Alliant -Interstate -Ind. Ctr WMEMORANDUM
November 1, 2001
TO:
FROM:
SUBJECT:
The Honorable Mayor and City Council Members
Michael C. Van Milligen, City Manager
Alliant Energy (Interstate Power Company) Expansion at the Dubuque
industrial Center West
Economic Development Director Bill Baum is recommending the sale of 16.67 acres in
Dubuque Industrial Center West to Alliant Energy for $1,214,560 (Interstate Power
Company) to construct a 40,000 square foot Operations Facility and a new substation,
and that a public hearing be set for November 19, 2001.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
William Baum, Economic Development Director
CITY OF DUBUQUE, IOWA
MEMORANDUM
October 30, 2001
TO:
FROM:
SUBJECT:
Michael Van Milligen, City Manager
William Baum, Economic Development Director
Alliant Energy (Interstate Power Company) Expansion at the
Dubuque Industrial Center West
INTRODUCTION
This memorandum presents for City Council consideration a Resolution initiating
disposition of 16.67 acres identified on the attached exhibit to Interstate Power
Company to construct a 40,000 square foot industrial Operations Facility in the
Dubuque Industrial Center West along with a new substation. The attached Resolution
sets a public hearing on the disposition of this property for November 19, 2001.
BACKGROUND
City staff has worked with Alliant Energy over the past several months to plat the
property west of Seippel Road to create an extension of Chavenelle Road and 8
developable lots. The final plat will be presented for City Council approval on
November 5, 2001. The company plans to develop 2 lots (15 acres) for an expanded
operations and maintenance facility and utilize one lot (approximately 2 acres) for a
substation to serve the general area.
DISCUSSION
The proposed Development Agreement attached hereto provides for the sale of 16.67
acres to the company at a cost of $72,859 per acre. The price per acre includes a
discount of approximately $5,000 per acre from the asking price of $78,000 per acre.
This discount represents the interest expense that the City saved because of Alliant's
no-interest $860,000 loan to the City made several years ago to help finance the
industrial park's development.
Total sale price is $1,214,560 to be paid in two installments. One half of the sale price
will be due at closing (on or before December 1, 2001) and the remaining one half due
on or before June 30, 2002.
The company plans to commence construction of their new facility in 2002, completing
the project within 18 months. The new and expanded facility will replace existing
operations located at their power plant site on East 7th Street. The project will involve
construction of minimum improvements valued at not less than $2.6 million. The cost of
the new substation will be an additional investment.
Additional terms and conditions of the disposition of the property are included within the
attached Development Agreement.
RECOMMENDATION
I recommend that the City Council set for public hearing the disposition of 16.67 acres in
the Dubuque Industrial Center West to Alliant Energy (Interstate Power Company) for
the construction of a 40,000 square foot Operations Facility and a new substation. This
action supports the Council's objectives to assist a local business expand its operations.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
attachments
Prepared by: Pamela Myhre, Economic Development Planner
F:\USERS~Pmyh re\WPDOCS\LOANDOC~ALLIANT~dispo.memo.rff
RESOLUTION NO. 474-01
RESOLUTION OF INTENT TO
PROPERTY BY INSTALLMENT
COMPANY.
DISPOSE OF AN INTEREST IN REAL
CONTRACT TO INTERSTATE POWER
WHEREAS, the City of Dubuque, Iowa (City) is the owner of the following real
property (the Property), as shown on Exhibit A attached hereto consisting of 16.67
acres, more or less; and
WHEREAS, City and Interstate Power Company have entered into a
Development Agreement, subject to the approval of the City Council, a copy of which is
on file at the Office of the City Clerk, City Hall, 50 W. 13th Street, Dubuque, Iowa
pursuant to which City will convey the Property to Interstate Power Company; and
WHEREAS, the City Council has tentatively determined that it would be in the
best interests of the City to approve the Development Agreement, including conveyance
of the Property to Interstate Power Company.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City of Dubuque intends to dispose of its interest in the foregoing-
described Property by Installment Contract to Interstate Power Company.
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 City's intent to dispose of the foregoing-described Property, to be held
on the 19th day of November, 2001, at 6:30 p.m. at the Carnegie-Stout Public Library
Auditorium, 360 W. 11th Street, Dubuque, Iowa.
