Setting Public Hearing for a Proposed Development Agreement with Gronen Development, Inc.City of Dubuque
City Council
Copyrighted
March 3, 2025
ITEMS SET FOR PUBLIC HEARING # 1.
ITEM TITLE: Setting Public Hearing for a Proposed Development
Agreement between the City of Dubuque, Iowa and Gronen
Development, Inc.
SUMMARY: City Manager recommending City Council set a public
hearing for March 17, 2025, to consider the attached
Development Agreement with Gronen Development, Inc. for
the construction of a 5-story mixed -use building at the corner
of 5th and Main Streets.
RESOLUTION Intent To Dispose Of An Interest In City Of
Dubuque Real Estate By Sale To Gronen Development, Inc.
Pursuant To A Development Agreement By And Between
The City Of Dubuque And Gronen Development, Inc. And
Fixing The Date For A Public Hearing Of The City Council Of
The City Of Dubuque, Iowa On The Development Agreement
Including The Proposed Issuance Of Urban Renewal Tax
Increment Revenue Grant Obligations To Gronen
Development, Inc. And Providing For The Publication Of
Notice Thereof
SUGGUESTED Receive and File; Adopt Resolution(s), Set Public Hearing for
DISPOSITION: March 17, 2025
ATTACHMENTS:
1. MVM Memo
2. Staff Memo
3. Resolution Setting Hearing
4. Notice of Hearing
5. Development Agreement
Page 342 of 629
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TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Setting Public Hearing for a Proposed Development Agreement between
the City of Dubuque, Iowa and Gronen Development, Inc.
DATE: February 26, 2025
Economic Development Director Jill Connors is recommending City Council set a public
hearing for March 17, 2025, to consider the attached Development Agreement for the
construction of a 5-story mixed -use building at the corner of 5t" and Main Streets.
The proposed Development Agreement includes the following:
• Developer will purchase 0.67 acres of City -owned property for a total of $331,717.
• Developer will construct 8,000 square feet of first -floor commercial space and at
least eighty (80) rental residential units at an investment of approximately
$24,000,000.
• City will provide a development incentive grant in an amount of $20,000 per
residential unit created, not to exceed the property purchase price.
• Developer will enter into a minimum assessment agreement in the amount of
$21,500,000.
• Developer has until May 1, 2028, to construct the project.
• Developer will construct 8 off-street parking spaces within 300 feet the project in
order to accommodate parking needs for residents of a nearby property whose
residents currently lease parking on the project site.
• City and Developer will jointly purchase for City's use a portable loading dock for
purposes of facilitating the operations of the Five Flags Civic Center.
• City will provide 15 years of tax increment financing.
• Developer will accept applications from prospective tenants with housing vouchers
(issued under the U.S. HUD's Section 8 voucher program or a similar program) that
are otherwise qualified prospective tenants.
• No more than 10% of the residential units may be used as short-term rentals.
Page 343 of 629
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mic ael C. Van Milligen
MCVM:sv
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Jill Connors, Economic Development Director
2
Page 344 of 629
Dubuque Economic Development
Department
THE CITY OF 1300 (wain street
All•Ameria10V Dubuque, Iowa 52001-4763
UB E I k"I""`"I""q Office (563) 589-4393
1 I I TTY (563) 690-6678
I® http://www.cityofdubuque.org
2007-2012*2013
Masterpiece on the Mississippi 2017*2019
TO: Michael C. Van Milligen, City Manager
FROM: Jill Connors, Economic Development Director
SUBJECT: Setting Public Hearing for a Proposed Development Agreement between
the City of Dubuque, Iowa and Gronen Development, Inc.
DATE: February 25, 2025
INTRODUCTION
This memo presents for City Council consideration a resolution that sets a public hearing
on the proposed Development Agreement by and between the City of Dubuque, Iowa and
Gronen Development, Inc.
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Gronen Development, Inc. (Developer) has a long history of successful projects in
Dubuque including numerous residential, commercial, and mixed -use properties.
Many of these projects have been in Dubuque's downtown, such as the Caradco Building
(900 Jackson Street), Dupaco Voices Building (1000 Jackson Street) and the Linseed Lofts
(151 E. 91h Street) in the Historic Millwork District; multiple mixed -use properties in the 1000
Block of Main Street, Washington Court Apartments (1798 Elm Street), and more.
DISCUSSION
Gronen Development is now proposing to purchase City -owned property at the corner of
5th and Main Streets for the development of a 5-story mixed -use building.
The proposed Development Agreement includes the following:
• Developer will purchase 0.67 acres of City -owned property for a total of $331,717.
Page 345 of 629
• Developer will construct 8,000 square feet of first -floor commercial space and at
least eighty (80) rental residential units at an investment of approximately
$24,000,000.
• City will provide a development incentive grant in an amount of $20,000 per
residential unit created, not to exceed the property purchase price.
• Developer will enter into a minimum assessment agreement in the amount of
$21,500,000.
• Developer has until May 1, 2028 to construct the project.
• Developer will construct 8 off-street parking spaces within 300 feet the project in
order to accommodate parking needs for residents of a nearby property whose
residents currently lease parking on the project site.
• City and Developer will jointly purchase for City's use a portable loading dock for
purposes of facilitating the operations of the Five Flags Civic Center.
• City will provide 15 years of tax increment financing.
• Developer will accept applications from prospective tenants with housing vouchers
(issued under the U.S. HUD's Section 8 voucher program or a similar program) that
are otherwise qualified prospective tenants.
• No more than 10% of the residential units may be used as short-term rentals.
RECOMMENDATION
I recommend the City Council adopt the attached resolution setting a public hearing for
March 17, 2025 to consider the attached Development Agreement for the construction of
a mixed -use building at the corner of 5t" and Main Streets.
K
Page 346 of 629
Prepared by: Jill Connors, Economic Development, 50 W. 1311 Street, Dubuque IA 52001, 563 589-4393
Return to: Jill Connors, Economic Development, 50 W. 1311 Street, Dubuque IA 52001, 563 589-4393
RESOLUTION NO. 79-25
INTENT TO DISPOSE OF AN INTEREST IN CITY OF DUBUQUE REAL ESTATE BY
SALE TO GRONEN DEVELOPMENT, INC. PURSUANT TO A DEVELOPMENT
AGREEMENT BY AND BETWEEN THE CITY OF DUBUQUE AND GRONEN
DEVELOPMENT, INC. AND FIXING THE DATE FOR A PUBLIC HEARING OF THE
CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA ON THE DEVELOPMENT
AGREEMENT INCLUDING THE PROPOSED ISSUANCE OF URBAN RENEWAL TAX
INCREMENT REVENUE GRANT OBLIGATIONS TO GRONEN DEVELOPMENT, INC.
AND PROVIDING FOR THE PUBLICATION OF NOTICE THEREOF
Whereas, the City of Dubuque, Iowa (City) is the owner of the following described
real property:
BILK 17 DUBUQUE DOWNTOWN PLAZA (the Property); and
Whereas, City, and Gronen Development, Inc. have entered into a Development
Agreement, subject to the approval of the City Council, pursuant to which City will convey
the Property to Gronen Development, Inc., and Gronen Development, Inc. will construct
on the Property certain Improvements described in the Development Agreement; and
Whereas, the City Council has tentatively determined that it would be in the best
interests of City to approve the Development Agreement, including the conveyance of the
Property to Gronen Development, Inc.; and
Whereas, the Development Agreement provides for the issuance by City of
Economic Development Grants to Gronen Development, Inc., payable from the tax
increment revenues collected in respect of the Improvements to be constructed by
Gronen Development, Inc. in accordance with the Development Agreement, for the
purpose of carrying out the objectives of an Urban Renewal Plan as hereinafter described;
and
Whereas, before said obligations may be approved, Chapter 403 of the Code of
Iowa requires that the City Clerk publish a notice of the proposal and of the time and place
of the meeting at which the City Council proposes to take action thereon and at which
meeting the City Council shall receive oral and/or written objections from any resident or
property owner of said City to such proposed action.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City of Dubuque
foregoing -described Property by Deed to
proposed Development Agreement.
intends to dispose of its interest in the
Gronen Development, Inc. pursuant to the
Section 2. The City Clerk is hereby authorized and directed to cause this
Resolution and a notice to be published as prescribed by Iowa Code Section 364.7 of a
public hearing on the City's intent to dispose of the foregoing -described Property, to be held
on the 17th day of March, 2025 at 6.30 p.m. in the form attached hereto.
Section 3. The City Council will also meet at said time and place for the purpose
of taking action on the matter of authorizing Urban Renewal Tax Increment Revenue
obligations and the execution of the Development Agreement relating thereto with Gronen
Development, Inc., the proceeds of which obligations will be used to carry out certain of the
special financing activities described in the Urban Renewal Plan for the Greater Downtown
Urban Renewal District, consisting of the funding of economic development grants to
Gronen Development, Inc., pursuant to the Development Agreement under the terms and
conditions of said Urban Renewal Plan. It is expected that the aggregate amount of the Tax
Increment Revenue obligations will be approximately $4,200,000
Section 4. The City Clerk is hereby directed to cause at least one publication to
be made of a notice of said meeting, in a newspaper, printed wholly in the English
language, published at least once weekly, and having general circulation in said City, said
publication to be not less than four days nor more than twenty days before the date of
said meeting on the disposal of the City's interest in the Property and the issuance of said
obligations.
Section 5. That the notice of the proposed action shall be in substantially the
form attached hereto.
Passed, approved and adopted this 3rd day of March, 2025.
PF POOR-
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Attest:
Adrienne N. Breitfelder, City Clerk
NOTICE OF A PUBLIC HEARING OF THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA, ON THE APPROVAL OF A DEVELOPMENT AGREEMENT WITH
GRONEN DEVELOPMENT, INC. PROVIDING FOR THE SALE OF CITY -OWNED
REAL ESTATE TO GRONEN DEVELOPMENT, INC. AND AUTHORIZATION FOR THE
ISSUANCE OF URBAN RENEWAL TAX INCREMENT REVENUE GRANT
OBLIGATIONS PURSUANT TO THE DEVELOPMENT AGREEMENT
PUBLIC NOTICE is hereby given that the Dubuque City Council will conduct a public
hearing on the 17t" day of March, 2025, at 6:30 p.m., in the Historic Federal Building, 350
W. 6t" Street, 2nd floor, Dubuque, Iowa, at which meeting the City Council proposes to
take action to approve a Development Agreement between the City of Dubuque, Iowa
and Gronen Development, Inc., a copy of which is now on file at the Office of the City
Clerk, City Hall, 50 W 13th Street, Dubuque, Iowa, providing for the sale of City -owned
real estate and the issuance of economic development grants (Urban Renewal Tax
Increment Revenue Grant Obligations) described therein in order to carry out the
purposes and objectives of the Urban Renewal Plan for the Greater Downtown Urban
Renewal District, , under the terms and conditions of the Urban Renewal Plan for the
Greater Downtown Urban Renewal District. The aggregate amount of the Urban Renewal
Tax Increment Revenue Grant Obligations cannot be determined at the present time but
is not expected to exceed $4,200,000.
At the meeting, the City Council will receive oral and written comments from any resident
or property owner of said City to the above action. The official City Council agenda will be
posted the Friday before the meeting and will contain public input options. The agenda
can be accessed at https://dubugueia.portal.civicclerk.com/ or by contacting the City
Clerk's Office at 563-589-4100, ctyclerk@cityofdubuque.org.
Written comments on the public hearing may be submitted to the City Clerk's Office by
email at ctyclerk@cityofdubuque.org or by mail to City Hall, 50 W. 13t" St., Dubuque, IA
52001, before the scheduled hearing. The City Council will review all written comments
at the time of the hearing.
Documents related to the public hearing are on file in the City Clerk's Office and may be
viewed Monday through Friday between 8:00 a.m. and 5:00 p.m.
Individuals requiring special assistance should contact the City Clerk's Office as soon as
feasible. Deaf or hard -of -hearing individuals can use Relay Iowa by dialing 711 or (800)
735-2942.
Published by order of the City Council given on the 3rd day of March 2025.
Adrienne N. Breitfelder, CMC, City Clerk
Page 350 of 629
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
GRONEN DEVELOPMENT, INC.
