ITC Holdings Development AgreementTHE CITY p~ C~UIJUgUe
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M~sterpiecc on t~~e Mississippi
2007
TO: The.Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Disposition of Property in the Dubuque Industrial Center West to ITC
Holdings Corporation
DATE: February 21, 2008
Economic Development Director David Heiar is recommending approval of the sale of
approximately 12.951 acres in Dubuque Industrial Center West to ITC Holdings
Corporation and approval of a Development Agreement.
The Development Agreement includes:
1. The purchase price is $100,000 per acre for 12.71 usable acres. An Acquisition
Grant to the developer reduces the net purchase price to $50,000 per acre.
2. The closing will be on or before April 1, 2008.
3. ITC Holdings Corporation must construct a building of not less than 30,000
square feet at a cost of approximately $2,000,000 by no later than March 31,
2009.
4. ITC Holdings Corporation and its subcontractors, ULC and PowerLine Supply,
must retain 10 FTE positions and create 30 new jobs within two years. The 40
jobs must be retained for five additional years after the initial 24 months after
July 1, 2008.
5. ITC Holdings Corporation will receive anine-year TIF in the form of a yearly tax
rebate on the value of the assessable improvements.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Mic ael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
THE CITY OF
DUB E
Masterpiece on the Mississippi
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director
Dubuque
k~',
zoos
February 22, 2008
SUBJECT: Disposition of Property in the Dubuque Industrial Center West to ITC
Holdings Corporation
INTRODUCTION
This memorandum presents for City Council consideration a Resolution approving the
sale of approximately 12.951 acres identified on the attached exhibit to ITC Holdings
Corporation and approving a development agreement.
BACKGROUND
City staff has worked with the Greater Dubuque Development Corporation and ITC
Holdings Corporation on an agreement for the sale of property for the construction of an
office/warehouse facility for a power transmission facility at the Dubuque Industrial
Center West.
ITC Holdings Corporation has recently purchased the transmission infrastructure from
Alliant Energy in the region. ITC Holdings Corporation requires a Midwest regional
facility to store and maintain the transmission infrastructure. The company hired a
consultant to evaluate several potential sites in a three-state area.
DISCUSSION
The proposed Development Agreement provides for several incentives to encourage
this regional warehouse to locate in Dubuque. An Acquisition Grant reduces the
purchase price of the land from $100,000/acre to $50,000/acre. Due to the terrain of
the proposed site, only 12.71 acres of the total 12.951 acre site is buildable. ITC
Holdings Corporation will not be required to pay for the .241 acres of non-buildable
area.
The Development Agreement requires the construction of a new warehouse/office
facility at a cost of approximately $2,000,000.
The Development Agreement establishes the terms of the sale of the property to ITC
Holdings Corporation. The key elements of the Development Agreement include the
following:
1) The purchase price is $100,000 per acre for 12.71 usable acres. An Acquisition
Grant to the developer reduces the net purchase price to $50,000 per acre.
2) The closing will be on or before April 1, 2008.
3) ITC Holdings Corporation must construct a building of not less than 30,000
square feet at a cost of approximately $2,000,000 by no later than March 31,
2009.
4) ITC Holdings Corporation and its subcontractors, ULC and PowerLine Supply,
must retain 10 FTE positions and create 30 new jobs within two years. The 40
jobs must be retained for 5 additional years after the initial 24 months after July
1, 2008.
5) ITC Holdings Corporation will receive a 9 year TIF in the form of a yearly tax
rebate on the value of the assessable improvements.
Additional terms and conditions of the disposition of the property are included within the
attached Development Agreement.
RECOMMENDATION
I recommend that the City Council approve the disposition of 12.951 acres in the
Dubuque Industrial Center West property to ITC Holdings Corporation for the purpose of
constructing a 30,000 sq. ft. warehouse/ office facility and approve the proposed
development agreement. This action supports the City Council's objectives to assist
businesses expand their operations and create new jobs.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
F:\USERS\DHeiar\ITC Holdings Corp\ITC Council memo to MVM final dispo.doc
Prepared by: David Heiar, Economic Development 50 W. 13~' St, Dubuque IA 52001 563 589-4393
Return to: Jeanne Schneider, City Clerk. 50 W. 13~h St, Dubuque IA 52001 563 589-4120
RESOLUTION NO. 81-08
RESOLUTION APPROVING A DEVELOPMENT AGREEMENT
PROVIDING FOR THE SALE OF 12.951 ACRES IN THE DUBUQUE
INDUSTRIAL CENTER WEST TO ITC HOLDINGS CORPORATION
Whereas, the City Council, by Resolution No. 67-08, dated February 18, 2008
declared its intent to enter into a Development Agreement with ITC Holdings
Corporation for the sale of 12.951 acres in the Dubuque Industrial Center West (the
Property); and
Whereas, pursuant to published notice, a public hearing was held on the
proposed disposition on March 3, 2008 at 6:30 p.m. in the Historic Federal Building, 350
W. 6"' Street, Dubuque, Iowa; and
Whereas, it is the determination of the City Council that approval of the
Development Agreement for the sale to and development of the Property by ITC
Holdings Corporation according to the terms and conditions set out in the Development
Agreement is in the public interest of the City of Dubuque.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the attached Development Agreement by and between the
City of Dubuque and ITC Holdings Corporation for the sale of the Property is hereby
approved.
Section 2. That the Mayor is hereby authorized and directed to execute the
Development Agreement on behalf of the City and City Clerk is authorized and directed
to attest to his signature.
Section 3. That the Mayor and City Clerk are hereby authorized and directed
to execute and deliver a Special Warranty Deed for the Property as provided in the
Development Agreement.
Section 4. That the City Manager is authorized to take such actions as are
necessary to comply with the terms of the Development Agreement as herein approved.
Passed, approved and adopted this 3rd day of March, 2008.
Roy D. Buol, Mayor
Attest:
Jeanne F. Schneider, City Clerk
F:\USERS1DHeiar\ITC Holdings Corp\ITC final disposition res.doc
Page 2
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
ITC MIDWEST LLC
This Agreement, dated for reference purposes the 3`d day of March, 2008,
by and between the City of Dubuque, Iowa, a municipality (City), established
pursuant to the Iowa Code and acting under authorization of Iowa Code Chapter
403, as amended (Urban Renewal Act), and ITC Midwest LLC, a Michigan limited
liability company with its principal place of business in Novi, Michigan, (Developer).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City
has undertaken an Urban Renewal project (the Project) to advance the
community's ongoing economic development efforts; and
WHEREAS, the Project is located within the Dubuque Industrial Center
Economic Development District (the 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 for the Dubuque Industrial Center Economic Development
District, approved by the City Council of City on May 2, 1988, and as subsequently
amended through and including the date hereof, attached hereto as Exhibit A (the
Urban Renewal Plan); and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of
this Agreement and in the form attached hereto, has been recorded among the land
records in the office of the Recorder of Dubuque County, Iowa; and
WHEREAS, Developer has determined that it requires a new
warehouse/office facility to provide electrical transmission service in and around the
City of Dubuque and other parts of the Midwest which will also be a regional office
facility for Developer's multistate business; and
WHEREAS, Developer has requested that City sell to Developer 12.951
acres of City's real estate, of which 12.71 acres are usable, legally described as Lot
2 of 2 of Dubuque Industrial Center West 7th Addition in the City of Dubuque, Iowa,
identified on Exhibit B, attached hereto, in the City of Dubuque, Dubuque County,
Iowa, together with all easements, tenements, hereditaments, and appurtenances
belonging thereto (the Property) so that Developer may develop the Property,
located in the Project Area for the construction of a warehouse/office facility and
021308ba1
which City has represented to Developer is 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 the 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 purchase price for the Property (the Purchase Price)
shall be the sum of One Million Two Hundred Seventy-one Thousand Dollars
($1,271,000.00) (One Hundred Thousand Dollars ($100,000.00) per usable acre for
12.71 net usable acres, with a total acquisition of 12.951 acres), which shall be due
and payable by Developer in immediately available funds in favor of City, on or
before April 1, 2008 or on such other date as the parties may mutually agree (the
Closing Date). City acknowledges receipt of the sum of Five Thousand Dollars
($5,000.00) from Developer as earnest money, to be returned to Developer at the
Closing, or in the event the parties fail to close within thirty days after the Closing
Date, less any expenses incurred by City in connection with this Agreement. If
Developer should require additional property for the construction of the Minimum
Improvements described herein, Developer shall be responsible for any costs,
including land purchase, attributed to the acquisition and transfer of the additional
property. Notwithstanding the foregoing, if the Property is determined by Developer
to consist of less than 12.71 net usable acres, Developer shall have the right to a
prorata reduction of the Purchase Price based on the actual number of usable
acres.
1.2 Title to Be Delivered. 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 Closing Date hereof to the extent not objected to
by Developer as set forth in this Agreement, and to the conditions subsequent set
forth in Section 5.3, below.
(1) City, at its sole cost and expense, shall deliver to Developer an
abstract of title to the Property continued through the date of Closing
reflecting merchantable, fee simple title in City in conformity with this
Agreement and applicable state law. The abstract shall be delivered
together with full copies of any and all encumbrances and matters of record
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applicable to the Property, and such abstract shall become the property of
Developer when the Purchase Price is paid in full in the aforesaid manner.
(2) Developer shall have until the Closing Date to render objections to
title, including any easements or other encumbrances not satisfactory to
Developer, in writing to City. Developer agrees, however, to review the
Abstract promptly following receipt of the Abstract and to promptly provide
City with any objections to title identified therein. Nothing herein shall be
deemed to limit Developer's rights to raise new title objections with respect to
matters revealed in any subsequent title examinations and surveys and
which were not identified in the Abstract provided by 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 Date, or
any extension thereof consented to by Developer, Developer may, at its sole
discretion, either (a) terminate this Agreement without any liability on its part,
and any sums previously paid to City by Developer (or paid into escrow for
City's benefit) shall be returned to Developer with interest, or (b) take title
subject to such objections with Developer's prior written consent. City
agrees to use its best reasonable efforts to promptly satisfy any such
objections.
1.3 Rights of Inspection, Testing and Review. Developer, its counsel,
accountants, agents and other representatives, shall have full and continuing
access to the Property and all parts thereof, upon reasonable notice to City.
Developer and its agents and representatives shall also have the right to enter upon
the Property at any time after the execution and delivery hereof for purposes of
inspecting, surveying, engineering, test boring, and performing environmental tests,
provided that Developer shall hold City harmless and fully indemnify City against
any damage, claim, liability or cause of action arising from or caused by the actions
of Developer, its agents, or representatives upon the Property (except for any
damage, claim, liability or cause of action arising from conditions existing prior to
any such entry upon the Property), and shall have the further right to make such
inquiries of governmental agencies and utility companies, etc. and to make such
feasibility studies and analyses as it considers appropriate.
1.4 Representations and Warranties of City. In order to induce Developer to
enter into this Agreement and purchase the Property, City hereby represents and
warrants 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
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thereof by Developer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
(2) No ordinance or hearing is now before any local governmental body
that either contemplates or authorizes any public improvements or special
tax levies, the cost of which may be assessed against the Property. To the
best of City's knowledge, there are no plans or efforts by any government
agency to widen, modify, or re-align any street or highway providing access
to the Property and there are no pending or intended public improvements or
special assessments affecting the Property which will result in any charge or
lien be levied or assessed against the Property.
(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 in the Property.
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) 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. The Property is in material
compliance with all applicable zoning, fire, building, and health statutes,
ordinances, and regulations. The Property is currently zoned PUD and
Developer's intended use of the Property as a manufacturing facility is a
permitted use in such zoning classification.
(7) 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.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) 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
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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,
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.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer at the
time of closing confirming the representation contained herein, in the form
attached hereto as Exhibit C.
(11) 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 that shall in any
way be binding upon the Property or Developer.
(12) City represents and warrants that any fees or other compensation
which may be owed to a broker engaged directly or indirectly by City in
connection with the purchase and sale contemplated in this Agreement are
the sole responsibility and obligation of City and that City will indemnify
Developer and hold Developer harmless from any and all claims asserted by
any broker engaged directly or indirectly by City for any fees or other
compensation related to the subject matter of this Agreement.
(13) City shall exercise its best efforts to assist Developer in the
development process.
(14) City shall exercise its best efforts to resolve any disputes arising
during the development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied
the Property, and to 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, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under any environmental laws.
(16) All city utilities necessary for the development and use of the Property
as a warehouse/office facility adjoin the Property and Developer shall have
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the right to connect to said utilities, subject to City's usual and customary
connection fees.
(17) The Urban Renewal Plan attached hereto is a true copy and no
amendments or modifications to such Urban Renewal Plan are
contemplated.
(18) The representations and warranties contained in this article shall be
correct in all respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on and as of
the Closing Date which representations and warranties shall continue and
survive the Closing Date.
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. At the closing, City shall deliver a
certificate to that effect in the form of Exhibit H.
(2) Title to the Property shall be in the condition warranted in Section 1.4.
(3) Developer having obtained any and all necessary governmental
approvals, including without limitations approval of zoning, subdivision or
platting which might be necessary or desirable in connection with the sale,
transfer and development of the Property. Any conditions imposed as a part
of the zoning, platting or subdivision must be satisfactory to Developer
respectively, 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. In connection therewith, the City agrees (a) to review
all of Developer's plans and specifications for the project and to either reject
or approve the same in a prompt and timely fashion; (b) to issue a written
notification to Developer, following City's approval of same, indicating that
the City has approved such plans and specifications, and that the same are
in compliance with the Urban Renewal Plan, 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; (c) to identify in writing within ten (10) working
days of submission of said plans and specifications, any and all permits,
approvals and consents that are legally required for the acquisition of the
Property by Developer, and the construction, use and occupancy of the
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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 connection therewith; and (d) to cooperate fully with
Developer to streamline and facilitate the obtaining of such permits,
approvals and consents.
(4) City, having given all required notices to or obtaining prior approval,
consent or permission of any federal, state, 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.
(5) Developer and City shall be in material compliance with all the terms
and provisions of this Agreement.
(6) Developer shall have furnished City with a copy of its purchase order
for the Property and Minimum Improvements.
(7) Developer shall have furnished City with evidence in a form as
required by Section 4.2 and satisfactory to City of Developer's full-time
employees in Dubuque, Iowa, as of July 1, 2008.
(8) Receipt by City of an opinion of counsel to Developer in the form
attached hereto as Exhibit D with such assumptions and qualifications as
counsel deems necessary and appropriate in its reasonable discretion.
(9) Developer shall have the right to terminate this Agreement at anytime
prior to the consummation of the closing on the Closing Date if Developer
determines that conditions necessary for the successful completion of the
Project contemplated herein have not been satisfied in Developer's sole and
unfettered discretion. Upon the giving of notice of termination Developer to
the City, this Agreement shall be deemed null and void.
1.6 Closing. The closing of the purchase and sale shall take place on the
Closing Date. Exclusive possession of the Property shall be delivered on the
Closing Date, in its current condition and in compliance with this Agreement,
including City's representations and warranties regarding the same. Consummation
of the closing shall be deemed an agreement of the parties to this Agreement that
the conditions of closing have been satisfied or waived.
1.7 City's Obligations at Closing. At or prior to the Closing Date, City shall:
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(1) Deliver to Developer City's duly recordable Special Warranty Deed to
the Property (in the form attached hereto as Exhibit F (the Deed) and
appropriate resolutions of the City Council conveying to Developer
marketable fee simple title to the Property and all rights appurtenant thereto,
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 Section 5.3 below.
(2) Deliver to Developer the Abstract of Title to the 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 Closing. 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
pursuant to Section 1.1 hereof, but subject to Developer receiving an offsetting
credit pursuant to Section 3.1 below.
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 and transfer taxes, if any, imposed on the
conveyance.
(b) A pro-rata portion of all taxes, if any, as provided in Section
1.10.
(c) All special assessments, if any, whether levied, pending or
assessed.
(d) City's attorney's fees, if any.
(e) City's broker and/or real estate commissions and fees, if any.
(f) The cost of recording the satisfaction of any existing mortgage
and any other document necessary to make title marketable.
(2) Developer shall pay the following costs in connection with the closing:
(a) The recording fee necessary to record the Deed.
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(b) Developer's attorney's fees.
(c) Developer's broker and/or real estate commissions and fees, if
any.
(d) A pro-rata portion of all taxes as provided in Section 1.10.
1.10 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years that
end prior to the Closing Date. Real estate taxes for the fiscal year in which the
Closing Date occurs shall be prorated between City and Developer to the Closing
Date on the basis of a 365-day calendar year. Developer shall pay or cause to be
paid all real estate taxes due in subsequent fiscal years. Any proration of real
estate taxes on the Property shall be based upon such taxes for the year currently
payable.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. City acknowledges that Developer is
building awarehouse/office facility on the Property for Developer. Specifically,
Developer is charged with constructing the building and certain internal systems
thereto, and with finishing the building including, without limitation, all interior
improvements (the Minimum Improvements), all as more particularly depicted and
described on the plans and specifications to be delivered to and approved by City
as contemplated in this Agreement. Developer hereby agrees to construct on the
Property awarehouse/office facility of approximately thirty thousand (30,000)
square feet of floor space (20,000 square feet of warehouse and 10,000 square
feet of office) along with necessary site work as contemplated in this Agreement at
an estimated cost of approximately $2,100,000.00.
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 (the Construction Plans) shall be in conformity with the
Urban Renewal Plan, this Agreement, and all applicable state and local laws and
regulations, including but not limited to any covenants, conditions, restrictions,
reservations, easements, liens and charges, applicable to the Property, in the
records of Dubuque County, Iowa. Developer shall submit to City, for approval by
City, plans, drawings, specifications, and related documents with respect to the
improvements to be constructed by Developer on the Property. All work with
respect to the Minimum Improvements shall be in substantial conformity with the
Construction Plans approved by City.
2.3 Timing of Improvements.
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(1) Developer hereby agrees that construction of the Minimum
Improvements on the Property shall be commenced within three (3) months
after the Closing Date, and shall be substantially completed by March 31,
2009. The time frames for the performance of these obligations shall be
suspended due to unavoidable delays, meaning delays, outside the control
of the party claiming its occurrence in good faith, which are the direct result
of strikes, other labor troubles, unusual shortages of materials or labor,
unusually severe or prolonged bad weather, acts of God, fire or other
casualty to the Minimum Improvements, litigation commenced by third
parties which, by injunction or other similar judicial action or by the exercise
of reasonable discretion directly results in delays, or acts of any federal,
state or local government which directly result in delays, including without
limitation the failure to issue permits, approvals and/or consents. The time
for performance of such obligations shall be extended only for the period of
such delay.
(2) This section intentionally left blank.
2.4 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) 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 re-vestment of title in City as provided in Section 5.3, and the Certificate of
Completion shall so state.
2.5 Developer's Lender's Cure Rights. The parties agree that, if Developer shall
fail to complete the Minimum Improvements as required by this Agreement such
that re-vestment of title may occur (or such that the City would have the option of
exercising its re-vestment rights), then Developer's lender shall have the right, but
not the obligation, to complete such Minimum Improvements.
