Progressive Packaging_Hormel Food Corp Disposition of PropertyTHE CTTY OF r-- Dubuque
DT T~ ~ AN-lVnexical~tlr
4J
Masterpiece on the 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
Progressive Packaging, LLC c/o Hormel Food Corporation
DATE: April 17, 2008
Economic Development Director David Heiar is recommending that the City sell 39.55
acres in Dubuque Industrial Center West to Progressive Packaging, LLC, and approve a
Development Agreement. Progressive Packaging, LLC will be constructing a 327,000
square foot state-of-the-art food processing facility with a total investment of $89 million.
This project brings 196 new jobs, with the future capacity for additional employment.
These negotiations have been held with Hormel Foods Corporation of Austin,
Minnesota. In each of the past nine years, Hormel Foods Corporation has been named
one of the "400 Best Big Companies in America" by Forbes.
The Development Agreement includes:
1. The purchase price is $100,000 per acre for 39.55 usable acres. An acquisition
grant to the developer reduces the net purchase price to $25,000 per acre.
2. The closing will be on or before July 1, 2008.
3. Progressive Packaging, LLC must construct a building of not less than 327,000
square feet at a cost of approximately $89,000,000 by no later than
December 31, 2009.
4. Progressive Packaging, LLC must retain 8 FTE positions and create 196 new
jobs within two years. The 204 jobs must be retained for 8 additional years after
the initial 24 months.
5. Progressive Packaging, LLC will receive a 10-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.
v / <~-~ .
Michael 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 Dubuque
DUB E
r
Masterpiece on the Mississippi
2007
April 14, 2008
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director
SUBJECT: Disposition of Property in the Dubuque Industrial Center West to
Progressive Packaging, LLC c/o Hormel Food Corporation
INTRODUCTION
This memorandum presents for City Council consideration a Resolution selling of 39.55
acres identified on the attached exhibit to Progressive Packaging, LLC which will be
constructing a 327,000 square foot manufacturing facility. The attached Resolution
approves the sale of this property to Progressive Packaging, LLC.
BACKGROUND
City staff has worked with Progressive Packaging, LLC on an agreement for the sale of
property for the construction of a manufacturing facility in the Dubuque Industrial Center
West.
Progressive Packaging, LLC plans to invest $89 million, in astate-of-the-art food processing
facility on a 39.55 acre site in Dubuque's Industrial Center West. Hormel Food Corporation,
the Austin, Minnesota-based parent company hopes to break ground this summer and plans
to have two lines producing packaged foods in 327,000 square feet of new space by the end
of 2009. This project will bring 196 new jobs to the area, with capacity for more, based on
consumer demand for shelf stable microwave meals.
Raw materials will be shipped to Dubuque from other locations. Various recipes will be used
to make non-frozen, ready-to-eat products for the grocery shelf. The operation will not
involve animal slaughter or meat processing. Hormel Foods Corp. is a multinational
manufacturer and marketer of high-quality, brand-name food and meat products. In each of
the past nine years, Hormel Foods Corp. has been named one of the "400 Best Big
Companies in America" by Forbes.
DISCUSSION
The proposed Development Agreement provides for several incentives to encourage
this manufacturing facility to locate in Dubuque. An Acquisition Grant reduces the
purchase price of the land from $100,000/acre to $25,000/acre.
The Development Agreement requires the construction of a new manufacturing facility
at a cost of approximately $89,000,000.
The Development Agreement establishes the terms of the sale of the property to
Progressive Packaging, LLC. The key elements of the Development Agreement include
the following:
1) The purchase price is $100,000 per acre for 39.55 usable acres. An acquisition
Grant to the developer reduces the net purchase price to $25,000 per acre.
2) The closing will be on or before July 1, 2008
3) Progressive Packaging, LLC must construct a building of not less than 327,000
square feet at a cost of approximately $89,000,000 by no later than December
31, 2009.
4) Progressive Packaging, LLC must retain 8 FTE positions and create 196 new
jobs within two years. The 204 jobs must be retained for 8 additional years after
the initial 24 months.
5) Progressive Packaging, LLC will receive a 10 year TIF in the form of a yearly tax
rebates 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 sale of 39.55 acres in the Dubuque
Industrial Center West to Progressive Packaging, LLC for the purpose of constructing a
327,000 sq. ft. manufacturing facility. This action supports the City Council's objectives
to businesses retaining and creating new jobs.
ACTION STEP
The action step for the City Council is to adopt the attached Resolution.