This Development Agreement (hereinafter, the "Agreement"), dated for reference
purposes the day of , 2025, is entered into by and between the City
of Dubuque, Iowa, a municipality ("City"), acting under authorization of Iowa Code
Chapter 403, as amended, and Gronen Development, Inc., an Iowa corporation
("Developer").
WHEREAS, City is the owner of the following real estate located in the City of
Dubuque, County of Dubuque, State of Iowa, consisting of 0.67 acres,
BLK 17 DUBUQUE DOWNTOWN PLAZA
shown on Exhibit B-2 attached hereto (the "Property"); and
WHEREAS, Developer has requested that City sell to Developer the Property
together with all easements, tenements, hereditaments and appurtenances belonging
thereto (the "Property"), and City has agreed to sell the Property to Developer subject to
and in accordance with the terms of this Agreement; and
WHEREAS, Developer desires to construct a mixed -use building (the "Building"),
consisting of a total of approximately eighty (80) apartment units and 8,000 square feet
of commercial space, substantially as shown on the site plan set forth in Exhibit B-1
attached hereto (as may be amended as hereinafter provided in this Agreement, the "Site
Plan"), on the Property; and
WHEREAS, Developer and City agree that upon approval of the Plat (as defined
in Section 4.8 of this Agreement), this Agreement will be amended to include the legal
description of the Property; and
WHEREAS, the Property is located in the Greater Downtown Urban Renewal
District which has been so designated by City Council Resolution 123-67, as
subsequently amended, as a slum and blighted area (the "Project Area") defined by Iowa
Code Chapter 403 (the "Urban Renewal Law"); and
WHEREAS, subject to the terms of this Agreement, Developer intends to
undertake the development of the Building to be located on the Property; and
WHEREAS, Developer will make a capital investment in building improvements,
equipment, furniture and fixtures in the Property including, without limitation, any public
or site related improvements specifically needed for the development (e.g. utility
extensions to the Property) (the "Project"), as shown on the Site Plan, Exhibit B-1 attached
1
Page 351 of 629
hereto; and
WHEREAS, pursuant to Iowa 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 16, 2024, (the "Urban Renewal Plan"), City has the authority to enter into
contracts and agreements to implement the Urban Renewal Plan, as amended; and
WHEREAS, the City Council believes it is in the best interests of the City to
encourage Developer in the development of the Property by providing certain incentives
as set forth herein.
NOW, THEREFORE, the parties to this Agreement, in consideration of the
promises, covenants and agreements made by each other, do hereby agree as follows:
SECTION 1. CONVEYANCE OF THE PROPERTY TO DEVELOPER.
1.1 Purchase Price. Subject to the terms and conditions herein, the purchase price
for the Property (the "Property Purchase Price") shall be Four Hundred Ninety -Five
Thousand One Hundred Dollars ($495,100) per acre for approximately 0.67 acres for a
total Property Purchase Price of Three Hundred Thirty -One Thousand Seven Hundred
Seventeen Dollars ($331,717).
1.2 Title to Be Delivered. At the Closing (as defined in Section 5 below), City agrees
to convey good and marketable fee simple title in the Property to Developer subject only
to easements, restrictions, conditions and covenants of record as of the date hereof to
the extent not objected to by Developer as set forth in this Agreement, and subject to the
conditions set forth in Section 4 of this Agreement.
(1) City, at its sole cost and expense, shall deliver to Developer an abstract of
title to the Property continued through a date within thirty (30) days of the Closing
Date reflecting merchantable title in City in conformity with this Agreement,
applicable state law and the Title Standards of the Iowa State Bar Association (the
"Abstract").
(2) Developer shall have until the Closing Date to render objections to title and
the Plat with respect to the Property being conveyed, including any easements or
other encumbrances not satisfactory to Developer, in writing to City. City shall
promptly exercise its best efforts to have such title objections removed or satisfied
and shall advise Developer of intended action within ten (10) days of such action.
If City shall fail to have such objections removed as of the Closing, or any extension
thereof consented to by Developer, Developer may, at its sole discretion, either (1)
terminate this Agreement without any liability on its part, or (2) take title subject to
such objections. City agrees to use its best reasonable efforts to promptly satisfy
any such objections. City acknowledges that Developer needs to acquire the
Property as described in Section 10 to meet construction and delivery deadlines,
and City agrees to exercise its best reasonable efforts to facilitate completion of
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Page 352 of 629
City's duties under this Agreement in order to accommodate a Closing before such
date.
1.3 Rights of Inspection, Testing and Review. Developer, and its consultant(s), shall
have access to the Property and all parts thereof pursuant to the terms and conditions of
the Site Access Agreement attached hereto as Exhibit H and incorporated herein by
reference, and shall have the further right to make such inquiries of governmental
agencies and utility companies, etc. as it considers appropriate.
(1) Environmental Investigation/Confidential Information. Developer shall have
the right to inspect the Property prior to the Closing Date and to take whatever
tests or perform such examination, as Developer shall deem appropriate, at its own
risk and its sole cost and expense, to evaluate the environmental condition of the
Property. Prior notice of such activity by Developer shall be provided to City (which
such notice may be made by electronic mail), and written results of such activity
shall be shared with City promptly after City's written request for such results.
Developer shall not disclose the information from the investigation or the report of
the investigation to any party prior to the Closing, other than City without the prior
consent of City except as required by law or court order, and except that to the
extent that such information is necessary to Developer's architects, engineers,
surveyors, contractors, attorneys, investors, lenders, consultants and advisors,
provided, however, such persons shall agree to keep such information confidential
as provided in this Section.
(2)
Hazardous Substance Remediation.
(a) Prior to the Closing, if Developer determines, upon receipt and
consideration of any report of investigation of the Property that applicable
law requires removal and/or remediation of Hazardous Substances on the
Property prior to construction of any of the Minimum Improvements (as
hereinafter defined), then Developer, at Developer's election, may retain, at
its sole cost and expense, an environmental consultant to prepare a plan
(the "Environmental Remediation Plan") for the removal and/or remediation
of the identified Hazardous Substances to a level as may be required by
law and/or to a level sufficient to allow construction of the Minimum
Improvements.
(b) Based on findings of any Phase I or Phase 2, Environmental
Remediation Plan or other report or investigation, Developer, in its sole
discretion, may elect to terminate this Agreement prior to Closing by giving
written notice to City, without any further obligation on the part of Developer
or City.
(3) Definitions. For the purposes of this Agreement, the following definitions
shall apply:
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Page 353 of 629
(a) Environmental Law. Any and all federal, state and/or local laws,
regulations and legal requirements pertaining to (i) the protection of health,
safety and the indoor and outdoor environment, (ii) the conservation,
management or use of natural resources and wildlife, (iii) the protection,
access to or use of surface water and groundwater, (iv) the management,
manufacture, possession, presence, use, generation, transportation,
treatment) storage, disposal, Release, threatened Release, abatement,
removal, remediation or handling of, or exposure to, any Hazardous
Substance or (v) pollution (including, without limitation, any Release to air,
land, surface water and groundwater), and includes, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended by the Superfund Amendment and Reauthorization
Act of 1986, 42 U.S.C. 9601 et seq.; the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976 and the
Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. 6901 et seq.;
the Federal Water Pollution Control Act, as amended by the Clean Water
Act of 1977, 33 U.S.C. 1251 et seq.; the Clean Air Act of 1966, as amended,
41 U.S.C. 7401 et seq.; the Toxic Substances Control Act of 1976, 15
U.S.C. 2601 et seq.; the Hazardous Substances Transportation Act, 49
U.S.C. App. 1801 et seq.; the Occupational Safety and Health Act of 1970,
as amended, 29 U.S.C. 651 et seq.; the Oil Pollution Act of 1990, 33 U.S.C.
2701 et seq.; the Emergency Planning and Community Right -to -Know Act
of 1986, 42 U.S.C. 11001 et seq.; the National Environmental Policy Act of
1969, 42 U.S.C. 4321 et seq.; the Safe Drinking Water Act of 1974, as
amended, 42 U.S.C. 300(f) et seq.; Chapter 455B of the Iowa Code; any
similar, implementing or successor law to any of the foregoing and any
amendment, rule, regulation, order or directive issued thereunder.
(b) Hazardous Substance or Hazardous Substances. Any hazardous or
toxic substance, material or waste, which is or becomes regulated by any
local government, the State of Iowa or the United States Government. It
includes, without limitation, any material or substance that is (i) defined as
a "hazardous substance" or "hazardous waste" under Chapter 455B, Iowa
Code, (ii) petroleum and petroleum products, (iii) asbestos containing
materials in any form or condition, (iv) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control
Act (33 U.S.C. § 1321), (v) defined as a "hazardous waste pursuant to
§ 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C.
§6901 et seq., (vi) defined as a "hazardous substance" pursuant to § 101 of
the Comprehensive Environmental Response, Compensation and Liability
Act, U.S.0 § 9601 et seq., or (vii) defined as a "regulated substance"
pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation of
Underground Storage Tanks), 42 U.S.C. § 6991 et seq.] The term
"Hazardous Substance" shall not include any air emissions discharged into
the atmosphere as allowed by a duly issued permit from the applicable
governmental agency.
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Page 354 of 629
(c) Release. Any spilling, migrating, seeping, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping or disposing of any Hazardous Substance into the indoor or
outdoor environment, including, without limitation, the abandonment or
discarding of barrels, drums, containers, tanks and other receptacles
containing or previously containing any Hazardous Substance and including
without limitation the migration of any Hazardous Substance onto the
Property from an adjacent property.
SECTION 2. REPRESENTATIONS OF CITY. To induce Developer to enter into this
Agreement and purchase the Property, City hereby represents and warrants to
Developer, that:
2.1 There is no action, suit or proceeding pending, or to the best of City's knowledge,
threatened against City which might result in any adverse change in the Property being
conveyed or the possession, use or enjoyment thereof by Developer for Developer's
intended use, including, but not limited to, any action in condemnation, eminent domain
or public taking.
2.2 No ordinance or hearing is pending or, to the best of City's knowledge,
contemplated before any local governmental body which 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.
2.3 All leases, contracts, licenses, and permits between City and third parties in
connection with the maintenance, use, and operation of the Property have been provided
to Developer and City has provided true and correct copies of all such documents to
Developer.
2.4 City has good and marketable fee simple title interest to the Property.
2.5 There are no notices, orders, suits, judgments or other proceedings relating to fire,
building, zoning, air pollution, health violations or other matters that have not been
corrected. City has notified Developer in writing of any past notices, orders, suits,
judgments or other proceedings relating to fire, building, zoning, air pollution or health
violations as they relate to the Property of which it has actual notice.
2.6 The Property will as of the date of the Closing Date be free and clear of all liens,
security interests, and encumbrances and payment has been made for all labor or
materials that have been furnished to the Property or will be made prior to the Closing
Page 355 of 629
Date so that no lien for labor performed or materials furnished can be asserted against
the Property.
2.7 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 including, without
limitation, the execution and delivery of all documents contemplated under this
Agreement. City's attorney shall issue a legal opinion to Developer at the time of the
Closing confirming the representation contained herein, in form and substance attached
hereto as Exhibit C.
2.8 Unless otherwise agreed to in writing by Developer and City, Developer shall be
responsible for the cost to modify or relocate all city utilities deemed necessary for the
development and use of the Property. Developer shall have the right to connect to said
utilities, subject to City's connection fees.
2.9 As of the Closing Date the Property shall be free and clear of any occupants, and
no party has a lease to or other occupancy or contract right in the Property which shall in
anyway be binding upon the Property or Developer.
2.10 City shall exercise its best efforts to cooperate with Developer in the development
process.
2.11 City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion.
2.12 The Property is properly zoned for the various uses described in this Agreement.
2.13 City makes no warranties or representations as to the condition of the Property
other than those which are expressly stated in this Agreement.
2.14 City has completed all required notice to or prior approval, consent or permission
of any federal, state or municipal or local governmental agency, body, board or official to
the sale of the Property, and consummation of the Closing by City shall be deemed a
representation and warranty that it has obtained the same.
2.15 City represents and agrees that use of the Property as described in this Agreement
is in full compliance with the Urban Renewal Plan.