Passed, approved and adopted this 5th day of November, 2001.
/s/ Jeanne F. Schneider City Clerk
/s/ Terrance M. Duggan, Mayor
FINAL PLA'
DUBUQUE INDUSTRIAL CENTER W~T 2ND ADDITION
IN THE CITY OF DUBUQUE, IOWA
-NORT~ UNE E~/4 '~ LOT 6
s~c. 25-8.-~E LOT 5 ~Po.~.y
LOT 4
LOT .3
LOT 7
LOT 8
{
LOT 2
LOT I
573,79'(B73.95')
LOT C
S 8B'13'2i~- W 783.01'(752.g3*)
I EOU~O ,~/8' IRON ROD w/ NORTH
· F~ND I' ~ON PIPE
GR~HIC SCALE
TOTAL AREA SURVEYED: 57.181 ACRES
SURVEYED FOR
& PROPRIETOR; CiTY OF DUBUQUE, IOWA
DATE SURVEYED: JANUARY 2¢ 2001
soI~;~YO~S, ~C.
DEVELOPMENT AGREEMENT
AGREEMENT, made on or as of the day of ,2001, by and
between the City of Dubuque, Iowa, a municipality ("City"), established pursuant to the Code
of Iowa of the State of Iowa and acting under authorization of Chapter 403 of the Code of Iowa,
as amended ("Urban Renewal Act") and Interstate Power Company, a Delaware corporation
with its principal place of business in Dubuque,_lowa ("Developer").
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City has
undertaken an Urban Renewal project ("Project") to advance the community's ongoing
economic development efforts; and
WHEREAS, Project is located within the Dubuque Industrial Center Urban Renewal
Area ("Project Area"); and
WHEREAS, as of the date of this Agreement there has been prepared and approved by
City an Urban Renewal Plan for the Project Area consisting of the Urban Renewal Plan
approved by the City Council of City on the 17th of November, 1997 and as subsequently
amended, (attached hereto as Exhibit A)("Urban Renewal Plan"); and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of this
Agreement, has been recorded among the land records in the office of the Recorder of
Dubuque County, Iowa; and
WHEREAS, Developer has proposed to relocate and expand an existing business in the
Project Area; and
WHEREAS, Developer has requested that City sell to Developer Lots 2, 3, and 5 (to be
determined by Final Plat of Survey) Dubuque Industrial Center West 2"d Addition in the City of
Dubuque, Dubuque County, Iowa, together with all easements, tenements, hereditaments, and
appurtenances belonging thereto ("Property") so that Developer may develop said Property,
located in the Project Area, for and in accordance with the uses specified in the Urban Renewal
Plan and in accordance with this Agreement; and
WHEREAS, City believes that the development of Property pursuant to this Agreement,
and the fulfillment generally of this Agreement, are in the vital and best interests of City and in
accord with the public purposes and provisions of the applicable federal, state and local laws
and the requirements under which the Project has been undertaken and is being assisted.
NOW THEREFORE, in consideration of the premises and the mutual obligations of the parties
hereto, each of them does hereby covenant and agree with the other as follows:
SECTION 1. CONVEYANCE OF PROPERTY TO DEVELOPER
1.1 Purchase Price. The pumhase price for Property ("Purchase Price") shall be the sum
of Seventy-two Thousand Eight Hundred Fifty-nine and NO DOLLARS/acre ($72,859.00/acre)
for approximately 17 acres, subiect to Final Plat of Survey, which shall be due and payable in
two installments with one half due at closing (on or before December 1, 2001); and the
remaining one half due on or before June 30, 2002 or on such earlier date as the parties may
mutually agree.
1.2 Title To Be Delivered. City agrees to convey marketable fee simple title in Property to
Developer subject only to easements, restrictions, conditions and covenants of record and as
set forth in this Agreement.
(1) City at its sole cost and expense shall deliver to Developer an abstract of title to
Property continued through the date of this Agreement 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 shall become the property of Developer
when Purchase Price is paid in full.
