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Dupaco Voice, LLC/Dupaco Credit Union_First Amendment to DA Copyrighted September 3, 2019 City of Dubuque Consent Items # 23. ITEM TITLE: FirstAmendmentto DevelopmentAgreementbyand among Dupaco Voices, LLC, Dupaco Community Credit Union, and the Cityof Dubuque SUMMARY: City Manager recommending approval of a First Amendment to Development Agreement by and among Dupaco Voices, LLC, Dupaco Community Credit Union and the City of Dubuque. RESOLUTION Approving a FirstAmendment to Development Agreement by and among the City of Dubuque, lowa; Dupaco Voices, LLC; and Dupaco Community Credit Union SUGGESTED DISPOSITION: Suggested Disposition: Receiveand File;Adopt Resolution(s) ATTACHMENTS: Description Type Dupaco Voices FirstAmendmentto De�lopment City Manager Memo Agreement-MVM Memo Staff Memo Staff Memo Original DevelopmentAgreement Supporting Documentation 1stAmendmentto DA Supporting Documentation Resolution of Approval Resolutions Dubuque THE CITY OF � uI�AaMca cih DuB E � � I � � I Maste iece on the Mississi i Zoo�•zoiz•zois YP pp zoi�*zoi9 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: First Amendment to Development Agreement by and among Dupaco Voices, LLC, Dupaco Community Credit Union, and the City of Dubuque DATE: August 28, 2019 Economic Development Director Jill Connors recommends City Council approval of a First Amendment to Development Agreement by and among Dupaco Voices, LLC, Dupaco Community Credit Union and the City of Dubuque. The First Amendment revises Section 2.3 of the Development Agreement to reflect forgiveness of the $101,691.67 balance of the special assessment as of the closing on May 30, 2019. I concur with the recommendation and respectfully request Mayor and City Council approval. v 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 � so west 13<h street D� L L Alll;EflCijly Dubuque,lowa 52001-4864 1 I I �I Office(563)589-4393 TTY(563)690-6678 http://www.cityofd u b uq ue.org 2007�2012�2013 Masterpiece on the Mississippi zoi�*zoi9 TO: Michael C. Van Milligen, City Manager FROM: Jill M. Connors, Economic Development Director SUBJECT: First Amendment to Development Agreement by and among Dupaco Voices, LLC, Dupaco Community Credit Union, and the City of Dubuque DATE: August 27, 2019 INTRODUCTION This memorandum presents for City Council consideration and action the attached resolution approving a First Amendment to Development Agreement by and among Dupaco Voices, LLC, Dupaco Community Credit Union, and the City of Dubuque for the property at 1000 Jackson Street. BACKGROUND In 2010, the City of Dubuque began to construct public improvements that were in the best interest of the City and the Historic Millwork District in order to support and encourage private development in the District. In order to accomplish these improvements, the City negotiated voluntary assessment agreements with several District property owners, including the property owner for 1000 Jackson Street, Wilmac Property Company. The total special assessment for the property at 1000 Jackson Street was $162,099.49. The assessment was to be forgiven when the property owner constructed certain minimum improvements on the property. Those minimum improvements at 1000 Jackson Street were not completed and in February 2013, the City Council adopted the final assessment schedule authorizing the county treasurer to begin collecting the annual required payments of the assessment. The balance owed at that time was $155,484.39. DISCUSSION On January 22, 2019, the City Council approved a Development Agreement by and among Dupaco Voices, LLC, Dupaco Community Credit Union, and the City of Dubuque for the development of the property at 1000 Jackson Street, subject to the sale of the property by Wilmac Property Company to Dupaco Voices, LLC. Dupaco Voices, LLC acquired the property in 2019. The Development Agreement included language providing that the remaining balance of the special assessment would be forgiven upon completion of the Minimum Improvements. However, the City and Dupaco Voices, LLC had previously agreed that the special assessment balance would be forgiven as of the closing date for the Development Agreement. The closing was held May 30, 2019. The balance of the special assessment on May 30, 2019 was $101 ,691 .67. In order to formalize the agreement of the parties, an amendment to the Development Agreement is required. The attached First Amendment revises Section 2.3 of the Development Agreement to reflect forgiveness of the $101 ,691 .67 balance of the special assessment as of the closing on May 30, 2019. RECOMMENDATION/ ACTION STEP I recommend that the attached resolution approving the First Amendment to Development Agreement be submitted to the City Council for consideration and adoption. z Prepared by: Jill Connors, Economic Development, 50 W. 13th Street, Dubuque IA 52001, 563 589-4393 Return to: Jill Connors, Economic Development, 50 W. 13th Street, Dubuque IA 52001, 563 589-4393 RESOLUTION NO. 320-19 APPROVING A FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF DUBUQUE, IOWA, DUPACO VOICES, LLC AND DUPACO COMMUNITY CREDIT UNION Whereas, the City of Dubuque, Iowa, Dupaco Voices, LLC (Developer), and Dupaco Community Credit Union (Employer) entered into a Development Agreement dated for reference purposes January 22, 2019, for the redevelopment of 1000 Jackson Street in the City of Dubuque, Iowa (the Property); and Whereas, City, Developer, and Employer desire to amend the Development Agreement as set forth in the attached First Amendment to Development Agreement; and Whereas, it is the determination of the City Council that approval of the First Amendment to Development Agreement is in the public interest of the City of Dubuque. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA THAT: Section 1. The First Amendment to Development Agreement by and among the City of Dubuque, Iowa, Dupaco Voices, LLC, and Dupaco Community Credit Union is hereby approved. Section 2. The Mayor is hereby authorized and directed to execute the First. Amendment to Development Agreement pn behalf of the City of Dubuque and the City Clerk is authorized and directed to attest to his signature. Section 3. The City Manager is authorized to take such actions as are necessary to comply with the terms of the First Amendment to Development Agreement as herein approved. Passed, approved and adopted this 3rd day of September 2019. (R0Y D. Buol, Mayor Attest: dierA tre d1Z4rAr "CO ev S. Firnstah , City Clerk 082719baI FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF DUBUQUE, IOWA, DUPACO VOICES, LLC AND DUPACO COMMUNITY CREDIT UNION This First Amendment to De,ve-lopment Agreement (Agreement) dated for . reference purposes th ` , day oT , �. %°,ir , 2019, is made and entered into by and among the City of Dubuque, low'` City), Dupaco Voices, LLC (Developer), and Dupaco Community Credit Union (Employer). WHEREAS, City, Developer, and Employer entered into a Development Agreement dated for reference purposes January 22, 2019; and WHEREAS City, Developer, and Employer desire to amend the Development Agreement. NOW, THEREFORE, IT IS AGREED BY AND BETWEEN CITY AND DEVELOPER AS FOLLOWS: 1. Section 2.3 of the Development Agreement is hereby amended to read as follows: 2.3 Voluntary Assessment. A Petition and Waiver Agreement was signed by Wilmac Property Company, a previous owner of the Property, on September 7, 2010, agreeing to a voluntary assessment for street and streetscape improvements for the following amounts: Private Street Donation Assessment Public Street Assessment Private Sanitary Sewer Assessment Private Water Service Assessment Developer's Total Assessment $132,481.00 $17,618.49 $2,000.00 $10,000.00 $162,099.49 The remaining balance of $101,691.67 as of May 30, 2019 shall be forgiven as of the May 30, 2019 Closing Date. 2. All other terms of the Development Agreement shall remain in full force and effect. 082719baI CITY OF DUBUQUE, IOWA By Roy D. B.+.I, Mayor Attest Kevin S1Firnstahl City Clerk (City Seal) STATE OF IOWA COUNTY OF DUBUQUE SS DUPACO COMMUNITY CREDIT UNION Employer By earn, President, CEO DUPACO VOICES, LLC Developer By Jo earn, President On this da t y of �' L� 20%7 before me the undersigned, a Notary Public in and for the said Cou ty 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, Iowa, 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, Iowa, 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 s®ar City, by it and by them voluntarily executed. VI) Lc� NotaryPublic •� -� v ®cam 2 A tx@ /o PAMELA J. McCARRON Commissions Number 772419 My COMM. Ex.p. �- STATE OF IOWA ) SS COUNTY OF DUBUQUE ) -* ADV DEBRA DIGMANN COMMISSION NUMBER 167808 MY COMMISSION EXPIRES On this A 7- day of %uses_ 20 /9, before me the undersigned, a Notary Public in and for the State of Iowa, personally appeared Joe Hearn, to me personally known, who, being by me duly sworn, did say that he is the President & CEO of Dupaco Community Credit Union, the Iowa organization executing the instrument to which this is attached and that as said President & CEO of Dupaco Community Credit Union 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. C.4ila/ , Notary Public STATE OF IOWA COUNTY OF DUBUQUE ) ) ) SS • ;AL DEBRA DIGly ANN COMMISSION NUMBER 167808 MY COMMISSION EXPIRES -of- -v/? On this a7T` day of, sf 20 /Z before me the undersigned, a Notary Public in and for the State of Iowa, personally appeared Joe Hearn, to me personally known, who, being by me duly sworn, did say that he is the President of Dupaco Voices, LLC, the Iowa organization executing the instrument to which this is attached and that as said President of Dupaco Voices, 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 F:\Users\Laserfiche Legal\DuPaco - Voices B1dg\1st Amendment To DupacoDA_1000 Jackson_082719bal.docx 3 � 4 DEVELOPMENT AGREEMENT I BY AND AMONG THE CITY OF DUBUQUE, IOWA, � DUPACO VOICES, LLC AND ��DP�C� CS'�R�lR�lUP�IYY CP.��IY IDL�IOL`.� � q � THIS D EL PME�T AGREEMENT (the Agreement), dated for reference ; purposes th. ' day of. ° �' , 2019, is made and entered into by and among i the City o Dubuque, lo�`a (City), Dupaco Voices, LLC (Developer), and Dupaco '�� Community Credit Union (Employer). ; � WHEREAS, Developer is or will be the owner of the following described real estate the Pro ert I� � p Y)� li LOT 1 WILMAC PLACE (1000 JACKSON STREET & 225 & 275 EAST 10TH); I� locally known as 1000 JACKSON STREET; � !i and i; WHEREAS, the Property is located in the Greater powntown Urban Renewal �I a District (District) which has been so designated by City Council Resolution 381-17 as a �� slum and blighted area (the Project Area) defined by lowa Code Chapter 403 (Urban �,, Renewal Law); and ', il WHEREAS, Employer has determined that it requires a new facility to maintain � and expand its operations and employment in fihe Project Area (the Facility); and � i � 1 WHEREAS, the Facility will be the home office for a multistate business; and ;� WHEREAS, Developer will undertake the redevelopment of a vacant building ,i located on the Property in the Historic Millwork District; and I I WHEREAS, Developer will make a capital investment in building improvements, equipment, furniture and fixtures in the Property (the Project); and WHEREAS, Developer and Employer have entered into an agreement under �� which Developer will redevelop and lease the Facility to Employer; 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 December 4, 2017, City has the authority to enter into contracts and agreements to implement the Urban Renewal Plan, as amended; and 010419ba1 8:38 ( � i �I WHEREAS, the Dubuque City Council believes it is in the best interests of the City to encourage Developer and Employer in the development of the Property by providing certain incentives as set forth herein. I �I rlO��1l, THE�?EFO!?E, th� partie� to this Ce�elopme�t Ag�e�neni, ir consideration of the promises, covenants and a reements made b each other do 9 Y , � hereby agree as follows: � SECTION 1. REPRESENTATIONS AND WARRANTIES. � � I 1.1 Representations and Warranties of Citv. In order to induce Developer and 'i Employer to enter into this Agreement, City hereby represents and warrants to � Developer and Employer that to the best of City's 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 ,I� under this Agreement. City's attorney shall issue a legal opinion to Developer and y Employer at time of closing confirming the representation contained herein, in the ',� form attached hereto as Exhibit A. ,,�(2) City shall exercise its best efforts to cooperate with Developer and I� Employer in the development process. � (3) City shall exercise its besf efforts to resolve any disputes arisin durin '' g g h the development process in a reasonable and prompt fashion. y � (4) The execution and delivery of this Agreement, the consummation of the � transactions conternplated 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 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, 2 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 �gain�t #h� Prop�rty. � ,,� (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. (8) As