2.16 The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated by this Agreement do not and shall not result in any
material breach of any terms or conditions of any mortgage, bond, indenture, agreement,
contract, license, or other instrument or obligation to which City is a party or by which
either the City or the Property being conveyed are bound, nor shall the execution, delivery
and performance of this Agreement violate any statute, regulation, judgment, writ,
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Page 356 of 629
injunction or decree of any court threatened or entered in a proceeding or action in which
City may be bound or to which either City or the Property being conveyed may be subject.
2.17 The representations and warranties contained in this Section 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, and such
representations and warranties shall survive the Closing.
SECTION 3. REPRESENTATIONS OF DEVELOPER. The Developer makes the
following representations and warranties:
(1) Developer is an Iowa limited liability company duly organized and validly
existing under the laws of the State of Iowa 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 this Agreement.
(2) This Agreement has been duly At 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 or other laws relating to or affecting
creditors' rights generally. Developer's counsel shall issue a legal opinion to the
City, at time of closing, confirming the representations contained herein, containing
the opinions set forth in the form attached hereto as Exhibit E which such opinions
shall be subject to customary exceptions, exclusions and limitations.
(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
certificate of limited liability company or the limited liability company agreement 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) There are no actions, suits or proceedings pending or to Developer's
knowledge, 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.
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(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.
(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 for the Project.
(7) Developer will obtain firm commitments for construction financing for the
Project in an amount sufficient, together with equity commitments, to successfully
complete the Project in accordance with the requirements of this Agreement and
if obtained, shall provide evidence thereof to City prior to the Closing Date.
SECTION 4. CONDITIONS TO CLOSING. The Closing and all the obligations of
Developer under this Agreement are subject to fulfillment, on or before the Closing Date
of the following conditions:
4.1 The representations and warranties made by City in Section 2 shall be correct as
of the Closing Date with the same force and effect as if such representations were made
at such time. At the Closing, City shall deliver a certificate, in the form of Exhibit D, to
that effect.
4.2 Title to the Property shall be in the condition warranted in Section 2.
4.3 Developer shall have obtained at its sole expense any and all necessary
governmental approvals, including without limitations building permits, approval of
zoning, subdivision or platting which might be necessary or desirable in connection with
the sale and transfer and development of the Property. Any conditions imposed as a part
of the zoning, platting or subdivision must be satisfactory to Developer, in its sole opinion.
City shall cooperate with Developer in attempting to obtain any such approvals and shall
execute any documents necessary for this purpose, provided that City shall bear no out-
of-pocket expense in connection therewith. In connection therewith, City agrees (1) to
review all of Developer's plans and specifications for the Project and to either reject or
approve the same in a prompt and timely fashion, but in no event more than thirty (30)
days; (2) to issue a written notification to Developer, promptly following City's approval of
same, indicating that City has approved such plans and specifications, and that the same
are in compliance with the Urban Renewal Plan (as defined in Section 10.2 of this
Agreement) and/or that the appropriate waivers have been obtained, this Agreement and
any other applicable City or affiliated agency requirements, with the understanding that
Developer and its lenders shall have the right to rely upon the same in proceeding with
the Project; (3) to identify in writing as soon as practicable after submission of said plans
and specifications, any and all permits, approvals and consents that are legally required
for the acquisition of the Property by Developer, and the construction, use and occupancy
of the Project with the intent and understanding that Developer and its lenders and
attorneys will rely upon same in establishing their agreement and time frames for
construction, use and occupancy, lending on the Project and issuing legal opinions in
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connection therewith; and (4) to cooperate fully with Developer to facilitate the obtaining
of such permits, approvals and consents.
4.4 As of the date of this Agreement, City has completed all required notice to or prior
approval, consent or permission of any federal, state or municipal or local governmental
agency, body, board or official to the sale of the Property; and consummation of the
Closing by City shall be deemed a representation and warranty that it has obtained the
same.
4.5 Developer shall be in material compliance with all the terms and provisions of this
Agreement.
4.6 Receipt of an opinion of counsel to Developer in the form attached hereto as
Exhibit E, which such opinions shall be subject to customary exceptions, exclusions and
limitations.
4.7 Developer and City shall have entered into a Minimum Assessment Agreement,
in the form attached hereto as Exhibit I.
4.8 Developer shall have the right to terminate this Agreement, for any reason or for
no reason, at any time prior to the Closing. Upon the giving of notice of termination by
Developer to City to this Agreement, this Agreement shall be deemed null and void, and
thereafter the parties shall be relieved of any and all further obligations hereunder other
than those obligations which are specifically set forth hereunder to survive termination.
4.9 Developer shall have otherwise satisfied itself with all other aspects of proceeding
with this transaction and the development of the Project as contemplated herein,
including, without limitation in any way, the financial viability of developing the Project, the
costs and expenses to be incurred in connection therewith, and all other aspects of the
planning, designing, development, construction and completion of the Project, all as
determined necessary or appropriate by Developer in its sole discretion.
4.10 City shall have terminated all parking leases or other rights of third parties for use
or occupancy of the Property.
SECTION 5. CLOSING. The Closing of the purchase and sale of the Property (the
Closing) on the Closing Date which shall be on or before May 1, 2026 , ("Outside Closing
Date"). The date on which the Closing occurs shall be defined in this Agreement as the
"Closing Date". Developer shall give City written notice of intent to close at least forty-five
(45) days prior to the Closing Date in order to allow the City sufficient time to terminate
parking leases then in effect.
SECTION 6 CITY'S OBLIGATIONS AT CLOSING. At or prior to the Closing Date,
City shall:
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6.1 Deliver to Developer City's duly recordable Special Warranty Deed to the Property,
in the form attached hereto as Exhibit F (the "Deed"), conveying to Developer marketable
fee simple title to the Property necessary to construct the Project, and all rights
appurtenant thereto, including appurtenant easements, subject only to easements,
restrictions, conditions and covenants of record as of the date hereof and not objected to
by Developer as set forth in this Agreement, and to the conditions subsequent set forth in
this Agreement.
6.2 Deliver to Developer such other documents as may be required by this Agreement
or as may be reasonably required by the Title Company, or as may be necessary to
consummate the transactions contemplated by this Agreement, all in a form satisfactory
to Developer.
6.3 Deliver to Developer a statement at the Closing that all representations and
warranties in Section 2 are correct.
SECTION 7. DELIVERY OF PURCHASE PRICE. Provided that Developer has not
elected to terminate this Agreement, at the Closing, and subject to the terms, conditions,
and provisions hereof and the performance by City of its obligations as set forth herein,
including City's obligation to make the Development Incentive Grant in accordance with
Section 11.1 hereof, Developer shall pay the Property Purchase Price to City pursuant to
Section 1.1 hereof.
SECTION 8. CLOSING COSTS. The following costs and expenses shall be paid in
connection with the Closing:
8.1. City shall pay:
(1) The transfer fee imposed on the conveyance, if any;
(2) All special assessments whether levied, pending or assessed, if any;
(3) City's attorneys' fees;
(4) City's broker and/or real estate commissions and fees, if any; and
(5) The cost of recording the satisfaction of any existing mortgage and any
other document necessary to make title marketable.
8.2. Developer shall pay:
(1) The documentary fee necessary to record the Deed;
(2) Developer's attorneys' fees; and
(3) Developer's broker and/or real estate commissions and fees, if any.
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At Closing, City and Developer shall each execute and deliver into escrow a closing
statement prepared by the Title Company in form and substance mutually acceptable to
City and Developer.
SECTION 9. REAL PROPERTY TAXES. From and after Closing, Developer shall pay
or cause to be paid, when due, all real property taxes, assessments, fees and charges,
including but not limited to water, sanitary and storm water fees, connection and tap fees,
payable with respect to the Minimum Improvements and Property.
SECTION 10. MINIMUM IMPROVEMENTS.
10.1 Minimum Improvements. Developer will make a capital investment of
approximately Twenty -Four Million Dollars ($24,000,000.00) to improve the Property (the
Minimum Improvements). The Minimum Improvements include creating 8,000 square feet
of first -floor commercial space and at least eighty (80) rental residential units
10.2 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced on or before May 1, 2026,
and shall be substantially completed by May 1, 2028. The time for the performance of
these obligations shall be suspended due to unavoidable delays meaning delays, outside
the control of the party claiming its occurrence in good faith, which are the direct result of
strikes, other labor troubles, unusual shortages of materials or labor, unusually severe or
prolonged bad weather, acts of God, fire or other casualty to the Minimum Improvements,
litigation commenced by third parties which, by injunction or other similar judicial action
or by the exercise of reasonable discretion directly results in delays, or acts of any federal,
state or local government which directly result in extraordinary delays. The time for
performance of such obligations shall be extended only for the period of such delay.
10.3 Plans for Construction of Minimum Improvements. Prior to the Closing Date and
provided that Developer purchases the Property, Developer shall submit to City elevation
drawings, site plan, building plans and specifications, and related documents with respect
to the Minimum Improvements to be constructed by Developer on the Property (the
"Construction Plans"). City shall promptly review all Construction Plans submitted and
approve or disapprove such Construction Plans which approval shall not be unreasonably
withheld, conditioned or delayed. The Construction Plans shall be in conformity with
Urban Renewal Plan, this Agreement, and all applicable state and local laws and
regulations. All work with respect to the Minimum Improvements shall be in substantial
conformity with the Construction Plans approved by City. Upon approval of the final site
plan for the Minimum Improvements and other related Project improvements, this
Agreement shall be amended to reflect the final approved site plan, which shall replace
Exhibit B-1 attached hereto.
10.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall furnish Developer with an
appropriate instrument so certifying. Such certification (the "Certificate of Completion")
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shall be in recordable form and shall be a conclusive determination of the satisfaction or
waiver and termination of Developer's agreements, covenants, and obligations in this
Agreement with respect to the obligations of Developer to construct the Minimum
Improvements. The Certificate of Completion shall terminate all rights of revestment of
title in City as provided in Section 15 and the Certificate of Completion shall so state.
10.5 Developer Lender's Cure Rights. The parties agree that if Developer shall fail to
complete the Minimum Improvements as required by this Agreement such that
revestment of title may occur (or such that City would have the option of exercising its
revestment rights), then Developer or Developer's Lender (as defined in Section 15.1(4)),
if any, shall have the right, but not the obligation, to complete such Minimum
Improvements according to the terms and conditions in this Agreement.
10.6 Security Cameras. Developer shall install security cameras on the exterior of all
newly constructed buildings on the Property and register said cameras with the "Secure
Dubuque Personal Surveillance System" described at
https://citVofdubugue.org/2980/Secure-Dubuque.
10.7 Parking. City and Developer shall, respectively, take the following actions
regarding the development of parking associated with the Property:
(1) City shall make available for lease to tenants of the Building up to sixty (60)
parking spaces in the 5t" Street Parking Ramp (located at 501 Iowa Street) or the Iowa
Street Ramp at standard rates as determined by City.
(2) On or prior to Closing, Developer shall locate and provide eight (8) additional
parking spots not currently owned by City to be used to provide parking to residents of
Ecumenical Towers and located within 300 feet of Ecumenical Towers (250 W 6tn
Street). The location and terms of the additional parking spaces shall be acceptable to
both City and Developer in their respective sole discretion. If this contingency is not
satisfied at or prior to Closing then either party can declare this agreement to be
terminated and neither party shall have any further rights or obligations hereunder.
10.8 Loading Dock. City shall purchase a Loading Dock as described in Exhibit J for City's
use. Developer shall pay to city one-half of the cost of the Loading Dock up to a maximum
payment by Developer of $17,500.00, within thirty (30 days of presentment of a statement
from City. The Loading Dock shall thereafter be owned, maintained and stored by City.
SECTION 11. CITY PARTICIPATION.
11.1 Development Incentive Grant to Developer. For and in consideration of
Developer's obligations hereunder to construct the Minimum Improvements, City agrees
to make the Development Incentive Grant (defined below) to Developer on the Closing
Date in the following amounts:
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The Development Incentive Grant for the Property (the "Grant") shall be the sum
of Twenty Thousand Dollars ($20,000) for every new residential rental unit created
in connection with the Project (which, as of the date hereof, is contemplated to
include eighty (80) residential rental units) but not to exceed the Property Purchase
Price ($331,717).