F:\USERS\DHeiar\Hormel\Hormel Council memo to MVM 2.doc
Prepared by: David Heiar, Economic Development 50 W. 13th St, Dubuque IA 52001 563 589-4393
Return to: Jeanne Schneider, City Clerk. 50 W. 13th St, Dubuque IA 52001 563 589-4120
RESOLUTION NO. 135-08
RESOLUTION APPROVING A DEVELOPMENT AGREEMENT
PROVIDING FOR THE SALE OF 39.55 ACRES IN THE DUBUQUE
INDUSTRIAL CENTER WEST TO PROGRESSIVE PACKAGING, LLC
c/o HORMEL FOOD CORPORATION
Whereas, the City Council, by Resolution No. 108-08, dated April 7, 2008
declared its intent to enter into a Development Agreement with Progressive Packaging,
LLC c/o Hormel Food Corporation for the sale of 39.55 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 April 21, 2008 at 6:30 p.m. in the Historic Federal Building, 350
W. 6th 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
Progressive Packaging, LLC c/o Hormel Food 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 Progressive Packaging, LLC c/o Hormel Food 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 21st day of April,
Attest:
Roy D. Buol
Jeanne F. Schneider, City Clerk
F:\USERS\DHeiar\Hormel\Hormel Resolution for final dispo.doc
Page 2
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA,
AND
PROGRESSIVE PACKAGING, LLC
This Agreement, dated for reference purposes the 21st day of April, 2008
(Effective Date), 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 (the Urban Renewal Act), and Progressive Packaging,
LLC, Delaware corporation with its principal place of business in Austin, Minnesota
(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 the 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, as amended, on file at the office of
the Economic Development Department, City Hall, 13th and Central Avenue,
Dubuque, Iowa; and
WHEREAS, a copy of the Urban Renewal Plan, as amended, is attached
hereto as Exhibit C
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 as Instrument no.
and
WHEREAS, Developer has decided to construct a new facility in the Project
Area; and
WHEREAS, Developer has requested that City sell to Developer 39.55 acres
of land all of which are usable, legally described as Lot 1 of Dubuque Industrial
Center West 8th Addition, Dubuque Industrial Center West, in the City of Dubuque,
Dubuque County, Iowa, together with all easements, tenements, hereditaments,
040208ba1
and appurtenances belonging thereto (the Property) so that Developer may develop
the Property, located in the Project Area for the construction of a manufacturing
facility for use and occupancy with appurtenant uses which City has determined and
represented to Developer is in accordance with the uses specified in the Urban
Renewal Plan and in accordance with this Agreement according to the Site Plan,
attached hereto as Exhibit A; 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 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 Three Million Nine Hundred Fifty-Five Thousand Dollars
($3,955,000.00) (One Hundred Thousand Dollars ($100,000.00) per usable acre for
39.55 net usable acres). The Purchase Price shall be offset by the Acquisition Grant
(as defined in Section 3.1) of $2,966,250, and the net amount of $988,750 shall be
due and payable by Developer in immediately available funds in favor of City, on
May 2, 2008 or such other date as the parties may mutually agree (the Closing
Date). City acknowledges receipt of the sum of $5,000.00 from Developer as
earnest money, to be returned to Developer at the Closing to be credited against
the Purchase Price at closing (Closing), or in the event the parties fail to close on
the Closing Date, within thirty (30) days after the Closing Date, less any reasonable
expenses incurred by City in connection with this Agreement.
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 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 within no
more than (14) days after the Effective Date, an abstract of title to the
Property continued through the date of this Agreement reflecting
merchantable 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 applicable to the Property, and such
abstract shall become the property of Developer Closing.
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(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 (the Abstract) promptly following Developer's receipt of Developer's
land survey and 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
its intended action within ten (10) days after receipt of Developer's written
objections thereto. 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), less any reasonable expenses (up to a maximum of
$5,000.00) incurred by City in connection with this Agreement, shall
be returned to Developer with interest,
(b) withhold from the Purchase Price an amount which, in the
reasonable judgment of Developer, is sufficient to assure cure of the
objections. Any amount so withheld will be placed in escrow pursuant
to an escrow agreement mutually agreed upon by the parties, pending
such cure. If City does not cure such objections within ninety (90)
days after such escrow is established Developer may then cure such
objections and charge the costs against the escrowed amount, or
(c) take title subject to such objections. City agrees to use its best
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
Property at any time after the execution and delivery hereof for any purpose
whatsoever, including, but not limited to, 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.
