�r� ��-� �e� �� `�,: �� b� ��i� '�� -i �� , ��a �� .�l��a ��`-�� t�� , ��i��f �� i�� -i�f��, �� -�� . �, ��, i �� i�� , ��_ �r� ��, �� -i� ��ep�e ��[��d �r��tri�[ ��r� E�r�rn�� el��t �€�ir�� t��e� E�� €�i�s ��-�4�i ��t '��a �� { �� r� ��r�r�� I��t ��t��, �a��r-�fhy ��i�i�: b�� E ��C�rt�r� ��-� �� a€�� 1�� t � �� t�� F ��t�� r��l �i�� a�t t� ��r��a� ��-�� d �� , ��:�- T��e ��e�� te��R ��r�l�� i�� ti�e�4�� p��E�e `3�g ��, � rn�� « �d! be�� r� �f �� r��,.�- �� -�-i ,, �� t �� #� ��C�e� �7�-'�2 �� a� ��#�� P ��. T�� ,�� -i�� I�, f��r��t�� F��,� ��f��t r��a.a�i�g fro��r� nE...�a..�si.,.+,�_.i,EE.�. � .J,.}J .,3 $a• � G�:.€"Ex�..xE.a€;,._... 'I�*i�3' •�'� 1�a.�n Ki'2 '�SLi'4�' T�s... �'d�fi�I�L11�9LL�i�L€�'�4P'€��3€�€ �i-`"�AE��I�J�A��:d€�4� I�t�. t��` �.�lJ6LEG,34![1 Id",.}"-E,.7#RI:r.�7.A�1�Fl,.a'a...{.f.3€.l'._ ��1� ��y ��i�� t��•i: ��r��l �i��, �ri�i�r�� d �� F��ic�� -1� �r .��[� ��, z�`�1 ��r�i�t��r��m� ��€��f�e�m�d� �� er�st��d'�r��r�r��.�� F�� t ��a�rt � F��I�i�� '�3`�-`�� r� �� 1�, �#��. �� i� �-i�ua� ��r�� r��r��r��r� ��r��1 ��t��a��t��e��r�e�� [� �� I�r� ��-7��r��'� r� ��`�9��_ Tt� ��i��, � P�I�� r�� t �i��i��, �� t�l�li�� k��r ��€�� l'�-�� PP�� k�er�r�c��b:��r�t��r�en�n��d �e��..,�t�d�I��«�i� ��-7��f�i ��a�� , ��1�� :�� e� i�t� �r� �r�� p��t �fi �-i� ��r- : � 1.�� R�� i��t��r��e�[►.��-'��r�c��r�f��+��,;��"I�. �� I�rt�r� ��, �d�t� �i �I�r�� a ��`�7, �i� +�i�� c�� pp€�� €�� t�� er��d�d�r� ��€��a��r�f�r t��r��t��i�� t��i��t_ 29 � � � EXHIBIT F CERTIFICATE OF COMPLETION � � � � � � � ,� N 30 � CERTIFICATE OF COMPLETION WHEREAS, the City of Dubuque, lowa, a municipal corporation(the"Grantor"), has granted incentives to SS Event Center LLC (the "Grantee"), in accordance with a Development Agreement dated as of[Date](the"Agreement"), certain real property located within the Greater powntown Urban Renewal District of the Grantor and as more particularly described as follows: � LOT 1 OF CITY LOT 484 � (the "Development Property"); and WHEREAS, said Agreement incorporated and contained certain covenants and ' conditions with respect to the rehabilitation of the Development Property, and obligated the � Grantee to construct certain Minimum Improvements (as defined therein) in accordance with the Agreement; and � WHEREAS, the Grantee has to the present date performed said covenants and � conditions insofar as they relate to the construction of the Minimum Improvements in a ��; manner deemed sufficient by the Grantor to permit the execution and recording of this i; certification; and j h NOW, THEREFORE, pursuant to Section 2.5 of the Agreement,this is to certify that ' all covenants and conditions of the Agreement with respect to the obligations of the Grantee, and its successors and assigns, to construct the Minimum Improvements on the Development Property have been completed and perFormed by the Grantee to the ' satisfaction of the Grantor and such covenants and conditions are hereby satisfied. The County Recorder of Dubuque County is hereby authorized to accept for recording and to record the filing of this instrument, to be a conclusive determination of the satisfaction of the covenants and conditions as set forth in said Agreement, and that the Agreement shall otherwise remain in full force and effect. (SEAL) CITY OF DUBUQUE, IOWA By: Mike Van Milligen, City Manager STATE OF IOWA ) ) SS COUNTY OF DUBUQUE ) 31 � I I il On this day of , 2017, before me, the undersigned, a Notary Public ' in and for the State of lowa, personally appeared and acknowledged said execution of the instrument to be his/her voluntary act and deed. 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F "°,�,°r `P t� ` " � � 1�� :�-, � � � h % ""` �'i ,� 1 � y � � � ,�.�.1x "t� _ �. � � � � � '6 7 `° � m � � � U � � Z � � Dy�4 �� ti > „ : � � �� ; � � � � � � � g� � � an � � � � ¢ � s ��-! , �� ;'�r •��'�� :�`1 � �� a � c5� 3 'u� � s�t s�` s� t � o �, � r- § � � � � d` J..�-1 - � � w _ � � a � ;� � -�-, ,��-, � � � ,� � �' -''Zu1 ��l � � $ ��: i_� � � iuC 4:` b „��4 ��. �a, 39 RESOLUTION NO. -19 APPROVING COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND SS EVENT CENTER, LLC RELATED TO THE REHABILITATION OF 101 E 15TH STREET Whereas, the property at 101 E 15�h Street in Dubuque, lowa (the Building) is owned by SS Event Center, LLC (Owner); and Whereas, Owner and the City of Dubuque (City) have entered into a Development Agreement for the rehabilitation of the Building; and Whereas, Owner will enter into a loan agreement with Dubuque Bank & Trust Co. (DB&T) for additional funding for the rehabilitation of the Building and DB&T has requested that Owner agree to the Collateral Assignment of the Development Agreement a copy of which is attached hereto (the Collateral Assignment), which Collateral Assignment requires City consent; and Whereas, the City Council finds that the City should consent to the Collateral Assignment. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF DUBUQUE, IOWA AS FOLLOWS: Section 1 . The City of Dubuque consents to the Collateral Assignment of the Development Agreement. Section 2. The Mayor is authorized and directed to sign the Collateral Assignment of the Development Agreement on behalf of the City of Dubuque. Passed, approved and adopted this day of , 2019. Roy D. Buol, Mayor Attest: Kevin S. Firnstahl, City Clerk