The parties agree that the Grant shall be payable in the form of a credit favoring Developer
at time of Closing with the effect of directly offsetting all the Property Purchase Price
obligation of Developer.
For any units not completed by the Completion Date, Developer shall pay to City $20,000
for each unit not completed, but not to exceed the Purchase Price.
11.2 Economic Development Grants.
(1) Minimum Improvements. 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, so
long as no Event of Default exists under this Agreement, to make thirty (30)
consecutive semi-annual payments (such payments being referred to collectively
as the "Economic Development Grants", to the Developer on the following dates
(subject to change based on the actual Completion Date):
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
November 1, 2038
May 1, 2039
November 1, 2039
May 1, 2040
November 1, 2040
May 1, 2041
November 1, 2041
May 1, 2042
November 1, 2042
May 1, 2043
pursuant to Iowa Code Section 403.19 (without regard to any averaging that may
otherwise be utilized under Iowa Code Section 403.19 and excluding any interest
that may accrue thereon prior to payment to Developer) during the preceding six-
month period in respect of the Property, the Minimum Improvements constructed
by Developer (the "Developer Tax Increments"). For purposes of calculating the
amount of Economic Development Grants provided in this Section, the Developer
Tax Increments shall be only those tax increment revenues collected by City in
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respect to the increase in the assessed value of the Property above the assessed
value on January 1, 2025. City and Developer agree the Property was assessed
on January 1, 2025 as follows:
Parcel 1025212003: Three Hundred Thirty Thousand One Hundred Dollars
($330,100.00).
The Developer Tax Increments shall not include (i) any property taxes collected
for the payment of bonds and interest of each taxing district, (ii) any taxes for the
regular and voter -approved physical plant and equipment levy and instructional
support levy, and (iii) any other portion required to be excluded by Iowa law, and
thus such incremental taxes will not include all amounts paid by Developer as
regular property taxes.
(2) In the event that the Building is not completed and a Certificate of
Occupancy is not issued until after December 1, 2027, then the above schedule
shall be advanced by one year such that the first Economic Development Grant
shall not be paid until November 1, 2029 and each grant thereafter shall be
similarly advanced by one year.
(3) To fund the Economic Development Grants, City shall certify to the County
prior to December 1 of each year, commencing December 1, 2027 (or December
1, 2028 in the event the Certificate of Occupancy is not issued until after December
1, 2027) , 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 certifies in December 2027, the Economic Development Grants in respect
thereof would be paid to the Developer on November 1, 2028, and May 1, 2029).
(4) The Economic Development Grants shall be payable from and secured
solely and only by the Developer Tax Increments (which, upon receipt, shall be
deposited and held in a special account created for such purpose and designated
as the "Gronen 5th Street 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 Gronen 5th Street TIF Account to pay the Economic Development Grants,
as and to the extent set forth in Section 11.2(1) hereof. The Economic
Development Grants shall not be payable in any manner by other tax increments
revenues or by general taxation or from any other City funds. City makes no
representation with respect to the amounts that may be paid to 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 Gronen 5th Street TIF
Account (regardless of the amounts thereof) to the payment of the Economic
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Development Grants to Developer as and to the extent described in this Section
11.2(3).
(5) City shall be free to use any and all tax increment revenues collected in
respect to other properties within the Project Area, or any of the available
Developer Tax Increments resulting from the termination of the annual Economic
Development Grants under Section 11.2(1) 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. City shall also be free to use for any lawful purpose the actual
tax increment revenues collected by the City and which funds are not required to
be paid to Developer in respect of the Minimum Improvements.
11.4 The City will complete the parking and lighting improvements described in
paragraph 10.7.
11.5 Non-appropriation/Limited Source of Funding. Notwithstanding anything in this
Agreement to the contrary, the obligation of City to pay any installment of the Economic
Development Grant shall be an obligation limited to currently budgeted funds, and not a
general obligation or other indebtedness of City or a pledge of its full faith and credit under
the meaning of any constitutional or statutory debt limitation, and shall be subject in all
respects to the right of non -appropriation by the City Council as provided in this Section
11.5 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 to Developer in the next fiscal year under this Agreement.
(1) In the event the City Council 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 Grant due and payable in that fiscal year, then: (i) City
shall have no further obligation to Developer for the payment of all installments
due in the next fiscal year which cannot be paid with the funds then appropriated
for that purpose; and, (ii) Developer shall be released from all further obligations
under this Agreement during that same fiscal year
(2) Each installment of the Economic Development Grant shall be paid by City
solely from funds appropriated for that purpose by the City Council from taxes
levied on the Property that are allocated to the special fund pursuant to Iowa Code
(2013) § 403.19(2).
(3) The right of non -appropriation reserved to City in this Section 11.5 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
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event that any of the provisions of this Agreement are determined by a court of
competent jurisdiction to create, or result in the creation of, such a legal
indebtedness of City, the enforcement of the said provision shall be suspended,
and the Agreement shall at all times be construed and applied in such a manner
as will preserve the foregoing intent of the parties, and no event of default shall be
deemed to have occurred as a result thereof. If any provision of this Agreement
or the application thereof to any circumstance is so suspended, the suspension
shall not affect other provisions of this Agreement which can be given effect without
the suspended provision. To this end the provisions of this Agreement are
severable.
SECTION 12. COVENANTS OF DEVELOPER.
12.1 Operation of Property; Housing Vouchers. For and in consideration of the Grants
offered under this Agreement, during the operation of the Property, including the
Buildings, as a rental residential property, Developer shall accept, or cause to be
accepted, applications from prospective tenants with housing vouchers (issued under the
U.S. HUD's Section 8 voucher program or a similar program) that are otherwise qualified
prospective tenants, as determined by Developer. Developer retains all rights to manage,
direct or evict any tenants as provided under Iowa law.
12.2 Insurance Requirements:
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 (and, from time to time at the request of City, furnish City with proof
of insurance in the form of a certificate of insurance for each insurance policy):
Builder's risk insurance, written on a completed value in an amount equal to one
hundred percent (100%) of the replacement value of the Minimum Improvements,
naming City as a named insured and lender loss payable. Coverage shall include
the "special perils" form.
The City of Dubuque, Owners, Contractors, Subcontractors, and Sub -
Subcontractors shown as additional named insureds are only additional named
insured with respect to their interest in the Covered Property at the premises
shown in the declarations.
(2) Upon completion of construction of the Minimum Improvements and up to
the Termination Date, Developer shall maintain, or cause to be maintained, at its
cost and expense (and from time to time at the request of City shall furnish proof
of insurance in the form of a certificate of insurance) property insurance against
loss and/or damage to the Minimum Improvements under an insurance policy
written in an amount not less than the full insurable replacement value of Minimum
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Improvements naming City as lender loss payable. Coverage shall include the
"special perils" form.
(3) The term "replacement value" shall mean the actual replacement cost of
Minimum Improvements (excluding foundation and excavation costs and costs of
underground flues, pipes, drains and other uninsurable items) and equipment, and
shall be reasonably determined from time to time at the request of City, but not
more frequently than once every three (3) years.
(4) Contractor shall be responsible for deductibles and self -insured retention.
(5) Developer agrees to notify City immediately in the case of damage
exceeding One Hundred Thousand Dollars ($100,000.00) in amount to, or
destruction of, the Minimum Improvements or any portion thereof resulting from
fire or other casualty. The net proceeds of any such insurance (the Net Proceeds)
shall be paid 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.
(6) This covenant shall survive the termination of this Agreement.
12.3 Non -Discrimination. In carrying out the project, Developer shall not discriminate
against any employee or applicant for employment because of age, color, familial status,
gender identity, marital status, mental/physical disability, national origin, race,
religion/creed, sex, or sexual orientation.
12.4 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
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 the 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.
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12.5 Non -transferability; Permitted Transfers. Until such time as the applicable
Minimum Improvements are complete (as certified by City under Section 10.4), except
as provided in this Section, this Agreement may not be assigned by Developer nor may
the Property be transferred by Developer to another party without the prior written
consent of City, which consent shall not be unreasonably withheld; provided, that,
Developer may without the City's consent, assign this Agreement to an affiliate of
Developer under common ownership or control (provided such affiliate agrees to
assume in writing the obligations of Developer hereunder); and provided further, that
Developer may collaterally assign this Agreement to its mortgage lender as may be
required to secure financing for the Minimum Improvements. For the avoidance of
doubt, this Agreement and the incentives included within this Agreement may be
transferred upon sale of the Property without the consent of City following completion of
the Minimum Improvements as evidence by a Certificate of Completion.
12.6 Restrictions on Use. Developer agrees for itself, its successors and assigns, and
every successor in interest to the Property or any part thereof that they and their
respective successors and assigns, shall 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 described in this Agreement is in full compliance with
the Urban Renewal Plan); and
12.7 Operation as Short -Term Rental. For and in consideration of the Grants offered
under this Agreement, until the Termination Date, no more than ten percent (10%) of the
Units shall be operated as short-term rentals. Short-term rental means a rental period of
less than thirty (30) consecutive days.
12.8 Compliance with Laws. Subject to City's representations, warranties and
covenants with respect to City's obligation to comply with laws, rules and regulations
relating to the Property as set forth in this Agreement, Developer will comply with all laws,
rules and regulations relating to the Property and the Minimum Improvements, other than
laws, rules and regulations the failure to comply with which 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 13. COVENANTS OF DEVELOPER FOLLOWING CONSTRUCTION OF
THE PROJECT.
13.1 Books and Records. During the term of this Agreement and from and after
completion of the Minimum Improvements, Developer 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 with respect to the Property and the Minimum
Improvements 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. Notwithstanding
anything contained herein to the contrary, City and its agents and employees shall not
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disclose any information contained in such books of record and account to any party
without the Developer's prior written consent except as required by law or court order,
and except that to the extent that such information is necessary to City's consultants and
advisors, provided, however, such persons shall agree to keep such information
confidential, and Developer may require that the City enter into a confidentiality
agreement in a form acceptable to Developer prior to granting City access to such books
of record and account.
13.2 No Exemptions. During the term of this Agreement, and except as otherwise
permitted by this Agreement, Developer agrees not to apply for any state or local property
tax exemptions which are available with respect to the Property or the Minimum
Improvements located thereon that may now be, or hereafter become, available under
state law or city ordinance during the term of this Agreement, including those that arise
under Iowa Code Chapters 404 and 427, as amended. Provided, however, in the event
Developer does not receive the benefit of any City obligation set forth in Section 11 or
10.7, then Developer may apply for additional incentives or grants from City or third
parties, as the case may be.
13.3 Repairs.
(1) Developer shall at all times at Developer's own costs and expense, keep
the Property and the improvements thereon, and all sidewalks, curbs, and all
appurtenances to the Property, in good order, condition and repair, casualties and
ordinary wear and tear excepted. Developer shall keep the Property in such
condition as may be required by law and by the terms of the insurance policies
furnished pursuant to the Agreement, whether or not such repair shall be interior
or exterior, and whether or not such repair shall be of a structural nature.
(2) City shall have no obligation to Developer for any maintenance expense of
any kind including legal fees on the Property, including but not limited to, private
roads, parking areas, utility connections or buildings.
(3) This Section 13.4 shall survive the termination of this Agreement.
SECTION 14. EVENTS OF DEFAULT. 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:
14.1 Failure by Developer to pay or cause to be paid, before thirty days after such
payments are due, all real property taxes assessed with respect to the applicable
Minimum Improvements and Property, subject to Developer's right to contest such real
property taxes in good faith in accordance with applicable law;
14.2 Failure by Developer to cause the construction of the applicable Minimum
Improvements (or applicable phases of Minimum Improvements) to be commenced and
completed pursuant to the terms, conditions and limitations of this Agreement, subject to
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extension for delays caused by Force Majeure Events (as defined in Section 18.4 hereof);
14.3 Subject to Section 12.5, transfer of any interest by Developer of the Property or
this Agreement in violation of this Agreement prior to the issuance of the final Certificate
of Completion for any applicable phase; or
14.4 Failure by Developer to substantially observe or perform any other material
covenant, condition, obligation or agreement on its part to be observed or performed
under this Agreement.
SECTION 15. REMEDIES ON DEFAULT BY DEVELOPER.