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1.4 Representations, Warranties and Covenants of City. In order to induce
Developer to enter into this Agreement and purchase the Property, City hereby
represents, warrants and covenants, as the case may be, to Developer that:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or.enjoyment
thereof by Developer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
(2) No ordinance or hearing is 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 for 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, and there are no defaults
thereunder, nor any event that, with either or both the giving of notice or
passage of time, would become a default thereunder.
(4) City has good and marketable fee simple title interest in the Property.
(5) Subject to compliance with all applicable public bidding statutes, City
shall (at its sole cost and expense and without reimbursement from
Developer, or assessment of the project site) construct a public street
(Chavenelle Court) connecting the project site to Chavenelle Road in the
location identified, and in accordance with specifications set forth, on Exhibit
G.
(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.
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(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 objected to by Developer in
accordance with the terms of this Agreement.
(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 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 time of
Closing confirming the representation contained herein, in the form attached
hereto as Exhibit B.
(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.
(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.
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(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 a 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 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 F.
(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 Developer will pay normal and
customary fees of the City in connection therewith. In connection therewith,
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 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
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identify in writing within ten (10) working days of submission of said plans
and specifications, any and all permits, approvals and consents that are
legally required for the acquisition of the Property by Developer, and the
construction, use and occupancy of the project with the intent and
understanding that Developer and their respective 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 the right to terminate this Agreement at anytime
prior to the consummation of the Closing on the Closing Date if Developer
determines in its sole discretion that conditions necessary for the successful
completion of the Project contemplated herein have not been satisfied in its
sole and unfettered discretion. Upon the giving of notice of termination by
such terminating party to the other parties to this Agreement, this Agreement
shall be deemed null and void.
(7) Receipt by City of an opinion of counsel to Developer in the form
attached here as Exhibit H or other form that is reasonably acceptable to
City.
(8) The covenants made by City in Section 1.4 shall be completed or
addressed in a manner that is acceptable to Developer in its sole discretion.
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 except those by which their
terms survive the Closing.
1.7 City's Obligations at Closing. At or prior to the Closing Dade, City shall:
7
(1) Deliver to Developer City's duly recordable Special Warranty Deed to
the Property (in the form attached hereto as Exhibit D (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 to the Property in accordance with
Section 1.2(1).
(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, 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.
(b) Developer's attorney's fees.
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(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 and installments of
special assessments for all calendar years that end prior to the year in which the
Closing Date occurs. Real estate taxes and installments of special assessments for
the calendar year in which the Closing Date occurs shall be prorated between City
and Developer to the Closing Date on the basis of a 366-day calendar year.
Developer shall pay or cause to be paid all real estate taxes and installments of
special assessments due in subsequent calendar years. Any proration of real
estate taxes on the Property shall be based upon such taxes for the calendar year
currently payable notwithstanding when they may have been first levied or
assessed.
SECTION 2. DEVELOPMENT ACTIVITIES
2.1 Required Minimum Improvements. City acknowledges that Developer is
building a manufacturing facility on the Property, specifically, a building and certain
internal systems thereto, and 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 that the Minimum
Improvements shall include a manufacturing facility with approximately three
hundred and twenty seven thousand (327,000) square feet of floor space, along
with necessary site work and equipment as contemplated in this Agreement, at an
estimated cost of approximately $89,000,000.
2.2 Plans for Construction of Minimum Improvements. Plans and specifications
with respect to the development of Property and the construction of the Minimum
Improvements thereon (the Construction Plans) shall be in conformity with the
Urban Renewal Plan, this Agreement, and all applicable state and local laws and
regulations, 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. 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 December
31, 2009. For purposes of this section, "substantial completion" shall mean
completion of the site work and completion of the core and shell of the building, but
9
shall not include fixtures and equipment, and does not contemplate receipt of a
certificate of occupancy. 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. The time for performance of such obligations shall be extended only for the
period of such delay.
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.
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 (Acquisition Grant) to Developer on the Closing Date, in the
amount of $2,966,250.00 ($75,000.00 per acre x 39.55 usable acres). The parties
agree that the Acquisition Grant shall be payable in the form of a credit favoring
Developer at the time of Closing with the effect of directly offsetting a portion of the
Purchase Price obligation. of Developer as provided in Section 1.1.