(2) Developer shall have twenty (20) days after receipt of the abstract of title to render
objections to title, including any easements or other encumbrances not satisfactory to
Developer, in writing to City. City shall have twenty (20) days from the date it receives
such objections to have the same removed or satisfied. If City shall fail to have such
objections removed within that time, Developer may, at its sole discretion, either (a)
terminate this Agreement without any liability on its part, (b) take title subject to such
objections, or (c) extend the Closing Date to a date mutually agreed upon by the parties.
City agrees to use its best reasonable efforts to promptly satisfy any such objections.
1.3 Rights of Inspection, Testing and Review. City shall deliver Property in its "as is"
condition. Developer, its counsel, accountants, agents and other representatives, shall have
full and continuing access to Property and all parts thereof, upon reasonable notice to City at
any time after the execution and delivery hereof for any purpose whatsoever, including
inspecting, surveying, engineering, test boring, performance of environmental tests and such
other work as Developer shall consider appropriate, provided that Developer shall hold City
harmless and fully indemnify City against any direct damage, claim, liability or cause of action
arising from or caused by the negligent actions or omissions of Developer, its agents, or
representatives upon Property, and provided Developer shall have complied with the insurance
provisions of Section 4.3, and shall have the further fight to make such inquiries of
governmental agencies and utility companies, etc., and to make such feasibility studies and
analyses as it considers appropriate. In the event that the closing does not occur on the
Closing Date, or any extension agreed upon by the parties, Developer shall within thirty (30)
days from the Closing Date or latest extension thereof, at its sole expense, restore Property to
the condition it was in prior to any such work by Developer to the complete satisfaction of City.
All inspection, testing, engineering, and such other work performed by Developer pursuant to
this section shall be solely at Developer's expense.
1.4 Representations of City. In order to induce Developer to enter into this Agreement
and purchase Property, City hereby represents and warrants to Developer that to the best of
City's knowledge:
(1) No action in condemnation, eminent domain or public taking proceedings are now
pending or contemplated against Property.
(2) No ordinance or headng is now 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 Property.
(3) City has good and marketable fee simple title to Proper~y.
(4) There are no notices, orders, suits, judgment or other proceedings relating to fire,
building, zoning, air pollution or health violations that have not been corrected. City shall
notify Developer of any past notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution or health violations as they relate to
Property of which it has actual notice.
(5) Property will as of the date of closing be free and clear of all liens, security
interests, encumbrances, leases and other restrictions.
(6) All labor or material, which have been furnished to Property, have been fully paid
for or will be fully paid for pdor to the closing so that no lien for labor or materials
rendered can be asserted against Property.
The representations and warranties set forth in this Section 1.4 shall survive closing and
shall not be affected by any investigation, verification or approval by any party hereto or by
anyone on behalf of any party hereto and shall not merge into City's deed being delivered at
closing. City agrees to indemnify and hold Developer harmless from and against and to
reimburse Developer with respect to any and all claims, demands, causes of action, loss,
damage, liabilities, and costs (including attorney's fees, expenses and court costs) asserted
against or incurred by Developer by reason of or adsing out of the breach of any of the City's
representations or warranties as set forth in this Section.
1.5
Conditions to Closing. The closing of the transaction contemplated by this Agreement
and all the obligations of Developer under this Agreement are subject to fulfillment, on or
before the Closing Date, of the following conditions:
(1) The representations and warranties made by City in Section 1.4 shall be correct as
of the Closing Date with the same force and effect as if such representations were made
at such time.
(2) Title to Property shall be in the condition warranted in Section 1.4.
3
(3) Developer, in its sole and absolute discretion, shall have completed and approved
of any inspections done by Developer hereunder.
(4) Developer shall have obtained any and all necessary governmental approvals,
including without limitation approval of zoning, subdivision or platting which might be
necessary or desirable in connection with the sale and transfer of 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 expense in connection therewith.
(5) City shall have 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 Property.
(6) Developer shall be in material compliance with all the terms and provisions of this
Agreement.
1.6 Closinq. The closing of the purchase and sale shall take place on or before
December 1, 2001 ( the "Closing Date"). Possession of Property shall be delivered on the
Closing Date.