15.1 Whenever any Event of Default referred to in Section 14 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
written notice, or if the Event of Default cannot be cured within sixty (60) days and
Developer or if applicable, the mortgagee, 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 Developer will cure its
default and continue its performance under this Agreement;
(2) Until the Closing, City may cancel and terminate this Agreement;
(3) City may withhold the Certificate of Completion; and
(4) In the event that subsequent to conveyance of the Property to Developer by
City and prior to receipt by Developer of the Certificate of Completion, but subject
to the terms of the mortgage(s) granted by Developer to secure a loan(s) obtained
by Developer from a commercial lender or other financial institution ("Developer's
Lender(s)") to fund the acquisition of the Property or construction of the applicable
Minimum Improvements and other Project related improvements (the "Mortgage
Financing") an Event of Default under Section 14.2 of this Agreement occurs and
is not cured within the times specified in Section 15, then City shall have the right
to re-enter and take possession of the Property and any portion of the applicable
Minimum Improvements thereon and to terminate (and revest in City pursuant to
the provisions of this Section 15 subject only to any rights in any holder of
mortgages on the Property in connection with the Mortgage Financing ("Mortgage
Holder") the estate conveyed by City to Developer. The intent of this provision,
together with other provisions of this Agreement, that the conveyance of the
Property to Developer shall be made upon the condition that, in the event of default
under Section 14.2, prior to the receipt of the Certificate of Completion, on the part
of Developer and failure on the part of Developer to cure such default within the
20
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period and in the manner stated herein, City may declare a termination in favor of
City of the title and of all Developer' rights and interests in and to the Property
conveyed to Developer, and that such title and all rights and interests of Developer,
and any assigns or successors in interests of Developer, and any assigns or
successors in interest to and in Property, shall revert to City (subject to the
provisions of this Section 15 of this Agreement), but only if the events stated in
Section 14.2 of this Agreement, which occurs prior to the receipt of the Certificate
of Completion, have not been cured within the time period provided above, or, if
the events cannot be cured within such time periods, Developer does not provide
assurance to City, reasonably satisfactory to City, that the events will be cured as
soon as reasonably possible. Notwithstanding the foregoing, however, City agrees
to execute a Subordination Agreement in favor of Developer's Lender(s), in form
and substance acceptable to Developer's Lender(s) subordinating the City's rights
under this Section 15.1(4), and any other option or purchase rights with respect to
the Property granted to the City under this Agreement, including the option granted
under Section 12.2, to the rights of the Developer's Lender(s) in connection with
the Mortgage Financing (the "Subordination Agreement"). At Closing, the City, at
the City's election, may execute and record a memorandum of the City's right of
revestment hereunder, provided such memorandum is in form and substance
reasonably acceptable to Developer and Developer's Lenders, and such
memorandum references the Subordination Agreement and City's subordination
of such revestment right to the rights of Developer's Lenders.
(5) Upon the revesting in City of title to the Property as provided in Section
15.1(4) of this Agreement, City may resell the Property, and if it elects to do so, it
shall, pursuant to its responsibility under law, use its best efforts, subject to any
rights or interests in such property or resale granted to any Mortgage Holder, to
resell the Property or part thereof as soon and in such manner as City shall find
feasible and consistent with the objectives of such law and of the Urban Renewal
Plan to a qualified and responsible party or parties (as determined by City in its
sole discretion) who will assume the obligation of making or completing the
applicable Minimum Improvements or such other improvements in their stead as
shall be satisfactory to City and in accordance with the uses specified for such
Property or part thereof in the Urban Renewal Plan. Subject to any rights or
interests in such property or proceeds granted to Developer's Lender upon such
resale of Property the proceeds thereof shall be applied:
(a) First, to pay and discharge the Mortgage Financing debt;
(b) Second, to pay the principal and interest on mortgage(s) created on
the Property, or any portion thereof, or any improvements thereon, in
connection with the Mortgage Financing. If more than one mortgage on the
Property, or any portion thereof, or any improvements thereon, exists in
connection with the Mortgage Financing and insufficient proceeds of the
resale exist to pay the principal of, and interest on, each such mortgage in
full, then such proceeds of the resale as are available shall be used to pay
21
Page 371 of 629
the principal of and interest on each such mortgage in their order of priority,
or by mutual agreement of all contending parties including Developer, or by
operation of law;
(c) Third, to reimburse City for all allocable third party costs and
expenses incurred by City, in connection with the recapture, management
and resale of the Property or part thereof (but less any income derived by
City from the Property or part thereof in connection with such management);
any payments made or necessary to be made to discharge any
encumbrances or liens (except for mortgage(s) granted by Developer in
connection with the Mortgage Financing) existing on the Property or part
thereof at the time of revesting of title thereto in City or to discharge or
prevent from attaching or being made any subsequent encumbrances or
liens due to obligations, default or acts of Developer, its successors or
transferees (except with respect to such mortgage(s)), any expenditures
made or obligations incurred with respect to the making or completion of
applicable Minimum Improvements or any part by City on Property or part
thereof, and any amounts otherwise owing to City (including water and
sewer charges) by Developer and its successors or transferees; and
(d) Fourth, to reimburse Developer up to the amount equal to (1) the
sum of the Property Purchase Price paid to City for the Property and the
cash actually invested by Developer in making any of the applicable
Minimum Improvements on Property, less (2) any sums previously received
by Developer with respect to the Property Purchase Price or sums
expended with respect to the Minimum Improvements.
(6) Upon revesting in the City to the Property as provided in Section 15.1(4) of
this Agreement, if the City does not resell the Property within one year of the date
of such revesting, the City shall reimburse Developer up to the amount equal to (1)
the sum of the Property Purchase Price paid to City for the Property and the cash
actually invested by Developer in making any of the applicable Minimum
Improvements on Property and such other costs invested by Developer in
connection with the Project and the transactions contemplated hereunder, less (2)
any sums previously received by Developer with respect to the Property Purchase
Price.
Notwithstanding anything contained in this Agreement to the contrary, if the City
does not exercise its right hereunder to have the Property revested in the City upon
written notice to Developer within thirty (30) days of Developer's Event of Default
under Section 14.2 of this Agreement, then such revesting right in favor of the City
shall automatically terminate and be deemed null and void and of no further force
and effect.
SECTION 16. REMEDIES ON DEFAULT BY CITY. If City defaults in the performance
of this Agreement or any of its representations and warranties contained herein or
22
Page 372 of 629
otherwise fails to observe or perform any material covenant, condition, obligation or
agreement on its part to be observed or performed under this Agreement, Developer may
take any action, including legal, equitable or administrative action which may 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. Additionally, City will reimburse Developer all costs and expenses
incurred by Developer, including, but not limited to salaries of personnel and reasonable
attorney fees and expenses, incurred as a result of City's default(s) in the performance of
this Agreement or any of City's representations and warranties contained herein.
SECTION 17. REMEDIES GENERALLY.
17.1 A non -defaulting party 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.
17.2 No remedy herein conferred upon or reserved to a party is intended to be exclusive
of any other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Agreement or
now or hereafter existing at law or in equity or by statute.
17.3 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.
17.4 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 which may be awarded.
SECTION 18. GENERAL TERMS AND CONDITIONS.
18.1 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:
23
Page 373 of 629
If to Developer:
With a copy to: Drake Law Firm, P.C.
D. Flint Drake
300 Main Street, Suite 323
Dubuque, IA 52001
If to City: City Manager
City Hall
50 W. 13th Street
Dubuque, IA 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With a copy to: City Attorney
City Hall
50 W. 13th 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 18.1.
18.2 Binding Effect; Assignment. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of the parties.
18.3 Termination Date. Unless terminated sooner under the terms of this Agreement,
this Agreement and the rights and obligations of the parties hereunder shall terminate on
June 1, 2043 unless the Economic Development Grants are delayed due to the
completion date of construction as provided in Section 10.2, in which case this Agreement
will terminate June 1, 2044 (the "Termination Date"), unless otherwise extended as
provided herein.
18.4 Force Majeure. A party shall be excused from its obligations under this Agreement
if and to the extent and during such time as the party is prevented, impeded, or hindered,
unable to perform its obligations or is delayed in doing so due to events or conditions
outside of the party's reasonable control and after the party has taken reasonable steps
to avoid or mitigate such event or its consequences (each a "Force Majeure Event")
including, without limitation in any way, as the result of any acts of God, war, fire, or other
casualty, riot, civil unrest, extreme weather conditions, terrorism, strikes and/or labor
disputes, pandemic, epidemic, quarantines, government stay-at-home orders, municipal
and other government orders, failure of Internet, or other matter beyond the control of
such party. Upon the occurrence of a Force Majeure Event, the party incurring such
Force Majeure Event will promptly give notice to the other party identifying the Force
Majeure Event, explaining how it impacts performance and the estimated duration,
identifying the relief requested, agreeing to limit damages to the other party and to
immediately resume performance upon termination of the Force Majeure Event, and
24
Page 374 of 629
agreeing to supplement the notice as more information becomes available, and thereafter
the parties shall meet and confer in good faith in order to identify a cure of the condition
affecting its performance as expeditiously as possible. No obligation to make a payment
required by this Agreement is excused by a Force Majeure Event. The nonperforming
party shall not be entitled to any damages or additional payments of any kind for any such
delay.
18.5 Applicable Law; Severability. This Agreement shall be subject to, construed and
enforced in accordance with the laws of the state of Iowa. If any provision of this
Agreement is held invalid under applicable law, such invalidity shall not affect any other
provision of this Agreement that can be given effect without the invalid provision, and to
this end, the provisions hereof are severable.
18.6 Interpretation; Headings. Words and phrases herein shall be interpreted and
understood according to the context in which they are used. The headings of the articles,
sections, paragraphs and subdivisions of this Agreement are for convenience of reference
only, are not to be considered a part hereof and shall not limit or expand or otherwise
affect any of the terms hereof.
18.7 Entire Agreement; Counterparts; Remedies Cumulative. This Agreement,
including any Exhibits, all of which are incorporated by this reference, and the documents
executed and delivered pursuant hereto, constitute the entire agreement between the
parties, and may be amended only by a writing signed by each party. All agreements,
instruments and documents referred to in this Agreement are by this reference made a
part of this Agreement for all purposes. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of which together
shall constitute but one and the same instrument. The parties shall have, in addition to
the rights and remedies provided by this Agreement, all those allowed by all applicable
laws, all of which shall be in extension of and not in limitation of those provided hereunder.
18.8 Waivers. Prior to issuance of the Certificate of Completion, no waiver by either
party of any breach of this Agreement, or of any warranty or representation hereunder,
shall be deemed to be a waiver by the same party of any other breach of any kind or
nature (whether preceding or succeeding the breach in question, and whether or not of
the same or similar nature).
(1) No acceptance by a party of payment or performance after any such breach
shall be deemed to be a waiver of any breach of this Agreement or of any
representation or warranty hereunder, whether or not the party knows of the
breach when it accepts such payment or performance.
(2) No failure by a party to exercise any right it may have under this Agreement
or under law upon another party's default, and no delay in the exercise of that right,
shall prevent it from exercising the right whenever the other party continues to be
in default. No such failure or delay shall operate as a waiver of any default or as
a modification of the provisions of this Agreement.
25
Page 375 of 629
18.9 Construction Against Drafter. It is acknowledged that each of the parties have had
substantial input individually, and by their attorneys, into the drafting of this agreement.
It is therefore agreed that the Agreement shall not be construed for or against either of
the parties based upon the identity of the drafter of the final Agreement.
18.10 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.
18.11 Memorandum of Agreement. The parties acknowledge that this Agreement will not
be recorded of record. However, the City shall promptly record a Memorandum of
Development Agreement in the form attached hereto as Exhibit G in the office of the
Recorder of Dubuque County, Iowa. Developer shall pay the costs for so recording.
18.12 No Personal Liability. Notwithstanding anything herein, no member, shareholder,
director, partner, manager, officer or employee of Developer shall have any personal
liability under this Agreement, whether to City or otherwise, including, without limitation,
as a result of a default or breach by Developer, or for any amount which becomes owing
hereunder by Developer, or any obligation not performed by Developer.