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
being in compliance with the terms of this Agreement, to make twenty (20)
consecutive semi-annual payments (such payments being referred to
collectively as the Economic Development Grants) to Developer if Developer
owns or leases the Property and/or the Minimum Improvements thereon
during the period such tax increment revenues accrue, as follows:
November 1, 2011 May 1, 2012
November 1, 2012 May 1, 2013
November 1, 2013 May 1, 2014
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November 1, 2014 May 1, 2015
November 1, 2015 May 1, 2016
November 1, 2016 May 1, 2017
November 1, 2017 May 1, 2018
November 1, 2018 May 1, 2019
November 1, 2019 May 1, 2020
November 1, 2020 May 1, 2021
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 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, 2010,
its request for the available Developer Tax Increments resulting from the
assessments imposed by the County as of January 1 of that year, to be
collected by City as taxes are paid during the following fiscal year and which
shall thereafter be disbursed to Developer if Developer (or a subsequent
owner reasonably approved by City) owns or leases the Property and/or
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, 2010, the Economic Development Grants in respect
thereof would be paid to Developer on November 1, 2011, and May 1, 2012.)
(3) The Economic Development Grants shall be payable from and
secured solely 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 "Progressive 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 Progressive 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
11
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 Progressive 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.
(5) City will assist Developer in applications to the Iowa Department of
Economic Development for financial assistance programs (HQJP). Developer
will provide supporting documentation needed by City to apply for RISE
funding from the Iowa Department of Transportation for construction of a
road to serve the new facility. Developer acknowledges that in order for City
to secure such incentives, certain requirements are imposed upon Developer
as specified in the respective program regulations. Developer agrees to
cooperate with City by providing the information and documents necessary
for the approval of loans and applications for such financial assistance.
SECTION 4. COVENANTS OF DEVELOPER
4.1 Job Creation.
(1) Developer shall create one hundred and ninety six (196) full-time jobs
in Dubuque, Iowa prior to January 1, 2011, and shall maintain those jobs
during the term of this Agreement. It is agreed by the parties that Developer
has eight (8) full time positions in Dubuque, Iowa as of March 1, 2008. In the
event that the certificate provided to City under Section 4.2 hereof on
January 10, 2021 discloses that Developer does not as of that date have at
least 204 employees as provided hereinabove, then Developer shall pay to
City, promptly upon written demand therefore, an amount equal to
$14,540.00 per job not created or maintained ($2,966,250 divided by 204
jobs = $14,540.00). The payments provided for herein shall be City's sole
remedy for the failure of Developer to meet the job creation requirements of
this subsection 4.1(1).
(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
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reduced by the percentage that the number of such positions bears to the
total number of positions required to be created and maintained (204 jobs) by
this Section 4.1. (For example, if Developer has 190 jobs, the semi-annual
Economic Development Grants would be 93.14% (190/204 employees) of
the available Developer Tax Increment received by City). The reduction of
the semi-annual Economic Development Grants shall be City's sole remedy
for the failure of Developer to meet the job creation requirements of this
subsection 4.1(2).
4.2 Certification. To assist City in monitoring the performance of Developer
hereunder, not later than January 10, 2012, and not later than January 10 of each
year thereafter during the term of this Agreement, a duly authorized officer of
Developer shall certify to City in a form acceptable to City (a) the number of full time
jobs maintained by Developer during the prior year in Dubuque, Iowa, and (b) to the
effect that such officer has re-examined the terms and provisions of this Agreement
and that at the date of such certificate, and during the preceding twelve (12)
months, Developer is not or was not in default in the fulfillment of any of the material
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. Such certificate shall be provided not later than January 10, 2012,
and by January 10 of each year thereafter during the term of this Agreement.
4.3 Books and Records. During the term of this Agreement, Developer shall
keep at all times and make available to City upon reasonable request proper books
of record and account in which full, true and correct entries will be made of all
dealings and transactions of or in relation to the br~siness and affairs of Developer
related to the Project in accordance with generally accepted accounting principles
consistently applied throughout the period involved, and Developer shall provide
reasonable protection against loss or damage to such books of record and account.
City's agreement to Developer's reasonable confidentiality requirements (including,
without limitation, the execution of a commercially reasonable confidentiality
agreement) is a condition precedent to City's review and inspection rights under this
Section 4.3.
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 or entity pursuant to the provisions of this
Agreement.