SECTION 3. CITY PARTICIPATION
3.1 Acquisition Grant to Developer. For and in consideration of Developer's
obligations hereunder to construct the Minimum Improvements, City agrees to
make an Acquisition Grant to Developer on the Closing Date, or such other date as
the parties shall mutually agree upon in writing, in the amount of Six Hundred
Thirty-Five Thousand Five Hundred Dollars ($635,500.00)(Fifty Thousand Dollars
($50,000.00) per acre x 12.71 usable acres). The parties agree that the Acquisition
Grant shall be payable in the form of a credit favoring Developer at the time of
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Closing with the effect of directly offsetting a portion of the purchase price obligation
of Developer.
3.2 Economic Development Grant.
(1) For and in consideration of Developer's obligations hereunder, and in
furtherance of the goals and objectives of the urban renewal plan for the
Project Area and the Urban Renewal Law, City agrees, subject to Developer
or its assignee being and remaining in compliance with all material terms of
this Agreement, to make eighteen (18) consecutive semi-annual payments
(such payments being referred to collectively as the Economic Development
Grants) to the Developer if Developer owns the Property and/or the Minimum
Improvements thereon during the period such tax increment revenues
accrue as follows:
November 1, 2009 May 1, 2010
November 1, 2010 May 1, 2011
November 1, 2011 May 1, 2012
November 1, 2012 May 1, 2013
November 1, 2013 May 1, 2014
November 1, 2014 May 1, 2015
November 1, 2015 May 1, 2016
November 1, 2016 May 1, 2017
November 1, 2017 May 1, 2018
pursuant to Iowa Code Section 403.9 of the Urban Renewal Law in amounts
equal to the actual amount of tax increment revenues collected by City under
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 and the Minimum
Improvements constructed by Developer (the Developer Tax Increments).
Developer recognizes and agrees that the Economic Development Grants
shall be paid solely and only from the incremental taxes collected by City in
respect to the Property and Minimum Improvements, which does not include
property taxes collected for the payment of bonds and interest of each taxing
district, and taxes for the regular and voter-approved physical plant and
equipment levy, and 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) To fund the Economic Development Grants, City shall certify to the
County prior to December 1 of each year, commencing December 1, 2008,
its request for the available Developer Tax Increments resulting from the
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assessments imposed by the County as of January 1 of that year, to be
collected by City as taxes are paid during the following fiscal year and which
shall thereafter be disbursed to the Developer if Developer owns or leases
the Property and/or the Minimum Improvements thereon during the period
such tax increment revenues accrue, on November 1 and May 1 of that fiscal
year. (Example: if City so certifies by December, 2008, the Economic
Development Grants in respect thereof would be paid to the Developer on
November 1, 2009, and May 1, 2010.)
(3) The Economic Development Grants shall be payable from and
secured solely and only by the Developer Tax Increments paid to City that,
upon receipt, shall be deposited and held in a special account created for
such purpose and designated as the "ITC Holdings TIF Account" of City. City
hereby covenants and agrees to maintain its TIF ordinance in force during
the term and to apply the incremental taxes collected in respect of the
Property and Minimum Improvements and allocated to the ITC Holdings TIF
Account to pay the Economic Development Grants, as and to the extent set
forth in Section 3.2(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 ITC Holdings
TIF Account (regardless of the amounts thereof) to the payment of the
Economic Development Grants to Developer as and to the extent described
in this Section.
(4) City shall be free to use any and all tax increment revenues collected
in respect of other properties within the Project Area, or any available
Developer Tax Increments resulting from the termination of the annual
Economic Development Grants under Section 3.2 hereof, for any purpose for
which such tax increment revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Law, and City shall have no obligations to
Developer with respect to the use thereof.
SECTION 4. COVENANTS OF DEVELOPER
4.1 Job Creation.
(1) Developer shall create thirty (30) additional full-time employee jobs in
Dubuque, Iowa prior to July 1, 2010, and shall maintain that number of jobs
during the Term of this Agreement. It is agreed by the parties that Developer
has ten (10) full-time employee jobs in Dubuque, Iowa, as of January 1,
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2008. In the event that the certificate required under Section 4.2 hereof on
January 1, 2016 does not show that as of that date that Developer has at
least 40 full-time employees in Dubuque, Iowa, Developer shall pay to City,
promptly upon written demand therefore, an amount equal to $15,887.50 per
job not created or maintained ($635,500 divided by 40 employees =
$15,887.50).
(2) In addition, for the positions that Developer fails to create and
maintain for any year during the Term of this Agreement, the semi-annual
Economic Development Grants for such year under Section 3.2 shall be
reduced by the percentage that the number of such positions bears to the
total number of positions required to be created and maintained
(40employees) by this Section 4.1. (For example, if Developer has 30
employees, the semi-annual Economic Development Grants would be 75%
(30/40 employees) of the Tax Increment Revenues received by City would
be paid by City).
(3) For purposes of this Section 4.1, the jobs created by Developer shall
include any jobs created or persons employed at the Property by ITC
Holdings Corp., its affiliates, subsidiaries, their contractors or subcontractors
of such subcontractors in connection with the business operated at the
Property. The job creation and job retention requirements of this Section 4.1
may be satisfied by any or all of such entities.
4.2 Certification. Subject to the notice requirement below, to assist City in
monitoring the performance of Developer hereunder, not later than August 31,
2010, and not later than August 31 of each year thereafter during the term of this
Agreement, a duly authorized officer of Developer shall certify to City in a form
reasonably acceptable to City: (a) the number of full time employees employed by
Developer in Dubuque, Iowa on July 1 of the year of the certification; (b) a
statement that such officer has re-examined the terms and provisions of this
Agreement and that at the date of such certificate, and during the preceding twelve
(12) months, Developer is not or was not in default in the fulfillment of any of the
terms and conditions of this Agreement and that no Event of Default (or event
which, with the lapse of time or the giving of notice, or both, would become an
Event of Default) is occurring or has occurred as of the date of such certificate or
during such period, or if the signer is aware of any such default, event or Event of
Default, said officer shall disclose in such statement the nature thereof, its period of
existence and what action, if any, has been taken or is proposed to be taken with
respect thereto; and (c) a copy of any reports filed by Developer with the State of
Iowa evidencing the number of employees employed pursuant to Section 4.1.
Notwithstanding the foregoing, Developer shall not be required to provide such
certification unless City provides Developer at least thirty (30) days prior written
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notice that the certification required is due. Such notice shall be sent to each of the
following individuals:
Christine Mason Soneral
Vice-President/General Counsel Utility Operations
ITC Transmission
27175 Energy Way
Novi, MI 48377
Jessica Welch
Logistics & Supply Chain
ITC Transmission
27175 Energy Way
Novi, MI 48377
Steve Sczytko
Director of Supply Chain
ITC Transmission
27175 Energy Way
Novi, MI 48377
Developer shall have the right to change the individuals that the City required to
provide notices to under this Section by providing written notice to the City.
4.3 Books and Records. Intentionally Omitted.
4.4 Real Property Taxes. From and after the Closing Date, Developer shall pay
or cause to be paid, when due, all real property taxes and assessments payable
with respect to all and any parts of the Property unless Developer's obligations have
been assumed by another person pursuant to the provisions of this Agreement.
4.5 No Other Exemptions. During the term of this Agreement, Developer agrees
not to apply for any other state or local property tax exemptions which are available
with respect to the Development Property or the Minimum Improvements located
thereon that may now be, or hereafter become, available under state law or city
ordinance during the term of this Agreement, including those that arise under Iowa
Code Chapters 404 and 427, as amended.
4.6 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all
times during the process of constructing the Minimum Improvements (and,
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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):
(a) All risk builder's risk insurance, written on a Completed Value
Form in an amount equal to one hundred percent (100%) of the
replacement value when construction is completed;
(b) Insurance as set forth in the attached Insurance Schedule.
(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)
insurance as follows:
(a) All risk property insurance against loss and/or damage to
Minimum Improvements under an insurance policy written in an
amount not less than the full insurable replacement value of
Minimum Improvements. The term "replacement value" shall
mean the actual replacement cost of the 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.
(3) Developer shall notify City immediately in the case of damage
exceeding $500,000.00 in amount to, or destruction of, the Minimum
Improvements or any portion thereof resulting from fire or other casualty. Net
proceeds of any such insurance (Net Proceeds), shall be paid directly to
Developer as its interests 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.
4.7 Preservation of Prooerty. After Closing until the termination of this
Agreement, Developer shall maintain, preserve and keep, or cause others to
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maintain, preserve and keep, the Minimum Improvements in good repair and
working order, ordinary wear and tear excepted, and from time to time shall make
all necessary repairs, replacements, renewals and additions. Nothing in this
Agreement, however, shall be deemed to alter any agreements between Developer
or any other party including, without limitation, any agreements between the parties
regarding the care and maintenance of the Property.
4.8 Non-Discrimination. In carrying out the project, Developer shall not
discriminate against any employee or applicant for employment because of race,
religion, color, sex, sexual orientation, gender identity, national origin, age or
disability.
4.9 Conflict of Interest. Developer agrees that no member, officer or employee
of City, or its designees or agents, nor any consultant or member of the governing
body of City, and no other public official of City who exercises or has exercised any
functions or responsibilities with respect to the project during his or her tenure, or
who is in a position to participate in adecision-making process or gain insider
information with regard to the project, shall have any interest, direct or indirect, in
any contract or subcontract, or the proceeds thereof, for work to be performed in
connection with the project, or in any activity, or benefit therefrom, which is part of
this project at any time during or after such person's tenure. In connection with this
obligation, Developer 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.
4.10 Non-Transferability. Until such time as the Minimum Improvements are
complete (as certified by City under Section 2.4), 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 shall not be
unreasonably withheld, conditioned or delayed. Thereafter, Developer shall have
the right to assign this Agreement without consent and upon assumption of the
Agreement by the assignee, Developer shall no longer be responsible for its
obligations under this Agreement.
4.11 Restrictions on Use. Developer agrees for itself, and 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:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that
use of the Property as an warehouse/office facility is in full compliance with
the Urban Renewal Plan) (however, Developer shall not have any liability to
City to the extent that a successor in interest shall breach this covenant and
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City shall seek enforcement of this covenant directly against the party in
breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, gender identity, national origin, age or disability in the sale,
lease, rental, use or occupancy of the Property or any improvements erected
or to be erected thereon, or any part thereof (however, Developer shall not
have any liability to City to the extent that a successor in interest shall breach
this covenant and City shall seek enforcement of this covenant directly
against the party in breach of same).
4.12 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, the Indemnified Parties) from, covenants and agrees that the
Indemnified Parties shall not be liable for, and agree 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 occurring at or about or
resulting from any defect in the Minimum Improvements.
(2) Except for any gross negligence, willful misrepresentation or any
willful or wanton misconduct or any unlawful act of the Indemnified Parties,
Developer agrees to protect and defend the Indemnified Parties, now or
forever, and further agrees to hold the Indemnified Parties harmless, from
any claim, demand, suit, action or other proceedings whatsoever by any
person or entity whatsoever arising or purportedly arising from (1) any
violation of any agreement or condition of this Agreement by Developer
(except with respect to any suit, action, demand or other proceeding brought
by Developer against City based on an alleged breach of any representation,
warranty or covenant of City under this Agreement and/or to enforce its
rights under this Agreement); or (2) the acquisition, construction, installation,
ownership, and operation of the Minimum Improvements; or (3) the condition
of the Property and any hazardous substance or environmental
contamination located in or on the Property, caused and occurring after
Developer takes possession of the Property but prior to the date the City
exercises its re-vestment rights under Section 5.3.
(3) Except for any gross negligence, willful misrepresentation or any
willful or wanton misconduct or any unlawful act of the Developer, its board
members, officers, agents, servants and employees (the Developer
Indemnified Parties), City agrees to protect and defend the Developer
Indemnified Parties, now or forever, and further agrees to hold the Developer
Indemnified Parties harmless, from any claim, demand, suit, action or other
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proceedings whatsoever by any person or entity whatsoever arising or
purportedly arising from (1) any violation of any agreement or condition of
this Agreement by City (except with respect to any suit, action, demand or
other proceeding brought by City against Developer based on an alleged
breach of any representation, warranty or covenant of Developer under this
Agreement and/or to enforce its rights under this Agreement); or (2) the
condition of the Property and any hazardous substance or environmental
contamination located in or on the Property, caused and occurring prior to
the date Developer takes possession of the Property or first occurring after
the date the City exercises its re-vestment rights under Section 5.3.
(4) The Indemnified Parties shall not be liable to Developer for any
damage or injury to the persons or property of Developer or their officers,
agents, servants or employees or any other person who may be on, in or
about the Minimum Improvements due to any act of negligence of any
person, other than any act of negligence on the part of any such Indemnified
Party or its officers, agents, servants or employees.
(5) All covenants, stipulations, promises, agreements and obligations of
City contained herein shall be deemed to be the covenants, stipulations,
promises, agreements and obligations of City, and not of any governing body
member, officer, agent, servant or employee of City in their individual
capacity thereof.
(6) The provisions of this Section shall survive the termination of this
Agreement.
4.13 Compliance with Laws. Developer shall comply with all laws, rules and
regulations relating to its businesses, other than laws, rules and regulations for
which the failure to comply with or the sanctions and penalties resulting therefrom,
would not have a material adverse effect on the business, property, operations,
financial or otherwise, of Developer.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES
5.1 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 or cause to be paid, before delinquency,
all real property taxes assessed with respect to the Minimum Improvements
and the Property. After the issuance of the Certificate of Completion,
however, such event shall not entitle City to the remedy provided in Section
5.3.
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(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms,
conditions and limitations of this Agreement.
(3) Transfer of any interest by Developer of the Minimum Improvements
except to Developer in violation of the provisions of this Agreement prior to
the issuance of the final Certificate of Completion.
(4) Failure by Developer or City to substantially observe or perform any
other material covenant, condition, obligation or agreement on its part to be
observed or performed under this Agreement.
5.2 Remedies on Default by Developer. Whenever any Event of Default referred
to in Section 5.1 of this Agreement occurs and is continuing, City, as specified
below, may take any one or more of the following actions after the giving of written
notice by City to Developer (and the holder of any mortgage encumbering any
interest in the Property of which City has been notified of in writing) of the Event of
Default, but only if the Event of Default has not been cured within sixty (60) days
following such notice, or if the Event of Default cannot be cured within sixty (60)
days and Developer does not provide assurances reasonably satisfactory 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 the defaulting party, deemed adequate by City,
that the defaulting party will cure its default and continue its performance
under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) City shall be entitled to recover from Developer the sum of all
amounts expended by City in connection with the funding of the Acquisition
Grant to Developer, and City may take any action, including any legal action
it deems necessary, to recover such amounts from the defaulting party;
(4) City may withhold the Certificate of Completion; or
(5) City may take any action, including legal, equitable or administrative
action, which may appear necessary or desirable to collect any payments
due under this Agreement or to enforce performance and observance of any
obligation, agreement, or covenant under this Agreement.
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Notwithstanding anything to the contrary contained in this Agreement, in no event
shalt City be entitled to consequential damages as a result of any default by
Developer.
5.3 Re-vesting Title in City Upon Happening of Event Subsequent to
Conveyance to Developer. 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, , an Event of Default under Section 5.1 of this Agreement occurs and
is not cured within the times specified in Section 5.2, then City shall have the right
to re-enter and take possession of the Property and any portion of the Minimum
Improvements thereon and to terminate (and re-vest in City pursuant to the
provisions of this Section 5.3) the estate conveyed by City to Developer, it being 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
(and the Deed shall contain a condition subsequent to the effect that), in the event
of default under Section 5.1 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 5.3 of this Agreement), but only if
the events stated in Section 5.1 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 assurances reasonably satisfactory to City,
that the events will be cured as soon as reasonably possible. .
5.4 Resale of Reacquired Property: Disposition of Proceeds. Upon the re-
vesting in City of title to the Property as provided in Section 5.3 of this Agreement,
City shall, pursuant to its responsibility under law, use its best efforts 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 Minimum
Improvements or such other improvements in their stead as shall be satisfactory to
City and in accordance with the uses specified for such the Property or part thereof
in the Urban Renewal Plan. The proceeds thereof shall be applied:
(1) First, to reimburse City for all allocable out of pocket costs and
expenses incurred by City, excluding salaries of personnel, in connection
with the recapture, management and resale of the Property or part thereof
unless such personnel was hired solely for such purposes (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
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discharge any encumbrances or liens (except for mortgage(s) previously
acquiesced in by the City) existing on the Property or part thereof at the time
of re-vesting 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 the Minimum Improvements or
any part thereof on the Property or part thereof, and any amounts otherwise
owing to City (including water and sewer charges) by Developer and its
successors or transferees; and
(2) Second, to reimburse Developer up to the amount equal to (1) the
sum of the Purchase Price paid to City for the Property and the cash actually
invested by such party in making any of the Minimum Improvements on the
Property, less (2) any gains or income withdrawn or made by Developer from
this Agreement or the Property.
5.5 No Remedy Exclusive. Except as otherwise provided in this Agreement, no
remedy herein conferred upon or reserved to City or Developer 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, but any
such right and power may be exercised from time to time and as often as may be
deemed expedient.
5.6 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.
5.7 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in
equity, including an action for declaratory relief or arbitration, is brought to enforce
or interpret the provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs of litigation from the other party. Such
fees and costs of litigation may be set by the court in the trial of such action or by
the arbitrator, as the case may be, or may be enforced in a separate action brought
for that purpose. Such fees and costs of litigation shall be in addition to any other
relief that may be awarded.
5.8 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 that may appear necessary or desirable to collect any
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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 they receive assurances from City, deemed adequate by
Developer, that City will cure its default and continue its performance under this
Agreement.
SECTION 6. GENERAL TERMS AND PROVISIONS
6.1 Notices and Demands. Whenever this Agreement requires or permits any
notice or written request by one party to another, it shall be deemed to have been
properly given if and when delivered in person or three (3) business days after
having been deposited in any U.S. Postal Service and sent by registered or certified
mail, postage prepaid, addressed as follows:
If to Developer: Christine Mason Soneral Esq.
Vice President & General Counsel
ITC Midwest LLC
39500 Orchard Hill Place, Suite 200
Novi MI 48375
Phone: (248) 374-7889
Fax: (248) 374-7135
With copy to: Adam M. Fishkind
Dykema Gossett PLLC
39577 Woodward Avenue
Bloomfield Hills, MI 48304
Phone (248) 203-0749
Fax: (248) 203-0763
If to City: City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to: City Attorney
City Hall
50 W. 13'h Street
Dubuque, IA 52001
Or at such other address with respect to any party as that party may, from time to
time designate in writing and forward to the other as provided in this Section.
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6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of City and Developer and their respective successors and assigns.
6.3 Termination Date. This Agreement and the rights and obligations of the
parties hereunder shall terminate on May 1, 2018 (the Termination Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be
transmitted between them by facsimile machine. The parties intend that the faxed
signatures constitute original signatures and that a faxed Agreement containing the
signatures (original or faxed) of all the parties is binding on the parties.