of the date of this Agreement there has been prepared and approved I by City an Urban Renewal Plan for the Project Area consisting of the Urban '� Renewal Plan for the Greater powntown Urban Renewal Area, most recently approved by City Council of City on December 4, 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, and a copy of which is on file % with the City of Dubuque City Clerk. � � 1.2 Representations and Warranties of Developer and Employer Developer and � Employer make the following representations and warranties: �'� � (1) Developer and Employer are duly organized and validly existing or authorized under the laws of the State of lowa and have all requisite power and authority to own and operate their properties, to carry on their respective � business as now conducted and as presently proposed to be conducted, and to � enter into and perForm their obligations under the Agreement. � i (2) This Agreement has been duly authorized, executed and delivered by h Developer and Employer, and assuming due authorization, execution and � delivery by City, is in full force and efFect and is a valid and legally binding instrument of Developer and Employer enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. Developer's counsel and Ernployer's counsel shall issue legal opinions to the City, at time of closing, confirming the representations contained herein, in the form attached hereto as Exhibit B and Exhibit G. (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 Employer or any contractual restriction, evidence of indebtedness, agreement or instrument 3 of whatever nature to which Developer or Employer is now a party or by which it � or its property is bound, or constitute a default under any of the foregoing. (4) There are no actions, suits or proceedings pending or threatened against or affecting Developer or Employer in any court or before any arbitrator or before Iy or by an;e ge�,eernrn�n#a! b�d� in �hich there i� a rea�or�ab�e pcssibility of ar� � adverse decision which could materially adversely affect the business, financial I position or result of operations of Developer or Employer or which affects the � validity of the Agreement or Developer's or Employer's ability to perForm their � obligations under this Agreement. i (5) Developer and Employer will perform their 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. '� (6) Developer and Employer will use their 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. 1.3 Closinq. The Closing shall take place on the Closing Date which shall be the 1St '; day of May, 2019, or such other date as the parties shall agree in vvriting but in no event � shall the Closing Date be later than the 31 st day of May, 2019. Consummation of the ,� Closing shall be deemed an agreement of the parties to this Agreement that the conditions of Ciosing shall have been satisfied or waived. Provided, however, in the � event Developer or Employer do not receive the state and federal incentives and credits necessary to make the project feasible, in their sole discretion, such parties ma � Y � terminate this agreement at any time, including after closing, without further obligation or liability to City. � � 1.4 Conditions to Closinq. The Closing of the transaction contemplated by #his � Agreement and all the obligations of Developer under this Agreement are subject to � fulfillment, on or before the Closing Date, of the following conditions: � �(1) The representations and warranties made by City in Section 1.1 and by , Developer and Employer in Section 1.2, shall be correct as of the Closing Date g 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 and Employer shall have the right to terminate this Agreement at any time prior to the consummation of the closing on the Closing Date if Developer or Employer determine that conditions necessary for the successful completion of the Project contemplated herein have not been satisfied in Developer's or Employer's sole discretion. Upon the giving of notice of 4 � termination by Developer or Employer to City, this Agreement shall be deemed null and void. � (3) Developer, Employer, and City shall be in material compliance with all the '� terms and provisions of this Agreement. � � (4) Subject to Employer's written approval, Developer having obtained any � and all necessary governmental approvals which might be necessary or desirable in connection with the development of the Pro ert . An conditions � p Y Y imposed as part of any such approval must be satisfactory to Developer in its � sole discretion. City shall cooperate with Developer in attempting to obtain any � such approvals and shall execute any documents necessary for this purpose, i1 provided that City shall bear no expense in connection therewith. In connection ! therewith, the City agrees (a) to review all of Developer's plans and specifications �' for the project and to either reject or approve the same in a prompt and timely I� fashion; (b) to issue a written notification to Developer, following City's approval ; of same, indicating that the City has approved such plans and specifications, and I the same are in compliance with the Urban Renewal Plan, this Agreement and I�� any other applicable City or affiliated agency requirements, with the � understanding that Developer and its lenders shall have the right to rely upon the ;1 same in proceeding with the project; (c) to identify in writing within ten (10) '�� working days of submission of said plans and specifications, any and all permits, � approvals and consents that are legally required for the acquisition of the � Property by Developer, and the construction, use and occupancy of the project with the intent and understanding that Developer and its lenders and attorneys will rely upon same in establishing their agreement and time frames for I construction, use and occupancy, lending on the project and issuing legal opinions in connection therewith; and (d) to cooperate fully with Developer to � streamline and facilitate the obtaining of such permits, approvals and consents. � (5) Developer's counsel and Employer's counsel shall issue a legal opinion to City confirming the representations contained herein in the form attached hereto li as Exhibit B and Exhibit G. � (6) Developer shall have provided City with a copy of a purchase agreement or lease for the Property with Employer. (7) Employer or Developer receiving such state of lowa incentives as necessary to make the Project feasible to Employer in its sole and exclusive discretion. 