4.5 No Exemptions. During the term of this Agreement, and except as otherwise
permitted by this Agreement, Developer agrees not to apply for any state or local
13
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) City acknowledges that Developer is self-insured, currently with a two
million dollar retention and that Developer is insured certain for claims above
that amount with an excess liability policy. To the extent that Developer
elects to forego self-insuring as aforesaid, Developer shall comply with the
provisions of Section 4.6(2) and Section 4.6(3).
(2) Developer shall provide and maintain or cause to be maintained at all
times during the process of constructing the Minimum Improvements (and,
from time to time at the request of City, furnish City with proof of insurance in
the form of a certificate of insurance for each insurance policy):
(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.
(3) 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: 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.
(4) 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,
14
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. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, the
Minimum Improvements in good repair and working order, ordinary wear and tear
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, 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 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.
(1) Until such time as the Minimum Improvements are complete (as
certified by City under Section 2.4), and except as permitted by Section
4.10(2), 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.
Thereafter, Developer shall have the right to assign this Agreement
(including, specifically, the Economic Development Grant rights contained in
15
Section 3), and upon assumption of the Agreement by the assignee,
Developer shall no longer be responsible for its obligations under this
Agreement.
(2) Upon notice to, but without the consent of, City, Developer may assign
this Agreement to any entity controlling, controlled by, or under common
control with Developer.
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 a commercial office complex is in full compliance with
the Urban Renewal Plan) (however, Developer shall not have any liability to
City to the extent that a successor in interest shall breach this covenant and
City shall seek enforcement of this covenant directly against the party in
breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, national origin, age or disability in the sale, lease, rental, use or
occupancy of the Property or any improvements erected or to be erected
thereon, or any part thereof (however, Developer shall not have any liability
to City to the extent that a successor in interest shall breach this covenant
and City shall seek enforcement of this covenant directly against the party in
breach of same).
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 (except with
respect to any suit, action, demand or other proceeding brought by
16
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.
(3) The Indemnified Parties shall not be liable to Developer for any
damage or injury to the persons or property of Developer or its officers,
agents, servants or employees or any other person who may be 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.
(4) All covenants, stipulations, promises, agreements and obligations of
City contained herein shall be deemed to be the covenants, stipulations,
promises, agreements and obligations of City, and not of any governing body
member, officer, agent, servant or employee of City in their individual
capacity thereof.
(5) The provisions of this Section shall survive the termination of this
Agreement.
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.
(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.
17
(3) Transfer of any interest by Developer of the Minimum Improvements
in violation of the provisions of this Agreement prior to the issuance of the
final Certificate of Completion.
(4) Failure by Developer or City to substantially observe or perform any
other material covenant, condition, obligation or agreement on its part to be
observed or performed under this Agreement.
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 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; or
(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.
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, but subject to the terms of any mortgage granted by Developer to
secure a loan obtained by Developer from a commercial lender or other financial
institution to fund the acquisition of Property or construction of the Minimum
Improvements (if any, First Mortgage), 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
18
portion of the Minimum Improvements thereon and to terminate (and re-vest in City
pursuant to the provisions of this Section 5.3 subject only to any superior rights in
any holder of the First Mortgage) 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 assurance to City, reasonably satisfactory to
City, that the events will be cured as soon as reasonably possible. Notwithstanding
the foregoing, however, City agrees to execute a Subordination Agreement in favor
of Developer's first mortgage lender (if any), in a form reasonably acceptable to City
and to Developer's first mortgage lender (if any).
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, subject to any
rights or interests in such property or resale granted to any holder of a First
Mortgage, 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. Subject to any rights or interests in such
property or proceeds granted to any holder of a First Mortgage upon such resale of
the Property the proceeds thereof shall be applied:
(1) First, to pay and discharge the First Mortgage;
(2) Second, to pay the principal and interest on mortgage(s) created on
the Property, or any portion thereof, or any improvements thereon, previously
acquiesced in by City pursuant to this Agreement. If more than one
mortgage on the Property, or any portion thereof, or any improvements
thereon, has been previously acquiesced in by City pursuant to this
Agreement and insufficient proceeds of the resale exist to pay the principal
of, and interest on, each such mortgage in full, then such proceeds of the
resale as are available shall be used to pay the principal of and interest on
19
each such mortgage in their order of priority, or by mutual agreement of all
contending parties, including Developer, or by operation of law;
(3) Third, to reimburse City for all allocable costs and expenses incurred
by City, including but not limited to salaries of personnel, in connection with
the recapture, management and resale of the Property or part thereof (but
less any income derived by City from the Property or part thereof in
connection with such management); any payments made or necessary to be
made to discharge any encumbrances or liens (except for mortgage(s)
previously acquiesced in by 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
(4) Fourth, 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 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
20
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
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, or one (1) business day after deposit with a nationally
recognized overnight courier, addressed as follows:
If to Developer: Progressive Packaging, LLC
c/o Hormel Foods Corporation
1 Hormel Place
Austin, MN 55918
Attention: Michael Devine
Phone: (507) 437-5755
Fax: (507) 437-5108
With copy to: Hormel Foods Corporation
1 Hormel Place
Austin, MN 55912
Attn: General Counsel
Phone: (507) 437-5220
Fax: (507) 437-5135
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. 13th Street
21
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.