1.7 City's Obligations at Closing. At or pdor to Closing Date, City shall:
(1) Deliver to Developer City's duly recordable Special Warranty Deed to property in
the form attached hereto as Exhibit B ("Deed") conveying to Developer marketable fee
simple title to Property and all rights appurtenant thereto subject only to easements,
restrictions, conditions and covenants of record and as set forth in this Agreement.
(2) Deliver to Developer the Abstract of Title to Property.
(3) Deliver to Developer such other documents as may be required by this Agreement,
all in a form satisfactory to Developer.
1.8 Delivery of Purchase Price; Obligations At Closinq. At closing, and subject to the
terms, conditions, and provisions hereof and the performance by City of its obligations as set
forth herein, Developer shall pay the Purchase Price to City required by Section '1.'1 hereof.
1.9
Closing Costs. The following costs and expenses shall be paid in connection with the
closing:
(1) City shall pay:
(a) The transfer fee imposed on the conveyance.
(b) A pro-rata portion of all taxes as provided in Section 1.10.
(c) The cost of recording the satisfaction of any existing mortgage and any
other document necessary to make title marketable.
(d) All special assessments whether levied, pending or assessed.
4
(e) City's attorney's fees.
(f) City's broker and/or Property commissions and fees, if any.
(2)
(g) The cost of recording the satisfaction of any existing mortgage and any
other document necessary to make title marketable.
Developer shall pay the following costs in connection with the closing:
(a) The recording cost necessary to record the Deed.
(b) Developer's attorney's fees.
(c) Developer's broker and/or Property commissions and fees, if any.
1.10 Property Taxes. City shall pay all Property taxes for ail fiscal years which end prior to
Closing Date. Property taxes for the fiscal year in which Closing Date occurs shall be prorated
between City and Developer to Closing Date on the basis of a 365-day calendar year.
Developer shall pay all Property taxes due in subsequent fiscal years.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. Developer hereby agrees to construct on
Property an industrial building of not less than Forty Thousand (40,000) square feet of floor
space along with necessary sitework ail at a cost of not less than Two Million Six Hundred Fifty
Thousand Dollars ($2,600,000.00) ("Minimum Improvements"). These figures do not include
the substation to be built on Lot 5. Appropriate size and cost will be determined by demand for
electrical service.
2.2 Plans for Construction of Minimum Improvements. Plans and specifications with
respect to the development of Property and the construction of Minimum Improvements thereon
("Construction Plans") shall be in conformity with Urban Renewal Plan, this Agreement, and all
applicable State and local laws and regulations. Prior to closing, Developer shall submit to City,
for approval by City, plans, drawings, specifications, and related documents with respect to the
improvements to be constructed by Developer on Property. All work with respect to the
improvements shall be in substantial conformity with the Construction Plans approved by City.
2.3 Timing of Improvements. Developer hereby agrees that construction of Minimum
Improvements on Property shall be commenced in 2002 , and shall be substantially
completed on or before Eighteen (18) Months after commencement of construction. The
time frames for the performance of these obligations shall be suspended for any delays caused
by acts of God including, but not limited to, extreme weather conditions and/or other natural
causes, casualty, labor problems (including, but not limited to, strikes, walk-outs, picketings,
boycotts and shutdowns), governmental restriction upon the availability or use of labor or
materials, or, insurrection, embargoes, or extraordinary delays in providing necessary consents
or approvals. The time for performance of such obligations shall be extended only for the
period of such delay. These dates do not apply to the substation which will be built on Lot 5 as
electrical demand dictates.
2.4 Certificate of Completion. Promptly upon completion of Minimum Improvements in
accordance with those provisions of this Agreement relating solely to the obligations of
5
Developer to construct Minimum Improvements (including the dates for beginning and
completion thereof), City shall furnish Developer with an appropriate instrument so certifying.
Such certification ("Certificate of Completion") shall be in recordable form and shall be a
conclusive determination of the satisfaction and termination of the agreements and covenants
in this Agreement and in the Deed with respect to the obligations of Developer to construct
Minimum Improvements. The Certificate of Completion shall waive all rights of revestment of
title in City as provided in Section 4.3.
SECTION 3. COVENANTS OF DEVELOPER
3.1 Real Property Taxes. Developer shall pay, when due, all real property taxes and
assessments payable with respect to all and any parts of Property until Developer's obligations
have been assumed by another person pursuant to the provisions of this Agreement.