1.5 City's Obliqations at Closinq. At or prior to the Closing Date, City shall deliver to Developer and Employer such other documents as may be required by this Agreement, all in a form satisfactory to Developer and Employer. SECTION 2. DEVELOPMEN� ACTIVITIESo 5 � 2.1 Required Minimum Improvements. Developer will make a capital investment of approximately Thirty-Eight Million Dollars ($38,000,000.00) to improve the Property for the creation of approximately 82,800 square feet of office space for Employer's headquarters and operations on floors 3,4 and 5 of the building (the Minimum �I,� lrnpro�,rements). �r�ployer �h�!! occ�py at l�aJ# #hr�� 3) floor� of thz �ropert�, � excluding the lower level, and lease the remainder of the building as commercial or ii office space. This shall not prohibit Developer or Employer from placing Interactive �� Teller Machines (ITM) throughout the building. The Minimum Improvements shall consist of the rehabilitation of 1000 Jackson Street (the Building). The Minimum I Improvements shall conform to the U.S. Secretary of the Interior's Standards for II� Rehabilitation. However, if the Project is not awarded Historic Tax Credits by December � 31, 2019, the U.S. Secretary of the Interior's Standards for Rehabilitation will be '� interpreted by City Planning staff, at its sole discretion, to apply only to the Exterior Improvements. � I 2.2 Plans for Construction of Minimum Improvements. Plans and specifications with respect to the development of the Property and the construction of the Minimum � Improvements thereon (the Construction Plans) shall be in conformity with the Urban ; Renewal Plan, this Agreement, and all applicable state and local laws and regulations, i including but not limited to any covenants, conditions, restrictions, reservations, '� easements, liens and charges, recorded in the records of Dubuque County, lowa. ��';�i 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 II conformity with the Construction Plans approved by City. � 2.3 Voluntary Assessment. A Petition and Waiver Agreement was signed by Wilmac r Property Company, a previous owner of the Property, on September 7, 2010, agreeing ' to a voluntary assessment for street and streetscape improvements for the following �; amounts: �' � Private Street Donation Assessment $132,481.00 � Public Street Assessment $17,618.49 Private Sanitary Sewer Assessment $2,000.00 � Private Water Service Assessment 10 000.00 Developer's Total Assessment $162,099.49 y The remaining balance of the Total Assessment shall be forgiven if the Minimum � Improvements are completed in accordance with this Agreement. 2.4 Timing 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 July 31, 2021. 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 6 faith, which are the direct result ofi 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 in�unction or other similar �udicial action or b the exer i 1 � y c se of reasonable discretion directly results in delays, or acts of any federal, state or local government which directly ��; res�alt ir� extraordir�ar�e delay�. Th� #im� �for p�r�orrnance of such obligati�r�s s��ll b� '� extended only for the period of such delay. ��I� 2.5 Certificate of Completion. Promptly following the request of Developer upon I� completion of the Minimum Improvements, City shall furnish Developer with 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 Economic Development Grants. !� (1) For and in consideration of Developer's and Employer's obligations hereunder, and in furtherance of the goals and objectives of the Urban Renewal Plan for the Project Area and the Urban Renewal Law, City agrees, subject to Developer and Employer being and remaining in cornpliance with the terms of this Agreement, to make thirty (30) consecutive semi-annual payments (such payments being referred to collectively as the Economic Development Grants) to Developer as follows: I� 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 � November 1, 2029 May 1, 2030 ' November 1, 2030 May 1, 2031 November 1, 2031 May 1, 2032 November 1, 2032 May 1, 2033 November 1, 2033 May 1, 2034 November 1, 2034 May 1, 2035 November 1, 2035 May 1, 2036 November 1, 2036 May 1, 2037 November 1, 2037 May 1, 2038 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 �it�e in r��p�ct o�f#h� incr�� in the a��e��ed value of the �ro�erty ab��c th� � assessment of January 1, 2018 ($384,922.00). Developer and Employer recognize and agree that the Economic Development Grants shall be paid solely and only from the incremental taxes collected by City in respect to the Property , and Minimum Improvements, which does not include property taxes collected for � the payment of bonds and interest of each taxing district, and taxes for the regular and voter-approved physical plant and equipment levy, instructional � support levy, and any other portion required to be excluded by lowa law, and � thus such incremental taxes will not include all amounts paid by Developer or ;� Employer as regular property taxes. (2) To fund the Economic Development Grants, City shall certify to the County prior to December 1, 2022, 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 � Developer, on November 1 and May 1 of that fiscal year. (Example: if City so i certifies in December, 2022, the Economic Development Grants in respect � thereof would be paid to the Developer on November 1, 2023, and May 1, 2024). '� 0 (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 Voices Dupaco 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 Voices Dupaco 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 or Employer as the Economic Development Grants in any one year and under no circumstances shall City in any manner be liable to Developer or Employer so long as City timely applies the Developer Tax Increments actually collected and held in the Voices Dupaco TIF Account (regardless of the amounts thereofi� to the payment of the Economic Development Grants to Developer as and to the e�ent 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 s �l 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. 3.2 Planninq and Desiqn Grant. City agrees to provide a matching (1:1) grant not to I� exceed Ten Thousand Dollars ($10,000) to reimburse Developer for documented , predevelopment costs, architectural and engineering fees and other authorized soft I� costs associated with the rehabilitation of the Property on the terms and conditions set I� forth in Exhibit H. Prior to the release of any grant funds, City must determine to its �Ij satisfaction that the Project is substantially complete and meets the conditions of this !