6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of City, 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, 2021 (the Termination Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be
transmitted among 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 E in the office of the Recorder of Dubuque County, Iowa. Developer
shall pay the costs for so recording.
CITY OF DUBUQUE, IOWA
PROGRESSIVE PACKING, LLC
By: Roy D. Buol, Mayor
By: Its President of Progressive
By; Jeanne F. Schneider, City Clerk
List of Exhibits
Exhibit A Site Plan
Exhibit B City Attorney Certificate
Exhibit C Urban Renewal Plan
Exhibit D Deed
Exhibit E Memorandum of Development Agreement
Exhibit F City Certificate
Exhibit G Information Regarding Chavenelle Court
Exhibit H Opinion of Counsel to Developer
23
EXHIBIT A
SITE PLAN
24
EXHIBIT B
CITY ATTORNEY'S CERTIFICATE
26
BARRY A. LINDAHL, ESQ.
CITY ATTORNEY
RE:
Dear
THE CITY OP _~,..
DuB E
(DATE)
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
27
EXHIBIT C
URBAN RENEWAL PLAN
28
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, Resolution 15-08 on January 7,
2008, Resolution 101-08 on March 17, 2008, and Resolution
on April 7, 2008.
Prepared by the Economic Development Department.
Version 2008.3
29
TABLE OF CONTENTS
A. INTRODUCTION ................................................................................................ 31
B. OBJECTIVES ..................................................................................................... 31
C. DISTRICT BOUNDARIES .................................................................................. 32
D. PUBLIC PURPOSE ACTIVITIES ....................................................................... 33
E. DEVELOPMENT ~ REDEVELOPMENT REQUIREMENTS ..............................34
F. LAND ACQUISITION AND DISPOSITION ........................................................34
G. FINANCING ACTIVITIES ................................................................................... 35
H. STATE AND LOCAL REQUIREMENTS ............................................................ 36
I. DURATION OF APPROVED URBAN RENEWAL PLAN .................................. 36
J. SEVERABILITY ..................................................................................................37
K. AMENDMENT OF APPROVED URBAN RENEWAL PLAN ..............................37
L. ATTACHMENTS ................................................................................................37
30
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,
Resolution 15-08 on January 7, 2008, Resolution 101-08 on March 17, 2008, and Resolution on
April 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 (the different
areas of the district hereinafter referred to as Subareas). 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 Subareas A, B, C, and D 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
development and redevelopment of the District;
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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 four separate areas so as to distinguish the original District
(Subarea A) from the subsequent expansion areas (Subareas B, C, and D).
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, 5m Principal Meridian; and
• any adjoining public street right-of-way all in the City of Dubuque, Dubuque County, Iowa.
Subarea C of the District shall consist of the real property legally described as follows:
• Lot 1-1 NW 1/4-NE 1/4; Lot 2 of E 10 acres NE 1/4-NW 1/4; Lot 2-1 NW 1/4-NE 1/4; Lot 2
NW 1/4-NE 1/4; Lot 1 E 1/4 NE 1/4-NW 1/4; W 3/4 NE 1/4-NW 1/4; Lot 2-1 SE 1/4-NW 1/4;
Lot 1-1 SE 1/4-NW 1/4; and the SW 1/4-NE 1/4 all in Section 30, Township 89 North, Range
2 East, 5th Principal Meridian; and any adjoining public street right-of-way in the City of
Dubuque, Dubuque County.
32
Subarea D of the District shall consist of the real property legally described as follows
• Lot 4 of Dubuque Industrial Center West 5th Addition, and Lot B of Dubuque Industrial
Center West 5th Addition in the City of Dubuque, Iowa.
The boundaries of the District are delineated on the URBAN RENEWAL DISTRICT map (Attachment
A).