6.5 Memorandum of Development Agreement. 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.
6.6 Entire Agreement. This Agreement constitutes the entire agreement between
the parties and supersedes any prior understandings or oral or written agreements
between the parties respecting the within subject matter. In entering into this
Agreement, neither party has relied on any representations by the other party
outside of this Agreement.
[signature page to follow]
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CITY OF DUBUQUE, IOWA ITC MIDWEST LLC
By:
By:
Roy D. Buol, Mayor Dan Oginsky, Vice President &
General Counsel
By:
Jeanne F. Schneider, City Clerk
F:IUSERS\DHeiar\ITC Holdings Corp\ITC Holdings Corp DA Final 2-13-08.doc
24
BHO1\843066.3
ID\AMF
List of Exhibits
Insurance Schedule A
Exhibit A Urban Renewal Plan
Exhibit B Legal Description
Exhibit B-1 Site Plan
Exhibit C City Attorney Certificate
Exhibit D Opinion of Counsel to Developer
[No Exhibit E]
Exhibit F Deed
Exhibit G Memorandum of Development Agreement
Exhibit H City Certificate
25
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
1. All policies of insurance required hereunder shall be with an insurer authorized
to do business in Iowa. All insurers shall have a rating of A or better in the
current A.M. Best Rating Guide.
2. All policies of insurance shall be endorsed to provide a thirty (30) day advance
notice of cancellation to the City of Dubuque, except for 10 day notice for non-
payment, if cancellation is prior to the expiration date. This endorsement
supersedes the standard cancellation statement on the Certificate of Insurance.
3. Developer shall furnish a signed Certificate of Insurance to the City of Dubuque,
Iowa for the coverage required in Paragraph 6 below. Such certificates shall
include copies of the following policy endorsements:
a) Commercial General Liability policy is primary and non-contributing.
b) Commercial General Liability additional insured endorsement.
c) Governmental Immunity Endorsements.
4. Each certificate shall be submitted to the contracting department of the City of
Dubuque.
5. Failure to provide minimum coverage shall not be deemed a waiver of these
requirements by the City of Dubuque. Failure to obtain or maintain the required
insurance shall be considered a material breach of this agreement.
6. Developer shall be required to carry the following minimum coverage/limits or
greater if required by law or other legal agreement:
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 Limit $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
This coverage shall be written on an occurrence, not a claims made form. Form
CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be
26
included. All deviations or exclusions from the standard ISO commercial
general liability form CG 0001, or Business Owners form BP 0002, shall be
clearly identified.
27
INSURANCE SCHEDULE A (Continued)
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
Governmental Immunity Endorsement identical or equivalent to form attached.
Additional Insured Requirement:
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 shall be named as an
additional insured on General Liability Policies using ISO endorsement CG
20 26 0704 "Additional Insured -Designated Person or Organization," or it's
equivalent. -See Specimen
b) WORKERS' COMPENSATION ~ EMPLOYERS LIABILITY
Statutory for Coverage A
Employers Liability:
Each Accident $100,000
Each Employee -Disease $100,000
Policy Limit -Disease $500,000
c) UMBRELLA EXCESS LIABILITY
LIQUOR OR DRAM SHOP LIABILITY
Coverage to be determined on a case by case basis by Finance Director.
Completion Checklist
^ Certificate of Liability Insurance (2 pages)
^ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages)
^ Additional Insured 20 26 07 04
^ Governmental Immunities Endorsement
28
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmental Immunity. The insurance carrier 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 is now exists and as it may be amended from time to
time.
2. Claims Coverage. The insurance carrier 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 insurance
carrier.
4. Non-Denial of Coverage. The insurance carrier shall not deny coverage under
this policy and the insurance carrier 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
29
PQI I:~Y NUMP,rR COMMERCIAL GENERAL LJABILITY
c~ 2a 2s os a4
THlS ENDORSEMENT CHANGES THE PaUCY. PLEASE READ IT CAREFUi-LY.
ADDITIONAL INSURED -DESIGNATED
PERSON GR 0-RGANIZATIQN
This erxicr„Entent modi6e5 insurance ~rcvroad under tiro •ull;rmrtg
OOMMEkC1AL GENERaI Lt;,.Bll ITV COVERkGE PHRT
SCHEDULE
Name Of Additional Irwured Prraott(sl O- O~>Inization(e~ _
ThF Ci-.}r n` Dubuque, irtclu~inc~ bll iLs pl~;t_~rt and =1~paintrct
of~ir.ials, all is e-Iplo~ees and +.ulunLe~rs, all is Ooards,
c.Uarnissions end!or aut2or;ties and L`leir 51arG -nend~PPS,
emplgyees and volunteers.
In'ormahcn rett.rrred;o cr~'?1•k'tF thi:i Schedule. it rot stwwn abov~c. roll t>e S'IOWn in the peClaratiors. `
Se.;liun FI -Who le An tnaurod is anerdeC iC in-
clude ea an ed6tima insured th•, pc+:.or ;sj rw ur~nr
z~tion(^<i stw~:vn in the Sshedvle, twt pnly wir respect
M habdrty fnr 'hadily in}ury". "prnpe-ty damage" or
"pvrsgrsal end advartsirg ~rt1urY tdUSeG, ~n whelp nr
in pert Ey your aca nr Omissior3 cr the acts or om s-
sions of these a+.5ng on your Iseralt~
A, In the pErbormance of your or!~arxl o0erdt10r~. rx
B, In connec;icn 1wth your 7remises awned by pr
r~ntrri In ynu ,•~-~ °
-_
~~
..
-_~
r~ xt ~a m na
t~ iSC] Pxioer-ies Irr.. 2C+C4
Page 1 of t ^
30
- __ _
~~Q~Q CERTIFICATE QF LIABILITY INSURANCE GlTT~.1N96^YVYI
02 R4!2DO5
rr.:,2/°=~' (563JSS6 4272 FAK (S63)556 -i4.5 THLS CERT.FIC ATE IS ISSUED h5ANY1TTER 4F INFt71tMA1WN
t 1P6UKrtlK.t ALtNIr ONLY AMO f:C7NFER5 NO RIGHTB UPON THE CERTIFICATE
j HOLDER. THIS CERTFICAf E l>dES NOt ALNENU, EkTE?JQ OR
S! Intl .41MA(ESS ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
u lr, 1t41t, [IP i00E
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111E CITY OF DUBUQUE IS LISTED AS AV ADDITIONAL INSURED OA GENERAL LSABIl1TY Nf111c1tS uS1Ni! 150 ENDURSE-
1E-St F+yRM CG 20 ~b O7 04 "lIDDTiTOAtAI lNStlktU-OESIGNATED PERSON Oit ORGAVIZATIOn" ()R LIS EQUIVILANT.
:ENERAL LIABILITY POLICY IS PRIMARY AND NDN~ONTRIEUTIPG. FORM CG Z5 D4 03 97 "DESIGNATED LOCATIONS"
:EhtERAL LIABILITY AGGREGAIT LIMIT SHALL BE INCLUDED. CQyERMICNT4l. TMMUNtIttl tNDOkStl1EHT I5 INCLLUED.
ILL POLICIES SHALL BC CFAQRSIO tL1 Iitt7Wi1)E 30 DAY ADVANCE NOTICE OF CJIN:ELI,4TIOM TD CS'Y' OF DUBUQUE
CFJiTIFiC/tTE bQJ DEB AitON _ _
BHUtLD MIYCF TMEA80'A: 069CF16[D ttX. clf5 n' r_++)cnl ru u'1 tRIL IHt v
tXPIFATILYI [WTE THEREOF, THE ISSI:IN6 IVSHR7e MTI 1 x)()Q1Q~! MlA
[ITV QF (kUBU(~UE n.._ LAY<.aFffTTNlair.Fmt~FCrmrrwrrllnnne,txwmro~~=~tr1,
CITY IiAll t7m/tfKTaBrotnrJaw~lo~~lutxllettrtUlillAtX~iNWXi(%NW~(X>t
SO N. 13TH STRCET ~wtli>rixACOlhxllKrMawpdtadCtilEXxXxxk~nltXY
UiAlU(lllt, lA 12001 _._.._ ___.____
fu-lnll¢eC 1lernrreNTAnre
ACGRG 25 (2001'08'1 - ~~ +nJ+CORD CORPORP.TION 1988
INSUF2CRS A' fORDINC COVERAGE ~ NAMG C
'{~~•1'r =+ insurance Cnnlpany
rr.:. la I .:
_ --
rr:. Lr 1 - ._..
31
IMPORTANT
if t1c C'C'tifGHC fM]itl~f k .ln P.GDf I UiiAt INSitkEU tttk; W!Ii::Yii:.s; tt~.::u tsC t:r tk, xs. A n131e~nent
wt 1f~ ~.~rtrarare O:~s rlOt COMer nr3ht> t0 A1e GetllfiCjtlltY Ip it llVr ir0 IirOt tsf %n~0 rr ufe:r~er00et1ll~t.
ft w-UB~()t~RTICJN IS ..'K hrt-t7, sun-C+cr to Vre 11~~.tc~t~a..arn; wnUitia;tt~ of II c Wc.li~Y, srilei~, Ndicies may
I b7lNr4' b rl CI N)47r~n'P.Y11. h Stxerrlerxt Oh 9105 CAS an...gG ~CM':~ fN:r I A X1fM ~ iul ~t s Ic. IM r rzt l ilparfa
t191d431 NO Lt7t Cf kIX`.' MOAiYr_,P.n'~'Ntr+i.
QISCLAIMER
he t:unfrau of •ns~c arrp nn tl~ rr!ut!ne s>de of m s fxm d+x.~s rwt w utitvtc ;t wrdr:au !r_I•.r_ru
912 tfiStll`tg rn5i1YE7(u:, 8uD"or$CQ reprte~..erdatlve or ~ri1r.,er, itltl 9iH t+?i~4al/t Itvllt; • ~~c+~ 1Vrc a
atltrtiatr~M W rwrdalivldr ~rr,YrC, EnehOOrarteretew'rer3ge aftt[xUOrl G'/ dt1: p',tlnir~c Gclri ff~r.~rtn~
SPECIMEN
~~ ~ 12QO/Q8-
32
~uL'cv r~~~n~st=a
GOMMERCIAL GENERAL LWBILITI'
Cd 25 D4 d3 8'
THIS ENDORSEMENT CHANGES 7HE POLICY. RLEASE READ fT CAREFULLY.
DESIGNATED LOCATION{S)
GENERAL AGGREGATE LIMIT
Thas enuc;rssr a3nt modifies irsrc:anr,: nrnvir!PA ,mck-r th9 (clbuing: ~ ~ ~~
COMMERCIAL GENER,4L t IAHII ITY C[7VE~A[3E PART ~ ~~
SCHEDULE
~tsigr-ilod Location(s}: ---- -
If n9 crb; appaars atY,vP irfnnnaticn re~uU?d to COITlpiete this endrr~ment wit l:N s:hr non in ih? Cracl~ratians
AS A(1pIiE l0 ~~ ~ CnCCxSefSEttt. }
A. Far III sums a•h ch Uie i~tsu-ec bersy.nrw Ir<d~IH
:6iig~ti:d U> lk'Y as damages caused lr/
occrxmrces' -rrv1Pi t"d~VFRAGE A tSECTION
1; artd fo- all rr-edir:al exF,en3es CduseO b{ acc-
ders~s under CUVLttAGE C (SECTION Il, whim
ran tse attributed only t0 U~eraUans at a singe
~lrsrrgnated "location" sttt7Nrn in the Sc^t~u e
3b0;~:
1. !. 5eaarate Ddsry~t~5en7 Laca:ron General
Aggregate _irnit apal~es to each des-gnatsd
~ocalion'. arvi '.hat snit ~ ~uAI m me
zrrea,u,d ur nc~ Grncral f.3gregate Limt
ahawn in the Cec~ratruns
2 Tht IX:SignaLed ~or~tion C~rrer>3 agr~regate
t .rRel ~y U,e rnr~yl •xe will pay for tfte sum of alf
derragea ur>der CC'J('J'iP,GC A, excep! dam-
egB6 t7eC3466 Of "bodily mttry' Or '•prop~rt~
dzmage' mcludea it the 'products completed
aperations hazarC'. arrd for rnedical exFen~s
under GOVT=ft4GE C reSk7r91ess Ct Lhe rturn-
tcr a(.
a. nsu•ccb
b. C aims made ~ '~uii~ lxcnyf 1, rr
c. t'ersans rx org3raa~inng maki~ Claims
rx hmging `SUits'.
3. Any pa~nrM:nts made under C:C7'JEtZA~3c A
ror damages or urxier COVFRAGE t: for
mpyrcad expenses shah reauoe tre uesig-
natari L,x:dtio~i Ge Yeral ~uiagatn Lirnil ia~
thar designated 'wc>?hpn" :iuch riaYmen's
shall not reduce the Genera Agzreg;»r: i ,nrd
;hrwn in t13,> f)nrl:,r:alrnns "lnr 4na~l they re
duce Any ot+lEr Gesl9natrd LC::e:lUn GerFrsrl
Aggregate Limit for any ~trPr dec,gr3ated
"kxatian' Shawn in the Sche*.i~e aoove
Q. The ;imits strotivn In the C~clarauan_ iv} Each
OCCUrrCf~:.o. Fire Darn,9gP ara-1 'Ued~al La.-
para,e r,~~ntinue tG a~+plyr. however nslerad of
h+eing su:sjert to the Gener'81 fiyyrdgata Lir-it
Sllcnvf in ihu t7ec:rarati]n5, Such IrriIIS Mltt b~~
buu}cci to the upNlKat>fc 7c:signe-tyi t nr.=nqn
Canarel Aydreyrtr. I ,end
33
B. Fa! ab ourrr~ wrrK,i ,f-a iny~,tt7 t~eocrrues ky~!fy
obagatod to car as c9.t>~ad by
'cxx.urre-,cam' ~~ndar ~GVERAGE A ;;iECtIVk
Ii, and ~~ ail rrreeicad ef{>tn,Gec ,-a,,.r't1 tnr arri-
aznts ~ ca~v.c~ c csECTioN r, Nh~t
Ca'tt1r.K be ataibr,~r~t ontr fo ~peratart5 ai a s,r
gle dESi3nated 'laratrut' shontm M^ the mule
above.
1. A'+y pe~ysrernv made ruder CUUF~IAGE A
~ damages cY ~r±4tr GObERAGF C =or
ntr3dr:,a expen3e5 5,t1ap •ed,rc the anrGrn'1
S1~N8brE artrter try Grx~Crdl A.ggfbg~6e LNnI:
a t'te Prxtrx:'s-Cx-rlriGkJ C~reUur'" Rg-
grcg~Ic lrnrr rsMwlrtyne~ is appti~Ic ertc
2 `3LCt1 p3ynterlS ~rtalt na rE*Srx-~e arrj De~natEd
tnra'ion Gc-n3r~ Agyrc~tc i.r-tel.
~C. Y+tttCn roveragt h)r Iraad,#r n,r„i,y o,. rf tha
'produ4l.^• complied oper`tione hazard" iE pro-
viced, ~y pa}Tnont? fir .aetrragvs kr.=rrusr ;;t
'both y injury' ~r 'prCptrty d3matte° nGrxled in
lire "prvw7uCls-COI1lplell;C OcerdtiOnS haz3td' will
rerhace 1516 Pr[XluCl5-Comp+r-ied C)pdsatorv Ar~-
QregaZa Limit arts not retlUOe the C~e'1°r51 Ay
gtrgate Land rtor 1Jte l3es~naten I .xat,~n C;e~-
eral Aggregate Limit.
t). Far the prrpttses of this endorsement :he Defi-
flitlOflS'~eC7on t3 SR1fYX1ed Cy the adiiTon of
LTte fctlawing de~inilccr:
'Location' moans pr~t~ses rtvavng try same
Of CLYlfleCbtt9 bf5, Or `remiss w ~o5e cannec-
79n Is rnte-ruxers only ty a sreat ra;irjua}• rrd-
2envay :,r rig!-t~-f ~na f of a railroad.
E. 1 he pfOVrsrars of I ants :7f Insurance I,SF1.,"iUN
III; n7t otterwise modified by this rrrric:rsc-rCr+l
shaA ~xrtt nr~ tc appry as stiputabcc.
SPECIMEN
34
EXHIBIT A
URBAN RENEWAL PLAN
35
AMENDED and RESTATED
URBAN RENEWAL PLAN
Dubuque Industrial Center Economic Development District
City of Dubuque, Iowa
This Amended and Restated Urban Renewal Plan provides for the
continued development of the Dubuque Industrial Center Economic
Development District, originally established by Resolution 130-88 of
the City Council of the City of Dubuque, Iowa on May 2, 1988 and
thereafter amended and restated by Resolution 484-90 on
December 17, 1990, Resolution 142-97 on April 7, 1997, Resolution
478-97 on November 17, 1997, and Resolution on January
7, 2008.
Prepared by the Economic Development Department.
Version 2008.1
36
TABLE OF CONTENTS
A. INTRODUCTION ................................................................................................ 38
B. OBJECTIVES ..................................................................................................... 38
C. DISTRICT BOUNDARIES ..................................................................................39
D. PUBLIC PURPOSE ACTIVITIES .......................................................................40
E. DEVELOPMENT & REDEVELOPMENT REQUIREMENTS ..............................40
F. LAND ACQUISITION AND DISPOSITION .........................................................41
G. FINANCING ACTIVITIES ...................................................................................42
H. STATE AND LOCAL REQUIREMENTS ............................................................43
I. DURATION OF APPROVED URBAN RENEWAL PLAN ...................................43
J. SEVERABILITY ..................................................................................................44
K. AMENDMENT OF APPROVED URBAN RENEWAL PLAN ..............................44
L. ATTACHMENTS .................................................................................................44
37
AMENDED and RESTATED
DUBUQUE INDUSTRIAL CENTER ECONOMIC DEVELOPMENT DISTRICT
URBAN RENEWAL PLAN
City of Dubuque, Iowa
A. INTRODUCTION
This AMENDED and RESTATED URBAN RENEWAL PLAN (the "Plan") has been prepared to
provide for the further development and redevelopment of the DUBUQUE INDUSTRIAL CENTER
ECONOMIC DEVELOPMENT DISTRICT (the "District") first established by the City of Dubuque on
May 2, 1988. Its intent is to stimulate economic development activities within the expanded District
through the commitment of public actions as specified herein.
To achieve this objective, the City of Dubuque shall undertake the urban renewal actions specified in
this Plan, pursuant to the powers granted to it under Chapter 403 of the Iowa Code, Urban Renewal
Law.
This Plan is an amendment and restatement of the Dubuque Industrial Center Economic
Development District Urban Renewal Plan adopted by Resolution 130-88 of the City Council of the
City of Dubuque, Iowa on May 2, 1988 and subsequently amended by Resolution 484-90 on
December 17, 1990, Resolution 142-97 on April 7, 1997, Resolution 478-97 on November 17, 1997,
and Resolution on January 7, 2008. This Plan shall serve as a new urban renewal plan for
the District described herein.