� Agreement. � i� 3.3 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 front or ', rear fa�ad� renovations to the Property to eliminate inappropriate additions or �,I 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 i 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 I. y 3.4 Financial Consultant Grant. City agrees to provide a matching (1:1) grant not to I� exceed Fifteen Thousand Dollars ($15,000) to reimburse Developer for documented � costs related to hiring a financial consultant to evaluate the Project's feasibility on the �� terms and conditions set forth in Exhibit J. Such funds will be disbursed only on � completion of the Minimum Improvements, documentation of costs and an inspection of the completed Pro�ect. 3.5 Written requests for payment of grant funds must be submitted to the Economic Development Department together with all required documentation. 3.6 City shall initiate and, working with Employer and other stakeholders in the Historic Millwork District, revise and update the Historic Millwork District Master Plan to address transportation and parking needs and uses within the District. The revised Plan shall include, but not be limited to, the following: i A. Continuation of monthly Millwork District Design/Development meetings; 9 � B. An emphasis on use of existing infrastructure and public transportation; � C. City shall, on or before December 31, 2019, develop and maintain an off- street parking inventory and long-term parking master plan for the Historic Millwork District which plan shall include: � 6 (i) Each year on or before December 31, beginning in the year 2020, i City shall provide a detailed block by block breakdown of the available off- u street parking within 2,500 feet of the Voices Building and identify any � parking shortfalls or surplus and provide a narrative of such breakdown to Employer. � (ii) The annual parking inventory and master plan shall provide a I strategy to accommodate the demand created by commercial and i residential development that are actually under development within the i� Historic Millwork District. The plan shall provide the location of, or for the � development of, additional parking to meet that demand. �i (iii) At such time as 85% of the existing off-street parking is i� leased/permitted City shall, within Twenty-Four (24) months of the date of � the annual review, develop additional off-street parking facilities within � 2,500 feet to rneet the projected demand. � (iv) Continuation of the existing downtown Park and Ride shuttle I service from the Port of Dubuque with expansion to include stops in the , Millwork District, downtown, and back. Y � (v) City and Employer shall jointly, and in conjunction with other � employers within the Historic Millwork District, develop and implement ; annual education sessions regarding transportation options with an � emphasis on methods to reduce parking needs, including uses of existing � public infrastructure and modes of transportation. (vi) City and Employer shall jointly, and in conjunction with other employers within the Historic Millwork District, explore options to support initiatives such as bike/scooter sharing and similar innovative � transportation options. (vii) City shall, subject to an agreement with Alliant Energy, redirect semi-truck traffic through Alliant's property directly to Kerper Blvd within 36 months of issuance of a certificate of completion for this building. (viii) City shall continue development and integration of Smart Realtime Technology including uses such as communication on railroad and train schedules to notify commuters when trains are approaching/arriving, availability of city transportation options and parking lots space, availability 10 of the existing Park and Ride shuttle, use of smart meters and the potential development of an app for use on portable devices. � (ix) City shall develop an additional city surFace parking lot at 12t" and Elm Street on the east side of Elm Street, on or before December 31, j 20?0. � � (x) City shall evaluate downtown bus/shuttle routes and schedules, as well as bike routes and storage in an effort to spark innovation and inclusion in the use of existing city infrastructure and services. q� il 3.7 City shall provide lighting, public call boxes and cameras in the Historic Millwork '� �� District and include cameras within the pedestrian walkway/tunnel to be developed ; through the building located on the Property, if said pedestrian walkway/tunnel is open n to the general public. The number and location of lighting, public call boxes, and �� cameras shall be agreed upon between City and Employer on or before December 31, � 2019. '! a 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 I� the pledged tax increment revenues shall be an obligation limited to currently budgeted '�� funds, and not a general obligation or other indebtedness of City or a pledge of its full ;I faith and credit within the meaning of any constitutional or statutory debt limitation, and I shall be subject in all respects to the right of non-appropriation by the City Council of City as provided in this Section. City may exercise its right of non-appropriation as to the amount of the installments to be paid during any fiscal year during the term of this � Agreement without causing a termination of this Agreement. The right of non- �� appropriation shall be exercised only by resolution affirmatively declaring City's election � to non-appropriate funds otherwise required to be paid in the next fiscal year under this � Agreement. i 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 or Employer 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 11 Agreement are determined by a court of competent jurisdiction to create, or result in the � creation of, such a legal indebtedness of City, the enforcement of the said provision � shall be suspended, and the Agreement shall at all times be construed and applied in � such a manner as will preserve the foregoing intent of the parties, and no event of default shall be deemed to have occurred as a result thereof. If any provision of this Ayresrnent or thp �ppli�ation there�f #o �n;e circurn�tao�c� i� �c �u�per��ed, the 0 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. y � � SECTION 5. COVENANTS OF DEVELOPER AND EMPLOYER. �a ,j 5.1 Job Creation. During the term of this Agreement, Employer shall comply with the � following employment-related covenants: { (1) Employer shall retain One Hundred Fifty (150) fulltime equivalent (FTE) � operations employees and create a minimum of Forty (40) additional fulltime I equivalent (FTE) employees in Dubuque, lowa, prior to October 1, 2023, and shall maintain those jobs during the term of this Agreement. It is agreed by the parties that Employer has One Hundred Fifty (150) fulltime equivalent employees I'i (FTE) in operations in Dubuque, lowa, as of January 1, 2019. FTE employees li, shall be calculated by adding fulltime and part-time employees together using ;I 2080 hours per year as a FTE employee. � 2 For the FTE � O positions that Employer fails to create and maintain for any r year during the term of this Agreement, the semi-annual Economic Development � Grants for such year under Section 3.2 shall be reduced by the percentage that 'I the number of such positions bears to the total number of positions required to be ,� created and maintained (190 FTE s) by this Section 5.1. (For example, if � Employer has 170 FTE employees, the semi-annual Economic Development � Grants to be paid for that year would be reduced to 89% (170/190 employees) of �' the Tax Increment Revenues received by City). The reduction of the semi-annual � Economic Development Grants shall be the City's sole remedy for the failure of Employer to meet the job creation requirements of this subsection 5.1(2). � 5.2 Certification. To assist City in monitoring the performance of Employer � hereunder, as of October 1, 2023 and again as of October 1 of each year thereafter � during the term of this Agreement, a duly authorized officer of Employer shall certify to City in a form acceptable to City (a) the number of FTE positions employed by Employer in Dubuque, lowa, and (b) to the effect that such officer has re-examined the terms and provisions of this Agreement and that at the date of such certificate, and during the preceding twelve (12) months, Employer is not or was not in default in the fulfillment of any of the terms and conditions of this Agreement and that no Event of Default (or event which, with the lapse of time or the giving of notice, or both, would become an Event of Default) is occurring or has occurred as of the date of such certificate or during such period, or if the signer is aware of any such default, event or Event of Default, said 12 � � � officer shall disclose in such statement the nature thereof, its period of exisfience and what action, if any, has been taken or is proposed to be taken with respect thereto. � Such certificate shall be provided not later than October 15, 2023 and by October 15 of j each year thereafter during the term of this Agreement. ai 5.3 Book� a�od �zcord�. Duri�g th� t�rr of tyis Ag�e�rri��ii, i��v�i6pe� �nd I�,, Employer shall keep at all times and make available to City upon reasonable request ' proper books of record and 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 and Employer in accordance with generally accepted accounting principles consistently applied throughout the period involved, and Developer and Employer shall provide reasonable protection against loss or damage to such books of record and account. � 5.4 Real Propertv Taxes. From and after the Closing Date, Developer or Employer shall pay or cause to be paid, when due, all real property taxes and assessments I�i payable with respect to all and any parts of the Property unless Developer's or '' Employer's obligations have been assumed by another person pursuant to the ,�I provisions of this Agreement. �I 'i �I 5.5 No Other Exemptions. During the term of this Agreement, Developer and ;i Employer agree not to apply for any state or local property tax exemptions which are ,� available with respect to the Development Property or the Minimum Improvements located thereon that may now be, or hereafter become, available under state law or city �':� ordinance during the term of this Agreement, including those that arise under lowa '� Code Chapters 404 and 427, as amended. 5.6 Insurance Requirements. (1) Developer shall provide and maintain or cause to be maintained at all times during the process of constructing the Minimum Improvements and 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. (2) Upon completion of construction of the Minimum Improvements and up to the Termination Date, Developer or Employer shall maintain, or cause to be maintained, at their cost and expense all risk property insurance against loss and/or damage to the building (including the Minimum Improvements) under an insurance policy written with the "special perils" 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 or Employer shall furnish to City proof of insurance in the form of a certificate of insurance. 13 (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 or Employer shall notify City immediately in the case of damage exceeding $50,000 in amount to, or destruction of, the Minimum Improvements or any portion thereof resulting from fire or other casualty. Net proceeds of any � such insurance (Net Proceeds), shall be paid directly to Developer as its interests ,i 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 or Employer shall apply the Net Proceeds of any insurance relating to such damage received by Developer or Employer to the payment or reimbursement of the costs thereof, subject, however, to the terms of any mortgage encumbering I title to the Property (as its interests may appear). Developer or Employer shall complete the repair, reconstruction and restoration of Minimum Improvements IIn whether or not the Net Proceeds of insurance received by Developer Employer i� for such purposes are sufficient. 'j 'ii 5.7 Preservation of Property. During the term of this Agreement, Developer and Employer shall maintain, preserve and keep, or cause others to maintain, preserve and keep, the Minimum Improvements in good repair and working order, ordinary wear and � tear excepted, and from time to time shall make all necessary repairs, replacements, renewals and additions. 5.8 Non-Discrimination. In carrying out the project, Developer and Employer shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, sexual orientation, gender identity, national origin, age or disability. 