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.
33
E. DEVELOPMENT 8~ 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
Subareas A, B, C, and D 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 Subareas A, B, C, and D.
2. Plannina and Design Criteria
The planning criteria to be used to guide the physical development of Subareas A, B, C, and
D 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. Subareas B, C, and D will develop under a PI Planned Industrial District ordinance
as required by Section 3-5.5 of the City of Dubuque Zoning Ordinance.
Development 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 in Subareas A and B of the District.
The City may acquire additional property in Subarea C in the future.
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.
34
Relocation Requirements
No relocation is anticipated at this time.
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:
Planning and administration of the Plan;
35
b. Construction of public infrastructure improvements and facilities within the District;
c. Acquisition, installation, maintenance and replacement of public investments
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 $70,000,000.
At the time of adoption of this Plan, the City of Dubuque's current general obligation debt is $
69,946,580 (a list of obligations is found as Attachment D) and the applicable constitutional
debt limit is $163,487,198.
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.
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
36
City first certifies to the County Auditor the amount of any loans, advances, indebtedness or
bonds which qualify for payment from the division of tax increment revenue provided for in
Section 403.19 (tax increment financing) of the Iowa Code.
3. Subarea C
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 C 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 which qualify for payment from the division of tax increment revenue provided for in
Section 403.19 (tax increment financing) of the Iowa Code.
4. Subarea D
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 D 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 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
37
ATTACHMENT A
38
ATTACHMENT B
39
ATTACHMENT C1
40
ATTACHMENT C2
41
Dubuque Industrial Center
Economic Development District
Verson 2008.3
city ~ ~ubugw
R.e6onttmndad twmreary e?f Rotes Inda~ednass - Fiagd Year 2001-21'~IN
General Obligation !)Dods
1 Fillh Street Ramp
2 Tttird Street Ramp /Airport T-Flangars
3 America's River Project
3 America's River Project
4 Man Street
5 Water Main and WaMr Tower
6 Slorrnwaler Improverrwrrts
6 Sionrraaier Improverrrsrrts
7 Dtc1N Expmion-Taxable
7 DICW Expanaia~Non Taxable
8 Refirrarrced Portions d 51h13rd St Ramps
9 Parking Ramp Improvements
6 SiorrrrMrater Improverrrents
8 Refinanced Portions of 5tN3rd St Ramps
13 Sewer System Improverrnnts ~ Ext.
14 Port of Dubuque Parking Ramp
6 Slorrr-water Improvements
10 9torrr>wvater ImproverrreMs
15 Main Sfraet 3frestscape
15 tCepharfs Buidng
15 Fire Station Land from Obq krtiative
17 Lrbarary Rerwvation
Total 6enwal Obl~alfon Bonds
Dew Net Amaart Principal Principal irr®ereet Principal Year of
of Irrtereet of OubterWrg Due tlue Outs~earrdry Firm
Issue Rate Issue 711 iD0 FY 200.9 FY 2009 6/3010! Payment
06-01-00 5.8000% 360,D00 125.000 125.000 7,250 - 2009
11-01-00 5.1250% 3,690,000 285,OOD 285,000 161,950 - 2009
12-27-01 4.6892% 9,500,000 7,815,000 490,000 357,681 7,325,000 2021
Ot-09-02 4.7251% 2,860,000 2,2(15,000 125,000 102,233 2,080,000 2021
03-26-02 4.7348% 1,000,000 780,000 45,000 36,136 735,000 2021
12-01-02 3.8187% 3,105,000 1,600,000 155,000 62,618 1,445,000 2017
09-15-03 4.2750% 2,110,000 1,680,000 85,000 69,348 1,595,000 2023
Od-18.05 4.2421% 1,750,000 1,555,000 75,000 62,810 1,480,000 2024
04-18.05 4.9392% 2,995,000 2,355,000 240,000 113,430 2,115,000 2016
04-18-05 4.1240% 4,270,000 3,955,000 120,000 158.138 3,835,000 2021
05-02-06 3.9857% 3,525.000 3,525.000 - 139,098 3.525.000 2020
05-02-06 4.0257% 910,000 825,000 50,000 32,568 775,000 2021
05-02-06 4.0665% 2,900,000 2,705,000 110,000 108,338 2,595,000 2025
12-01-07 3.6731% 2,965,000 2,965,000 - 111,188 2,965,000 2017
12-01-07 3.6596% 1,Q55,000 1,055,000 100,000 42,100 955,000 2017
10-16-07 7.5096 23,025,000 23,025,000 - 1,079,297 23,025,000 2037
Flamed' 4.5000% 3,902,395 3,902,395 18,686 14,358 3,883,709 2028
Plarned' 3.2500% 5,983,594 5,983,594 182,762 217,124 5,800,832 2028
Planned' 4.500096 301,995 301,995 15,498 12,630 286,497 2024
Pianwd' 4.5000% 253,596 253,596 13,014 10,606 240,582 2024
Plarxied" 5.000096 650,000 650,000 52,815 32,185 597,185 2019
Planned' 4.5000% 2,400000 2,400000 123,164 97804 76,836 2024
79,511, 69, ,580 2.410,9 3, 6T ,641
ATTACHMENT D
42
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 Progressive Packaging, LLC, a Delaware corporation
(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 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
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
44
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 (including, without limitation, those set forth below
regarding an event of default) be forever released and terminated.