The division of taxation authorized by Section 403.19 and the separation of incremental taxes as
defined in Section 403.19(2) have been implemented in the existing area of the District (hereinafter
referred to as "Subarea A" and "Subarea ~B"). Under the terms of this Amended and Restated Plan,
the tax increment mechanism shall be continued and implemented within the revised area of the
District as well. The revised District shall be subject to the provisions of a revised ordinance of the
City of Dubuque with respect to the division of taxes levied and collected within each of Subarea A
and Subarea B of the District. Incremental taxes shall continue to be determined separately with
respect to each of the Subareas comprising the District, and when collected shall be applied, subject
to such liens and priorities as may exist or be from time to time provided, with respect to the
Amended and Restated Dubuque Industrial Center Economic Development District, as so amended.
B. OBJECTIVES
The primary objectives of the Plan are the development and redevelopment of the District for
economic development activities, primarily industrial park development, through:
1. Provision of marketable industrial development sites for the purpose of job-creating
economic development activities;
2. Provision of public infrastructure improvements, including sanitary sewer, water and
stormwater detention, supportive of full development of the District;
3. Provision of a safe, efficient and attractive circulation system;
4. Establishment of design standards which will assure cohesive and compatible
38
development and redevelopment of the District;
Provision of public amenities that provide an aesthetically appealing environment,
including open space, buffering, landscaping, water features, signage and lighting to
create a distinctive and attractive setting;
6. Creation of financial incentives necessary to encourage new and existing businesses
to invest in the District; and
Expansion of the property tax base of the District.
C. DISTRICT BOUNDARIES
The District is located within the City of Dubuque, County of Dubuque, State of Iowa. The City of
Dubuque believes that the objectives of the Plan can best be accomplished by defining the real
property included within the District as two separate areas so as to distinguish the original District
(Subarea A) from the subsequent expansion area (Subarea B).
Subarea A of the District shall consist of the real property legally described as follows:
All of the Dubuque Industrial Center First, Second, Third, Fourth, Fifth, Sixth, Seventh,
Eighth, Ninth, Tenth and Eleventh Additions and the adjoining public right-of-way, all in the
City of Dubuque, Dubuque County, Iowa.
Subarea B of the District shall consist of the real property legally described as follows:
• Lots 1, 3, 4, 1 of 5, 6 and H of Dubuque Industrial Center West; and
• Lots 1, 2, 3, 4, 5, 6, 7, 8, and C of Dubuque Industrial Center West 2nd Addition; and
• Lots 1, 2, 3, 4, B, and C of Dubuque Industrial Center West 4th Addition; and
• Lots 1 of 1, 1 of 2, 2 of 2, 1 of 3, 2 of 3, 1 of 5, A, C, and D of Dubuque Industrial Center
West 5th Addition; and
• Lots 1, 2, and A of Dubuque Industrial Center West 6th Addition; and
• Lots 1, 1 of 2, and 2 of 2 of Dubuque Industrial Center West 7th Addition; and
• Lot 2 of 1 of the Southwest Quarter of the Southwest Quarter and Lot 2 of 1 of the Southeast
Quarter of the Southwest Quarter all in Section 30, Township 89 North, Range 2 East, 5th
Principal Meridian;
• and all that part of a 100-foot-wide strip of the Chicago Central Pacific Railroad right-of-way
lying in the SE 1/4 of Section 30, the SE 1/4 of the SW 1/4 of Section 30, the NW 1/4 of
Section 31, and the NE 1/4 of Section 31 all in T89N, R2E, of the 5th P.M. Dubuque County,
Iowa, the centerline of which is more particularly described as follows: beginning at a point of
intersection with the easterly line of the SE 1/4 of Section 30, T89N, R2E, of the 5th P.M.,
thence southwesterly along the centerline of said railroad 2,700 feet, more or less a point of
intersection with the westerly line of the SE 1/4 of said Section 30; thence southwesterly
continuing along said centerline 845 feet, more or less, to a point where the railroad right-of-
way widens to 200 feet, said point being the terminus of this description; and
• all that part of a 100-foot-wide strip of the Chicago Central Pacific Railroad right-of-way lying
in the Balance of Lot 1 of 1 of the Southwest Quarter of the Southwest Quarter in Section 29,
Township 89 North, Range 2 East, 5th Principal Meridian; and
• any adjoining public street right-of-way all in the City of Dubuque, Dubuque County, Iowa.
The boundaries of the District are delineated on the URBAN RENEWAL DISTRICT map (Attachment
A).
39
The City of Dubuque reserves the right to modify the boundaries of the District at some future date.
Any amendments to the Plan will be completed in accordance with Chapter 403 of the Iowa Code,
Urban Renewal Law.
D. PUBLIC PURPOSE ACTIVITIES
To meet the OBJECTIVES of this Plan, the City of Dubuque is prepared to initiate and support
development and redevelopment of the District through, among other things, the following PUBLIC
PURPOSE ACTIVITIES:
1. Acquisition of property for public improvements and private development;
2. Demolition and removal of buildings and improvements not compatible with or
necessary for industrial park development and all site preparation and grading
required in connection with such development;
3. Improvement, installation, construction and reconstruction of streets, utilities and
other improvements and rights-of-ways including but not limited to the relocation of
overhead utility lines, street lights, construction of railroad spur tracks, appropriate
landscaping and buffers, open space and signage;
4. Disposition of any property acquired in the District, including sale, initial leasing or
retention by the City itself, at its fair value;
5. Preparation of property for development and redevelopment purposes including but
not limited to activities such as appraisals and architectural and engineering studies;
6. Use of tax increment financing, loans, grants and other appropriate financial tools in
support of eligible public and private development and redevelopment efforts;
7. Enforcement of applicable local, state and federal laws, codes and regulations;
8. Enforcement of established design standards in furtherance of quality development;
9. Development and implementation of a marketing program for the purpose of
promoting the purchase and development of industrial sites by private developers;
10. Coordination and cooperation with the improvement of Seippel Road as it affects
Subarea B's accessibility to U.S. Highway 20.
Public purpose activities are limited to those areas delineated on the PUBLIC PURPOSE ACTIVITY
AREA map (Attachment B).
All public purpose activities shall be conditioned upon and shall meet the restrictions and limitations
placed upon the District by the Plan.
E. DEVELOPMENT & REDEVELOPMENT REQUIREMENTS
The LAND USE and PLANNING AND DESIGN CRITERIA set forth herein shall apply to any and all
District properties the development and/or the redevelopment of which is assisted by the City through
any of the PUBLIC PURPOSE ACTIVITIES listed above.
Land Use
40
Subarea A and Subarea B shall continue to be developed under the regulations of the
existing Dubuque Industrial Center Planned Industrial District. The allowed uses
provide for a mix of commercial and industrial land use activities within a quality
industrial park setting.
LAND USE maps (Attachments C1 and C2) identify the existing and the proposed
land uses within Subarea A and Subarea B.
2. Planning and Design Criteria
The planning criteria to be used to guide the physical development of both Subarea A and
Subarea B are those standards and guidelines contained within the City of Dubuque's Zoning
Ordinance and other applicable local, state and federal codes and ordinances.
a. Subarea A development will continue to be additionally governed by the Conditions
of Development and Operation Documents of the Dubuque Industrial Center
Planned Industrial District as amended from time to time.
b. Subarea B will develop under a PI Planned Industrial District ordinance as required
by Section 3-5.5 of the City of Dubuque Zoning Ordinance. Development within
Subarea B will follow the Planned Unit Development regulations which require a
conceptual development plan and specific design and performance standards to be
approved by ordinance.
F. LAND ACQUISITION AND DISPOSITION
The City of Dubuque is prepared to acquire and dispose of property in support of the development
and redevelopment of the District within the parameters set forth below.
Land Acouisition
All necessary land acquisitions have been completed for the district.
2. Land Disposition
Publicly held land will be sold for the development of viable uses consistent with this Plan and
not for purposes of speculation.
Land will be disposed of in accordance with the requirements set forth in Chapter 403 of the
Iowa Code, Urban Renewal Law. Developers will be selected on the basis of the quality of
their proposals and their ability to carry out such proposals while complying with the
requirements of this Plan.
Developers will be required by contractual agreement to observe the Land Use
Requirements and Planning and Design Criteria of this Plan. The contract and other
disposition documents will set forth the provisions, standards and criteria for achieving the
objectives and requirements outlined in this Plan.
3. Relocation Reouirements
No relocation is anticipated at this time.
41
G. FINANCING ACTIVITIES
To meet the OBJECTIVES of this Plan and to encourage the development of the District and private
investment therein, the City of Dubuque is prepared to provide financial assistance to qualified
industries and businesses through the making of loans or grants under Chapter 15A of the Iowa
Code and through the use of tax increment financing under Chapter 403 of the Iowa Code.
Chapter 15A Loan or Grant
The City of Dubuque has determined that the making of loans or grants of public funds to
qualified industries and businesses is necessary to aid in the planning, undertaking and
completion of urban renewal projects authorized under this Plan within the meaning of
Section 384.24(3)(q) of the Iowa Code. Accordingly, in furtherance of the objectives of this
Plan, the City of Dubuque may determine to issue bonds or loan agreements, in reliance
upon the authority of Section 384.24A, Section 384.24(3)(q), Section 403.12 (general
obligation bonds) or Section 403.9 (tax increment bonds), for the purpose of making loans or
grants of public funds to qualified businesses. Alternatively, the City may determine to use
available funds for the making of such loans or grants. In determining qualifications of
recipients and whether to make any such individual loans or grants, the City of Dubuque shall
consider one or more of the factors set forth in Section 15A.1 of the Iowa Code on a case-by-
case basis.
2. Tax Increment Financing
The City of Dubuque is prepared to utilize tax increment financing as a means of financing
eligible costs incurred to implement the Public Purpose Activities identified in Part D of this
Plan. Bonds, tax rebate agreements and\or loan agreements may be issued by the City
under the authority of Section 403.9 of the Iowa Code (tax increment bonds) or Section
384.24A, Section 384.24(3)(q) and Section 403.12 (general obligation bonds).
The City acknowledges that the use of tax increment revenues delays the ability of other local
taxing bodies to realize immediately the direct tax benefits of new development in the District.
The City believes, however, that the use of tax increment revenues to finance the
development of new industrial land and to promote private investment in the District is
necessary in the public interest to achieve the OBJECTIVES of this Plan. Without the use of
this special financing tool, new investment may not otherwise occur or may occur within
another jurisdiction. If new development does not take place in Dubuque, property values
could stagnate and the City, County and School District may receive less taxes during the
duration of this Plan than they would have if this Plan were not implemented.
Tax increment financing will provide along-term payback in overall increased tax base for
the City, County and School District. The initial public investment required to generate new
private investment will ultimately increase the taxable value of the District well beyond its
existing base value.
Tax increment reimbursement may be sought for, among other things, the following costs to
the extent they are incurred by the City:
a. Planning and administration of the Plan;
b. Construction of public infrastructure improvements and facilities within the District;
c. Acquisition, installation, maintenance and replacement of public investments
42
throughout the District including but not limited to street lights, landscaping and
buffers, signage and appropriate amenities;
d. Acquisition of land and/or buildings and preparation of same for sale or lease to
private developers, including any "write down" of the sale price of the land and/or
building;
e. Preservation, conservation, development or redevelopment of buildings or facilities
within the District to be sold or leased to qualified businesses;
Loans or grants to qualified businesses under Chapter 15A of the Iowa Code,
including tax rebate payments, debt service payments on any bonds issued to
finance such loans or grants, for purposes of expanding the business or activity, or
other qualifying loan programs established in support of the Plan; and
g. Providing the matching share for a variety of local, state and federal grants and
loans.
Proposed Amount of Indebtedness
At this time, the extent of improvements and new development within the District is only
generally known. As such, the amount and duration for use of the tax increment revenues
for public improvements and/or private development can only be estimated; however, the
actual use and amount of tax increment revenues to be used by the City for District activities
will be determined at the time specific development is proposed.
It is anticipated that the maximum amount of indebtedness which will qualify for tax
increment revenue reimbursement during the duration of this Plan, including acquisition,
public improvements and private development assistance, will not exceed $25,000,000.
At the time of adoption of this Plan, the City of Dubuque's current general obligation debt is $
49,045,655 (a list of obligations is found as Attachment D) and the applicable constitutional
debt limit is $148,824,003.
H. STATE AND LOCAL REQUIREMENTS
All provisions necessary to conform with state and local laws have been complied with by the City of
Dubuque in the implementation of this Plan and its supporting documents.
I. DURATION OF APPROVED URBAN RENEWAL PLAN
Subarea A
This Plan shall continue in effect until terminated by action of the City Council, but in no event
before the City of Dubuque has received full reimbursement from all incremental taxes of its
advances and principal and interest payable on all Tax Increment Financing or general
obligations issued to carry out the OBJECTIVES of the Plan.
Subarea B
This Plan shall continue in effect until terminated by the City Council; provided, however, that
the collection of tax increment revenues from properties located in Subarea B shall be limited
to twenty (20) years from the calendar year following the calendar year in which the Ciry first
certifies to the County Auditor the amount of any loans, advances, indebtedness or bonds
43
which qualify for payment from the division of tax increment revenue provided for in Section
403.19 (tax increment financing) of the Iowa Code.
The DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS established, or as amended from
time to time by the City of Dubuque Zoning Ordinance, shall remain in effect in perpetuity.
J. SEVERABILITY
In the event one or more provisions contained in this Plan shall be held for any reason to be invalid,
illegal, unauthorized or unenforceable in any respect, such invalidity, illegality, unauthorization or
unenforceability shall not affect any other provision of this Plan and this Urban Renewal Plan shall be
construed and implemented as if such provision had never been contained herein.
K. AMENDMENT OF APPROVED URBAN RENEWAL PLAN
This Plan may be amended from time to time to respond to development opportunities. Any such
amendment shall conform to the requirements of Chapter 403 of the Iowa Code. Any change
effecting any property or contractual right can be effectuated only in accordance with applicable state
and local law.
L. ATTACHMENTS
A Urban Renewal District Map
B Public Purpose Activity Area Map
C Land Use Maps
C1 Existing Land Use
C2 Proposed Land Use
D List of General Obligations
44
EXHIBIT B
LEGAL DESCRIPTION
Lot 2 of 2 of Dubuque Industrial Center West 7~h Addition in the City of Dubuque,
Iowa.
45
EXHIBIT B-1
SITE PLAN
46
ruwa~oa+o~~+o~wncacarasuu +a~~~~rw
EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
48
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
7Ht C:77Y OF ~.Y~ 1
-+-- -
RE:
Dear
(DATE)
I have acted as counsel for the City of Dubuque, Iowa, in connection with the
execution and delivery of a certain Development 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 this Agreement and has full power and authority to
execute, deliver and perform its obligations under this Agreement, and to the best
of my knowledge, the representations of the City Manager in his letter dated the
day of , 20_, are correct.
Very sincerely,
BAL:tIs
Barry A. Lindahl, Esq.
City Attorney
49
EXHIBIT D
OPINION OF DEVELOPER'S COUNSEL
50
Mayor and City Councilmembers
Cit~ Hall
13t and Central Avenue
Dubuque IA 52001
Re: 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 Development Agreement
(Development 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 Development 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, we are of the opinion that:
1. Developer is a limited liability company organized and existing under
the laws of the State of and has full power and authority to execute,
deliver and perform in full Development Agreement. The Development Agreement
has been duly and validly authorized, executed and delivered by Developer and,
assuming due authorization, execution and delivery by City, is in full force and
effect and is valid and legally binding instrument of Developer enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting creditors' rights
generally.
2. The execution, delivery and performance by Developer of the
Development Agreement and the carrying out of the terms thereof, will not result in
violation of any provision of, or in default under, the articles of organization and
bylaws of Developer, any indenture, mortgage, deed of trust, indebtedness,
agreement, judgment, decree, order, statute, rule, regulation or restriction to which
Developer is a party or by which Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened
against or affecting Developer in any court or before any arbitrator or before or by
any governmental body in which there is a reasonable possibility of an adverse
51
decision which could materially adversely affect the business (present or
prospective), financial position or results of operations of Developer or which in any
manner raises any questions affecting the validity of the Agreement or the
Developer's ability to perform Developer's obligations thereunder.
Very truly yours,
52
EXHIBIT F
DEED
53
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 Development
Agreement 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
an Iowa limited liability company
(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 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
Promptly after completion of the improvements in accordance with the
54
provisions of the Agreement, Grantor will furnish Grantee with a Certificate of
Completion in the form set forth in the Agreement. Such certification by Grantor
shall be, and the certification itself shall so state, a conclusive determination of
satisfaction and termination of the agreements and covenants of the Agreement
and of this Deed with respect to the obligation of Grantee, and its successors and
assigns, to construct improvements and the dates for the beginning and completion
thereof, it being the intention of the parties that upon the granting and filing of the
Certificate of Completion that all restrictions, re-vesting of title, and reservations of
title contained in this Deed be forever released and terminated and that any
remaining obligations of Grantee pursuant to the Agreement shall be personal only.
All certifications provided for herein shall be in such form as will enable them
to be recorded with the County Recorder of Dubuque, Iowa. If Grantor shall refuse
or fail to provide any such certification in accordance with the provisions of the
Agreement and this Deed, Grantor shall, within twenty days after written request by
Grantee, provide Grantee with a written statement indicating in adequate detail in
what respects Grantee has failed to complete the improvements in accordance with
the provisions of the Agreement or is otherwise in default, and what measures or
acts will be necessary, in .the opinion of Grantor, for Grantee to take or perform in
order to obtain such certification.
In the event that an Event of Default occurs under the Agreement and
Grantee shall fail to cure such default within the period and in the manner stated in
the Agreement, then Grantor shall have the right to re-enter and take possession of
the Property and to terminate and re-vest in Grantor the estate conveyed by this
Deed to Grantee, its assigns and successors in interest, in accordance with the
terms of the Agreement.
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.
Dated this of , 20_ at Dubuque, Iowa.
Attest:
By:
Jeanne F. Schneider, City Clerk
CITY OF DUBUQUE IOWA
By:
55
Roy D. Buol, Mayor
STATE OF IOWA
COUNTY OF DUBUQUE
SS
On this day of , 20_, before me a Notary Public in
and for said County, personally appeared Roy D. Buol and Jeanne F. Schneider 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
56
EXHIBIT G
MEMORANDUM OF DEVELOPMENT AGREEMENT
57
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, Iowa, an
Iowa municipal corporation, of Dubuque, Iowa, and ITC Midwest LLC, a Michigan
limited liability company with its principal place of business in Novi, Michigan was
made regarding the following described premises:
The Development 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 Development Agreement is recorded for the purpose
of constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the
terms and provisions of the Development Agreement shall prevail. A complete
counterpart of the Development Agreement, together with any amendments
thereto, is in the possession of the City of Dubuque and may be examined at its
offices as above provided.