3.2 Insurance Requirements.
(1) Developer shall provide and maintain at all times during the construction of
Minimum Improvements (and, from time to time at the request of City, furnish City with
proof of payment of premiums on):
(a) Builder's risk insurance in an amount equal to one hundred percent (100%)
of the replacement value of Minimum Improvements as of the date of
completion;
(b) Commercial general liability insurance (including operations, contingent
liability, operations of subcontractors, completed operations and contractual
liability insurance) with limits against bodily injury and property damage of not
less than $2,000,000 for each occurrence (to accomplish the above-required
limits, an umbrella excess liability policy may be used);and
(c) Worker's compensation insurance, with statutory coverage.
(2)
All insurance required by this Section shall be taken out and maintained in
responsible insurance companies selected by Developer which are authorized
under the laws of the State to assume the risks covered thereby. Developer
shall upon request deposit with City a certificate or certificates of insurance as
evidence that such insurance is in force and effect. City shall be by definition
an additional insured on any policies purchased in compliance with Section
3.2(1)(b). In lieu of separate policies, Developer may maintain a single policy,
or blanket or umbrella policies, or a combination thereof, which provide the total
coverage required herein, in which event Developer shall deposit with City a
certificate or certificates of the respective insurers as to the amount of
coverage in force upon Minimum Improvements, provided, however, the
specific limit shall not be impaired.
(3)
Developer shall have the right to self-insure any or all of the coverages in this
Section. Developer shall provide evidence satisfactory to City in connection with
the dght to self-insure.
3.3 Preservation of Property. Developer shall maintain, preserve and keep Minimum
Improvements in good repair and working order, ordinary wear and tear excepted, and from
time to time shall make all necessary repairs, replacements, renewals and additions.
3.4 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 dudng his or her tenure, or who is in a position to participate in a decision-
making process or gain insider information with regard to the project, shall have any interest,
direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be
performed in connection with the project, or in any activity, or benefit therefrom, which is part of
this project at any time during or after such person's tenure.
3.5 Non-transferability. Until such time as Minimum Improvements are complete (as
certified by City under Section 2.4), this Agreement may not be assigned by Developer nor
may Property be transferred by Developer to another party without the prior written consent of
City.
3.6 Restrictions on Use. Developer agrees for itself and its successors and assigns, and
every successor in interest to Property or any part thereof, that Developer, and such
successors and assigns, shall:
(1) Devote Property to, and only to and in accordance with, the uses specified in the
Urban Renewal Plan;
(2) Meet the requirements of Ordinance No. 14-98 which amends the Zoning
Ordinance to classify Property as a PUD Planned Unit Development District with a PI
Planned Industrial designation;
(3) Meet the requirements of the Covenants for the Dubuque Industrial Center West 2nd
Addition;
(4) Not discriminate upon the basis of race, religion, color, sex, national origin, age or
disability in the sale, lease, rental, use or occupancy of Property or any improvements
erected or to be erected thereon, or any part thereof; and
(5) The provisions of this Section 3.6 shall survive the termination of this Agreement.
3.7 Release and Indemnification Covenants.
(1) Developer releases City and the governing body members, officers, agents,
servants and employees thereof (hereinafter, for purposes of this Section 3.7, the
"Indemnified Parties") from, covenants and agrees that the Indemnified Parties shall not
be liable for, and agrees to indemnify, defend and hold harmless the Indemnified Parties
against any loss or damage to property or any injury to or death of any person to the
extent caused by Developer occurring at or about or resulting from any defect in
Minimum Improvements.
(2) Except for any willful misrepresentation or any willful or wanton misconduct or any
unlawful act of the Indemnified Parties, Developer agrees to protect and defend the
Indemnified Parties, and to hold the Indemnified Parties harmless, from claims,
demands, suits, actions or other proceedings by any person or entity arising or
purportedly arising from (i) any violation of any agreement or condition of this
Agreement (except with respect to any suit, action, demand or other proceeding brought
by Developer against City to enforce its rights under this Agreement) or (ii) the
acquisition, construction, installation, ownership, and operation of Minimum
Improvements or (iii) the condition of Property and any hazardous substance or
environmental contamination located in or on Property, occurring after Developer takes
possession of Property.