18.13 Estoppel Certificates; Financing. City, at any time and from time to time, upon not
less than ten (10) days' notice from Developer, shall execute, acknowledge and deliver
to Developer (or any party upon Developer's request, including any lender or prospective
lender of Developer), a statement in writing: (a) certifying that this Agreement is
unmodified and in full force and effect (or if modified, stating the nature of such
modification and certifying that this Agreement, as so modified, is in full force and effect);
and (b) acknowledging that there are not, to City's knowledge (as applicable), any
uncured defaults on the part of Developer hereunder, or specifying such defaults if they
are claimed. Any such statement may be relied upon by any existing or prospective
lender, title insurer, purchaser, assignee, or other third party. City further agrees to
provide such other reasonable assurances as may be necessary or required by a lender
to facilitate the financing of any aspect of the Project, including the individual financing of
only a portion of the Project or Property.
[Signatures appear on following page.]
W
Page 376 of 629
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
By:
Brad M. Cavanagh, Mayor
Attest:
Adrienne N. Breitfelder
GRONEN DEVELOPMENT, INC
By:
Mary Gr President
Page 377 of 629
LIST OF EXHIBITS
EXHIBIT A
Urban Renewal Plan
EXHIBIT B-1
Site Plan
EXHIBIT B-2
The Property
EXHIBIT C
City Attorney Certificate
EXHIBIT D
City Certificate
EXHIBIT E
Opinion of Counsel to Developer
EXHIBIT F
Warranty Deed
EXHIBIT G
Memorandum of Development Agreement
EXHIBIT H
Site Access Agreement
EXHIBIT I
Minimum Assessment Agreement
EXHIBIT J
Loading Dock
Page 378 of 629
EXHIBIT A
URBAN RENEWAL PLAN
(on file in City Clerk's office, 50 W. 13th Street, Dubuque, IA 52001)
29
Page 379 of 629
EXHIBIT B-1
PROPOSED SITE PLAN
30
Page 380 of 629
JsT FLOOR LAYOUT
31
Page 381 of 629
EXHIBIT B-2
THE PROPERTY
32
Page 382 of 629
a
33
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C
Page 383 of 629
EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
34
Page 384 of 629
Dubuque
Barry A. Lindahl, Esq.
THE CITY OF
Senior Counsel
Suite 330, Harbor View Place
DUB
"
11111.1
300 Main Street
E
Dubuque, Iowa 52001-6944
(563) 583-4113 office
(563) 583-1040 fax
Masterpiece on the Mississippi
2007 2012
2013.2017
balesq@c ityo fdubuque. org
(DATE)
RE:
Dear
I have acted as counsel for the City of Dubuque, Iowa, in connection with the execution
and delivery of a certain Purchase Agreement and Development Agreement
("Agreement") between (Developer) and the City of Dubuque, Iowa
(City) dated for reference purposes the day of , 20_
The City has duly obtained all necessary approvals and consents for its execution,
delivery and performance of the Agreement and has full power and authority to execute,
deliver and perform its obligations under the Agreement, and to the best of my knowledge,
the representations of the City Manager in his letter dated the day of ,
20 , are correct.
BAL:tIs
35
Very sincerely,
Barry A. Lindahl, Esq.
Senior Counsel
Page 385 of 629
EXHIBIT D
CITY'S CERTIFICATE
36
Page 386 of 629
THE CITY OF
DUB E
Masterpiece on the Mississippi
Dear
Dubuque
City Manager's Office
I �ft,,,"
City Hall
50 West 13th Street
Dubuque, Iowa 52001-4864
II
I I
(563) 589-4110 office
(563) 589-4149 fax
ctymgr@cityofdubuque.org
2007.2012
2013.2017
(DATE)
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity in
connection with the execution and delivery of a certain Purchase Agreement and
Development Agreement (Agreement) between (Developer) and the
City of Dubuque, Iowa (City) dated for reference purposes the day of
20
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse change in
the Property being conveyed or the possession, use or enjoyment thereof by
Developer, including, but not limited to, any action in condemnation, eminent
domain or public taking;
(2) No ordinance or hearing is pending or, to the best of City's knowledge,
contemplated before any local governmental body which either contemplates or
authorizes any public improvements or special tax levies, the cost of which may
be assessed against the Property. To the best of City's knowledge, there are no
plans or efforts by any government agency to widen, modify, or re -align any street
or highway providing access to the Property and there are no pending or intended
public improvements or special assessments affecting the Property which will
result in any charge or lien be levied or assessed against the Property.
(3) All leases, contracts, licenses, and permits between City and third parties
in connection with the maintenance, use, and operation of the Property have been
provided to Developer and City has provided true and correct copies of all such
documents to Developer;
(4). City has good and marketable fee simple title interest to the Property;
(5) There are no notices, orders, suits, judgments or other proceedings relating
to fire, building, zoning, air pollution, health violations or other matters that have
37
Page 387 of 629
not been corrected. City has notified Developer in writing of any past notices,
orders, suits, judgments or other proceedings relating to fire, building, zoning, air
pollution or health violations as they relate to the Property of which it has actual
notice;
(6) The Property will as of the date of the Closing Date be free and clear of all
liens, security interests, and encumbrances and payment has been made for all
labor or materials that have been furnished to the Property or will be made prior to
the Closing Date so that no lien for labor performed or materials furnished can be
asserted against the Property;
(7) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of the Agreement, and that it has full power
and authority to execute, deliver and perform its obligations under the Agreement.
City's attorney shall issue a legal opinion to Developer at the time of each Closing
confirming the representation contained herein, in form and substance attached
hereto as Exhibit C;
(8) All City utilities necessary for the development and use of the Property
adjoin the Property, and Developer shall have the right to tie into and use said
utilities upon payment to City of the required connection and tap fees and all other
applicable fees; provided, however, that the cost of any utility relocation shall be
at the sole cost of Developer;
(9) The Property is free and clear of any occupants, and no party has a lease
to or other occupancy or contract right in the Property which shall in anyway be
binding upon the Property or Developer;
(10) City shall exercise its best efforts to cooperate with Developer in the
development process;
(11) City shall exercise its best efforts to resolve any disputes arising during the
development process in a reasonable and prompt fashion;
(12) With respect to the period during which City has owned or occupied the
Property, and to the best of City's knowledge after reasonable investigation with
respect to the time before City owned or occupied the Property, no person or entity
has caused or permitted materials to be stored, deposited, treated, recycled, or
disposed of on, under or at the Property other than as described in the
environmental reports that City has provided to Developer, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under Environmental Laws;
(13) There are no fees or other charges payable by Developer for the
construction of any City utilities serving the Property other than the fees for
connecting to and installing meters and tap fees with regard to such utilities and
Page 388 of 629
all city utilities necessary for the development and use of the Property as a mixed -
use facility adjoin the Property and Developer shall have the right to connect to
said utilities, subject to City's connection fees;
(14) The Property is properly zoned for the various uses described in the
Agreement.
(15) City makes no warranties or representations as to the condition of the
Property other than those which are expressly stated in the Agreement;
(16) City has completed all required notice to or prior approval, consent or
permission of any federal, state or municipal or local governmental agency, body,
board or official to the sale of the Property; and consummation of the Closing by
City shall be deemed a representation and warranty that it has obtained the same;
(17) City represents and agrees that, use of the Property as a mixed -use building
as described in the Agreement is in full compliance with the Urban Renewal Plan;
(18) The Property has a permanent right of ingress and egress to a public
roadway for the use and enjoyment of the Property from Main Street;
(19) The execution, delivery and performance of the Agreement and the
consummation of the transactions contemplated by the Agreement do not and shall
not result in any material breach of any terms or conditions of any mortgage, bond,
indenture, agreement, contract, license, or other instrument or obligation to which
City is a party or by which either the City or the Property being conveyed are bound,
nor shall the execution, delivery and performance of the Agreement violate any
statute, regulation, judgment, writ, injunction or decree of any court threatened or
entered in a proceeding or action in which City may be bound or to which either
City or the Property being conveyed may be subject; and
(20) The representations and warranties of the City contained in the Agreement
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, and such representations and warranties shall survive the
Closing.
MCVM:jh
39
Sincerely,
Michael C. Van Milligen
City Manager
Page 389 of 629
EXHIBIT E
OPINION OF COUNSEL TO DEVELOPER
Page 390 of 629
Mayor and City Councilmembers
City Hall
13th and Central Avenue
Dubuque IA 52001
Re: Purchase Agreement and Development Agreement Between the City of Dubuque,
Iowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for (Developer) in connection
with the execution and delivery of a certain Purchase Agreement and Development
Agreement (Agreement) between Developer and the City of Dubuque, Iowa (City) dated
for reference purposes the day of , 20_
We have examined the original certified copy, or copies otherwise identified to our
satisfaction as being true copies, of the Agreement and such other documents and
records as we have deemed relevant and necessary as a basis for the opinions set forth
herein.
Based on the pertinent law, the foregoing examination and such other inquiries as
we have deemed appropriate, and subject to such qualifications and limitations as
hereinafter provided, we are of the opinion that:
1. Developer is a limited liability company organized and existing under the
laws of the State of Iowa and has full power and authority to execute, deliver and perform
in full the Agreement. The 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 Agreement
and the consummation of the transactions thereunder, will not result in violation of (i) any
provision of, or in default under, the certificate of limited liability company or limited liability
company agreement of Developer, or (ii) (A) to our knowledge, any indenture, mortgage,
deed of trust, indebtedness, agreement, judgment, decree, restriction or order, or (B) any
statute, rule, or regulation, to which Developer is a party or by which Developer's property
is bound or subject and which is set forth on Schedule A hereto.
3. We are not representing Developer in connection with any action, suit or
proceeding pending or overtly threatened against Developer before any court, arbitrator
or governmental agency that questions the validity of the Agreement. With regard to this
opinion, we have checked the records of this firm to ascertain that we are not representing
Developer with respect to the foregoing. We have made no further investigation.
41
Page 391 of 629
This opinion is rendered for the sole benefit of the City of Dubuque and no other party
may rely on this opinion.
This opinion is rendered and valid as of the date of this letter and we have no duty to
update this opinion for any matters which come to our knowledge after the date of this
letter.
Very truly yours,
W
Page 392 of 629
EXHIBIT F
SPECIAL WARRANTY DEED
43
Page 393 of 629
Prepared by: Barry A. Lindahl 300 Main Street, Suite 330, Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street, Suite 330, Dubuque IA 52001 563 583-4113
Tax Statement to:
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: that the City of Dubuque, Iowa, a
municipal corporation of the State of Iowa ("Grantor"), in consideration of the Grantee
named below undertaking the obligations of the Developer under the Agreement (as
hereinafter defined) described below and the sum of and
no/100 Dollars ($ ) in hand paid, and other good and valuable consideration,
and pursuant to the authority of Chapter 403, Code of Iowa, does hereby GRANT, SELL
AND CONVEY unto ("Grantee"), the following described
parcel(s) situated in the County of Dubuque, State of Iowa, to wit (the "Property"):
This Deed is exempt from transfer tax pursuant to Iowa Code section 428A.2(6).
This Deed is given pursuant to the authority of Resolution No. of the City
Council of the City of Dubuque adopted the day of 20_, the terms
and conditions thereof, if any, having been fulfilled.
This Deed is being delivered in fulfillment of Grantor's obligations under and is
subject to all the terms, provisions, covenants, conditions and restrictions contained in
that certain Purchase Agreement and Development Agreement executed by Grantor and
Grantee herein, dated the day of , 20_ (the "Agreement"), a
memorandum of which was recorded on the day of , 20_, in the
records of the Recorder of Dubuque County, Iowa, Instrument Number -
None of the provisions of the Agreement shall be deemed merged in, affected or
impaired by this Deed.
Grantor hereby covenants to warrant and defend the said premises against the
lawful claims of all persons whomsoever claiming by, through and under it.
Page 394 of 629
Dated this of , 20_ at Dubuque, Iowa.
CITY OF DUBUQUE IOWA
Brad M. Cavanagh, Mayor
Attest:
Adrienne N. Breitfelder, City Clerk
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
On this day of , 20_, before me a Notary Public in and
for said County, personally appeared Brad M. Cavanagh and Adrienne N. Breitfelder to
me personally known, who being duly sworn, did say that they are the Mayor and City
Clerk, respectively of the City of Dubuque, Iowa, a Municipal Corporation, created and
existing under the laws of the State of Iowa, and that the seal affixed to the foregoing
instrument is the seal of said Municipal Corporation, and that said instrument was signed
and sealed on behalf of said Municipal Corporation by authority and resolution of its City
Council and said Mayor and City Clerk acknowledged said instrument to be the free act
and deed of said Municipal Corporation by it voluntarily executed.