Dated this day of , 20
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
58
By:
Jeanne F. Schneider, City Clerk
STATE OF IOWA
DUBUQUE COUNTY
ss:
On this day of , 20_, before me, a Notary Public in and for the
State of Iowa, in and for said county, personally appeared Roy D. Buol and Jeanne
F. Schneider, to me personally known, who being by me duly sworn did say that
they are the Mayor and City Clerk, respectively of the City of Dubuque, a Municipal
Corporation, created and existing under the laws of the State of 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
59
Cih ~lanar,er's Ottin•
~0 {{'~~t 1?th Start
Dubuque, I,n+•a ~2t)UI-~,t~t+l
(~ ~) j$9--1210 phone
(~H~) `.f+9--12-Iy fax
ch'm};r;~,,i ih~otdubuyuc.or};
(DATE)
Dear
'iF1E CITI" VF <
~~~ ~ a7
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 Development Agreem
61
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
ITC MIDWEST LLC
This Agreement, dated for reference purposes the 3~d day of March, 2008,
by and between the City of Dubuque, Iowa, a municipality (City), established
pursuant to the Iowa Code and acting under authorization of Iowa Code Chapter
403, as amended (Urban Renewal Act), and ITC Midwest LLC, a Michigan limited
liability company with its principal place of business in Novi, Michigan, (Developer).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City
has undertaken an Urban Renewal project (the Project) to advance the
community's ongoing economic development efforts; and
WHEREAS, the Project is located within the Dubuque Industrial Center
Economic Development District (the 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 for the Dubuque Industrial Center Economic Development
District, approved by the City Council of City on May 2, 1988, and as subsequently
amended through and including the date hereof, attached hereto as Exhibit A (the
Urban Renewal Plan); and
WHEREAS, a copy of the Urban Renewal Plan, as constituted on the date of
this Agreement and in the form attached hereto, has been recorded among the land
records in the office of the Recorder of Dubuque County, Iowa; and
WHEREAS, Developer has determined that it requires a new
warehouse/office facility to provide electrical transmission service in and around the
City of Dubuque and other parts of the Midwest which will also be a regional office
facility for Developer's multistate business; and
WHEREAS, Developer has requested that City sell to Developer 12.951
acres of City's real estate, of which 12.71 acres are usable, legally described as -Lot
2 of 2 of Dubuque Industrial Center West 7th Addition in the City of Dubuque, Iowa,
identified on Exhibit B, attached hereto, in the City of Dubuque, Dubuque County,
Iowa, together with all easements, tenements, hereditaments, and appurtenances
belonging thereto (the Property) so that Developer may develop the Property,
located in the Project Area for the construction of a warehouse/office facility and
021308ba1
which City has represented to Developer is 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 the 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 purchase price for the Property (the Purchase Price)
shall be the sum of One Million Two Hundred Seventy-one Thousand Dollars
($1,271,000.00) (One Hundred Thousand Dollars ($100,000.00) per usable acre for
12.71 net usable acres, with a total acquisition of 12.951 acres), which shall be due
and payable by Developer in immediately available funds in favor of City, on or
before April 1, 2008 or on such other date as the parties may mutually agree (the
Closing Date). City acknowledges receipt of the sum of Five Thousand Dollars
($5,000.00) from Developer as earnest money, to be returned to Developer at the
Closing, or in the event the parties fail to close within thirty days after the Closing
Date, less any expenses incurred by City in connection with this Agreement. If
Developer should require additional property for the construction of the Minimum
Improvements described herein, Developer shall be responsible for any costs,
including land purchase, attributed to the acquisition and transfer of the additional
property. Notwithstanding the foregoing, if the Property is determined by Developer
to consist of less than 12.71 net usable acres, Developer shall have the right to a
prorata reduction of the Purchase Price based on the actual number of usable
acres.
1.2 Title to Be Delivered. 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 Closing Date hereof to the extent not objected to
by Developer as set forth in this Agreement, and to the conditions subsequent set
forth in Section 5.3, below.
(1) City, at its sole cost and expense, shall deliver to Developer an
abstract of title to the Property continued through the date of Closing
reflecting merchantable, fee simple title in City in conformity with this
Agreement and applicable state law. The abstract shall be delivered
together with full copies of any and all encumbrances and matters of record
2
021308ba1
applicable to the Property, and such abstract shall become the property of
Developer when the Purchase Price is paid in full in the aforesaid manner.
(2) Developer shall have until the Closing Date to render objections to
title, including any easements or other encumbrances not satisfactory to
Developer, in writing to City. Developer agrees, however, to review the
Abstract promptly following receipt of the Abstract and to promptly provide
City with any objections to title identified therein. Nothing herein shall be
deemed to limit Developer's rights to raise new title objections with respect to
matters revealed in any subsequent title examinations and surveys and
which were not identified in the Abstract provided by 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 Date, or
any extension thereof consented to by Developer, Developer may, at its sole
discretion, either (a) terminate this Agreement without any liability on its part,
and any sums previously paid to City by Developer (or paid into escrow for
City's benefit) shall be returned to Developer with interest, or (b) take title
subject . to such objections with Developer's prior written consent. City
agrees to use its best reasonable efforts to promptly satisfy any such
objections.
1.3 Rights of Inspection, Testing and Review. Developer, its counsel,
accountants, agents and other representatives, shall have full and continuing
access to the Property and all parts thereof, upon reasonable notice to City.
Developer and its agents and representatives shall also have the right to enter upon
the Property at any time after the execution and delivery hereof for purposes of
inspecting, surveying, engineering, test boring, and performing environmental tests,
provided that Developer shall hold City harmless and fully indemnify City against
any damage, claim, liability or cause of action arising from or caused by the actions
of Developer, its agents, or representatives upon the Property (except for any
damage, claim, liability or cause of action arising from conditions existing prior to
any such entry upon the Property), and shall have the further right to make such
inquiries of governmental agencies and utility companies, etc. and to make such
feasibility studies and analyses as it considers appropriate.
1.4 Representations and Warranties of City. In order to induce Developer to
enter into this Agreement and purchase the Property, City hereby represents and
warrants 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
3
021308ba1
thereof by Developer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
(2) No ordinance or hearing is now before any local governmental body
that either contemplates or authorizes any public improvements or special
tax levies, the cost of which may be assessed against the Property. To the
best of City's knowledge, there are no plans or efforts by any government
agency to widen, modify, or re-align any street or highway providing access
to the Property and there are no pending or intended public improvements or
special assessments affecting the Property which will result in any charge or
lien be levied or assessed against the Property.
(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 in the Property.
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) 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. The Property is in material
compliance with all applicable zoning, fire, building, and health statutes,
ordinances, and regulations. The Property is currently zoned PUD and
Developer's intended use of the Property as a manufacturing facility is a
permitted use in such zoning classification.
(7) 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.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) 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
4
021308ba1
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,
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.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer at the
time of closing confirming the representation contained herein, in the form
attached hereto as Exhibit C.
(11) 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 that shall in any
way be binding upon the Property or Developer.
(12) City represents and warrants that any fees or other compensation
which may be owed to a broker engaged directly or indirectly by City in
connection with the purchase and sale contemplated in this Agreement are
the sole responsibility and obligation of City and that City will indemnify
Developer and hold Developer harmless from any and all claims asserted by
any broker engaged directly or indirectly by City for any fees or other
compensation related to the subject matter of this Agreement.
(13) City shall exercise its best efforts to assist Developer in the
development process.
(14) City shall exercise its best efforts to resolve any disputes arising
during the development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied
the Property, and to 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, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under any environmental laws.
(16) All city utilities necessary for the development and use of the Property
as a warehouse/office facility adjoin the Property and Developer shall have
5
021308ba1
the right to connect to said utilities, subject to City's usual and customary
connection fees.
(17) The Urban Renewal Plan attached hereto is a true copy and no
amendments or modifications to such Urban Renewal Plan are
contemplated.
(18) The representations and warranties contained in this article shall be
correct in all respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on and as of
the Closing Date which representations and warranties shall continue and
survive the Closing Date.
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. At the closing, City shall deliver a
certificate to that effect in the form of Exhibit H.
(2) Title to the Property shall be in the condition warranted in Section 1.4.
(3) Developer having obtained any and all necessary governmental
approvals, including without limitations approval of zoning, subdivision or
platting which might be necessary or desirable in connection with the sale,
transfer and development of the Property. Any conditions imposed as a part
of the zoning, platting or subdivision must be satisfactory to Developer
respectively, 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. In connection therewith, the City agrees (a) to review
all of Developer's plans and specifications for the project and to either reject
or approve the same in a prompt and timely fashion; (b) to issue a written
notification to Developer, following City's approval of same, indicating that
the City has approved such plans and specifications, and that the same are
in compliance with the Urban Renewal Plan, 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; (c) to identify in writing within ten (10) working
days of submission of said plans and specifications, any and all permits,
approvals and consents that are legally required for the acquisition of the
Property by Developer, and the construction, use and occupancy of the
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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 connection therewith; and (d) to cooperate fully with
Developer to streamline and facilitate the obtaining of such permits,
approvals and consents.
(4) City, having given all required notices to or obtaining prior approval,
consent or permission of any federal, state, 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.
(5) Developer and City shall be in material compliance with all the terms
and provisions of this Agreement.
(6) Developer shall have furnished City with a copy of its purchase order
for the Property and Minimum Improvements.
(7) Developer shall have furnished City with evidence in a form as
required by Section 4.2 and satisfactory to City of Developer's full-time
employees in Dubuque, Iowa, as of July 1, 2008.
(8) Receipt by City of an opinion of counsel to Developer in the form
attached hereto as Exhibit D with such assumptions and qualifications as
counsel deems necessary and appropriate in its reasonable discretion.
(9) Developer shall have the right to terminate this Agreement at anytime
prior to the consummation of the closing on the Closing Date if Developer
determines that conditions necessary for the successful completion of the
Project contemplated herein have not been satisfied in Developer's sole and
unfettered discretion. Upon the giving of notice of termination Developer to
the City, this Agreement shall be deemed null and void.
1.6 Closing. The closing of the purchase and sale shall take place on the
Closing Date. Exclusive possession of the Property shall be delivered on the
Closing Date, in its current condition and in compliance with this Agreement,
including City's representations and warranties regarding the same. Consummation
of the closing shall be deemed an agreement of the parties to this Agreement that
the conditions of closing have been satisfied or waived.
1.7 City's Obligations at Closing. At or prior to the Closing Date, City shall:
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(1) Deliver to Developer City's duly recordable Special Warranty Deed to
the Property (in the form attached hereto as Exhibit F (the Deed) and
appropriate resolutions of the City Council conveying to Developer
marketable fee simple title to the Property and all rights appurtenant thereto,
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 Section 5.3 below.
(2) Deliver to Developer the Abstract of Title to the 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 Closing. 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
pursuant to Section 1.1 hereof, but subject to Developer receiving an offsetting
credit pursuant to Section 3.1 below.
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 and transfer taxes, if any, imposed on the
conveyance.
(b) A pro-rata portion of all taxes, if any, as provided in Section
1.10.
(c) All special assessments, if any, whether levied, pending or
assessed.
(d) City's attorney's fees, if any.
(e) City's broker and/or real estate commissions and fees, if any.
(f) The cost of recording the satisfaction of any existing mortgage
and any other document necessary to make title marketable.
(2) Developer shall pay the following costs in connection with the closing:
(a) The recording fee necessary to record the Deed.
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(b) Developer's attorney's fees.
(c) Developer's broker and/or real estate commissions and fees, if
any.
(d) A pro-rata portion of all taxes as provided in Section 1.10.
1.10 Real Estate Taxes. City shall pay all real estate taxes for all fiscal years that
end prior to the Closing Date. Real estate taxes for the fiscal year in which the
Closing Date occurs shall be prorated between City and Developer to the Closing
Date on the basis of a 365-day calendar year. Developer shall pay or cause to be
paid all real estate taxes due in subsequent fiscal years. Any proration of real
estate taxes on the Property shall be based upon such taxes for the year currently
payable.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. City acknowledges that Developer is
building awarehouse/office facility on the Property for Developer. Specifically,
Developer is charged with constructing the building and certain internal systems
thereto, and with finishing the building including, without limitation, all interior
improvements (the Minimum Improvements), all as more particularly depicted and
described on the plans and specifications to be delivered to and approved by City
as contemplated in this Agreement. Developer hereby agrees to construct on the
Property awarehouse/office facility of approximately thirty thousand (30,000)
square feet of floor space (20,000 square feet of warehouse and 10,000 square
feet of office) along with necessary site work as contemplated in this Agreement at
an estimated cost of approximately $2,100,000.00.
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 (the Construction Plans) shall be in conformity with the
Urban Renewal Plan, this Agreement, and all applicable state and local laws and
regulations, including but not limited to any covenants, conditions, restrictions,
reservations, easements, liens and charges, applicable to the Property, in the
records of Dubuque County, Iowa. Developer shall submit to City, for approval by
City, plans, drawings, specifications, and related documents with respect to the
improvements to be constructed by Developer on the Property. All work with
respect to the Minimum Improvements shall be in substantial conformity with the
Construction Plans approved by City.
2.3 Timing of Improvements.
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(1) Developer hereby agrees that construction of the Minimum
Improvements on the Property shall be commenced within three (3) months
after the Closing Date, and shall be substantially completed by March 31,
2009. The time frames for the performance of these obligations shall be
suspended due to unavoidable delays, meaning delays, outside the control
of the party claiming its occurrence in good faith, which are the direct result
of strikes, other labor troubles, unusual shortages of materials or labor,
unusually severe or prolonged bad weather, acts of God, fire or other
casualty to the Minimum Improvements, litigation commenced by third
parties which, by injunction or other similar judicial action or by the exercise
of reasonable discretion directly results in delays, or acts of any federal,
state or local government which directly result in delays, including without
limitation the failure to issue permits, approvals and/or consents. The time
for performance of such obligations shall be extended only for the period of
such delay.
(2) This section intentionally left blank.
2.4 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) 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 re-vestment of title in City as provided in Section 5.3, and the Certificate of
Completion shall so state.
2.5 Developer's Lender's Cure Rights. The parties agree that, if Developer shall
fail to complete the Minimum Improvements as required by this Agreement such
that re-vestment of title may occur (or such that the City would have the option of
exercising its re-vestment rights), then Developer's lender shall have the right, but
not the obligation, to complete such Minimum Improvements.
SECTION 3. CITY PARTICIPATION
3.1 Acquisition Grant to Developer. For and in consideration of Developer's
obligations hereunder to construct the Minimum Improvements, City agrees to
make an Acquisition Grant to Developer on the Closing Date, or such other date as
the parties shall mutually agree upon in writing, in the amount of Six Hundred
Thirty-Five Thousand Five Hundred Dollars ($635,500.00)(Fifty Thousand Dollars
($50,000.00) per acre x 12.71 usable acres). The parties agree that the Acquisition
Grant shall be payable in the form of a credit favoring Developer at the time of
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Closing with the effect of directly offsetting a portion of the purchase price obligation
of Developer.
3.2 Economic Development Grant.
(1) For and in consideration of Developer's obligations hereunder, and in
furtherance of the goals and objectives of the urban renewal plan for the
Project Area and the Urban Renewal Law, City agrees, subject to Developer
or its assignee being and remaining in compliance with all material terms of
this Agreement, to make eighteen (18) consecutive semi-annual payments
(such payments being referred to collectively as the Economic Development
Grants) to the Developer if Developer owns the Property and/or the Minimum
Improvements thereon during the period such tax increment revenues
accrue as follows:
November 1, 2009 May 1, 2010
November 1, 2010 May 1, 2011
November 1, 2011 May 1, 2012
November 1, 2012 May 1, 2013
November 1, 2013 May 1, 2014
November 1, 2014 May 1, 2015
November 1, 2015 May 1, 2016
November 1, 2016 May 1, 2017
November 1, 2017 May 1, 2018
pursuant to Iowa Code Section 403.9 of the Urban Renewal Law in amounts
equal to the actual amount of tax increment revenues collected by City under
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 and the Minimum
Improvements constructed by Developer (the Developer Tax Increments).
Developer recognizes and agrees that the Economic Development Grants
shall be paid solely and only from the incremental taxes collected by City in
respect to the Property and Minimum Improvements, which does not include
property taxes collected for the payment of bonds and interest of each taxing
district, and taxes for the regular and voter-approved physical plant and
equipment levy, and 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) To fund the Economic Development Grants, City shall certify to the
County prior to December 1 of each year, commencing December 1, 2008,
its request for the available Developer Tax Increments resulting from the
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assessments imposed by the County as of January 1 of that year, to be
collected by City as taxes are paid during the following fiscal year and which
shall thereafter be disbursed to the Developer if Developer owns or leases
the Property and/or the Minimum Improvements thereon during the period
such tax increment revenues accrue, on November 1 and May 1 of that fiscal
year. (Example: if City so certifies by December, 2008, the Economic
Development Grants in respect thereof would be paid to the Developer on
November 1, 2009, and May 1, 2010.)
(3) The Economic Development Grants shall be payable from and
secured solely and only by the Developer Tax Increments paid to City that,
upon receipt, shall be deposited and held in a special account created for
such purpose and designated as the "ITC Holdings TIF Account" of City. City
hereby covenants and agrees to maintain its TIF ordinance in force during
the term and to apply the incremental taxes collected in respect of the
Property and Minimum Improvements and allocated to the ITC Holdings TIF
Account to pay the Economic Development Grants, as and to the extent set
forth in Section 3.2(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 ITC Holdings
TIF Account (regardless of the amounts thereof) to the payment of the
Economic Development Grants to Developer as and to the extent described
in this Section.
(4) City shall be free to use any and all tax increment revenues collected
in respect of other properties within the Project Area, or any available
Developer Tax Increments resulting from the termination of the annual
Economic Development Grants under Section 3.2 hereof, for any purpose for
which such tax increment revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Law, and City shall have no obligations to
Developer with respect to the use thereof.
SECTION 4. COVENANTS OF DEVELOPER
4.1 Job Creation.
(1) Developer shall create thirty (30) additional full-time employee jobs in
Dubuque, Iowa prior to July 1, 2010, and shall maintain that number of jobs
during the Term of this Agreement. It is agreed by the parties that Developer
has ten (10) full-time employee jobs in Dubuque, Iowa, as of January 1,
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2008. In the event that the certificate required under Section 4.2 hereof on
January 1, 2016 does not show that as of that date that Developer has at
least 40 full-time employees in Dubuque, Iowa, Developer shall pay to City,
promptly upon written demand therefore, an amount equal to $15,887.50 per
job not created or maintained ($635,500 divided by 40 employees =
$15,887.50).
(2) In addition, for the positions that Developer fails to create and
maintain for any year during the Term of this Agreement, the semi-annual
Economic Development Grants for such year under Section 3.2 shall be
reduced by the percentage that the number of such positions bears to the
total number of positions required to be created and maintained
(40employees) by this Section 4.1. (For example, if Developer has 30
employees, the semi-annual Economic Development Grants would be 75%
(30/40 employees) of the Tax Increment Revenues received by City would
be paid by City).