(3) The Indemnified Parties shall not be liable for any damage or injury to the persons
or property of Developer or its officers, agents, servants or employees or any other
person who may be about Minimum Improvements due to any negligent act or omission
of any person, other than any act of negligence on the part of any such Indemnified
Parties.
(4) All covenants, stipulations, promises, agreements and obligations of City contained
in this Agreement shall be deemed to be the covenants, stipulations, promises,
agreements and obligations of City, and not of any governing body member, officer,
agent, servant or employee of City in the individual capacity thereof.
(5) The provisions of this Section 3.7 shall survive the closing.
3.8 Compliance with Laws. Developer shall comply with all laws, rules and regulations
relating to its businesses, other than laws, rules and regulations the failure to comply with 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 4. EVENTS OF DEFAULT AND REMEDIES
4.1 Events of Default Defined. The following shall be "Events of Default" under this
Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement,
any one or more of the following events:
(1) Failure by Developer to pay, before delinquency, all real property taxes assessed
with respect to Minimum Improvements and Property except if Developer in good faith is
contesting the amount of taxes.
(2) Failure by Developer to cause the construction of Minimum Improvements to be
commenced and completed pursuant to the terms, conditions and limitations of this
Agreement.
(3) Failure by Developer to cause Minimum Improvements to be reconstructed when
required pursuant to this Agreement.
(4) Transfer of any interest by Developer of Minimum Improvements in violation of the
provisions of this Agreement.
(5) Failure by Developer or City to substantially observe or perform any other
covenant, condition, obligation or agreement on its part to be observed or performed
under this Agreement.
8
(6) Commencement of foreclosure proceedings by the holder of any Mortgage on
Property, or any improvements thereon, or any portion thereof, as a result of any default
under the applicable Mortgage documents.
(7)
Developer shall:
(a) file any petition in bankruptcy or for any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under the
United States Bankruptcy Act of 1978, as amended, or under any similar federal
or state law; or
(b) make an assignment for the benefit of its creditors; or
(c) admit in writing its inability to pay its debts generally as they become due; or
(d) be adjudicated a bankrupt or insolvent; or if a petition or answer proposing
the adjudication of Developer as a bankrupt or its reorganization under any
present or future federal bankruptcy act or any similar federal or state law shall
be filed in any court and such petition or answer shall not be discharged or
denied within ninety (90) days after the filing thereof; or a receiver, trustee or
liquidator of Developer or of Minimum Improvements, or part thereof, shall be
appointed in any proceedings brought against Developer, and shall not be
discharged within ninety (90) days after such appointment, or if Developer shall
consent to or acquiesce in such appointment.
4.2. Remedies on Default by Developer. Whenever any Event of Default referred to in
Section 4.1 of this Agreement occurs and is continuing, City, as specified below, may take any
one or more of the following actions after (except in the case of an Event of Default under
subsection (7) of said Section 4.1) the giving of one hundred eighty (180) days' 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 said one hundred eighty (180) days, or if the Event of Default
cannot be cured within one hundred eighty (180) days and the Developer does not provide
assurances to City reasonably satisfactory to City that the Event of Default will be cured as
soon as reasonably possible:
(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) City may withhold the Certificate of Completion; or
(3) City may take any action, including legal, equitable or administrative action, which
may appear necessary or desirable to collect any payments due under this Agreement
or to enforce performance and observance of any obligation, agreement, or covenant of
Developer under this Agreement.
4.3 Revesting Title in the City Upon Happening of Event Subsequent to Conveyance
to Developer. In the event that subsequent to conveyance of Property to Developer by City
and prior to receipt by Developer of the Certificate of Completion, and subject to the terms of
any mortgage granted by Developer to secure any loan obtained by Developer from a
commercial lender or other financial institution to fund the acquisition of Property or construction
of Minimum Improvements ("First Mortgage"), if an Event of Default under Section 4.'1 of this
Agreement occurs and is not cured within the times specified in Section 4.2, then City shall
have the right to re-enter and take possession of Property and any portion of Minimum
Improvements thereon and to terminate (and revest in City pursuant to the provisions of this
Section 4.3 subject only to any superior rights in any holder of a First Mortgage consented to
by City) the Property conveyed by the Deed to Developer, it being the intent of this provision,
together with other provisions of this Agreement, that the conveyance of Property to Developer
shall be made upon the condition that (and the Deed shall contain a condition subsequent to
the effect that), in the event of any default under Section 4.1 on the part of Developer and
failure on the part of Developer to cure such default within the period and in the manner stated
herein, City may declare a termination in favor of City of the title and of all Developer's rights
and interests in and to 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 Section 4.4 of this Agreement), but only if the events stated in Section 4.'1 of this
Agreement 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, satisfactory to
City, that the events will be cured as soon as reasonably possible.