Notary Public in and for Dubuque County, Iowa
45
Page 395 of 629
EXHIBIT G
MEMORANDUM OF AGREEMENT
MR
Page 396 of 629
Iowa,
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 AGREEMENT
A Development Agreement (the "Agreement") by and among the City of Dubuque,
an Iowa municipal corporation, of Dubuque, Iowa, and
, an Iowa limited liability company, was made regarding
the following described premises:
The Agreement is dated for reference purposes the day of , 20_,
and contains covenants, conditions, and restrictions concerning the sale and use of said
premises.
This Memorandum of Agreement is recorded for the purpose of constructive
notice. In the event of any conflict between the provisions of this Memorandum and the
Agreement itself, executed by the parties, the terms and provisions of the Agreement
shall prevail. A complete counterpart of the Agreement, together with any amendments
thereto, is in the possession of the City of Dubuque and may be examined at its offices
as above provided.
Dated this day of 120
CITY OF DUBUQUE, IOWA
Barry A. Lindahl, Esq., Senior Counsel
STATE OF IOWA
47
Page 397 of 629
: SS:
DUBUQUE COUNTY
On this day of , 20_, before me, a Notary Public in and for the State of
Iowa, in and for said county, personally appeared Barry A. Lindahl, to me personally
known, who being by me duly sworn did say that he is Senior Counsel of the City of
Dubuque, a Municipal Corporation, created and existing under the laws of the State of
Iowa, and that the seal affixed to said instrument is the seal of said Municipal Corporation
and that said instrument was signed and sealed on behalf of said Municipal corporation
by authority and resolution of its City Council and said Mayor and City Clerk
acknowledged said instrument to be the free act and deed of said Municipal Corporation
by it voluntarily executed.
Notary Public, State of Iowa
Page 398 of 629
EXHIBIT H
SITE ACCESS AGREEMENT
Page 399 of 629
SITE ACCESS AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
GRONEN DEVELOPMENT, INC.
This Agreement (the "Agreement") is made and entered into this day of
2023, by and between the City of Dubuque, Iowa, an Iowa municipal
corporation ("City"), and Gronen Development, Inc. , an Iowa limited liability company
("Developer").
WHEREAS, City is the owner of the real estate shown on Exhibit B-1 (the "Site"),
attached hereto, which is being considered as a Development Project by City and
Developer; and
WHEREAS, Developer desires access to the Site prior or as part of a Development
Agreement for purposes of surveying, environmental studies, soils reports, engineering
studies and other site analysis; and
WHEREAS, the City desires to allow Developer access to the Site for such
purposes prior to the closing, subject to the conditions set forth herein.
NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS
FOLLOWS:
SECTION 1. ACCESS TO SITE. Subject to the conditions herein, the City hereby
grants to Developer and its consultant(s) full and continuing access to the Site and all
parts thereof, upon reasonable notice to City, and at Developer's sole expense, for
surveying, environmental studies, soils reports, engineering studies and other site
analysis. Prior to access to the Site, Developer shall obtain approval from the City of the
following (which such approval shall not be unreasonably withheld, conditioned or
delayed): consultant(s), scope of work to be conducted on the Site, and schedule for the
work to be done on the Site.
SECTION 2. RESTORATION OF SITE. Developer agrees to timely pay and discharge
all claims of any kind by its consultants, contractors, subcontractors and suppliers with
respect to any work performed at the Site, including but not limited to claims for labor or
material furnished in connection therewith, and to defend, indemnify and hold harmless
City from and against any and all such claims. In the event that Development Agreement
is not approved by City and Developer by , 20_, or, if the Development
Agreement is approved but the Site acquisition set forth in the Development Agreement
does not close for any reason by , 20_, Developer shall, at Developer's sole
expense by not later than 20_, restore the Site to substantially the same
condition as existed on the date of this Agreement, and upon such restoration to City's
reasonable satisfaction, this Agreement shall then terminate.
50
Page 400 of 629
SECTION 3. CONDITION OF THE SITE. City makes no warranty or representation as
to the condition of the Site unless expressly stated in the Development Agreement.
Developer acknowledges that any work performed by Developer and/or its consultant(s)
at the Site is at their sole risk. Developer shall insure that all work at the Site is done in
accordance with all applicable laws and permits (if required) and in a good worker -like
manner. Developer and its consultants shall daily leave the Site in a condition no less
safe than before the work was conducted. Developer and its consultant(s) are solely
responsible for obtaining any and all permits required for the work to be conducted at the
Site. No hazardous chemicals and wastes may be stored or disposed of on the Site in
violation of any laws, and all such materials must be used only as allowed by law.
Developer shall be responsible for identifying any and all utilities serving the Site prior to
conducting invasive work on the Site.
SECTION 4. SHARING OF INFORMATION. Developer shall provide City with copies
of any and all reports and documents resulting from the work conducted at the Site upon
the request of the City. Developer and/or its consultant(s) shall notify the City immediately
upon discovery of any hazardous or unsafe condition at the Site.
SECTION 5. INDEMNIFICATION. Developer shall defend, indemnify and hold
harmless City, its officers, agents and employees (the "City Indemnified Parties") from
and against any claim and cost of any kind, including without limitation, reasonable
attorneys' fees and consulting fees, arising out any work at the Site by or on behalf of
Developer and its consultants. This obligation shall survive the termination of this
Agreement. Notwithstanding the foregoing, Developer shall not be obligated to indemnify
or to hold harmless City Indemnified Parties from any damages, claims or liabilities
caused by (a) the negligence or willful misconduct of the City Indemnified Parties or their
respective agents, employees, contractors, officers, consultants or other representatives,
and/or (b) the discovery of or existence of any pre-existing condition at the Site (including,
without limitation, any pre-existing environmental contamination).
SECTION 6. INSURANCE. Developer shall provide insurance as set forth in the
attached Insurance Schedule.
CITY OF DUBUQUE, IOWA
By
Michael Van Milligen
City Manager
51
Page 401 of 629
INSURANCE SCHEDULE A
6�
Page 402 of 629
INSURANCE SCHEDULE A
Lessee shall furnish a signed certificate of insurance to the City of Dubuque, Iowa for the
coverage required in Exhibit I prior to the lease, license, or permit commencement. All lessees of
City property and right of way licensees or permittees shall submit an updated certificate
annually. Each certificate shall be prepared on the most current ACORD form approved by the
Iowa Insurance Division or an equivalent. Each certificate shall include a statement under
Description of Operations as to why the certificate was issued. Lease Agreement dated
2. All policies of insurance required hereunder shall be with an insurer authorized to do business in
Iowa and all insurers shall have a rating of A or better in the current A.M. Best's Rating Guide.
3. Each certificate shall be furnished to the Finance Department of the City of Dubuque.
4. The lessee, licensee, or permittee shall be required to carry the minimum coverage/limits, or
greater if required by law or other legal agreement, in Exhibit I. Failure to provide the required
minimum coverage shall not be deemed a waiver of such requirements by the City of Dubuque.
5. Failure to obtain or maintain the required insurance shall be considered a material breach of the
lease, license, or permit.
6. All required endorsements shall be attached to the certificate. The certificate is due before the
contract/agreement can be approved.
7. Whenever a specific ISO form is referenced the current edition of the form must be used unless
an equivalent form is approved by the Chief Financial Officer. The lessee, licensee, or permittee
must identify and list in writing all deviations and exclusions from the ISO form.
8. If lessees, licensees, or permittee limits of liability are higher than the required minimum limits
then the lessee's, licensee's, or permittee's limits shall be this agreement's required limits.
9. Lessee, licensee, or permittee shall require all subcontractors and subcontractors to obtain and
maintain during the performance of work insurance for the coverages described in this Insurance
Schedule and shall obtain certificates of insurance from all such subcontractors and sub -
subcontractors. Lessee, licensee, or permittee agrees that it shall be liable for the failure of a
subcontractor and sub -subcontractor to obtain and maintain such coverage. The City may
request a copy of such certificates from the lessee, licensee, or permittee.
10. Lessee, license & permittees shall be responsible for deductibles and self -insured retention and
for payment of all policy premiums and other costs associated with the insurance policies
required below.
11. All certificates of insurance must include the agent's name, phone number and email address.
12. The City of Dubuque reserves the right to require complete, certified copies of all required
insurance policies, including endorsements, required by this Schedule at any time.
13. The City of Dubuque reserves the right to modify these requirements, including limits, based on
changes in risk or other special circumstances during the term of the agreement, subject to the
written mutual agreement attached hereto.
2
Page 403 of 629
INSURANCE SCHEDULE A (Continued)
EXHIBIT I
A) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000
Products -Completed Operations Aggregate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence $1,000,000
Fire Damage Limit (any one occurrence) $50,000
Medical Payments $5,000
1) Coverage shall be written on an occurrence, not claims made, form. The general
liability coverage shall be written in accord with the ISO form CG 00 01 or
business owners form BP 00 02. All deviations from the standard ISO
commercial general liability form CG 0001, or Business owners form BP 00 02,
shall be clearly identified.
2) Include ISO endorsement form CG 25 04 "Designated Location(s) General
Aggregate Limit."
3) Include endorsement indicating that coverage is primary and non-contributory.
4) Include Preservation of Governmental Immunities Endorsement (Sample
attached).
5) Include additional insured endorsement for:
The City of Dubuque, including all its elected and appointed officials, all its
employees and volunteers, all its boards, commissions and/or authorities and
their board members, employees and volunteers. Use ISO form CG 20 10
(Ongoing operations) or its equivalent.
6) Policy shall include Waiver of Right to Recover from Others Endorsement.
7) Policy shall include cancellation and material change endorsement providing
thirty (30) days advance written notice of cancellation, non -renewal, reduction in
insurance coverage and/or limits and ten (10) days written notice of non-payment
of premium shall be sent to: City of Dubuque Finance Department, 50 West 13tn
Street Dubuque, Iowa 52001
B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory Benefits covering all employees injured on the job by accident or disease as
prescribed by Iowa Code Chapter 85.
Coverage A Statutory —State of Iowa
Coverage B Employers Liability
Each Accident $100,000
Each Employee -Disease $100,000
Policy Limit -Disease $500,000
Policy shall include Waiver of Right to Recover from Others endorsement.
Coverage B limits shall be greater if required by the umbrella/excess insurer
OR
If, by Iowa Code Section 85.1A, the lessee, licensee, or permittee is not required to
purchase Workers' Compensation Insurance, the lessee, licensee, or permittee shall
have a copy of the State's Nonelection of Workers' Compensation or Employers' Liability
3
Page 404 of 629
C)
D)
E)
Coverage form on file with the Iowa Workers' Compensation Insurance Commissioner, as
required by Iowa Code Section 87.22. Completed form must be attached.
POLLUTION LIABILITY
Coverage required: _ Yes _ No
Pollution liability coverage shall be required if the lessee, contracting party, or permittee
has any pollution exposure for the abatement of hazardous or contaminated materials
including, but not limited to, petroleum products, the removal of lead, asbestos, or PCBs.
Pollution products and completed operations coverage shall also be covered.
Each occurrence
Policy Aggregate
$2,000,000
$4,000,000
1) Policy to include job site and transportation coverage.
2) Include additional insured for:
The City of Dubuque, including all its elected and appointed officials, all its
employees and volunteers, all its boards, commissions and/or authorities and
their board members, employees and volunteers. Use ISO form CG 2010.
(Ongoing operations) or its equivalent and CG2037(completed operations) or
its equivalent.
3) Include Preservation of Governmental Immunities Endorsement.
4) Provide evidence of coverage for 5 years after completion of project.
5) Include endorsement indicating that coverage is primary and non-contributory.
6) Policy shall include waiver of right to recovery from others endorsement.
PROPERTY INSURANCE REQUIRED BY LEASE, LICENSE, OR PERMIT
Yes _X_ No
Amount $
Include the City of Dubuque as Lender Loss Payable.