5.9 Conflict of Interest. Developer and Employer agree that no member, officer or employee of City, or its designees or agents, nor any consultant or member of the governing body of City, and no other public official of City who exercises or has . exercised any functions or responsibilities with respect to the project during his or her tenure, or who is in a position to participate in a decision-making process or gain insider information with regard to the project, shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the project, or in any activity, or benefit therefrom, which is part of this project at any time during or after such person's tenure. In connection with this obligation, Developer and Employer shall have the right to rely upon the representations of any party with whom it does business and shall not be obligated to perForm any further examination into such party's background. The parties acknowledge that David Klavitter, Employer's Chief Marketing Officer, serves on City's Historic Preservation Commission 14 and Employer agrees that Employer will require Klavitter will recuse himself from any action by the Commission with respect to the Property. � 5.10 Non-Transferabilitv. Until such time as the Minimum Improvements are complete � (as certified by City under Section 2.5), this Agreement may not be assigned by � De�reloper �r Frr�ployer nor rnay th� Prop�rt� b� tr�r��f�rred b� �e�eloper �r �mployer a to another party without the prior written consent of City, which shall not be unreasonably withheld. Thereafter, Developer or Employer shall have the right to � assign this Agreement and upon assumption of the Agreement by the assignee, '� Developer or Employer shall no longer be responsible for its obligations under this , Agreement. Notwithstanding the foregoing, City acknowledges that Developer may '', transfer the Property to Employer, and City hereby consents to such transfer to Employer. As it relates to City only, effective upon such transfer of the Property from Developer to Employer, Developer shall be released from its obligations to City hereunder and Employer hereby agrees that it shall thereafter be deemed to be '� Developer for all purposes of this Agreement and Employer hereby agrees to assume I all obligations of Developer under this Agreement unless otherwise stated herein, and !� the assignment agreement shall so provide. ',; �� 5.11 No chanqe in Tax Classification. Developer and Employer agree that they will not I�+ take any action to change, or otherwise allow, the classification of the Property for I� property tax purposes to become other than commercial property and to be taxed as such under lowa law. '�i i 5.12 Restrictions on Use. Developer and Employer agrees for themselves, and their 1 successors and assigns, and every successor in interest to the Property or any part � thereof that they, and their respective successors and assigns, shalL � i (1) Devote the Property to, and only to and in accordance with, the uses specified in the Urban Renewal Plan (and City represents and agrees that use of � the Property as an office facility, is in full compliance with the Urban Renewal � Plan) (however, neither Developer nor Employer shall have any liability to City to � the extent that a successor in interest shall breach this covenant and City shall seek enforcement of this covenant directly against the party in breach of same); and (2) Not discriminate upon the basis of race, religion, color, sex, sexual orientation, gender identity, national origin, age or disability in the sale, lease, rental, use or occupancy of the Property or any improvements erected or to be erected thereon, or any part thereof (however, neither Developer nor Employer shall 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 Release and Indemnification Covenants. 15 (1) Developer and Employer release City and the governing body members, officers, agents, servants and employees thereof (hereinafter, for purposes of , this Section, the Indemnified Parties) from and covenants and agree that the Indemnified Parties shall not be liable for, and agrees to indemnify, defend and j hold harmless the Indemnified Parties against any loss or damage to property or � any inj�r,r to or de�#h of �ny p�rJoo� occ�rrir�g at or about or rzsulting from any � defect in the Minimum Improvements. � (2) Except for any gross negligence, willful misrepresentation or any willful or � wanton misconduct or any unlawful act of the Indemnified Parties, Developer and j Employer agree to protect and defend the Indemnified Parties, now or forever, , and further agrees to hold the Indemnified Parties harmless, from any claim, demand, suit, action or other proceedings whatsoever by any person or entity �, whatsoever arising or purportedly arising from (1) any violation of any agreement �i or condition of this Agreement (except with respect to any suit, action, demand or other proceeding brought by Developer and Employer against City based on an I� alleged breach of any representation, warranty or covenant of City under this �!I Agreement and/or to enforce its rights under this Agreement); or (2) the j acquisition, construction, installation, ownership, and operation of the Minimum i� Improvements or (3) the condition of the Property and any hazardous substance � or environmental contamination located in or on the Property, caused and ;; occurring after Developer or Employer takes possession of the Property. ,� '� (3) The Indemnified Parties shall not be liable to Developer or Employer for 'j any damage or injury to the persons or property of Developer or Employer or its I officers, agents, servants or employees or any other person who may be on, in or , about the Minirnum Improvements due to any act of negligence of any person, other than any act of negligence on the part of any such Indemnified Party or its officers, agents, servants or employees. (4) All covenants, stipulations, promises, agreements and obligations of City � contained herein shall be deemed to be the covenants, stipulations, promises, � agreements and obligations of City, and not of any governing body member, � officer, agent, servant or employee of City in their individual capacity thereof. � (5) The provisions of this Section shall survive the termination of this Agreement 5.14 Compliance with Laws. Developer and Employer 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. 16 6.1 Events of Default Defined. The following shall be Events of Default under this Agreement and the term Event of Default shall mean, whenever it is used in this � Agreement, any one or more of the following events: � (1) Failure by Developer or Employer to pay or cause to be paid, before � d�lir�quenc;r, �!! rea! propert�e tux�� J��d with r��e�t t� the n/iir�i��rii � Improvements and the Property. � � (2) Failure by Developer or Employer to cause the construction of the � Minimum Improvements to be commenced and completed pursuant to the terms, '�� conditions and limitations of this Agreement. �I '�� (3) Transfer of any interest by Developer or Employer of the Minimum � Improvements, except to Employer, in violation of the provisions of this ;j Agreement prior to the issuance of the final Certificate of Completion. � �� (4) Failure by Developer, Employer, or City to substantially observe or � perForm any other materia! covenant, condition, obligation or agreement on its !; part to be observed or performed under this Agreement. ',; �� 6.2. Remedies on Default by Developer or Emplover. 