4.4. Resale of Reacquired Property; Disposition of Proceeds. Upon the revesting in City
of title to Property as provided in Section 4.3 of this Agreement, City 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 holder of a First Mortgage pursuant to Agreement and previously
consented to by City, to resell 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 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 any holder of a First Mortgage pursuant to this
Agreement and previously acquiesced in by City upon such resale of Property the proceeds
thereof shall be applied:
(1) First, to pay and discharge any liens and encumbrances which are prior to the
mortgage(s) previously acquiesced in by City pursuant to this Agreement;
(2) Second, to pay the principal and interest on mortgage(s) created on Property, or
any portion thereof, or any improvements thereon, previously acquiesced in by City
pursuant to this Agreement. If more than one mortgage on the Property, or any portion
thereof, or any improvements thereon, has been previously acquiesced in by City
pursuant to this Agreement, 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 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;
(3) Third, to reimburse City for all allocable costs and expenses incurred by City,
including but not limited to salaries of personnel, in connection with the recapture,
management and resale of property or part thereof (but less any income derived by City
]0
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) previously acquiesced in by the City) existing on Property or part thereof at
the time of revesting of title thereto in City or to discharge or prevent from attaching or
bring made any subsequent encumbrances or liens due to obligations, defaults 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 Minimum Improvements or any part thereof 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
(4) Fourth, to reimburse Developer up to the amount equal to (i) the sum of the
Purchase Price paid to City for Property and the cash actually invested by Developer in
making any of the Minimum Improvements on Property, less (ii) any gains or income
withdrawn or made by Developer from this Agreement or Property.
4.5. No Remedy Exclusive. No remedy herein conferred upon or reserved to City is
intended to be exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission
to exercise any right or power accruing upon any default shall impair any such right or power or
shall be construed to be a waiver thereof.
4.6. No Implied Waiver. In the event any agreement contained in this Agreement should be
breached by any party and thereafter waived by any other party, such waiver shall be limited to
the particular breach so waived and shall not be deemed to waive any other concurrent,
previous or subsequent breach hereunder.
4.7 Remedies on Default by City. if City defaults in the performance of 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 performance
under this Agreement until Developer receives assurances from City, deemed adequate by
Developer, that City will cure its default and continue its performance under this Agreement.
SECTION 5. GENERAL TERMS AND PROVISIONS
5.1 Notices and Demands. Whenever this Agreement requires or permits any notice or
wdtten 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:
]!
(1) If to Developer:
Steve Gladson, Facilities Manager
Alliant Energy
200 First Street SE
P.O. Box 351
Cedar Rapids, Iowa
(2)
Phone: 319/398-4184
FAX: 319/398-4766
If to City:
Michael C. Van Milligen, City Manager
City Hall
50 W. 13th Street
Dubuque, IA 52001
Phone: 319/589-4110
FAX: 319/589-4149
or at such other address with respect to either party as that party may, from time to time
designate in wr'r~ing and forward to the other as provided in this Section.
5.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of
City and Developer and their respective successors and assigns.
IN WITNESS WHEREOF, City has caused this Agreement to be duly executed in its
name and behalf by its Mayor and attested by its City Clerk and Developer has caused this
Agreement to be duly executed in its name and behalf on or as of the day first above written.
CITY OF DUBUQUE, IOWA
INTERSTATE POWER COMPANY
By: By:
Terrance M. Duggan
Mayor
Johr(O. Lars~n -
Managing Director-
Electrical Engineering and
Asset Management
By:
Jeanne F. Schneider
City Clerk
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