RIGHT-OF-WAY WORK ONLY:
UMBRELLA/EXCESS
Yes _ No
$1,000,000
The General Liability, Automobile Liability and Employer's Liability insurance
requirements may be satisfied with a combination of primary and Umbrella or Excess
Liability Insurance. If the Umbrella or Excess Insurance policy does not follow the form of
the primary policies, it shall include the same endorsements as required of the primary
policies including but not limited to Waiver of Subrogation AND Primary and Non-
contributory in favor of the City.
F) FLOOD INSURANCE
Yes _X_ No
If Required Coverage
4
Page 405 of 629
Please be aware that naming the City of Dubuque as an additional insured as is required by this
Insurance Schedule may result in the waiver of the City's governmental immunities provided in Iowa Code
sec. 670.4. If you would like to preserve those immunities, please use this endorsement or an equivalent
form.
PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmental Immunity. The insurer expressly agrees and states that the purchase
of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any
of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa
Section 670.4 as it now exists and as it may be amended from time to time.
2. Claims Coverage. The insurer further agrees that this policy of insurance shall cover only those
claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it
now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa
Section 670.4 shall be covered by the terms and conditions of this insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting
any defense of governmental immunity and may do so at any time and shall do so upon the timely written
request of the insurer.
4. Non -Denial of Coverage. The insurer shall not deny coverage under this policy and the insurer
shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for
reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of
the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa.
No Other Change in Policy. The above preservation of governmental immunities shall not otherwise
change or alter the coverage available under the policy.
SPECIMEN
5
Page 406 of 629
EXHIBIT I
MINIMUM ASSESSMENT AGREEMENT
Page 407 of 629
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
MINIMUM ASSESSMENT AGREEMENT
THIS MINIMUM ASSESSMENT AGREEMENT ("Minimum Assessment Agreement"
or "Assessment Agreement") is dated as of 20 , by and between the City
of Dubuque, Iowa (the "City"), an Iowa municipal corporation, acting under the authorization of
Chapter 403 of the Code of Iowa, 2023, as amended, and , a(n)
7
having an office for the transaction
("Developer").
RECITALS
of business at
WHEREAS, the City and Developer have entered into a Development Agreement dated
as of , 2025 ("Agreement" or "Development Agreement") regarding
certain real property to be located in the City, which is legally described as follows:
BLK 17 DUBUQUE DOWNTOWN PLAZA
(the "Development Property");
WHEREAS, the defined terms in the Development Agreement will also apply to this
Minimum Assessment Agreement; and
WHEREAS, it is contemplated that Minimum Improvements (as described in the
Development Agreement) would be constructed on the Development Property, as provided in
the Development Agreement; and
WHEREAS, pursuant to Section 403.6(19) of the Code of Iowa, as amended, the City and
Developer desire to establish a Minimum Actual Value for the Development Property following
completion of the Minimum Improvements pursuant to the Development Agreement; and
WHEREAS, the City and the Dubuque County Assessor have reviewed the preliminary
plans and specifications for the Minimum Improvements that are contemplated to be constructed.
NOW, THEREFORE, the parties to this Minimum Assessment Agreement, in
consideration of the promises, covenants and agreements made by each other, do hereby agree
as follows:
7
Page 408 of 629
1. Upon substantial completion of construction of the Minimum Improvements, but
in no event later than January 1, 20 , the Minimum Actual Value fixed for assessment
purposes for the Minimum Improvements and the Development Property (building and land
value) in the aggregate shall be not less than Twenty -One Million Five Hundred Thousand Dollars
($21,500,000), before rollback. Until the completion of the construction of the Minimum
Improvements the assessment shall remain at the value as of the date of this agreement.
The Minimum Actual Value shall terminate and be of no further force or effect as of the
Termination Date of this Agreement ("Assessment Termination Date"). Upon the Assessment
Termination Date, this Minimum Assessment Agreement shall no longer control the assessment
of the Development Property.
2. 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 Development Property and the
Minimum Improvements pursuant to the provisions of this Minimum Assessment Agreement
and the Development Agreement. Such tax payments shall be made without regard to any failure
to complete the Minimum Improvements; loss, complete or partial, to the Development Property;
any interruption in, or discontinuance of, the use, occupancy, ownership or operation of the
Minimum Improvements by Developer; or any other matter or thing which for any reason
interferes with, prevents or renders burdensome the use or occupancy of the Development
Property or the Minimum Improvements.
3. Developer agrees that its obligations to make the tax payments required hereby, to
pay the other sums provided for herein, and to perform and observe its other agreements
contained in this Minimum Assessment Agreement shall be absolute and unconditional
obligations of Developer (not limited to the statutory remedies for unpaid taxes) and that
Developer shall not be entitled to any diminution thereof, or set off therefrom, nor to any early
termination of this Minimum Assessment Agreement for any reason.
4. Developer agrees that, prior to the termination of this Assessment Agreement, it
will not:
(a) seek administrative review or judicial review of the applicability or
constitutionality of any Iowa tax statute relating to the taxation of the Development
Property determined by any tax official to be applicable to the Development Property, or
raise the inapplicability or constitutionality of any such tax statute as a defense in any
proceedings, including delinquent tax proceedings; or
(b) seek any tax deferral or abatement, either presently or prospectively
authorized under Iowa Code Chapter 403 or 404, or any other local, City, or State law or
regulation, of the taxation of the Development Property; or
(c) request the Assessor to reduce the Minimum Actual Value for the
Development Property; or
Page 409 of 629
(d) appeal to the board of review of the County, State, District Court, or to the
Director of Revenue of the State to reduce the Minimum Actual Value for the
Development Property; or
(e) cause a reduction in the actual value or the Minimum Actual Value for the
Development Property through any other proceedings.
5. This Minimum Assessment Agreement shall be promptly recorded by the City with
the Recorder of Dubuque County, Iowa. Such filing shall constitute notice to any subsequent
encumbrancer of the Development Property (or part thereof), whether voluntary or involuntary,
and this Minimum Assessment Agreement shall be binding and enforceable in its entirety against
any such subsequent encumbrancer, including the holder of any mortgage. The City shall pay
all costs of recording.
6. Neither the preambles nor provisions of this Minimum Assessment Agreement are
intended to, or shall be construed as, modifying the terms of the Development Agreement.
7. This Minimum Assessment Agreement shall not be assignable without the written
consent of the City and shall be binding upon and inure to the benefit of and be enforceable by
the parties hereto and their respective successors and permitted assigns.
8. Nothing herein shall be deemed to waive the rights of Developer under Iowa Code
Section 403.6(19) to contest that portion of any actual value assignment made by the Assessor
in excess of the Minimum Actual Value established herein. In no event, however, shall
Developer seek to reduce the actual value to an amount below the Minimum Actual Values
established herein during the term of this Agreement. This Minimum Assessment Agreement
may be amended or modified and any of its terms, covenants, representations, warranties or
conditions waived, only by a written instrument executed by the parties hereto, or in the case of
a waiver, by the parry waiving compliance.
9. If any term, condition or provision of this Minimum Assessment Agreement is for
any reason held to be illegal, invalid or inoperable, such illegality, invalidity or inoperability
shall not affect the remainder hereof, which shall at the time be construed and enforced as if such
illegal or invalid or inoperable portion were not contained herein.
10. The Minimum Actual Value herein established shall be of no further force and
effect and this Minimum Assessment Agreement shall terminate pursuant to the Assessment
Termination Date set forth in Section 1 above.
[Remainder of this page intentionally left blank; signature pages follow]
0
Page 410 of 629
CITY OF DUBUQUE IOWA
By:
Brad M. Cavanagh, Mayor
Attest:
By:
Adrienne N. Breitfelder, City Clerk
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
On this day of , 20_, before me a Notary Public in and for said
County, personally appeared Brad M. Cavanagh and Adrienne N. Breitfelder to me personally
known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively of the
City of Dubuque, Iowa, a Municipal Corporation, created and existing under the laws of the State
of Iowa, and that the seal affixed to the foregoing instrument is the seal of said Municipal
Corporation, and that said instrument was signed and sealed on behalf of said Municipal
Corporation by authority and resolution of its City Council and said Mayor and City Clerk
acknowledged said instrument to be the free act and deed of said Municipal Corporation by it
voluntarily executed.
Notary Public in and for Dubuque County, Iowa
4811-6768-1178.10
Page 411 of 629
Attest:
STATE OF IOWA
COUNTY OF DUBUQUE
On this day of
County, personally
appeared
GRONEN DEVELOPMENT, INC
By:
Its:
SS
20_, before me a Notary Public in and for said
and
known to me to be the person(s) whose name(s)
is/are executed the same for the purposes therein contained.
Notary Public in and for Dubuque County, Iowa
Page 412 of 629
CERTIFICATION OF ASSESSOR
The undersigned, having reviewed the plans and specifications for the Minimum
Improvements to be constructed, and being of the opinion that the minimum market value
contained in the foregoing Minimum Assessment Agreement appears reasonable, hereby certifies
as follows: The undersigned Assessor, being legally responsible for the assessment of the
Minimum Improvements on the Development Property described in the foregoing Minimum
Assessment Agreement, certifies that the actual value assigned to the Minimum Improvements
and the Development Property (land and building value) in the aggregate upon substantial
completion of construction of the Minimum Improvements, but in no event later than January 1,
20 shall be not less than Twenty -Two Million Five Hundred Thirty -Four Thousand
Dollars ($22,534,000), before rollback
Assessor for County, Iowa
Date
STATE OF IOWA )
) SS
COUNTY OF )
Subscribed and sworn to before me by , Assessor for the County
of , Iowa on this day of , 20
Notary Public for the State of Iowa
Page 413 of 629
Consistent with Iowa Code §403.6(19)(b), filed with this assessor certification is a copy of
subsection 19 as follows:
19. a. A municipality, upon entering into a development or redevelopment agreement pursuant to section 403.8, subsection 1, or as
otherwise permitted in this chapter, may enter into a written assessment agreement with the developer of taxable property in the
urban renewal area which establishes a minimum actual value of the land and completed improvements to be made on the land
until a specified termination date which shall not be later than the date after which the tax increment will no longer be remitted to
the municipality pursuant to section 403.19, subsection 2. The assessment agreement shall be presented to the appropriate assessor.
The assessor shall review the plans and specifications for the improvements to be made and if the minimum actual value contained
in the assessment agreement appears to be reasonable, the assessor shall execute the following certification upon the agreement:
The undersigned assessor, being legally responsible for the assessment of the above described property upon completion of the
improvements to be made on it, certifies that the actual value assigned to that land and improvements upon completion shall not be
less than $ .........
b. This assessment agreement with the certification of the assessor and a copy of this subsection shall be filed in the office of the
county recorder of the county where the property is located. Upon completion of the improvements, the assessor shall value the
property as required by law, except that the actual value shall not be less than the minimum actual value contained in the assessment
agreement. This subsection does not prohibit the assessor from assigning a higher actual value to the property or prohibit the owner
from seeking administrative or legal remedies to reduce the actual value assigned except that the actual value shall not be reduced
below the minimum actual value contained in the assessment agreement. An assessor, county auditor, board of review, director of
revenue, or court of this state shall not reduce or order the reduction of the actual value below the minimum actual value in the
agreement during the term of the agreement regardless of the actual value which may result from the incomplete construction of
improvements, destruction or diminution by any cause, insured or uninsured, except in the case of acquisition or reacquisition of
the property by a public entity. Recording of an assessment agreement complying with this subsection constitutes notice of the
assessment agreement to a subsequent purchaser or encumbrancer of the land or any part of it, whether voluntary or involuntary,
and is binding upon a subsequent purchaser or encumbrancer.
Page 414 of 629
EXHIBIT J
LOADING DOCK
Page 415 of 629
IIDur-,t-R,-unp RaA Specially designed loading dock for the loading and
unloading of Rail Cars
Model Number
Platform
Length
Platform
U idth
Ramp
Length
Ramp
A idth
Capacity
Service
Height
Price
DR-RA112
12.5 Pect
125 poet
25 Fact
-9 inches
2w ;lkll_Hbs
42-30 inches
$2-,1(,4
DR-Raill;
I: Fect
15 Fect
25 poet
95 inches
30,rMxNbs
42. O inches
S33.764
-'I
Page 416 of 629