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 (20) 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 herein 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 , 2008 at Dubuque, Iowa.
Attest:
CITY OF DUBUQUE IOWA
By:
Roy D. Buol, Mayor
By:
Jeanne F. Schneider, City Clerk
STATE OF IOWA )
SS
45
COUNTY OF DUBUQUE
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
46
EXHIBIT E
MEMORANDUM OF DEVELOPMENT AGREEMENT
47
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
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
48
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
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
to me personally known, who being by me duly sworn did say that they are
the
and that said instrument was signed on behalf of said company by authority
of its members and that they acknowledged the execution of this instrument
to be the voluntary act and deed of said company by it voluntarily executed.
49
Notary Public, State of Iowa
50
(DATE)
Dear
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, 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
correct copies of all such documents to Developer, and there are no defaults
thereunder, nor any event that, with either or both the giving of notice or
passage of time, would become a default thereunder.
(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
52
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 objected to by Developer in
accordance with the terms of this Agreement.
(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 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.
(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
53
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 a 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 letter are correct
in all respects on and as of the date hereof.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
54
EXHIBIT G
INFORMATION REGARDING CHAVENELLE COURT
55
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EXHIBIT H
OPINION OF COUNSEL TO DEVELOPER
58
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 corporation organized and existing under the laws of
the State of Minnesota 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 incorporation and
bylaws of Developer, any indenture, mortgage, deed of trust, indebtedness,
agreement, judgment, decree, order, statute, rule, regulation or restriction to which
Developer is a party or by which Developer's property is bound or subject.
3. There are no actions, suits or proceedings pending or threatened
against or affecting Developer in any court or before any arbitrator or before or by
any governmental body in which there is a reasonable possibility of an adverse
decision which could materially adversely affect the business (present or
prospective), financial position or results of operations of Developer or which in any
manner raises any questions affecting the validity of the Agreement or the
Developer's ability to perform Developer's obligations thereunder.
59
Alliance for Construction Excellence
"Safe, quality construction, on time and within budget... "
700 Locust Street, Suite 150, P.O. Box 14, Dubuque, IA 52004-0014
Phone: 563-582-8804 FAX: 563-582-1224 E-mail: info@dalmc.net
Internet: www.dalmc.com
April 17, 2008
Mayor & City Council of Dubuque
City Hall
50 West 13'h Street
Dubuque, IA 52001
Dear Mayor Boul and Council members,
The Alliance for Construction Excellence is a committee of the Dubuque Area Labor-Management Council
formed in 1990 to address issues of mutual concern to construction contractors and trade unions. The
Alliance is committed to the concept of "safe, quality construction, on time and within budget" using union
contractors. The Alliance is also committed to economic development in the tri-state area and is
supportive of the new Grassroot Meat Processing and Prep plant being considered by Hormel Foods
Corporation for this area.
ACE members include high quality contractors and suppliers along with highly skilled and trained
tradesmen and women who stand ready to assist Hormel and the city in this project. We would encourage
Hormel to consider the use of local contractors, suppliers, tradesmen and women in the building of this
plant. Our recent successful projects at the McGraw Hill Companies building and George Washington
Elementary School are examples of the quality work and on-time completion the Alliance for Construction
Excellence brings to this community. -
Again ACE stands ready to provide local contractors and workers in the construction of the new facility.
Sincerely,
Tom FI nn
President Flynn Ready-Mix Concrete CO
- 0.~
Dan Hammel
Business Manager, IBEW local 704