(3) For purposes of this Section 4.1, the jobs created by Developer shall
include any jobs created or persons employed at the Property by ITC
Holdings Corp., its affiliates, subsidiaries, their contractors or subcontractors
of such subcontractors in connection with the business operated at the
Property. The job creation and job retention requirements of this Section 4.1
may be satisfied by any or all of such entities.
4.2 Certification. Subject to the notice requirement below, to assist City in
monitoring the performance of Developer hereunder, not later than August 31,
2010, and not later than August 31 of each year thereafter during the term of this
Agreement, a duly authorized officer of Developer shall certify to City in a form
reasonably acceptable to City: (a) the number of full time employees employed by
Developer in Dubuque, Iowa on July 1 of the year of the certification; (b) a
statement that such officer has re-examined the terms and provisions of this
Agreement and that at the date of such certificate, and during the preceding twelve
(12) months, Developer is not or was not in default in the fulfillment of any of the
terms and conditions of this Agreement and that no Event of Default (or event
which, with the lapse of time or the giving of notice, or both, would become an
Event of Default) is occurring or has occurred as of the date of such certificate or
during such period, or if the signer is aware of any such default, event or Event of
Default, said officer shall disclose in such statement the nature thereof, its period of
existence and what action, if any, has been taken or is proposed to be taken with
respect thereto; and (c) a copy of any reports filed by Developer with the State of
Iowa evidencing the number of employees employed pursuant to Section 4.1.
Notwithstanding the foregoing, Developer shall not be required to provide such
certification unless City provides Developer at least thirty (30) days prior written
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notice that the certification required is due. Such notice shall be sent to each of the
following individuals:
Christine Mason Soneral
Vice-President/General Counsel Utility Operations
ITC Transmission
27175 Energy Way
Novi, MI 48377
Jessica Welch
Logistics & Supply Chain
ITC Transmission
27175 Energy Way
Novi, MI 48377
Steve Sczytko
Director of Supply Chain
ITC Transmission
27175 Energy Way
Novi, MI 48377
Developer shall have the right to change the individuals that the City required to
provide notices to under this Section by providing written notice to the City.
4.3 Books and Records. Intentionally Omitted.
4.4 Real Property Taxes. From and after the Closing Date, Developer shall pay
or cause to be paid, when due, all real property taxes and assessments payable
with respect to all and any parts of the Property unless Developer's obligations have
been assumed by another person pursuant to the provisions of this Agreement.
4.5 No Other Exemptions. During the term of this Agreement, Developer agrees
not to apply for any other state or local property tax exemptions which are available
with respect to the Development Property or the Minimum Improvements located
thereon that may now be, or hereafter become, available under state law or city
ordinance during the term of this Agreement, including those that arise under Iowa
Code Chapters 404 and 427, as amended.
4.6 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all
times during the process of constructing the Minimum Improvements (and,
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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):
(a) All risk builder's risk insurance, written on a Completed Value
Form in an amount equal to one hundred percent (100%) of the
replacement value when construction is completed;
(b) Insurance as set forth in the attached Insurance Schedule.
(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)
insurance as follows:
(a) All risk property insurance against loss and/or damage to
Minimum Improvements under an insurance policy written in an
amount not less than the full insurable replacement value of
Minimum Improvements. The term "replacement value" shall
mean the actual replacement cost of the 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.
(3) Developer shall notify City immediately in the case of damage
exceeding $500,000.00 in amount to, or destruction of, the Minimum
Improvements or any portion thereof resulting from fire or other casualty. Net
proceeds of any such insurance (Net Proceeds), shall be paid directly to
Developer as its interests 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.
4.7 Preservation of Property. After Closing until the termination of this
Agreement, Developer shall maintain, preserve and keep, or cause others to
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maintain, preserve and keep, the Minimum Improvements in good repair and
working order, ordinary wear and tear excepted, and from time to time shall make
all necessary repairs, replacements, renewals and additions. Nothing in this
Agreement, however, shall be deemed to alter any agreements between Developer
or any other party including, without limitation, any agreements between the parties
regarding the care and maintenance of the Property.
4.8 Non-Discrimination. In carrying out the project, Developer shall not
discriminate against any employee or applicant for employment because of race,
religion, color, sex, sexual orientation, gender identity, national origin, age or
disability.
4.9 Conflict of Interest. Developer agrees that no member, officer or employee
of City, or its designees or agents, nor any consultant or member of the governing
body of City, and no other public official of City who exercises or has exercised any
functions or responsibilities with respect to the project during his or her tenure, or
who is in a position to participate in adecision-making process or gain insider
information with regard to the project, shall have any interest, direct or indirect, in
any contract or subcontract, or the proceeds thereof, for work to be performed in
connection with the project, or in any activity, or benefit therefrom, which is part of
this project at any time during or after such person's tenure. In connection with this
obligation, Developer 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.
4.10 Non-Transferability. Until such time as the Minimum Improvements are
complete (as certified by City under Section 2.4), 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 shall not be
unreasonably withheld, conditioned or delayed. Thereafter, Developer shall have
the right to assign this Agreement without consent and upon assumption of the
Agreement by the assignee, Developer shall no longer be responsible for its
obligations under this Agreement.
4.11 Restrictions on Use. Developer agrees for itself, and 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:
(1) Devote the Property to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan (and City represents and agrees that
use of the Property as an warehouse/office facility is in full compliance with
the Urban Renewal Plan) (however, Developer shall not have any liability to
City to the extent that a successor in interest shall breach this covenant and
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City shall seek enforcement of this covenant directly against the party in
breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, gender identity, national origin, age or disability in the sale,
lease, rental, use or occupancy of the Property or any improvements erected
or to be erected thereon, or any part thereof (however, Developer shall not
have any liability to City to the extent that a successor in interest shall breach
this covenant and City shall seek enforcement of this covenant directly
against the party in breach of same).
4.12 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, the Indemnified Parties) from, covenants and agrees that the
Indemnified Parties shall not be liable for, and agree 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 occurring at or about or
resulting from any defect in the Minimum Improvements.
(2) Except for any gross negligence, willful misrepresentation or any
willful or wanton misconduct or any unlawful act of the Indemnified Parties,
Developer agrees to protect and defend the Indemnified Parties, now or
forever, and further agrees to hold the Indemnified Parties harmless, from
any claim, demand, suit, action or other proceedings whatsoever by any
person or entity whatsoever arising or purportedly arising from (1) any
violation of any agreement or condition of this Agreement by Developer
(except with respect to any suit, action, demand or other proceeding brought
by Developer against City based on an alleged breach of any representation,
warranty or covenant of City under this Agreement and/or to enforce its
rights under this Agreement); or (2) the acquisition, construction, installation,
ownership, and operation of the Minimum Improvements; or (3) the condition
of the Property and any hazardous substance or environmental
contamination located in or on the Property, caused and occurring after
Developer takes possession of the Property but prior to the date the City
exercises its re-vestment rights under Section 5.3.
(3) Except for any gross negligence, willful misrepresentation or any
willful or wanton misconduct or any unlawful act of the Developer, its board
members, officers, agents, servants and employees (the Developer
Indemnified Parties), City agrees to protect and defend the Developer
Indemnified Parties, now or forever, and further agrees to hold the Developer
Indemnified Parties harmless, from any claim, demand, suit, action or other
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proceedings whatsoever by any person or entity whatsoever arising or
purportedly arising from (1) any violation of any agreement or condition of
this Agreement by City (except with respect to any suit, action, demand or
other proceeding brought by City against Developer based on an alleged
breach of any representation, warranty or covenant of Developer under this
Agreement and/or to enforce its rights under this Agreement); or (2) the
condition of the Property and any hazardous substance or environmental
contamination located in or on the Property, caused and occurring prior to
the date Developer takes possession of the Property or first occurring after
the date the City exercises its re-vestment rights under Section 5.3.
(4) The Indemnified Parties shall not be liable to Developer for any
damage or injury to the persons or property of Developer or their officers,
agents, servants or employees or any other person who may be on, in or
about the Minimum Improvements due to any act of negligence of any
person, other than any act of negligence on the part of any such Indemnified
Party or its officers, agents, servants or employees.
(5) All covenants, stipulations, promises, agreements and obligations of
City contained herein shall be deemed to be the covenants, stipulations,
promises, agreements and obligations of City, and not of any governing body
member, officer, agent, servant or employee of City in their individual
capacity thereof.
(6) The provisions of this Section shall survive the termination of this
Agreement.
4.13 Compliance with Laws. Developer shall comply with all laws, rules and
regulations relating to its businesses, other than laws, rules and regulations for
which the failure to comply with or the sanctions and penalties resulting therefrom,
would not have a material adverse effect on the business, property, operations,
financial or otherwise, of Developer.
SECTION 5. EVENTS OF DEFAULT AND REMEDIES
5.1 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 or cause to be paid, before delinquency,
all real property taxes assessed with respect to the Minimum Improvements
and the Property. After the issuance of the Certificate of Completion,
however, such event shall not entitle City to the remedy provided in Section
5.3.
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(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms,
conditions and limitations of this Agreement.
(3) Transfer of any interest by Developer of the Minimum Improvements
except to Developer in violation of the provisions of this Agreement prior to
the issuance of the final Certificate of Completion.
(4) Failure by Developer or City to substantially observe or perform any
other material covenant, condition, obligation or agreement on its part to be
observed or performed under this Agreement.
5.2 Remedies on Default by Developer. Whenever any Event of Default referred
to in Section 5.1 of this Agreement occurs and is continuing, City, as specified
below, may take any one or more of the following actions after the giving of written
notice by City to Developer (and the holder of any mortgage encumbering any
interest in the Property of which City has been notified of in writing) of the Event of
Default, but only if the Event of Default has not been cured within sixty (60) days
following such notice, or if the Event of Default cannot be cured within sixty (60)
days and Developer does not provide assurances reasonably satisfactory 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 the defaulting party, deemed adequate by City,
that the defaulting party will cure its default and continue its performance
under this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) City shall be entitled to recover from Developer the sum of all
amounts expended by City in connection with the funding of the Acquisition
Grant to Developer, and City may take any action, including any legal action
it deems necessary, to recover such amounts from the defaulting party;
(4) City may withhold the Certificate of Completion; or
(5) City may take any action, including legal, equitable or administrative
action, which may appear necessary or desirable to collect any payments
due under this Agreement or to enforce performance and observance of any
obligation, agreement, or covenant under this Agreement.
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Notwithstanding anything to the contrary contained in this Agreement, in no event
shall City be entitled to consequential damages as a result of any default by
Developer.
5.3 Re-vesting Title in City Upon Hagpeninq of Event Subsequent to
Conveyance to Developer. 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, , an Event of Default under Section 5.1 of this Agreement occurs and
is not cured within the times specified in Section 5.2, then City shall have the right
to re-enter and take possession of the Property and any portion of the Minimum
Improvements thereon and to terminate (and re-vest in City pursuant to the
provisions of this Section 5.3) the estate conveyed by City to Developer, it being 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
(and the Deed shall contain a condition subsequent to the effect that), in the event
of default under Section 5.1 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 5.3 of this Agreement), but only if
the events stated in Section 5.1 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 assurances reasonably satisfactory to City,
that the events will be cured as soon as reasonably possible. .
5.4 Resale of Reacquired Property; Disposition of Proceeds. Upon the re-
vesting in City of title to the Property as provided in Section 5.3 of this Agreement,
City shall, pursuant to its responsibility under law, use its best efforts to resell the
Property or part thereof as soon and in such manner as City shall end 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 Minimum
Improvements or such other improvements in their stead as shall be satisfactory to
City and in accordance with the uses specified for such the Property or part thereof
in the Urban Renewal Plan. The proceeds thereof shall be applied:
(1) First, to reimburse City for all allocable out of pocket costs and
expenses incurred by City, excluding salaries of personnel, ,in connection
with the recapture, management and resale of the Property or part thereof
unless such personnel was hired solely for such purposes (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
20
021308ba1
discharge any encumbrances or liens (except for mortgage(s) previously
acquiesced in by the City) existing on the Property or part thereof at the time
of re-vesting 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 the Minimum Improvements or
any part thereof on the Property or part thereof, and any amounts otherwise
owing to City (including water and sewer charges) by Developer and its
successors or transferees; and
(2) Second, to reimburse Developer up to the amount equal to (1) the
sum of the Purchase Price paid to City for the Property and the cash actually
invested by such party in making any of the Minimum Improvements on the
Property, less (2) any gains or income withdrawn or made by Developer from
this Agreement or the Property.
5.5 No Remedy Exclusive. Except as otherwise provided in this Agreement, no
remedy herein conferred upon or reserved to City or Developer 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, but any
such right and power may be exercised from time to time and as often as may be
deemed expedient.
5.6 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.
5.7 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in
equity, including an action for declaratory relief or arbitration, is brought to enforce
or interpret the provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs of litigation from the other party. Such
fees and costs of litigation may be set by the court in the trial of such action or by
the arbitrator, as the case may be, or may be enforced in a separate action brought
for that purpose. Such fees and costs of litigation shall be in addition to any other
relief that may be awarded.
5.8 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 that may appear necessary or desirable to collect any
21
021308ba1
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 they receive assurances from City, deemed adequate by
Developer, that City will cure its default and continue its performance under this
Agreement.
SECTION 6. GENERAL TERMS AND PROVISIONS
6.1 Notices and Demands. Whenever this Agreement requires or permits any
notice or written request by one party to another, it shall be deemed to have been
properly given if and when delivered in person or three (3) business days after
having been deposited in any U.S. Postal Service and sent by registered or certified
mail, postage prepaid, addressed as follows:
If to Developer: Christine Mason Soneral Esq.
Vice President & General Counsel
ITC Midwest LLC
39500 Orchard Hill Place, Suite 200
Novi MI 48375
Phone: (248) 374-7889
Fax: (248) 374-7135
With copy to: Adam M. Fishkind
Dykema Gossett PLLC
39577 Woodward Avenue
Bloomfield Hills, MI 48304
Phone (248) 203-0749
Fax: (248) 203-0763
If to City: City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
Fax: (563) 589-4149
With copy to: City Attorney
City Hall
50 W. 13~' Street
Dubuque, IA 52001
Or at such other address with respect to any party as that party may, from time to
time designate in writing and forward to the other as provided in this Section.
22
021308ba1
6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of City and Developer and their respective successors and assigns.
6.3 Termination Date. This Agreement and the rights and obligations of the
parties hereunder shall terminate on May 1, 2018 (the Termination Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be
transmitted between them by facsimile machine. The parties intend that the faxed
signatures constitute original signatures and that a faxed Agreement containing the
signatures (original or faxed) of all the parties is binding on the parties.
6.5 Memorandum of Development Agreement. 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.
6.6 Entire Agreement. This Agreement constitutes the entire agreement between
the parties and supersedes any prior understandings or oral or written agreements
between the parties respecting the within subject matter. In entering into this
Agreement, neither party has relied on any representations by the other party
outside of this Agreement.
[signature page to follow]
23
021308ba1
CITY OF DUBUQUE, IOWA ITC MIDWEST LLC
By: By:
Roy D. Buol, Mayor Dan Oginsky, Vice President &
General Counsel
By:
Jeanne F. Schneider, City Clerk
F:\USERS\DHeiar\ITC Holdings Corp\ITC Holdings Corp DA Final 2-13-08.doc
24
BHO 1 \843066.3
IDWMF
List of Exhibits
Insurance Schedule A
Exhibit A Urban Renewal Plan
Exhibit B Legal Description
Exhibit B-1 Site Plan
Exhibit C City Attorney Certificate
Exhibit D Opinion of Counsel to Developer
[No Exhibit E]
Exhibit F Deed
Exhibit G Memorandum of Development Agreement
Exhibit H City Certificate
25
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
1. All policies of insurance required hereunder shall be with an insurer authorized
to do business in Iowa. All insurers shall have a rating of A or better in the
current A.M. Best Rating Guide.
2. All policies of insurance shall be endorsed to provide a thirty (30) day advance
notice of cancellation to the City of Dubuque, except for 10 day notice for non-
payment, if cancellation is prior to the expiration date. This endorsement
supersedes the standard cancellation statement on the Certificate of Insurance.
3. Developer shall furnish a signed Certificate of Insurance to the City of Dubuque,
Iowa for the coverage required in Paragraph 6 below. Such certificates shall
include copies of the following policy endorsements:
a) Commercial General Liability policy is primary and non-contributing.
b) Commercial General Liability additional insured endorsement.
c) Governmental Immunity Endorsements.
4. Each certificate shall be submitted to the contracting department of the City of
Dubuque.
5. Failure to provide minimum coverage shall not be deemed a waiver of these
requirements by the City of Dubuque. Failure to obtain or maintain the required
insurance shall be considered a material breach of this agreement.
6. Developer shall be required to carry the following minimum coverage/limits or
greater if required by law or other legal agreement:
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 Limit $1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
This coverage shall be written on an occurrence, not a claims made form. Form
CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be
26
included. All deviations or exclusions from the standard ISO commercial
general liability form CG 0001, or Business Owners form BP 0002, shall be
clearly identified.
27
INSURANCE SCHEDULE A (Continued)
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
Governmental Immunity Endorsement identical or equivalent to form attached.
Additional Insured Requirement:
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 shall be named as an
additional insured on General Liability Policies using ISO endorsement CG
20 26 0704 "Additional Insured -Designated Person or Organization," or it's
equivalent. -See Specimen
b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory for Coverage A
Employers Liability:
Each Accident $100,000
Each Employee -Disease $100,000
Policy Limit -Disease $500,000
c) UMBRELLA EXCESS LIABILITY
LIQUOR OR DRAM SHOP LIABILITY
Coverage to be determined on a case by case basis by Finance Director.
Completion Checklist
^ Certificate of Liability Insurance (2 pages)
^ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages)
^ Additional Insured 20 26 07 04
^ Governmental Immunities Endorsement
28
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
Nonwaiver of Governmental Immunity. The insurance carrier 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 is now exists and as it may be amended from time to
time.
2. Claims Coverage. The insurance carrier 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 insurance
carrier.
4. Non-Denial of Coverage. The insurance carrier shall not deny coverage under
this policy and the insurance carrier 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
29
POI 1^Y" Ntrtihf R CQMMERCIAL GENERAL IJABILITY
CG 20 26 O7 04
7HI5 ENDORSEMENT CHANGES THE POLFCY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED -DESIGNATED
PERSQN G1R 0-RGANIZATIQN
Ttws endorstrrnexlt madfies insurancr: ~rc•~ urdea thn 'u11;nMIlg.
COIJIMERCIAL GENERAI ltnBlt ITY COVERkGE PkRT
$CHEI~LE
_ _ _ ._._,
htanle Of Additilawal tnwrvd PN•soll(s) Or Olganization{aj-" "
The Ci-,y of Dubuque, includirK~ till it.^, r?IF;a?n and rhpointrd
ofrir.icls, all ics e~plopees and relunt.e~rs, all i-5 ~~~ards,
cCn+rrissions end?ar auL+torities and Lieir ~nard ~nerot~ers,
emplgaees znd vclultteers.