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 or Employer (and the holder of any mortgage encumbering � any interest in the Property of which City has been notified of in writing) of the Event of � Default, but only if the Event of Default has not been cured within sixty (60) days following such notice, or if the Event of Default cannot be cured within sixty (60) days and Developer or Employer does not provide assurances to City that the Event of i Default will be cured as soon as reasonably possible thereafter: Y (1) City may suspend its perFormance under this Agreement until it receives assurances from the defaulting party, deemed adequate by City, that the defaulting party will cure its default and continue its performance under this � Agreement; � (2) Until the Closing Date, City may cancel and rescind this Agreement; (3) City may withhold the Certificate of Completion; or (4) 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 17 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 � expe�ier�#. � � 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 Agreement to Pav Attornevs' Fees and Expenses. If any action at law or in i 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. ;{ �-0 6.6 Remedies on Default bv City. If City defaults in the performance of this ;; Agreement, Developer or Employer may take any action, including legal, equitable or �; administrative action that may appear necessary or desirable to collect any payments � due under this Agreement, to recover expenses of Developer or Employer, or to enforce performance and observance of any obligation, agreement, or covenant of City under this Agreement. Developer or Employer may suspend its performance under this Agreement until it receives assurances from City, deemed adequate by Developer and Employer, that City will cure its default and continue its performance under this � Agreement. SECTION 7. GENERAL TERMS AND PROVISIONS. 7.1 Notices and Demands. Whenever this Agreement requires or permits any notice or written request by one party to another, it shall be deemed to have been properly � given if and when delivered in person or three (3) business days after having been deposited in any U.S. Postal Service and sent by registered or certified mail, postage prepaid, addressed as follows: If to Employer: Dupaco Community Credit Union Joe Hearn, President and CEO 399 Pennsylvania Dubuque, IA 52002 Phone: 563-557-7600 With copy to: Mr. Steve Juergens 18 890 Main Street, Suite 200 Dubuque, IA 52001 Phone: (877) 455-2249 If to Developer: Dupaco Voices, LLC �ttn. Jo� H�arn � 39999 Pennsylvania Ave. � Dubuque, IA 52002 Phone: (563) 557-7600 With copy to: Mr. Steve Juergens 890 Main Street, Suite 200 Dubuque, IA 52001 Phone: 87.�4��' 1 �o��°� ��7— "7�'��'� I If to City: City Manager � 50 W. 13th Street I� Dubuque, lowa 52001 Phone: (563) 589-4110 i Fax: (563) 589-4149 � ' i With copy to: City Attorney i? City Hall ,� 50 W. 13t" Street ' Dubuque IA 52001 �I 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 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of City, Developer, and Employer and their respective successors and assigns. � 7.3 Termination Date. This Agreement and the rights and obligations of the parties hereunder shall terminate on June 1, 2038 (the Termination Date). � 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 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. City 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. 19 � � IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its name and behalf by its Mayor and attested to by its City Clerk and Developer has caused this Agreement to be duly executed on or as of the first above written. � � CITY OF DUBUQUE, IOWA DUPACO COMMUNITY CREDIT ,� i��l�L�! � Employer ;� '� B � B Y �/�� Y Roy,D. �ol, Mayor Joe , President, CEO II Attest DUPACO VOICES, LLC �I Developer �,i 1 � �� .� �p _� . . II �� Kevi S. Firnstahl J rn, President ;j City Clerk � i i (City Seal) i� , �, STATE OF IOWA ) .� ) SS � COUNTY OF DUBUQU ) i On this� day of 20� , before me the undersigned, a Notary ' Public in and for the s i Coun�Y a d State, personally appeared Roy D. Buol and Kevin '� S. Firnstahl, to me p� onally k`n� wn, 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 i 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 volunta act and deed of said City, by it and by them voluntarily executed. � � �� rµin�,i� �Fi�E�,.��. �4'�� Nota Public � ry ';� � G[�rn�nis�io�n Numtrer 7fi24i9 ��;r �y Cofim.[xP. _�-"'_ STATE OF IOWA ) ) SS COUNTY OF DUBUQUE ) 20 / / t �� On this �— day of 20�, before me the undersigned, a Notary Public in and for the State of lo a, personally appeared Joe Hearn, to me personally known, who, being by me duly sworn, did say that he is the President & CEO of Dupaco Community Credit Union, the lowa organization executing the instrument to which this is attached and that as said President & CEO of Du aco Communit Credit Union i p Y a�kn��Nled�e� the e;:e�u#ion of �aid ir��tr�e��nt tc b� th� v�l�untar� act ar�d deed �f sai� ;� company, by it and by him, an individual, voluntarily executed. � ��a�t n C��,�39�F,��4Vid � I ��=�� G�Mn�iSSlfl(4�!U��c� I�7��i8 r .,�_ `�a-rn.�.N./� q��;�� 6VY CfiMM35Si�"N�cAf S�tLS li �'sf�^� /� ~.�7`��lD/ �� I�� Notary Public ��`� ii ;; STATE OF IOWA ) ) SS , COUNTY OF DUBUQUE ) !i On this �� day of �';-��,�� 20f�; before me the undersigned, a Notary 13 Public in and for the State of lowa, personally appeared Joe Hearn, to me personally 'ji � known, who, being by me duly sworn, did say that he is the President of Dupaco Voices, i3 LLC, the lowa organization executing the instrument ta which this is attached and that ',� as said President of Dupaco Voices, LLC. acknowledges the execution of said ;�l instrument to be the voluntary act and deed of said company, by it and by him, an ;i, individual, voluntarily executed. i1 `,�.�`�i r C�C��i��I��it;`��,..._".`�., i� � ��.__ �'s� I � C(;Y��"'��1��;�1;,��±�3i.f� .if�i8�3fi ��..f�� `a-�-�c.-:�2i,e.�t� � `.�=��-�' `�!�C�,°��SI��';��.��5 `1 b Sh.:J$, � Notary Public �� I� � � F:\Users\tsteckle\Lindahl\DuPaco\DUPACO DevelopmentAgreement_010419bal.docx �iI 21