I
In'armatirn re0~aed :a ca^G~~ this Schedule. i( not <_hc>rxn abo+re. vnll tie spawn in the Declaratia•s
$er;lwn 11 - gAio la An traurvd is ar-rerdoc iG xti-
c1uAe sa an Eddtiana insured th•~ fux ,gr;rj « cx ~3n~
Z£111011{sl StfOCYn in the ~u[tfilSt11L. t]Ut :,ply Wi*l' respect
6~ haY_,ARy fev 'M~ injury". "Prcpe"1Y damage" or
"persaaal s-~d advartsirst :naurY tausetl a~ whelp nr
in part tw yaw acx ur umesisi0r3 ~ the acts or om:s-
SIOtYS d tlti~ a~lg an yow heFalt:
A. in the pc-r`~ortnancE aF your orgar~ ogeratiar~. or
B. In cennec;ic•n .am yax premises owned Fry pr
~enlrritr. Rw~
r-a ~n ~ m rw
'~ECIK"
t'~ tS0 Proaer-ies Inr.. 2{C4
30
Page 1 of t ^
~COR1~ CERTIFICATE OF LIABILITY INSURANCE ozfz4zoosl
valulr~tr. (S63)S56 ~ 027Z FAK (56i}556-'1~4I] TFii3 CERTIFICATE IS [SSUED n5 A N4ITTER Ot INFORMA?1UN
1NS(HL1NCt MtNIY ONLY AMO Ga!!F£RS NO RiGHT$ UPON THE CERTIFICATE
H61DER. T111S CERTFICi(TE t>dE5 NOI AIlIEND, E><TEJIiD Op
] 1 Kttl .4uUkE55 AL7ER 7NE COVERAGE AFFDIIDED BY THE POLIGIES RFLOW.
~--~--
C1IY, 11AIt, ZIP IOQE ~
tNSURLRS AtTORDING COVERAGE NAIG C
~~~ tQ~„y _.__------ __.__ - _
r<:,..Ir:, insurance caNpany
-- -
- - -
Slrrsl Addr•eSS ra-:.Lr~-;
CSIY, StrLe, 71p Cnde rts..w ,.. -._~ _..___._.._...
~rl..lr
THQ PKiI IfaF3 C1F IA iI P.JVI:E LIS 1 L.:IaUPi l A@C DL~w !S"UED TYI THE INSI i[7Fb NSNt U A N{Yrt !-t,7+.! I H= ~J U G Y 'LY.IUU Ifd:+i7U l L h~; I f41 Ib 1 pN V N~
Arlr RC.^. ~If'~EIAEVT TE?M >? GLriU111rJN r.F nHV 4C:N Ire.,CT CR (iTFfT?OO~UMENT VMH F'LSPEGi 71L'1 'ANI.. H NIS talc 11-Ir:r, n w. r rn ISS 11"[I fIG
rLSr p=H 1.M THt INSUP,,V[:C NFLR]=a 3Y Il•: t'O_I;;IE` [)F::C:~iIH-J HEF{EIN I::ilAiJlrv! IUfLLI TIIC ~Ed. IS CJJIL'_(, $I,lli.4 1'•HG ~ .7~Fflln C7HS i)F llC'I-
f'Ut.:ES.4!_L:P.F;J,TFt t.'175 S.iTV.T1 YraY Flt'1t BLLN MLt:lIC:1l JY 'A1L: i;11M
~'f'U~1 TYpF AF MSIINAU-F 1(1x'7 y111~ K%K:v 1t1t~1t.f F•b.,Cv C%rtRh10M LYII~
TaF-~a>vt unr~uTr "~ -- ~-wn;,_,.~~rtt..e a I 000,00
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p11 Airiif' W1LJi'r - •~ .~.. __.
A X1rroe::l•NFI:fLPiF.'}E.9EXeCJTYE , E 'x;lY1r-.1:r,T , [ lOD,Da
LY I L-r~~tt, t..:~.,~u.: ioo,oa
ter,....-....,. --_
Sr~C.Y FF^'~ASICNS :~'/ti. E..:lu_/w+L w'.li:-I r:ll 5 -i00,Da
__ _..._ - ..__ ~s._.___..
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UI'itlM:J' w1T1V1rIJN1f' L1A:AlIVlle. YtlIII:Lt.Y, / .Gl J..rOwS 401Om GT'.f~OCNtIlNlKT! ]I'GIW. T:Yr18KlIlJ -_
CITY OF DUBUOUE IS LISTED AS AN ADDITIONAL INSURED DN GENERAL LIABIt.TTY Nf11ICIr5 USING LSD ENDURSE-
Fi?RR fG 20 2b OT 04 "AIIDTTTONAI INSURED-DESIGNATED PERSON Oil ORGAVIZATIDN" DR I1S EQUIVILANT.
RAL LIABILITY POLICY IS PRIMARY ANO NDN{ONTRIBUTIAG. FORM CG 2S D4 D3 47 "DESIGNATED LDCr~TIOVS"
RAL LIABILITY AOGREGATF LIMIT SHALL BE INICLUDED. Cg4ER,YICNTAI. TNMiINIIItS tNU0R5EMENT IS INCLWED.
POLICIES SMALL BE [NDt>asro to Pkt?YIDE 30 DAY ADVANCE NOTICE OF CAN;EU.dTiON TD [I'Y OF DUBUQUE
Tlcrr ATC WAI lL0 r'AYrL:I 1 J ilnu
CITY OF DUBUCMIE
QTY MALL
so w. 13711 sTHrFT
UI~fU.2Ut, lA 12001
lwurca.• ca rcw a'rwl
___. ----
BNOLLD A[IYO~ 111E ABOVE OESCFIBED FOLCrJ n- urcn I.ru Itt Wt Int
tXPIR0.Tlq/ 047E TIIEn60F, THE ISbI.IN6 wSUR=R Mrl I h7I1Dr1tJ(dhlil wne.
;~ _ 1:AYE FlFfrTFN NOTrG£ 7p TAE ~FR'IFF4TF 1lfl AIR M.Wm 1O "•1!' LLr 1,
name~amuuaanuclHiM1E1-Y~tkA(xi(xK-am~itxx
~o(~w~nNmu~c[~c>ts~laaoucxnlcx~ar~aaxxxxxxxa(xx
11Lrnnlf~ec rrernQeNTATrre
31
t=.WC(}RD GORP~RATI4N 1988
IMPORTANT
N We rx:tilptC tbllcF~ ~ :xt Al"1D1 I UtiPIL INSttItEU Ux; l1U~:YIIGS; irr.•sl t,c et ttv xa. A. >4~terilElit
LAI 11115 1:JtirrC.atO O.'rE: riot COrYH r-~flfb SD Vl@ tt3s6fiG3lC Iw;lrlCr in lira or %x7li rr nit:r:reli lerHlsj.
((SUB~Jt;/~TK?N IS Y:A Nt`l7. stttgelt to try t~r11'1s arlrJ u~lltiili1:11•.~ u! it.~ H'+.litY, ,s-eteirr Ndiues rrlay
ilf~llN1L 8~r C1iQ)r~3Qn'Qrll. h SL#p4lfErtl On 111a C8IUiCd1C 1jC1t;~ ru;l ialrltrl riyllls It. 1r1-i~rliliwltl
(IOtdf91 NI (K!J r wlC!' P..fUI[YRPITf•'NSSi
DISCLAIMER
1 he 1:9f711F~.att ot.naaaere n111hP. arlaene s,de al ms fxm does rwt urz5tilutc :a cxlydl;aul l~F.e~rli
-he tssurig irlaurel(~, a1r0'WkC4 r..ent3lhre or ~uocr. and ;tre c~a ~~ale Iltrtl,; . lrcx i<~ .1
atltlralrlek d fW~dNIdY ~rw~", EYrPM aaAD2f ate GD•R13Qe 3ffOrrJOU tr/ Sl1U P'Jli~'k•~c lislr, i llrrrtur
SPECIMEN
ACCII~ 25 f~11s8k
32
roL'cv u~+n~scrt
COMMERCIAL GENERAL t.IAB1UTY
GCi 25 04 P3 87
THIS ENDQRSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
DESIGNATED LOCATION(S)
GENERAL AGGREGATE LIMIT
Ttus entkastx-~rtt modifiex rcsrr:arrcp nrnvtrtPA ~ mHrv thr? FcNo~xing:
CCrN041ERC1AL GENERAL LIAAII ITY COVE2~.GE PAF'T
~~
SP
SCHEDULE
O~igrtalod Lotatinn(sy: ~ ~ -- ~~
;I! no crtt, app=_ars aline irfomtaticn reQUlfdd to tDrnpiebe this enotr_semFnt wit Ira ~hrnvn m th? l]ecl~rations
a~ a:t~taCiE to ~^~s cncarsenent.>
/L For all suns a•h,ch the insu ea b~nrw Itti~rlhr b. Caims made Qr"JUitD t)rV4X~l 1, w
chtrgated lu PdY as •~emaaes caused by
"occurrrarc~' .tom C`.CI~FRA(;E A (SECTION C. Nf:rSan$ a org3r¢a-iong maki~ Claims
'
'
l;. and to- atl m~irnl r!xpen3~es caused b/ acc- rx hnngetg
Sufts
dams tinder COVFJ~AGE C !SECTION Iy, ~vhicn 3_ rlny payments made under COVERAG= A
ran be aitribtr0eci only to operebens dl a single ror aamagc~s or urxter Ct7VFRkGE C toi
rJnsr~nated `Natation" shaky in the Sc^tdu~e madlcal e~gae~ses sna11 re+du~ tte Desig-
3pOJe: natea LOi:dtiu~l Cac~etal P,truieyatn Lune fo!
t. h Se:)Qr3tE Das.ig'tatrn! lrxaeon General tl~a dESigrreted `location" :rich riarmenas
i
kggregaie _~rnit apobes to each destgnatcd
' st1:11 not reduce the Genera: f~g£re~:r
P ! n,ul
;hewn in tiw f~r•r-1;,~a6ons nor €na;l they re
iocatv~n
. and that unit ~ equal to me .duke any otter Desi9nat~~d Location General
err.runt r~( ttro Getncral Aggregate Lim t
shown in the OeCiBrati0n3 hggreaats Limit for Fny ntrPr desr7nated
'
ktCatiari 3ht7Wfl In 1t1B:ichedule above.
2 The Dtsignated .oration t;aners~ Agr~egate Q. The limifr, Shown In tfie CpClorabtms toi Each
1 rn^t rr UiC nuassi •.vt: will pay nor ttte sum of all QCCU'(GhCIR Fire QsntagP end iAed~:21 tr-
dan•.egea urxfer CO'~CRgGC A, excgar, dam-
"
'
' pPr~ rx~ntinue tv apply. i!ionvever. nsteiact of
ages bec3t.se of
bodily mlr~ry
or
•t,+topcrtj
'
' being suolert b the Gcn°I'81 fiyyregata Lirrit
dar+rage
rnclryled it the
producMS-tvmpleted
aperetlionS hazarn'. and foi medical exFertsPS ShU.vr' in 11in DE+c:tarations, SuCn IritrtS W?t be
under G4VER4GE C tes~lr3less Of ttlt num bU:~bCi to tI1C JF]t1I1CdtJiC ]asigixtrt t nranon
Ganarel A.yyreyat~: I irnil
tacr tai.
9. r1SU'6CtS.
33
9.Fa aN aru^ra what J-c ier5.:icd hebarr~s X111'
'<xs'.~me-~` ~noer ~:~VE32itG3E A ' SEt; (1 V N
1~, arv3 irvv arY mec~r) expe+rx!~ iauszrci by arra-
tSants urx3~t C4dE"RJ.GE C iSECTION q ~ahdi
Cd'tnOt be 3ffr1k7rlf'<1 rxrM to cperatarss at a sin.
gle desi~natd 'loratxvt' sitowrn 4r, ttre
atxwv.
1. A~ry pAyrrr~ •nade order C0IIERAGE A
Iflr danages a ~r~ GOtiJERkC'F C -or
utedr~ expenses slraH *educe the arna-rri
Br3NedtE axraer ~~ Gerrrd Aggregate LptU:
u me Pcxlur.:s-Cx'~1 (7yeadtw+'~ fig
~IG;'JtC Lmt w1ir3Y~rEr 19 eppir~aic 5f:
2 Stl.Xt p3lRnerts :.hall nor reduce arty CHSS+grl3bBd
tr(iE1L~dl Pp~t'~ya[C L!"7pL
C. 'Nhen r~ragc her lusaddy HiraiKj a~ i:f the
•prpduCt,^, evmpieted oper`tione hazarr!' ie pro-
viced, any payments for ~dsrnages kec~use .~t
'tiodiy injury' or 'prcpertyr damage" neluded in
Uw `Incx3uCt>rt.OmpleteC O:rEMdIIOnS hazard' will
reduce the ProduGtS~ornPlcieci Opt~atctrr- Ag-
gregala Limit a~tl not redl,oe me General Ag
grtegate L-rttrt nor me tJes~nat~t I.aCSttun t";e~-
eral Aggregate Limit.
U. l=ar ttto plrposes of th~~ endorsement ~1e Drfi-
nirionts ~C70n is ampsxtrd try the sdjii;on d
~'`e fntlnwing tie'miCcn:
'Locatiai' rncans prern~ses nvovng tte same
4r CCfitteCUrlg t0(s, r]r Ernes w~ose cannec-
~on IS utte'ru~mec ont/ ty a sree! rcaar~a}• 'rrd-
terway ar rigrt-cf •nay of a railroad.
E. !lie pfovislor's ctt I ants Of Insurance tSi=CCTION
III; n7f vtl'erwise modified by this crxiuisa•reral
shall caYtnue tc apply as atiputaUcc.
SPECIMEN
34
EXHIBIT A
URBAN RENEWAL PLAN
35
AMENDED and RESTATED
URBAN RENEWAL PLAN
Dubuque Industrial Center Economic Development District
City of Dubuque, Iowa
This Amended and Restated Urban Renewal Plan provides for the
continued development of the Dubuque Industrial Center Economic
Development District, originally established by Resolution 130-88 of
the City Council of the City of Dubuque, Iowa on May 2, 1988 and
thereafter amended and restated by Resolution 484-90 on
December 17, 1990, Resolution 142-97 on April 7, 1997, Resolution
478-97 on November 17, 1997, and Resolution on January
7, 2008.
Prepared by the Economic Development Department.
Version 2008.1
36
TABLE OF CONTENTS
A. INTRODUCTION ................................................................................................ 38
B. OBJECTIVES ..................................................................................................... 38
C. DISTRICT BOUNDARIES .................................................................................. 39
D. PUBLIC PURPOSE ACTIVITIES ....................................................................... 40
E. DEVELOPMENT & REDEVELOPMENT REQUIREMENTS .............................. 40
F. LAND ACQUISITION AND DISPOSITION ......................................................... 41
G. FINANCING ACTIVITIES ................................................................................... 42
H. STATE AND LOCAL REQUIREMENTS ............................................................ 43
1. DURATION OF APPROVED URBAN RENEWAL PLAN ................................... 43
J. SEVERABILITY .................................................................................................. 44
K. AMENDMENT OF APPROVED URBAN RENEWAL PLAN .............................. 44
L. ATTACHMENTS ................................................................................................. 44
37
AMENDED and RESTATED
DUBUQUE INDUSTRIAL CENTER ECONOMIC DEVELOPMENT DISTRICT
URBAN RENEWAL PLAN
City of Dubuque, Iowa
A. INTRODUCTION
This AMENDED and RESTATED URBAN RENEWAL PLAN (the "Plan") has been prepared to
provide for the further development and redevelopment of the DUBUQUE INDUSTRIAL CENTER
ECONOMIC DEVELOPMENT DISTRICT (the "District") first established by the City of Dubuque on
May 2, 1988. Its intent is to stimulate economic development activities within the expanded District
through the commitment of public actions as specified herein.
To achieve this objective, the City of Dubuque shall undertake the urban renewal actions specified in
this Plan, pursuant to the powers granted to it under Chapter 403 of the Iowa Code, Urban Renewal
Law.
This Plan is an amendment and restatement of the Dubuque Industrial Center Economic
Development District Urban Renewal Plan adopted by Resolution 130-88 of the City Council of the
City of Dubuque, Iowa on May 2, 1988 and subsequently amended by Resolution 484-90 on
December 17, 1990, Resolution 142-97 on April 7, 1997, Resolution 478-97 on November 17, 1997,
and Resolution on January 7, 2008. This Plan shall serve as a new urban renewal plan for
the District described herein.
The division of taxation authorized by Section 403.19 and the separation of incremental taxes as
defined in Section 403.19(2) have been implemented in the existing area of the District (hereinafter
referred to as "Subarea A" and "Subarea B"). Under the terms of this Amended and Restated Plan,
the tax increment mechanism shall be continued and implemented within the revised area of the
District as well. The revised District shall be subject to the provisions of a revised ordinance of the
City of Dubuque with respect to the division of taxes levied and collected within each of Subarea A
and Subarea B of the District. Incremental taxes shall continue to be determined separately with
respect to each of the Subareas comprising the District, and when collected shall be applied, subject
to such liens and priorities as may exist or be from time to time provided, with respect to the
Amended and Restated Dubuque Industrial Center Economic Development District, as so amended.
B. OBJECTIVES
The primary objectives of the Plan are the development and redevelopment of the District for
economic development activities, primarily industrial park development, through:
1. Provision of marketable industrial development sites for the purpose of job-creating
economic development activities;
2. Provision of public infrastructure improvements, including sanitary sewer, water and
stormwater detention, supportive of full development of the District;
3. Provision of a safe, efficient and attractive circulation system;
4. Establishment of design standards which will assure cohesive and compatible
38
development and redevelopment of the District;
5. Provision of public amenities that provide an aesthetically appealing environment,
including open space, buffering, landscaping, water features, signage and lighting to
create a distinctive and attractive setting;
6. Creation of financial incentives necessary to encourage new and existing businesses
to invest in the District; and
7. Expansion of the property tax base of the District.
C. DISTRICT BOUNDARIES
The District is located within the City of Dubuque, County of Dubuque, State of Iowa. The City of
Dubuque believes that the objectives of the Plan can best be accomplished by defining the real
property included within the District as two separate areas so as to distinguish the original District
(Subarea A) from the subsequent expansion area (Subarea B).
Subarea A of the District shall consist of the real property legally described as follows:
All of the Dubuque Industrial Center First, Second, Third, Fourth, Fifth, Sixth, Seventh,
Eighth, Ninth, Tenth and Eleventh Additions and the adjoining public right-of-way, all in the
City of Dubuque, Dubuque County, Iowa.
Subarea B of the District shall consist of the real property legally described as follows:
• Lots 1, 3, 4, 1 of 5, 6 and H of Dubuque Industrial Center West; and
• Lots 1, 2, 3, 4, 5, 6, 7, 8, and C of Dubuque Industrial Center West 2"d Addition; and
• Lots 1, 2, 3, 4, B, and C of Dubuque Industrial Center West 4th Addition; and
• Lots 1 of 1, 1 of 2, 2 of 2, 1 of 3, 2 of 3, 1 of 5, A, C, and D of Dubuque Industrial Center
West 5th Addition; and
• Lots 1, 2, and A of Dubuque Industrial Center West 6th Addition; and
• Lots 1, 1 of 2, and 2 of 2 of Dubuque Industrial Center West 7th Addition; and
• Lot 2 of 1 of the Southwest Quarter of the Southwest Quarter and Lot 2 of 1 of the Southeast
Quarter of the Southwest Quarter all in Section 30, Township 89 North, Range 2 East, Stn
Principal Meridian;
• and all that part of a 100-foot-wide strip of the Chicago Central Pacific Railroad right-of-way
lying in the SE 1/4 of Section 30, the SE 1/4 of the SW 1/4 of Section 30, the NW 1/4 of
Section 31, and the NE 1/4 of Section 31 all in T89N, R2E, of the 5th P.M. Dubuque County,
Iowa, the centerline of which is more particularly described as follows: beginning at a point of
intersection with the easterly line of the SE 1/4 of Section 30, T89N, R2E, of the 5th P.M.,
thence southwesterly along the centerline of said railroad 2,700 feet, more or less a point of
intersection with the westerly line of the SE 1/4 of said Section 30; thence southwesterly
continuing along said centerline 845 feet, more or less, to a point where the railroad right-of-
way widens to 200 feet, said point being the terminus of this description; and
• all that part of a 100-foot-wide strip of the Chicago Central Pacific Railroad right-of-way lying
in the Balance of Lot 1 of 1 of the Southwest Quarter of the Southwest Quarter in Section 29,
Township 89 North, Range 2 East, Stn Principal Meridian; and
• any adjoining public street right-of-way all in the City of Dubuque, Dubuque County, Iowa.
The boundaries of the District are delineated on the URBAN RENEWAL DISTRICT map (Attachment
A).
39
The City of Dubuque reserves the right to modify the boundaries of the District at some future date.
Any amendments to the Plan will be completed in accordance with Chapter 403 of the Iowa Code,
Urban Renewal Law.
D. PUBLIC PURPOSE ACTIVITIES
To meet the OBJECTIVES of this Plan, the City of Dubuque is prepared to initiate and support
development and redevelopment of the District through, among other things, the following PUBLIC
PURPOSE ACTIVITIES:
1. Acquisition of property for public improvements and private development;
2. Demolition and removal of buildings and improvements not compatible with or
necessary for industrial park development and all site preparation and grading
required in connection with such development;
3. Improvement, installation, construction and reconstruction of streets, utilities and
other improvements and rights-of-ways including but not limited to the relocation of
overhead utility lines, street lights, construction of railroad spur tracks, appropriate
landscaping and buffers, open space and signage;
4. Disposition of any property acquired in the District, including sale, initial leasing or
retention by the City itself, at its fair value;
5. Preparation of property for development and redevelopment purposes including but
not limited to activities such as appraisals and architectural and engineering studies;
6. Use of tax increment financing, loans, grants and other appropriate financial tools in
support of eligible public and private development and redevelopment efforts;
7. Enforcement of applicable local, state and federal laws, codes and regulations;
8. Enforcement of established design standards in furtherance of quality development;
9. Development and implementation of a marketing program for the purpose of
promoting the purchase and development of industrial sites by private developers;
10. Coordination and cooperation with the improvement of Seippel Road as it affects
Subarea B's accessibility to U.S. Highway 20.
Public purpose activities are limited to those areas delineated on the PUBLIC PURPOSE ACTIVITY
AREA map (Attachment B).
All public purpose activities shall be conditioned upon and shall meet the restrictions and limitations
placed upon the District by the Plan.
E. DEVELOPMENT ~ REDEVELOPMENT REQUIREMENTS
The LAND USE and PLANNING AND DESIGN CRITERIA set forth herein shall apply to any and all
District properties the development and/or the redevelopment of which is assisted by the City through
any of the PUBLIC PURPOSE ACTIVITIES listed above.
1. Land Use
40
Subarea A and Subarea B shall continue to be developed under the regulations of the
existing Dubuque Industrial Center Planned Industrial District. The allowed uses
provide for a mix of commercial and industrial land use activities within a quality
industrial park setting.
LAND USE maps (Attachments C1 and C2) identify the existing and the proposed
land uses within Subarea A and Subarea B.
Planning and Design Criteria
The planning criteria to be used to guide the physical development of both Subarea A and
Subarea B are those standards and guidelines contained within the City of Dubuque's Zoning
Ordinance and other applicable local, state and federal codes and ordinances.
a. Subarea A development will continue to be additionally governed by the Conditions
of Development and Operation Documents of the Dubuque Industrial Center
Planned Industrial District as amended from time to time.
b. Subarea B will develop under a PI Planned Industrial District ordinance as required
by Section 3-5.5 of the City of Dubuque Zoning Ordinance. Development within
Subarea B will follow the Planned Unit Development regulations which require a
conceptual development plan and specific design and performance standards to be
approved by ordinance.
F. LAND ACQUISITION AND DISPOSITION
The. City of Dubuque is prepared to acquire and dispose of property in support of the development
and redevelopment of the District within the parameters set forth below.
Land Acquisition
All necessary land acquisitions have been completed for the district.
2. Land Disposition
Publicly held land will be sold for the development of viable uses consistent with this Plan and
not for purposes of speculation.
Land will be disposed of in accordance with the requirements set forth in Chapter 403 of the
Iowa Code, Urban Renewal Law. Developers will be selected on the basis of the quality of
their proposals and their ability to carry out such proposals while complying with the
requirements of this Plan.
Developers will be required by contractual agreement to observe the Land Use
Requirements and Planning and Design Criteria of this Plan. The contract and other
disposition documents will set forth the provisions, standards and criteria for achieving the
objectives and requirements outlined in this Plan.
3. Relocation Reouirements
No relocation is anticipated at this time.
41
G. FINANCING ACTIVITIES
To meet the OBJECTIVES of this Plan and to encourage the development of the District and private
investment therein, the City of Dubuque is prepared to provide financial assistance to qualified
industries and businesses through the making of loans or grants under Chapter 15A of the Iowa
Code and through the use of tax increment financing under Chapter 403 of the Iowa Code.
Chapter 15A Loan or Grant
The City of Dubuque has determined that the making of loans or grants of public funds to
qualified industries and businesses is necessary to aid in the planning, undertaking and
completion of urban renewal projects authorized under this Plan within the meaning of
Section 384.24(3)(q) of the Iowa Code. Accordingly, in furtherance of the objectives of this
Plan, the City of Dubuque may determine to issue bonds or loan agreements, in reliance
upon the authority of Section 384.24A, Section 384.24(3)(q), Section 403.12 (general
obligation bonds) or Section 403.9 (tax increment bonds), for the purpose of making loans or
grants of public funds to qualified businesses. Alternatively, the City may determine to use
available funds for the making of such loans or grants. In determining qualifications of
recipients and whether to make any such individual loans or grants, the City of Dubuque shall
consider one or more of the factors set forth in Section 15A.1 of the Iowa Code on a case-by-
case basis.
2. Tax Increment Financing
The City of Dubuque is prepared to utilize tax increment financing as a means of financing
eligible costs incurred to implement the Public Purpose Activities identified in Part D of this
Plan. Bonds, tax rebate agreements andlor loan agreements may be issued by the City
under the authority of Section 403.9 of the Iowa Code (tax increment bonds) or Section
384.24A, Section 384.24(3)(q) and Section 403.12 (general obligation bonds).
The City acknowledges that the use of tax increment revenues delays the ability of other local
taxing bodies to realize immediately the direct tax benefits of new development in the District.
The City believes, however, that the use of tax increment revenues to finance the
development of new industrial land and to promote private investment in the District is
necessary in the public interest to achieve the OBJECTIVES of this Plan. Without the use of
this special financing tool, new investment may not otherwise occur or may occur within
another jurisdiction. If new development does not take place in Dubuque, property values
could stagnate and the City, County and School District may receive less taxes during the
duration of this Plan than they would have if this Plan were not implemented.
Tax increment financing will provide along-term payback in overall increased tax base for
the City, County and School District. The initial public investment required to generate new
private investment will ultimately increase the taxable value of the District well beyond its
existing base value.
Tax increment reimbursement may be sought for, among other things, the following costs to
the extent they are incurred by the City:
a. Planning and administration of the Plan;
b. Construction of public infrastructure improvements and facilities within the District;
Acquisition, installation, maintenance and replacement of public investments
42
throughout the District including but not limited to street lights, landscaping and
buffers, signage and appropriate amenities;
d. Acquisition of land and/or buildings and preparation of same for sale or lease to
private developers, including any "write down" of the sale price of the land and/or
building;
e. Preservation, conservation, development or redevelopment of buildings or facilities
within the District to be sold or leased to qualified businesses;
f. Loans or grants to qualified businesses under Chapter 15A of the Iowa Code,
including tax rebate payments, debt service payments on any bonds issued to
finance such loans or grants, for purposes of expanding the business or activity, or
other qualifying loan programs established in support of the Plan; and
g. Providing the matching share for a variety of local, state and federal grants and
loans.
3. Proposed Amount of Indebtedness
At this time, the extent of improvements and new development within the District is only
generally known. As such, the amount and duration for use of the tax increment revenues
for public improvements and/or private development can only be estimated; however, the
actual use and amount of tax increment revenues to be used by the City for District activities
will be determined at the time specific development is proposed.
It is anticipated that the maximum amount of indebtedness which will qualify for tax
increment revenue reimbursement during the duration of this Plan, including acquisition,
public improvements and private development assistance, will not exceed $25,000,000.
At the time of adoption of this Plan, the City of Dubuque's current general obligation debt is $
49,045,655 (a list of obligations is found as Attachment D) and the applicable constitutional
debt limit is $148,824,003.
H. STATE AND LOCAL REQUIREMENTS
All provisions necessary to conform with state and local laws have been complied with by the City of
Dubuque in the implementation of this Plan and its supporting documents.
I. DURATION OF APPROVED URBAN RENEWAL PLAN
Subarea A
This Plan shall continue in effect until terminated by action of the City Council, but in no event
before the City of Dubuque has received full reimbursement from all incremental taxes of its
advances and principal and interest payable on all Tax Increment Financing or general
obligations issued to carry out the OBJECTIVES of the Plan.
2. Subarea B
This Plan shall continue in effect until terminated by the City Council; provided, however, that
the collection of tax increment revenues from properties located in Subarea B shall be limited
to twenty (20) years from the calendar year following the calendar year in which the City first
certifies to the County Auditor the amount of any loans, advances, indebtedness or bonds
43
which qualify for payment from the division of tax increment revenue provided for in Section
403.19 (tax increment financing) of the Iowa Code.
The DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS established, or as amended from
time to time by the City of Dubuque Zoning Ordinance, shall remain in effect in perpetuity.
J. SEVERABILITY
In the event one or more provisions contained in this Plan shall be held for any reason to be invalid,
illegal, unauthorized or unenforceable in any respect, such invalidity, illegality, unauthorization or
unenforceability shall not affect any other provision of this Plan and this Urban Renewal Plan shall be
construed and implemented as if such provision had never been contained herein.
K. AMENDMENT OF APPROVED URBAN RENEWAL PLAN
This Plan may be amended from time to time to respond to development opportunities. Any such
amendment shall conform to the requirements of Chapter 403 of the Iowa Code. Any change
effecting any property or contractual right can be effectuated only in accordance with applicable state
and local law.
L. ATTACHMENTS
A Urban Renewal District Map
B Public Purpose Activity Area Map
C Land Use Maps
C1 Existing Land Use
C2 Proposed Land Use
D List of General Obligations
44
EXHIBIT B
LEGAL DESCRIPTION
Lot 2 of 2 of Dubuque Industrial Center West 7~h Addition in the City of Dubuque,
Iowa.
45
W~ilf~lyO~m~1-0p~9fi~E111~ 1YIp111OJ!M
EXHIBIT C
CITY ATTORNEY'S CERTIFICATE
48
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
THE CITY OF ~_.. `.
--~----
~-
RE:
Dear
(DATE)
I have acted as counsel for the City of Dubuque, Iowa, in connection with the
execution and delivery of a certain Development 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 this Agreement and has full power and authority to
execute, deliver and perform its obligations under this Agreement, and to the best
of my knowledge, the representations of the City Manager in his letter dated the
day of , 20_, are correct.
Very sincerely,
BAL:tIs
Barry A. Lindahl, Esq.
City Attorney
49
EXHIBIT D
OPINION OF DEVELOPER'S COUNSEL
50
Mayor and City Councilmembers
Cit~ Hall
13t and Central Avenue
Dubuque IA 52001
Re: 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 Development Agreement
(Development 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 Development 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, we are of the opinion that:
1. Developer is a limited liability company organized and existing under
the laws of the State of and has full power and authority to execute,
deliver and perform in full Development Agreement. The Development Agreement
has been duly and validly authorized, executed and delivered by Developer and,
assuming due authorization, execution and delivery by City, is in full force and
effect and is valid and legally binding instrument of Developer enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting creditors' rights
generally.
2. The execution, delivery and performance by Developer of the
Development Agreement and the carrying out of the terms thereof, will not result in
violation of any provision of, or in default under, the articles of organization and
bylaws of Developer, any indenture, mortgage, deed of trust, indebtedness,
agreement, judgment, decree, order, statute, rule, regulation or restriction to which
Developer is a party or by which Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened
against or affecting Developer in any court or before any arbitrator or before or by
any governmental body in which there is a reasonable possibility of an adverse
51
decision which could materially adversely affect the business (present or
prospective), financial position or results of operations of Developer or which in any
manner raises any questions affecting the validity of the Agreement or the
Developer's ability to perform Developer's obligations thereunder.
Very truly yours,
52
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 Development
Agreement 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
an Iowa limited liability company
(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 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
Promptly after completion of the improvements in accordance with the
54
provisions of the Agreement, Grantor will furnish Grantee with a Certificate of
Completion in the form set forth in the Agreement. Such certification by Grantor
shall be, and the certification itself shall so state, a conclusive determination of
satisfaction and termination of the agreements and covenants of the Agreement
and of this Deed with respect to the obligation of Grantee, and its successors and
assigns, to construct improvements and the dates for the beginning and completion
thereof, it being the intention of the parties that upon the granting and filing of the
Certificate of Completion that all restrictions, re-vesting of title, and reservations of
title contained in this Deed be forever released and terminated and that any
remaining obligations of Grantee pursuant to the Agreement shall be personal only.
All certifications provided for herein shall be in such form as will enable them
to be recorded with the County Recorder of Dubuque, Iowa. If Grantor shall refuse
or fail to provide any such certification in accordance with the provisions of the
Agreement and this Deed, Grantor shall, within twenty days after written request by
Grantee, provide Grantee with a written statement indicating in adequate detail in
what respects Grantee has failed to complete the improvements in accordance with
the provisions of the Agreement or is otherwise in default, and what measures or
acts will be necessary, in the opinion of Grantor, for Grantee to take or perform in
order to obtain such certification.
In the event that an Event of Default occurs under the Agreement and
Grantee shall fail to cure such default within the period and in the manner stated in
the Agreement, then Grantor shall have the right to re-enter and take possession of
the Property and to terminate and re-vest in Grantor the estate conveyed by this
Deed to Grantee, its assigns and successors in interest, in accordance with the
terms of the Agreement.
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.
Dated this of , 20_ at Dubuque, Iowa.
Attest:
CITY OF DUBUQUE IOWA
By:
Roy D. Buol, Mayor
By:
Jeanne F. Schneider, City Clerk
55
STATE OF IOWA
COUNTY OF DUBUQUE
SS
On this day of , 20_, before me a Notary Public in
and for said County, personally appeared Roy D. Buol and Jeanne F. Schneider 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
56
EXHIBIT G
MEMORANDUM OF DEVELOPMENT AGREEMENT
57
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, Iowa, an
Iowa municipal corporation, of Dubuque, Iowa, and ITC Midwest LLC, a Michigan
limited liability company with its principal place of business in Novi, Michigan was
made regarding the following described premises:
The Development 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 Development Agreement is recorded for the purpose
of constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the
terms and provisions of the Development Agreement shall prevail. A complete
counterpart of the Development Agreement, together with any amendments
thereto, is in the possession of the City of Dubuque and may be examined at its
offices as above provided.
Dated this day of , 20_
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
58
By:
Jeanne F. Schneider, City Clerk
STATE OF IOWA
DUBUQUE COUNTY
ss:
On this day of , 20_, before me, a Notary Public in and for the
State of Iowa, in and for said county, personally appeared Roy D. Buol and Jeanne
F. Schneider, to me personally known, who being by me duly sworn did say that
they are the Mayor and City Clerk, respectively of the City of Dubuque, a Municipal
Corporation, created and existing under the laws of the State of 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
59
EXHIBIT H
CITY CERTIFICATE
60
Cih° Manager's Oltiae
~0 11i~st 1?th Stmt
DuBuyuc, loam ,?(bl-~1
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Dear
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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 Development 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 or Developer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
(2) No ordinance or hearing is now or before any local governmental
body that either contemplates or authorizes any public improvements or
special tax levies, the cost of which may be assessed against the Property.
To the best of City's knowledge, there are no plans or efforts by any
government agency to widen, modify, or re-align any street or highway
providing access to the Property and there are no pending or intended public
improvements or special assessments affecting the Property which will result
in any charge or lien be levied or assessed against the 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
con'ect copies of all such documents to Developer.
(4) City has good and marketable fee simple title interest in the Property.
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(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) 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 and
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. The Property is in
material compliance with all applicable zoning, fire, building, and health
statutes, ordinances, and regulations. The Property is currently zoned PUD
and Developer's intended use of the Property as a corporate office/industrial
facility is a permitted use in such zoning classification.
(7) 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.
(8) The Property will, as of the Closing Date, be free and clear of all liens,
security interests, and encumbrances.
(9) 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,
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.
(10) City has duly obtained all necessary approvals and consents for its
execution, delivery and performance of this Agreement, and has full power
and authority to execute, deliver and perform its obligations under this
Agreement. City's attorney shall issue a legal opinion to Developer and
Developer at time of closing confirming the representation contained herein,
in the form attached hereto as Exhibit C.
(11) 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 that shall in any
way be binding upon the Property, Developer.
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(12) City represents and warrants that any fees or other compensation
which may be owed to a broker engaged directly or indirectly by City in
connection with the purchase and sale contemplated in this Agreement are
the sole responsibility and obligation of City and that City will indemnify
Developer and hold Developer harmless from any and all claims asserted by
any broker engaged directly or indirectly by City for any fees or other
compensation related to the subject matter of this Agreement.
(13) City shall exercise its best efforts to assist with Developer in the
development process.
(14) City shall exercise its best efforts to resolve any disputes arising
during the development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied
the Property, and to 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, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under environmental laws.
(16) All city utilities necessary for the development and use of the Property
as an industrial manufacturing facility adjoin the Property and Developer
shall have the right to connect to said utilities, subject to City's connection
fees.
(17) The representations and warranties contained in this article shall be
correct in all respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on and as of
the Closing Date.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
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